Transferred OTS Regulations and Regulations Regarding Disclosure and Reporting of CRA-Related Agreements, 23692-23699 [2015-09894]

Agencies

• FEDERAL DEPOSIT INSURANCE CORPORATION

[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 23692-23699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09894]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 346

RIN 3064-AE09


Transferred OTS Regulations and Regulations Regarding Disclosure 
and Reporting of CRA-Related Agreements

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule; correcting amendment.

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SUMMARY: The Federal Deposit Insurance Corporation (``FDIC'') published 
a final rule in the Federal Register on July 21, 2014 (79 FR 42183), 
regarding Transferred OTS Regulations Regarding Disclosure and 
Reporting of CRA-Related Agreements. This publication corrects a 
typographical error which caused the unintended deletion of Sec. Sec.  
346.2 through 346.10.

DATES: The correction is effective April 29, 2015.

FOR FURTHER INFORMATION CONTACT: Patience Singleton, Senior Policy 
Analyst, Division of Depositor and Consumer Protection, (202) 898-6859; 
Jennifer Maree, Counsel, Legal Division, (202) 898-6543; Richard M. 
Schwartz, Counsel, Legal Division, (202) 898-7424.

SUPPLEMENTARY INFORMATION: The Federal Deposit Insurance Corporation 
(``FDIC'') is correcting a typographical error in the final rule that 
published in the Federal Register on July 21, 2014 (79 FR 42183), which 
caused the unintended deletion of Sec. Sec.  346.2 through 346.10.

List of Subjects in 12 CFR Part 346

    Banks and banking, Disclosure and reporting of CRA-related 
agreements, Savings associations.

Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of 
the Federal Deposit Insurance Corporation corrects 12 CFR chapter III 
by revising part 346 as set forth below:

PART 346--DISCLOSURE AND REPORTING OF CRA-RELATED AGREEMENTS

Sec.
346.1 Purpose and scope of this part.
346.2 Definition of covered agreement.
346.3 CRA communications.
346.4 Fulfillment of the CRA.
346.5 Related agreements considered a single agreement.
346.6 Disclosure of covered agreements.
346.7 Annual reports.
346.8 Release of information under FOIA.
346.9 Compliance provisions.
346.10 Transition provisions.
346.11 Other definitions and rules of construction used in this 
part.

    Authority: 12 U.S.C. 1831y.

PART 346--DISCLOSURE AND REPORTING OF CRA-RELATED AGREEMENTS


Sec.  346.1  Purpose and scope of this part.

    (a) General. This part implements section 711 of the Gramm-Leach-
Bliley Act (12 U.S.C. 1831y). That section requires any nongovernmental 
entity or person, insured depository institution, or affiliate of an 
insured depository institution that enters into a covered agreement 
to--
    (1) Make the covered agreement available to the public and the 
appropriate Federal banking agency; and
    (2) File an annual report with the appropriate Federal banking 
agency concerning the covered agreement.
    (b) Scope of this part. The provisions of this part apply to--
    (1) State nonmember insured banks;
    (2) Subsidiaries of state nonmember insured banks;
    (3) Nongovernmental entities or persons that enter into covered 
agreements with any company listed in paragraphs (b)(1), (2), (4) and 
(5) of this section.
    (4) State savings associations; and
    (5) Subsidiaries of State savings associations.
    (c) Relation to Community Reinvestment Act. This part does not 
affect in any way the Community Reinvestment Act of 1977 (12 U.S.C. 
2901 et seq.) or the FDIC's Community Reinvestment regulation found at 
12 CFR part 345, or the FDIC's interpretations or administration of 
that Act or regulation.
    (d) Examples. (1) The examples in this part are not exclusive. 
Compliance with an example, to the extent applicable, constitutes 
compliance with this part.

[[Page 23693]]

    (2) Examples in a paragraph illustrate only the issue described in 
the paragraph and do not illustrate any other issues that may arise in 
this part.


Sec.  346.2  Definition of covered agreement.

    (a) General definition of covered agreement. A covered agreement is 
any contract, arrangement, or understanding that meets all of the 
following criteria--
    (1) The agreement is in writing.
    (2) The parties to the agreement include--
    (i) One or more insured depository institutions or affiliates of an 
insured depository institution; and
    (ii) One or more nongovernmental entities or persons (referred to 
hereafter as NGEPs).
    (3) The agreement provides for the insured depository institution 
or any affiliate to--
    (i) Provide to one or more individuals or entities (whether or not 
parties to the agreement) cash payments, grants, or other consideration 
(except loans) that have an aggregate value of more than $10,000 in any 
calendar year; or
    (ii) Make to one or more individuals or entities (whether or not 
parties to the agreement) loans that have an aggregate principal amount 
of more than $50,000 in any calendar year.
    (4) The agreement is made pursuant to, or in connection with, the 
fulfillment of the Community Reinvestment Act of 1977 (12 U.S.C. 2901 
et seq.) (CRA), as defined inSec.  346.4.
    (5) The agreement is with a NGEP that has had a CRA communication 
as described in Sec.  346.3 prior to entering into the agreement.
    (b) Examples concerning written arrangements or understandings--
    (1) Example 1. A NGEP meets with an insured depository 
institution and states that the institution needs to make more 
community development investments in the NGEP's community. The NGEP 
and insured depository institution do not reach an agreement 
concerning the community development investments the institution 
should make in the community, and the parties do not reach any 
mutual arrangement or understanding. Two weeks later, the 
institution unilaterally issues a press release announcing that it 
has established a general goal of making $100 million of community 
development grants in low- and moderate-income neighborhoods served 
by the insured depository institution over the next 5 years. The 
NGEP is not identified in the press release. The press release is 
not a written arrangement or understanding.
    (2) Example 2. A NGEP meets with an insured depository 
institution and states that the institution needs to offer new loan 
programs in the NGEP's community. The NGEP and the insured 
depository institution reach a mutual arrangement or understanding 
that the institution will provide additional loans in the NGEP's 
community. The institution tells the NGEP that it will issue a press 
release announcing the program. Later, the insured depository 
institution issues a press release announcing the loan program. The 
press release incorporates the key terms of the understanding 
reached between the NGEP and the insured depository institution. The 
written press release reflects the mutual arrangement or 
understanding of the NGEP and the insured depository institution and 
is, therefore, a written arrangement or understanding.
    (3) Example 3. An NGEP sends a letter to an insured depository 
institution requesting that the institution provide a $15,000 grant 
to the NGEP. The insured depository institution responds in writing 
and agrees to provide the grant in connection with its annual grant 
program. The exchange of letters constitutes a written arrangement 
or understanding.
    (c) Loan agreements that are not covered agreements. A covered 
agreement does not include--
    (1) Any individual loan that is secured by real estate; or
    (2) Any specific contract or commitment for a loan or extension of 
credit to an individual, business, farm, or other entity, or group of 
such individuals or entities if--
    (i) The funds are loaned at rates that are not substantially below 
market rates; and
    (ii) The loan application or other loan documentation does not 
indicate that the borrower intends or is authorized to use the borrowed 
funds to make a loan or extension of credit to one or more third 
parties.
    (d) Examples concerning loan agreements--

    (1) Example 1. An insured depository institution provides an 
organization with a $1 million loan that is documented in writing 
and is secured by real estate owned or to-be-acquired by the 
organization. The agreement is an individual mortgage loan and is 
exempt from coverage under paragraph (c)(1) of this section, 
regardless of the interest rate on the loan or whether the 
organization intends or is authorized to re-loan the funds to a 
third party.
    (2) Example 2. An insured depository institution commits to 
provide a $500,000 line of credit to a small business that is 
documented by a written agreement. The loan is made at rates that 
are within the range of rates offered by the institution to 
similarly situated small businesses in the market and the loan 
documentation does not indicate that the small business intends or 
is authorized to re-lend the borrowed funds. The agreement is exempt 
from coverage under paragraph (c)(2) of this section.
    (3) Example 3. An insured depository institution offers small 
business loans that are guaranteed by the Small Business 
Administration (SBA). A small business obtains a $75,000 loan, 
documented in writing, from the institution under the institution's 
SBA loan program. The loan documentation does not indicate that the 
borrower intends or is authorized to re-lend the funds. Although the 
rate charged on the loan is well below that charged by the 
institution on commercial loans, the rate is within the range of 
rates that the institution would charge a similarly situated small 
business for a similar loan under the SBA loan program. Accordingly, 
the loan is not made at substantially below market rates and is 
exempt from coverage under paragraph (c)(2) of this section.
    (4) Example 4. A bank holding company enters into a written 
agreement with a community development organization that provides 
that insured depository institutions owned by the bank holding 
company will make $250 million in small business loans in the 
community over the next 5 years. The written agreement is not a 
specific contract or commitment for a loan or an extension of credit 
and, thus, is not exempt from coverage under paragraph (c)(2) of 
this section: Each small business loan made by the insured 
depository institution pursuant to this general commitment would, 
however, be exempt from coverage if the loan is made at rates that 
are not substantially below market rates and the loan documentation 
does not indicate that the borrower intended or was authorized to 
re-lend the funds.

    (e) Agreements that include exempt loan agreements. If an agreement 
includes a loan, extension of credit or loan commitment that, if 
documented separately, would be exempt under paragraph (c) of this 
section, the exempt loan, extension of credit or loan commitment may be 
excluded for purposes of determining whether the agreement is a covered 
agreement.
    (f) Determining annual value of agreements that lack schedule of 
disbursements. For purposes of paragraph (a)(3) of this section, a 
multi-year agreement that does not include a schedule for the 
disbursement of payments, grants, loans or other consideration by the 
insured depository institution or affiliate, is considered to have a 
value in the first year of the agreement equal to all payments, grants, 
loans and other consideration to be provided at any time under the 
agreement.


Sec.  346.3  CRA communications.

    (a) Definition of CRA communication. A CRA communication is any of 
the following--
    (1) Any written or oral comment or testimony provided to a Federal 
banking agency concerning the adequacy of the performance under the CRA 
of the insured depository institution, any affiliated insured 
depository institution, or any CRA affiliate.
    (2) Any written comment submitted to the insured depository 
institution that discusses the adequacy of the performance under the 
CRA of the institution and must be included in the institution's CRA 
public file.

[[Page 23694]]

    (3) Any discussion or other contact with the insured depository 
institution or any affiliate about--
    (i) Providing (or refraining from providing) written or oral 
comments or testimony to any Federal banking agency concerning the 
adequacy of the performance under the CRA of the insured depository 
institution, any affiliated insured depository institution, or any CRA 
affiliate;
    (ii) Providing (or refraining from providing) written comments to 
the insured depository institution that concern the adequacy of the 
institution's performance under the CRA and must be included in the 
institution's CRA public file; or
    (iii) The adequacy of the performance under the CRA of the insured 
depository institution, any affiliated insured depository institution, 
or any CRA affiliate.
    (b) Discussions or contacts that are not CRA communications--(1) 
Timing of contacts with a Federal banking agency. An oral or written 
communication with a Federal banking agency is not a CRA communication 
if it occurred more than 3 years before the parties entered into the 
agreement.
    (2) Timing of contacts with insured depository institutions and 
affiliates. A communication with an insured depository institution or 
affiliate is not a CRA communication if the communication occurred--
    (i) More than 3 years before the parties entered into the 
agreement, in the case of any written communication;
    (ii) More than 3 years before the parties entered into the 
agreement, in the case of any oral communication in which the NGEP 
discusses providing (or refraining from providing) comments or 
testimony to a Federal banking agency or written comments that must be 
included in the institution's CRA public file in connection with a 
request to, or agreement by, the institution or affiliate to take (or 
refrain from taking) any action that is in fulfillment of the CRA; or
    (iii) More than 1 year before the parties entered into the 
agreement, in the case of any other oral communication not described in 
paragraph (b)(2)(ii) of this section.
    (3) Knowledge of communication by insured depository institution or 
affiliate--(i) A communication is only a CRA communication under 
paragraph (a) of this section if the insured depository institution or 
its affiliate has knowledge of the communication under this paragraph 
(b)(3)(ii) or (iii) of this section.
    (ii) Communication with insured depository institution or 
affiliate. An insured depository institution or affiliate has knowledge 
of a communication by the NGEP to the institution or its affiliate 
under this paragraph only if one of the following representatives of 
the insured depository institution or any affiliate has knowledge of 
the communication--
    (A) An employee who approves, directs, authorizes, or negotiates 
the agreement with the NGEP; or
    (B) An employee designated with responsibility for compliance with 
the CRA or executive officer if the employee or executive officer knows 
that the institution or affiliate is negotiating, intends to negotiate, 
or has been informed by the NGEP that it expects to request that the 
institution or affiliate negotiate an agreement with the NGEP.
    (iii) Other communications. An insured depository institution or 
affiliate is deemed to have knowledge of--
    (A) Any testimony provided to a Federal banking agency at a public 
meeting or hearing;
    (B) Any comment submitted to a Federal banking agency that is 
conveyed in writing by the agency to the insured depository institution 
or affiliate; and
    (C) Any written comment submitted to the insured depository 
institution that must be and is included in the institution's CRA 
public file.
    (4) Communication where NGEP has knowledge. A NGEP has a CRA 
communication with an insured depository institution or affiliate only 
if any of the following individuals has knowledge of the 
communication--
    (i) A director, employee, or member of the NGEP who approves, 
directs, authorizes, or negotiates the agreement with the insured 
depository institution or affiliate;
    (ii) A person who functions as an executive officer of the NGEP and 
who knows that the NGEP is negotiating or intends to negotiate an 
agreement with the insured depository institution or affiliate; or
    (iii) Where the NGEP is an individual, the NGEP.
    (c) Examples of CRA communications--(1) Examples of actions that 
are CRA communications. The following are examples of CRA 
communications. These examples are not exclusive and assume that the 
communication occurs within the relevant time period as described in 
paragraph (b)(1) or (2) of this section and the appropriate 
representatives have knowledge of the communication as specified in 
paragraphs (b)(3) and (4) of this section.

    (i) Example 1. A NGEP files a written comment with a Federal 
banking agency that states than an insured depository institution 
successfully addresses the credit needs of its community. The 
written comment is in response to a general request from the agency 
for comments on an application of the insured depository institution 
to open a new branch and a copy of the comment is provided to the 
institution.
    (ii) Examples 2. A NGEP meets with an executive officer of an 
insured depository institution and states that the institution must 
improve its CRA performance.
    (iii) Example 3. A NGEP meets with an executive officer of an 
insured depository institution and states that the institution needs 
to make more mortgage loans in low- and moderate-income 
neighborhoods in its community.
    (iv) Example 4. A bank holding company files an application with 
a Federal banking agency to acquire an insured depository 
institution. Two weeks later, the NGEP meets with an executive 
officer of the bank holding company to discuss the adequacy of the 
performance under the CRA of the target insured depository 
institution. The insured depository institution was an affiliate of 
the bank holding company at the time the NGEP met with the target 
institution. (See Sec.  346.11(a).) Accordingly, the NGEP had a CRA 
communication with an affiliate of the bank holding company.

    (2) Examples of actions that are not CRA communications. The 
following are examples of actions that are not by themselves CRA 
communications. These examples are not exclusive.

    (i) Example 1. A NGEP provides to a Federal banking agency 
comments or testimony concerning an insured depository institution 
or affiliate in response to a direct request by the agency for 
comments or testimony from that NGEP. Direct requests for comments 
or testimony do not include a general invitation by a Federal 
banking agency for comments or testimony from the public in 
connection with a CRA performance evaluation of, or application for 
a deposit facility (as defined in section 803 of the CRA (12 U.S.C. 
2902(3)) by, an insured depository institution or an application by 
a company to acquire an insured depository institution.
    (ii) Example 2. A NGEP makes a statement concerning an insured 
depository institution or affiliate at a widely attended conference 
or seminar regarding a general topic. A public or private meeting, 
public hearing, or other meeting regarding one or more specific 
institutions, affiliates or transactions involving an application 
for a deposit facility is not considered a widely attended 
conference or seminar.
    (iii) Example 3. A NGEP, such as a civil rights group, community 
group providing housing and other services in low- and moderate-
income neighborhoods, veterans organization, community theater 
group, or youth organization, sends a fundraising letter to insured 
depository institutions and to other businesses in its community. 
The letter encourages all businesses in the community to meet their 
obligation to assist in making the local community a better place to 
live and work by supporting the fundraising efforts of the NGEP.

[[Page 23695]]

    (iv) Example 4. A NGEP discusses with an insured depository 
institution or affiliate whether particular loans, services, 
investments, community development activities, or other activities 
are generally eligible for consideration by a Federal banking agency 
under the CRA. The NGEP and insured depository institution or 
affiliate do not discuss the adequacy of the CRA performance of the 
insured depository institution or affiliate.
    (v) Example 5. A NGEP engaged in the sale or purchase of loans 
in the secondary market sends a general offering circular to 
financial institutions offering to sell or purchase a portfolio of 
loans. An insured depository institution that receives the offering 
circular discusses with the NGEP the types of loans included in the 
loan pool, whether such loans are generally eligible for 
consideration under the CRA, and which loans are made to borrowers 
in the institution's local community. The NGEP and insured 
depository institution do not discuss the adequacy of the 
institution's CRA performance.

    (d) Multiparty covered agreements. (1) A NGEP that is a party to a 
covered agreement that involves multiple NGEPs is not required to 
comply with the requirements of this part if--
    (i) The NGEP has not had a CRA communication; and
    (ii) No representative of the NGEP identified in paragraph (b)(4) 
of this section has knowledge at the time of the agreement that another 
NGEP that is a party to the agreement has had a CRA communication.
    (2) An insured depository institution or affiliate that is a party 
to a covered agreement that involves multiple insured depository 
institutions or affiliates is not required to comply with the 
disclosure and annual reporting requirements in Sec. Sec.  346.6 and 
346.7 if--
    (i) No NGEP that is a party to the agreement has had a CRA 
communication concerning the insured depository institution or any 
affiliate; and
    (ii) No representative of the insured depository institution or any 
affiliate identified in paragraph (b)(3) of this section has knowledge 
at the time of the agreement that an NGEP that is a party to the 
agreement has had a CRA communication concerning any other insured 
depository institution or affiliate that is a party to the agreement.


Sec.  346.4  Fulfillment of the CRA.

    (a) List of factors that are in fulfillment of the CRA. Fulfillment 
of the CRA, for purposes of this part, means the following list of 
factors--
    (1) Comments to a Federal banking agency or included in CRA public 
file. Providing or refraining from providing written or oral comments 
or testimony to any Federal banking agency concerning the performance 
under the CRA of an insured depository institution or CRA affiliate 
that is a party to the agreement or an affiliate of a party to the 
agreement or written comments that are required to be included in the 
CRA public file of any such insured depository institution; or
    (2) Activities given favorable CRA consideration. Performing any of 
the following activities if the activity is of the type that is likely 
to receive favorable consideration by a Federal banking agency in 
evaluating the performance under the CRA of the insured depository 
institution that is a party to the agreement or an affiliate of a party 
to the agreement--
    (i) Home-purchase, home-improvement, small business, small farm, 
community development, and consumer lending, as described in 12 CFR 
345.22, including loan purchases, loan commitments, and letters of 
credit;
    (ii) Making investments, deposits, or grants, or acquiring 
membership shares, that have as their primary purpose community 
development, as described in 12 CFR 345.23;
    (iii) Delivering retail banking services as described in 12 CFR 
345.24(d);
    (iv) Providing community development services, as described in 12 
CFR 345.24(e);
    (v) In the case of a wholesale or limited-purpose insured 
depository institution, community development lending, including 
originating and purchasing loans and making loan commitments and 
letters of credit, making qualified investments, or providing community 
development services, as described in 12 CFR 345.25(c);
    (vi) In the case of a small insured depository institution, any 
lending or other activity described in 12 CFR 345.26(a); or
    (vii) In the case of an insured depository institution that is 
evaluated on the basis of a strategic plan, any element of the 
strategic plan, as described in 12 CFR 345.27(f).
    (b) Agreements relating to activities of CRA affiliates. An insured 
depository institution or affiliate that is a party to a covered 
agreement that concerns any activity described in paragraph (a) of this 
section of a CRA affiliate must, prior to the time the agreement is 
entered into, notify each NGEP that is a party to the agreement that 
the agreement concerns a CRA affiliate.


Sec.  346.5  Related agreements considered a single agreement.

    The following rules must be applied in determining whether an 
agreement is a covered agreement under Sec.  346.2.
    (a) Agreements entered into by same parties. All written agreements 
to which an insured depository institution or an affiliate of the 
insured depository institution is a party shall be considered to be a 
single agreement if the agreements--
    (1) Are entered into with the same NGEP;
    (2) Were entered into within the same 12-month period; and
    (3) Are each in fulfillment of the CRA.
    (b) Substantively related contracts. All written contracts to which 
an insured depository institution or an affiliate of the insured 
depository institution is a party shall be considered to be a single 
agreement, without regard to whether the other parties to the contracts 
are the same or whether each such contract is in fulfillment of the 
CRA, if the contracts were negotiated in a coordinated fashion and a 
NGEP is a party to each contract.


Sec.  346.6  Disclosure of covered agreements.

    (a) Applicability date. This section applies only to covered 
agreements entered into after November 12, 1999.
    (b) Disclosure of covered agreements to the public--(1) Disclosure 
required. Each NGEP and each insured depository institution or 
affiliate that enters into a covered agreement must promptly make a 
copy of the covered agreement available to any individual or entity 
upon request.
    (2) Nondisclosure of confidential and proprietary information 
permitted. In responding to a request for a covered agreement from any 
individual or entity under paragraph (b)(1) of this section, a NGEP, 
insured depository institution, or affiliate may withhold from public 
disclosure confidential or proprietary information that the party 
believes the relevant supervisory agency could withhold from disclosure 
under the Freedom of Information Act (5 U.S.C. 552 et seq.) (FOIA).
    (3) Information that must be disclosed. Notwithstanding paragraph 
(b)(2) of this section, a party must disclose any of the following 
information that is contained in a covered agreement--
    (i) The names and addresses of the parties to the agreement;
    (ii) The amount of any payments, fees, loans, or other 
consideration to be made or provided by any party to the agreement;
    (iii) Any description of how the funds or other resources provided 
under the agreement are to be used;
    (iv) The term of the agreement (if the agreement establishes a 
term); and
    (v) Any other information that the relevant supervisory agency 
determines

[[Page 23696]]

is not properly exempt from public disclosure.
    (4) Request for review of withheld information. Any individual or 
entity may request that the relevant supervisory agency review whether 
any information in a covered agreement withheld by a party must be 
disclosed. Any requests for agency review of withheld information must 
be filed, and will be processed in accordance with, the relevant 
supervisory agency's rules concerning the availability of information 
(see the FDIC's rules regarding Disclosure of Information (12 CFR part 
309)).
    (5) Duration of obligation. The obligation to disclose a covered 
agreement to the public terminates 12 months after the end of the term 
of the agreement.
    (6) Reasonable copy and mailing fees. Each NGEP and each insured 
depository institution or affiliate may charge an individual or entity 
that requests a copy of a covered agreement a reasonable fee not to 
exceed the cost of copying and mailing the agreement.
    (7) Use of CRA public file by insured depository institution or 
affiliate. An insured depository institution and any affiliate of an 
insured depository institution may fulfill its obligation under this 
paragraph (b) by placing a copy of the covered agreement in the insured 
depository institution's CRA public file if the institution makes the 
agreement available in accordance with the procedures set forth in 12 
CFR 345.43.
    (c) Disclosure by NGEPs of covered agreements to the relevant 
supervisory agency. (1) Each NGEP that is a party to a covered 
agreement must provide the following within 30 days of receiving a 
request from the relevant supervisory agency--
    (i) A complete copy of the agreement; and
    (ii) In the event the NGEP proposes the withholding of any 
information contained in the agreement in accordance with paragraph 
(b)(2) of this section, a public version of the agreement that excludes 
such information and an explanation justifying the exclusions. Any 
public version must include the information described in paragraph 
(b)(3) of this section.
    (2) The obligation of a NGEP to provide a covered agreement to the 
relevant supervisory agency terminates 12 months after the end of the 
term of the covered agreement.
    (d) Disclosure by insured depository institution or affiliate of 
covered agreements to the relevant supervisory agency--(1) In general. 
Within 60 days of the end of each calendar quarter, each insured 
depository institution and affiliate must provide each relevant 
supervisory agency with--
    (i)(A) A complete copy of each covered agreement entered into by 
the insured depository institution or affiliate during the calendar 
quarter; and
    (B) In the event the institution or affiliate proposes the 
withholding of any information contained in the agreement in accordance 
with paragraph (b)(2) of this section, a public version of the 
agreement that excludes such information (other than any information 
described in paragraph (b)(3) of this section) and an explanation 
justifying the exclusions; or
    (ii) A list of all covered agreements entered into by the insured 
depository institution or affiliate during the calendar quarter that 
contains--
    (A) The name and address of each insured depository institution or 
affiliate that is a party to the agreement;
    (B) The name and address of each NGEP that is a party to the 
agreement;
    (C) The date the agreement was entered into;
    (D) The estimated total value of all payments, fees, loans, and 
other consideration to be provided by the institution or any affiliate 
of the institution under the agreement; and
    (E) The date the agreement terminates.
    (2) Prompt filing of covered agreements contained in list required. 
(i) If an insured depository institution or affiliate files a list of 
the covered agreements entered into by the institution or affiliate 
pursuant to paragraph (d)(1)(ii) of this section, the institution or 
affiliate must provide any relevant supervisory agency a complete copy 
and public version of any covered agreement referenced in the list 
within 7 calendar days of receiving a request from the agency for a 
copy of the agreement.
    (ii) The obligation of an insured depository institution or 
affiliate to provide a covered agreement to the relevant supervisory 
agency under this paragraph (d)(2) terminates 36 months after the end 
of the term of the agreement.
    (3) Joint filings. In the event that 2 or more insured depository 
institutions or affiliates are parties to a covered agreement, the 
insured depository institution(s) and affiliate(s) may jointly file the 
documents required by this paragraph (d). Any joint filing must 
identify the insured depository institution(s) and affiliate(s) for 
whom the filings are being made.


Sec.  346.7  Annual reports.

    (a) Applicability date. This section applies only to covered 
agreements entered into on or after May 12, 2000.
    (b) Annual report required. Each NGEP and each insured depository 
institution or affiliate that is a party to a covered agreement must 
file an annual report with each relevant supervisory agency concerning 
the disbursement, receipt, and uses of funds or other resources under 
the covered agreement.
    (c) Duration of reporting requirement--(1) NGEPs. A NGEP must file 
an annual report for a covered agreement for any fiscal year in which 
the NGEP receives or uses funds or other resources under the agreement.
    (2) Insured depository institutions and affiliates. An insured 
depository institution or affiliate must file an annual report for a 
covered agreement for any fiscal year in which the institution or 
affiliate--
    (i) Provides or receives any payments, fees, or loans under the 
covered agreement that must be reported under paragraphs (e)(1)(iii) 
and (iv) of this section; or
    (ii) Has data to report on loans, investments, and services 
provided by a party to the covered agreement under the covered 
agreement under paragraph (e)(1)(vi) of this section.
    (d) Annual reports filed by NGEP--(1) Contents of report. The 
annual report filed by a NGEP under this section must include the 
following--
    (i) The name and mailing address of the NGEP filing the report;
    (ii) Information sufficient to identify the covered agreement for 
which the annual report is being filed, such as by providing the names 
of the parties to the agreement and the date the agreement was entered 
into or by providing a copy of the agreement;
    (iii) The amount of funds or resources received under the covered 
agreement during the fiscal year; and
    (iv) A detailed, itemized list of how any funds or resources 
received by the NGEP under the covered agreement were used during the 
fiscal year, including the total amount used for--
    (A) Compensation of officers, directors, and employees;
    (B) Administrative expenses;
    (C) Travel expenses;
    (D) Entertainment expenses;
    (E) Payment of consulting and professional fees; and
    (F) Other expenses and uses (specify expense or use).
    (2) More detailed reporting of uses of funds or resources 
permitted--(i) In general. If a NGEP allocated and used funds received 
under a covered agreement for a specific purpose, the

[[Page 23697]]

NGEP may fulfill the requirements of paragraph (d)(1)(iv) of this 
section with respect to such funds by providing--
    (A) A brief description of each specific purpose for which the 
funds or other resources were used; and
    (B) The amount of funds or resources used during the fiscal year 
for each specific purpose.
    (ii) Specific purpose defined. A NGEP allocates and uses funds for 
a specific purpose if the NGEP receives and uses the funds for a 
purpose that is more specific and limited than the categories listed in 
paragraph (d)(1)(iv) of this section.
    (3) Use of other reports. The annual report filed by a NGEP may 
consist of or incorporate a report prepared for any other purpose, such 
as the Internal Revenue Service Return of Organization Exempt From 
Income Tax on Form 990, or any other Internal Revenue Service form, 
state tax form, report to members or shareholders, audited or unaudited 
financial statements, audit report, or other report, so long as the 
annual report filed by the NGEP contains all of the information 
required by this paragraph (d).
    (4) Consolidated reports permitted. A NGEP that is a party to 2 or 
more covered agreements may file with each relevant supervisory agency 
a single consolidated annual report covering all the covered 
agreements. Any consolidated report must contain all the information 
required by this paragraph (d). The information reported under 
paragraphs (d)(1)(iv) and (d)(2) of this section may be reported on an 
aggregate basis for all covered agreements.
    (5) Examples of annual report requirements for NGEPs--

    (i) Example 1. A NGEP receives an unrestricted grant of $15,000 
under a covered agreement, includes the funds in its general 
operating budget, and uses the funds during its fiscal year. The 
NGEP's annual report for the fiscal year must provide the name and 
mailing address of the NGEP, information sufficient to identify the 
covered agreement, and state that the NGEP received $15,000 during 
the fiscal year. The report must also indicate the total 
expenditures made by the NGEP during the fiscal year for 
compensation, administrative expenses, travel expenses, 
entertainment expenses, consulting and professional fees, and other 
expenses and uses. The NGEP's annual report may provide this 
information by submitting an Internal Revenue Service Form 990 that 
includes the required information. If the Internal Revenue Service 
Form does not include information for all of the required categories 
listed in this part, the NGEP must report the total expenditures in 
the remaining categories either by providing that information 
directly or by providing another form or report that includes the 
required information.
    (ii) Examples 2. An organization receives $15,000 from an 
insured depository institution under a covered agreement and 
allocates and uses the $15,000 during the fiscal year to purchase 
computer equipment to support its functions. The organization's 
annual report must include the name and address of the organization, 
information sufficient to identify the agreement, and a statement 
that the organization received $15,000 during the year. In addition, 
since the organization allocated and used the funds for a specific 
purpose that is more narrow and limited than the categories of 
expenses included in the detailed, itemized list of expenses, the 
organization would have the option of providing either the total 
amount it used during the year for each category of expenses 
included in paragraph (d)(1)(iv) of this section, or a statement 
that it used the $15,000 to purchase computer equipment and a brief 
description of the equipment purchased.
    (iii) Examples 3. A community group receives $50,000 from an 
insured depository institution under a covered agreement. During its 
fiscal year, the community group specifically allocates and uses 
$5,000 of the funds to pay for a particular business trip and uses 
the remaining $45,000 for general operating expenses. The group's 
annual report for the fiscal year must include the name and address 
of the group, information sufficient to identify the agreement, and 
a statement that the group received $50,000. Because the group did 
not allocate and use all of the funds for a specific purpose, the 
group's annual report must provide the total amount of funds it used 
during the year for each category of expenses included in paragraph 
(d)(1)(iv) of this section. The group's annual report also could 
state that it used $5,000 for a particular business trip and include 
a brief description of the trip.
    (iv) Example 4. A community development organization is a party 
to two separate covered agreements with two unaffiliated insured 
depository institutions. Under each agreement, the organization 
receives $15,000 during its fiscal year and uses the funds to 
support its activities during that year. If the organization elects 
to file a consolidated annual report, the consolidated report must 
identify the organization and the two covered agreements, state that 
the organization received $15,000 during the fiscal year under each 
agreement, and provide the total amount that the organization used 
during the year for each category of expenses included in paragraph 
(d)(1)(iv) of this section.

    (e) Annual report filed by insured depository institution or 
affiliate--(1) General. The annual report filed by an insured 
depository institution or affiliate must include the following--
    (i) The name and principal place of business of the insured 
depository institution or affiliate filing the report;
    (ii) Information sufficient to identify the covered agreement for 
which the annual report is being filed, such as by providing the names 
of the parties to the agreement and the date the agreement was entered 
into or by providing a copy of the agreement;
    (iii) The aggregate amount of payments, aggregate amount of fees, 
and aggregate amount of loans provided by the insured depository 
institution or affiliate under the covered agreement to any other party 
to the agreement during the fiscal year;
    (iv) The aggregate amount of payments, aggregate amount of fees, 
and aggregate amount of loans received by the insured depository 
institution or affiliate under the covered agreement from any other 
party to the agreement during the fiscal year;
    (v) A general description of the terms and conditions of any 
payments, fees, or loans reported under paragraphs (e)(1)(iii) and (iv) 
of this section, or, in the event such terms and conditions are set 
forth--
    (A) In the covered agreement, a statement identifying the covered 
agreement and the date the agreement (or a list identifying the 
agreement) was filed with the relevant supervisory agency; or
    (B) In a previous annual report filed by the insured depository 
institution or affiliate, a statement identifying the date the report 
was filed with the relevant supervisory agency; and
    (vi) The aggregate amount and number of loans, aggregate amount and 
number of investments, and aggregate amount of services provided under 
the covered agreement to any individual or entity not a party to the 
agreement--
    (A) By the insured depository institution or affiliate during its 
fiscal year; and
    (B) By any other party to the agreement, unless such information is 
not known to the insured depository institution or affiliate filing the 
report or such information is or will be contained in the annual report 
filed by another party under this section.
    (2) Consolidated reports permitted--(i) Party to multiple 
agreements. An insured depository institution or affiliate that is a 
party to 2 or more covered agreements may file a single consolidated 
annual report with each relevant supervisory agency concerning all the 
covered agreements.
    (ii) Affiliated entities party to the same agreement. An insured 
depository institution and its affiliates that are parties to the same 
covered agreement may file a single consolidated annual report relating 
to the agreement with each relevant supervisory agency for the covered 
agreement.
    (iii) Content of report. Any consolidated annual report must 
contain all the information required by this paragraph (e). The amounts 
and data required to be reported under paragraphs (e)(1)(iv) and (vi) 
of this

[[Page 23698]]

section may be reported on an aggregate basis for all covered 
agreements.
    (f) Time and place of filing--(1) General. Each party must file its 
annual report with each relevant supervisory agency for the covered 
agreement no later than six months following the end of the fiscal year 
covered by the report.
    (2) Alternative method of fulfilling annual reporting requirement 
for a NGEP. (i) A NGEP may fulfill the filing requirements of this 
section by providing the following materials to an insured depository 
institution or affiliate that is a party to the agreement no later than 
six months following the end of the NGEP's fiscal year--
    (A) A copy of the NGEP's annual report required under paragraph (d) 
of this section for the fiscal year; and
    (B) Written instructions that the insured depository institution or 
affiliate promptly forward the annual report to the relevant 
supervisory agency or agencies on behalf of the NGEP.
    (ii) An insured depository institution or affiliate that receives 
an annual report from a NGEP pursuant to paragraph (f)(2)(i) of this 
section must file the report with the relevant supervisory agency or 
agencies on behalf of the NGEP within 30 days.


Sec.  346.8  Release of information under FOIA.

    The FDIC will make covered agreements and annual reports available 
to the public in accordance with the Freedom of Information Act (5 
U.S.C. 552 et seq.) and the FDIC's rules regarding Disclosure of 
Information (12 CFR part 309). A party to a covered agreement may 
request confidential treatment of proprietary and confidential 
information in a covered agreement or an annual report under those 
procedures.


Sec.  346.9  Compliance provisions.

    (a) Willful failure to comply with disclosure and reporting 
obligations. (1) If the FDIC determines that a NGEP has willfully 
failed to comply in a material way with Sec. Sec.  346.6 or 346.7, the 
FDIC will notify the NGEP in writing of that determination and provide 
the NGEP a period of 90 days (or such longer period as the FDIC finds 
to be reasonable under the circumstances) to comply.
    (2) If the NGEP does not comply within the time period established 
by the FDIC, the agreement shall thereafter be unenforceable by that 
NGEP by operation of section 48 of the Federal Deposit Insurance Act 
(12 U.S.C. 1831y).
    (3) The FDIC may assist any insured depository institution or 
affiliate that is a party to a covered agreement that is unenforceable 
by a NGEP by operation of section 48 of the Federal Deposit Insurance 
Act (12 U.S.C. 1831y) in identifying a successor to assume the NGEP's 
responsibilities under the agreement.
    (b) Diversion of funds. If a court or other body of competent 
jurisdiction determines that funds or resources received under a 
covered agreement have been diverted contrary to the purposes of the 
covered agreement for an individual's personal financial gain, the FDIC 
may take either or both of the following actions--
    (1) Order the individual to disgorge the diverted funds or 
resources received under the agreement.
    (2) Prohibit the individual from being a party to any covered 
agreement for a period not to exceed 10 years.
    (c) Notice and opportunity to respond. Before making a 
determination under paragraph (a)(1) of this section, or taking any 
action under paragraph (b) of this section, the FDIC will provide 
written notice and an opportunity to present information to the FDIC 
concerning any relevant facts or circumstances relating to the matter.
    (d) Inadvertent or de minimis errors. Inadvertent or de minimis 
errors in annual reports or other documents filed with the FDIC under 
Sec. Sec.  346.6 or 346.7 will not subject the reporting party to any 
penalty.
    (e) Enforcement of provisions in covered agreements. No provision 
of this part shall be construed as authorizing the FDIC to enforce the 
provisions of any covered agreement.


Sec.  346.10  Transition provisions.

    (a) Disclosure of covered agreements entered into before the 
effective date of this part--(1) Disclosure to the public. Each NGEP 
and each insured depository institution or affiliate that was a party 
to the agreement must make the agreement available to the public under 
Sec.  346.6 until at least April 1, 2002.
    (2) Disclosure to the relevant supervisory agency. (i) Each NGEP 
that was a party to the agreement must make the agreement available to 
the relevant supervisory agency under Sec.  346.6 until at least April 
1, 2002.
    (ii) Each insured depository institution or affiliate that was a 
party to the agreement must, by June 30, 2001, provide each relevant 
supervisory agency either--
    (A) A copy of the agreement under Sec.  346.6(d)(1)(i); or
    (B) The information described in Sec.  346.6(d)(1)(ii) for each 
agreement.
    (b) Filing of annual reports that relate to fiscal years ending on 
or before December 31, 2000. In the event that a NGEP, insured 
depository institution or affiliate has any information to report under 
Sec.  346.7 for a fiscal year that ends on or before December 31, 2000, 
and that concerns a covered agreement entered into between May 12, 
2000, and December 31, 2000, the annual report for that fiscal year 
must be provided no later than June 30, 2001, to--
    (1) Each relevant supervisory agency; or
    (2) In the case of a NGEP, to an insured depository institution or 
affiliate that is a party to the agreement in accordance with Sec.  
346.7(f)(2).


Sec.  346.11  Other definitions and rules of construction used in this 
part.

    (a) Affiliate. ``Affiliate'' means--
    (1) Any company that controls, is controlled by, or is under common 
control with another company; and
    (2) For the purpose of determining whether an agreement is a 
covered agreement under Sec.  346.2, an ``affiliate'' includes any 
company that would be under common control or merged with another 
company on consummation of any transaction pending before a Federal 
banking agency at the time--
    (i) The parties enter into the agreement; and
    (ii) The NGEP that is a party to the agreement makes a CRA 
communication, as described in Sec.  346.3.
    (b) Control. ``Control'' is defined in section 2(a) of the Bank 
Holding Company Act (12 U.S.C. 1841(a)).
    (c) CRA affiliate. A ``CRA affiliate'' of an insured depository 
institution is any company that is an affiliate of an insured 
depository institution to the extent, and only to the extent, that the 
activities of the affiliate were considered by the appropriate Federal 
banking agency when evaluating the CRA performance of the institution 
at its most recent CRA examination prior to the agreement. An insured 
depository institution or affiliate also may designate any company as a 
CRA affiliate at any time prior to the time a covered agreement is 
entered into by informing the NGEP that is a party to the agreement of 
such designation.
    (d) CRA public file. ``CRA public file'' means the public file 
maintained by an insured depository institution and described in 12 CFR 
345.43.
    (e) Executive officer. The term ``executive officer'' has the same 
meaning as in Sec.  215.2(e)(1) of the Board of Governors of the 
Federal Reserve System's Regulation O (12 CFR 215.2(e)(1)).
    (f) Federal banking agency; appropriate Federal banking agency. The 
terms ``Federal banking agency'' and ``appropriate Federal banking

[[Page 23699]]

agency'' have the same meanings as in section 3 of the Federal Deposit 
Insurance Act (12 U.S.C. 1813).
    (g) Fiscal year. (1) The fiscal year for a NGEP that does not have 
a fiscal year shall be the calendar year.
    (2) Any NGEP, insured depository institution, or affiliate that has 
a fiscal year may elect to have the calendar year be its fiscal year 
for purposes of this part.
    (h) Insured depository institution. ``Insured depository 
institution'' has the same meaning as in section 3 of the Federal 
Deposit Insurance Act (12 U.S.C. 1813).
    (i) NGEP. ``NGEP'' means a nongovernmental entity or person.
    (j) Nongovernmental entity or person--(1) General. A 
``nongovernmental entity or person'' is any partnership, association, 
trust, joint venture, joint stock company, corporation, limited 
liability corporation, company, firm, society, other organization, or 
individual.
    (2) Exclusions. A nongovernmental entity or person does not 
include--
    (i) The United States government, a state government, a unit of 
local government (including a county, city, town, township, parish, 
village, or other general-purpose subdivision of a state) or an Indian 
tribe or tribal organization established under Federal, state or Indian 
tribal law (including the Department of Hawaiian Home Lands), or a 
department, agency, or instrumentality of any such entity;
    (ii) A federally-chartered public corporation that receives Federal 
funds appropriated specifically for that corporation;
    (iii) An insured depository institution or affiliate of an insured 
depository institution; or
    (iv) An officer, director, employee, or representative (acting in 
his or her capacity as an officer, director, employee, or 
representative) of an entity listed in paragraphs (j)(2)(i) through 
(iii) of this section.
    (k) Party. The term ``party''. The authority citation for part 405 
continues to read as follows: with respect to a covered agreement means 
each NGEP and each insured depository institution or affiliate that 
entered into the agreement.
    (l) Relevant supervisory agency. The ``relevant supervisory 
agency'' for a covered agreement means the appropriate Federal banking 
agency for--
    (1) Each insured depository institution (or subsidiary thereof) 
that is a party to the covered agreement;
    (2) Each insured depository institution (or subsidiary thereof) or 
CRA affiliate that makes payments or loans or provides services that 
are subject to the covered agreement; and
    (3) Any company (other than an insured depository institution or 
subsidiary thereof) that is a party to the covered agreement.
    (m) State savings association. ``State savings association'' has 
the same meaning as in section 3(b)(3) of the Federal Deposit Insurance 
Act (12 U.S.C. 1813(b)(3)).
    (n) Term of agreement. An agreement that does not have a fixed 
termination date is considered to terminate on the last date on which 
any party to the agreement makes any payment or provides any loan or 
other resources under the agreement, unless the relevant supervisory 
agency for the agreement otherwise notifies each party in writing.

    Dated at Washington, DC, this 23rd day of April 2015.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2015-09894 Filed 4-28-15; 8:45 am]
 BILLING CODE 6741-01-P