[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Notices]
[Pages 38182-38204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15308]


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FEDERAL RESERVE SYSTEM

[Docket No. OP-1752]

FEDERAL DEPOSIT INSURANCE CORPORATION

RIN 3064-ZA26

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

[Docket ID OCC-2021-0011]


Proposed Interagency Guidance on Third-Party Relationships: Risk 
Management

AGENCY: The Board of Governors of the Federal Reserve System (Board), 
the Federal Deposit Insurance Corporation (FDIC), and the Office of the 
Comptroller of the Currency (OCC).

ACTION: Proposed interagency guidance and request for comment.

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SUMMARY: The Board, FDIC, and OCC (together, the agencies) invite 
comment on proposed guidance on managing risks associated with third-
party relationships. The proposed guidance would offer a framework 
based on sound risk management principles for banking organizations to 
consider in developing risk management practices for all stages in the 
life cycle of third-party relationships that takes into account the 
level of risk, complexity, and size of the banking organization and the 
nature of the third-party relationship. The proposed guidance sets 
forth considerations with respect to the management of risks arising 
from third-party relationships. The proposed guidance would replace 
each agency's existing guidance on this topic and would be directed to 
all banking organizations supervised by the agencies.

DATES: Comments must be received no later than September 17, 2021.

ADDRESSES: Interested parties are encouraged to submit written comments 
to any or all agencies listed below. The agencies will share comments 
with each other. Comments should be directed to:
    Board: When submitting comments, please consider submitting your

[[Page 38183]]

comments by email or fax because paper mail in the Washington, DC area 
and at the Board may be subject to delay. You may submit comments, 
identified by Docket No. OP-1752, by any of the following methods:
     Agency Website: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/RevisedRegs.cfm.
     Email: [email protected]. Include docket 
number in the subject line of the message.
     Fax: (202) 452-3819 or (202) 452-3102.
     Mail: Ann E. Misback, Secretary, Board of Governors of the 
Federal Reserve System, 20th Street and Constitution Avenue NW, 
Washington, DC 20551.
    All public comments will be made available on the Board's website 
at: http://www.federalreserve.gov/generalinfo/foia/RevisedRegs.cfm as 
submitted, unless modified for technical reasons or to remove 
personally identifiable information at the commenter's request. 
Accordingly, comments will not be edited to remove any identifying or 
contact information. Public comments also may be viewed electronically 
or in paper in Room 146, 1709 New York Avenue NW, Washington, DC 20006, 
between 9:00 a.m. and 5:00 p.m. on weekdays.
    FDIC: You may submit comments, identified by FDIC RIN 3064-ZA26, by 
any of the following methods:
     Agency Website: https://www.fdic.gov/resources/regulations/federal-register-publications/. Follow instructions for 
submitting comments on the agency website.
     Mail: James P. Sheesley, Assistant Executive Secretary, 
Attention: Comments-RIN 3064-ZA26, Legal ESS, Federal Deposit Insurance 
Corporation, 550 17th Street NW, Washington, DC 20429.
     Hand Delivery/Courier: Comments may be hand-delivered to 
the guard station at the rear of the 550 17th Street NW building 
(located on F Street) on business days between 7:00 a.m. and 5:00 p.m.
     Email: [email protected]. Comments submitted must include 
``FDIC RIN 3064-ZA26'' on the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Public Inspection: All comments received will be posted 
without change to https://www.fdic.gov/resources/regulations/federal-register-publications/, including any personal information provided.
    OCC: Commenters are encouraged to submit comments through the 
Federal eRulemaking Portal. Please use the title ``Proposed Interagency 
Guidance on Third-Party Relationships: Risk Management'' to facilitate 
the organization and distribution of the comments. You may submit 
comments by any of the following methods:
     Federal eRulemaking Portal--Regulations.gov: Go to https://regulations.gov/. Enter ``Docket ID OCC-2021-0011'' in the Search Box 
and click ``Search.'' Public comments can be submitted via the 
``Comment'' box below the displayed document information or by clicking 
on the document title and then clicking the ``Comment'' box on the top-
left side of the screen. For help with submitting effective comments 
please click on ``Commenter's Checklist.'' For assistance with the 
Regulations.gov site, please call (877) 378-5457 (toll free) or (703) 
454-9859 Monday-Friday, 9 a.m.-5 p.m. ET or email 
[email protected].
     Mail: Chief Counsel's Office, Attention: Comment 
Processing, Office of the Comptroller of the Currency, 400 7th Street 
SW, suite 3E-218, Washington, DC 20219.
     Hand Delivery/Courier: 400 7th Street SW, suite 3E-218, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket ID OCC-2021-0011'' in your comment. In general, the OCC will 
enter all comments received into the docket and publish the comments on 
the Regulations.gov website without change, including any business or 
personal information provided such as name and address information, 
email addresses, or phone numbers. Comments received, including 
attachments and other supporting materials, are part of the public 
record and subject to public disclosure. Do not include any information 
in your comment or supporting materials that you consider confidential 
or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this action by the following method:
     Viewing Comments Electronically--Regulations.gov: Go to 
https://regulations.gov/. Enter ``Docket ID OCC-2021-0011'' in the 
Search Box and click ``Search.'' Click on the ``Documents'' tab and 
then the document's title. After clicking the document's title, click 
the ``Browse Comments'' tab. Comments can be viewed and filtered by 
clicking on the ``Sort By'' drop-down on the right side of the screen 
or the ``Refine Results'' options on the left side of the screen. 
Supporting materials can be viewed by clicking on the ``Documents'' tab 
and filtered by clicking on the ``Sort By'' drop-down on the right side 
of the screen or the ``Refine Documents Results'' options on the left 
side of the screen.'' For assistance with the Regulations.gov site, 
please call (877) 378-5457 (toll free) or (703) 454-9859 Monday-Friday, 
9 a.m.-5 p.m. ET or email [email protected].
    The docket may be viewed after the close of the comment period in 
the same manner as during the comment period.

FOR FURTHER INFORMATION CONTACT: 
    Board: Nida Davis, Associate Director, (202) 872-4981; Timothy 
Geishecker, Lead Financial Institution and Policy Analyst, (202) 475-
6353, Division of Supervision and Regulation; Jeremy Hochberg, Managing 
Counsel, (202) 452-6496; Matthew Dukes, Counsel, (202) 973-5096, 
Division of Consumer and Community Affairs; Claudia Von Pervieux, 
Senior Counsel, (202) 452-2552; Evans Muzere, Counsel, (202) 452-2621; 
Alyssa O'Connor, Senior Attorney, (202) 452-3886, Legal Division, Board 
of Governors of the Federal Reserve System, 20th and C Streets NW, 
Washington, DC 20551. For the hearing impaired only, Telecommunications 
Device for the Deaf (TDD) users may contact (202) 263-4869.
    FDIC: Thomas F. Lyons, Corporate Expert in Examination Policy, 
[email protected], (202) 898-6850); Judy E. Gross, Senior Policy Analyst, 
[email protected], (202) 898-7047, Policy & Program Development, 
Division of Risk Management Supervision; Paul Robin, Chief, 
[email protected], (202) 898-6818, Supervisory Policy Section, Division 
of Depositor and Consumer Protection; Marguerite Sagatelian, Senior 
Special Counsel, [email protected], (202) 898-6690, Supervision, 
Legislation & Enforcement Branch, Legal Division, Federal Deposit 
Insurance Corporation; 550 17th Street NW, Washington, DC 20429.
    OCC: Kevin Greenfield, Deputy Comptroller for Operational Risk 
Division, Lazaro Barreiro, Director for Governance and Operational Risk 
Policy, Emily Doran, Governance and Operational Risk Policy Analyst, 
Stuart Hoffman, Governance and Operational Risk Policy Analyst, 
Operational Risk Policy Division, (202) 649-6550; or Tad Thompson, 
Counsel or Eden Gray, Assistant Director, Chief Counsel's Office, (202) 
649-5490, Office of the Comptroller of the Currency, 400 7th Street SW, 
Washington, DC 20219.

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SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Introduction
II. Overview of Proposed Guidance on Third-Party Relationships
III. Request for Comment
IV. Text of Proposed Guidance on Third-Party Relationships
    A. Summary
    B. Background
    C. Risk Management
    1. Planning
    2. Due Diligence and Third-Party Selection
    3. Contract Negotiation
    4. Oversight and Accountability
    5. Ongoing Monitoring
    6. Termination
    D. Supervisory Review of Third Parties
V. OCC's 2020 Frequently Asked Questions (FAQs) on Third-Party 
Relationships

I. Introduction

    Banking organizations routinely rely on third parties for a range 
of products, services, and activities (herein activities). These may 
include core bank processing, information technology services, 
accounting, compliance, human resources, and loan servicing. A banking 
organization may also establish third-party relationships to offer 
products and services to improve customers' access to and the 
functionality of banking services, such as mobile payments, credit-
scoring systems, and customer point-of-sale payments.
    In other instances, a banking organization may make its banking 
services available to customers through the third party's platform. 
Competition, advances in technology, and innovation in the banking 
industry contribute to banking organizations' increasing use of third 
parties to perform business functions, deliver support services, 
facilitate providing new products and services, or facilitate providing 
existing products and services in new ways.
    The use of third parties can offer banking organizations 
significant advantages, such as quicker and more efficient access to 
new technologies, human capital, delivery channels, products, services, 
and markets. To address these developments, many banking organizations, 
including smaller and less complex banking organizations, have adopted 
risk management practices commensurate with the level of risk and 
complexity of their third-party relationships. Whether a banking 
organization conducts activities directly or through a third party, the 
banking organization must conduct the activities in a safe and sound 
manner and consistent with applicable laws and regulations, including 
those designed to protect consumers.
    The use of third parties by banking organizations does not remove 
the need for sound risk management. On the contrary, the use of third 
parties may present elevated risks to banking organizations and their 
customers. Banking organizations' expanded use of third parties, 
especially those with new or innovative technologies, may also add 
complexity, including in managing consumer compliance risks, and 
otherwise heighten risk management considerations. A prudent banking 
organization appropriately manages its third-party relationships, 
including addressing consumer protection, information security, and 
other operational risks. The proposed supervisory guidance \1\ is 
intended to assist banking organizations in identifying and addressing 
these risks and in complying with applicable statutes and 
regulations.\2\
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    \1\ Supervisory guidance outlines the agencies' supervisory 
practices or priorities and articulates the agencies' general views 
regarding appropriate practices for a given subject area. The 
agencies have each adopted regulations setting forth Statements 
Clarifying the Role of Supervisory Guidance as guidance. See 12 CFR 
part 4, Appendix A to Subpart F (OCC); 12 CFR part 262, Appendix A 
(Board); 12 CFR part 302, Appendix A (FDIC).
    \2\ These include the Interagency Guidelines Establishing 
Standards for Safety and Soundness, and the Interagency Guidelines 
Establishing Information Security Standards, which were adopted 
pursuant to the procedures of section 39 of the Federal Deposit 
Insurance Act and section 505 of the Graham Leach Bliley Act, 
respectively.
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    The Board, FDIC, and OCC each have issued guidance for their 
respective supervised banking organizations addressing third-party 
relationships and appropriate risk management practices: The Board's 
2013 guidance,\3\ the FDIC's 2008 guidance,\4\ and the OCC's 2013 
guidance and its 2020 FAQs.\5\ The agencies seek to promote consistency 
in their third-party risk management guidance and to clearly articulate 
risk-based principles on third-party risk management. Accordingly, the 
agencies are jointly seeking comment on the proposed guidance.
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    \3\ SR Letter 13-19/CA Letter 13-21, ``Guidance on Managing 
Outsourcing Risk'' (December 5, 2013, updated February 26, 2021).
    \4\ FIL-44-2008, ``Guidance for Managing Third-Party Risk'' 
(June 6, 2008).
    \5\ OCC Bulletin 2013-29, ``Third-Party Relationships: Risk 
Management Guidance'' and OCC Bulletin 2020-10, ``Third-Party 
Relationships: Frequently Asked Questions to Supplement OCC Bulletin 
2013-29'' The OCC also issued foreign-based third-party guidance, 
OCC Bulletin 2002-16, ``Bank Use of Foreign-Based Third-Party 
Service Providers: Risk Management Guidance,'' which supplements 
this proposed guidance.
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    The proposed guidance is based on the OCC's existing third-party 
risk management guidance from 2013 and includes changes to reflect the 
extension of the scope of applicability to banking organizations 
supervised by all three federal banking agencies. The agencies are 
including the OCC's 2020 FAQs, released in March 2020, as an exhibit, 
separate from the proposed guidance. The OCC issued the 2020 FAQs to 
clarify the OCC's 2013 third-party risk management guidance and discuss 
evolving industry topics. The agencies seek public comment on the 
extent to which the concepts discussed in the OCC's 2020 FAQs should be 
incorporated into the final version of the guidance. More specifically, 
the agencies seek public comment on whether: (1) Any of those concepts 
should be incorporated into the final guidance; and (2) there are 
additional concepts that would be helpful to include.

II. Overview of Proposed Guidance on Third-Party Relationships

    The proposed guidance provides a framework based on sound risk 
management principles that banking organizations may use to address the 
risks associated with third-party relationships. The proposed guidance 
describes third-party relationships as business arrangements between a 
banking organization and another entity, by contract or otherwise. The 
proposed guidance stresses the importance of a banking organization 
appropriately managing and evaluating the risks associated with each 
third-party relationship. The proposed guidance states that a banking 
organization's use of third parties does not diminish its 
responsibility to perform an activity in a safe and sound manner and in 
compliance with applicable laws and regulations. The proposed guidance 
indicates that banking organizations should adopt third-party risk 
management processes that are commensurate with the identified level of 
risk and complexity from the third-party relationships, and with the 
organizational structure of each banking organization. The proposed 
guidance is intended for all third-party relationships and is 
especially important for relationships that a banking organization 
relies on to a significant extent, relationships that entail greater 
risk and complexity, and relationships that involve critical activities 
as described in the proposed guidance.
    The proposed guidance describes the third-party risk management 
life cycle and identifies principles applicable to each stage of the 
life cycle, including: (1) Developing a plan that outlines the banking 
organization's strategy, identifies the inherent risks of the activity 
with the third party, and details how the banking organization will

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identify, assess, select, and oversee the third party; (2) performing 
proper due diligence in selecting a third party; (3) negotiating 
written contracts that articulate the rights and responsibilities of 
all parties; (4) having the board of directors and management oversee 
the banking organization's risk management processes, maintaining 
documentation and reporting for oversight accountability, and engaging 
in independent reviews; (5) conducting ongoing monitoring of the third 
party's activities and performance; and (6) developing contingency 
plans for terminating the relationship in an effective manner.

III. Request for Comment

    The agencies invite comment on all aspects of the proposed guidance 
and the OCC's 2020 FAQs, including responses to the following 
questions.

A. General

    1. To what extent does the guidance provide sufficient utility, 
relevance, comprehensiveness, and clarity for banking organizations 
with different risk profiles and organizational structures? In what 
areas should the level of detail be increased or reduced? In 
particular, to what extent is the level of detail in the guidance's 
examples helpful for banking organizations as they design and evaluate 
their third-party risk-management practices?
    2. What other aspects of third-party relationships, if any, should 
the guidance consider?

B. Scope

    As noted above, a third-party relationship is ``any business 
arrangement between a banking organization and another entity, by 
contract or otherwise.'' The term ``business arrangement'' is meant to 
be interpreted broadly to enable banking organizations to identify all 
third-party relationships for which the proposed guidance is relevant. 
Neither a written contract nor a monetary exchange is necessary to 
establish a business arrangement. While determinations of business 
arrangements may vary depending on the facts and circumstances, third-
party business arrangements generally exclude a banking organization's 
customers. The proposed guidance provides examples of third-party 
relationships, including use of independent consultants, networking 
arrangements, merchant payment processing services, services provided 
by affiliates and subsidiaries, joint ventures, and other business 
arrangements in which a banking organization has an ongoing 
relationship or may have responsibility for the associated records. The 
proposed guidance also describes additional risk management 
considerations when a banking organization entertains the use of 
foreign-based third parties.
    3. In what ways, if any, could the proposed description of third-
party relationships be clearer?
    4. To what extent does the discussion of ``business arrangement'' 
in the proposed guidance provide sufficient clarity to permit banking 
organizations to identify those arrangements for which the guidance is 
appropriate? What change or additional clarification, if any, would be 
helpful?
    5. What changes or additional clarification, if any, would be 
helpful regarding the risks associated with engaging with foreign-based 
third parties?

C. Tailored Approach to Third-Party Risk Management

    This guidance offers a framework based on sound risk management 
principles that banking organizations may use in developing practices 
appropriate for all stages in the risk management life cycle of a 
third-party relationship based on the level of risk, complexity, and 
size of the banking organization and the nature of the third-party 
relationship. Some smaller and less complex banking organizations have 
expressed concern that they are expected to institute third-party risk 
management practices that they perceive to be more appropriate for 
larger and more complex banking organizations. The proposed guidance is 
intended to provide principles that are useful for a banking 
organization of any size or complexity and uses the concept of critical 
activities to help banking organizations scale the nature of their risk 
management activities. Banking organizations, including smaller and 
less complex banking organizations, should adopt risk management 
practices commensurate with the level of risk and complexity of their 
third-party relationships and the risk and complexity of the banking 
organization's operations.
    6. How could the proposed guidance better help a banking 
organization appropriately scale its third-party risk management 
practices?
    7. In what ways, if any, could the proposed guidance be revised to 
better address challenges a banking organization may face in 
negotiating some third-party contracts?
    8. In what ways could the proposed description of critical 
activities be clarified or improved?

D. Third-Party Relationships

    Banking organizations are engaging in different types of 
relationships \6\ with third parties, including technology companies, 
to serve a range of purposes. Some banking organizations have business 
arrangements with third parties to offer competitive and innovative 
financial products and services that otherwise would be difficult, 
cost-prohibitive, or time-consuming to develop in-house. Other banking 
organizations have relationships with third parties to enhance their 
operational and compliance infrastructure, including for areas such as 
fraud detection, anti-money laundering, and customer service. The 
agencies recognize the prevalence of the range of relationships between 
banking organizations and third parties.
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    \6\ These relationships could include partnerships, joint 
ventures, or other types of formal legal structures or informal 
arrangements.
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    9. What additional information, if any, could the proposed guidance 
provide for banking organizations to consider when managing risks 
related to different types of business arrangements with third parties?
    10. What revisions to the proposed guidance, if any, would better 
assist banking organizations in assessing third-party risk as 
technologies evolve?
    Third parties and banking organizations enter into a wide variety 
of business arrangements, including ones in which the banking 
organizations make parts of their information systems available to a 
third party that will directly engage with the end customer. These 
business arrangements may involve unique or additional risks relative 
to traditional third-party business arrangements.
    11. What additional information, if any, could the proposed 
guidance provide to banking organizations in managing the risk 
associated with third-party platforms that directly engage with end 
customers?
    12. What risk management practices do banking organizations find 
most effective in managing business arrangements in which a third party 
engages in activities for which there are regulatory compliance 
requirements? How could the guidance further assist banking 
organizations in appropriately managing the compliance risks of these 
business arrangements?

E. Due Diligence and Collaborative Arrangements

    The proposed guidance notes that banking organizations may 
collaborate when they use the same third party,

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which can improve risk management and lower the costs among such 
banking organizations. For example, banking organizations may be able 
to collaborate when performing due diligence, negotiating contracts, 
and performing ongoing monitoring.\7\ Collaboration may facilitate 
banking organizations' due diligence of particular third-party 
relationships by sharing expertise and resources. Third-party 
assessment service companies have been formed to help banking 
organizations with third-party risk management, including due 
diligence. Collaboration can also result in increased negotiating power 
and lower costs to banking organizations not only during contract 
negotiations but also for ongoing monitoring. Each banking 
organization, however, is ultimately accountable for managing the risks 
of its own third-party business arrangements.
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    \7\ Any collaborative activities among banks must comply with 
antitrust laws. Refer to the Federal Trade Commission and U.S. 
Department of Justice's ``Antitrust Guidelines for Collaborations 
Among Competitors,'' https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf (April 2000).
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    13. In what ways, if any, could the discussion of shared due 
diligence in the proposed guidance provide better clarity to banking 
organizations regarding third-party due diligence activities?
    14. In what ways, if any, could the proposed guidance further 
address due diligence options, including those that may be more cost 
effective? In what ways, if any, could the proposed guidance provide 
better clarity to banking organizations conducting due diligence, 
including working with utilities, consortiums, or standard-setting 
organizations?

F. Subcontractors

    Third-party business arrangements may involve subcontracting 
arrangements, which can create a chain of service providers for a 
banking organization. The absence of a direct relationship with a 
subcontractor can affect the banking organization's ability to assess 
and control risks inherent in parts of the supply chain. In addition, 
the risks inherent in such a chain may be heightened when a banking 
organization uses third parties for critical activities.
    The proposed guidance addresses due diligence and contract 
negotiations in dealing with a third party's subcontractors. Several 
sections of the proposed guidance, such as the sections titled 
``Management of Information Systems,'' ``Reliance on Subcontractors,'' 
and ``Conflicting Contractual Arrangements with Other Parties,'' detail 
possible procedures for handling subcontractors as part of due 
diligence and ongoing monitoring. Similarly, several sections of the 
proposed guidance provide information on possible procedures for 
addressing the treatment of subcontractors in contract negotiation, 
including the sections on ``Responsibilities for Providing, Receiving, 
and Retaining Information,'' ``Confidentiality and Integrity,'' and 
``Subcontracting.''
    15. How could the proposed guidance be enhanced to provide more 
clarity on conducting due diligence for subcontractor relationships? To 
what extent would changing the terms used in explaining matters 
involving subcontractors (for example, fourth parties) enhance the 
understandability and effectiveness of this proposed guidance? What 
other practices or principles regarding subcontractors should be 
addressed in the proposed guidance?
    16. What factors should a banking organization consider in 
determining the types of subcontracting it is comfortable accepting in 
a third-party relationship? What additional factors are relevant when 
the relationship involves a critical activity?

G. Information Security

    The proposed guidance provides that a banking organization should, 
commensurate with its risk profile and consistent with safety and 
soundness principles and applicable laws and regulations, assess the 
information security program of third parties, including identifying, 
assessing, and mitigating known and emerging threats and 
vulnerabilities. Banking organizations with limited resources for 
security often depend on support from third parties or on security 
tools provided by third parties to assess information security risks.
    17. What additional information should the proposed guidance 
provide regarding a banking organization's assessment of a third 
party's information security and regarding information security risks 
involved with engaging a third party?

H. OCC's 2020 FAQs

    The agencies are seeking comment on the extent to which the 
concepts included in the OCC's 2020 FAQs should be incorporated into 
the final version of the guidance.
    18. To what extent should the concepts discussed in the OCC's 2020 
FAQs be incorporated into the guidance? What would be the best way to 
incorporate the concepts?

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA) 
states that no agency may conduct or sponsor, nor is the respondent 
required to respond to, an information collection unless it displays a 
currently valid Office of Management and Budget (OMB) control number.
    The proposed guidance does not revise any existing, or create any 
new, information collections pursuant to the PRA. Rather, any 
reporting, recordkeeping, or disclosure activities mentioned in the 
proposed guidance are usual and customary and should occur in the 
normal course of business as defined in the PRA.\8\ Consequently, no 
submissions will be made to the OMB for review. The agencies request 
comment on the conclusion that the proposed guidance does not create a 
new or revise and existing information collections.
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    \8\ 5 CFR 1320.3(b)(2).
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IV. Text of Proposed Guidance on Third-Party Relationships

A. Summary

    This guidance offers a framework based on sound risk management 
principles that banking organizations supervised by the Board of 
Governors of the Federal Reserve System (Board), the Federal Deposit 
Insurance Corporation (FDIC), and the Office of the Comptroller of the 
Currency (OCC) (together, the agencies) \9\ may use when assessing and 
managing risks associated with third-party relationships. A third-party 
relationship is any business arrangement between a banking organization 
and another entity, by contract or otherwise.\10\ A third-party 
relationship may exist despite a lack of a contract or remuneration. 
Third-party relationships can include relationships with entities such 
as vendors, financial technology (fintech) companies, affiliates, and 
the banking organization's holding company. While a

[[Page 38187]]

determination of whether a banking organization's relationship 
constitutes a business arrangement may vary depending on the facts and 
circumstances, third-party business arrangements generally exclude a 
bank's customer relationships.
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    \9\ See the definition of ``appropriate Federal banking agency'' 
in section 3(q) of the Federal Deposit Insurance Act for a list of 
banking organizations supervised by each agency. 12 U.S.C. 1813(q).
    \10\ Third-party relationships include activities that involve 
outsourced products and services, use of independent consultants, 
networking arrangements, merchant payment processing services, 
services provided by affiliates and subsidiaries, joint ventures, 
and other business arrangements where a banking organization has an 
ongoing relationship or may have responsibility for the associated 
records. Affiliate relationships are also subject to sections 23A 
and 23B of the Federal Reserve Act (12 U.S.C. 371c and 12 U.S.C. 
371c-1)) as implemented in Regulation W (12 CFR part 223).
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    Use of third parties can reduce management's direct control of 
activities and may introduce new risks or increase existing risks, such 
as operational, compliance, reputation, strategic, and credit risks and 
the interrelationship of these risks. Increased risk often arises from 
greater complexity, ineffective risk management by a banking 
organization, and inferior performance by the third party.
    Banking organizations should have effective risk management 
practices whether the banking organization performs an activity in-
house or through a third party. A banking organization's use of third 
parties does not diminish the respective responsibilities of its board 
of directors to provide oversight of senior management to perform the 
activity in a safe and sound manner and in compliance with applicable 
laws and regulations, including those related to consumer 
protection.\11\
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    \11\ This guidance is relevant for all third-party 
relationships, including situations in which a supervised banking 
organization provides services to another supervised banking 
organization.
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B. Background

    The agencies seek to promote consistent third-party risk management 
guidance, better address use of, and services provided by, third 
parties, and more clearly articulate risk-based principles on third-
party relationship risk management. The use of third parties can offer 
banking organizations significant advantages, such as quicker and more 
efficient access to new technologies, human capital, delivery channels, 
products, services, and markets. As the banking industry becomes more 
complex and technologically driven, banking organizations are forming 
more numerous and more complex relationships with other entities to 
remain competitive, expand operations, and help meet customer needs. A 
banking organization can be exposed to substantial financial loss if it 
fails to manage appropriately the risks associated with third-party 
relationships. Additionally, a banking organization may be exposed to 
concentration risk if it is overly reliant on a particular third-party 
service provider.
    Whether activities are performed internally or outsourced to a 
third party, a banking organization is responsible for ensuring that 
activities are performed in a safe and sound manner and in compliance 
with applicable laws and regulations. It is therefore important for a 
banking organization to identify, assess, monitor, and control the 
risks associated with the use of third parties and the criticality of 
services being provided.

C. Risk Management

    A banking organization's third-party risk management program should 
be commensurate with its size, complexity, and risk profile as well as 
with the level of risk and number of the banking organization's third-
party relationships.\12\ Not all relationships present the same level 
of risk to a banking organization. As part of sound risk management, 
banking organizations engage in more comprehensive and rigorous 
oversight and management of third-party relationships that support 
``critical activities.'' ``Critical activities'' are significant bank 
functions \13\ or other activities that:
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    \12\ These relationships could include partnerships, joint 
ventures, or other types of formal legal structures or informal 
arrangements.
    \13\ Significant bank functions include any business line of a 
banking organization, including associated operations, services, 
functions, and support, that upon failure would result in a material 
loss of revenue, profit, or franchise value.
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     Could cause a banking organization to face significant 
risk if the third party fails to meet expectations;
     could have significant customer impacts;
     require significant investment in resources to implement 
the third-party relationship and manage the risk; or
     could have a major impact on bank operations if the 
banking organization has to find an alternate third party or if the 
outsourced activity has to be brought in-house.

Third-Party Relationship Life Cycle

    Effective third-party risk management generally follows a 
continuous life cycle for all relationships and incorporates the 
following principles applicable to all stages of the life cycle:

[[Page 38188]]

[GRAPHIC] [TIFF OMITTED] TN19JY21.001

1. Planning
    Before entering into a third-party relationship, banking 
organizations evaluate the types and nature of risks in the 
relationship and develop a plan to manage the relationship and its 
related risks. Certain third parties, particularly those providing 
critical services, typically warrant significantly greater planning and 
consideration. For example, when critical activities are involved, such 
plans may be presented to and approved by a banking organization's 
board of directors (or a designated board committee).
    A banking organization typically considers the following factors, 
among others, in planning for a third-party relationship:
     Identifying and assessing the risks associated with the 
business arrangement and commensurate steps for appropriate risk 
management;
     Understanding the strategic purpose of the business 
arrangement and how the arrangement aligns with a banking 
organization's overall strategic goals, objectives, risk appetite, and 
broader corporate policies;
     Considering the complexity of the business arrangement, 
such as the volume of activity, potential for subcontractor(s), the 
technology needed, and the likely degree of foreign-based third-party 
activities;
     Evaluating whether the potential financial benefits 
outweigh the estimated costs (including estimated direct contractual 
costs as well as indirect costs to augment or alter banking 
organization processes, systems, or staffing to properly manage the 
third-party relationship or to adjust or terminate other existing 
contracts);
     Considering how the third-party relationship could affect 
other strategic banking organization initiatives, such as large 
technology projects, organizational changes, mergers, acquisitions, or 
divestitures;
     Evaluating how the third-party relationship could affect 
banking organization employees, including dual employees,\14\ and what 
transition steps are needed for the banking organization to manage the 
impacts when the activities currently conducted internally are 
outsourced;
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    \14\ Dual employees are employed by both the banking 
organization and the third party.
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     Assessing the nature of customer interaction with the 
third party and potential impact on the banking organization's 
customers--including access to or use of those customers' confidential 
information, joint marketing or franchising arrangements, and handling 
of customer complaints--and identifying possible steps needed to manage 
these impacts;
     Understanding potential information security implications 
including access to the banking organization's systems and to its 
confidential information;
     Describing how the banking organization will select, 
assess, and oversee the third party, including monitoring the third 
party's compliance with contractual provisions;
     Determining the banking organization's ability to provide 
adequate oversight and management of the proposed third-party 
relationship on an ongoing basis (including whether staffing levels and 
expertise, risk management and compliance management systems, 
organizational structure, policies and procedures, or internal control 
systems need to be adapted for the banking organization to effectively 
address the business arrangement); and
     Outlining the banking organization's contingency plans in 
the event the banking organization needs to transition the activity to 
another third party or bring it in-house.
    As with all other phases of the third-party risk management life 
cycle, it is important for planning and assessment to be performed by 
those with the requisite knowledge and skills. A banking organization 
may involve experts across disciplines, such as compliance, risk, or 
technology officers, legal counsel, and external support where helpful 
to supplement the qualifications and technical expertise of in-house 
staff.

[[Page 38189]]

2. Due Diligence and Third-Party Selection
    Conducting due diligence on third parties before selecting and 
entering into contracts or relationships is an important risk 
management activity. Relying solely on experience with or prior 
knowledge of a third party is not an adequate proxy for performing 
appropriate due diligence.
    The degree of due diligence should be commensurate with the level 
of risk and complexity of each third-party relationship. Due diligence 
will include assessing a third party's ability to perform the activity 
as expected, adhere to a banking organization's policies, comply with 
all applicable laws, regulations, and requirements, and operate in a 
safe and sound manner.
    The due diligence process also provides management with the 
information needed to determine whether a relationship mitigates 
identified risks or poses additional risk. More extensive due diligence 
is particularly important when a third-party relationship is higher 
risk or where it involves critical activities. For some relationships, 
on-site visits may be useful to understand fully the third party's 
operations and capacity. If a banking organization uncovers information 
that warrants additional scrutiny, the banking organization should 
consider broadening the scope or assessment methods of the due 
diligence as needed. In some instances, a banking organization may not 
be able to obtain the desired due diligence information from the third 
party. For example, the third party may not have a long operational 
history or demonstrated financial performance. In such situations, it 
is important to identify limitations, understand the risks, consider 
how to mitigate the risks, and determine whether the residual risks are 
acceptable.
    In order to facilitate or supplement a banking organization's due 
diligence, a banking organization may use the services of industry 
utilities or consortiums, including development organizations, consult 
with other banking organizations,\15\ or engage in joint efforts for 
performing due diligence to meet its established assessment criteria. 
Effective risk management processes include assessing the risks of 
outsourcing due diligence when relying on the services of other banking 
organizations, utilities, consortiums, or other similar arrangements 
and assessment standards. Use of such external services does not 
abrogate the responsibility of the board of directors to decide on 
matters related to third-party relationships involving critical 
activities or the responsibility of management to handle third-party 
relationships in a safe and sound manner and consistent with applicable 
laws and regulations.
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    \15\ Any collaborative activities among banks must comply with 
antitrust laws. Refer to the Federal Trade Commission and U.S. 
Department of Justice's ``Antitrust Guidelines for Collaborations 
Among Competitors,'' https://www.ftc.gov/sites/default/files/documents/public_events/joint-venture-hearings-antitrust-guidelines-collaboration-among-competitors/ftcdojguidelines-2.pdf (April 2000).
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    A banking organization typically considers the following factors, 
among others, during due diligence of a third party:
a. Strategies and Goals
    Review the third party's overall business strategy and goals to 
consider how the third party's current and proposed strategic business 
arrangements (such as mergers, acquisitions, divestitures, 
partnerships, joint ventures, or joint marketing initiatives) may 
affect the activity. Also consider reviewing the third party's service 
philosophies, quality initiatives, efficiency improvements, and 
employment policies and practices. Consider whether the selection of a 
third party is consistent with a banking organization's broader 
corporate policies and practices, including its diversity policies and 
practices.
b. Legal and Regulatory Compliance
    Evaluate the third party's ownership structure (including any 
beneficial ownership, whether public or private, foreign or domestic 
ownership) and its legal and regulatory compliance capabilities. 
Determine whether the third party has the necessary licenses to operate 
and the expertise, processes, and controls to enable the banking 
organization to remain compliant with domestic and international laws 
and regulations.\16\ Consider the third party's response to existing or 
recent regulatory compliance issues and its compliance status with 
applicable supervisory agencies and self-regulatory organizations, as 
appropriate. Consider whether the third party has identified, and 
articulated a process to mitigate, areas of potential consumer harm, 
particularly in which the third party will have direct contact with the 
bank's customers, develop customer-facing documents, or provide new, 
complex, or unique products.
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    \16\ To the extent the activities performed by the third party 
are subject to specific laws and regulations (e.g., privacy, 
information security, Bank Secrecy Act/anti-money laundering (BSA/
AML), or fiduciary requirements).
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c. Financial Condition
    Assess the third party's financial condition, including reviews of 
the third party's audited financial statements, annual reports, filings 
with the U.S. Securities and Exchange Commission (SEC), and other 
available financial information. Alternative information may be 
beneficial for conducting an assessment, including when third parties 
have limited financial information. For example, the banking 
organization may consider expected growth, earnings, pending 
litigation, unfunded liabilities, or other factors that may affect the 
third party's overall financial stability. Depending on the 
significance of the third-party relationship or whether the banking 
organization has a financial exposure to the third party, the banking 
organization's analysis may be as comprehensive as if it were extending 
credit to the third party.
d. Business Experience
    Evaluate the third party's depth of resources and any previous 
experience in meeting the banking organization's expectations. Assess 
the third party's degree of and its history of managing customer 
complaints or litigation. Determine how long the third party has been 
in business and whether there have been significant changes in the 
activities offered or in its business model. Check the third party's 
SEC or other regulatory filings. Review the third party's websites and 
other marketing materials related to the banking products or services 
to ensure that statements and assertions align with the banking 
organization's expectations and accurately represent the activities and 
capabilities of the third party. Determine whether and how the third 
party plans to use the banking organization's name in marketing 
efforts.
e. Fee Structure and Incentives
    Evaluate the third party's fee structure and incentives to 
determine if the fee structure and incentives would create burdensome 
upfront or termination fees or result in inappropriate risk taking by 
the third party or the banking organization. Consider whether any fees 
or incentives are subject to, and comply with, applicable law.
f. Qualifications and Backgrounds of Company Principals
    Evaluate the qualifications and experience of the company's 
principals related to the services provided by the third party. 
Consider whether a third party periodically conducts thorough 
background checks on its senior

[[Page 38190]]

management and employees, as well as on subcontractors, who may have 
access to critical systems or confidential information. Confirm that 
third parties have policies and procedures in place for identifying and 
removing employees who do not meet minimum background check 
requirements or are otherwise barred from working in the financial 
services sector.
g. Risk Management
    Evaluate the effectiveness of the third party's own risk 
management, including policies, processes, and internal controls. 
Consider whether the third party's risk management processes align with 
applicable banking organization policies and expectations surrounding 
the activity. Assess the third party's change management processes, 
including to ensure that clear roles, responsibilities, and segregation 
of duties are in place. Where applicable, determine whether the third 
party's internal audit function independently and effectively tests and 
reports on the third party's internal controls. Evaluate processes for 
escalating, remediating, and holding management accountable for 
concerns identified during audits or other independent tests. If 
available, consider reviewing System and Organization Control (SOC) 
reports and whether these reports contain sufficient information to 
assess the third party's risk or whether additional scrutiny is 
required through an assessment or audit by the banking organization or 
other third party at the banking organization's request. For example, 
consider whether or not SOC reports from the third party include within 
their coverage the internal controls and operations of subcontractors 
of the third party that support the delivery of services to the banking 
organization. Consider any conformity assessment or certification by 
independent third parties related to relevant domestic or international 
standards (for example, those of the National Institute of Standards 
and Technology (NIST), Accredited Standards Committee X9, Inc. (X9), 
and the International Standards Organization (ISO)).\17\
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    \17\ Conformity assessment with domestic or international 
standards can be considered with respect to the other areas of 
consideration during due diligence mentioned above.
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h. Information Security
    Assess the third party's information security program. Consider the 
consistency of the third party's information security program with the 
banking organization's program, and whether there are gaps that present 
risk to the banking organization. Determine whether the third party has 
sufficient experience in identifying, assessing, and mitigating known 
and emerging threats and vulnerabilities. When technology supports 
service delivery, assess the third party's data, infrastructure, and 
application security programs, including the software development life 
cycle and results of vulnerability and penetration tests. Consider the 
extent to which the third party uses controls to limit access to the 
banking organization's data and transactions, such as multifactor 
authentication, end-to-end encryption, and secured source code 
management. Evaluate the third party's ability to implement effective 
and sustainable corrective actions to address deficiencies discovered 
during testing.
i. Management of Information Systems
    Gain a clear understanding of the third party's business processes 
and technology that will be used to support the activity. When 
technology is a major component of the third-party relationship, review 
both the banking organization's and the third party's information 
systems to identify gaps in service-level expectations, technology, 
business process and management, or interoperability issues. Review the 
third party's processes for maintaining timely and accurate inventories 
of its technology and its subcontractor(s). Consider risks and benefits 
of different programing languages. Understand the third party's metrics 
for its information systems and confirm that they meet the banking 
organization's expectations
j. Operational Resilience
    Assess the third party's ability to deliver operations through a 
disruption from any hazard with effective operational risk management 
combined with sufficient financial and operational resources to 
prepare, adapt, withstand, and recover from disruptions.\18\ Assess 
options to employ if a third party's ability to deliver operations is 
impaired.
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    \18\ Disruptive events could include technology-based failures, 
human error, cyber incidents, pandemic outbreaks, and natural 
disasters. Additional information is available in the Interagency 
``Sound Practices to Strengthen Operational Resilience.'' The OCC 
issued Sound Practices as part of Bulletin 2020-94 on October 30, 
2020;
    The Board issued Sound Practices with SR Letter 20-24 on 
November 2, 2020; and
    The FDIC issued Sound Practices as a FIL Letter on November 2, 
2020.
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    Determine whether the third party maintains an appropriate business 
continuity management program, including disaster recovery and business 
continuity plans that specify the time frame to resume activities and 
recover data. Confirm that the third party regularly tests its 
operational resilience in an appropriate format and frequency. In order 
to assess the scope of operational resilience capabilities, banks may 
review the third party's telecommunications redundancy and resilience 
plans and preparations for known and emerging threats and 
vulnerabilities, such as wide-scale natural disasters, pandemics, 
distributed denial of service attacks, or other intentional or 
unintentional events. Consider risks related to technologies used by 
third parties, such as interoperability or potential end of life issues 
with software programming language, computer platform, or data storage 
technologies that may impact operational resilience. Banks may also 
gain additional insight into a third party's resilience capabilities by 
reviewing the results of business continuity testing results and 
performance during actual disruptions.
k. Incident Reporting and Management Programs
    Review and consider the third party's incident reporting and 
management programs to ensure there are clearly documented processes, 
timelines, and accountability for identifying, reporting, 
investigating, and escalating incidents. Confirm that the third party's 
escalation and notification processes meet the banking organization's 
expectations and regulatory requirements.
l. Physical Security
    Evaluate whether the third party has sufficient physical and 
environmental controls to protect the safety and security of its 
facilities, technology systems, data, and employees. Where sensitive 
banking organization data may be accessible, review employee on- and 
off-boarding procedures to ensure physical access rights are managed 
appropriately.
m. Human Resource Management
    Review the third party's processes to train and hold employees 
accountable for compliance with policies and procedures. Review the 
third party's succession and redundancy planning for key management and 
support personnel. Review training programs to ensure that the third 
party's staff is knowledgeable about applicable laws, regulations, 
technology, risk, and other factors that may affect the quality of 
services and risk to the banking organization.
n. Reliance on Subcontractors
    Evaluate the volume and types of subcontracted activities and 
consider

[[Page 38191]]

any implications or risks associated with the subcontractors' 
geographic locations. Evaluate the third party's ability to identify, 
assess, monitor, and mitigate risks from its use of subcontractors and 
to provide that the same level of quality and controls exists no matter 
where the subcontractors' operations reside. Evaluate whether 
additional risks may arise from the third party's reliance on 
subcontractors and, as appropriate, conduct similar due diligence on 
the third party's critical subcontractors, such as when additional risk 
may arise due to concentration-related risk, when the third party 
outsources significant activities, or when subcontracting poses other 
material risks.
o. Insurance Coverage
    Evaluate whether the third party has fidelity bond coverage to 
insure against losses attributable to, at a minimum, dishonest acts, 
liability coverage for losses attributable to negligent acts, and 
hazard insurance covering fire, loss of data, and protection of 
documents. Evaluate whether the third party has insurance coverage for 
areas that may not be covered under a general commercial policy, such 
as its intellectual property rights and cybersecurity. The amounts of 
such coverage should be commensurate with the level of risk involved 
with the third party's operations and the type of activities to be 
provided.
p. Conflicting Contractual Arrangements With Other Parties
    Obtain information regarding legally binding arrangements with 
subcontractors or other parties to determine whether the third party 
has indemnified itself, as such arrangements may transfer risks to the 
banking organization. Evaluate the potential legal and financial 
implications to the banking organization of these contracts between the 
third party and its subcontractors or other parties.
3. Contract Negotiation
    Once a banking organization selects a third party, it negotiates a 
contract that clearly specifies the rights and responsibilities of each 
party to the contract. The banking organization seeks to add provisions 
to satisfy its needs. While third parties may initially offer a 
standard contract, banks may seek to request additional contract 
provisions or addendums upon request. In situations where it is 
difficult for a banking organization to negotiate contract terms, it is 
important for the banking organization to understand any resulting 
limitations, determine whether the contract can still meet the banking 
organization's needs, and determine whether the contract would result 
in increased risk to the banking organization. If the contract would 
not satisfy the banking organization's needs or would result in an 
unacceptable increase in risk, the banking organization may wish to 
consider other third parties for the service. Banking organizations may 
also gain advantage by negotiating contracts as a group with other 
users.
    The board (or a designated committee reporting to the board) should 
be aware of and approve contracts involving critical activities before 
their execution. Legal counsel review may be necessary for significant 
contracts prior to finalization. As part of sound risk management, a 
banking organization reviews existing contracts periodically, 
particularly those involving critical activities, to ensure they 
continue to address pertinent risk controls and legal protections. 
Where problems are identified, the banking organization should seek to 
renegotiate at the earliest opportunity. A material or significant 
contract with a third party typically prohibits assignment, transfer, 
or subcontracting by the third party of its obligations to another 
entity without the banking organization's consent.
    A banking organization typically considers the following factors, 
among others, during contract negotiations with a third party:
a. Nature and Scope of Arrangement
    A contract specifies the nature and scope of the business 
arrangement (for example, the frequency, content, and format of the 
activity) and includes, as applicable, such ancillary services as 
software or other technology support and maintenance, employee 
training, and customer service. A contract may also specify which 
activities the third party is to conduct, whether on or off the banking 
organization's premises, and describe the terms governing the use of 
the banking organization's information, facilities, personnel, systems, 
and equipment, as well as access to and use of the banking 
organization's or customers' information. When dual employees will be 
used, the contract typically clearly articulates their responsibilities 
and reporting lines.
b. Performance Measures or Benchmarks
    A service-level agreement between the banking organization and 
third party specifies measures surrounding the expectations and 
responsibilities for both parties, including conformance with 
regulatory standards or rules. Performance and risk measures can be 
used to motivate the third party's performance, penalize poor 
performance, or reward outstanding performance. Performance measures 
should not incentivize undesirable performance or behavior, such as 
encouraging processing volume or speed without regard for timeliness, 
accuracy, compliance requirements, or adverse effects on banking 
organization customers.
c. Responsibilities for Providing, Receiving, and Retaining Information
    Confirm that the contract includes provisions that the third party 
provides and retains timely, accurate, and comprehensive information, 
such as records and reports, that allow banking organization management 
to monitor performance, service levels, and risks. Stipulate the 
frequency and type of reports needed.
    Confirm that the contract sufficiently addresses:
     The ability of the institution to have unrestricted access 
to its data whether or not in the possession of the third party;
     The responsibilities and methods to address failures to 
adhere to the agreement including the ability of all parties to the 
agreement to exit the relationship;
     The banking organization's materiality thresholds and the 
third party's procedures for immediately notifying the banking 
organization whenever service disruptions, security breaches, 
compliance lapses, enforcement actions, regulatory proceedings, or 
other events pose a significant risk to the banking organization (for 
example, financial difficulty, catastrophic events, and significant 
incidents);
     Notification to the banking organization before making 
significant changes to the contracted activities, including 
acquisition, subcontracting, offshoring, management, or key personnel 
changes, or implementing new or revised policies, processes, and 
information technology;
     Notification to the banking organization of significant 
strategic business changes, such as mergers, acquisitions, joint 
ventures, divestitures, or other business activities that could affect 
the activities involved;
     The ability for the banking organization to access native 
data and to authorize and allow other third parties to access its data 
during the term of the contract;
     The ability of the third party to resell, assign, or 
permit access to the

[[Page 38192]]

banking organization's data, metadata, and systems to other entities;
     Expectations for the third party to notify the banking 
organization of significant operational changes or when the third party 
experiences significant incidents; and
     Specification of the type and frequency of management 
information reports to be received from the third party, where 
appropriate. This may include routine reports, among others, on 
performance reports, audits, financial reports, security reports, and 
business resumption testing reports.
d. The Right To Audit and Require Remediation
    The contract often establishes the banking organization's right to 
audit, monitor performance, and provide for remediation when issues are 
identified. Generally, a third-party contract includes provisions for 
periodic, independent, internal, or external audits of the third party, 
and relevant subcontractors, at intervals and scopes consistent with 
the banking organization's in-house functions to monitor performance 
with the contract. An effective contract provision includes the types 
and frequency of audit reports the banking organization is entitled to 
receive from the third party (for example, SOC reports, Payment Card 
Industry (PCI) compliance reports, and other financial and operational 
reviews). Contract provisions reserve the banking organization's right 
to conduct its own audits of the third party's activities or to engage 
an independent party to perform such audits.
e. Responsibility for Compliance With Applicable Laws and Regulations
    Provide that the contract requires compliance with laws and 
regulations and considers relevant guidance and self-regulatory 
standards. These may include, among others: The Gramm-Leach-Bliley Act 
(including privacy and safeguarding of customer information); the Bank 
Secrecy Act and Anti-Money Laundering (BSA/AML) laws; the Office of 
Foreign Assets Control (OFAC) regulations; and consumer protection laws 
and regulations, including with respect to fair lending and unfair, 
deceptive or abusive acts or practices. Confirm that the contract gives 
the banking organization the right to monitor the third party's 
compliance with applicable laws, regulations, and policies, conduct 
periodic reviews to verify adherence to expectations, and require 
remediation if issues arise.
f. Cost and Compensation
    Contracts describe compensation, fees, and calculations for base 
services, as well as any fees based on volume of activity and for 
special requests. Confirm that the contracts do not include burdensome 
upfront fees or incentives that could result in inappropriate risk 
taking by the banking organization or third party. Indicate which party 
is responsible for payment of legal, audit, and examination fees 
associated with the activities involved. Consider outlining cost and 
responsibility for purchasing and maintaining hardware and software and 
specifying the conditions under which the cost structure may be 
changed, including limits on any cost increases.
g. Ownership and License
    State whether and how the third party has the right to use the 
banking organization's information, technology, and intellectual 
property, such as the banking organization's name, logo, trademark, 
metadata, and copyrighted material. Indicate whether any records 
generated by the third party become the banking organization's 
property. Include appropriate warranties on the part of the third party 
related to its acquisition of licenses or subscription for use of any 
intellectual property developed by other third parties. If the banking 
organization purchases software, establish escrow agreements to provide 
for the banking organization's access to source code and programs under 
certain conditions (for example, insolvency of the third party).
h. Confidentiality and Integrity
    Prohibit the use and disclosure of the banking organization's 
information by a third party and its subcontractors, except as 
necessary to provide the contracted activities or comply with legal 
requirements. If the third party receives a banking organization's 
customers' personally identifiable information, the contract should 
ensure that the third party implements and maintains appropriate 
security measures to comply with privacy regulations and regulatory 
guidelines. Specify when and how the third party will disclose, in a 
timely manner, information security breaches that have resulted in 
unauthorized intrusions or access that may materially affect the 
banking organization or its customers. Stipulate that intrusion 
notifications of customer data include estimates of the effects on the 
banking organization and its customers and specify corrective action to 
be taken by the third party. Address the powers of each party to change 
security and risk management procedures and requirements and resolve 
any confidentiality and integrity issues arising out of shared use of 
facilities owned by the third party. Stipulate whether and how often 
the banking organization and the third party will jointly practice 
incident management exercises involving unauthorized intrusions or 
other breaches of confidentiality and integrity.
i. Operational Resilience and Business Continuity
    Confirm that the contract provides for continuation of the business 
function in the event of problems affecting the third party's 
operations, including degradations or interruptions resulting from 
natural disasters, human error, or intentional attacks. Stipulate the 
third party's responsibility for backing up and otherwise protecting 
programs, data backup, periodic maintenance for cybersecurity issues 
that emerge over time, and maintaining current and sound business 
resumption and business continuity plans. Include provisions for 
transferring the banking organization's accounts, data, or activities 
to another third party without penalty in the event of the third 
party's bankruptcy, business failure, or business interruption.
    Contracts often require the third party to provide the banking 
organization with operating procedures to be carried out in the event 
business continuity plans are implemented, including specific recovery 
time and recovery point objectives. In particular, it is important for 
the contract to contain service level agreements and related services 
that can support the needs of the banking organization. Stipulate 
whether and how often the banking organization and the third party will 
jointly test business continuity plans. In the event the third party is 
unable to provide services as agreed, the contract permits the banking 
organization to terminate the service without being assessed a 
termination penalty and provides access to data in order to transfer 
services to another provider for continuity of operations.
j. Indemnification
    Consider including indemnification clauses that specify the extent 
to which the banking organization will be held liable for claims that 
cite failure of the third party to perform, including failure of the 
third party to obtain any necessary intellectual property licenses. 
Carefully assess indemnification clauses that require the banking 
organization to hold the third party harmless from liability.

[[Page 38193]]

k. Insurance
    Consider whether the third party maintains adequate types and 
amounts of insurance (including, if appropriate, naming the banking 
organization as insured or additional insured), notifies the banking 
organization of material changes to coverage, and provides evidence of 
coverage where appropriate. Types of insurance coverage may include 
fidelity bond; cybersecurity; liability; property hazard and casualty; 
and intellectual property.
l. Dispute Resolution
    Consider whether the contract should establish a dispute resolution 
process (arbitration, mediation, or other means) to resolve problems 
between the banking organization and the third party in an expeditious 
manner, and whether the third party should continue to provide 
activities to the banking organization during the dispute resolution 
period.
m. Limits on Liability
    A contract may limit the third party's liability, in which case the 
banking organization may consider whether the proposed limit is in 
proportion to the amount of loss the banking organization might 
experience because of the third party's failure to perform or to comply 
with applicable laws, and whether the contract would subject the 
banking organization to undue risk of litigation.
n. Default and Termination
    Confirm that the contract stipulates what constitutes default; 
identifies remedies and allows opportunities to cure defaults; and 
stipulates the circumstances and responsibilities for termination. 
Contracts can protect the ability of the banking organization to change 
providers when appropriate without undue restrictions, limitations, or 
cost. Determine whether the contract:
     Includes a provision that enables the banking organization 
to terminate the relationship in a timely manner without prohibitive 
expense;
     Includes termination and notification provisions with 
reasonable time frames to allow for the orderly conversion to another 
third party;
     Provides for the timely return or destruction of the 
banking organization's data and other resources;
     Provides for ongoing monitoring of the third party after 
the contract terms are satisfied, as necessary; and
     Clearly assigns all costs and obligations associated with 
transition and termination.
    Additionally, effective contracts enable the banking organization 
to terminate the relationship upon reasonable notice and without 
penalty in the event that the banking organization's primary federal 
banking regulator formally directs the banking organization to 
terminate the relationship.
o. Customer Complaints
    Specify whether the banking organization or third party is 
responsible for responding to customer complaints. If it is the third 
party's responsibility, include provisions in the contract that provide 
for the third party to receive and respond in a timely manner to 
customer complaints, and forward a copy of each complaint and response 
to the banking organization. The contract addresses the submission of 
sufficient, timely, and usable information to enable the banking 
organization to analyze customer complaint activity and trends for risk 
management purposes.
p. Subcontracting
    Consider whether to allow the third party to use a subcontractor, 
and if so, address when and how the third party should notify or seek 
approval from the banking organization of its intent to use a 
subcontractor (for example, for certain activities or in certain 
locations) or whether specific subcontractors are prohibited by the 
banking organization. Detail contractual obligations, such as reporting 
on the subcontractor's conformance with performance measures, periodic 
audit results, compliance with laws and regulations, and other 
contractual obligations. State the third party's liability for 
activities or actions by its subcontractors and which party is 
responsible for the costs and resources required for any additional 
monitoring and management of the subcontractors. Reserve the right to 
terminate the contract with the third party without penalty if the 
third party's subcontracting arrangements do not comply with the terms 
of the contract.
q. Foreign-Based Third Parties
    Include in contracts with foreign-based third parties choice-of-law 
provisions and jurisdictional provisions that provide for adjudication 
of all disputes between the parties under the laws of a single 
jurisdiction. Understand that such contracts and covenants may be 
subject, however, to the interpretation of foreign courts relying on 
local laws. Seek legal advice to confirm the enforceability of all 
aspects of a proposed contract with a foreign-based third party and 
other legal ramifications of each such business arrangement, including 
privacy laws and cross-border flow of information.
r. Regulatory Supervision
    For relevant third-party relationships, stipulate that the 
performance of activities by external parties for the banking 
organization is subject to regulatory examination oversight, including 
access to all work papers, drafts, and other materials.\19\
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    \19\ The agencies generally have the authority to examine and to 
regulate banking-related functions or operations performed by third 
parties for a banking organization to the same extent as if they 
were performed by the banking organization itself. See 12 U.S.C. 
1464(d)(7)(D) and 1867(c)(1).
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4. Oversight and Accountability
    The banking organization's board of directors (or a designated 
board committee) and management are responsible for overseeing the 
banking organization's overall risk management processes. Banking 
organization management is responsible for implementing third-party 
risk management. An effective board oversees risk management 
implementation and holds management accountable. Effective management 
teams should establish responsibility and accountability for managing 
third parties commensurate with the level of risk and complexity of the 
relationship.
a. Board of Directors
    In overseeing the management of risks associated with third-party 
relationships, boards of directors (or directors) typically consider 
the following factors, among others:
     Confirming that risks related to third-party relationships 
are managed in a manner consistent with the banking organization's 
strategic goals and risk appetite;
     Approving the banking organization's policies that govern 
third-party risk management;
     Approving, or delegating to, an appropriate committee 
reporting to the board, approval of contracts with third parties that 
involve critical activities;
     Reviewing the results of management's ongoing monitoring 
of third-party relationships involving critical activities;
     Confirming that management takes appropriate actions to 
remedy significant deterioration in performance or address changing 
risks or material issues identified through ongoing monitoring; and
     Reviewing results of periodic independent reviews of the 
banking organization's third-party risk management process.
b. Management
    When executing and implementing third-party relationship risk

[[Page 38194]]

management strategies and policies, management typically considers:
     Developing and implementing the banking organization's 
third-party risk management process;
     Confirming that appropriate due diligence and ongoing 
monitoring is conducted on third parties and presenting results to the 
board when making recommendations to use third parties that involve 
critical activities;
     Reviewing and approving contracts with third parties;
     Providing appropriate organizational structures, 
management and staffing (level and expertise);
     Confirming that third parties comply with the banking 
organization's policies and reporting requirements;
     Providing that third parties be notified of significant 
operational issues at the banking organization that may affect the 
third party;
     Confirming that the banking organization has an 
appropriate system of internal controls and regularly tests the 
controls to manage risks associated with third-party relationships;
     Confirming that the banking organization's compliance 
management system is appropriate to the nature, size, complexity, and 
scope of its third-party business arrangements;
     Providing that third parties regularly test and implement 
agreed-upon remediation when issues arise;
     Escalating significant issues to the board;
     Terminating business arrangements with third parties that 
do not meet expectations or no longer align with the banking 
organization's strategic goals, objectives, or risk appetite; and
     Maintaining appropriate documentation throughout the life 
cycle.
c. Independent Reviews
    Banking organizations typically conduct periodic independent 
reviews of the third-party risk management process, particularly when 
third parties perform critical activities. The banking organization's 
internal auditor or an independent third party may perform the reviews, 
and senior management confirms that the results are reported to the 
board. Reviews include assessing the adequacy of the banking 
organization's process for:
     Confirming third-party relationships align with the 
banking organization's business strategy;
     Identifying, measuring, monitoring, and controlling risks 
of third-party relationships;
     Understanding and monitoring concentration risks that may 
arise from relying on a single third party for multiple activities or 
from geographic concentrations of business; \20\
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    \20\ For example, more complex relationships could include 
foreign-based third parties and the use of subcontractors.
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     Responding to material breaches, service disruptions, or 
other material issues;
     Involving multiple disciplines across the banking 
organization as appropriate during each phase of the third-party risk 
management life cycle; \21\
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    \21\ In addition to the functional business units, this may 
include information technology, identity and access management, 
physical security, information security, business continuity, 
compliance, legal, risk management, and human resources.
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     Confirming appropriate staffing and expertise to perform 
risk assessment, due diligence, contract negotiation, and ongoing 
monitoring and management of third parties;
     Confirming oversight and accountability for managing 
third-party relationships (for example, whether roles and 
responsibilities are clearly defined and assigned and whether the 
individuals possess the requisite expertise, resources, and authority); 
and
     Confirming that conflicts of interest or appearances of 
conflicts of interest do not exist when selecting or overseeing third 
parties.
    The results of independent reviews may be used to determine whether 
and how to adjust the banking organization's third-party risk 
management process, including policy, reporting, resources, expertise, 
and controls. It is important that management responds promptly and 
thoroughly to significant issues or concerns identified and escalates 
them to the board if the risk posed is approaching the banking 
organization's risk appetite limits.
d. Documentation and Reporting
    It is important that banking organization management properly 
document and report on its third-party risk management process and 
specific business arrangements throughout their life cycle. Proper 
documentation and reporting facilitate the accountability, monitoring, 
and risk management associated with third parties, will vary among 
organizations depending on their size and complexity, and may include 
the following:
     A current inventory of all third-party relationships, 
which clearly identifies those relationships that involve critical 
activities and delineates the risks posed by those relationships across 
the banking organization; \22\
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    \22\ Under Section 7(c) of the Bank Service Company Act, 12 
U.S.C. 1867(c), banks are required to notify the appropriate federal 
banking agency of the existence of a servicing relationship. Federal 
savings associations are subject to similar requirements set forth 
in 12 U.S.C. 1464(d)(7)(D)(ii) and 1867(c)(2).
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     Approved plans for the use of third-party relationships;
     Risk assessments;
     Due diligence results, findings, and recommendations;
     Analysis of costs associated with each activity or third-
party relationship, including any indirect costs assumed by the banking 
organization;
     Executed contracts;
     Regular risk management and performance reports required 
and received from the third party, which may include reports on service 
level reporting, internal control testing, cybersecurity risk and 
vulnerabilities metrics, results of independent reviews and other 
ongoing monitoring activities; and
     Reports from third parties of service disruptions, 
security breaches, or other events that pose a significant risk to the 
banking organization.
5. Ongoing Monitoring
    Ongoing monitoring is an essential component of third-party risk 
management, occurring throughout the duration of a third-party 
relationship. Ongoing monitoring occurs after the third-party 
relationship is established and often leverages processes similar to 
due diligence. The appropriate degree of ongoing monitoring is 
commensurate with the level of risk and complexity of the third-party 
relationship. More comprehensive monitoring is typically necessary when 
the third-party relationship is higher risk (for example, involving 
critical activities). Banking organizations periodically re-assess 
existing relationships to determine whether the nature of an activity 
subsequently becomes critical.
    Because both the level and types of risks may change over the 
lifetime of third-party relationships, banking organizations adapt 
their ongoing monitoring practices accordingly. Management's monitoring 
may result in changes to the frequency and types of reports from the 
third party, including service-level agreement performance reports, 
audit reports, and control testing results.
    As part of sound risk management, banking organizations dedicate 
sufficient staffing with the necessary expertise, authority, and 
accountability to perform ongoing monitoring, which may include 
periodic on-site visits and meetings with third-party representatives 
to discuss performance and operational issues. Effective

[[Page 38195]]

monitoring activities enable banking organizations to confirm the 
quality and sustainability of the third party's controls and ability to 
meet service-level agreements (for example, ongoing review of third-
party performance metrics). Additionally, ongoing monitoring typically 
includes the regular testing of the banking organization's controls to 
manage risks from third-party relationships, particularly when critical 
activities are involved. Bank employees who directly manage third-party 
relationships escalate to senior management significant issues or 
concerns arising from ongoing monitoring, such as an increase in risk, 
material weaknesses and repeat audit findings, deterioration in 
financial condition, security breaches, data loss, service or system 
interruptions, or compliance lapses. In addition, based on the results 
of the ongoing monitoring and internal control testing, banking 
organizations respond to issues when identified, including escalating 
significant issues to the board.
    A banking organization typically considers the following factors, 
among others, for ongoing monitoring of a third party:
     Evaluate the overall effectiveness of the third-party 
relationship and the consistency of the relationship with the banking 
organization's strategic goals;
     Assess changes to the third party's business strategy, 
legal risk, and its agreements with other entities that may pose 
conflicting interests, introduce risks, or impact the third party's 
ability to meet contractual obligations;
     Evaluate the third party's financial condition and changes 
in the third party's financial obligations to others;
     Review the adequacy of the third party's insurance 
coverage;
     Review relevant audits and other reports from the third 
party, and consider whether the results indicate an ability to meet 
contractual obligations and effectively manage risks;
     Monitor for compliance with applicable legal and 
regulatory requirements;
     Assess the effect of any changes in key third party 
personnel involved in the relationship with the banking organization;
     Monitor the third party's reliance on, exposure to, 
performance of, and use of subcontractors, as stipulated in contractual 
requirements, the location of subcontractors, and the ongoing 
monitoring and control testing of subcontractors;
     Determine the adequacy of any training provided to 
employees of the banking organization and the third party;
     Review processes for adjusting policies, procedures, and 
controls in response to changing threats and new vulnerabilities and 
material breaches or other serious incidents;
     Monitor the third party's ability to maintain the 
confidentiality and integrity of the banking organization's systems and 
information, including the banking organization's customers' data if 
received by the third party;
     Review the third party's business resumption contingency 
planning and testing and evaluate the third party's ability to respond 
to and recover from service disruptions or degradations and meet 
business resilience expectations; and
     Evaluate the volume, nature, and trends of consumer 
inquiries and complaints and assess the third party's ability to 
appropriately address and remediate inquiries and complaints.
6. Termination
    A banking organization may terminate a relationship for various 
reasons specified in the contract, such as expiration of or 
dissatisfaction with the contract, a desire to seek an alternate third 
party, a desire to bring the activity in-house or discontinue the 
activity, or a breach of contract. When this occurs, it is important 
for management to terminate relationships in an efficient manner, 
whether the activities are transitioned to another third party, brought 
in-house, or discontinued. In the event of contract default or 
termination, a well-run banking organization should consider how to 
transition services in a timely manner to another third-party provider 
or bring the service in-house if there are no alternate third-party 
providers. In planning for termination, a banking organization 
typically considers the following factors, among others:
     Capabilities, resources, and the time frame required to 
transition the activity while still managing legal, regulatory, 
customer, and other impacts that might arise;
     Potential third-party service providers to which the 
services could be transitioned;
     Risks associated with data retention and destruction, 
information system connections and access control issues, or other 
control concerns that require additional risk management and monitoring 
during and after the end of the third-party relationship;
     Handling of joint intellectual property developed during 
the course of the business arrangement; and
     Risks to the banking organization if the termination 
happens as a result of the third party's inability to meet 
expectations.

D. Supervisory Reviews of Third-Party Relationships

    A banking organization's failure to have an effective third-party 
risk management process that is commensurate with the level of risk, 
complexity of third-party relationships, and organizational structure 
of the banking organization may be an unsafe or unsound practice.
    When reviewing third party risk management, examiners typically:
     Assess the banking organization's ability to oversee and 
manage its relationships;
     Highlight and discuss material risks and any deficiencies 
in the banking organization's risk management process with the board of 
directors and senior management;
     Carefully review the banking organization's plans for 
appropriate and sustainable remediation of such deficiencies, 
particularly those associated with the oversight of third parties that 
involve critical activities;
     Identify and report deficiencies in supervisory findings 
and reports of examination and recommend appropriate supervisory 
actions. These actions may include issuing Matters Requiring Attention, 
issuing Matters Requiring Board Attention, and recommending formal 
enforcement actions;
     Consider the findings when assigning the management 
component of the Federal Financial Institutions Examination Council's 
Uniform Financial Institutions Rating System. Serious deficiencies may 
result in management being deemed less than satisfactory; and
     Reflect the associated risks in the overall assessment of 
the banking organization's risk profile.
    When circumstances warrant, the agencies may use their authorities 
to examine the functions or operations performed by a third party on 
the banking organization's behalf. Such examinations may evaluate 
safety and soundness risks, the financial and operational viability of 
the third party, the third party's ability to fulfill its contractual 
obligations and comply with applicable laws and regulations, including 
those related to consumer protection (including with respect to fair 
lending and unfair or deceptive acts or practices), and BSA/AML and 
OFAC laws and regulations. The agencies may pursue appropriate 
corrective measures, including enforcement actions, to

[[Page 38196]]

address violations of law and regulations or unsafe or unsound banking 
practices by the banking organization or its third party.
[Separate Exhibit]

V. OCC's 2020 Frequently Asked Questions (FAQs) on Third-Party 
Relationships

    The agencies are including the OCC's 2020 FAQs, released in March 
2020, as an exhibit, separate from the proposed guidance. The OCC 
issued the 2020 FAQs to clarify the OCC's 2013 third-party risk 
management guidance. The agencies seek public comment on the extent to 
which the concepts discussed in the OCC's 2020 FAQs should be 
incorporated into the final version of the guidance. More specifically, 
the agencies seek public comment on whether: (1) Any of these concepts 
should be incorporated into the final guidance; and (2) there are 
additional concepts that would be helpful to include.

Third-Party Relationships: Frequently Asked Questions To Supplement OCC 
Bulletin 2013-29

Summary
    The Office of the Comptroller of the Currency (OCC) issued 
frequently asked questions (FAQ) to supplement OCC Bulletin 2013-29, 
``Third-Party Relationships: Risk Management Guidance.'' These FAQs 
were intended to clarify the OCC's existing guidance and reflect 
evolving industry trends.
Note for Community Banks
    This bulletin applies to community banks.\1\
Highlights
    Topics addressed in the FAQs include
     the terms ``third-party relationship'' and ``business 
arrangement.''
     when cloud computing providers are in a third-party 
relationship with a bank.
     when data aggregators are in a third-party relationship 
with a bank.
     risk management when the bank has limited negotiating 
power in contractual arrangements.
     critical activities and how a bank can determine the risks 
associated with third-party relationships.
     bank management's responsibilities regarding a third 
party's subcontractors.
     reliance on and use of third party-provided reports, 
certificates of compliance, and independent audits.
     risk management when third party has limited ability to 
provide the same level of due diligence-related information as larger 
or more established third parties.
     risk management when using a third-party model or when 
using a third party to assist with model risk management.
     use of third-party assessment services in managing third-
party relationship risks.
     a board's approval of contracts.
     risk management when obtaining alternative data from a 
third party.
Frequently Asked Questions
1. What is a third-party relationship? (Originally FAQ No. 1 in OCC 
Bulletin 2017-21)
    OCC Bulletin 2013-29 defines a third-party relationship as any 
business arrangement between the bank and another entity, by contract 
or otherwise.
    Bank management should conduct in-depth due diligence and ongoing 
monitoring of each of the bank's third-party service providers that 
support critical activities. The OCC realizes that although banks may 
want in-depth information, they may not receive all the information 
they seek on each critical third-party service provider, particularly 
from new companies. When a bank does not receive all the information it 
seeks about third-party service providers that support the bank's 
critical activities, the OCC expects the bank's board of directors and 
management to
    [cir] develop appropriate alternative ways to analyze these 
critical third-party service providers.
    [cir] establish risk-mitigating controls.
    [cir] be prepared to address interruptions in delivery (for 
example, use multiple payment systems, generators for power, and 
multiple telecommunications lines in and out of critical sites).
    [cir] make risk-based decisions that these critical third-party 
service providers are the best service providers available to the bank 
despite the fact that the bank cannot acquire all the information it 
wants.
    [cir] retain appropriate documentation of all their efforts to 
obtain information and related decisions.
    [cir] ensure that contracts meet the bank's needs.
2. What is a ``business arrangement?''
    OCC Bulletin 2013-29 states that a third-party relationship is any 
business arrangement between a bank and another entity, by contract or 
otherwise. The term ``business arrangement'' is meant to be interpreted 
broadly and is synonymous with the term third-party relationship. A 
footnote in OCC Bulletin 2013-29 provides examples of business 
arrangements (third-party relationships), such as activities that 
involve outsourced products and services, use of independent 
consultants, networking arrangements, merchant payment processing, 
services provided by affiliates and subsidiaries, joint ventures, and 
other business arrangements in which the bank has an ongoing 
relationship or may have responsibility for the associated records. 
Neither a written contract nor a monetary exchange is necessary to 
establish a business arrangement; all that is necessary is an agreement 
between the bank and the third party. Business arrangements generally 
exclude bank customers.
    Traditionally, banks use the terms ``vendor'' or ``outsource'' to 
describe business arrangements and often use these terms instead of 
third-party relationships. A ``vendor'' is typically an individual or 
company offering something for sale, and banks may ``outsource'' a bank 
function or task to another company. A bank's relationships with 
vendors or entities to which banks outsource bank functions or 
activities do not represent the only types of business arrangements.
    Since the publication of OCC Bulletin 2013-29, business 
arrangements have expanded and become more varied and, in some cases, 
more complex. The OCC has received requests for clarification regarding 
business arrangements and how those arrangements relate to OCC Bulletin 
2013-29. The following are some examples:
    [cir] Referral arrangements: A referral arrangement is a continuing 
agreement between a bank and another party (e.g., bank, corporate 
entity, or individual) in which the bank refers potential customers (or 
``leads'') to the other party in exchange for some form of 
compensation. The compensation may also be non-financial such as cross-
marketing. The bank has a business arrangement with the party receiving 
the bank's referral.
    [cir] Appraisers and appraisal management companies: Some banks 
maintain an approved panel or list of individual appraisers. When an 
appraisal is requested, the bank enters into an agreement with an 
individual appraiser. This establishes a business arrangement between 
the bank and the individual appraiser. Banks may also outsource the 
process of engaging real estate appraisers to appraisal management 
companies. In such an instance, a bank has a business arrangement with 
the appraisal management company that the bank uses.\2\
    [cir] Professional service providers: Service providers such as law 
firms,

[[Page 38197]]

consultants, or audit firms often provide professional services to 
banks. A bank that receives these professional services has a business 
arrangement with the professional service provider.\3\
    [cir] Maintenance, catering, and custodial service companies: There 
are many companies that a bank or a line of business may need to 
provide a product or service either to the bank or to the bank's 
customers. The bank has a business arrangement with each of these types 
of companies.\4\
3. Does a company that provides a bank with cloud computing have a 
third-party relationship with the bank? If so, what are the third-party 
risk management expectations?
    Consistent with OCC Bulletin 2013-29, a bank that has a business 
arrangement with a cloud service provider has a third-party 
relationship with the cloud service provider. Third-party risk 
management for cloud computing services is fundamentally the same as 
for other third-party relationships. The level of due diligence and 
oversight should be commensurate with the risk associated with the 
activity or data using cloud computing. Bank management should keep in 
mind that specific technical controls in cloud computing may operate 
differently than in more traditional network environments.
    When using cloud computing services, bank management should have a 
clear understanding of, and should document in the contract, the 
controls that the cloud service provider is responsible for managing 
and those controls that the bank is responsible for configuring and 
managing. Regardless of the division of control responsibilities 
between the cloud service provider and the bank, the bank is ultimately 
responsible for the effectiveness of the control environment.
    A bank may have a third-party relationship with a third party that 
has subcontracted with a cloud service provider to house systems that 
support the third-party service provider. As with other third-party 
relationships, bank management should conduct due diligence to confirm 
that the third party can satisfactorily oversee and monitor the cloud 
service subcontractor.\5\ In many cases, independent reports, such as 
System and Organization Controls (SOC) reports, may be leveraged for 
this purpose.\6\
4. If a data aggregator \7\ collects customer-permissioned data from a 
bank, does the data aggregator have a third-party relationship with the 
bank? If so, what are the third-party risk management expectations?
    A data aggregator typically acts at the request of and on behalf of 
a bank's customer without the bank's involvement in the arrangement. 
Banks typically allow for the sharing of customer information, as 
authorized by the customer, with data aggregators to support customers' 
choice of financial services. Whether a bank has a business arrangement 
with the data aggregator depends on the level of formality of any 
arrangements that the bank has with the data aggregator for sharing 
customer-permissioned data.
    A bank that has a business arrangement with a data aggregator has a 
third-party relationship, consistent with the existing guidance in OCC 
Bulletin 2013-29. Regardless of the structure of the business 
arrangement for sharing customer-permissioned data, the level of due 
diligence and ongoing monitoring should be commensurate with the risk 
to the bank. In many cases, banks may not receive a direct service or 
benefit from these arrangements. In these cases, the level of risk for 
banks is typically lower than with more traditional business 
arrangements. Banks still have a responsibility, however, to manage 
these relationships in a safe and sound manner with consumer 
protections.
    Information security and the safeguarding of sensitive customer 
data should be a key focus for a bank's third-party risk management 
when a bank is contemplating or has a business arrangement with a data 
aggregator. A security breach at the data aggregator could compromise 
numerous customer banking credentials and sensitive customer 
information, causing harm to the bank's customers and potentially 
causing reputation and security risk and financial liability for the 
bank.
    If a bank is not receiving a direct service from a data aggregator 
and if there is no business arrangement, banks still have risk from 
sharing customer-permissioned data with a data aggregator. Bank 
management should perform due diligence to evaluate the business 
experience and reputation of the data aggregator to gain assurance that 
the data aggregator maintains controls to safeguard sensitive customer 
data.
    The following are examples of different types of interactions that 
banks might have with data aggregators.
    [cir] Agreements for banks' use of data aggregation services: \8\ A 
business arrangement exists when a bank contracts or partners with a 
data aggregator to use the data aggregator's services to offer or 
enhance a bank product or service. Due diligence, contract negotiation, 
and ongoing monitoring should be commensurate with the risk, similar to 
the bank's risk management of other third-party relationships.
    [cir] Agreements for sharing customer-permissioned data: Many banks 
are establishing bilateral agreements with data aggregators for sharing 
customer-permissioned data, typically through an application 
programming interface (API).\9\ Banks typically establish these 
agreements to share sensitive customer data through an efficient and 
secure portal. These business arrangements, using APIs, may reduce the 
use of less effective methods, such as screen scraping, and can allow 
bank customers to better define and manage the data they want to share 
with a data aggregator and limit access to unnecessary sensitive 
customer data.
    When a bank establishes a contractual relationship with a data 
aggregator to share sensitive customer data (with the bank customer's 
permission), the bank has established a business arrangement as defined 
in OCC Bulletin 2013-29. In such an arrangement, the bank's customer 
authorizes the sharing of information and the bank typically is not 
receiving a direct service or financial benefit from the third party. 
As with other business arrangements, however, banks should gain a level 
of assurance that the data aggregator is managing sensitive bank 
customer information appropriately given the potential risk.
    [cir] Screen scraping: A common method for data aggregation is 
screen scraping, in which a data aggregator uses the customer's 
credentials (that the customer has provided) to access the bank's 
website as if it were the customer. The data aggregator typically uses 
automated scripts to capture various data, which is then provided to 
the customer or a financial technology (fintech) application that 
serves the customer or some other business. Relevant agreements 
concerning customer-permissioned information sharing are generally 
between the customer and the financial service provider or the data 
aggregator and do not involve a contractual relationship with the bank.
    While screen-scraping activities typically do not meet the 
definition of business arrangement, banks should engage in appropriate 
risk management

[[Page 38198]]

for this activity. Screen-scraping can pose operational and reputation 
risks. Banks should take steps to manage the safety and soundness of 
the sharing of customer-permissioned data with third parties. Banks' 
information security monitoring systems, or those of their service 
providers, should identify large-scale screen scraping activities. When 
identified, banks should take appropriate steps to identify the source 
of these activities and conduct appropriate due diligence to gain 
reasonable assurance of controls for managing this process. These 
efforts may include research to confirm ownership and understand 
business practices of the firms; direct communication to learn security 
and governance practices; review of independent audit reports and 
assessments; and ongoing monitoring of data-sharing activities.
5. What type of due diligence and ongoing monitoring should be 
conducted when a bank enters into a contractual arrangement in which 
the bank has limited negotiating power?
    Some companies do not allow banks to negotiate changes to their 
standard contract, do not share their business resumption and disaster 
recovery plans, do not allow site visits, or do not respond to a bank's 
due diligence questionnaire. In these situations, bank management is 
limited in its ability to conduct the type of due diligence, contract 
negotiation, and ongoing monitoring that it normally would, even if the 
third-party relationship involves or supports a bank's critical 
activities.
    When a bank does not receive all the information it is seeking 
about a third party that supports the bank's critical activities, bank 
management should take appropriate actions to manage the risks in that 
arrangement. Such actions may include
    [cir] determining if the risk to the bank of having limited 
negotiating power is within the bank's risk appetite.
    [cir] determining appropriate alternative methods to analyze these 
critical third parties (e.g., use information posted on the third 
party's website).
    [cir] being prepared to address interruptions in delivery (e.g., 
use multiple payment systems, generators for power, and multiple 
telecom lines in and out of critical sites).
    [cir] performing sound analysis to support the decision that the 
specific third party is the most appropriate third party available to 
the bank.
    [cir] retaining appropriate documentation of efforts to obtain 
information and related decisions.
    [cir] confirming that contracts meet the bank's needs even if they 
are not customized contracts.
6. How should banks structure their third-party risk management 
process? (Originally FAQ No. 3 in OCC Bulletin 2017-21)
    There is no one way for banks to structure their third-party risk 
management process. OCC Bulletin 2013-29 notes that the OCC expects 
banks to adopt an effective third-party risk management process 
commensurate with the level of risk and complexity of their third-party 
relationships. Some banks have dispersed accountability for their 
third-party risk management process among their business lines. Other 
banks have centralized the management of the process under their 
compliance, information security, procurement, or risk management 
functions. No matter where accountability resides, each applicable 
business line can provide valuable input into the third-party risk 
management process, for example, by completing risk assessments, 
reviewing due diligence questionnaires and documents, and evaluating 
the controls over the third-party relationship. Personnel in control 
functions such as audit, risk management, and compliance programs 
should be involved in the management of third-party relationships. 
However, a bank structures its third-party risk management process, the 
board is responsible for overseeing the development of an effective 
third-party risk management process commensurate with the level of risk 
and complexity of the third-party relationships. Periodic board 
reporting is essential to ensure that board responsibilities are 
fulfilled.
7. OCC Bulletin 2013-29 defines third-party relationships very broadly 
and reads like it can apply to lower-risk relationships. How can a bank 
reduce its oversight costs for lower-risk relationships? (Originally 
FAQ No. 2 from OCC Bulletin 2017-21)
    Not all third-party relationships present the same level of risk. 
The same relationship may present varying levels of risk across banks. 
Bank management should determine the risks associated with each third-
party relationship and then determine how to adjust risk management 
practices for each relationship. The goal is for the bank's risk 
management practices for each relationship to be commensurate with the 
level of risk and complexity of the third-party relationship. This risk 
assessment should be periodically updated throughout the relationship. 
It should not be a one-time assessment conducted at the beginning of 
the relationship.
    The OCC expects banks to perform due diligence and ongoing 
monitoring for all third-party relationships. The level of due 
diligence and ongoing monitoring, however, may differ for, and should 
be specific to, each third-party relationship. The level of due 
diligence and ongoing monitoring should be consistent with the level of 
risk and complexity posed by each third-party relationship. For 
critical activities, the OCC expects that due diligence and ongoing 
monitoring will be robust, comprehensive, and appropriately documented. 
Additionally, for activities that bank management determines to be low 
risk, management should follow the bank's board-established policies 
and procedures for due diligence and ongoing monitoring.
8. OCC Bulletin 2013-29 states that the OCC expects more comprehensive 
and rigorous oversight and management of third-party relationships that 
involve critical activities. What third-party relationships involve 
critical activities?
    OCC Bulletin 2013-29 indicates that critical activities include 
significant bank functions (e.g., payments, clearing, settlements, and 
custody) or significant shared services (e.g., information technology) 
or other activities that
    [cir] could cause a bank to face significant risk if the third 
party fails to meet expectations.
    [cir] could have significant customer impacts.
    [cir] require significant investment in resources to implement the 
third-party relationship and manage the risk.
    [cir] could have a major impact on bank operations if the bank 
needs to find an alternate third party or if the outsourced activity 
has to be brought in-house.
    As part of ongoing monitoring, bank management should periodically 
assess existing third-party relationships to determine whether the 
nature of the activity performed constitutes a critical activity. Some 
banks assign a criticality or risk level to each third-party 
relationship, whereas others identify critical activities and those 
third parties associated with the critical activities. Either approach 
is consistent with the risk management principles in OCC Bulletin 2013-
29. Not every relationship involving critical activities is necessarily 
a critical third-party relationship. Mere involvement in a critical 
activity does not necessarily make a third party a critical third 
party. It is common for a bank to have several third-party 
relationships that support the same critical activity (e.g., a major

[[Page 38199]]

bank project or initiative), but not all of these relationships are 
critical to the success of that particular activity. Regardless of a 
bank's approach, the bank should have a sound methodology for 
designating which third-party relationships receive more comprehensive 
and rigorous oversight and risk management.
9. How should bank management determine the risks associated with 
third-party relationships?
    OCC Bulletin 2013-29 recognizes that not all third-party 
relationships present the same level of risk or criticality to a bank's 
operations. Risk does not depend on the size of the third-party 
relationship. For example, a large service provider delivering office 
supplies might be low risk; a small service provider in a foreign 
country that provides information technology services to a bank's call 
center might be considered high risk.
    Some banks categorize their third-party relationships by similar 
risk characteristics and criticality (e.g., information technology 
service providers; portfolio managers; catering, maintenance, and 
groundkeeper providers; and security providers). Bank management then 
applies different standards for due diligence, contract negotiation, 
and ongoing monitoring based on the risk profile of the category. By 
differentiating its third-party service providers by category, risk 
profile, or criticality, the bank may be able to gain efficiencies in 
due diligence, contract negotiation, and ongoing monitoring.
    Bank management should determine the risks associated with each 
third-party relationship or category of relationship. A bank's third-
party risk management should be commensurate with the level of risk and 
complexity of its third-party relationships; the higher the risk of the 
individual or category of relationships, the more robust the third-
party risk management should be for that relationship or category of 
relationships. A bank's policies regarding the extent of due diligence, 
contract negotiation, and ongoing monitoring for third-party 
relationships should show differences that correspond to different 
levels of risk.
10. Is a fintech company arrangement considered a critical activity? 
(Originally FAQ No. 7 from OCC Bulletin 2017-21)
    A bank's relationship with a fintech company may or may not involve 
critical bank activities, depending on a number of factors. OCC 
Bulletin 2013-29 provides criteria that a bank's board and management 
may use to determine what critical activities are. It is up to each 
bank's board and management to identify the critical activities of the 
bank and the third-party relationships related to these critical 
activities. The board (or committees thereof) should approve the 
policies and procedures that address how critical activities are 
identified. Under OCC Bulletin 2013-29, critical activities can include 
significant bank functions (e.g., payments, clearing, settlements, and 
custody), significant shared services (e.g., information technology), 
or other activities that
    [cir] could cause the bank to face significant risk if a third 
party fails to meet expectations.
    [cir] could have significant bank customer impact.
    [cir] require significant investment in resources to implement 
third-party relationships and manage risks.
    [cir] could have major impact on bank operations if the bank has to 
find an alternative third party or if the outsourced activities have to 
be brought in-house.
    The OCC expects banks to have more comprehensive and rigorous 
management of third-party relationships that involve critical 
activities.
11. What are a bank management's responsibilities regarding a third 
party's subcontractors?
    Third parties often enlist the help of suppliers, service 
providers, or other organizations. OCC Bulletin 2013-29 refers to these 
entities as subcontractors, which are also referred to as fourth 
parties.
    As part of due diligence and ongoing monitoring, bank management 
should determine whether a third party appropriately oversees and 
monitors its subcontractors. OCC Bulletin 2013-29 includes information 
about the types of activities bank management should conduct regarding 
how the bank's third parties oversee and monitor subcontractors.
    Third parties can fail to manage their subcontractors with the same 
rigor that the bank would have applied if it had engaged the 
subcontractor directly. To demonstrate its oversight of its 
subcontractors, a third party may provide a bank with independent 
reports or certifications. For example, as explained in FAQ No. 23, a 
SOC 1, type 2, report may be particularly useful, as standards of the 
American Institute of Certified Public Accountants require the auditor 
to determine and report on the effectiveness of the client's internal 
controls over financial reporting and associated controls to monitor 
relevant subcontractors. In other words, the SOC 1 report may provide 
bank management useful information for purposes of evaluating whether 
the third party has effective oversight of its subcontractors.
    During due diligence, bank management should evaluate the volume 
and types of subcontracted activities and the subcontractors' 
geographic locations. Bank management should determine the third 
party's ability to identify and control risks from its use of 
subcontractors and to determine if the subcontractor's quality of 
operations is satisfactory and if the subcontractor has sufficient 
controls no matter where the subcontractor's operations reside.
    Contracts should stipulate when and how the third party will notify 
the bank of its intent to use a subcontractor as well as how the third 
party will report to the bank regarding a subcontractor's conformance 
with performance measures, periodic audit results, compliance with laws 
and regulations, and other contractual obligations of the third party.
    Key areas of consideration for ongoing monitoring may include
    [cir] the nature and extent of changes to the third party's 
reliance on, exposure to, or performance of subcontractors.
    [cir] location of subcontractors and bank data.
    [cir] whether subcontractors provide services for critical 
activities.
    [cir] whether subcontractors have access to sensitive customer 
information.
    [cir] the third party's monitoring and control testing of 
subcontractors.
    The bank's inventory of third-party relationships should identify 
the third parties that use subcontractors. This is particularly 
important for a bank's third-party relationships that support the 
bank's critical activities or for higher-risk third parties.
12. When multiple banks use the same third-party service providers, can 
they collaborate \10\ to meet expectations for managing third-party 
relationships specified in OCC Bulletin 2013-29? (Originally FAQ No. 4 
from OCC Bulletin 2017-21)
    If they are using the same service providers to secure or obtain 
like products or services, banks may collaborate \11\ to meet certain 
expectations, such as performing the due diligence, contract 
negotiation, and ongoing monitoring responsibilities described in OCC 
Bulletin 2013-29. Like products and services may, however, present a 
different level of risk to each bank that uses those products or 
services, making collaboration a useful tool but insufficient to fully 
meet the bank's responsibilities under OCC Bulletin 2013-29. 
Collaboration can

[[Page 38200]]

leverage resources by distributing costs across multiple banks. In 
addition, many banks that use like products and services from 
technology or other service providers may become members of user 
groups. Frequently, these user groups create the opportunity for banks, 
particularly community banks, to collaborate with their peers on 
innovative product ideas, enhancements to existing products or 
services, and customer service and relationship management issues with 
the service providers. Banks that use a customized product or service 
may not, however, be able to use collaboration to fully meet their due 
diligence, contract negotiation, or ongoing responsibilities.
    Banks may take advantage of various tools designed to help them 
evaluate the controls of third-party service providers. In general, 
these types of tools offer standardized approaches to perform due 
diligence and ongoing monitoring of third-party service providers by 
having participating third parties complete common security, privacy, 
and business resiliency control assessment questionnaires. After third 
parties complete the questionnaires, the results can be shared with 
numerous banks and other clients. Collaboration can result in increased 
negotiating power and lower costs to banks during the contract 
negotiation phase of the risk management life cycle.
    Some community banks have joined an alliance to create a 
standardized contract with their common third-party service providers 
and improve negotiating power.
13. When collaborating to meet responsibilities for managing a 
relationship with a common third-party service provider, what are some 
of the responsibilities that each bank still needs to undertake 
individually to meet the expectations in OCC Bulletin 2013-29? 
(Originally FAQ No. 5 from OCC Bulletin 2017-21)
    While collaborative arrangements can assist banks with their 
responsibilities in the life cycle phases for third-party risk 
management, each individual bank should have its own effective third-
party risk management process tailored to each bank's specific needs. 
Some individual bank-specific responsibilities include defining the 
requirements for planning and termination (e.g., plans to manage the 
third-party service provider relationship and development of 
contingency plans in response to termination of service), as well as
    [cir] integrating the use of product and delivery channels into the 
bank's strategic planning process and ensuring consistency with the 
bank's internal controls, corporate governance, business plan, and risk 
appetite.
    [cir] assessing the quantity of risk posed to the bank through the 
third-party service provider and the ability of the bank to monitor and 
control the risk.
    [cir] implementing information technology controls at the bank.
    [cir] ongoing benchmarking of service provider performance against 
the contract or service-level agreement.
    [cir] evaluating the third party's fee structure to determine if it 
creates incentives that encourage inappropriate risk taking.
    [cir] monitoring the third party's actions on behalf of the bank 
for compliance with applicable laws and regulations.
    [cir] monitoring the third party's disaster recovery and business 
continuity time frames for resuming activities and recovering data for 
consistency with the bank's disaster recovery and business continuity 
plans.
14. Can a bank rely on reports, certificates of compliance, and 
independent audits provided by entities with which it has a third-party 
relationship?
    In conducting due diligence and ongoing monitoring, bank management 
may obtain and review various reports (e.g., reports of compliance with 
service-level agreements, reports of independent reviewers, 
certificates of compliance with International Organization for 
Standardization (ISO) standards,\12\ or SOC reports).\13\ The person 
reviewing the report, certificate, or audit should have enough 
experience and expertise to determine whether it sufficiently addresses 
the risks associated with the third-party relationship.
    OCC Bulletin 2013-29 explains that bank management should consider 
whether reports contain sufficient information to assess the third 
party's controls or whether additional scrutiny is necessary through an 
audit by the bank or other third party at the bank's request. More 
specifically, management may consider the following:
    [cir] Whether the report, certificate, or scope of the audit is 
enough to determine if the third-party's control structure will meet 
the terms of the contract.
    [cir] Whether the report, certificate, or audit is consistent with 
widely recognized standards.
    For some third-party relationships, such as those with cloud 
providers that distribute data across several physical locations, on-
site audits could be inefficient and costly. The American Institute of 
Certified Public Accountants has developed cloud-specific SOC reports 
based on the framework advanced by the Cloud Security Alliance. When 
available, these reports can provide valuable information to the bank. 
The Principles for Financial Market Infrastructures are international 
standards for payment systems, central securities depositories, 
securities settlement systems, central counterparties, and trade 
repositories. One key objective of the Principles for Financial Market 
Infrastructures is to encourage clear and comprehensive disclosure by 
financial market utilities, which are often in third-party 
relationships with banks. Financial market utilities typically provide 
disclosures to explain how their businesses and operations reflect each 
of the applicable Principles for Financial Market Infrastructures. 
Banks that have third-party relationships with financial market 
utilities can rely on these disclosures. Banks can also rely on pooled 
audit reports, which are audits paid for by a group of banks that use 
the same company for similar products or services.
15. What collaboration opportunities exist to address cyber threats to 
banks as well as to their third-party relationships? (Originally FAQ 
No. 6 from OCC Bulletin 2017-21)
    Banks may engage with a number of information-sharing organizations 
to better understand cyber threats to their own institutions as well as 
to the third parties with whom they have relationships. Banks 
participating in information-sharing forums have improved their ability 
to identify attack tactics and successfully mitigate cyber attacks on 
their systems. Banks may use the Financial Services Information Sharing 
and Analysis Center (FS-ISAC), the U.S. Computer Emergency Readiness 
Team (US-CERT), InfraGard, and other information-sharing organizations 
to monitor cyber threats and vulnerabilities and to enhance their risk 
management and internal controls. Banks also may use the FS-ISAC to 
share information with other banks.
16. Can a bank engage with a start-up fintech company with limited 
financial information? (Originally FAQ No. 8 from OCC Bulletin 2017-21)
    OCC Bulletin 2013-29 states that banks should consider the 
financial condition of their third parties during the due diligence 
stage of the life cycle before the banks have selected or entered into 
contracts or relationships with third parties. In assessing the 
financial condition of a start-up or less established fintech company, 
the bank may consider a company's access to

[[Page 38201]]

funds, its funding sources, earnings, net cash flow, expected growth, 
projected borrowing capacity, and other factors that may affect the 
third party's overall financial stability. Assessing changes to the 
financial condition of third parties is an expectation of the ongoing 
monitoring stage of the life cycle. Because it may be receiving limited 
financial information, the bank should have appropriate contingency 
plans in case the start-up fintech company experiences a business 
interruption, fails, or declares bankruptcy and is unable to perform 
the agreed-upon activities or services.
    Some banks have expressed confusion about whether third-party 
service providers need to meet a bank's credit underwriting guidelines. 
OCC Bulletin 2013-29 states that depending on the significance of the 
third-party relationship, a bank's analysis of a third party's 
financial condition may be as comprehensive as if the bank were 
extending credit to the third-party service provider. This statement 
may have been misunderstood as meaning a bank may not enter into 
relationships with third parties that do not meet the bank's lending 
criteria. There is no such requirement or expectation in OCC Bulletin 
2013-29.
17. Some third parties, such as fintechs, start-ups, and small 
businesses, are often limited in their ability to provide the same 
level of due diligence-related information as larger or more 
established third parties. What type of due diligence and ongoing 
monitoring should be applied to these companies?
    OCC Bulletin 2013-29 states that banks should consider the 
financial condition of their third parties during due diligence and 
ongoing monitoring. When third parties, such as fintechs, start-ups, 
and small businesses, have limited due diligence information, the bank 
should consider alternative information sources. The bank may consider 
a company's access to funds, its funding sources, earnings, net cash 
flow, expected growth, projected borrowing capacity, and other factors 
that may affect the third party's overall financial stability. 
Assessing changes to the financial condition of third parties is an 
expectation of the ongoing monitoring component of the bank's risk 
management. When a bank can only obtain limited financial information, 
the bank should have contingency plans in case this third party 
experiences a business interruption, fails, or declares bankruptcy and 
is unable to perform the agreed-upon activities or services.
    Bank management has the flexibility to apply different methods of 
due diligence and ongoing monitoring when a company may not have the 
same level of corporate infrastructure as larger or more established 
companies. During due diligence and before signing a contract, bank 
management should assess the risks posed by the relationship and 
understand the third party's risk management and control environment. 
The scope of due diligence and the due diligence method should vary 
based on the level of risk of the third-party relationship. While due 
diligence methods may differ, it is important for management to 
conclude that the third party has a sufficient control environment for 
the risk involved in the arrangement.
18. How can a bank offer products or services to underbanked or 
underserved segments of the population through a third-party 
relationship with a fintech company? (Originally FAQ No. 9 from OCC 
Bulletin 2017-21)
    Banks have collaborated with fintech companies in several ways to 
help meet the banking needs of underbanked or underserved consumers. 
Banks may partner with fintech companies to offer savings, credit, 
financial planning, or payments in an effort to increase consumer 
access. In some instances, banks serve only as facilitators for the 
fintech companies' products or services with one of the products or 
services coming from the banks. For example, several banks have 
partnered with fintech companies to establish dedicated interactive 
kiosks or automated teller machines (ATM) with video services that 
enable the consumer to speak directly to a bank teller. Frequently, 
these interactive kiosks or ATMs are installed in retail stores, senior 
community centers, or other locations that do not have branches to 
serve the community. Some fintech companies offer other ways for banks 
to partner with them. For example, a bank's customers can link their 
savings accounts with the fintech company's application, which can 
offer incentives to the bank's customers to save for short-term 
emergencies or achieve specific savings goals.
    In these examples, the fintech company is considered to have a 
third-party relationship with the bank that falls under the scope of 
OCC Bulletin 2013-29.
19. What should a bank consider when entering a marketplace lending 
arrangement with nonbank entities? (Originally FAQ No. 10 from OCC 
Bulletin 2017-21)
    When engaging in marketplace lending activities, a bank's board and 
management should understand the relationships among the bank, the 
marketplace lender, and the borrowers; fully understand the legal, 
strategic, reputation, operational, and other risks that these 
arrangements pose; and evaluate the marketplace lender's practices for 
compliance with applicable laws and regulations. As with any third-
party relationship, management at banks involved with marketplace 
lenders should ensure the risk exposure is consistent with their 
boards' strategic goals, risk appetite, and safety and soundness 
objectives. In addition, boards should adopt appropriate policies, 
inclusive of concentration limitations, before beginning business 
relationships with marketplace lenders.
    Banks should have the appropriate personnel, processes, and systems 
so that they can effectively monitor and control the risks inherent 
within the marketplace lending relationship. Risks include reputation, 
credit, concentrations, compliance, market, liquidity, and operational 
risks. For credit risk management, for example, banks should have 
adequate loan underwriting guidelines, and management should ensure 
that loans are underwritten to these guidelines. For compliance risk 
management, banks should not originate or support marketplace lenders 
that have inadequate compliance management processes and should monitor 
the marketplace lenders to ensure that they appropriately implement 
applicable consumer protection laws, regulations, and guidance. When 
banks enter into marketplace lending or servicing arrangements, the 
banks' customers may associate the marketplace lenders' products with 
those of the banks, thereby introducing reputation risk if the products 
underperform or harm customers. Also, operational risk can increase 
quickly if the operational processes of the banks and the marketplace 
lenders do not include appropriate limits and controls, such as 
contractually agreed-to loan volume limits and proper underwriting.
    To address these risks, banks' due diligence of marketplace lenders 
should include consulting with the banks' appropriate business units, 
such as credit, compliance, finance, audit, operations, accounting, 
legal, and information technology. Contracts or other governing 
documents should lay out the terms of service-level agreements and 
contractual obligations. Subsequent significant contractual changes 
should prompt reevaluation of bank policies, processes, and risk 
management practices.

[[Page 38202]]

20. Does OCC Bulletin 2013-29 apply when a bank engages a third party 
to provide bank customers the ability to make mobile payments using 
their bank accounts, including debit and credit cards? (Originally FAQ 
No. 11 from OCC Bulletin 2017-21)
    When using third-party service providers in mobile payment 
environments, banks are expected to act in a manner consistent with OCC 
Bulletin 2013-29. Banks often enter into business arrangements with 
third-party service providers to provide software and licenses in 
mobile payment environments. These third-party service providers also 
provide assistance to the banks and the banks' customers (for example, 
payment authentication, delivering payment account information to 
customers' mobile devices, assisting card networks in processing 
payment transactions, developing or managing mobile software (apps) or 
hardware, managing back-end servers, or deactivating stolen mobile 
phones).
    Many bank customers expect to use transaction accounts and credit, 
debit, or prepaid cards issued by their banks in mobile payment 
environments. Because almost all banks issue debit cards and offer 
transaction accounts, banks frequently participate in mobile payment 
environments even if they do not issue credit cards. Banks should work 
with mobile payment providers to establish processes for authenticating 
enrollment of customers' account information that the customers provide 
to the mobile payment providers.
21. May a community bank outsource the development, maintenance, 
monitoring, and compliance responsibilities of its compliance 
management system? (Originally FAQ No. 12 from OCC Bulletin 2017-21)
    Banks may outsource some or all aspects of their compliance 
management systems to third parties, so long as banks monitor and 
ensure that third parties comply with current and subsequent changes to 
consumer laws and regulations. Some banks outsource maintenance or 
monitoring or use third parties to automate data collection and 
management processes (for example, to file compliance reports under the 
Bank Secrecy Act or for mortgage loan application processing or 
disclosures). The OCC expects all banks to develop and maintain an 
effective compliance management system and provide fair access to 
financial services, ensure fair treatment of customers, and comply with 
consumer protection laws and regulations. Strong compliance management 
systems include appropriate policies, procedures, practices, training, 
internal controls, and audit systems to manage and monitor compliance 
processes as well as a commitment of appropriate compliance resources.
22. How should bank management address third-party risk management when 
using a third-party model or a third party to assist with model risk 
management?
    The principles in OCC Bulletin 2013-29 are relevant when a bank 
uses a third-party model or uses a third party to assist with model 
risk management, as are the principles in OCC Bulletin 2011-12, ``Sound 
Practices for Model Risk Management: Supervisory Guidance on Model Risk 
Management.'' Accordingly, third-party models should be incorporated 
into the bank's third-party risk management and model risk management 
processes. Bank management should conduct appropriate due diligence on 
the third-party relationship and on the model itself.
    If the bank lacks sufficient expertise in-house, a bank may decide 
to engage external resources (i.e., a third party) to help execute 
certain activities related to model risk management and the bank's 
ongoing third-party monitoring responsibilities. These activities could 
include model validation and review, compliance functions, or other 
activities in support of internal audit. Bank management should 
understand and evaluate the results of validation and risk control 
activities that are conducted by third parties. Bank management 
typically designates an internal party to
    [cir] verify that the agreed upon scope of work has been completed 
by the third party.
    [cir] evaluate and track identified issues and ensure they are 
addressed.
    [cir] make sure completed work is incorporated into the bank's 
model risk management and third-party risk management processes.
    Bank management should conduct a risk-based review of each third-
party model to determine whether it is working as intended and if the 
existing validation activities are sufficient. Banks should expect the 
third party to conduct ongoing performance monitoring and outcomes 
analysis of the model, disclose results to the bank, and make 
appropriate modifications and updates to the model over time, if 
applicable.
    Many third-party models can be customized by a bank to meet its 
needs. A bank's customization choices should be documented and 
justified as part of the validation. If third parties provide input 
data or assumptions, the relevance and appropriateness of the data or 
assumptions should be validated. Bank management should periodically 
conduct an outcomes analysis of the third-party model's performance 
using the bank's own outcomes.
    Many third parties provide banks with reports of independent 
certifications or validations of the third-party model. Validation 
reports provided by a third-party model provider should identify model 
aspects that were reviewed, highlighting potential deficiencies over a 
range of financial and economic conditions (as applicable), and 
determining whether adjustments or other compensating controls are 
warranted. Effective validation reports include clear executive 
summaries, with a statement of model purpose and a synopsis of model 
validation results, including major limitations and key assumptions. 
Validation reports should not be taken at face value. Bank management 
should understand any of the limitations experienced by the validator 
in assessing the processes and codes used in the models.
    As part of the planning and termination phases of the third-party 
risk management life cycle, the bank should have a contingency plan for 
instances when the third-party model is no longer available or cannot 
be supported by the third party. Bank management should have as much 
knowledge in-house as possible, in case the third party or the bank 
terminates the contract, or if the third party is no longer in 
business.
23. Can banks obtain access to interagency technology service 
providers' (TSP) reports of examination? (Originally FAQ No. 13 from 
OCC Bulletin 2017-21)
    TSP reports of examination\14\ are available only to banks that 
have contractual relationships with the TSPs at the time of the 
examination. Because the OCC's (and other federal banking regulators') 
statutory authority is to examine a TSP that enters into a contractual 
relationship with a regulated financial institution, the OCC (and other 
federal banking regulators) cannot provide a copy of a TSP's report of 
examination to financial institutions that are either considering 
outsourcing activities to the examined TSP or that enter into a 
contract after the date of examination.
    Banks can request TSP reports of examination through the banks' 
respective OCC supervisory office. TSP reports of examination are 
provided on a request basis. The OCC may, however,

[[Page 38203]]

proactively distribute TSP reports of examination in certain situations 
because of significant concerns or other findings to banks with 
contractual relationships with that particular TSP.
    Although a bank may not share a TSP report of examination or the 
contents therein with other banks, a bank that has not contracted with 
a particular TSP may seek information from other banks with information 
or experience with a particular TSP as well as information from the TSP 
to meet the bank's due diligence responsibilities.
24. Can a bank rely on a third party's Service Organization Control 
(SOC) report, prepared in accordance with the American Institute of 
Certified Public Accountants Statement on Standards for Attestation 
Engagements No. 18 (SSAE 18)? (Originally FAQ No. 14 from OCC Bulletin 
2017-21).
    In meeting its due diligence and ongoing monitoring 
responsibilities, a bank may review a third party's SOC 1 report 
prepared in accordance with SSAE 18 to evaluate the third party's 
client(s)' internal controls over financial reporting, including 
policies, processes, and internal controls. If a third party uses 
subcontractors (also referred to as fourth parties), a bank may find 
the third party's SOC 1 type 2 report particularly useful, as SSAE 18 
requires the auditor to determine and report on the effectiveness of 
controls the third party has implemented to monitor the controls of the 
subcontractor. In other words, the SOC 1 type 2 report will address the 
question as to whether the third party has effective oversight of its 
subcontractors. A bank should consider whether an SOC 1 type 2 report 
contains sufficient information and is sufficient in scope to assess 
the third party's risk environment or whether additional audit or 
review is required for the bank to properly assess the third party's 
control environment.
25. How may a bank use third-party assessment services (sometimes 
referred to as third-party utilities)?
    Third-party assessment service companies have been formed to help 
banks with third-party risk management, including due diligence and 
ongoing monitoring. These companies offer banks a standardized 
questionnaire with responses from a variety of third parties 
(particularly information technology-related companies). The benefit of 
this arrangement is that the third party can provide the same 
information to many banks using a standardized questionnaire. Banks 
often pay a fee to the utility to receive the questionnaire. The 
utility may provide other services in addition to the questionnaire. 
This form of collaboration can help banks gain efficiencies in due 
diligence and ongoing monitoring. When a bank uses a third-party 
utility, it has a business arrangement with the utility, and the 
utility should be incorporated into the bank's third-party risk 
management process.
    Bank management should understand how the information contained 
within the utility report covers the specific services that the bank 
has obtained from the third party and meets the bank's due diligence 
and ongoing monitoring needs. For example, in some cases a standardized 
questionnaire may not be enough if the third party is supporting a 
critical activity at the bank, as the information requested on the 
questionnaire may not be specific to the bank. In these circumstances, 
bank management may need additional information from the third party.
26. How does a bank's board of directors approve contracts with third 
parties that involve critical activities?
    OCC Bulletin 2013-29 indicates that a bank's board should approve 
contracts with third parties that involve critical activities. This 
statement was not meant to imply that the board must read or be 
involved with the negotiation of each of these contracts. The board 
should receive sufficient information to understand the bank's strategy 
for use of third parties to support products, services, and operations 
and understand key dependencies, costs, and limitations that the bank 
has with these third parties. This allows the board to understand the 
benefits and risks associated with engaging third parties for critical 
services and knowingly approve the bank's contracts. The board may use 
executive summaries of contracts in their review and may delegate 
actual approval of contracts with third parties that involve critical 
activities to a board committee or senior management.
27. How should a bank handle third-party risk management when obtaining 
alternative data from a third party?
    Banks may be using or contemplating using a broad range of 
alternative data in credit underwriting, fraud detection, marketing, 
pricing, servicing, and account management.\15\ For the purpose of this 
FAQ, alternative data mean information not typically found in the 
consumer's credit files at the nationwide consumer reporting agencies 
or customarily provided by consumers as part of applications for 
credit.\16\
    When contemplating a third-party relationship that may involve the 
use of alternative data by or on behalf of the bank, bank management 
should: \17\
---------------------------------------------------------------------------

    \1\ As used in this bulletin, ``banks'' refers collectively to 
national banks, federal savings associations, and federal branches 
and agencies of foreign banking organizations.
    \2\ For more information, refer to OCC Bulletin 2019-43, 
``Appraisals: Appraisal Management Company Registration 
Requirements.''
    \3\ Refer to OCC Bulletin 2003-12, ``Interagency Policy 
Statement on Internal Audit and Internal Audit Outsourcing: Revised 
Guidelines on Internal Audit and its Outsourcing.''
    \4\ If a bank considers these activities to be low risk, 
management should refer to FAQ No. 7 in this bulletin for more 
information about the extent of due diligence, contract negotiation, 
and ongoing monitoring that should be conducted for third-party 
relationships that support or involve low-risk bank activities.
    \5\ Refer to FAQ No. 11 in this bulletin for more information 
about a third party's subcontractors.
    \6\ Refer to FAQ No. 14 in this bulletin for more information on 
bank reliance on reports, certificates of compliance, and 
independent audits provided by entities with which the bank has a 
third-party relationship.
    \7\ Data aggregators are entities that access, aggregate, share, 
or store consumer financial account and transaction data that they 
acquire through connections to financial services companies. 
Aggregators are often intermediaries between the financial 
technology (fintech) applications that consumers use to access their 
data and the sources of data at financial services companies. An 
aggregator may be a generic provider of data to consumer fintech 
application providers and other third parties, or the aggregator may 
be part of a company providing branded and direct services to 
consumers. Refer to U.S. Department of the Treasury report ``A 
Financial System That Creates Economic Opportunities: Nonbank 
Financials, Fintech, and Innovation'' for more information on data 
aggregators.
    \8\ Refer to OCC Bulletin 2001-12, ``Bank-Provided Account 
Aggregation Services: Guidance to Banks'' (national banks) for more 
information on direct relationships. While the OCC has not made OCC 
Bulletin 2001-12 applicable to federal savings associations, federal 
savings associations may nonetheless find the information in the 
bulletin relevant.
    \9\ An API refers to a set of protocols that links two or more 
systems to enable communication and data exchange between them. An 
API for a particular routine can easily be inserted into code that 
uses that API in the software. An example would be the Financial 
Data Exchange's ``FDX API Standard.''
    \10\ Refer to OCC News Release 2015-1, ``Collaboration Can 
Facilitate Community Bank Competitiveness, OCC Says,'' January 13, 
2015.
    \11\ Any collaborative activities among banks must comply with 
antitrust laws. Refer to the Federal Trade Commission and U.S. 
Department of Justice's ``Antitrust Guidelines for Collaborations 
Among Competitors.''
    \12\ Refer to ISO 22301:2012, ``Societal Security--Business 
Continuity Management Systems--Requirements,'' for more information 
regarding the ISO's standards for business continuity management.
    \13\ For more information on types of audits and control 
reviews, refer to appendix B of the ``Internal and External Audits'' 
booklet of the Comptroller's Handbook.
    \14\ The OCC conducts examinations of services provided by 
significant TSPs based on authorities granted by the Bank Service 
Company Act, 12 U.S.C. 1867. These examinations typically are 
conducted in coordination with the Board of Governors of the Federal 
Reserve Board, Federal Deposit Insurance Corporation, and other 
banking agencies with similar authorities. The scope of examinations 
focuses on the services provided and key technology and operational 
controls communicated in the FFIEC Information Technology 
Examination Handbook and other regulatory guidance.
    \15\ Existing OCC and interagency guidance potentially 
applicable to alternative data includes ``Policy Statement on 
Discrimination in Lending'' (59 FR 18266 (April 15, 1994)); OCC 
Bulletin 1997-24, ``Credit Scoring Models: Examination Guidance;'' 
OCC Bulletin 2011-12, ``Sound Practices for Model Risk Management: 
Supervisory Guidance on Model Risk Management;'' OCC Bulletin 2013-
29, ``Third-Party Relationships: Risk Management;'' and OCC Bulletin 
2017-43, ``New, Modified, or Expanded Bank Products and Services: 
Risk Management Principles.''
    \16\ Refer to OCC Bulletin 2019-62, ``Consumer Compliance: 
Interagency Statement on the Use of Alternative Data in Credit 
Underwriting,'' for more information about compliance risk 
management considerations regarding the use of alternative data. 
Also refer to Consumer Financial Protection Bureau (CFPB), ``Request 
for Information Regarding Use of Alternative Data and Modeling 
Techniques in the Credit Process,'' 82 FR 11183 (February 21, 2017).
    \17\ The information in this list is consistent with the 
Interagency Policy Statement on the Use of Alternative Data in 
Credit Underwriting.

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     Conduct due diligence on third parties before selecting 
and entering into contracts. The degree of due diligence should be 
commensurate with the risk to the bank from the third-party 
relationship.
     ensure that alternative data usage comports with safe and 
sound operations. Appropriate data controls include rigorous assessment 
of the quality and suitability of data to support prudent banking 
operations. Additionally, the OCC's model risk management guidance 
contains important principles, including those that may leverage 
alternative data.
     analyze relevant consumer protection laws and regulations 
to understand the opportunities, risks, and compliance requirements 
before using alternative data. Based on that analysis, data that 
present greater compliance risk warrant more robust compliance 
management. Robust compliance management includes appropriate testing, 
monitoring, and controls to ensure that compliance risks are understood 
and addressed.
     conduct ongoing monitoring on third parties in a manner 
and with a frequency commensurate with the risk to the bank from the 
third-party relationship.
     discuss its plans with an OCC portfolio manager, examiner-
in-charge, or supervisory office if the use of alternative data from a 
third-party relationship constitutes a substantial deviation from the 
bank's existing business plans or material changes in the bank's use of 
alternative data.

Michael J. Hsu,
Acting Comptroller of the Currency.
    By order of the Board of Governors of the Federal Reserve System
Ann Misback,
Secretary of the Board. Federal Deposit Insurance Corporation.
    Dated at Washington, DC, on July 12, 2021.
James P. Sheesley,
Assistant Executive Secretary.
BILLING CODE 6210-01-P; 6714-01-P; 4810-33-P
[FR Doc. 2021-15308 Filed 7-16-21; 8:45 am]
BILLING CODE 4810-33-6210-01-6714-01P