PART 35—DISCLOSURE AND REPORTING OF CRA-RELATED AGREEMENTS Authority: 12 U.S.C. 1, 93a, 1462a, 1463, 1464, 1831y, and 5412(b)(2)(B). Source: 66 FR 2084, Jan. 10, 2001, unless otherwise noted. § 35.1 Purpose and scope of this part. (a) General. (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. (1) A national bank and its subsidiaries; (2) A Federal savings association and its subsidiaries; and (3) Nongovernmental entities or persons (NGEPs) that enter into covered agreements with any entity listed in paragraphs (b)(1) or (b)(2) of this section. (c) Relation to Community Reinvestment Act. et seq. (d) Examples. (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. [66 FR 2084, Jan. 10, 2001, as amended at 79 FR 28400, May 16, 2014; 89 FR 22067, Mar. 29, 2024] § 35.2 Definition of covered agreement. (a) General definition of covered agreement. (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 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 CRA, as defined in § 35.4. (5) The agreement is with a NGEP that has had a CRA communication as described in § 35.3 prior to entering into the agreement. (b) Examples concerning written arrangements or understandings Example 1. (2) Example 2. (3) Example 3. (c) Loan agreements that are not covered agreements. (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 Example 1. (2) Example 2. (3) Example 3. (4) Example 4. (e) Agreements that include exempt loan agreements. (f) Determining annual value of agreements that lack schedule of disbursements. [66 FR 2084, Jan. 10, 2001, as amended at 79 FR 28400, May 16, 2014] § 35.3 CRA communications. (a) Definition of CRA communication. (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. (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 Timing of contacts with a Federal banking agency. (2) Timing of contacts with insured depository institutions and affiliates. (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). (3) Knowledge of communication by insured depository institution or affiliate. (ii) Communication with insured depository institution or affiliate. (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. (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. (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 Examples of actions that are CRA communications. (i) Example 1. (ii) Example 2. (iii) Example 3. (iv) Example 4. See (2) Examples of actions that are not CRA communications. (i) Example 1. (ii) Example 2. (iii) Example 3. (iv) Example 4. (v) Example 5. (d) Multiparty covered agreements (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 §§ 35.6 and 35.7 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. § 35.4 Fulfillment of the CRA. (a) List of factors that are in fulfillment of the CRA. (1) Comments to a Federal banking agency or included in CRA public file. (2) Activities given favorable CRA consideration. (i) Home-purchase, home-improvement, small business, small farm, community development, and consumer lending, as described in § 25.22 of appendix G to 12 CFR part 25, 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 § 25.23 of appendix G to 12 CFR part 25; (iii) Delivering retail banking services, as described in § 25.24(d) of appendix G to 12 CFR part 25; (iv) Providing community development services, as described in § 25.24(e) of appendix G to 12 CFR part 25; (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 § 25.25(c) of appendix G to 12 CFR part 25; (vi) In the case of a small insured depository institution, any lending or other activity described in § 25.26(a) of appendix G to 12 CFR part 25; 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 § 25.27(f) of appendix G to 12 CFR part 25. (b) Agreements relating to activities of CRA affiliates. [66 FR 2084, Jan. 10, 2001, as amended at 89 FR 22067, Mar. 29, 2024] § 35.5 Related agreements considered a single agreement. The following rules must be applied in determining whether an agreement is a covered agreement under § 35.2. (a) Agreements entered into by same parties. (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. § 35.6 Disclosure of covered agreements. (a) Applicability date. (b) Disclosure of covered agreements to the public Disclosure required. (2) Nondisclosure of confidential and proprietary information permitted. et seq. (3) Information that must be disclosed. (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 is not properly exempt from public disclosure. (4) Request for review of withheld information. see (5) Duration of obligation. (6) Reasonable copy and mailing fees. (7) Use of CRA public file by insured depository institution or affiliate. (c) Disclosure by NGEPs of covered agreements to 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 In general. (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. (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. [66 FR 2084, Jan. 10, 2001, as amended at 89 FR 22068, Mar. 29, 2024] § 35.7 Annual reports. (a) Applicability date. (b) Annual report required. (c) Duration of reporting requirement NGEPs. (2) Insured depository institutions and affiliates. (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 Contents of report. (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 In general. (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. (3) Use of other reports. (4) Consolidated reports permitted. (5) Examples of annual report requirements for NGEPs Example 1. (ii) Example 2. (iii) Example 3. (iv) Example 4. (e) Annual report filed by insured depository institution or affiliate General. (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 Party to multiple agreements. (ii) Affiliated entities party to the same agreement. (iii) Content of report. (f) Time and place of filing General. (2) Alternative method of fulfilling annual reporting requirement for a NGEP. (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. § 35.8 Release of information under FOIA. The OCC 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. § 35.9 Compliance provisions. (a) Willful failure to comply with disclosure and reporting obligations. (2) If the NGEP does not comply within the time period established by the OCC, 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 OCC 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. (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. (d) Inadvertent or de minimis errors. (e) Enforcement of provisions in covered agreements. § 35.10 Transition provisions. (a) Disclosure of covered agreements entered into before the effective date of this part. (1) Disclosure to the public. (2) Disclosure to the relevant supervisory agency. (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 § 35.6(d)(1)(i); or (B) The information described in § 35.6(d)(1)(ii) for each agreement. (b) Filing of annual reports that relate to fiscal years ending on or before December 31, 2000. (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 § 35.7(f)(2). § 35.11 Other definitions and rules of construction used in this part. (a) Affiliate. (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 § 35.2, 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 § 35.3. (b) Control. (c) CRA affiliate. (d) CRA public file. (e) Executive officer. (f) Federal banking agency; appropriate Federal banking agency. (g) Fiscal 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. (i) NGEP. (j) Nongovernmental entity or person General. (2) Exclusions. (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. (l) Relevant supervisory agency. (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) Term of agreement. [66 FR 2084, Jan. 10, 2001, as amended at 79 FR 28400, May 16, 2014; 89 FR 22068, Mar. 29, 2024]