Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5069 

7The FDIC expects to evaluate jointly with the 

Board, FDIC, and OCC whether foreign special 

resolution regimes meet the requirements of this 

proposed rule. 

1The FDIC expects to evaluate jointly with the 

Board and OCC whether foreign special resolution 

regimes meet the requirements of this proposed 

rule. 

Repo-style transaction means a 

repurchase or reverse repurchase 

transaction, or a securities borrowing or 

securities lending transaction, including 

a transaction in which the FDICsupervised institution acts as agent for 

a customer and indemnifies the 

customer against loss, provided that: 

(1) The transaction is based solely on 

liquid and readily marketable securities, 

cash, or gold; 

(2) The transaction is marked-to-fair 

value daily and subject to daily margin 

maintenance requirements; 

(3)(i) The transaction is a ‘‘securities 

contract’’ or ‘‘repurchase agreement’’ 

under section 555 or 559, respectively, 

of the Bankruptcy Code (11 U.S.C. 555 

or 559), a qualified financial contract 

under section 11(e)(8) of the Federal 

Deposit Insurance Act, or a netting 

contract between or among financial 

institutions under sections 401–407 of 

the Federal Deposit Insurance 

Corporation Improvement Act or the 

Federal Reserve’s Regulation EE (12 CFR 

part 231); or 

(ii) If the transaction does not meet 

the criteria set forth in paragraph (3)(i) 

of this definition, then either: 

(A) The transaction is executed under 

an agreement that provides the FDICsupervised institution the right to 

accelerate, terminate, and close-out the 

transaction on a net basis and to 

liquidate or set-off collateral promptly 

upon an event of default, including 

upon an event of receivership, 

insolvency, liquidation, or similar 

proceeding, of the counterparty, 

provided that, in any such case, any 

exercise of rights under the agreement 

will not be stayed or avoided under 

applicable law in the relevant 

jurisdictions, other than in receivership, 

conservatorship, or resolution under the 

Federal Deposit Insurance Act, Title II 

of the Dodd-Frank Act, or under any 

similar insolvency law applicable to 

GSEs, or laws of foreign jurisdictions 

that are substantially similar 7 to the 

U.S. laws referenced in this paragraph 

in order to facilitate the orderly 

resolution of the defaulting 

counterparty; or 

(B) The transaction is: 

(1) Either overnight or 

unconditionally cancelable at any time 

by the FDIC-supervised institution; and 

(2) Executed under an agreement that 

provides the FDIC-supervised 

institution the rights to accelerate, 

terminate, and close-out the transaction 

on a net basis and to liquidate or set off 

collateral promptly upon an event of 

counterparty default. 

(4) In order to recognize an exposure 

as a repo-style transaction for purposes 

of this subpart, an FDIC-supervised 

institution must comply with the 

requirements of § 324.3(e) of this part 

with respect to that exposure. 

* * * * * 

PART 329—LIQUIDITY RISK 

MEASUREMENT STANDARDS 

■ 3. The authority citation for part 329 

continues to read as follows: 

Authority: 12 U.S.C. 1815, 1816, 1818, 

1819, 1828, 1831p–1, 5412. 

■ 4. Amend § 329.3 by revising the 

definition of ‘‘Qualifying master netting 

agreement’’ and renumbering the 

remaining footnotes throughout the part 

to read as follows: 

§ 329.3 Definitions. 

* * * * * 

Qualifying master netting agreement 

means a written, legally enforceable 

agreement provided that: 

(1) The agreement creates a single 

legal obligation for all individual 

transactions covered by the agreement 

upon an event of default following any 

stay permitted by paragraph (2) of this 

definition, including upon an event of 

receivership, insolvency, 

conservatorship, liquidation, or similar 

proceeding, of the counterparty; 

(2) The agreement provides the FDICsupervised institution the right to 

accelerate, terminate, and close-out on a 

net basis all transactions under the 

agreement and to liquidate or set-off 

collateral promptly upon an event of 

default, including upon an event of 

receivership, conservatorship, 

insolvency, liquidation, or similar 

proceeding, of the counterparty, 

provided that, in any such case, any 

exercise of rights under the agreement 

will not be stayed or avoided under 

applicable law in the relevant 

jurisdictions, other than: 

(i) In receivership, conservatorship, or 

resolution under the Federal Deposit 

Insurance Act, Title II of the DoddFrank Act, or under any similar 

insolvency law applicable to GSEs, or 

laws of foreign jurisdictions that are 

substantially similar 1 to the U.S. laws 

referenced in this paragraph (2)(i) in 

order to facilitate the orderly resolution 

of the defaulting counterparty; or 

(ii) Where the agreement is subject by 

its terms to, or incorporates, any of the 

laws referenced in paragraph (2)(i) of 

this definition; 

(3) The agreement does not contain a 

walkaway clause (that is, a provision 

that permits a non-defaulting 

counterparty to make a lower payment 

than it otherwise would make under the 

agreement, or no payment at all, to a 

defaulter or the estate of a defaulter, 

even if the defaulter or the estate of the 

defaulter is a net creditor under the 

agreement); and 

(4) In order to recognize an agreement 

as a qualifying master netting agreement 

for purposes of this subpart, a FDICsupervised institution must comply 

with the requirements of § 329.4(a) with 

respect to that agreement. 

* * * * * 

Dated: January 21, 2015. 

By order of the Board of Directors of the 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. 2015–01324 Filed 1–29–15; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Parts 334 and 391 

RIN 3064–AE29 

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: Notice of proposed rulemaking. 

SUMMARY: In this notice of proposed 

rulemaking (Proposed Rule), the Federal 

Deposit Insurance Corporation (FDIC) 

proposes to make several amendments 

to its regulations covering ‘‘Fair Credit 

Reporting.’’ 

First, the FDIC proposes to rescind 

and remove from the Code of Federal 

Regulations 12 CFR part 391, subpart C 

(part 391, subpart C), entitled ‘‘Fair 

Credit Reporting.’’ This subpart was 

included in the regulations that were 

transferred to the FDIC from the Office 

of Thrift Supervision (OTS) in 

connection with the implementation of 

applicable provisions of title III of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act (Dodd-Frank 

Act). The requirements for State savings 

associations in part 391, subpart C are 

substantively similar to those in the 


rljohnson on DSK4SPTVN1PROD with PROPOSALS
5070 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

1 Dodd-Frank Wall Street Reform and Consumer 

Protection Act, Public Law 111–203, 124 Stat. 1376 

(2010). 

2Section 312 of the Dodd-Frank Act, codified at 

12 U.S.C. 5412. 

3 76 FR 39247 (July 6, 2011). 

4 76 FR 47652 (Aug. 5, 2011). 

FDIC’s 12 CFR part 334 (part 334), also 

entitled ‘‘Fair Credit Reporting,’’ and is 

applicable for all insured depository 

institutions (‘‘IDIs’’) for which the FDIC 

has been designated the appropriate 

Federal banking agency. 

The FDIC proposes to modify the 

scope of 12 CFRs 334.1(b), 334.90(a), 

and 334.91(a) to include State savings 

associations and their subsidiaries to 

conform to the scope of the FDIC’s 

current supervisory responsibilities as 

the appropriate Federal banking agency. 

The FDIC also proposes to add new 

subsections to define ‘‘State savings 

association’’ as having the same 

meaning as in section 3(b)(3) of the 

Federal Deposit Insurance Act (FDI Act). 

Second, the FDIC proposes to amend 

the definitional portion of its Identity 

Theft Red Flags regulations to be in 

conformance with the Red Flag Program 

Clarification Act of 2010. 

Third, the FDIC proposes to rescind 

and remove from the Code of Federal 

Regulations those portions of the FDIC’s 

‘‘Fair Credit Reporting’’ regulations 

where the rule writing authority was 

provided to the Consumer Financial 

Protection Bureau (‘‘CFPB’’) in the 

Dodd-Frank Act. The FDIC will 

continue to examine for and enforce 

violations of these regulations for all 

IDIs for which the FDIC has been 

designated the appropriate Federal 

banking agency. 

Consistent with this part of the 

proposal, the FDIC also proposes to 

make a technical change in one 

provision in its version of the 

Interagency Guidelines on Identity Theft 

Detection, Prevention, and Mitigation. 

DATES: Comments must be received on 

or before March 31, 2015. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• FDIC Web site: http://www.fdic.gov/ 

regulations/laws/federal. Follow 

instructions for submitting comments 

on the agency Web site. 

• FDIC Email: Comments@fdic.gov. 

Include RIN #3064–AE29 on the subject 

line of the message. 

• FDIC Mail: Robert E. Feldman, 

Executive Secretary, Attention: 

Comments, Federal Deposit Insurance 

Corporation, 550 17th Street NW., 

Washington, DC 20429. 

• Hand Delivery to FDIC: Comments 

may be hand-delivered to the guard 

station at the rear of the 550 17th Street 

building (located on F Street) on 

business days between 7 a.m. and 5 p.m. 

Please include your name, affiliation, 

address, email address, and telephone 

number(s) in your comment. Where 

appropriate, comments should include a 

short Executive Summary consisting of 

no more than five single-spaced pages. 

All statements received, including 

attachments and other supporting 

materials, are part of the public record 

and are subject to public disclosure. 

You should submit only information 

that you wish to make publicly 

available. 

Please note: All comments received will be 

posted generally without change to http://

www.fdic.gov/regulations/laws/federal/, 

including any personal information 

provided. Paper copies of public comments 

may be requested from the Public 

Information Center by telephone at 1–877– 

275–3342 or 1–703–562–2200. 

FOR FURTHER INFORMATION CONTACT: 

Sandra Barker, Senior Policy Analyst, 

Division of Depositor and Consumer 

Protection, (202) 898–3615; Jeffrey 

Kopchik, Senior Policy Analyst, 

Division of Risk Management 

Supervision, (703) 254–0459; Richard 

M. Schwartz, Counsel, Legal Division, 

(202) 898–7424. 

SUPPLEMENTARY INFORMATION: 

I. Proposed 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 Act 

The 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. 

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

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 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 


rljohnson on DSK4SPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5071 

5 15 U.S.C. 1681a, et seq. 

6The 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. 1666. 

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. 

7 70 FR 70664 (Nov. 22, 2005). 

8Public Law 108–159, 117 Stat. 1952, 1999–2002 

(2003). 

9 15 U.S.C. 1681b. 

10 70 FR 70664 (Nov. 22, 2005). 

11 12 CFR 571.2. 

12 12 CFR 334.2. 

13Public 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. 

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. 

19See 12 CFR 571.83(a) (2007). 

20 72 FR at 63739. 

21The 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. 

FDIC rules, amending them, or 

rescinding them, as appropriate. 

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 is now 

found in 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 proposes to 

rescind part 391, subpart C, because, as 

discussed below, it is substantively 

redundant to existing part 334 and 

simultaneously we propose to make 

technical conforming edits to our 

existing rule. 

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. 

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

The OTS regulation issued at section 

391.20 was amended slightly because it 

was placed in a subpart of section 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 

will rescind section 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

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. 

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 


rljohnson on DSK4SPTVN1PROD with PROPOSALS
5072 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

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). 

23 72 FR 63718 (Nov. 9, 2007). 

24 12 CFR 391.22(a). 

25 12 CFR 391.23(a). 

26 72 FR 63718 (Nov. 9, 2007). 

27 15 U.S.C. 1681m(e). 

28 12 CFR 334.90(b)(7). 

29 15 U.S.C. 1681a(t). 

30 Id. 

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). 

FDIC proposes to rescind and remove 

from the Code of Federal Regulations 

the rule located at part 391, subpart C 

and to make minor conforming changes 

to incorporate State savings 

associations. 

There are 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 section 

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 is proposing, 

through a separate notice of proposed 

rulemaking relating to the FDIC’s Safety 

and Soundness regulations, 12 CFR part 

364, to be issued shortly, 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 

proposing a change to section 334.1(b), 

the general scope provision of the 

FDIC’s Fair Credit Reporting 

regulations, to cover State savings 

associations. The FDIC also proposes to 

add a definition of ‘‘State savings 

association’’ to section 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

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. 

The FDIC’s ‘‘red flag’’ rule, styled as 

‘‘duties regarding the detection, 

prevention, and mitigation of identity 

theft,’’ was issued as section 334.90. The 

concurrently issued OTS rule was 

issued as section 571.90. That rule was 

later transferred to the FDIC rules as 

section 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

The FDIC’s ‘‘duties of card issuers 

regarding changes of address’’ 

regulation was issued as section 334.91. 

The concurrently issued OTS rule was 

issued as section 571.91. That rule was 

later transferred to the FDIC rules as 

section 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

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 

proposes to rescind and remove from 

the Code of Federal Regulations the 

rules located at sections 391.22 and 

391.23 and guidelines located at part 

391, subpart C, appendix, and to make 

minor conforming changes to 

incorporate State savings associations. 

II. Proposed 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. 

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

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 

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

The current FDIC definition of 

‘‘creditor’’ also expressly includes 

‘‘lenders such as banks, finance 

companies, automobile dealers, 


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36 12 CFR 334.90(b)(5). 

37 12 CFR 334.90(a). 

38This 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. 

39See 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. 

41See ABA v. FTC, 671 F. Supp. 2d at 69–70. 

42Pub. L. 111–319, 124 Stat. 3457 (2010). 

43 15 U.S.C. 1681m(e)(4)(A)(i). 

44 15 U.S.C. 1681m(e)(4)(A)(ii). 

45 15 U.S.C. 1681m(e)(4)(A)(iii). 

46 15 U.S.C. 1681m(e)(4)(B). 

47 15 U.S.C. 1681m(e)(4)(C). 

48See 77 FR 72712 (Dec. 6, 2012). 

49See 79 FR 28393, 28400 (May 16, 2014) (OCC); 

79 FR 30709, 30711 (May 29, 2014) (Federal 

Reserve Board). 

50See 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). 

51 12 CFR part 334, supplement A to appendix J. 

52 Id. at 3. 

53As amended by the Clarification Act. See 

discussion above. 

mortgage brokers, utility companies, 

and telecommunications companies,’’ 36

the same definition as the joint rules 

issued by the OCC, FRB, OTS and FTC. 

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

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. 

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: 

1. Obtaining or using consumer 

reports, directly or indirectly, in 

connection with a credit transaction; 43

2. Furnishing information to 

consumer reporting agencies in 

connection with a credit transaction; 44

or 

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

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

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

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 

proposing 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). 

The FDIC has conferred with staff 

from the other Federal banking agencies, 

who do not object to the issuance of this 

notice of proposed rulemaking to amend 

the Red Flags Rule to conform it to the 

Clarification Act. 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

The FDIC is also proposing a 

technical amendment to supplement A 

to the guidelines that accompanied the 

Red Flags Rule consistent with the 

proposal, 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 § 334.82(b) of this part.’’ 52

Since the FDIC is proposing to vacate its 

regulation at 12 CFR 334.82, the FDIC is 

proposing to change the citation in that 

red flag to the CFPB regulation: 

§ 1022.82(b). 

III. Proposed 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, 

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

• 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 DoddVerDate Sep<11>2014 14:35 Jan 29, 2015 Jkt 235001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\30JAP1.SGM 30JAP1

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54See sections 1061 and 1088 of the Dodd-Frank 

Act. 

55See 15 U.S.C. 1681m(e); section 1088 of the 

Dodd-Frank Act. 

56See 15 U.S.C. 1681w; section 1088 of the DoddFrank Act. 

57See 15 U.S.C. 1681m(e); section 1088 of the 

Dodd-Frank Act. 

58The 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 DoddFrank Act. 

59Those provisions include part of 12 CFR 334.1 

and the definitions set out at 12 CFR 334.3(a), (b), 

(d), (i), and (k). 60 5 U.S.C. 601 et seq. 

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 parts 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. 

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

As a result of the of rule writing 

authority transferred to the CFPB, the 

FDIC is proposing to rescind and 

remove those regulations and 

appendices covered under the CFPB’s 

Regulation V. In addition to the specific 

citations set out above, the FDIC is also 

proposing 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

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. 

Request for Comments 

The FDIC invites comments on all 

aspects of this proposed rulemaking. 

Written comments must be received by 

the FDIC no later than March 31, 2015. 

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 Proposed Rule would 

rescind and remove from FDIC 

regulations part 391, subpart C. 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 Proposed Rule will not modify the 

FDIC’s existing collection and does not 

involve any new collections of 

information pursuant to the PRA. 

The Proposed Rule would also amend 

sections 334.83, 334.90 and 334.91 to 

include State savings associations and 

their subsidiaries within the scope of 

part 334. The Proposed Rule would also 

amend 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 Proposed Rule will not 

involve any new collections of 

information under the PRA or impact 

current burden estimates. 

Part of the Proposed 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 

proposed change to the ‘‘creditor’’ 

definition would, arguably, cover fewer, 

rather than more, entities. Thus, this 

provision of the Proposed Rule will not 

involve any new collections of 

information under the PRA or 

substantively impact current burden 

estimates. 

Finally, part of the Proposed Rule 

would rescind and remove those 

portions of 12 CFR part 334 where rule 

writing authority was transferred to the 

CFPB. This portion of the Proposed 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, in connection 

with a notice of proposed rulemaking, 

an agency prepare and make available 

for public comment an initial regulatory 

flexibility analysis that describes the 

impact of the proposed rule on 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).60

However, a regulatory flexibility 

analysis is not required if the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities, 

and publishes its certification and a 

short explanatory statement in the 

Federal Register together with the rule. 

For the reasons provided below, the 

FDIC certifies that the Proposed Rule, if 

adopted in final form, would not have 

a significant economic impact on a 

substantial number of small entities. A 

final regulatory flexibility analysis will 

be conducted after consideration of 

comments received during the public 

comment period. 

As discussed in this notice of 

proposed rulemaking, 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 redundant of 

existing part 334 of the FDIC’s rules, the 

FDIC proposes rescinding and removing 

part 391, subpart C. As a result, all 

FDIC-supervised institutions—including 

State savings associations and their 

subsidiaries—would be required to 

comply with part 334. Because all State 

savings associations and their 


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Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5075 

61When 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. 62Public Law 104–208 (Sept. 30, 1996). 

subsidiaries have been required to 

comply with substantially the same 

rules beginning in 2004, today’s 

Proposed 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 Proposed 

Rule would have no significant 

economic impact on those 

institutions.61

With regard to the portion of the 

Proposed 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 proposing to 

amend 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 proposing to update a crossreference 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 Proposed 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 proposed 

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 Proposed Rule would also update 

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 Proposed 

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 proposed 

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 invites comments on whether the 

Proposed Rule is clearly stated and 

effectively organized, and how the FDIC 

might make it easier to understand. For 

example: 

• Has the FDIC organized the material 

to suit your needs? If not, how could it 

present the rule more clearly? 

• Have we clearly stated the 

requirements of the rule? If not, how 

could the rule be more clearly stated? 

• Does the rule contain technical 

jargon that is not clear? If so, which 

language requires clarification? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the regulation 

easier to understand? If so, what 

changes would make the regulation 

easier to understand? 

• What else could we do to make the 

regulation 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. As part of that review, the 

FDIC invites comments concerning 

whether the Proposed Rule would 

impose any outdated or unnecessary 

regulatory requirements on insured 

depository institutions. If you provide 

such comments, please be specific and 

provide alternatives whenever 

appropriate. 

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 

proposes to amend part 334 and part 

391 of title 12 of the Code of Federal 

Regulations as set forth below: 

PART 334—FAIR CREDIT REPORTING 

■ 1. The authority citation 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. 


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5076 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

Subpart A—General Provisions 

■ 2. Revise § 334.1 to read as follows: 

§ 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 

brokers, dealers, persons providing 

insurance, investment companies, and 

investment advisers). 

■ 3. Amend § 334.3 by removing and 

reserving paragraphs (a), (b), (d), and (i) 

through (k), and adding paragraph (m) 

to read as follows: 

§ 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 [Reserved] 

■ 4. Remove and reserve subparts C, D 

and E consisting of §§ 334.20 through 

334.43. 

Subpart I—Records Disposal 

■ 5. Rename header for subpart I as 

shown above. 

§ 334.82 [Removed and reserved] 

■ 6. Remove and reserve § 334.82. 

Subpart J—Identity Theft Red Flags 

■ 7. Amend § 334.90 by revising 

paragraphs (a) and (b)(5) and adding 

paragraph (b)(11) to read as follows: 

§ 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). 

* * * * * 

■ 8. Amend § 334.91 by revising 

paragraph (a) and adding paragraph 

(b)(3) to read as follows: 

§ 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). 

■ 9. Amend supplement A to appendix 

J by revising example 3 to read as 

follows: 

Appendix J to Part 334—Interagency 

Guidelines on Identity Theft Detection, 

Prevention, and Mitigation 

* * * * * 

3. A consumer reporting agency provides a 

notice of address discrepancy, as defined in 

12 CFR 1022.82(b). 

* * * * * 

PART 391—FORMER OFFICE OF 

THRIFT SUPERVISION REGULATIONS 

■ 10. The authority citation for part 391 

is revised to read as follows: 

Authority: 12 U.S.C. 1819. 

Subpart A also issued under 12 U.S.C. 

1462a; 1463; 1464; 1828; 1831p-1; 1881– 

1884; 15 U.S.C. 1681w; 15 U.S.C. 6801; 6805. 

Subpart B also issued under 12 U.S.C. 

1462a; 1463; 1464; 1828; 1831p-1; 1881– 

1884; 15 U.S.C.1681w; 15 U.S.C. 6801; 6805. 

Subpart E also issued under 12 U.S.C. 

1467a; 1468; 1817; 1831i. 

Subpart C—[Removed and Reserved] 

■ 11. Remove and reserve subpart C 

consisting of §§ 391.20 through 391.23 

and appendix to subpart C of part 391. 

Dated at Washington, DC, this 21st day of 

January, 2015. 

By order of the Board of Directors. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. 2015–01499 Filed 1–29–15; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR 360 

RIN 3064–AE32 

Notice of Proposed Rulemaking To 

Revise a Section Relating to the 

Treatment of Financial Assets 

Transferred in Connection With a 

Securitization or Participation 

AGENCY: Federal Deposit Insurance 

Corporation (‘‘FDIC’’). 

ACTION: Notice of Proposed Rulemaking. 

SUMMARY: The FDIC is proposing a 

rulemaking that would revise certain 

provisions of its securitization safe 

harbor rule, which relates to the 

treatment of financial assets transferred 

in connection with a securitization or 

participation, in order to clarify the 

requirements of the Securitization Safe 

Harbor as to the retention of an 

economic interest in the credit risk of 

securitized financial assets upon and 

following the effective date of the credit 

risk retention regulations adopted under 

Section 15G of the Securities Exchange 

Act. 

DATES: Comments on the Proposed Rule 

must be received by March 31, 2015. 

You may submit comments, identified 

by RIN number, by any of the following 

methods: 

• Agency Web site: http://

www.FDIC.gov/regulations/laws/

federal_. Follow instructions for 

submitting comments on the agency 

Web site. 

• Email: Comments@FDIC.gov. 

Include RIN 3064–AE32 in the subject 

line of the message. 

• Mail: Robert E. Feldman, Executive 

Secretary, Attention: Comments, Federal 

Deposit Insurance Corporation, 550 17th 

Street NW., Washington, DC 20429. 

• Hand Delivery/Courier: Guard 

station at the rear of the 550 17th Street 

Building (located on F Street) on 

business days between 7:00 a.m. and 

5:00 p.m. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All comments will be 

posted without change to http://

www.fdic.gov/regulations/laws/ 

federal/_, including any personal 

information provided. Paper copies of 

public comments may be ordered from 

the Public Information Center by 

telephone at (877) 275–3342 or (703) 

562–2200. 

FOR FURTHER INFORMATION CONTACT: 

George H. Williamson, Manager, 

Division of Resolutions and 


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