80_FR_66121 80 FR 65913 - Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments; Amendment to the “Creditor” Definition in Identity Theft Red Flags Rule; Removal of FDIC Regulations Regarding Fair Credit Reporting Transferred to the Consumer Financial Protection Bureau

80 FR 65913 - Removal of Transferred OTS Regulations Regarding Fair Credit Reporting and Amendments; Amendment to the “Creditor” Definition in Identity Theft Red Flags Rule; Removal of FDIC Regulations Regarding Fair Credit Reporting Transferred to the Consumer Financial Protection Bureau

FEDERAL DEPOSIT INSURANCE CORPORATION

Federal Register Volume 80, Issue 208 (October 28, 2015)

Page Range65913-65919
FR Document2015-27291

The Federal Deposit Insurance Corporation (FDIC) is adopting a final rule (Final Rule) to make several amendments to its regulations covering ``Fair Credit Reporting.'' The amendments conform FDIC Fair Credit Reporting regulations to the Dodd-Frank Act by consolidating the regulations for all institutions for which the FDIC is the appropriate Federal banking agency into a single part. The amendments also address the role of the Consumer Financial Protection Bureau in promulgating rules relating to Fair Credit Reporting.

Federal Register, Volume 80 Issue 208 (Wednesday, October 28, 2015)
[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Rules and Regulations]
[Pages 65913-65919]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-27291]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 334 and 391

RIN 3064-AE29


Removal of Transferred OTS Regulations Regarding Fair Credit 
Reporting and Amendments; Amendment to the ``Creditor'' Definition in 
Identity Theft Red Flags Rule; Removal of FDIC Regulations Regarding 
Fair Credit Reporting Transferred to the Consumer Financial Protection 
Bureau

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is adopting a 
final rule (Final Rule) to make several amendments to its regulations 
covering ``Fair Credit Reporting.'' The amendments conform FDIC Fair 
Credit Reporting regulations to the Dodd-Frank Act by consolidating the 
regulations for all institutions for which the FDIC is the appropriate 
Federal banking agency into a single part. The amendments also address 
the role of the Consumer Financial Protection Bureau in promulgating 
rules relating to Fair Credit Reporting.

DATES: The Final Rule is effective November 27, 2015.

FOR FURTHER INFORMATION CONTACT: Sandra Barker, Senior Policy Analyst, 
Division of Depositor and Consumer Protection, (202) 898-3615 or 
sabarker@fdic.gov; Jeffrey Kopchik, Senior Policy Analyst, Division of 
Risk Management Supervision, (703) 254-0459 or jkopchik@fdic.gov; 
Richard M. Schwartz, Counsel, Legal Division, (202) 898-7424 or 
rischwartz@fdic.gov.

SUPPLEMENTARY INFORMATION: 

I. Removal of Transferred OTS Regulations Regarding Fair Credit 
Reporting and Amendments to 12 CFR Part 334 of FDIC's Rules and 
Regulations

A. Background

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) \1\ provided for a substantial reorganization of the 
regulation of State and Federal savings associations and their holding 
companies. Beginning July 21, 2011, the transfer date established by 
section 311 of the Dodd-Frank Act, codified at 12 U.S.C. 5411, the 
powers, duties, and functions formerly performed by the OTS were 
divided among the FDIC, as to State savings associations, the Office of 
the Comptroller of the Currency (OCC), as to Federal savings 
associations, and the Board of Governors of the Federal Reserve System 
(FRB), as to savings and loan holding companies.\2\ Section 316(b) of 
the Dodd-Frank Act, codified at 12 U.S.C. 5414(b), provided the manner 
of treatment for all orders, resolutions, determinations, regulations, 
and advisory materials that had been issued, made, prescribed, or 
allowed to become effective by the OTS. The section provided that if 
such materials were in effect on the day before the transfer date, they 
continue to be in effect and are enforceable by or against the 
appropriate successor agency until they are modified, terminated, set 
aside, or superseded in accordance with applicable law by such 
successor agency, by any court of competent jurisdiction, or by 
operation of law.
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ Section 312 of the Dodd-Frank Act, codified at 12 U.S.C. 
5412.
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    Section 316(c) of the Dodd-Frank Act, codified at 12 U.S.C. 
5414(c), further directed the FDIC and the OCC to consult with one 
another and to publish a list of the continued OTS regulations that 
would be enforced by the FDIC and the OCC, respectively. On June 14, 
2011, the FDIC's Board of Directors approved a ``List of OTS 
Regulations to be Enforced by the OCC and the FDIC Pursuant to the 
Dodd-Frank Wall Street Reform and Consumer Protection Act.'' This list 
was published by the FDIC and the OCC as a Joint Notice in the Federal 
Register on July 6, 2011.\3\
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    \3\ 76 FR 39247 (July 6, 2011).
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    Although section 312(b)(2)(B)(i)(II) of the Dodd-Frank Act, 
codified at 12 U.S.C. 5412(b)(2)(B)(i)(II), granted the OCC rulemaking 
authority relating to both State and Federal savings associations, 
nothing in the Dodd-Frank Act affected the FDIC's existing authority to 
issue regulations under the FDI Act and other laws as the ``appropriate 
Federal banking agency'' or under similar statutory terminology. 
Section 312(c) of the Dodd-Frank Act amended the definition of 
``appropriate Federal banking agency'' contained in section 3(q) of the 
FDI Act, 12 U.S.C. 1813(q), to add State savings associations whose 
deposits are insured by the FDIC (State savings associations) to the 
list of entities for which the FDIC is designated as the ``appropriate 
Federal banking agency.'' As a result, when the FDIC acts as the 
designated ``appropriate Federal banking agency'' (or under similar 
terminology) for State savings associations, as it does here, the FDIC 
is authorized to issue, modify and

[[Page 65914]]

rescind regulations involving such associations, as well as for State 
nonmember banks and insured branches of foreign banks.
    As noted, on June 14, 2011, pursuant to this authority, the FDIC's 
Board of Directors reissued and redesignated certain transferring 
regulations of the former OTS. These transferred OTS regulations were 
published as new FDIC regulations in the Federal Register on August 5, 
2011.\4\ When it republished the transferred OTS regulations as new 
FDIC regulations, the FDIC specifically noted that its staff would 
evaluate the transferred OTS rules and might later recommend 
incorporating the transferred OTS regulations into other FDIC rules, 
amending them, or rescinding them, as appropriate.
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    \4\ 76 FR 47652 (Aug. 5, 2011).
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    One of the OTS rules transferred to the FDIC governed OTS oversight 
of the Fair Credit Reporting regulations, which implemented the Fair 
Credit Reporting Act (FCRA),\5\ in the context of State savings 
associations. The OTS rule, formerly found at 12 CFR part 571, was 
transferred to the FDIC \6\ and was moved to the FDIC's rules at part 
391, subpart C, entitled ``Fair Credit Reporting.'' Before the transfer 
of the OTS rules and continuing today, the FDIC's rules contained part 
334, also entitled ``Fair Credit Reporting,'' a rule governing FDIC 
regulation with respect to IDIs for which the FDIC has been designated 
the appropriate Federal banking agency. After careful review and 
comparison of part 391, subpart C and part 334, the FDIC rescinds part 
391, subpart C, because, as discussed below, it is substantively 
redundant to existing part 334 and simultaneously makes technical 
conforming edits to our existing rule.
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    \5\ 15 U.S.C. 1681a, et seq.
    \6\ The Dodd-Frank Act transferred the rule-writing authority of 
several parts of the ``Fair Credit Reporting'' regulations contained 
in parts 334 and 571, as well as the regulations of the OCC, FRB, 
and National Credit Union Administration (``NCUA''), to the newly 
created CFPB. See sections 1061 and 1088, codified at 12 U.S.C. 
5581, 15 U.S.C. 1681 et seq. When the OTS regulations for state 
savings associations were transferred to part 391, only those 
portions of the regulation that were retained by the FDIC were 
included.
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B. FDIC's Existing 12 CFR Section 334.2 and Former OTS's 12 CFR Section 
571.2 (transferred to FDIC's Part 391, Subpart C, as 12 CFR Section 
391.20)

    On November 22, 2005, the FDIC, OTS, OCC, FRB and NCUA (``the 
Agencies'') jointly published rules in the Federal Register \7\ to 
implement section 411 of the Fair and Accurate Credit Transactions Act 
of 2003 (FACT Act),\8\ which amended section 604 of the FCRA.\9\ 
Section 411 of the FACT Act generally limited the ability of creditors 
to obtain and use medical information in connection with credit 
eligibility determinations and the ability of consumer reporting 
agencies to disclose medical information, as well as restricting the 
sharing of medical information and other medically related information 
with affiliates.\10\ That section required the Agencies to issue 
regulations on several aspects related to the medical privacy 
amendment.
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    \7\ 70 FR 70664 (Nov. 22, 2005).
    \8\ Public Law 108-159, 117 Stat. 1952, 1999-2002 (2003).
    \9\ 15 U.S.C. 1681b.
    \10\ 70 FR at 70664.
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    Although Dodd-Frank Act transferred the 2005 medical privacy 
regulations to the CFPB, as discussed below, the Agencies issued a 
regulation in the ``General Provisions'' portion of the Fair Credit 
Reporting regulations that remains in effect in the Agencies' 
regulations today.
    That regulation related to ``examples'' issued in any regulation in 
the Fair Credit Reporting part. The OTS regulation, stated: ``The 
examples in this part are not exclusive. Compliance with an example, to 
the extent applicable, constitutes compliance with this part. Examples 
in a paragraph illustrate only the issue described in the paragraph and 
do not illustrate any other issue that may arise in this part.'' \11\ 
The concurrently issued FDIC regulation contains identical 
language.\12\
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    \11\ 12 CFR 571.2.
    \12\ 12 CFR 334.2.
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    The OTS regulation issued at Sec.  391.20 was amended slightly 
because it was placed in a subpart of part 391: the word ``part'' was 
replace by ``subpart.'' Nevertheless, the portion of the OTS regulation 
that applied to State savings associations and their subsidiaries, 
originally codified at 12 CFR part 571 and subsequently transferred to 
FDIC's part 391, subpart C, is substantively similar to the current 
FDIC regulations codified at 12 CFR part 334. Therefore, to eliminate 
redundancy and streamline its regulations, the FDIC rescinds and 
removes Sec.  391.20.

C. FDIC's Existing 12 CFR Section 334.83 and Former OTS's 12 CFR 
Section 571.83 (transferred to FDIC's Part 391, Subpart C, as 12 CFR 
Section 391.21)

    Section 216 of the FACT Act added a new section 628 to the FCRA 
that, in general was designed to protect a consumer against the risks 
associated with the unauthorized access to information about a consumer 
contained in a consumer report, such as fraud and related crimes 
including identity theft.\13\ Specifically, section 216 required each 
of the Agencies, including the Federal Trade Commission (FTC), to adopt 
a regulation with respect to the entities subject to its enforcement 
authority ``requiring any person that maintains or otherwise possesses 
consumer information, or any compilation of consumer information, 
derived from a consumer report for a business purpose to properly 
dispose of any such information or compilation.'' \14\ The FDIC, OCC, 
FRB and OTS jointly published their rules in the Federal Register on 
December 28, 2004.\15\ The FDIC and OTS regulations were identical.\16\ 
Neither regulation contained a scope provision, because each regulation 
referred to the respective agency's version of the Interagency 
Guidelines Establishing Information Security Standards, which itself 
contained a scope provision.\17\
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    \13\ Public Law 108-159, 117 Stat. at 1985-86; 15 U.S.C. 1681w.
    \14\ Id.
    \15\ 69 FR 77610 (Dec. 28, 2004).
    \16\ 12 CFR 334.83, 571.83 (2004).
    \17\ Id. (both regulations stated, in relevant part, ``You must 
properly dispose of any consumer information that you maintain or 
otherwise possess in accordance with the Interagency Guidelines 
Establishing Information Security Standards . . . to the extent the 
Guidelines are applicable to you.''). Both the FDIC's and the OTS's 
Interagency Guidelines were placed in the Safety and Soundness 
regulations, parts 364 and 570, respectively.
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    In 2007, the Agencies jointly issued rules pursuant to section 114 
of the FACT Act, which dealt with identity theft ``red flag'' rules and 
rules on the duties of credit card issuers to validate notifications of 
changes of address under certain circumstances,\18\ as discussed in 
more detail below. Although those regulations were nearly identical 
from agency to agency, the OTS unilaterally amended its disposal 
regulation, as part of that rulemaking, to include a scope 
provision.\19\ The OTS explained that that amendment was nonsubstantive 
and technical in nature, caused by the placement of the address 
discrepancy regulation in the same subpart as the disposal 
regulation.\20\ No other Agency amended its disposal regulation.
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    \18\ 72 FR 63718 (Nov. 9, 2007). That rulemaking also included 
rules issued pursuant to section 315 of the FACT Act, which required 
the Agencies to issue joint regulations that provide guidance 
regarding reasonable policies and procedures that a user of a 
consumer report should employ when the user receives a notice of an 
address discrepancy. The rule-writing authority for that rule was 
given to the CFPB in the Dodd-Frank Act.
    \19\ See 12 CFR 571.83(a) (2007).
    \20\ 72 FR at 63739.

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[[Page 65915]]

    After careful comparison of the FDIC's disposal regulation with the 
transferred OTS rule in part 391, subpart C, the FDIC has concluded 
that, with the exception of the scope provision, which now includes 
``State savings associations whose deposits are insured by the Federal 
Deposit Insurance Corporation,'' \21\ the transferred OTS rule is 
substantively redundant. Therefore, based on the foregoing, the FDIC 
rescinds and removes from the Code of Federal Regulations the rule 
located at part 391, subpart C and makes minor conforming changes to 
incorporate State savings associations.
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    \21\ The scope provision of the original 2007 amendment covered 
all savings associations with deposits insured by the FDIC and 
Federal savings associations' operating subsidiaries. When the OTS 
disposal regulation was transferred to section 391.21, it was 
amended to state that the scope provision applies to ``State savings 
associations whose deposits are insured by the Federal Deposit 
Insurance Corporation,'' consistent with the authority given to the 
FDIC in the Dodd-Frank Act.
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    There were several ways to deal with this technical difference 
between the FDIC and the OTS disposal regulations, including adding a 
scope provision to the FDIC's disposal regulation at Sec.  334.83, an 
idea that was not proposed back in 2007. Instead, because of the direct 
reference in the disposal regulation to the Interagency Guidelines 
Establishing Information Security Standards, the FDIC, through a 
separate final rule relating to the FDIC's Safety and Soundness 
regulations, 12 CFR part 364, to be issued shortly, is adopting a 
change in the scope provision of the FDIC's version to cover State 
savings associations.
    As a backstop for this and any future fair credit regulations, the 
FDIC is also making a change to Sec.  334.1(b), the general scope 
provision of the FDIC's Fair Credit Reporting regulations, to cover 
State savings associations. The FDIC is also adding a definition of 
``State savings association'' to Sec.  334.3. That definition would 
have the same meaning as in section 3(b)(3) of the FDI Act, 12 U.S.C. 
1813(b)(3).\22\
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    \22\ ``The term `State savings association' means-- (A) any 
building and loan association, savings and loan association, or 
homestead association; or (B) any cooperative bank (other than a 
cooperative bank which is a State bank as defined in subsection 
(a)(2) of this section), which is organized and operating according 
to the laws of the State (as defined in subsection (a)(3) of this 
section) in which it is chartered or organized.'' 12 U.S.C. 
1813(b)(3).
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D. FDIC's Existing 12 CFR Sections 334.90 and 334.91 and Part 334, 
Appendix J, and Former OTS's 12 CFR Sections 571.82 and 571.90 and Part 
571, Appendix J (transferred to FDIC's Part 391, Subpart C, as 12 CFR 
Sections 391.22 and 391.23 and Part 391, Subpart C, Appendix)

    As discussed above (and in some detail below), the Agencies, in 
2007, jointly issued rules pursuant to section 114 of the FACT Act, 
which dealt with identity theft ``red flag'' rules and rules on the 
duties of credit card issuers to validate notifications of changes of 
address under certain circumstances.\23\ In addition to the rules 
required in section 114, the Agencies also jointly issued Interagency 
Guidelines on Identity Theft Detection, Prevention, and Mitigation.
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    \23\ 72 FR 63718 (Nov. 9, 2007).
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    The FDIC's ``red flag'' rule, styled as ``duties regarding the 
detection, prevention, and mitigation of identity theft,'' was issued 
as Sec.  334.90. The concurrently issued OTS rule was issued as Sec.  
571.90. That rule was later transferred to the FDIC rules as Sec.  
391.22. Apart from their scope provisions, the FDIC and the OTS ``red 
flag'' rules are substantively identical. As with the disposal rule, 
the scope of the transferred OTS rule covers ``a State savings 
association whose deposits are insured by the Federal Deposit Insurance 
Corporation.'' \24\
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    \24\ 12 CFR 391.22(a).
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    The FDIC's ``duties of card issuers regarding changes of address'' 
regulation was issued as Sec.  334.91. The concurrently issued OTS rule 
was issued as Sec.  571.91. That rule was later transferred to the FDIC 
rules as Sec.  391.23. As with the ``red flag'' rules, apart from their 
scope provisions, the FDIC and OTS change of address rules are 
substantively identical. The OTS rule covers ``an issuer of a debit or 
credit card (card issuer) that is a State savings association whose 
deposits are insured by the Federal Deposit Insurance Corporation.'' 
\25\
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    \25\ 12 CFR 391.23(a).
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    Finally, the FDIC's Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation was issued as part 334, appendix 
J. The concurrently issued OTS guidelines were issued as part 571, 
appendix J. Those guidelines were later transferred to the FDIC rules 
as part 391, subpart C, appendix. The FDIC and the OTS guidelines are 
substantively identical.
    After careful comparison of the FDIC's rules and guidelines with 
the transferred OTS rules and guidelines in part 391, subpart C, the 
FDIC has concluded that, with the exception of the scope provisions, as 
set out above, the transferred OTS rules and guidelines are 
substantively redundant. Therefore, based on the foregoing, the FDIC 
rescinds and removes from the Code of Federal Regulations the rules 
located at Sec. Sec.  391.22 and 391.23 and guidelines located at part 
391, subpart C, appendix, and makes minor conforming changes in 
Sec. Sec.  334.90 and 334.91 to incorporate State savings associations.

II. Amendments to Fair Credit Red Flag Identity Theft Rule and 
Guidelines

    As discussed above, on November 9, 2007, the FDIC, OCC, FRB, NCUA, 
OTS, and FTC published final rules and guidelines \26\ to implement the 
identity theft red flags provisions of section 114 of the FACT Act.\27\ 
In addition to these agencies, the Commodity Futures Trading Commission 
(CFTC) and the Securities and Exchange Commission (SEC) obtained 
rulemaking authority for these regulations under section 615 of the 
FCRA, as amended by section 1088 of the Dodd-Frank Act.
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    \26\ 72 FR 63718 (Nov. 9, 2007).
    \27\ 15 U.S.C. 1681m(e).
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    Section 615 directed the covered Agencies to issue joint 
regulations and guidelines requiring ``financial institutions'' and 
``creditors'' to develop and implement a written identity theft program 
to identify, detect, and respond to possible risks of identity theft 
relevant to them.
    The 2007 final interagency rule (the Red Flags Rule) \28\ included 
a definition of ``financial institution,'' as set forth in in section 
603(t) of the FCRA, as amended in section 111 of the FACT Act.\29\ That 
term includes ``a State or National bank, a State or Federal savings 
and loan association, a mutual savings bank, a State or Federal credit 
union, or any other person that, directly or indirectly, holds a 
transaction account (as defined in section 19(b) of the Federal Reserve 
Act) belonging to a consumer.'' \30\
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    \28\ 12 CFR 334.90(b)(7).
    \29\ 15 U.S.C. 1681a(t).
    \30\ Id.
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    The Red Flags Rule \31\ also included a definition of ``creditor,'' 
as set forth in section 603(r)(5) of the FCRA, as amended in section 
111 of the FACT Act.\32\ That definition referenced the definition of 
``creditor'' in section 702 of the Equal Credit Opportunity Act 
(``ECOA''). The ECOA defines the term ``creditor'' broadly as ``any 
person who regularly extends, renews, or continues credit; any person 
who regularly

[[Page 65916]]

arranges for the extension, renewal, or continuation of credit; or any 
assignee of an original creditor who participates in the decision to 
extend, renew or continue credit.'' \33\ The ECOA further defines 
``credit'' as ``the right granted by a creditor to a debtor to defer 
payment of debt or to incur debts and defer its payment or to purchase 
property or services and defer payment therefor.'' \34\ Regulation B, 
promulgated under the ECOA, defines ``credit'' in similar terms: ``the 
right granted by a creditor to an applicant to defer payment of a debt, 
incur debt and defer its payment, or purchase property or services and 
defer payment therefor.'' \35\
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    \31\ 12 CFR 334.90(b)(5)
    \32\ 15 U.S.C. 1681a(r)(5).
    \33\ 15 U.S.C. 1691a(e).
    \34\ 15 U.S.C. 1691a(d).
    \35\ 12 CFR 1002.2(j).
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    The current FDIC definition of ``creditor'' also expressly includes 
``lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications 
companies,'' \36\ the same definition as the joint rules issued by the 
OCC, FRB, OTS and FTC.
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    \36\ 12 CFR 334.90(b)(5).
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    Since the scope of the FDIC's red flag regulation covers ``an 
insured state nonmember bank, or a subsidiary of such entities (except 
brokers, dealers, persons providing insurance, investment companies, 
and investment advisors),'' \37\ the vast majority, but not all, of the 
entities covered by the FDIC regulation fall under the ``financial 
institutions'' definition.\38\
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    \37\ 12 CFR 334.90(a).
    \38\ This result would be the same if the new scope provision of 
the Red Flags Rule as proposed in this notice of proposed 
rulemaking--which would add ``a State savings association whose 
deposits are insured by the Federal Deposit Insurance 
Corporation''--is finalized.
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    In contrast, the vast majority of the entities supervised by the 
FTC's rule would be covered by the statutory ``creditor'' definition. 
As such, the FTC had issued guidance on the scope of that definition. 
For example, in a set of answers to frequently asked questions issued 
in June, 2009, the FTC stated: ``Under the [Red Flags Rule], the 
definition of `creditor' is broad and includes businesses or 
organizations that regularly provide goods or services first and allow 
customers to pay later. . . . Examples of groups that may fall within 
this definition are utilities, health care providers, lawyers, 
accountants, and other professionals, and telecommunications 
companies.'' \39\ The FTC had also stated in the preamble to the final 
Red Flags Rule that a ``broad scope of entities'' was covered.\40\ 
Similar guidance was provided in policy statements issued in 2008 and 
early 2009.\41\ This guidance led to a law suit brought by the American 
Bar Association against the FTC alleging that the application of the 
rules to attorneys exceeded FTC's authority. Similar complaints were 
brought by the American Medical Association and other professionals.
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    \39\ See American Bar Ass'n v. Federal Trade Comm'n (``ABA v. 
FTC''), 671 F. Supp. 2d 64, 70 (D.D.C. 2009) (quoting Red Flags 
Rule: Frequently Asked Questions, http://www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm (since amended)), vacated as moot, 
636 F.3d 641 (D.C. Cir. 2011).
    \40\ 72 FR at 63741.
    \41\ See ABA v. FTC, 671 F. Supp. 2d at 69-70.
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    In December 2010, Congress enacted the Red Flag Program 
Clarification Act (Clarification Act), 15 U.S.C. 1681m(e)(4), which 
narrowed the scope of entities covered as ``creditors'' under the Red 
Flags Rule.\42\ The Clarification Act retained the ECOA definition of 
``creditor,'' but generally limited the application of the Red Flags 
Rule to those ECOA creditors that ``regularly and in the ordinary 
course of business'' engaged in at least one of the following three 
types of conduct:
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    \42\ Pub. L. 111-319, 124 Stat. 3457 (2010).
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    1. Obtaining or using consumer reports, directly or indirectly, in 
connection with a credit transaction; \43\
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    \43\ 15 U.S.C. 1681m(e)(4)(A)(i).
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    2. Furnishing information to consumer reporting agencies in 
connection with a credit transaction; \44\ or
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    \44\ 15 U.S.C. 1681m(e)(4)(A)(ii).
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    3. Advancing funds to or on behalf of a person, based on an 
obligation of the person to repay the funds or repayable from specific 
property pledged by or on behalf of the person.\45\
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    \45\ 15 U.S.C. 1681m(e)(4)(A)(iii).
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    The Clarification Act also expressly excluded creditors that 
advanced funds on behalf of a person for expenses incidental to a 
service provided by the creditor to that person.\46\
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    \46\ 15 U.S.C. 1681m(e)(4)(B).
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    Finally, in addition to limiting the scope of coverage for 
``creditors'' by creating these specified categories, the Clarification 
Act empowered the Agencies to determine through a future rulemaking 
whether to include any other type of creditor that offers or maintains 
accounts that are subject to a reasonably foreseeable risk of identity 
theft.\47\
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    \47\ 15 U.S.C. 1681m(e)(4)(C).
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    When amending its Red Flag ``creditor'' definition in 2012, the FTC 
choose not to use its discretionary rulemaking to extend coverage of 
the Red Flags Rule to additional creditors and merely cited to the 
Clarification Act statutory definition.\48\ The FDIC is now adopting a 
similar result, to amend the ``creditor'' definition in its Red Flags 
Rule to expressly cite to the Clarification Act statutory provision, 15 
U.S.C. 1681m(e)(4).
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    \48\ See 77 FR 72712 (Dec. 6, 2012).
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    The FDIC has conferred with staff from the other Federal banking 
agencies, who do not object to the issuance of this final rulemaking to 
amend the Red Flags Rule to conform it to the Clarification Act. In 
fact, in May, 2014, both the OCC and the Federal Reserve Board issued 
final rules making the conforming change.\49\ The SEC and CFTC have 
previously issued final rules under section 615 of FCRA that included a 
definition of ``creditor'' as set forth in the Clarification Act.\50\
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    \49\ See 79 FR 28393, 28400 (May 16, 2014) (OCC); 79 FR 30709, 
30711 (May 29, 2014) (Federal Reserve Board).
    \50\ See 78 FR 23638 (Apr. 19, 2013) (SEC and CFTC joint final 
rules; the CFTC ``creditor'' definition cited the Clarification Act 
provision, but also specifically listed the covered entities).
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    The FDIC is also adopting a technical amendment to supplement A to 
the guidelines that accompanied the Red Flags Rule consistent with the 
amendments, discussed below, to vacate the FDIC Fair Credit Reporting 
regulations with rule writing authority transferred to the CFPB.\51\ In 
supplement A, the Agencies provided a list of red flags to be 
considered by the entities covered by the rule. One of those red flags 
was ``[a] consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  334.82(b) of this part.'' \52\ Since 
the FDIC is vacating its regulation at 12 CFR 334.82, the FDIC is 
changing the citation in that red flag to the CFPB regulation: Sec.  
1022.82(b).
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    \51\ 12 CFR part 334, supplement A to appendix J.
    \52\ Id. at 3.
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III. Removal of FDIC Fair Credit Regulations Transferred to the 
Consumer Financial Protection Bureau

    In amending the FCRA, the FACT Act gave the FDIC, along with the 
other Federal banking regulators (and, in some cases, the FTC and the 
SEC), rule writing authority for a variety of Fair Credit Reporting 
regulations. Since 2004, those regulations have been promulgated on an 
inter-agency basis as follows:
     2004: Disposal of Consumer Information, 12 CFR 334.83, 
implementing FACT Act section 216 (FCRA section 628 (15 U.S.C. 1681w));
     2005: Medical Information, 12 CFR part 334, subpart D, 
implementing FACT Act section 411 (FCRA section 604(g)(5) (15 U.S.C. 
1681b(g)(5));
     2007: Affiliate Marketing, 12 CFR part 334, subpart C and 
appendix C,

[[Page 65917]]

implementing FACT Act section 214 (FCRA section 624 note (15 U.S.C. 
1681s-3 note));
     2007: Identity Theft Red Flags, 12 CFR part 334, subpart J 
and appendix J, implementing FACT Act section 114 (FCRA section 615(e) 
(15 U.S.C. 1681m(e)); \53\
---------------------------------------------------------------------------

    \53\ As amended by the Clarification Act. See discussion above.
---------------------------------------------------------------------------

     2007: Address Discrepancy, 12 CFR 334.82, implementing 
FACT Act section 315 (FCRA section 605(h) (15 U.S.C. 1681c(h)); and
     2009: Duties of Furnishers of Information, 12 CFR part 
334, subpart E and appendix E, implementing FACT Act section 312 (FCRA 
section 623(e) (15 U.S.C. 1681S-2(e)).
    Title X of the Dodd-Frank Act amended a number of consumer 
financial protection laws, including provisions of the FCRA. In 
addition to substantive amendments, the Dodd-Frank Act transferred 
rulemaking authority from the FDIC, FRB, OCC, FTC, NCUA, and OTS for 
several provisions of the ``Fair Credit Reporting'' regulations to the 
CFPB, effective July 21, 2011.\54\ These include the following 
regulations listed above: medical information; affiliate marketing; 
address discrepancy; and duties of furnishers of information. Those 
regulations were covered under 12 CFR part 334 subparts C, D, and E, as 
well as 12 CFR 334.82 in subpart I. The transfer also included the 
related Appendices, 12 CFR part 334, Appendices C and E. On December 
21, 2011, the CFPB published in the Federal Register an interim final 
rule Regulation V, which implemented the Dodd-Frank Act amendments to 
the FCRA with regard to those regulations and appendices.
---------------------------------------------------------------------------

    \54\ See sections 1061 and 1088 of the Dodd-Frank Act.
---------------------------------------------------------------------------

    As discussed above, the Dodd-Frank Act did not transfer all 
rulemaking authority under the FCRA. Specifically, the Act did not 
transfer to the CFPB the authority to promulgate: rules on the disposal 
of consumer information; \55\ rules on identity theft red flags and 
corresponding interagency guidelines on identity theft detection, 
prevention, and mitigation; \56\ and rules on the duties of card 
issuers regarding changes of address.\57\ These existing provisions are 
not included in the Bureau's new Regulation V.\58\
---------------------------------------------------------------------------

    \55\ See 15 U.S.C. 1681m(e); section 1088 of the Dodd-Frank Act.
    \56\ See 15 U.S.C. 1681w; section 1088 of the Dodd-Frank Act.
    \57\ See 15 U.S.C. 1681m(e); section 1088 of the Dodd-Frank Act.
    \58\ The Act also did not transfer rulemaking authority under 
the FCRA over any motor vehicle dealer that is predominantly engaged 
in the sale and servicing of motor vehicles, the leasing and 
servicing of motor vehicles, or both, subject to certain exceptions. 
See section 1029 of the Dodd-Frank Act.
---------------------------------------------------------------------------

    As a result of the of rule writing authority transferred to the 
CFPB, the FDIC rescinds and removes those regulations and appendices 
covered under the CFPB's Regulation V. In addition to the specific 
citations set out above, the FDIC is also rescinding and removing those 
parts of the Purpose and Definition provisions of the ``Fair Credit 
Reporting'' regulations that related to the substantive regulations 
transferred to the CFPB.\59\
---------------------------------------------------------------------------

    \59\ Those provisions include part of 12 CFR 334.1 and the 
definitions set out at 12 CFR 334.3(a), (b), (d), (i), and (k).
---------------------------------------------------------------------------

    Even though there is no longer rule writing authority for those 
``Fair Credit Reporting'' rules, the FDIC will continue to examine for 
compliance with the rules and take enforcement action when warranted.

IV. Regulatory Analysis and Procedure

A. The Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(``PRA'') of 1995, 44 U.S.C. 3501-3521, the FDIC may not conduct or 
sponsor, and the respondent is not required to respond to, an 
information collection unless it displays a currently valid Office of 
Management and Budget (``OMB'') control number.
    Part of the Final Rule rescinds and removes part 391, subpart C 
from the FDIC regulations. This rule was transferred with only nominal 
changes to the FDIC from the OTS when the OTS was abolished by title 
III of the Dodd-Frank Act. Part 391, subpart C is largely redundant of 
the FDIC's existing part 334 regarding ``Fair Credit Reporting'' 
regulations, including appendix J to the part. The FDIC reviewed its 
burden estimates for the collection at the time it assumed 
responsibility for supervision of State savings associations 
transferred from the OTS and determined that no changes to the burden 
estimates were necessary. This Final Rule will not modify the FDIC's 
existing collection and does not involve any new collections of 
information pursuant to the PRA.
    The Final Rule also amends Sec. Sec.  334.83, 334.90, and 334.91 to 
include State savings associations and their subsidiaries within the 
scope of part 334. The Final Rule also amends those provisions to 
define ``State savings association.'' These measures clarify that State 
savings associations, as well as State nonmember banks are subject to 
part 334. Thus, these provisions of the Final Rule will not involve any 
new collections of information under the PRA or impact current burden 
estimates.
    Part of the Final Rule would amend the ``creditor'' definition in 
the FDIC's Identity Theft Red Flag regulation in conformance with the 
Clarification Act. The vast majority of entities regulated by the FDIC 
under the Identity Theft Red Flag regulation fall under the ``financial 
institution'' definition, and, therefore, would be covered under the 
rule regardless of the change in the ``creditor'' definition. For any 
subsidiary of a covered financial institution not covered under the 
``financial institution'' definition, the change to the ``creditor'' 
definition would, arguably, cover fewer, rather than more, entities. 
Thus, this provision of the Final Rule will not involve any new 
collections of information under the PRA or substantively impact 
current burden estimates.
    Finally, part of the Final Rule rescinds and removes those portions 
of 12 CFR part 334 where rule writing authority was transferred to the 
CFPB. This portion of the Final Rule will also not involve any new 
collections of information under the PRA or impact current burden 
estimates.
    Based on the foregoing, no information collection request has been 
submitted to the OMB for review.

B. The Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), requires that each 
federal agency either (1) certify that a proposed rule would not, if 
adopted in final form, have a significant economic impact on a 
substantial number of small entities (defined in regulations 
promulgated by the Small Business Administration to include banking 
organizations with total assets of less than or equal to $550 million), 
or (2) prepare an initial regulatory flexibility analysis of the rule 
and publish the analysis for comment.\60\ For the reasons provided 
below, the FDIC certifies that the Final Rule would not have a 
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \60\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------

    As discussed in the proposed rule, part 391, subpart C was 
transferred from OTS part 571, which governed Fair Credit Reporting. 
OTS part 571 had been in effect beginning in 2004, and all State 
savings associations were required to comply with it. Because it is 
basically redundant of existing part 334 of the FDIC's rules, the FDIC 
rescinds and removes part 391, subpart C. As a result, all FDIC-
supervised institutions--

[[Page 65918]]

including State savings associations and their subsidiaries--are 
required to comply with part 334. Because all State savings 
associations and their subsidiaries have been required to comply with 
substantially the same rules beginning in 2004, today's Final Rule 
would have no significant economic impact on any State savings 
association.
    In a similar way, portions of part 334 of the FDIC's rules were 
transferred to the CFPB Regulation V effective 2011. Because all FDIC 
supervised institutions--including State savings associations and their 
subsidiaries--have been required to comply with part 334 beginning in 
2004, today's Final Rule would have no significant economic impact on 
those institutions.\61\
---------------------------------------------------------------------------

    \61\ When propounding its new Regulation V, the CFPB made the 
following representation in its Regulatory Flexibility Act 
discussion:
    [T]his rule has only a minor impact on entities subject to 
Regulation V. Accordingly, the undersigned certifies that this 
interim final rule will not have a significant economic impact on a 
substantial number of small entities. The rule imposes no new, 
substantive obligations on covered entities and will require only 
minor, one-time adjustments to certain model form. . . .
    76 FR at 79312.
---------------------------------------------------------------------------

    With regard to the portion of the Final Rule amending the Red Flags 
Rule and appendix:
    1. Statement of the need for, and objectives of, the proposed rule. 
As noted above, the Clarification Act amended the definition of 
``creditor'' in the FCRA for purposes of the red flags provisions. The 
FDIC is amending the definition of ``creditor'' in its Red Flags Rule 
to reflect the revised definition of that term in the Clarification 
Act. As also noted above, the FDIC is updating a cross-reference in the 
Red Flags Rule to reflect the CFPB's rulemaking authority for the 
notice of address discrepancy provisions in the FCRA.
    2. Small entities affected by the proposed rule. The Final Rule 
would amend the definition of ``creditor'' in 12 CFR 334.90 to conform 
to the revised definition of that term in the Clarification Act. The 
definition continues to refer to the FCRA definition of ``creditor,'' 
which references the ECOA definition of ``creditor,'' but limits the 
application of the red flags provisions to only those creditors that 
regularly and in the ordinary course of business: (a) Obtain or use 
consumer reports in connection with a credit transaction; (b) furnish 
information to consumer reporting agencies in connection with a credit 
transaction; or (c) advance funds to or on behalf of a person, based on 
an obligation of the person to repay the funds or repayable from 
specific property pledged by or on behalf of the person. 12 U.S.C. 
1681m(e)(4)(A). Creditors that advance funds on behalf of a person for 
expenses incidental to a service provided by the creditor to that 
person are excluded from the definition. Small entity creditors that do 
not meet this more limited definition would no longer be covered by the 
rule. However, small entities that are financial institutions would 
still be covered by the rule, regardless of whether they meet the 
revised definition of creditor.
    The Final Rule also updates a cross-reference in the Red Flags Rule 
to reflect the CFPB's rulemaking authority for the notice of address 
discrepancy provisions in the FCRA. This revision would have no effect 
on small entities because there was no substantive difference between 
the FDIC definition of a ``notice of address discrepancy'' and the 
CFPB's definition.
    3. Recordkeeping, reporting, and compliance requirements. The Final 
Rule does not impose any new recordkeeping, reporting, or compliance 
requirements on small entities. Small entities that no longer meet the 
narrower definition of ``creditor'' would not have to comply with the 
requirements of the Red Flags Rule. However, small entity financial 
institutions would still be required to comply with the Red Flags Rule, 
regardless of whether they meet the revised definition of creditor.
    4. Other federal rules. The FDIC has not identified any federal 
statutes or regulations that would duplicate, overlap, or conflict with 
the proposed revision.
    5. Significant alternatives to the proposed revisions. The 
revisions to the definition of ``creditor'' and the cross-reference to 
the definition of a ``notice of address discrepancy'' reflect statutory 
changes. The FDIC does not believe there are significant alternatives 
to these revisions. Although the FDIC has authority to determine 
through a rulemaking that any other creditor that offers or maintains 
accounts that are subject to a reasonably foreseeable risk of identity 
theft is subject to the Red Flags Rule, the FDIC does not believe it is 
appropriate to use its discretionary rulemaking authority at this time.

C. Plain Language

    Section 722 of the GLB Act, codified at 12 U.S.C. 4809, requires 
each Federal banking agency to use plain language in all of its 
proposed and final rules published after January 1, 2000. The FDIC 
received no comments on whether the Proposed Rule was clearly stated 
and effectively organized or on how the FDIC might make it easier to 
understand.

D. The Economic Growth and Regulatory Paperwork Reduction Act

    Under section 2222 of the Economic Growth and Regulatory Paperwork 
Reduction Act of 1996 (``EGRPRA''), the FDIC is required to review all 
of its regulations, at least once every 10 years, in order to identify 
any outdated or otherwise unnecessary regulations imposed on insured 
institutions.\62\ The FDIC completed the last comprehensive review of 
its regulations under EGRPRA in 2006 and is commencing the next 
decennial review. The action taken on this rule will be included as 
part of the EGRPRA review that is currently in progress. The FDIC 
received no comments concerning whether the Proposed Rule would impose 
any outdated or unnecessary regulatory requirements on insured 
depository institutions.
---------------------------------------------------------------------------

    \62\ Public Law 104-208 (Sept. 30, 1996).
---------------------------------------------------------------------------

List of Subjects

12 CFR Part 334

    Fair credit reporting.

12 CFR Part 391

    Fair credit reporting.

Authority and Issuance

    For the reasons stated in the preamble, the Board of Directors of 
the Federal Deposit Insurance Corporation amends parts 334 and 391 of 
title 12 of the Code of Federal Regulations as set forth below:

PART 334--FAIR CREDIT REPORTING

Subpart A--General Provisions

0
1. 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-2, 1681s-3, 1681t, 1681w, 
6801 et seq., Pub. L. 108-159, 117 Stat. 1952.


0
2. Revise Sec.  334.1 to read as follows:


Sec.  334.1  Purpose and scope.

    (a) Purpose The purpose of this part is to implement the Fair 
Credit Reporting Act.
    (b) Scope Except as otherwise provided in this part, the 
regulations in this part apply to insured state nonmember banks, state 
savings associations whose deposits are insured by the Federal Deposit 
Insurance Corporation, insured state licensed branches of foreign 
banks, and subsidiaries of such entities (except

[[Page 65919]]

brokers, dealers, persons providing insurance, investment companies, 
and investment advisers).


0
3. Amend Sec.  334.3 by adding paragraph (m) to read as follows:


Sec.  334.3  Definitions.

* * * * *
    (m) State savings association has the same meaning as in section 
3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).

Subparts C through E--[Removed and Reserved]

0
3. Remove and reserve subparts C, D, and E.

Subpart I--Records Disposal

0
4. Revise the heading for subpart I to read as set forth above.


Sec.  334.82  [Removed and Reserved]

0
5. Remove and reserve Sec.  334.82.

Subpart J--Identity Theft Red Flags

0
6. Amend Sec.  334.90 by revising paragraphs (a) and (b)(5) and adding 
paragraph (b)(11) to read as follows:


Sec.  334.90  Duties regarding the detection, prevention, and 
mitigation of identity theft.

    (a) Scope This section applies to a financial institution or 
creditor that is an insured state nonmember bank, State savings 
association whose deposits are insured by the Federal Deposit Insurance 
Corporation, insured state licensed branch of a foreign bank, or a 
subsidiary of such entities (except brokers, dealers, persons providing 
insurance, investment companies, and investment advisers).
    (b) * * *
    (5) Creditor has the same meaning as in 15 U.S.C. 1681m(e)(4).
* * * * *
    (11) State savings association has the same meaning as in section 
3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).
* * * * *

0
7. Amend Sec.  334.91 by revising paragraph (a) and adding paragraph 
(b)(3) to read as follows:


Sec.  334.91  Duties of card issuers regarding change of address.

    (a) Scope This section applies to an issuer of a debit or credit 
card (card issuer) that is an insured state nonmember bank, state 
savings association whose deposits are insured by the Federal Deposit 
Insurance Corporation, insured state licensed branch of a foreign bank, 
or a subsidiary of such entities (except brokers, dealers, persons 
providing insurance, investment companies, or investment advisers).
    (b) * * *
    (3) State savings association has the same meaning as in section 
3(b)(3) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(b)(3).
* * * * *

0
8. In appendix J to part 334, amend supplement A under the heading 
``Alerts, Notifications or Warnings from a Consumer Reporting Agency'' 
by revising paragraph 3 to read as follows:

Appendix J to Part 334--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

* * * * *

Supplement A to Appendix J

* * * * *

Alerts, Notifications or Warnings from a Consumer Reporting Agency

* * * * *

0
3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in 12 CFR 1022.82(b).
* * * * *

PART 391--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
9. The authority citation for part 391 continues, in part, to read as 
follows:

    Authority: 12 U.S.C. 1819.
* * * * *
    Subpart C also issued under 12 U.S.C. 1462a; 1463; 1464; 1828; 
1831p-1; and 1881-1884; 15 U.S.C. 1681m; 1681w.
* * * * *

Subpart C--[Removed and Reserved]

0
10. Remove and reserve subpart C, consisting of Sec. Sec.  391.20 
through 391.23 and an appendix.

    Dated at Washington, DC, this 22nd day of October, 2015.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2015-27291 Filed 10-27-15; 8:45 am]
 BILLING CODE 6714-01-P



                                                            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations                                                65913

                                           other computer crimes. See OCC Bulletin                  FEDERAL DEPOSIT INSURANCE                              among the FDIC, as to State savings
                                           2000–14, ‘‘Infrastructure Threats—Intrusion              CORPORATION                                            associations, the Office of the
                                           Risks’’ (May 15, 2000); Advisory Letter 97–                                                                     Comptroller of the Currency (OCC), as to
                                           9, ‘‘Reporting Computer Related Crimes’’                 12 CFR Parts 334 and 391                               Federal savings associations, and the
                                           (November 19, 1997) (general guidance still                                                                     Board of Governors of the Federal
                                                                                                    RIN 3064–AE29
                                           applicable though instructions for new SAR                                                                      Reserve System (FRB), as to savings and
                                           form published in 65 FR 1229, 1230 (January              Removal of Transferred OTS                             loan holding companies.2 Section 316(b)
                                           7, 2000)). See also Federal Reserve SR 01–11,            Regulations Regarding Fair Credit                      of the Dodd-Frank Act, codified at 12
                                           Identity Theft and Pretext Calling, Apr. 26,             Reporting and Amendments;                              U.S.C. 5414(b), provided the manner of
                                           2001.                                                                                                           treatment for all orders, resolutions,
                                              13 See FFIEC Information Technology
                                                                                                    Amendment to the ‘‘Creditor’’
                                                                                                    Definition in Identity Theft Red Flags                 determinations, regulations, and
                                           Examination Handbook, Information Security                                                                      advisory materials that had been issued,
                                                                                                    Rule; Removal of FDIC Regulations
                                           Booklet, Dec. 2002, pp. 68–74.                                                                                  made, prescribed, or allowed to become
                                              14 The institution should, therefore, ensure
                                                                                                    Regarding Fair Credit Reporting
                                                                                                    Transferred to the Consumer Financial                  effective by the OTS. The section
                                           that it has reasonable policies and procedures                                                                  provided that if such materials were in
                                                                                                    Protection Bureau
                                           in place, including trained personnel, to                                                                       effect on the day before the transfer
                                           respond appropriately to customer inquiries              AGENCY:  Federal Deposit Insurance                     date, they continue to be in effect and
                                           and requests for assistance.                             Corporation.                                           are enforceable by or against the
                                              15 Currently, the FTC Web site for the ID
                                                                                                    ACTION: Final rule.                                    appropriate successor agency until they
                                           Theft brochure and the FTC Hotline phone                                                                        are modified, terminated, set aside, or
                                           number are http://www.consumer.gov/idtheft               SUMMARY:   The Federal Deposit                         superseded in accordance with
                                           and 1–877–IDTHEFT. The institution may                   Insurance Corporation (FDIC) is                        applicable law by such successor
                                           also refer customers to any materials                    adopting a final rule (Final Rule) to                  agency, by any court of competent
                                           developed pursuant to section 151(b) of the              make several amendments to its                         jurisdiction, or by operation of law.
                                           FACT Act (educational materials developed                regulations covering ‘‘Fair Credit                        Section 316(c) of the Dodd-Frank Act,
                                           by the FTC to teach the public how to                    Reporting.’’ The amendments conform                    codified at 12 U.S.C. 5414(c), further
                                           prevent identity theft).                                 FDIC Fair Credit Reporting regulations                 directed the FDIC and the OCC to
                                                                                                    to the Dodd-Frank Act by consolidating                 consult with one another and to publish
                                           PART 391—FORMER OFFICE OF                                the regulations for all institutions for               a list of the continued OTS regulations
                                           THRIFT SUPERVISION REGULATIONS                           which the FDIC is the appropriate                      that would be enforced by the FDIC and
                                                                                                    Federal banking agency into a single                   the OCC, respectively. On June 14, 2011,
                                           ■  4. The authority citation for part 391                part. The amendments also address the                  the FDIC’s Board of Directors approved
                                           is revised to read as follows:                           role of the Consumer Financial                         a ‘‘List of OTS Regulations to be
                                             Authority: 12 U.S.C. 1819 (Tenth).                     Protection Bureau in promulgating rules                Enforced by the OCC and the FDIC
                                             Subpart A also issued under 12 U.S.C.                  relating to Fair Credit Reporting.                     Pursuant to the Dodd-Frank Wall Street
                                           1462a; 1463; 1464; 1828; 1831p-1; 1881-1884;             DATES: The Final Rule is effective                     Reform and Consumer Protection Act.’’
                                           15 U.S.C. 1681w; 15 U.S.C. 6801; 6805.                   November 27, 2015.                                     This list was published by the FDIC and
                                             Subpart C also issued under 12 U.S.C.                  FOR FURTHER INFORMATION CONTACT:                       the OCC as a Joint Notice in the Federal
                                           1462a; 1463; 1464; 1828; 1831p-1; and 1881-              Sandra Barker, Senior Policy Analyst,                  Register on July 6, 2011.3
                                           1884; 15 U.S.C. 1681m; 1681w.                            Division of Depositor and Consumer                        Although section 312(b)(2)(B)(i)(II) of
                                             Subpart D also issued under 12 U.S.C.                  Protection, (202) 898–3615 or sabarker@                the Dodd-Frank Act, codified at 12
                                           1462; 1462a; 1463; 1464; 42 U.S.C. 4012a;                fdic.gov; Jeffrey Kopchik, Senior Policy               U.S.C. 5412(b)(2)(B)(i)(II), granted the
                                           4104a; 4104b; 4106; 4128.                                Analyst, Division of Risk Management                   OCC rulemaking authority relating to
                                             Subpart E also issued under 12 U.S.C.                  Supervision, (703) 254–0459 or                         both State and Federal savings
                                           1467a; 1468; 1817; 1831i.                                jkopchik@fdic.gov; Richard M.                          associations, nothing in the Dodd-Frank
                                                                                                    Schwartz, Counsel, Legal Division, (202)               Act affected the FDIC’s existing
                                           Subpart B—[Removed and Reserved]                         898–7424 or rischwartz@fdic.gov.                       authority to issue regulations under the
                                                                                                    SUPPLEMENTARY INFORMATION:                             FDI Act and other laws as the
                                           ■ 5. Remove and reserve subpart B                                                                               ‘‘appropriate Federal banking agency’’
                                           consisting of §§ 391.10 through 391.14,                  I. Removal of Transferred OTS                          or under similar statutory terminology.
                                           and Appendices A and B.                                  Regulations Regarding Fair Credit                      Section 312(c) of the Dodd-Frank Act
                                                                                                    Reporting and Amendments to 12 CFR                     amended the definition of ‘‘appropriate
                                             Dated at Washington, DC, this 22nd day of              Part 334 of FDIC’s Rules and                           Federal banking agency’’ contained in
                                           October 2015.                                            Regulations                                            section 3(q) of the FDI Act, 12 U.S.C.
                                             By order of the Board of Directors.                                                                           1813(q), to add State savings
                                                                                                    A. Background
                                           Federal Deposit Insurance Corporation.                                                                          associations whose deposits are insured
                                           Robert E. Feldman,                                         The Dodd-Frank Wall Street Reform                    by the FDIC (State savings associations)
                                                                                                    and Consumer Protection Act (Dodd-                     to the list of entities for which the FDIC
                                           Executive Secretary.
                                                                                                    Frank Act) 1 provided for a substantial                is designated as the ‘‘appropriate
                                           [FR Doc. 2015–27293 Filed 10–27–15; 8:45 am]
                                                                                                    reorganization of the regulation of State              Federal banking agency.’’ As a result,
                                           BILLING CODE 6714–01–P                                   and Federal savings associations and                   when the FDIC acts as the designated
                                                                                                    their holding companies. Beginning July                ‘‘appropriate Federal banking agency’’
                                                                                                    21, 2011, the transfer date established
Lhorne on DSK5TPTVN1PROD with RULES




                                                                                                                                                           (or under similar terminology) for State
                                                                                                    by section 311 of the Dodd-Frank Act,                  savings associations, as it does here, the
                                                                                                    codified at 12 U.S.C. 5411, the powers,                FDIC is authorized to issue, modify and
                                                                                                    duties, and functions formerly
                                                                                                    performed by the OTS were divided                        2 Section 312 of the Dodd-Frank Act, codified at

                                                                                                                                                           12 U.S.C. 5412.
                                                                                                      1 Public   Law 111–203, 124 Stat. 1376 (2010).         3 76 FR 39247 (July 6, 2011).




                                      VerDate Sep<11>2014    15:03 Oct 27, 2015   Jkt 238001   PO 00000   Frm 00033    Fmt 4700   Sfmt 4700   E:\FR\FM\28OCR1.SGM   28OCR1


                                           65914            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations

                                           rescind regulations involving such                       Act),8 which amended section 604 of                   in a consumer report, such as fraud and
                                           associations, as well as for State                       the FCRA.9 Section 411 of the FACT Act                related crimes including identity theft.13
                                           nonmember banks and insured branches                     generally limited the ability of creditors            Specifically, section 216 required each
                                           of foreign banks.                                        to obtain and use medical information                 of the Agencies, including the Federal
                                              As noted, on June 14, 2011, pursuant                  in connection with credit eligibility                 Trade Commission (FTC), to adopt a
                                           to this authority, the FDIC’s Board of                   determinations and the ability of                     regulation with respect to the entities
                                           Directors reissued and redesignated                      consumer reporting agencies to disclose               subject to its enforcement authority
                                           certain transferring regulations of the                  medical information, as well as                       ‘‘requiring any person that maintains or
                                           former OTS. These transferred OTS                        restricting the sharing of medical                    otherwise possesses consumer
                                           regulations were published as new FDIC                   information and other medically related               information, or any compilation of
                                           regulations in the Federal Register on                   information with affiliates.10 That                   consumer information, derived from a
                                           August 5, 2011.4 When it republished                     section required the Agencies to issue                consumer report for a business purpose
                                           the transferred OTS regulations as new                   regulations on several aspects related to             to properly dispose of any such
                                           FDIC regulations, the FDIC specifically                  the medical privacy amendment.                        information or compilation.’’ 14 The
                                           noted that its staff would evaluate the                     Although Dodd-Frank Act transferred                FDIC, OCC, FRB and OTS jointly
                                           transferred OTS rules and might later                    the 2005 medical privacy regulations to               published their rules in the Federal
                                           recommend incorporating the                              the CFPB, as discussed below, the                     Register on December 28, 2004.15 The
                                           transferred OTS regulations into other                   Agencies issued a regulation in the                   FDIC and OTS regulations were
                                           FDIC rules, amending them, or                            ‘‘General Provisions’’ portion of the Fair            identical.16 Neither regulation
                                           rescinding them, as appropriate.                         Credit Reporting regulations that                     contained a scope provision, because
                                              One of the OTS rules transferred to                   remains in effect in the Agencies’                    each regulation referred to the
                                           the FDIC governed OTS oversight of the                   regulations today.                                    respective agency’s version of the
                                           Fair Credit Reporting regulations, which                    That regulation related to ‘‘examples’’            Interagency Guidelines Establishing
                                           implemented the Fair Credit Reporting                    issued in any regulation in the Fair                  Information Security Standards, which
                                           Act (FCRA),5 in the context of State                     Credit Reporting part. The OTS                        itself contained a scope provision.17
                                           savings associations. The OTS rule,                      regulation, stated: ‘‘The examples in this               In 2007, the Agencies jointly issued
                                           formerly found at 12 CFR part 571, was                   part are not exclusive. Compliance with               rules pursuant to section 114 of the
                                           transferred to the FDIC 6 and was moved                  an example, to the extent applicable,                 FACT Act, which dealt with identity
                                           to the FDIC’s rules at part 391, subpart                 constitutes compliance with this part.                theft ‘‘red flag’’ rules and rules on the
                                           C, entitled ‘‘Fair Credit Reporting.’’                   Examples in a paragraph illustrate only               duties of credit card issuers to validate
                                           Before the transfer of the OTS rules and                 the issue described in the paragraph and              notifications of changes of address
                                           continuing today, the FDIC’s rules                       do not illustrate any other issue that                under certain circumstances,18 as
                                           contained part 334, also entitled ‘‘Fair                 may arise in this part.’’ 11 The                      discussed in more detail below.
                                           Credit Reporting,’’ a rule governing                     concurrently issued FDIC regulation                   Although those regulations were nearly
                                           FDIC regulation with respect to IDIs for                 contains identical language.12                        identical from agency to agency, the
                                           which the FDIC has been designated the                      The OTS regulation issued at § 391.20              OTS unilaterally amended its disposal
                                           appropriate Federal banking agency.                      was amended slightly because it was                   regulation, as part of that rulemaking, to
                                           After careful review and comparison of                   placed in a subpart of part 391: the word             include a scope provision.19 The OTS
                                           part 391, subpart C and part 334, the                    ‘‘part’’ was replace by ‘‘subpart.’’                  explained that that amendment was
                                           FDIC rescinds part 391, subpart C,                       Nevertheless, the portion of the OTS                  nonsubstantive and technical in nature,
                                           because, as discussed below, it is                       regulation that applied to State savings              caused by the placement of the address
                                           substantively redundant to existing part                 associations and their subsidiaries,                  discrepancy regulation in the same
                                           334 and simultaneously makes technical                   originally codified at 12 CFR part 571                subpart as the disposal regulation.20 No
                                           conforming edits to our existing rule.                   and subsequently transferred to FDIC’s                other Agency amended its disposal
                                                                                                    part 391, subpart C, is substantively                 regulation.
                                           B. FDIC’s Existing 12 CFR Section 334.2                  similar to the current FDIC regulations
                                           and Former OTS’s 12 CFR Section 571.2                    codified at 12 CFR part 334. Therefore,                  13 Public Law 108–159, 117 Stat. at 1985–86; 15
                                           (transferred to FDIC’s Part 391, Subpart                 to eliminate redundancy and streamline                U.S.C. 1681w.
                                           C, as 12 CFR Section 391.20)                             its regulations, the FDIC rescinds and                   14 Id.


                                             On November 22, 2005, the FDIC,                        removes § 391.20.                                        15 69 FR 77610 (Dec. 28, 2004).
                                                                                                                                                             16 12 CFR 334.83, 571.83 (2004).
                                           OTS, OCC, FRB and NCUA (‘‘the                            C. FDIC’s Existing 12 CFR Section                        17 Id. (both regulations stated, in relevant part,
                                           Agencies’’) jointly published rules in                   334.83 and Former OTS’s 12 CFR                        ‘‘You must properly dispose of any consumer
                                           the Federal Register 7 to implement                      Section 571.83 (transferred to FDIC’s                 information that you maintain or otherwise possess
                                           section 411 of the Fair and Accurate                     Part 391, Subpart C, as 12 CFR Section                in accordance with the Interagency Guidelines
                                           Credit Transactions Act of 2003 (FACT                                                                          Establishing Information Security Standards . . . to
                                                                                                    391.21)                                               the extent the Guidelines are applicable to you.’’).
                                                                                                      Section 216 of the FACT Act added a                 Both the FDIC’s and the OTS’s Interagency
                                             4 76 FR 47652 (Aug. 5, 2011).                                                                                Guidelines were placed in the Safety and
                                             5 15
                                                                                                    new section 628 to the FCRA that, in                  Soundness regulations, parts 364 and 570,
                                                  U.S.C. 1681a, et seq.
                                             6 The Dodd-Frank Act transferred the rule-writing      general was designed to protect a                     respectively.
                                           authority of several parts of the ‘‘Fair Credit          consumer against the risks associated                    18 72 FR 63718 (Nov. 9, 2007). That rulemaking

                                           Reporting’’ regulations contained in parts 334 and       with the unauthorized access to                       also included rules issued pursuant to section 315
                                           571, as well as the regulations of the OCC, FRB, and     information about a consumer contained                of the FACT Act, which required the Agencies to
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                                           National Credit Union Administration (‘‘NCUA’’),                                                               issue joint regulations that provide guidance
                                           to the newly created CFPB. See sections 1061 and                                                               regarding reasonable policies and procedures that a
                                                                                                      8 Public Law 108–159, 117 Stat. 1952, 1999–2002
                                           1088, codified at 12 U.S.C. 5581, 15 U.S.C. 1681 et                                                            user of a consumer report should employ when the
                                           seq. When the OTS regulations for state savings          (2003).                                               user receives a notice of an address discrepancy.
                                                                                                      9 15 U.S.C. 1681b.
                                           associations were transferred to part 391, only those                                                          The rule-writing authority for that rule was given
                                                                                                      10 70 FR at 70664.                                  to the CFPB in the Dodd-Frank Act.
                                           portions of the regulation that were retained by the
                                           FDIC were included.                                        11 12 CFR 571.2.                                       19 See 12 CFR 571.83(a) (2007).
                                             7 70 FR 70664 (Nov. 22, 2005).                           12 12 CFR 334.2.                                       20 72 FR at 63739.




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                                                            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations                                         65915

                                              After careful comparison of the FDIC’s                D. FDIC’s Existing 12 CFR Sections                    concluded that, with the exception of
                                           disposal regulation with the transferred                 334.90 and 334.91 and Part 334,                       the scope provisions, as set out above,
                                           OTS rule in part 391, subpart C, the                     Appendix J, and Former OTS’s 12 CFR                   the transferred OTS rules and guidelines
                                           FDIC has concluded that, with the                        Sections 571.82 and 571.90 and Part                   are substantively redundant. Therefore,
                                           exception of the scope provision, which                  571, Appendix J (transferred to FDIC’s                based on the foregoing, the FDIC
                                           now includes ‘‘State savings                             Part 391, Subpart C, as 12 CFR Sections               rescinds and removes from the Code of
                                           associations whose deposits are insured                  391.22 and 391.23 and Part 391,                       Federal Regulations the rules located at
                                           by the Federal Deposit Insurance                         Subpart C, Appendix)                                  §§ 391.22 and 391.23 and guidelines
                                           Corporation,’’ 21 the transferred OTS                       As discussed above (and in some                    located at part 391, subpart C, appendix,
                                           rule is substantively redundant.                         detail below), the Agencies, in 2007,                 and makes minor conforming changes in
                                           Therefore, based on the foregoing, the                   jointly issued rules pursuant to section              §§ 334.90 and 334.91 to incorporate
                                           FDIC rescinds and removes from the                       114 of the FACT Act, which dealt with                 State savings associations.
                                           Code of Federal Regulations the rule                     identity theft ‘‘red flag’’ rules and rules           II. Amendments to Fair Credit Red Flag
                                           located at part 391, subpart C and makes                 on the duties of credit card issuers to               Identity Theft Rule and Guidelines
                                           minor conforming changes to                              validate notifications of changes of
                                                                                                    address under certain circumstances.23                   As discussed above, on November 9,
                                           incorporate State savings associations.                                                                        2007, the FDIC, OCC, FRB, NCUA, OTS,
                                                                                                    In addition to the rules required in
                                              There were several ways to deal with                  section 114, the Agencies also jointly                and FTC published final rules and
                                           this technical difference between the                    issued Interagency Guidelines on                      guidelines 26 to implement the identity
                                           FDIC and the OTS disposal regulations,                   Identity Theft Detection, Prevention,                 theft red flags provisions of section 114
                                           including adding a scope provision to                    and Mitigation.                                       of the FACT Act.27 In addition to these
                                           the FDIC’s disposal regulation at                           The FDIC’s ‘‘red flag’’ rule, styled as            agencies, the Commodity Futures
                                           § 334.83, an idea that was not proposed                  ‘‘duties regarding the detection,                     Trading Commission (CFTC) and the
                                           back in 2007. Instead, because of the                    prevention, and mitigation of identity                Securities and Exchange Commission
                                           direct reference in the disposal                         theft,’’ was issued as § 334.90. The                  (SEC) obtained rulemaking authority for
                                           regulation to the Interagency Guidelines                 concurrently issued OTS rule was                      these regulations under section 615 of
                                           Establishing Information Security                        issued as § 571.90. That rule was later               the FCRA, as amended by section 1088
                                           Standards, the FDIC, through a separate                  transferred to the FDIC rules as § 391.22.            of the Dodd-Frank Act.
                                                                                                    Apart from their scope provisions, the                   Section 615 directed the covered
                                           final rule relating to the FDIC’s Safety
                                                                                                    FDIC and the OTS ‘‘red flag’’ rules are               Agencies to issue joint regulations and
                                           and Soundness regulations, 12 CFR part
                                                                                                    substantively identical. As with the                  guidelines requiring ‘‘financial
                                           364, to be issued shortly, is adopting a
                                                                                                    disposal rule, the scope of the                       institutions’’ and ‘‘creditors’’ to develop
                                           change in the scope provision of the                                                                           and implement a written identity theft
                                                                                                    transferred OTS rule covers ‘‘a State
                                           FDIC’s version to cover State savings                    savings association whose deposits are                program to identify, detect, and respond
                                           associations.                                            insured by the Federal Deposit                        to possible risks of identity theft
                                              As a backstop for this and any future                 Insurance Corporation.’’ 24                           relevant to them.
                                           fair credit regulations, the FDIC is also                   The FDIC’s ‘‘duties of card issuers                   The 2007 final interagency rule (the
                                           making a change to § 334.1(b), the                       regarding changes of address’’                        Red Flags Rule) 28 included a definition
                                           general scope provision of the FDIC’s                    regulation was issued as § 334.91. The                of ‘‘financial institution,’’ as set forth in
                                           Fair Credit Reporting regulations, to                    concurrently issued OTS rule was                      in section 603(t) of the FCRA, as
                                           cover State savings associations. The                    issued as § 571.91. That rule was later               amended in section 111 of the FACT
                                           FDIC is also adding a definition of                      transferred to the FDIC rules as § 391.23.            Act.29 That term includes ‘‘a State or
                                           ‘‘State savings association’’ to § 334.3.                As with the ‘‘red flag’’ rules, apart from            National bank, a State or Federal savings
                                                                                                    their scope provisions, the FDIC and                  and loan association, a mutual savings
                                           That definition would have the same
                                                                                                    OTS change of address rules are                       bank, a State or Federal credit union, or
                                           meaning as in section 3(b)(3) of the FDI
                                                                                                    substantively identical. The OTS rule                 any other person that, directly or
                                           Act, 12 U.S.C. 1813(b)(3).22                             covers ‘‘an issuer of a debit or credit               indirectly, holds a transaction account
                                                                                                    card (card issuer) that is a State savings            (as defined in section 19(b) of the
                                                                                                    association whose deposits are insured                Federal Reserve Act) belonging to a
                                                                                                    by the Federal Deposit Insurance                      consumer.’’ 30
                                                                                                    Corporation.’’ 25                                        The Red Flags Rule 31 also included a
                                                                                                       Finally, the FDIC’s Interagency                    definition of ‘‘creditor,’’ as set forth in
                                             21 The scope provision of the original 2007
                                                                                                    Guidelines on Identity Theft Detection,               section 603(r)(5) of the FCRA, as
                                           amendment covered all savings associations with
                                           deposits insured by the FDIC and Federal savings
                                                                                                    Prevention, and Mitigation was issued                 amended in section 111 of the FACT
                                           associations’ operating subsidiaries. When the OTS       as part 334, appendix J. The                          Act.32 That definition referenced the
                                           disposal regulation was transferred to section           concurrently issued OTS guidelines                    definition of ‘‘creditor’’ in section 702 of
                                           391.21, it was amended to state that the scope           were issued as part 571, appendix J.                  the Equal Credit Opportunity Act
                                           provision applies to ‘‘State savings associations        Those guidelines were later transferred               (‘‘ECOA’’). The ECOA defines the term
                                           whose deposits are insured by the Federal Deposit        to the FDIC rules as part 391, subpart C,             ‘‘creditor’’ broadly as ‘‘any person who
                                           Insurance Corporation,’’ consistent with the             appendix. The FDIC and the OTS
                                           authority given to the FDIC in the Dodd-Frank Act.                                                             regularly extends, renews, or continues
                                             22 ‘‘The term ‘State savings association’ means—
                                                                                                    guidelines are substantively identical.               credit; any person who regularly
                                                                                                       After careful comparison of the FDIC’s
                                           (A) any building and loan association, savings and
                                                                                                    rules and guidelines with the
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                                                                                                                                                            26 72  FR 63718 (Nov. 9, 2007).
                                           loan association, or homestead association; or (B)
                                           any cooperative bank (other than a cooperative bank      transferred OTS rules and guidelines in                 27 15  U.S.C. 1681m(e).
                                           which is a State bank as defined in subsection (a)(2)    part 391, subpart C, the FDIC has                       28 12 CFR 334.90(b)(7).
                                                                                                                                                            29 15 U.S.C. 1681a(t).
                                           of this section), which is organized and operating
                                           according to the laws of the State (as defined in          23 72 FR 63718 (Nov. 9, 2007).                        30 Id.

                                           subsection (a)(3) of this section) in which it is          24 12 CFR 391.22(a).                                  31 12 CFR 334.90(b)(5)

                                           chartered or organized.’’ 12 U.S.C. 1813(b)(3).            25 12 CFR 391.23(a).                                  32 15 U.S.C. 1681a(r)(5).




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                                           65916            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations

                                           arranges for the extension, renewal, or                  The FTC had also stated in the preamble               adopting a similar result, to amend the
                                           continuation of credit; or any assignee                  to the final Red Flags Rule that a ‘‘broad            ‘‘creditor’’ definition in its Red Flags
                                           of an original creditor who participates                 scope of entities’’ was covered.40                    Rule to expressly cite to the
                                           in the decision to extend, renew or                      Similar guidance was provided in                      Clarification Act statutory provision, 15
                                           continue credit.’’ 33 The ECOA further                   policy statements issued in 2008 and                  U.S.C. 1681m(e)(4).
                                           defines ‘‘credit’’ as ‘‘the right granted by             early 2009.41 This guidance led to a law                 The FDIC has conferred with staff
                                           a creditor to a debtor to defer payment                  suit brought by the American Bar                      from the other Federal banking agencies,
                                           of debt or to incur debts and defer its                  Association against the FTC alleging                  who do not object to the issuance of this
                                           payment or to purchase property or                       that the application of the rules to                  final rulemaking to amend the Red Flags
                                           services and defer payment therefor.’’ 34                attorneys exceeded FTC’s authority.                   Rule to conform it to the Clarification
                                           Regulation B, promulgated under the                      Similar complaints were brought by the                Act. In fact, in May, 2014, both the OCC
                                           ECOA, defines ‘‘credit’’ in similar terms:               American Medical Association and                      and the Federal Reserve Board issued
                                           ‘‘the right granted by a creditor to an                  other professionals.                                  final rules making the conforming
                                           applicant to defer payment of a debt,                       In December 2010, Congress enacted                 change.49 The SEC and CFTC have
                                           incur debt and defer its payment, or                     the Red Flag Program Clarification Act                previously issued final rules under
                                           purchase property or services and defer                  (Clarification Act), 15 U.S.C.                        section 615 of FCRA that included a
                                           payment therefor.’’ 35                                   1681m(e)(4), which narrowed the scope                 definition of ‘‘creditor’’ as set forth in
                                              The current FDIC definition of                        of entities covered as ‘‘creditors’’ under            the Clarification Act.50
                                           ‘‘creditor’’ also expressly includes                     the Red Flags Rule.42 The Clarification                  The FDIC is also adopting a technical
                                           ‘‘lenders such as banks, finance                         Act retained the ECOA definition of                   amendment to supplement A to the
                                           companies, automobile dealers,                           ‘‘creditor,’’ but generally limited the               guidelines that accompanied the Red
                                           mortgage brokers, utility companies,                     application of the Red Flags Rule to                  Flags Rule consistent with the
                                           and telecommunications companies,’’ 36                   those ECOA creditors that ‘‘regularly                 amendments, discussed below, to vacate
                                           the same definition as the joint rules                   and in the ordinary course of business’’              the FDIC Fair Credit Reporting
                                           issued by the OCC, FRB, OTS and FTC.                     engaged in at least one of the following              regulations with rule writing authority
                                              Since the scope of the FDIC’s red flag                three types of conduct:                               transferred to the CFPB.51 In
                                           regulation covers ‘‘an insured state                        1. Obtaining or using consumer                     supplement A, the Agencies provided a
                                           nonmember bank, or a subsidiary of                       reports, directly or indirectly, in                   list of red flags to be considered by the
                                           such entities (except brokers, dealers,                  connection with a credit transaction; 43              entities covered by the rule. One of
                                           persons providing insurance,                                2. Furnishing information to                       those red flags was ‘‘[a] consumer
                                           investment companies, and investment                     consumer reporting agencies in                        reporting agency provides a notice of
                                           advisors),’’ 37 the vast majority, but not               connection with a credit transaction; 44              address discrepancy, as defined in
                                           all, of the entities covered by the FDIC                 or                                                    § 334.82(b) of this part.’’ 52 Since the
                                                                                                       3. Advancing funds to or on behalf of
                                           regulation fall under the ‘‘financial                                                                          FDIC is vacating its regulation at 12 CFR
                                                                                                    a person, based on an obligation of the
                                           institutions’’ definition.38                                                                                   334.82, the FDIC is changing the citation
                                                                                                    person to repay the funds or repayable
                                              In contrast, the vast majority of the                                                                       in that red flag to the CFPB regulation:
                                                                                                    from specific property pledged by or on
                                           entities supervised by the FTC’s rule                                                                          § 1022.82(b).
                                                                                                    behalf of the person.45
                                           would be covered by the statutory                           The Clarification Act also expressly               III. Removal of FDIC Fair Credit
                                           ‘‘creditor’’ definition. As such, the FTC                excluded creditors that advanced funds                Regulations Transferred to the
                                           had issued guidance on the scope of that                 on behalf of a person for expenses                    Consumer Financial Protection Bureau
                                           definition. For example, in a set of                     incidental to a service provided by the
                                           answers to frequently asked questions                                                                             In amending the FCRA, the FACT Act
                                                                                                    creditor to that person.46
                                           issued in June, 2009, the FTC stated:                       Finally, in addition to limiting the               gave the FDIC, along with the other
                                           ‘‘Under the [Red Flags Rule], the                        scope of coverage for ‘‘creditors’’ by                Federal banking regulators (and, in
                                           definition of ‘creditor’ is broad and                    creating these specified categories, the              some cases, the FTC and the SEC), rule
                                           includes businesses or organizations                     Clarification Act empowered the                       writing authority for a variety of Fair
                                           that regularly provide goods or services                 Agencies to determine through a future                Credit Reporting regulations. Since
                                           first and allow customers to pay later.                  rulemaking whether to include any                     2004, those regulations have been
                                           . . . Examples of groups that may fall                   other type of creditor that offers or                 promulgated on an inter-agency basis as
                                           within this definition are utilities,                    maintains accounts that are subject to a              follows:
                                           health care providers, lawyers,                                                                                   • 2004: Disposal of Consumer
                                                                                                    reasonably foreseeable risk of identity
                                           accountants, and other professionals,                                                                          Information, 12 CFR 334.83,
                                                                                                    theft.47
                                           and telecommunications companies.’’ 39                      When amending its Red Flag                         implementing FACT Act section 216
                                                                                                    ‘‘creditor’’ definition in 2012, the FTC              (FCRA section 628 (15 U.S.C. 1681w));
                                             33 15  U.S.C. 1691a(e).                                                                                         • 2005: Medical Information, 12 CFR
                                                                                                    choose not to use its discretionary
                                             34 15  U.S.C. 1691a(d).                                                                                      part 334, subpart D, implementing
                                                                                                    rulemaking to extend coverage of the
                                              35 12 CFR 1002.2(j).                                                                                        FACT Act section 411 (FCRA section
                                                                                                    Red Flags Rule to additional creditors
                                              36 12 CFR 334.90(b)(5).
                                                                                                                                                          604(g)(5) (15 U.S.C. 1681b(g)(5));
                                                                                                    and merely cited to the Clarification Act
                                              37 12 CFR 334.90(a).
                                                                                                                                                             • 2007: Affiliate Marketing, 12 CFR
                                              38 This result would be the same if the new scope     statutory definition.48 The FDIC is now
                                                                                                                                                          part 334, subpart C and appendix C,
                                           provision of the Red Flags Rule as proposed in this
                                           notice of proposed rulemaking—which would add              40 72 FR at 63741.                                    49 See 79 FR 28393, 28400 (May 16, 2014) (OCC);
                                           ‘‘a State savings association whose deposits are           41 See ABA v. FTC, 671 F. Supp. 2d at 69–70.
                                                                                                                                                          79 FR 30709, 30711 (May 29, 2014) (Federal
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                                           insured by the Federal Deposit Insurance                   42 Pub. L. 111–319, 124 Stat. 3457 (2010).
                                           Corporation’’—is finalized.                                                                                    Reserve Board).
                                                                                                      43 15 U.S.C. 1681m(e)(4)(A)(i).
                                              39 See American Bar Ass’n v. Federal Trade                                                                    50 See 78 FR 23638 (Apr. 19, 2013) (SEC and
                                                                                                      44 15 U.S.C. 1681m(e)(4)(A)(ii).
                                           Comm’n (‘‘ABA v. FTC’’), 671 F. Supp. 2d 64, 70                                                                CFTC joint final rules; the CFTC ‘‘creditor’’
                                                                                                      45 15 U.S.C. 1681m(e)(4)(A)(iii).
                                           (D.D.C. 2009) (quoting Red Flags Rule: Frequently                                                              definition cited the Clarification Act provision, but
                                                                                                      46 15 U.S.C. 1681m(e)(4)(B).                        also specifically listed the covered entities).
                                           Asked Questions, http://www.ftc.gov/bcp/edu/
                                                                                                      47 15 U.S.C. 1681m(e)(4)(C).                          51 12 CFR part 334, supplement A to appendix J.
                                           microsites/redflagsrule/faqs.shtm (since amended)),
                                           vacated as moot, 636 F.3d 641 (D.C. Cir. 2011).            48 See 77 FR 72712 (Dec. 6, 2012).                    52 Id. at 3.




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                                                            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations                                         65917

                                           implementing FACT Act section 214                          As a result of the of rule writing                   Final Rule will not involve any new
                                           (FCRA section 624 note (15 U.S.C.                        authority transferred to the CFPB, the                 collections of information under the
                                           1681s–3 note));                                          FDIC rescinds and removes those                        PRA or impact current burden
                                              • 2007: Identity Theft Red Flags, 12                  regulations and appendices covered                     estimates.
                                           CFR part 334, subpart J and appendix J,                  under the CFPB’s Regulation V. In                         Part of the Final Rule would amend
                                           implementing FACT Act section 114                        addition to the specific citations set out             the ‘‘creditor’’ definition in the FDIC’s
                                           (FCRA section 615(e) (15 U.S.C.                          above, the FDIC is also rescinding and                 Identity Theft Red Flag regulation in
                                           1681m(e)); 53                                            removing those parts of the Purpose and                conformance with the Clarification Act.
                                              • 2007: Address Discrepancy, 12 CFR                   Definition provisions of the ‘‘Fair Credit             The vast majority of entities regulated
                                           334.82, implementing FACT Act section                    Reporting’’ regulations that related to                by the FDIC under the Identity Theft
                                           315 (FCRA section 605(h) (15 U.S.C.                      the substantive regulations transferred                Red Flag regulation fall under the
                                           1681c(h)); and                                           to the CFPB.59                                         ‘‘financial institution’’ definition, and,
                                              • 2009: Duties of Furnishers of                         Even though there is no longer rule                  therefore, would be covered under the
                                           Information, 12 CFR part 334, subpart E                  writing authority for those ‘‘Fair Credit              rule regardless of the change in the
                                           and appendix E, implementing FACT                        Reporting’’ rules, the FDIC will continue              ‘‘creditor’’ definition. For any subsidiary
                                           Act section 312 (FCRA section 623(e)                     to examine for compliance with the                     of a covered financial institution not
                                           (15 U.S.C. 1681S–2(e)).                                  rules and take enforcement action when                 covered under the ‘‘financial
                                              Title X of the Dodd-Frank Act                         warranted.                                             institution’’ definition, the change to the
                                           amended a number of consumer                                                                                    ‘‘creditor’’ definition would, arguably,
                                           financial protection laws, including                     IV. Regulatory Analysis and Procedure
                                                                                                                                                           cover fewer, rather than more, entities.
                                           provisions of the FCRA. In addition to                   A. The Paperwork Reduction Act                         Thus, this provision of the Final Rule
                                           substantive amendments, the Dodd-                                                                               will not involve any new collections of
                                                                                                       In accordance with the requirements
                                           Frank Act transferred rulemaking                                                                                information under the PRA or
                                                                                                    of the Paperwork Reduction Act
                                           authority from the FDIC, FRB, OCC,                                                                              substantively impact current burden
                                                                                                    (‘‘PRA’’) of 1995, 44 U.S.C. 3501–3521,
                                           FTC, NCUA, and OTS for several                                                                                  estimates.
                                                                                                    the FDIC may not conduct or sponsor,
                                           provisions of the ‘‘Fair Credit                                                                                    Finally, part of the Final Rule
                                                                                                    and the respondent is not required to
                                           Reporting’’ regulations to the CFPB,                                                                            rescinds and removes those portions of
                                                                                                    respond to, an information collection
                                           effective July 21, 2011.54 These include                                                                        12 CFR part 334 where rule writing
                                                                                                    unless it displays a currently valid
                                           the following regulations listed above:                                                                         authority was transferred to the CFPB.
                                                                                                    Office of Management and Budget
                                           medical information; affiliate marketing;                                                                       This portion of the Final Rule will also
                                                                                                    (‘‘OMB’’) control number.
                                           address discrepancy; and duties of                                                                              not involve any new collections of
                                                                                                       Part of the Final Rule rescinds and
                                           furnishers of information. Those                                                                                information under the PRA or impact
                                                                                                    removes part 391, subpart C from the
                                           regulations were covered under 12 CFR                                                                           current burden estimates.
                                                                                                    FDIC regulations. This rule was
                                           part 334 subparts C, D, and E, as well                                                                             Based on the foregoing, no
                                                                                                    transferred with only nominal changes
                                           as 12 CFR 334.82 in subpart I. The                                                                              information collection request has been
                                                                                                    to the FDIC from the OTS when the OTS
                                           transfer also included the related                                                                              submitted to the OMB for review.
                                                                                                    was abolished by title III of the Dodd-
                                           Appendices, 12 CFR part 334,
                                                                                                    Frank Act. Part 391, subpart C is largely              B. The Regulatory Flexibility Act
                                           Appendices C and E. On December 21,
                                                                                                    redundant of the FDIC’s existing part
                                           2011, the CFPB published in the                                                                                    The Regulatory Flexibility Act
                                                                                                    334 regarding ‘‘Fair Credit Reporting’’
                                           Federal Register an interim final rule                                                                          (‘‘RFA’’), requires that each federal
                                                                                                    regulations, including appendix J to the
                                           Regulation V, which implemented the                                                                             agency either (1) certify that a proposed
                                                                                                    part. The FDIC reviewed its burden
                                           Dodd-Frank Act amendments to the                                                                                rule would not, if adopted in final form,
                                                                                                    estimates for the collection at the time
                                           FCRA with regard to those regulations                                                                           have a significant economic impact on
                                                                                                    it assumed responsibility for
                                           and appendices.                                                                                                 a substantial number of small entities
                                                                                                    supervision of State savings associations
                                              As discussed above, the Dodd-Frank                                                                           (defined in regulations promulgated by
                                                                                                    transferred from the OTS and
                                           Act did not transfer all rulemaking                                                                             the Small Business Administration to
                                                                                                    determined that no changes to the
                                           authority under the FCRA. Specifically,                                                                         include banking organizations with total
                                                                                                    burden estimates were necessary. This
                                           the Act did not transfer to the CFPB the                                                                        assets of less than or equal to $550
                                                                                                    Final Rule will not modify the FDIC’s
                                           authority to promulgate: rules on the                                                                           million), or (2) prepare an initial
                                                                                                    existing collection and does not involve
                                           disposal of consumer information; 55                                                                            regulatory flexibility analysis of the rule
                                                                                                    any new collections of information
                                           rules on identity theft red flags and                                                                           and publish the analysis for comment.60
                                                                                                    pursuant to the PRA.
                                           corresponding interagency guidelines                                                                            For the reasons provided below, the
                                                                                                       The Final Rule also amends §§ 334.83,
                                           on identity theft detection, prevention,                                                                        FDIC certifies that the Final Rule would
                                                                                                    334.90, and 334.91 to include State
                                           and mitigation; 56 and rules on the                                                                             not have a significant economic impact
                                                                                                    savings associations and their
                                           duties of card issuers regarding changes                                                                        on a substantial number of small
                                                                                                    subsidiaries within the scope of part
                                           of address.57 These existing provisions                                                                         entities.
                                                                                                    334. The Final Rule also amends those
                                           are not included in the Bureau’s new                                                                               As discussed in the proposed rule,
                                                                                                    provisions to define ‘‘State savings
                                           Regulation V.58                                                                                                 part 391, subpart C was transferred from
                                                                                                    association.’’ These measures clarify
                                                                                                    that State savings associations, as well               OTS part 571, which governed Fair
                                             53 As amended by the Clarification Act. See
                                                                                                    as State nonmember banks are subject to                Credit Reporting. OTS part 571 had
                                           discussion above.
                                             54 See sections 1061 and 1088 of the Dodd-Frank        part 334. Thus, these provisions of the                been in effect beginning in 2004, and all
                                           Act.                                                                                                            State savings associations were required
                                                                                                                                                           to comply with it. Because it is basically
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                                             55 See 15 U.S.C. 1681m(e); section 1088 of the
                                                                                                    dealer that is predominantly engaged in the sale
                                           Dodd-Frank Act.                                          and servicing of motor vehicles, the leasing and       redundant of existing part 334 of the
                                             56 See 15 U.S.C. 1681w; section 1088 of the Dodd-
                                                                                                    servicing of motor vehicles, or both, subject to       FDIC’s rules, the FDIC rescinds and
                                           Frank Act.                                               certain exceptions. See section 1029 of the Dodd-
                                             57 See 15 U.S.C. 1681m(e); section 1088 of the         Frank Act.
                                                                                                                                                           removes part 391, subpart C. As a result,
                                           Dodd-Frank Act.                                            59 Those provisions include part of 12 CFR 334.1     all FDIC-supervised institutions—
                                             58 The Act also did not transfer rulemaking            and the definitions set out at 12 CFR 334.3(a), (b),
                                           authority under the FCRA over any motor vehicle          (d), (i), and (k).                                      60 5   U.S.C. 601 et seq.



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                                           65918            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations

                                           including State savings associations and                  funds or repayable from specific                     FDIC might make it easier to
                                           their subsidiaries—are required to                        property pledged by or on behalf of the              understand.
                                           comply with part 334. Because all State                   person. 12 U.S.C. 1681m(e)(4)(A).
                                                                                                                                                          D. The Economic Growth and
                                           savings associations and their                            Creditors that advance funds on behalf
                                                                                                                                                          Regulatory Paperwork Reduction Act
                                           subsidiaries have been required to                        of a person for expenses incidental to a
                                           comply with substantially the same                        service provided by the creditor to that               Under section 2222 of the Economic
                                           rules beginning in 2004, today’s Final                    person are excluded from the definition.             Growth and Regulatory Paperwork
                                           Rule would have no significant                            Small entity creditors that do not meet              Reduction Act of 1996 (‘‘EGRPRA’’), the
                                           economic impact on any State savings                      this more limited definition would no                FDIC is required to review all of its
                                           association.                                              longer be covered by the rule. However,              regulations, at least once every 10 years,
                                              In a similar way, portions of part 334                 small entities that are financial                    in order to identify any outdated or
                                           of the FDIC’s rules were transferred to                   institutions would still be covered by               otherwise unnecessary regulations
                                           the CFPB Regulation V effective 2011.                     the rule, regardless of whether they                 imposed on insured institutions.62 The
                                           Because all FDIC supervised                               meet the revised definition of creditor.             FDIC completed the last comprehensive
                                           institutions—including State savings                         The Final Rule also updates a cross-              review of its regulations under EGRPRA
                                           associations and their subsidiaries—                      reference in the Red Flags Rule to reflect           in 2006 and is commencing the next
                                           have been required to comply with part                    the CFPB’s rulemaking authority for the              decennial review. The action taken on
                                           334 beginning in 2004, today’s Final                      notice of address discrepancy                        this rule will be included as part of the
                                           Rule would have no significant                            provisions in the FCRA. This revision                EGRPRA review that is currently in
                                           economic impact on those                                  would have no effect on small entities               progress. The FDIC received no
                                           institutions.61                                           because there was no substantive                     comments concerning whether the
                                              With regard to the portion of the Final                difference between the FDIC definition               Proposed Rule would impose any
                                           Rule amending the Red Flags Rule and                      of a ‘‘notice of address discrepancy’’ and           outdated or unnecessary regulatory
                                           appendix:                                                 the CFPB’s definition.                               requirements on insured depository
                                              1. Statement of the need for, and                         3. Recordkeeping, reporting, and                  institutions.
                                           objectives of, the proposed rule. As                      compliance requirements. The Final
                                           noted above, the Clarification Act                        Rule does not impose any new                         List of Subjects
                                           amended the definition of ‘‘creditor’’ in                 recordkeeping, reporting, or compliance              12 CFR Part 334
                                           the FCRA for purposes of the red flags                    requirements on small entities. Small
                                           provisions. The FDIC is amending the                      entities that no longer meet the                       Fair credit reporting.
                                           definition of ‘‘creditor’’ in its Red Flags               narrower definition of ‘‘creditor’’ would            12 CFR Part 391
                                           Rule to reflect the revised definition of                 not have to comply with the
                                           that term in the Clarification Act. As                                                                           Fair credit reporting.
                                                                                                     requirements of the Red Flags Rule.
                                           also noted above, the FDIC is updating                    However, small entity financial                      Authority and Issuance
                                           a cross-reference in the Red Flags Rule                   institutions would still be required to                For the reasons stated in the
                                           to reflect the CFPB’s rulemaking                          comply with the Red Flags Rule,                      preamble, the Board of Directors of the
                                           authority for the notice of address                       regardless of whether they meet the                  Federal Deposit Insurance Corporation
                                           discrepancy provisions in the FCRA.                       revised definition of creditor.
                                              2. Small entities affected by the                                                                           amends parts 334 and 391 of title 12 of
                                                                                                        4. Other federal rules. The FDIC has              the Code of Federal Regulations as set
                                           proposed rule. The Final Rule would                       not identified any federal statutes or
                                           amend the definition of ‘‘creditor’’ in 12                                                                     forth below:
                                                                                                     regulations that would duplicate,
                                           CFR 334.90 to conform to the revised                      overlap, or conflict with the proposed               PART 334—FAIR CREDIT REPORTING
                                           definition of that term in the                            revision.
                                           Clarification Act. The definition                            5. Significant alternatives to the                Subpart A—General Provisions
                                           continues to refer to the FCRA                            proposed revisions. The revisions to the
                                           definition of ‘‘creditor,’’ which                         definition of ‘‘creditor’’ and the cross-            ■ 1. The authority citation for part 334
                                           references the ECOA definition of                         reference to the definition of a ‘‘notice            continues to read as follows:
                                           ‘‘creditor,’’ but limits the application of               of address discrepancy’’ reflect statutory             Authority: 12 U.S.C. 1818, 1819 (Tenth),
                                           the red flags provisions to only those                    changes. The FDIC does not believe                   and 1831p–1; 15 U.S.C. 1681a, 1681b, 1681c,
                                           creditors that regularly and in the                       there are significant alternatives to these          1681m, 1681s, 1681s–2, 1681s–3, 1681t,
                                           ordinary course of business: (a) Obtain                   revisions. Although the FDIC has                     1681w, 6801 et seq., Pub. L. 108–159, 117
                                           or use consumer reports in connection                     authority to determine through a                     Stat. 1952.
                                           with a credit transaction; (b) furnish                    rulemaking that any other creditor that              ■   2. Revise § 334.1 to read as follows:
                                           information to consumer reporting                         offers or maintains accounts that are
                                           agencies in connection with a credit                      subject to a reasonably foreseeable risk             § 334.1     Purpose and scope.
                                           transaction; or (c) advance funds to or                   of identity theft is subject to the Red                 (a) Purpose The purpose of this part
                                           on behalf of a person, based on an                        Flags Rule, the FDIC does not believe it             is to implement the Fair Credit
                                           obligation of the person to repay the                     is appropriate to use its discretionary              Reporting Act.
                                                                                                     rulemaking authority at this time.                      (b) Scope Except as otherwise
                                             61 When propounding its new Regulation V, the
                                                                                                                                                          provided in this part, the regulations in
                                           CFPB made the following representation in its             C. Plain Language                                    this part apply to insured state
                                           Regulatory Flexibility Act discussion:
                                                                                                        Section 722 of the GLB Act, codified              nonmember banks, state savings
                                             [T]his rule has only a minor impact on entities
                                                                                                     at 12 U.S.C. 4809, requires each Federal             associations whose deposits are insured
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                                           subject to Regulation V. Accordingly, the
                                           undersigned certifies that this interim final rule will   banking agency to use plain language in              by the Federal Deposit Insurance
                                           not have a significant economic impact on a               all of its proposed and final rules                  Corporation, insured state licensed
                                           substantial number of small entities. The rule            published after January 1, 2000. The
                                           imposes no new, substantive obligations on covered
                                                                                                                                                          branches of foreign banks, and
                                           entities and will require only minor, one-time            FDIC received no comments on whether                 subsidiaries of such entities (except
                                           adjustments to certain model form. . . .                  the Proposed Rule was clearly stated
                                             76 FR at 79312.                                         and effectively organized or on how the                  62 Public   Law 104–208 (Sept. 30, 1996).



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                                                            Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations                                      65919

                                           brokers, dealers, persons providing                      persons providing insurance,                          FEDERAL DEPOSIT INSURANCE
                                           insurance, investment companies, and                     investment companies, or investment                   CORPORATION
                                           investment advisers).                                    advisers).
                                                                                                                                                          12 CFR Parts 330 and 370
                                           ■ 3. Amend § 334.3 by adding paragraph                     (b) * * *
                                           (m) to read as follows:                                    (3) State savings association has the               RIN 3064–AE34

                                           § 334.3    Definitions.                                  same meaning as in section 3(b)(3) of                 Temporary Liquidity Guarantee
                                           *    *     *     *    *                                  the Federal Deposit Insurance Act, 12                 Program; Unlimited Deposit Insurance
                                             (m) State savings association has the                  U.S.C. 1813(b)(3).                                    Coverage for Noninterest-Bearing
                                           same meaning as in section 3(b)(3) of                    *     *     *    *     *                              Transaction Accounts
                                           the Federal Deposit Insurance Act, 12
                                                                                                    ■ 8. In appendix J to part 334, amend                 AGENCY:  Federal Deposit Insurance
                                           U.S.C. 1813(b)(3).
                                                                                                    supplement A under the heading                        Corporation (FDIC).
                                           Subparts C through E—[Removed and                        ‘‘Alerts, Notifications or Warnings from              ACTION: Final rule.
                                           Reserved]                                                a Consumer Reporting Agency’’ by
                                                                                                    revising paragraph 3 to read as follows:              SUMMARY:   The FDIC is rescinding and
                                           ■ 3. Remove and reserve subparts C, D,                                                                         removing its regulations implementing
                                           and E.                                                   Appendix J to Part 334—Interagency                    the Temporary Liquidity Guarantee
                                                                                                    Guidelines on Identity Theft Detection,               Program (TLGP) and the unlimited
                                           Subpart I—Records Disposal                               Prevention, and Mitigation
                                                                                                                                                          deposit insurance coverage for
                                                                                                    *       *     *       *      *                        ‘‘noninterest-bearing transaction
                                           ■ 4. Revise the heading for subpart I to
                                           read as set forth above.                                 Supplement A to Appendix J                            accounts’’ provided by section 343 of
                                                                                                                                                          the Dodd-Frank Wall Street Reform and
                                           § 334.82    [Removed and Reserved]
                                                                                                    *       *     *       *      *                        Consumer Protection Act, and related
                                           ■   5. Remove and reserve § 334.82.                      Alerts, Notifications or Warnings from a              definitions. Because these programs
                                                                                                    Consumer Reporting Agency                             have expired by their terms, the
                                           Subpart J—Identity Theft Red Flags                       *       *     *       *      *                        regulations implementing them are
                                                                                                                                                          unnecessary and obsolete.
                                           ■ 6. Amend § 334.90 by revising                          ■ 3. A consumer reporting agency                      DATES: Effective Date: The final rule is
                                           paragraphs (a) and (b)(5) and adding                     provides a notice of address                          effective October 28, 2015.
                                           paragraph (b)(11) to read as follows:                    discrepancy, as defined in 12 CFR
                                                                                                                                                          FOR FURTHER INFORMATION CONTACT:
                                           § 334.90 Duties regarding the detection,
                                                                                                    1022.82(b).                                           Schuyler Livingston, Economic Analyst,
                                           prevention, and mitigation of identity theft.            *     *    *    *      *                              Division of Insurance and Research
                                              (a) Scope This section applies to a                                                                         (202) 898–6830 or slivingston@fdic.gov;
                                           financial institution or creditor that is                PART 391—REGULATIONS                                  Marc Steckel, Deputy Director, Division
                                           an insured state nonmember bank, State                   TRANSFERRED FROM THE OFFICE OF                        of Resolutions and Receiverships (571)
                                           savings association whose deposits are                   THRIFT SUPERVISION                                    858–8224 or msteckel@fdic.gov; Lisa D.
                                           insured by the Federal Deposit                                                                                 Arquette, Associate Director, Division of
                                           Insurance Corporation, insured state                     ■ 9. The authority citation for part 391              Risk Management Supervision (202)
                                           licensed branch of a foreign bank, or a                  continues, in part, to read as follows:               898–8633 or larquette@fdic.gov; or
                                           subsidiary of such entities (except                          Authority: 12 U.S.C. 1819.                        Gregory S. Feder, Counsel, Legal
                                           brokers, dealers, persons providing                                                                            Division (202) 898–8724 or gfeder@
                                           insurance, investment companies, and                     *       *     *       *      *                        fdic.gov.
                                                                                                      Subpart C also issued under 12 U.S.C.
                                           investment advisers).                                                                                          SUPPLEMENTARY INFORMATION:
                                                                                                    1462a; 1463; 1464; 1828; 1831p–1; and 1881–
                                              (b) * * *
                                                                                                    1884; 15 U.S.C. 1681m; 1681w.                         I. Background
                                              (5) Creditor has the same meaning as
                                           in 15 U.S.C. 1681m(e)(4).                                *       *     *       *      *                           In October 2008, acting in response to
                                           *      *     *     *    *                                                                                      unprecedented disruptions to the
                                                                                                    Subpart C—[Removed and Reserved]
                                              (11) State savings association has the                                                                      nation’s credit markets and pursuant to
                                           same meaning as in section 3(b)(3) of                                                                          section 13(c)(4)(G) of the Federal
                                           the Federal Deposit Insurance Act, 12                    ■ 10. Remove and reserve subpart C,                   Deposit Insurance Act (FDI Act),1 the
                                           U.S.C. 1813(b)(3).                                       consisting of §§ 391.20 through 391.23                Board of Directors of the Federal
                                                                                                    and an appendix.                                      Deposit Insurance Corporation (FDIC)
                                           *      *     *     *    *
                                           ■ 7. Amend § 334.91 by revising                            Dated at Washington, DC, this 22nd day of           and the Board of Governors of the
                                           paragraph (a) and adding paragraph                       October, 2015.                                        Federal Reserve System (FRB)
                                           (b)(3) to read as follows:                                 By order of the Board of Directors.                 recommended that the Secretary of the
                                                                                                    Federal Deposit Insurance Corporation.                Treasury, following consultation with
                                           § 334.91 Duties of card issuers regarding                                                                      the President, make a determination that
                                           change of address.                                       Robert E. Feldman,
                                                                                                                                                          systemic risk existed in the nation’s
                                              (a) Scope This section applies to an                  Executive Secretary.                                  financial system. After the Treasury
                                           issuer of a debit or credit card (card                   [FR Doc. 2015–27291 Filed 10–27–15; 8:45 am]          Secretary’s determination of systemic
                                           issuer) that is an insured state                                                                               risk, the FDIC was authorized to take
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                                                                                                    BILLING CODE 6714–01–P
                                           nonmember bank, state savings                                                                                  action or to provide assistance as
                                           association whose deposits are insured                                                                         necessary to avoid or to mitigate the
                                           by the Federal Deposit Insurance                                                                               effects of the perceived risks to the
                                           Corporation, insured state licensed                                                                            financial system. Pursuant to this
                                           branch of a foreign bank, or a subsidiary
                                           of such entities (except brokers, dealers,                                                                       1 12   U.S.C. 1823(c)(4)(G).



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Document Created: 2018-02-27 08:57:43
Document Modified: 2018-02-27 08:57:43
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThe Final Rule is effective November 27, 2015.
ContactSandra Barker, Senior Policy Analyst, Division of Depositor and Consumer Protection, (202) 898-3615 or [email protected]; Jeffrey Kopchik, Senior Policy Analyst, Division of Risk Management Supervision, (703) 254-0459 or [email protected]; Richard M. Schwartz, Counsel, Legal Division, (202) 898-7424 or [email protected]
FR Citation80 FR 65913 
RIN Number3064-AE29
CFR Citation12 CFR 334
12 CFR 391

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