Commodity Futures Trading Commission 

 Office of Public Affairs 

 Three Lafayette Centre 

 1155 21st Street, NW 

 Washington, DC 20581 

 www.cftc.gov

Fair Credit Reporting Act Proposed Rulemaking Q & A 

What is the goal of the proposed rulemaking? 

The notice of rulemaking proposes to create a regime for a consumer to prohibit entities that are subject to CFTC 

jurisdiction from using certain consumer information obtained from an affiliate to make solicitations to that 

consumer for marketing purposes. In addition, the notice requires entities subject to CFTC jurisdiction that possess 

or maintain consumer information in connection with their business activities to develop and implement a written 

program and procedures for the proper disposal of such information. 

Which entities are subject to the proposed regulations? 

The proposed regulations will apply to futures commission merchants, retail foreign exchange dealers, commodity 

trading advisors, commodity pool operators, introducing brokers, swap dealers and major swap participants, 

regardless of whether they are required to register with the CFTC..

Is the proposal similar to rules promulgated by other federal agencies? 

The Fair Credit Reporting Act required various federal agencies to issue regulations providing protections to 

consumer information held by entities that are subject to Commission jurisdiction. In particular, the Office of the 

Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit 

Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, the Securities 

and Exchange Commission and the Federal Trade Commission issued final rules implementing these sections of the 

FCRA. The CFTC is now proposing to adopt similar rules to the final rules adopted by these federal agencies, to 

the extent possible, to ensure consistency and comparability. 

Under what conditions can an entity subject to CFTC jurisdiction make solicitations to a 

consumer based on information received from an affiliate: 

An entity subject to CFTC jurisdiction can make solicitations to a consumer based on that consumer’s information 

if: 

(1) The consumer is given clear, conspicuous and concise notice; 

(2) The consumer is given a reasonable opportunity to opt out of such use of the information; and 

(3) The consumer does not opt out. 

If a consumer elects to opt-out of receiving marketing solicitations, how long would the election 

period last? 

A consumer’s opt-out election would be effective for a period of at least five years. If an entity wishes to avoid the 

cost and burden of tracking five-year consumer opt-out periods with varying start and end dates, the entity may 

chose to treat a consumer’s opt-out election as effective for a period longer than five years, including indefinitely. 

What constitutes making a solicitation? 

Under the proposed regulations, a solicitation means the marketing of a financial product or service initiated by an 

entity to a particular consumer that is based on certain information communicated by its affiliate. The 

communication to the consumer must be intended to encourage the consumer to purchase the entity’s financial 

Commodity Futures Trading Commission ♦ Office of Public Affairs ♦ 202-418-5080 
2 

Commodity Futures Trading Commission ♦ Office of Public Affairs ♦ 202-418-5080 

products or services. A communication, such as a telemarketing solicitation, direct mail, or e-mail, is a solicitation if 

it is directed to a specific consumer based on the consumer’s personal information. Solicitation does not, however, 

include communications that are directed at the general public without regard to the consumer’s personal 

information, even if those communications are intended to encourage consumers to purchase financial products 

and services from the entity initiating the communications. 

What are the proper methods of disposal of consumer information under the proposed 

regulations? 

Under the proposed regulations, “reasonable” disposal measures include: 

• Implementing and monitoring compliance with policies and procedures that require the burning, 

pulverizing, or shredding of papers containing consumer information so that the information cannot 

practicably be read or reconstructed; 

• Implementing and monitoring compliance with policies and procedures that require the destruction or 

erasure of electronic media containing consumer information so that the information cannot practically be 

read or reconstructed; and 

• After due diligence, entering into and monitoring compliance with a written contract with another party 

engaged in the business of record destruction to dispose of consumer information in a manner that is 

consistent with this rule.