[Federal Register Volume 74, Number 92 (Thursday, May 14, 2009)]
[Rules and Regulations]
[Pages 22639-22646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10009]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Rules
and Regulations
[[Page 22639]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 41
[Docket ID OCC-2009-0001]
RIN 1557-AD14
FEDERAL RESERVE SYSTEM
12 CFR Part 222
[Regulation V; Docket No. R-1203, R-1255]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 334
RIN 3064-AC83; 3064-AD00
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 571
[Docket ID OTS-2008-0024]
RIN 1550-AC30
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 717
RIN 3133-AC90 and RIN 3133-AD00
FEDERAL TRADE COMMISSION
16 CFR Parts 641, 681, and 698
RIN 3084-AA94
Fair Credit Reporting Affiliate Marketing Regulations; Identity
Theft Red Flags and Address Discrepancies Under the Fair and Accurate
Credit Transactions Act of 2003
AGENCIES: Office of the Comptroller of the Currency, Treasury (OCC);
Board of Governors of the Federal Reserve System (Board); Federal
Deposit Insurance Corporation (FDIC); Office of Thrift Supervision,
Treasury (OTS); National Credit Union Administration (NCUA); and
Federal Trade Commission (Commission).
ACTION: Final rules; technical corrections.
-----------------------------------------------------------------------
SUMMARY: The OCC, Board, FDIC, OTS and NCUA published in the Federal
Register final rules to implement the affiliate marketing provisions of
the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) on
November 7, 2007. The Commission published its final affiliate
marketing rule on October 30, 2007. The OCC, Board, FDIC, OTS, NCUA and
the Commission (Agencies) published in the Federal Register final rules
and guidelines to implement the identity theft red flags and address
discrepancy provisions of the FACT Act on November 9, 2007. The
technical corrections included in this Federal Register document revise
one of the affiliate marketing model forms and the instructions to the
model forms to correct inadvertent omissions and conform the model
forms and the instructions to the affiliate marketing rules, and
correct minor errors in the identity theft red flags and address
discrepancy rules and guidelines. The substantive requirements of the
affiliate marketing and the identity theft red flags and address
discrepancy rules are unchanged.
DATES: These final rules are effective May 14, 2009, except for the
amendments in instructions 4, 10, 15, 20, 26, and 34 relating to
appendices C to 12 CFR parts 41, 222, 334, 571, 717 and 16 CFR part
698, respectively, which are effective January 1, 2010.
FOR FURTHER INFORMATION CONTACT:
OCC: Jon Mitchell, Attorney, Legislative and Regulatory Activities
Division, (202) 874-5090, Office of the Comptroller of the Currency,
250 E Street, SW., Washington, DC 20219.
Board: Amy E. Burke, Senior Attorney, or Jelena McWilliams,
Attorney, Division of Consumer and Community Affairs, (202) 452-3667 or
(202) 452-2412; or Kara Handzlik, Attorney, Legal Division, (202) 452-
3852, Board of Governors of the Federal Reserve System, 20th and C
Streets, NW., Washington, DC 20551. For users of a Telecommunications
Device for the Deaf (TDD) only, contact (202) 263-4869.
FDIC: Richard M. Schwartz, Counsel, Legal Division, (202) 898-7424;
Jeffrey M. Kopchik, Senior Policy Analyst, (202) 898-3872, or Samuel
Frumkin, Senior Policy Analyst, (202) 898-6602, Division of Supervision
and Consumer Protection, Federal Deposit Insurance Corporation, 550
17th Street, NW., Washington, DC 20429.
OTS: Suzanne McQueen, Consumer Regulations Analyst, Compliance and
Consumer Protection Division, (202) 906-6459; April Breslaw, Director,
Consumer Regulations, (202) 906-6989; or Richard Bennett, Senior
Compliance Counsel, Regulations and Legislation Division, (202) 906-
7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC
20552.
NCUA: Linda Dent, Attorney, or Regina Metz, Attorney, Office of
General Counsel, 703-518-6540, National Credit Union Administration,
1775 Duke Street, Alexandria, VA 22314-3428.
Commission: Anthony Rodriguez (Affiliate Marketing Rule) or Cora
Han (Identity Theft Red Flags Rules), Attorneys, Division of Privacy
and Identity Protection, Bureau of Consumer Protection, (202) 326-2252,
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION:
Technical Corrections to Affiliate Marketing Final Rules
This final rule includes technical corrections to the affiliate
marketing rules (72 FR 61424 and 72 FR 62910) that conform the model
notices and instructions to the model notices to the requirements of
the affiliate marketing rules. The first technical correction revises
current Model Form C-5, one of several optional safe harbor forms
provided in the Agencies' regulations, to include language about the
duration of a consumer's opt-out. Pursuant to Sec. --.23(a)(1)(v) of
the affiliate marketing rules, an affiliate marketing opt-out notice
must disclose accurately ``[t]hat the consumer's election will apply
for the specified period of time stated in the notice and, if
applicable, that the consumer will be allowed to renew the election
once that period expires.'' \1\
[[Page 22640]]
Model Form C-5 is the model form that can be used by a person to
provide a voluntary opt-out from all marketing by that person and its
affiliates. The version of Model Form C-5 promulgated in the fall of
2007 does not include any information about the duration of the opt-
out. By contrast, Model Forms C-1 and C-2 include model language that
explains the duration of the consumer's opt-out choice.
---------------------------------------------------------------------------
\1\ The OCC, Board, FDIC, OTS and NCUA placed the final
regulations implementing section 214 of the FACT Act in the part of
their regulations that implement the FCRA--12 CFR parts 41, 222,
334, 571, and 717, respectively. The Commission placed the final
regulations implementing section 214 of the FACT Act in 16 CFR parts
680 and 698. For ease of reference, the discussion in this preamble
about technical corrections to the affiliate marketing final rules
uses the shared numerical suffix of each of these agencies'
regulations.
---------------------------------------------------------------------------
In order to ensure that the content of the model form is consistent
with the requirements of the regulation, the Agencies are inserting
bracketed language into Model Form C-5 that a person may use to
disclose the duration of the opt-out period. The new language is based
on the assumption that persons providing to consumers a broader right
to opt out will not limit the duration of the opt-out period and will
allow any voluntary ``no-marketing'' opt-out to remain in effect until
the consumer changes his or her choice. If that is not the case, then
alternate language accurately describing the duration of the opt-out
period must be substituted for the new bracketed language in the
revised Model Form C-5.
The version of Model Form C-5 promulgated in the fall of 2007 is
being renumbered as Model Form C-6. To give industry adequate time to
revise their model forms, the safe harbor for Model Form C-6 will
remain in effect until January 1, 2010.
The second technical correction involves joint relationships.
Section--.23(a)(2) of the affiliate marketing rules permits a single
opt-out notice to be provided to joint consumers and specifies that the
opt-out notice must disclose how an opt-out direction by a joint
consumer will be treated. The model forms and instructions to the model
forms currently are silent on joint relationships.
In order to ensure that the instructions are consistent with the
requirements of the regulation, the Agencies are inserting an
additional provision into the instructions for acceptable changes to
the model forms clarifying that a person may add to the model forms a
disclosure regarding the treatment of opt-outs by joint consumers to
comply with the requirements of Sec. --.23(a)(2). Where the notice
pertains to a joint account, the person must include such language
under Sec. --.23(a)(2). Where the notice pertains to an account that is
not a joint account, the person may, but is not required to, include
language on joint accounts. A statement about joint accounts in an opt-
out notice must be clear, conspicuous, and concise, and must accurately
reflect the institution's policy regarding the treatment of opt-outs by
joint consumers. For example, where the notice pertains to a joint
account and the opt-out will apply to everyone on the account, the
statement may provide that, for joint accounts, the opt-out will apply
to everyone on the account.
Technical Corrections to Identity Theft Red Flags and Address
Discrepancies Final Rules
The technical corrections to the identity theft red flags and
address discrepancy rules included in this final rule clarify that
address discrepancy notices are provided only by the nationwide CRAs
described in section 603(p) of the FCRA (15 U.S.C. 1681a(p)). These
corrections to Sec. --.82 conform the address discrepancy rules to the
statute.\2\
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\2\ The OCC, Board, FDIC, OTS and NCUA placed the final
regulations implementing sections 114 and 315 in the part of their
regulations that implement the FCRA--12 CFR parts 41, 222, 334, 571,
and 717, respectively. In addition, the FDIC cross-references the
regulations and guidelines in 12 CFR part 364. For ease of
reference, the discussion in this preamble about the technical
corrections to the address discrepancy rule and the identity theft
rules uses the shared numerical suffix of each of these agency's
regulations. The Commission has placed the final regulations and
guidelines in the part of its regulations implementing the FCRA as
follows: 16 CFR 641.1 for the address discrepancy rule, 16 CFR 681.1
for the red flags rule, and 16 CFR 681.2 for the card issuer rule.
In addition, the Commission uses different numerical suffixes for
these rules that equate to the numerical suffixes discussed in this
preamble and the preamble to the final rule as follows: preamble
suffix .82 = 16 CFR 641.1, preamble suffix .90 = 16 CFR 681.1, and
preamble suffix .91 = 16 CFR 681.2. Because these technical
amendments are placing the address discrepancy rule into its own
part of the CFR, part 641, and are reordering the Commission's red
flags rule and card issuer rule as 16 CFR 681.1 and 681.2,
respectively, these technical amendments pertain to the Commission's
address discrepancy, red flags, and card issuer rules.
---------------------------------------------------------------------------
This final rule also corrects four minor typographical errors in
the final rules and supplement to the guidelines implementing section
114 of the FACT Act (72 FR 63718).
This final rule also corrects a minor error in the scope section of
the Board's final rules regarding identity theft red flags. The Board's
correction to Sec. 222.90(a) clarifies that operating subsidiaries of
member banks of the Federal Reserve System (other than national banks)
that are functionally regulated within the meaning of section 5(c)(5)
of the Bank Holding Company Act, as amended (12 U.S.C. 1844(c)(5)) are
not covered by the Board's rule.
This final rule places section 681.1 of the Commission's final rule
into its own separate part of the CFR, part 641, in order to clarify
that it pertains to the duties of users of consumer reports regarding
address discrepancies. Current sections 681.2 and 681.3, which pertain
to identity theft, are reordered as sections 681.1 and 681.2
respectively, and references to these sections in the appendices are
corrected as necessary.
The final rule further revises a caption of the NCUA's final rule
to clarify which section pertains to the duties of card issuers
regarding changes of address.
Basis for the Corrections
The Agencies are issuing these technical corrections as final
rules. Under the Administrative Procedure Act, 5 U.S.C. 551, et seq.,
publication of a notice of proposed rulemaking is not required for
interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice, or when an agency for good cause
finds (and incorporates the finding and a brief statement of reasons in
the rules issued) that notice and public procedures are impracticable,
unnecessary, or contrary to the public interest. In addition, a rule
may be made effective less than thirty days from publication when an
agency finds good cause for such action. 5 U.S.C. 553(b)(A)-(B) and
(d)(3). The Agencies find that a notice of proposed rulemaking is not
required. First, many of the revisions are interpretative in that they
indicate how substantive requirements of the rules apply. In addition,
notice is unnecessary because the technical corrections do not change
or modify the substantive requirements of the provisions amended.
Further, the Agencies find good cause for an immediate effective date
because it is unnecessary and contrary to the public interest to delay
the effectiveness of those revisions.
With respect to the affiliate marketing rule, the corrections do
not establish new regulatory requirements. They merely clarify, through
revisions to the model forms and instructions to the model forms, how
persons can meet the requirements of the final rules. The Agencies
unintentionally omitted the clarifications to the model form and
instructions to the model forms and find that it would be potentially
misleading, and therefore contrary to the public interest, to delay
issuance of the revised model form and instructions to the model forms
that conform to the rule.
The Agencies recognize that industry may be relying on the safe
harbor
[[Page 22641]]
provided by the version of Model Form C-5 promulgated in the fall of
2007. See 72 FR 62910. In order to allow persons subject to the rules
adequate time to revise applicable opt-out forms to conform to the
revised Model Form C-5, the safe harbor for Model Form C-5 promulgated
in the fall of 2007, which is being renumbered as Model Form C-6, will
remain in effect until January 1, 2010. Use of the revised Model Form
C-5 published today complies with the requirements of the rule
effective immediately. Thus, until January 1, 2010, the safe harbor is
available for a person that uses either form. On and after January 1,
2010, the safe harbor is available only for use of revised Model Form
C-5.
Because the corrections to the final rules and supplement to the
guidelines implementing section 114 of the FACT Act are typographical
in nature, or simply clarify the rule by conforming it to the statute,
the Agencies find that it is unnecessary to publish a notice of
proposed rulemaking or to delay the effective date of the corrections.
Furthermore, the Board finds that it is unnecessary to publish a notice
of proposed rulemaking to include a clarification that was
unintentionally omitted from the scope section of the Board's final
rules regarding identity theft red flags. The addition of language
specifying the types of operating subsidiaries that are covered by the
Board's rules provides more precise clarification in the regulation of
the scope of the Board's statutory enforcement authority of the rule.
15 U.S.C. 1681s. In addition, the FTC finds that it is unnecessary to
publish a notice of proposed rulemaking regarding its placing of
section 681.1 of the Commission's final rule into a separate part of
the CFR, part 641, for purposes of clarifying that this section
pertains to the duties of users of consumer reports regarding address
discrepancies. The clarification does not change the text or scope of
the regulation.
Further, section 302 of the Riegle Community Development and
Regulatory Improvement Act of 1994 provides that federal banking agency
regulations that impose additional reporting, disclosure, or other new
requirements may not take effect before the first day of the quarter
following publication, unless the agency determines, for good cause
published with the regulation, that the regulation should become
effective before such time. 12 U.S.C. 4802. For the same reasons as
already discussed, the OCC, Board, FDIC, and OTS find good cause for an
immediate effective date on grounds that it is unnecessary and contrary
to the public interest to delay the effectiveness of those revisions.
Regulatory Analysis
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3506; 5 CFR 1320 Appendix A.1), the Agencies have reviewed the final
rules. The rules contain no collections of information pursuant to the
Paperwork Reduction Act.
Executive Order 12866
The OCC and OTS have determined that their respective portions of
the final rules are not significant regulatory actions under Executive
Order 12866.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) does not apply to a rulemaking
where a general notice of proposed rulemaking is not required. 5 U.S.C.
603 and 604. As noted previously, the Agencies have determined that it
is unnecessary to publish a notice of proposed rulemaking for these
final rules. Accordingly, the RFA's requirements relating to an initial
and final regulatory flexibility analysis do not apply.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law
104-4 (UMRA), requires that an agency prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector of $100 million
or more (adjusted annually for inflation) in any one year. The
inflation adjusted threshold is $133 million or more. If a budgetary
impact statement is required, section 205 of the UMRA also requires an
agency to identify and consider a reasonable number of regulatory
alternatives before promulgating a rule. The OCC and OTS have each
determined that their respective portions of these final rules will not
result in expenditures by State, local, and tribal governments, in the
aggregate, or by the private sector, of $133 million or more in any one
year. Accordingly, these final rules are not subject to section 202 of
the UMRA.
Executive Order 13132
The OCC and OTS have each determined that their respective portions
of these final rules do not have any Federalism implications as
required by Executive Order 13132.
Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their actions on state and local interests. NCUA
voluntarily complies with the Executive Order and has determined that
the final rules do not have federalism implications for purposes of the
Executive Order.
NCUA: Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA)
The SBREFA does not apply to a rulemaking where a final regulatory
flexibility analysis under section 604 of title 5, United States Code
is not required. 5 U.S.C. 601 note. As noted above, the Agencies have
determined the requirements for a final regulatory flexibility analysis
do not apply. Accordingly, no SBREFA reporting requirement is required.
NCUA: The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
NCUA has determined that this rule would not affect family well-
being within the meaning of section 654 of the Treasury and General
Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681
(1998).
List of Subjects
12 CFR Part 41
Banks, Banking, Consumer protection, National banks, Reporting and
recordkeeping requirements.
12 CFR Part 222
Banks, Banking, Consumer protection, Fair Credit Reporting Act,
Holding companies, Privacy, Reporting and recordkeeping requirements,
State member banks.
12 CFR Part 334
Administrative practice and procedure, Bank deposit insurance,
Banks, Banking, Reporting and recordkeeping requirements, Safety and
soundness.
12 CFR Part 571
Consumer protection, Credit, Fair Credit Reporting Act, Privacy,
Reporting and recordkeeping requirements, Savings associations.
12 CFR Part 717
Consumer protection, Credit unions, Fair credit reporting, Privacy,
Reporting and recordkeeping requirements.
16 CFR Part 641
Consumer reports, Users of consumer reports, Consumer reporting
agencies, Information furnishers.
[[Page 22642]]
16 CFR Part 681
Fair Credit Reporting Act, Consumer reports, Consumer reporting
agencies, Credit, Creditors, Information furnishers, Identity theft,
Trade practices.
16 CFR Part 698
Consumer reports, Consumer reporting agencies, Credit, Fair Credit
Reporting Act, Trade practices.
Title 12
Department of the Treasury
Office of the Comptroller of the Currency
0
For the reasons set forth in the preamble, 12 CFR part 41 is amended as
follows:
PART 41--FAIR CREDIT REPORTING
0
1. The authority citation for part 41 continues to read as follows:
Authority: 12 U.S.C. 1 et seq., 24 (Seventh), 93a, 481, 484, and
1818; 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t,
1681w, 6801, and 6805; Sec. 214, Public Law 108-159, 117 Stat. 1952.
Sec. 41.82 [Amended]
0
2. Section 41.82 is amended by:
0
a. Adding in paragraph (a) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
b. Adding in paragraph (b) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
c. Removing in paragraph (c)(2)(i)(A) the phrase ``Customer Information
Program'' and adding in its place the phrase ``Customer Identification
Program'';
0
d. Adding in paragraph (d)(1) introductory text after the second
occurrence of the phrase ``consumer reporting agency'' the phrase
``described in 15 U.S.C. 1681a(p)''; and
0
e. Adding in paragraph (d)(3) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)''.
0
3. Appendix C to Part 41 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph b.10 and new Model Form C-5 to read as follows:
Appendix C to Part 41--Model Forms for Opt-Out Notices
* * * * *
b. * * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 41.23(a)(2) of this part.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www._.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 41 [Amended]
0
4. Effective January 1, 2010, remove newly redesignated Model Form C-6.
Appendix J to Part 41, Supplement A [Amended]
0
5. Appendix J to Part 41, Supplement A, is amended by:
0
a. Removing in paragraph 15 the phrase ``account number'' and adding in
its place the word ``address'';
0
b. Removing in paragraph 15 the phrase ``other customers'' and adding
in its place the phrase ``by other customers''; and
0
c. Removing in paragraph 20 introductory text the phrase ``patterns of
fraud patterns'' and adding in its place the phrase ``patterns of
fraud''.
Board of Governors of the Federal Reserve System
0
For the reasons set forth in the preamble, 12 CFR part 222 is amended
as follows:
PART 222--FAIR CREDIT REPORTING (REGULATION V)
0
6. The authority citation for part 222 continues to read as follows:
Authority: 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-2,
1681s-3, 1681t, and 1681w; Secs. 3 and 214, Pub. L. 108-159, 117
Stat. 1952.
Sec. 222.82 [Amended]
0
7. Section 222.82 is amended by:
0
a. Adding in paragraph (a) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
b. Adding in paragraph (b) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
c. Removing in paragraph (c)(2)(i)(A) the phrase ``Customer Information
Program'' and adding in its place the phrase ``Customer Identification
Program'';
0
d. Adding in paragraph (d)(1) introductory text after the second
occurrence of the phrase ``consumer reporting agency'' the phrase
``described in 15 U.S.C. 1681a(p)''; and
0
e. Adding in paragraph (d)(3) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)''.
Sec. 222.90 [Amended]
0
8. Section 222.90(a) is amended by adding after the phrase ``and their
respective operating subsidiaries'' the phrase ``that are not
functionally regulated within the meaning of section 5(c)(5) of the
Bank Holding Company Act, as amended (12 U.S.C. 1844(c)(5))''.
0
9. Appendix C to Part 222 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph b.10 and new Model Form C-5 to read as follows:
Appendix C to Part 222--Model Forms for Opt-Out Notices
b. * * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 222.23(a)(2) of this part.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www._.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 222 [Amended]
0
10. Effective January 1, 2010, remove newly redesignated Model Form C-
6.
Appendix J to Part 222, Supplement A [Amended]
0
11. Appendix J to Part 222, Supplement A, is amended by:
0
a. Removing in paragraph 15 the phrase ``account number'' and adding in
its place the word ``address'';
0
b. Removing in paragraph 15 the phrase ``other customers'' and adding
in its place the phrase ``by other customers''; and
[[Page 22643]]
0
c. Removing in paragraph 20 the phrase ``patterns of fraud patterns''
and adding in its place the phrase ``patterns of fraud''
Federal Deposit Insurance Corporation
0
For the reasons set forth in the preamble, 12 CFR part 334 is amended
as follows:
PART 334--FAIR CREDIT REPORTING
0
12. The authority citation for part 334 continues to read as follows:
Authority: 12 U.S.C. 1818, 1819 (Tenth) and 1831p-1; 15 U.S.C.
1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t, 1681w, 6801 and
6805, Public Law 108-159, 117 Stat. 1952.
Sec. 334.82 [Amended]
0
13. Section 334.82 is amended by:
0
a. Adding in paragraph (a) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
b. Adding in paragraph (b) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
c. Removing in paragraph (c)(2)(i)(A) the phrase ``Customer Information
Program'' and adding in its place the phrase ``Customer Identification
Program'';
0
d. Adding in paragraph (d)(1) introductory text after the second
occurrence of the phrase ``consumer reporting agency'' the phrase
``described in 15 U.S.C. 1681a(p)''; and
0
e. Adding in paragraph (d)(3) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)''.
0
14. Appendix C to Part 334 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph b.10 and new Model Form C-5 to read as follows:
Appendix C to Part 334--Model Forms for Opt-Out Notices
* * * * *
b.* * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 334.23(a)(2) of this part.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www._.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 334 [Amended]
0
15. Effective January 1, 2010, remove newly redesignated Model Form C-
6.
Appendix J to Part 334, Supplement A [Amended]
0
16. Appendix J to Part 334, Supplement A, is amended by:
0
a. Removing in paragraph 15 the phrase ``account number'' and adding in
its place the word ``address'';
0
b. Removing in paragraph 15 the phrase ``other customers'' and adding
in its place the phrase ``by other customers''; and
0
c. Removing in paragraph 20 the phrase ``patterns of fraud patterns''
and adding in its place the phrase ``patterns of fraud''.
Department of the Treasury
Office of Thrift Supervision
0
For the reasons set forth in the preamble, 12 CFR part 571 is amended
as follows:
PART 571--FAIR CREDIT REPORTING
0
17. The authority citation for part 571 continues to read as follows:
Authority: 12 U.S.C. 1462a, 1463, 1464, 1467a, 1828, 1831p-1,
and 1881-1884; 15 U.S.C. 1681b, 1681c, 1681m, 1681s, 1681s-1, 1681t
and 1681w; 15 U.S.C. 6801 and 6805; Sec. 214 Pub. L. 108-159, 117
Stat. 1952.
Sec. 571.82 [Amended]
0
18. Section 571.82 is amended by:
0
a. Adding in paragraph (a) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
b. Adding in paragraph (b) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
c. Removing in paragraph (c)(2)(i)(A) the phrase ``Customer Information
Program'' and adding in its place the phrase ``Customer Identification
Program'';
0
d. Adding in paragraph (d)(1) introductory text after the second
occurrence of the phrase ``consumer reporting agency'' the phrase
``described in 15 U.S.C. 1681a(p)''; and
0
e. Adding in paragraph (d)(3) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)''.
0
19. Appendix C to Part 571 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph b.10 and new Model Form C-5 to read as follows:
Appendix C to Part 571--Model Forms for Opt-Out Notices
* * * * *
b.* * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 571.23(a)(2) of this part.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www.-.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 571 [Amended]
0
20. Effective January 1, 2010, remove newly redesignated Model Form C-
6.
Appendix J to Part 571, Supplement A [Amended]
0
21. Appendix J to Part 571, Supplement A, is amended by:
0
a. Removing in paragraph 15 the phrase ``account number'' and adding in
its place the word ``address'';
0
b. Removing in paragraph 15 the phrase ``other customers'' and adding
in its place the phrase ``by other customers''; and
0
c. Removing in paragraph 20 the phrase ``patterns of fraud patterns''
and adding in its place the phrase ``patterns of fraud''.
National Credit Union Administration
0
For the reasons set forth in the preamble, 12 CFR part 717 is amended
as follows:
PART 717--FAIR CREDIT REPORTING
0
22. The authority citation for part 717 continues to read as follows:
Authority: 12 U.S.C. 1751 et seq.; 15 U.S.C. 1681a, 1681b,
1681c, 1681m, 1681s, 1681s-1, 1681t, 1681w, 6801 and 6805, Public
Law 108-159, 117 Stat. 1952.
[[Page 22644]]
Subpart I--Duties of Users of Consumer Reports Regarding Address
Discrepancies and Records Disposal
Sec. 717.82 [Amended]
0
23. Section 717.82 is amended by:
0
a. Adding in paragraph (a) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
b. Adding in paragraph (b) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)'';
0
c. Removing in paragraph (c)(2)(i)(A) the phrase ``Customer Information
Program'' and adding in its place the phrase ``Customer Identification
Program'';
0
d. Adding in paragraph (d)(1) introductory text after the second
occurrence of the phrase ``consumer reporting agency'' the phrase
``described in 15 U.S.C. 1681a(p)''; and
0
e. Adding in paragraph (d)(3) after the phrase ``consumer reporting
agency'' the phrase ``described in 15 U.S.C. 1681a(p)''.
0
24. The heading for Sec. 717.91 is revised to read as follows:
Sec. 717.91 Duties of card issuers regarding changes of address.
* * * * *
0
25. Appendix C to Part 717 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph b.10 and new Model Form C-5 to read as follows:
Appendix C to Part 717--Model Forms for Opt-Out Notices
* * * * *b. * * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 717.23(a)(2) of this part.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www._.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 717 [Amended]
0
26. Effective January 1, 2010, remove newly redesignated Model Form C-
6.
Appendix J to Part 717, Supplement A [Amended]
0
27. Appendix J to Part 717, Supplement A, is amended by:
0
a. Removing in paragraph 15 the phrase ``account number'' and adding in
its place the word ``address'';
0
b. Removing in paragraph 15 the phrase ``other members'' and adding in
its place the phrase ``by other members''; and
0
c. Removing in paragraph 20 the phrase ``patterns of fraud patterns''
and adding in its place the phrase ``patterns of fraud''.
Title 16
Federal Trade Commission
0
For the reasons set forth in the preamble, 16 CFR chapter I is amended
as follows:
0
28. Add a new part 641 to read as follows:
PART 641--DUTIES OF USERS OF CONSUMER REPORTS REGARDING ADDRESS
DISCREPANCIES
Sec.
641.1 Duties of users of consumer reports regarding address
discrepancies.
Authority: Public Law 108-159, sec. 315; 15 U.S.C. 1681c(h).
Sec. 641.1 Duties of users of consumer reports regarding address
discrepancies.
(a) Scope. This section applies to users of consumer reports that
are subject to administrative enforcement of the FCRA by the Federal
Trade Commission pursuant to 15 U.S.C. 1681s(a)(1) (users).
(b) Definition. For purposes of this section, a notice of address
discrepancy means a notice sent to a user by a consumer reporting
agency described in 15 U.S.C. 1681a(p) pursuant to 15 U.S.C.
1681c(h)(1), that informs the user of a substantial difference between
the address for the consumer that the user provided to request the
consumer report and the address(es) in the agency's file for the
consumer.
(c) Reasonable belief--(1) Requirement to form a reasonable belief.
A user must develop and implement reasonable policies and procedures
designed to enable the user to form a reasonable belief that a consumer
report relates to the consumer about whom it has requested the report,
when the user receives a notice of address discrepancy.
(2) Examples of reasonable policies and procedures. (i) Comparing
the information in the consumer report provided by the consumer
reporting agency with information the user:
(A) Obtains and uses to verify the consumer's identity in
accordance with the requirements of the Customer Identification Program
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
(B) Maintains in its own records, such as applications, change of
address notifications, other customer account records, or retained CIP
documentation; or
(C) Obtains from third-party sources; or
(ii) Verifying the information in the consumer report provided by
the consumer reporting agency with the consumer.
(d) Consumer's address--(1) Requirement to furnish consumer's
address to a consumer reporting agency. A user must develop and
implement reasonable policies and procedures for furnishing an address
for the consumer that the user has reasonably confirmed is accurate to
the consumer reporting agency described in 15 U.S.C. 1681a(p) from whom
it received the notice of address discrepancy when the user:
(i) Can form a reasonable belief that the consumer report relates
to the consumer about whom the user requested the report;
(ii) Establishes a continuing relationship with the consumer; and
(iii) Regularly and in the ordinary course of business furnishes
information to the consumer reporting agency from which the notice of
address discrepancy relating to the consumer was obtained.
(2) Examples of confirmation methods. The user may reasonably
confirm an address is accurate by:
(i) Verifying the address with the consumer about whom it has
requested the report;
(ii) Reviewing its own records to verify the address of the
consumer;
(iii) Verifying the address through third-party sources; or
(iv) Using other reasonable means.
(3) Timing. The policies and procedures developed in accordance
with paragraph (d)(1) of this section must provide that the user will
furnish the consumer's address that the user has reasonably confirmed
is accurate to the consumer reporting agency described in 15 U.S.C.
1681a(p) as part of the information it regularly furnishes for the
reporting period in which it establishes a relationship with the
consumer.
PART 681--IDENTITY THEFT RULES
0
29. The authority citation for part 681 is revised to read as follows:
[[Page 22645]]
Authority: Public Law 108-159, sec. 114; 15 U.S.C. 1681m(e).
0
30. Revise Sec. Sec. 681.1 and 681.2 to read as follows:
Sec. 681.1 Duties regarding the detection, prevention, and mitigation
of identity theft.
(a) Scope. This section applies to financial institutions and
creditors that are subject to administrative enforcement of the FCRA by
the Federal Trade Commission pursuant to 15 U.S.C. 1681s(a)(1).
(b) Definitions. For purposes of this section, and Appendix A, the
following definitions apply:
(1) Account means a continuing relationship established by a person
with a financial institution or creditor to obtain a product or service
for personal, family, household or business purposes. Account includes:
(i) An extension of credit, such as the purchase of property or
services involving a deferred payment; and
(ii) A deposit account.
(2) The term board of directors includes:
(i) In the case of a branch or agency of a foreign bank, the
managing official in charge of the branch or agency; and
(ii) In the case of any other creditor that does not have a board
of directors, a designated employee at the level of senior management.
(3) Covered account means:
(i) An account that a financial institution or creditor offers or
maintains, primarily for personal, family, or household purposes, that
involves or is designed to permit multiple payments or transactions,
such as a credit card account, mortgage loan, automobile loan, margin
account, cell phone account, utility account, checking account, or
savings account; and
(ii) Any other account that the financial institution or creditor
offers or maintains for which there is a reasonably foreseeable risk to
customers or to the safety and soundness of the financial institution
or creditor from identity theft, including financial, operational,
compliance, reputation, or litigation risks.
(4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
(5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and
includes lenders such as banks, finance companies, automobile dealers,
mortgage brokers, utility companies, and telecommunications companies.
(6) Customer means a person that has a covered account with a
financial institution or creditor.
(7) Financial institution has the same meaning as in 15 U.S.C.
1681a(t).
(8) Identity theft has the same meaning as in 16 CFR 603.2(a).
(9) Red Flag means a pattern, practice, or specific activity that
indicates the possible existence of identity theft.
(10) Service provider means a person that provides a service
directly to the financial institution or creditor.
(c) Periodic Identification of Covered Accounts. Each financial
institution or creditor must periodically determine whether it offers
or maintains covered accounts. As a part of this determination, a
financial institution or creditor must conduct a risk assessment to
determine whether it offers or maintains covered accounts described in
paragraph (b)(3)(ii) of this section, taking into consideration:
(1) The methods it provides to open its accounts;
(2) The methods it provides to access its accounts; and
(3) Its previous experiences with identity theft.
(d) Establishment of an Identity Theft Prevention Program--(1)
Program requirement. Each financial institution or creditor that offers
or maintains one or more covered accounts must develop and implement a
written Identity Theft Prevention Program (Program) that is designed to
detect, prevent, and mitigate identity theft in connection with the
opening of a covered account or any existing covered account. The
Program must be appropriate to the size and complexity of the financial
institution or creditor and the nature and scope of its activities.
(2) Elements of the Program. The Program must include reasonable
policies and procedures to:
(i) Identify relevant Red Flags for the covered accounts that the
financial institution or creditor offers or maintains, and incorporate
those Red Flags into its Program;
(ii) Detect Red Flags that have been incorporated into the Program
of the financial institution or creditor;
(iii) Respond appropriately to any Red Flags that are detected
pursuant to paragraph (d)(2)(ii) of this section to prevent and
mitigate identity theft; and
(iv) Ensure the Program (including the Red Flags determined to be
relevant) is updated periodically, to reflect changes in risks to
customers and to the safety and soundness of the financial institution
or creditor from identity theft.
(e) Administration of the Program. Each financial institution or
creditor that is required to implement a Program must provide for the
continued administration of the Program and must:
(1) Obtain approval of the initial written Program from either its
board of directors or an appropriate committee of the board of
directors;
(2) Involve the board of directors, an appropriate committee
thereof, or a designated employee at the level of senior management in
the oversight, development, implementation and administration of the
Program;
(3) Train staff, as necessary, to effectively implement the
Program; and
(4) Exercise appropriate and effective oversight of service
provider arrangements.
(f) Guidelines. Each financial institution or creditor that is
required to implement a Program must consider the guidelines in
appendix A of this part and include in its Program those guidelines
that are appropriate.
Sec. 681.2 Duties of card issuers regarding changes of address.
(a) Scope. This section applies to a person described in Sec.
681.1(a) that issues a debit or credit card (card issuer).
(b) Definitions. For purposes of this section:
(1) Cardholder means a consumer who has been issued a credit or
debit card.
(2) Clear and conspicuous means reasonably understandable and
designed to call attention to the nature and significance of the
information presented.
(c) Address validation requirements. A card issuer must establish
and implement reasonable policies and procedures to assess the validity
of a change of address if it receives notification of a change of
address for a consumer's debit or credit card account and, within a
short period of time afterwards (during at least the first 30 days
after it receives such notification), the card issuer receives a
request for an additional or replacement card for the same account.
Under these circumstances, the card issuer may not issue an additional
or replacement card, until, in accordance with its reasonable policies
and procedures and for the purpose of assessing the validity of the
change of address, the card issuer:
(1)(i) Notifies the cardholder of the request:
(A) At the cardholder's former address; or
(B) By any other means of communication that the card issuer and
the cardholder have previously agreed to use; and
(ii) Provides to the cardholder a reasonable means of promptly
reporting incorrect address changes; or
(2) Otherwise assesses the validity of the change of address in
accordance with the policies and procedures the
[[Page 22646]]
card issuer has established pursuant to Sec. 681.1 of this part.
(d) Alternative timing of address validation. A card issuer may
satisfy the requirements of paragraph (c) of this section if it
validates an address pursuant to the methods in paragraph (c)(1) or
(c)(2) of this section when it receives an address change notification,
before it receives a request for an additional or replacement card.
(e) Form of notice. Any written or electronic notice that the card
issuer provides under this paragraph must be clear and conspicuous and
provided separately from its regular correspondence with the
cardholder.
Sec. 681.3 [Removed]
0
31. Remove Sec. 681.3.
Appendix A to Part 681 [Amended]
0
32. Appendix A to Part 681 is amended by:
0
a. Revising the introduction;
0
b. Removing in sections VI(a)(2) and VI(b)(1) the term ``Sec. 681.2,''
and adding in its place the term ``Sec. 681.1'';
0
c. Removing, in Supplement A to Appendix A, in paragraph 3, the term
``Sec. 681.1(b)'' and adding in its place the term ``Sec. 641.1(b)'';
0
d. Removing, in Supplement A to Appendix A, in paragraph 15, the phrase
``account number'' and adding in its place the word ``address'';
0
e. Removing, in Supplement A to Appendix A, in paragraph 15, the phrase
``other customers'' and adding in its place the phrase ``by other
customers''; and
0
f. Removing, in Supplement A to Appendix A, in paragraph 20, the phrase
``patterns of fraud patterns'' and adding in its place the phrase
``patterns of fraud''.
The revision reads as follows:
Appendix A to Part 681--Interagency Guidelines on Identity Theft
Detection, Prevention, and Mitigation
Section 681.1 of this part requires each financial institution
and creditor that offers or maintains one or more covered accounts,
as defined in Sec. 681.1(b)(3) of this part, to develop and provide
for the continued administration of a written Program to detect,
prevent, and mitigate identity theft in connection with the opening
of a covered account or any existing covered account. These
guidelines are intended to assist financial institutions and
creditors in the formulation and maintenance of a Program that
satisfies the requirements of Sec. 681.1 of this part.
* * * * *
PART 698--MODEL FORMS AND DISCLOSURES
0
33. The authority citation for part 698 continues to read as follows:
Authority: 15 U.S.C. 1681e, 1681g, 1681j, 1681m, 1681s, and
1681s-3; sections 211(d) and 214(b), Public Law 108-159, 117
Stat.1952.
0
34. Appendix C to Part 698 is amended by:
0
a. Redesignating Model Form C-5 as Model Form C-6; and
0
b. Adding new paragraph B.10 and new Model Form C-5 to read as follows:
Appendix C to Part 698--Model Forms for Opt-Out Notices
* * * * *
B. * * *
10. Adding disclosures regarding the treatment of opt-outs by
joint consumers to comply with Sec. 680.23(a)(2) of part 680.
* * * * *
C-5--Model Form for Voluntary ``No Marketing'' Notice
Your Choice To Stop Marketing
[Name of Affiliate] is providing this notice.
You may choose to stop all marketing from us and our
affiliates.
[Your choice to stop marketing from us and our affiliates
will apply until you tell us to change your choice.]
To stop all marketing, contact us [include all that apply]:
By telephone: 1-877--
On the Web: www._.com
By mail: Check the box and complete the form below, and
send the form to:
[Company name]
[Company address]
--Do not market to me.
* * * * *
Appendix C to Part 698 [Amended]
0
35. Effective January 1, 2010, newly redesignated Model Form C-6 is
removed.
By order of the Board of Governors of the Federal Reserve
System, April 27, 2009.
Jennifer J. Johnson,
Secretary of the Board.
By the Office of the Comptroller of the Currency.
Julie L. Williams,
First Senior Deputy Comptroller and Chief Counsel.
By order of the Board of Directors, Federal Deposit Insurance
Corporation.
Robert E. Feldman,
Executive Secretary.
By the Office of Thrift Supervision,
John E. Bowman,
Acting Director.
By order of the National Credit Union Administration Board.
Mary F. Rupp,
Secretary of the Board.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E9-10009 Filed 5-13-09; 8:45 am]
BILLING CODE 4810-33-P, 6210-01-P, 6714-01-P, 6720-01-P, 7535-01-P