`[Federal Register Volume 72, Number 217 (Friday, November 9, 2007)]
[Rules and Regulations]
[Pages 63718-63775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5453]



[[Page 63717]]

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Part IV

Department of the Treasury



Office of the Comptroller of the Currency



12 CFR Part 41



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Federal Reserve System

12 CFR Part 222



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Federal Deposit Insurance Corporation

12 CFR Parts 334 and 364



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Department of the Treasury



Office of Thrift Supervision

12 CFR Part 571



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National Credit Union Administration

12 CFR Part 717



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Federal Trade Commission

16 CFR Part 681



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Identity Theft Red Flags and Address Discrepancies Under the Fair and 
Accurate Credit Transactions Act of 2003; Final Rule

  Federal Register / Vol. 72, No. 217 / Friday, November 9, 2007 / 
Rules and Regulations  

[[Page 63718]]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 41

[Docket ID OCC-2007-0017]
RIN 1557-AC87

FEDERAL RESERVE SYSTEM

12 CFR Part 222

[Docket No. R-1255]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 334 and 364

RIN 3064-AD00

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 571

[Docket No. OTS-2007-0019]
RIN 1550-AC04

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 717

FEDERAL TRADE COMMISSION

16 CFR Part 681

RIN 3084-AA94


Identity Theft Red Flags and Address Discrepancies Under the Fair 
and Accurate Credit Transactions Act of 2003


AGENCIES: Office of the Comptroller of the Currency, Treasury (OCC); 
Board of Governors of the Federal Reserve System (Board); Federal 
Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, 
Treasury (OTS); National Credit Union Administration (NCUA); and 
Federal Trade Commission (FTC or Commission).

ACTION: Joint final rules and guidelines.

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SUMMARY: The OCC, Board, FDIC, OTS, NCUA and FTC (the Agencies) are 
jointly issuing final rules and guidelines implementing section 114 of 
the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) and 
final rules implementing section 315 of the FACT Act. The rules 
implementing section 114 require each financial institution or creditor 
to develop and implement a written Identity Theft Prevention Program 
(Program) to detect, prevent, and mitigate identity theft in connection 
with the opening of certain accounts or certain existing accounts. In 
addition, the Agencies are issuing guidelines to assist financial 
institutions and creditors in the formulation and maintenance of a 
Program that satisfies the requirements of the rules. The rules 
implementing section 114 also require credit and debit card issuers to 
assess the validity of notifications of changes of address under 
certain circumstances. Additionally, the Agencies are issuing joint 
rules under section 315 that provide guidance regarding reasonable 
policies and procedures that a user of consumer reports must employ 
when a consumer reporting agency sends the user a notice of address 
discrepancy.

DATES: The joint final rules and guidelines are effective January 1, 
2008. The mandatory compliance date for this rule is November 1, 2008.

FOR FURTHER INFORMATION CONTACT: 
    OCC: Amy Friend, Assistant Chief Counsel, (202) 874-5200; Deborah 
Katz, Senior Counsel, or Andra Shuster, Special Counsel, Legislative 
and Regulatory Activities Division, (202) 874-5090; Paul Utterback, 
Compliance Specialist, Compliance Department, (202) 874-5461; or Aida 
Plaza Carter, Director, Bank Information Technology, (202) 874-4740, 
Office of the Comptroller of the Currency, 250 E Street, SW., 
Washington, DC 20219.
    Board: David A. Stein or Ky Tran-Trong, Counsels, or Amy Burke, 
Attorney, Division of Consumer and Community Affairs, (202) 452-3667; 
Kara L. Handzlik, Attorney, Legal Division, (202) 452-3852; or John 
Gibbons, Supervisory Financial Analyst, Division of Banking Supervision 
and Regulation, (202) 452-6409, Board of Governors of the Federal 
Reserve System, 20th and C Streets, NW., Washington, DC 20551.
    FDIC: Jeffrey M. Kopchik, Senior Policy Analyst, (202) 898-3872, or 
David P. Lafleur, Policy Analyst, (202) 898-6569, Division of 
Supervision and Consumer Protection; Richard M. Schwartz, Counsel, 
(202) 898-7424, or Richard B. Foley, Counsel, (202) 898-3784, Legal 
Division, Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
    OTS: Ekita Mitchell, Consumer Regulations Analyst, Compliance and 
Consumer Protection, (202) 906-6451; Kathleen M. McNulty, Technology 
Program Manager, Information Technology Risk Management, (202) 906-
6322; or Richard Bennett, Senior Compliance Counsel, Regulations and 
Legislation Division, (202) 906-7409, Office of Thrift Supervision, 
1700 G Street, NW., Washington, DC 20552.
    NCUA: Regina M. Metz, Staff Attorney, Office of General Counsel, 
(703) 518-6540, National Credit Union Administration, 1775 Duke Street, 
Alexandria, VA 22314-3428.
    FTC: Naomi B. Lefkovitz, Attorney, or Pavneet Singh, Attorney, 
Division of Privacy and Identity Protection, Bureau of Consumer 
Protection, (202) 326-2252, Federal Trade Commission, 600 Pennsylvania 
Avenue, NW., Washington DC 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The President signed the FACT Act into law on December 4, 2003.\1\ 
The FACT Act added several new provisions to the Fair Credit Reporting 
Act of 1970 (FCRA), 15 U.S.C. 1681 et seq. Section 114 of the FACT Act, 
15 U.S.C. 1681m(e), amends section 615 of the FCRA, and directs the 
Agencies to issue joint regulations and guidelines regarding the 
detection, prevention, and mitigation of identity theft, including 
special regulations requiring debit and credit card issuers to validate 
notifications of changes of address under certain circumstances.\2\ 
Section 315 of the FACT Act, 15 U.S.C. 1681c(h), adds a new section 
605(h)(2) to the FCRA requiring 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 address discrepancy.
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    \1\ Pub. L. 108-159.
    \2\ Section 111 of the FACT Act defines ``identity theft'' as 
``a fraud committed using the identifying information of another 
person, subject to such further definition as the [Federal Trade] 
Commission may prescribe, by regulation.'' 15 U.S.C. 1681a(q)(3).
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    On July 18, 2006, the Agencies published a joint notice of proposed 
rulemaking (NPRM) in the Federal Register (71 FR 40786) proposing rules 
and guidelines to implement section 114 and proposing rules to 
implement section 315 of the FACT Act. The public comment period closed 
on September 18, 2006. The Agencies collectively received a total of 
129 comments in response to the NPRM, although many commenters sent 
copies of the same letter to each of the Agencies. The comments 
included 63 from financial institutions, 12 from financial institution 
holding companies, 23 from financial institution trade associations, 12 
from individuals, nine from other trade associations, five from other 
business entities, three from consumer

[[Page 63719]]

groups,\3\ one from a member of Congress, and one from the United 
States Small Business Administration (SBA).
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    \3\ One of these letters represented the comments of five 
consumer groups.
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II. Section 114 of the FACT Act

A. Red Flag Regulations and Guidelines

1. Background
    Section 114 of the FACT Act requires the Agencies to jointly issue 
guidelines for financial institutions and creditors regarding identity 
theft with respect to their account holders and customers. Section 114 
also directs the Agencies to prescribe joint regulations requiring each 
financial institution and creditor to establish reasonable policies and 
procedures for implementing the guidelines, to identify possible risks 
to account holders or customers or to the safety and soundness of the 
institution or ``customer.''\4\
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    \4\ Use of the term ``customer,'' here, appears to be a drafting 
error and likely should read ``creditor.''
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    In developing the guidelines, the Agencies must identify patterns, 
practices, and specific forms of activity that indicate the possible 
existence of identity theft. The guidelines must be updated as often as 
necessary, and cannot be inconsistent with the policies and procedures 
issued under section 326 of the USA PATRIOT Act,\5\ 31 U.S.C. 5318(l), 
that require verification of the identity of persons opening new 
accounts. The Agencies also must consider including reasonable 
guidelines that would apply when a transaction occurs in connection 
with a consumer's credit or deposit account that has been inactive for 
two years. These guidelines would provide that in such circumstances, a 
financial institution or creditor ``shall follow reasonable policies 
and procedures'' for notifying the consumer, ``in a manner reasonably 
designed to reduce the likelihood of identity theft.''
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    \5\ Pub. L. 107-56.
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2. Overview of Proposal and Comments Received
    The Agencies proposed to implement section 114 through regulations 
requiring each financial institution and creditor to implement a 
written Program to detect, prevent and mitigate identity theft in 
connection with the opening of an account or any existing account. The 
Agencies also proposed guidelines that identified 31 patterns, 
practices, and specific forms of activity that indicate a possible risk 
of identity theft. The proposed regulations required each financial 
institution and creditor to incorporate into its Program relevant 
indicators of a possible risk of identity theft (Red Flags), including 
indicators from among those listed in the guidelines. To promote 
flexibility and responsiveness to the changing nature of identity 
theft, the proposed rules also stated that covered entities would need 
to include in their Programs relevant Red Flags from applicable 
supervisory guidance, their own experiences, and methods that the 
entity had identified that reflect changes in identity theft risks.
    The Agencies invited comment on all aspects of the proposed 
regulations and guidelines implementing section 114, and specifically 
requested comment on whether the elements described in section 114 had 
been properly allocated between the proposed regulations and the 
proposed guidelines.
    Consumer groups maintained that the proposed regulations provided 
too much discretion to financial institutions and creditors to decide 
which accounts and Red Flags to include in their Programs and how to 
respond to those Red Flags. These commenters stated that the flexible 
and risk-based approach taken in the proposed rulemaking would permit 
``business as usual.''
    Some small financial institutions also expressed concern about the 
flexibility afforded by the proposal. These commenters stated that they 
preferred to have clearer, more structured guidance describing exactly 
how to develop and implement a Program and what they would need to do 
to achieve compliance.
    Most commenters, however, including many financial institutions and 
creditors, asserted that the proposal was overly prescriptive, 
contained requirements beyond those mandated in the FACT Act, would be 
costly and burdensome to implement, and would complicate the existing 
efforts of financial institutions and creditors to detect and prevent 
identity theft. Some industry commenters asserted that the rulemaking 
was unnecessary because large businesses, such as banks and 
telecommunications companies, already are motivated to prevent identity 
theft and other forms of fraud in order to limit their own financial 
losses. Financial institution commenters maintained that they are 
already doing most of what would be required by the proposal as a 
result of having to comply with the customer identification program 
(CIP) regulations implementing section 326 of the USA PATRIOT Act \6\ 
and other existing requirements. These commenters suggested that the 
regulations and guidelines take the form of broad objectives modeled on 
the objectives set forth in the ``Interagency Guidelines Establishing 
Information Security Standards'' (Information Security Standards).\7\ A 
few financial institution commenters asserted that the primary cause of 
identity theft is the lack of care on the part of the consumer. They 
stated that consumers should be held responsible for protecting their 
own identifying information.
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    \6\ See, e.g., 31 CFR 103.121 (applicable to banks, thrifts and 
credit unions and certain non-federally regulated banks).
    \7\ 12 CFR part 30, app. B (national banks); 12 CFR part 208, 
app. D-2 and part 225, app. F (state member banks and holding 
companies); 12 CFR part 364, app. B (state non-member banks); 12 CFR 
part 570, app. B (savings associations); 12 CFR part 748, App. A 
(credit unions).
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    The Agencies have modified the proposed rules and guidelines in 
light of the comments received. An overview of the final rules, 
guidelines, and supplement, a discussion of the comments, and the 
specific manner in which the proposed rules and guidelines have been 
modified, follows.
3. Overview of final rules and guidelines
    The Agencies are issuing final rules and guidelines that provide 
both flexibility and more guidance to financial institutions and 
creditors. The final rules also require the Program to address accounts 
where identity theft is most likely to occur. The final rules describe 
which financial institutions and creditors are required to have a 
Program, the objectives of the Program, the elements that the Program 
must contain, and how the Program must be administered.
    Under the final rules, only those financial institutions and 
creditors that offer or maintain ``covered accounts'' must develop and 
implement a written Program. A covered account is (1) an account 
primarily for personal, family, or household purposes, that involves or 
is designed to permit multiple payments or transactions, or (2) any 
other account for which there is a reasonably foreseeable risk to 
customers or the safety and soundness of the financial institution or 
creditor from identity theft. Each financial institution and creditor 
must periodically determine whether it offers or maintains a ``covered 
account.''
    The final regulations provide that the Program must be designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. In 
addition, the Program must be tailored to the entity's size, complexity 
and nature of its operations.

[[Page 63720]]

    The final regulations list the four basic elements that must be 
included in the Program of a financial institution or creditor. The 
Program must contain ``reasonable policies and procedures'' to:
     Identify relevant Red Flags for covered accounts and 
incorporate those Red Flags into the Program;
     Detect Red Flags that have been incorporated into the 
Program;
     Respond appropriately to any Red Flags that are detected 
to prevent and mitigate identity theft; and
     Ensure the Program is updated periodically, to reflect 
changes in risks to customers or to the safety and soundness of the 
financial institution or creditor from identity theft.
    The regulations also enumerate certain steps that financial 
institutions and creditors must take to administer the Program. These 
steps include obtaining approval of the initial written Program by the 
board of directors or a committee of the board, ensuring oversight of 
the development, implementation and administration of the Program, 
training staff, and overseeing service provider arrangements.
    In order to provide financial institutions and creditors with more 
flexibility in developing a Program, the Agencies have moved certain 
detail formerly contained in the proposed regulations to the guidelines 
located in Appendix J. This detailed guidance should assist financial 
institutions and creditors in the formulation and maintenance of a 
Program that satisfies the requirements of the regulations to detect, 
prevent, and mitigate identity theft. Each financial institution or 
creditor that is required to implement a Program must consider the 
guidelines and include in its Program those guidelines that are 
appropriate. The guidelines provide policies and procedures for use by 
institutions and creditors, where appropriate, to satisfy the 
requirements of the final rules, including the four elements listed 
above. While an institution or creditor may determine that particular 
guidelines are not appropriate to incorporate into its Program, the 
Program must nonetheless contain reasonable policies and procedures to 
meet the specific requirements of the final rules. The illustrative 
examples of Red Flags formerly in Appendix J are now listed in a 
supplement to the guidelines.
4. Section-by-Section Analysis \8\
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    \8\ The OCC, Board, FDIC, OTS and NCUA are placing the 
regulations and guidelines implementing section 114 in the part of 
their regulations that implement the FCRA--12 CFR parts 41, 222, 
334, 571, and 717, respectively. In addition, the FDIC cross-
references the regulations and guidelines in 12 CFR part 364. For 
ease of reference, the discussion in this preamble uses the shared 
numerical suffix of each of these agency's regulations. The FTC also 
is placing the final regulations and guidelines in the part of its 
regulations implementing the FCRA, specifically 16 CFR part 681. 
However, the FTC uses different numerical suffixes that equate to 
the numerical suffixes discussed in the preamble as follows: 
preamble suffix .82 = FTC suffix .1, preamble suffix .90 = FTC 
suffix .2, and preamble suffix .91 = FTC suffix .3. In addition, 
Appendix J referenced in the preamble is the FTC's Appendix A.
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Section --.90(a) Purpose and Scope

    Proposed Sec. --.90(a) described the statutory authority for the 
proposed regulations, namely, section 114 of the FACT Act. It also 
defined the scope of this section; each of the Agencies proposed 
tailoring this paragraph to describe those entities to which this 
section would apply. The Agencies received no comments on this section, 
and it is adopted as proposed.

Section --.90(b) Definitions

    Proposed Sec. --.90(b) contained definitions of various terms that 
applied to the proposed rules and guidelines. While Sec. --.90(b) of 
the final rules continues to describe the definitions applicable to the 
final rules and guidelines, changes have been made to address the 
comments, as follows.
    Section --.90(b)(1) Account. The Agencies proposed using the term 
``account'' to describe the relationships covered by section 114 that 
an account holder or customer may have with a financial institution or 
creditor.\9\ The proposed definition of ``account'' was ``a continuing 
relationship established to provide a financial product or service that 
a financial holding company could offer by engaging in an activity that 
is financial in nature or incidental to such a financial activity under 
section 4(k) of the Bank Holding Company Act, 12 U.S.C. 1843(k).'' The 
definition also gave examples of types of ``accounts.''
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    \9\ The Agencies acknowledged that section 114 does not use the 
term ``account'' and, in other contexts, the FCRA defines the term 
``account'' narrowly to describe certain consumer deposit or asset 
accounts. See 15 U.S.C. 1681a(r)(4).
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    Some commenters stated that the regulations do not need a 
definition of ``account'' to give effect to their terms. Some 
commenters maintained that a new definition for ``account'' would be 
confusing as this term is already defined inconsistently in several 
regulations and in section 615(e) of the FCRA. These commenters 
recommended that the Agencies use the term ``continuing relationship'' 
instead, and define this phrase in a manner consistent with the 
Agencies'' privacy rules \10\ implementing Title V of the Gramm-Leach-
Bliley Act (GLBA), 15 U.S.C. 6801.\11\ These commenters urged that the 
definition of ``account'' not be expanded to include relationships that 
are not ``continuing.'' They stated that it would be very burdensome to 
gather and maintain information on non-customers for one-time 
transactions. Other commenters suggested defining the term ``account'' 
in a manner consistent with the CIP rules.
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    \10\ See 12 CFR 40 (OCC); 12 CFR 216 (Board); 12 CFR 332 (FDIC); 
12 CFR 573 (OTS); 12 CFR 716 (NCUA); and 16 CFR 313 (FTC).
    \11\ Pub. L. 106-102.
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    Many commenters stated that defining ``account'' to cover both 
consumer and business accounts was too broad, exceeded the scope of the 
FACT Act, and would make the regulation too burdensome. These 
commenters recommended limiting the scope of the regulations and 
guidelines to cover only consumer financial services, specifically 
accounts established for personal, family and household purposes, 
because these types of accounts typically are targets of identity 
theft. They asserted that identity theft has not historically been 
common in connection with business or commercial accounts.
    Consumer groups maintained that the proposed definition of 
``account'' was too narrow. They explained that because the proposed 
definition was tied to financial products and services that can be 
offered under the Bank Holding Company Act, it inappropriately excluded 
certain transactions involving creditors that are not financial 
institutions that should be covered by the regulations. Some of these 
commenters recommended that the definition of ``account'' include any 
relationship with a financial institution or creditor in which funds 
could be intercepted or credit could be extended, as well as any other 
transaction which could obligate an individual or other covered entity, 
including transactions that do not result in a continuing relationship. 
Others suggested that there should be no flexibility to exclude any 
account that is held by an individual or which generates information 
about individuals that reflects on their financial or credit 
reputations.
    The Agencies have modified the definition of ``account'' to address 
these comments. First, the final rules now apply to ``covered 
accounts,'' a term that the Agencies have added to the definition 
section to eliminate

[[Page 63721]]

confusion between these rules and other rules that apply to an 
``account.'' The Agencies have retained a definition of ``account'' 
simply to clarify and provide context for the definition of ``covered 
account.''
    Section 114 provides broad discretion to the Agencies to prescribe 
regulations and guidelines to address identity theft. The terminology 
in section 114 is not confined to ``consumer'' accounts. While identity 
theft primarily has been directed at consumers, the Agencies are aware 
that small businesses also have been targets of identity theft. Over 
time, identity theft could expand to affect other types of accounts. 
Thus, the definition of ``account'' in Sec. --.90(b)(1) of the final 
rules continues to cover any relationship to obtain a product or 
service that an account holder or customer may have with a financial 
institution or creditor.\12\ Through examples, the definition makes 
clear that the purchase of property or services involving a deferred 
payment is considered to be an account.
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    \12\ Accordingly, the definition of ``account'' still applies to 
fiduciary, agency, custodial, brokerage and investment advisory 
activities.
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    Although the definition of ``account'' includes business accounts, 
the risk-based nature of the final rules allows each financial 
institution or creditor flexibility to determine which business 
accounts will be covered by its Program through a risk evaluation 
process.
    The Agencies also recognize that a person may establish a 
relationship with a creditor, such as an automobile dealer or a 
telecommunications provider, primarily to obtain a product or service 
that is not financial in nature. To make clear that an ``account'' 
includes relationships with creditors that are not financial 
institutions, the definition is no longer tied to the provision of 
``financial'' products and services. Accordingly, the Agencies have 
deleted the reference to the Bank Holding Company Act.
    The definition of ``account'' still includes the words ``continuing 
relationship.'' The Agencies have determined that, at this time, the 
burden that would be imposed upon financial institutions and creditors 
by a requirement to detect, prevent and mitigate identity theft in 
connection with single, non-continuing transactions by non-customers 
would outweigh the benefits of such a requirement. The Agencies 
recognize, however, that identity theft may occur at the time of 
account opening. Therefore, as detailed below, the obligations of the 
final rule apply not only to existing accounts, where a relationship 
already has been established, but also to account openings, when a 
relationship has not yet been established.
    Section --.90(b)(2) Board of Directors. The proposed regulations 
discussed the role of the board of directors of a financial institution 
or creditor. For financial institutions and creditors covered by the 
regulations that do not have boards of directors, the proposed 
regulations defined ``board of directors'' to include, in the case of a 
branch or agency of a foreign bank, the managing official in charge of 
the branch or agency. For other creditors that do not have boards of 
directors, the proposed regulations defined ``board of directors'' as a 
designated employee.
    Consumer groups objected to the proposed definition as it applied 
to creditors that do not have boards of directors. These commenters 
recommended that for these entities, ``board of directors'' should be 
defined as a designated employee at the level of senior management. 
They asserted that otherwise, institutions that do not have a board of 
directors would be given an unfair advantage for purposes of the 
substantive provisions of the rules, because they would be permitted to 
assign any employee to fulfill the role of the ``board of directors.''
    The Agencies agree this important role should be performed by an 
employee at the level of senior management, rather than any designated 
employee. Accordingly, the definition of ``board of directors'' has 
been revised in Sec.  --.90(b)(2) of the final rules so that, in the 
case of a creditor that does not have a board of directors, the term 
``board of directors'' means ``a designated employee at the level of 
senior management.''
    Section --.90(b)(3) Covered Account. As mentioned previously, the 
Agencies have added a new definition of ``covered account'' in Sec.  
--.90(b)(3) to describe the type of ``account'' covered by the final 
rules. The proposed rules would have provided a financial institution 
or creditor with broad flexibility to apply its Program to those 
accounts that it determined were vulnerable to the risk of identity 
theft, and did not mandate coverage of any particular type of account.
    Consumer group commenters urged the Agencies to limit the 
discretion afforded to financial institutions and creditors by 
requiring them to cover consumer accounts in their Programs. While 
seeking to preserve their discretion, many industry commenters 
requested that the Agencies limit the final rules to consumer accounts, 
where identity theft is most likely to occur.
    The Agencies recognize that consumer accounts are presently the 
most common target of identity theft and acknowledge that Congress 
expected the final regulation to address risks of identity theft to 
consumers.\13\ For this reason, the final rules require each Program to 
cover accounts established primarily for personal, family or household 
purposes, that involve or are designed to permit multiple payments or 
transactions, i.e., consumer accounts. As discussed above in connection 
with the definition of ``account,'' the final rules also require the 
Programs of financial institutions and creditors to cover any other 
type of account that the institution or creditor offers or maintains 
for which there is a reasonably foreseeable risk from identity theft.
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    \13\ See S. Rep. No. 108-166 at 13 (Oct. 17, 2003) (accompanying 
S. 1753).
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    Accordingly, the definition of ``covered account'' is divided into 
two parts. The first part refers to ``an account that a financial 
institution or creditor offers or maintains, primarily for personal, 
family, or household purposes, that involves or is designed to permit 
multiple payments or transactions.'' The definition provides examples 
to illustrate that these types of consumer accounts include, ``a credit 
card account, mortgage loan, automobile loan, margin account, cell 
phone account, utility account, checking account, or savings 
account.''\14\
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    \14\ These examples reflect the fact that the rules are 
applicable to a variety of financial institutions and creditors. 
They are not intended to confer any additional powers on covered 
entities. Nonetheless, some of the Agencies have chosen to limit the 
examples in their rule texts to those products covered entities 
subject to their jurisdiction are legally permitted to offer.
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    The second part of the definition refers to ``any other account 
that the financial institution or creditor offers or maintains for 
which there is a reasonably foreseeable risk to customers or to the 
safety and soundness of the financial institution or creditor from 
identity theft, including financial, operational, compliance, 
reputation, or litigation risks.'' This part of the definition reflects 
the Agencies' belief that other types of accounts, such as small 
business accounts or sole proprietorship accounts, may be vulnerable to 
identity theft, and, therefore, should be considered for coverage by 
the Program of a financial institution or creditor.
    In response to the proposed definition of ``account,'' a trade 
association representing credit unions suggested that the term 
``customer'' in the definition be revised to refer to

[[Page 63722]]

``member'' to better reflect the ownership structure of some financial 
institutions or to ``consumer'' to include all individuals doing 
business at all types of financial institutions. The definition of 
``account'' in the final rules no longer makes reference to the term 
``customer''; however, the definition of ``covered account'' continues 
to employ this term, to be consistent with section 114 of the FACT Act, 
which uses the term ``customer.'' Of course, in the case of credit 
unions, the final rules and guidelines will apply to the accounts of 
members that are maintained primarily for personal, family, or 
household purposes, and those that are otherwise subject to a 
reasonably foreseeable risk of identity theft.
    Sections --.90(b)(4) and (b)(5) Credit and Creditor. The proposed 
rules defined these terms by cross-reference to the relevant sections 
of the FCRA. There were no comments on the definition of ``credit'' and 
Sec.  --.90(b)(4) of the final rules adopts the definition as proposed.
    Some commenters asked the Agencies to clarify that the term 
``creditor'' does not cover third-party debt collectors who regularly 
arrange for the extension, renewal, or continuation of credit.
    Section 114 applies to financial institutions and creditors. Under 
the FCRA, the term ``creditor'' has the same meaning as in section 702 
of the Equal Credit Opportunity Act (ECOA), 15 U.S.C. 1691a.\15\ ECOA 
defines ``creditor'' to include a person who arranges for the 
extension, renewal, or continuation of credit, which in some cases 
could include third-party debt collectors. 15 U.S.C. 1691a(e). 
Therefore, the Agencies are not excluding third-party debt collectors 
from the scope of the final rules, and Sec.  --.90(b)(5) of the final 
rules adopts the definition of ``creditor'' as proposed.
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    \15\ See 15 U.S.C. 1681a(r)(5).
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    Section --.90(b)(6) Customer. Section 114 of the FACT Act refers to 
``account holders'' and ``customers'' of financial institutions and 
creditors without defining either of these terms. For ease of 
reference, the Agencies proposed to use the term ``customer'' to 
encompass both ``customers'' and ``account holders.'' ``Customer'' was 
defined as a person that has an account with a financial institution or 
creditor. The proposed definition of ``customer'' applied to any 
``person,'' defined by the FCRA as any individual, partnership, 
corporation, trust, estate, cooperative, association, government or 
governmental subdivision or agency, or other entity.\16\ The proposal 
explained that the Agencies chose this broad definition because, in 
addition to individuals, various types of entities (e.g., small 
businesses) can be victims of identity theft. Under the proposed 
definition, however, a financial institution or creditor would have had 
the discretion to determine which type of customer accounts would be 
covered under its Program, since the proposed regulations were risk-
based.\17\
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    \16\ See 15 U.S.C. 1681a(b).
    \17\ Proposed Sec.  --.90(d)(1) required this determination to 
be substantiated by a risk evaluation that takes into consideration 
which customer accounts of the financial institution or creditor are 
subject to a risk of identity theft.
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    As noted above, most industry commenters maintained that including 
all persons, not just consumers, within the definition of ``customer'' 
would impose a substantial financial burden on financial institutions 
and creditors, and make compliance with the regulations more 
burdensome. These commenters stated that business identity theft is 
rare, and maintained that financial institutions and creditors should 
be allowed to direct their fraud prevention resources to the areas of 
highest risk. They also noted that businesses are more sophisticated 
than consumers, and are in a better position to protect themselves 
against fraud than consumers, both in terms of prevention and in 
enforcing their legal rights.
    Some financial institution commenters were concerned that the broad 
definition of ``customer'' would create opportunities for commercial 
customers to shift responsibility from themselves to the financial 
institution for not discovering Red Flags and alerting business 
customers about embezzlement or other fraudulent transactions by the 
commercial customer's own employees. These commenters suggested 
narrowing the definition to cover natural persons and to exclude 
business customers. Some of these commenters suggested that the 
definition of ``customer'' should be consistent with the definition of 
this term in the Information Security Standards and the Agencies' 
privacy rules.
    Consumer groups commented that the proposed definition of 
``customer'' was too narrow. They recommended that the definition be 
amended, so that the regulations would not only protect persons who are 
already customers of a financial institution or creditor, but also 
persons whose identities are used by an imposter to open an account.
    Section --.90(b)(6) of the final rule defines ``customer'' to mean 
a person that has a ``covered account'' with a financial institution or 
creditor. Under the definition of ``covered account,'' an individual 
who has a consumer account will always be a ``customer.'' A 
``customer'' may also be a person that has another type of account for 
which a financial institution or creditor determines there is a 
reasonably foreseeable risk to its customers or to its own safety and 
soundness from identity theft.
    The Agencies note that the Information Security Standards and the 
privacy rules implemented various sections of Title V of the GLBA, 15 
U.S.C. 6801, which specifically apply only to customers who are 
consumers. By contrast, section 114 does not define the term 
``customer.'' Because the Agencies continue to believe that a business 
customer can be a target of identity theft, the final rules contain a 
risk-based process designed to ensure that these types of customers 
will be covered by the Program of a financial institution or creditor, 
when the risk of identity theft is reasonably foreseeable.
    The definition of ``customer'' in the final rules continues to 
cover only customers that already have accounts. The Agencies note, 
however, that the substantive provisions of the final rules, described 
later, require the Program of a financial institution or creditor to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account as well as any existing covered account. 
The final rules address persons whose identities are used by an 
imposter to open an account in these substantive provisions, rather 
than through the definition of ``customer.''
    Section --.90(b)(7) Financial Institution. The Agencies received no 
comments on the proposed definition of ``financial institution.'' It is 
adopted in Sec.  --.90(b)(7), as proposed, with a cross-reference to 
the relevant definition in the FCRA.
    Section --.90(b)(8) Identity Theft. The proposal defined ``identity 
theft'' by cross-referencing the FTC's rule that defines ``identity 
theft'' for purposes of the FCRA.\18\
---------------------------------------------------------------------------

    \18\ 69 FR 63922 (Nov. 3, 2004) (codified at 16 CFR 603.2(a)). 
Section 111 of the FACT Act added several new definitions to the 
FCRA, including ``identity theft,'' and authorized the FTC to 
further define this term. See 15 U.S.C. 1681a.
---------------------------------------------------------------------------

    Most industry commenters objected to the breadth of the proposed 
definition of ``identity theft.'' They recommended that the definition 
include only actual fraud committed using identifying information of a 
consumer, and exclude attempted fraud, identity theft committed against 
businesses, and any identity fraud involving the creation of a 
fictitious identity using fictitious data combined with real 
information from

[[Page 63723]]

multiple individuals. By contrast, consumer groups supported a broad 
interpretation of ``identity theft,'' including the incorporation of 
``attempted fraud'' in the definition.
    Section --.90(b)(8) of the final rules adopts the definition of 
``identity theft'' as proposed. The Agencies believe that it is 
important to ensure that all provisions of the FACT Act that address 
identity theft are interpreted in a consistent manner. Therefore, the 
final rule continues to define identity theft with reference to the 
FTC's regulation, which as currently drafted provides that the term 
``identity theft'' means ``a fraud committed or attempted using the 
identifying information of another person without authority.'' \19\ The 
FTC defines the term ``identifying information'' to mean ``any name or 
number that may be used, alone or in conjunction with any other 
information, to identify a specific person, including any--
---------------------------------------------------------------------------

    \19\ See 16 CFR 603.2(a).
---------------------------------------------------------------------------

    (1) Name, social security number, date of birth, official State or 
government issued driver's license or identification number, alien 
registration number, government passport number, employer or taxpayer 
identification number;
    (2) Unique biometric data, such as fingerprint, voice print, retina 
or iris image, or other unique physical representation;
    (3) Unique electronic identification number, address, or routing 
code; or
    (4) Telecommunication identifying information or access device (as 
defined in 18 U.S.C. 1029(e)).
    Thus, under the FTC's regulation, the creation of a fictitious 
identity using any single piece of information belonging to a real 
person falls within the definition of ``identity theft'' because such a 
fraud involves ``using the identifying information of another person 
without authority.'' \20\
---------------------------------------------------------------------------

    \20\ See 16 CFR 603.2(b).
---------------------------------------------------------------------------

    Section --.90(b)(9) Red Flag. The proposed regulations defined 
``Red Flag'' as a pattern, practice, or specific activity that 
indicates the possible risk of identity theft. The preamble to the 
proposed rules explained that indicators of a ``possible risk'' of 
identity theft would include precursors to identity theft such as 
phishing,\21\ and security breaches involving the theft of personal 
information, which often are a means to acquire the information of 
another person for use in committing identity theft. The preamble 
explained that the Agencies included such precursors to identity theft 
as ``Red Flags'' to better position financial institutions and 
creditors to stop identity theft at its inception.
---------------------------------------------------------------------------

    \21\ Electronic messages to customers of financial institutions 
and creditors directing them to provide personal information in 
response to a fraudulent e-mail.
---------------------------------------------------------------------------

    Most industry commenters objected to the broad scope of the 
definition of ``Red Flag,'' particularly the phrase ``possible risk of 
identity theft.'' These commenters believed that this definition would 
require financial institutions and creditors to identify all risks and 
develop procedures to prevent or mitigate them, without regard to the 
significance of the risk. They asserted that the statute does not 
support the use of ``possible risk'' and suggested defining a ``Red 
Flag'' as an indicator of significant, substantial, or the probable 
risk of identity theft. These commenters stated that this would allow a 
financial institution or creditor to focus compliance in areas where it 
is most needed.
    Most industry commenters also stated that the inclusion of 
precursors to identity theft in the definition of ``Red Flag'' would 
make the regulations even broader and more burdensome. They stated that 
financial institutions and creditors do not have the ability to detect 
and respond to precursors, such as phishing, in the same manner as 
other Red Flags that are more indicative of actual ongoing identity 
theft.
    By contrast, consumer groups supported the inclusion of the phrase 
``possible risk of identity theft'' and the reference to precursors in 
the proposed definition of ``Red Flag.'' These commenters stated that 
placing emphasis on detecting precursors to identity theft, instead of 
waiting for proven cases, is the right approach.
    The Agencies have concluded that the phrase ``possible risk'' in 
the proposed definition of ``Red Flag'' is confusing and could unduly 
burden entities with limited resources. Therefore, the final rules 
define ``Red Flag'' in Sec.  --.90(b)(9) using language derived 
directly from section 114, namely, ``a pattern, practice, or specific 
activity that indicates the possible existence of identity theft.'' 
\22\
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 1681m(c)(2)(A).
---------------------------------------------------------------------------

    The Agencies continue to believe, however, that financial 
institutions and creditors should consider precursors to identity theft 
in order to stop identity theft before it occurs. Therefore, as 
described below, the Agencies have chosen to address precursors 
directly, through a substantive provision in section IV of the 
guidelines titled ``Prevention and Mitigation,'' rather than through 
the definition of ``Red Flag.'' This provision states that a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft in determining an appropriate 
response to the Red Flags it detects.
    Section --.90(b)(10) Service Provider. The proposed regulations 
defined ``service provider'' as a person that provides a service 
directly to the financial institution or creditor. This definition was 
based upon the definition of ``service provider'' in the Information 
Security Standards.\23\
---------------------------------------------------------------------------

    \23\ The Information Security Standards define ``service 
provider'' to mean any person or entity that maintains, processes, 
or otherwise is permitted access to customer information or consumer 
information through the provision of services directly to the 
financial institution. 12 CFR part 30, app. B (national banks); 12 
CFR part 208, app. D-2 and part 225, app. F (state member banks and 
holding companies); 12 CFR part 364, app. B (state non-member 
banks); 12 CFR part 570, app. B (savings associations); 12 CFR part 
748, App. A (credit unions).
---------------------------------------------------------------------------

    One commenter agreed with this definition. However, two other 
commenters stated that the definition was too broad. They suggested 
narrowing the definition of ``service provider'' to persons or entities 
that have access to customer information.
    Section --.90(b)(10) of the final rules adopts the definition as 
proposed. The Agencies have concluded that defining ``service 
provider'' to include only persons that have access to customer 
information would inappropriately narrow the coverage of the final 
rules. The Agencies have interpreted section 114 broadly to require 
each financial institution and creditor to detect, prevent, and 
mitigate identity theft not only in connection with any existing 
covered account, but also in connection with the opening of an account. 
A financial institution or creditor is ultimately responsible for 
complying with the final rules and guidelines even if it outsources an 
activity to a third-party service provider. Thus, a financial 
institution or creditor that uses a service provider to open accounts 
will need to provide for the detection, prevention, and mitigation of 
identity theft in connection with this activity, even when the service 
provider has access to the information of a person who is not yet, and 
may not become, a ``customer.''

Section --.90(c) Periodic Identification of Covered Accounts

    To simplify compliance with the final rules, the Agencies added a 
new provision in Sec.  --.90(c) that requires each financial 
institution and creditor to periodically determine whether it offers or 
maintains any covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it

[[Page 63724]]

offers or maintains covered accounts described in Sec.  --.90(b)(3)(ii) 
(accounts other than consumer accounts), taking into consideration:
     The methods it provides to open its accounts;
     The methods it provides to access its accounts; and
     Its previous experiences with identity theft.
    Thus, a financial institution or creditor should consider whether, 
for example, a reasonably foreseeable risk of identity theft may exist 
in connection with business accounts it offers or maintains that may be 
opened or accessed remotely, through methods that do not require face-
to-face contact, such as through the internet or telephone. In 
addition, those institutions and creditors that offer or maintain 
business accounts that have been the target of identity theft should 
factor those experiences with identity theft into their determination.
    This provision is modeled on various process-oriented and risk-
based regulations issued by the Agencies, such as the Information 
Security Standards. Compliance with this type of regulation is based 
upon a regulated entity's own preliminary risk assessment. The risk 
assessment required here directs a financial institution or creditor to 
determine, as a threshold matter, whether it will need to have a 
Program.\24\ If a financial institution or creditor determines that it 
does need a Program, then this risk assessment will enable the 
financial institution or creditor to identify those accounts the 
Program must address. This provision also requires a financial 
institution or creditor that initially determines that it does not need 
to have a Program to reassess periodically whether it must develop and 
implement a Program in light of changes in the accounts that it offers 
or maintains and the various other factors set forth in the provision.
---------------------------------------------------------------------------

    \24\ The Agencies anticipate that some financial institutions 
and creditors, such as various creditors regualted by the FTC that 
solely engage in business-to-business transactions, will be able to 
determine that they do not need to develop and implement a Program.
---------------------------------------------------------------------------

Section --.90(d)(1) Identity Theft Prevention Program Requirement

    Proposed Sec.  --.90(c) described the primary objectives of a 
Program. It stated that each financial institution or creditor must 
implement a written Program that includes reasonable policies and 
procedures to address the risk of identity theft to its customers and 
to the safety and soundness of the financial institution or creditor, 
in the manner described in proposed Sec.  --.90(d), which described the 
development and implementation of a Program. It also stated that the 
Program must address financial, operational, compliance, reputation, 
and litigation risks and be appropriate to the size and complexity of 
the financial institution or creditor and the nature and scope of its 
activities.
    Some commenters believed that the proposed regulations exceeded the 
scope of section 114 by covering deposit accounts and by requiring a 
response to the risk of identity theft, not just the identification of 
the risk of identity theft. One commenter expressed concern about the 
application of the Program to existing accounts.
    The SBA commented that requiring all small businesses covered by 
the regulations to create a written Program would be overly burdensome. 
Several financial institution commenters objected to what they 
perceived as a proposed requirement that financial institutions and 
creditors have a written Program solely to address identity theft. They 
recommended that the final regulations allow a covered entity to simply 
maintain or expand its existing fraud prevention and information 
security programs as long as they included the detection, prevention, 
and mitigation of identity theft. Some of these commenters stated that 
requiring a written program would merely focus examiner attention on 
documentation and cause financial institutions to produce needless 
paperwork.
    While commenters generally agreed that the Program should be 
appropriate to the size and complexity of the financial institution or 
creditor, and the nature and scope of its activities, many industry 
commenters objected to the prescriptive nature of this section. They 
urged the Agencies to provide greater flexibility to financial 
institutions and creditors by allowing them to implement their own 
procedures as opposed to those provided in the proposed regulations. 
Several other commenters suggested permitting financial institutions 
and creditors to take into account the cost and effectiveness of 
policies and procedures and the institution's history of fraud when 
designing its Program.
    Several financial institution commenters maintained that the 
Program required by the proposed rules was not sufficiently flexible. 
They maintained that a true risk-based approach would permit 
institutions to prioritize the importance of various controls, address 
the most important risks first, and accept the good faith judgments of 
institutions in differentiating among their options for conducting 
safe, sound, and compliant operations. Some of these commenters urged 
the Agencies to revise the final rules and guidelines and adopt an 
approach similar to the Information Security Standards which they 
characterized as providing institutions with an outline of issues to 
consider without requiring specific approaches.
    Although a few commenters believed that the proposed requirement to 
update the Program was burdensome and should be eliminated, most 
commenters agreed that the Program should be designed to address 
changing risks over time. A number of these commenters, however, 
objected to the requirement that the Program must be designed to 
address changing identity theft risks ``as they arise,'' as too 
burdensome a standard. Instead, they recommended that the final 
regulations require a financial institution or creditor to reassess 
periodically whether to adjust the types of accounts covered or Red 
Flags to be detected based upon any changes in the types and methods of 
identity theft that an institution or creditor has experienced.
    Section --.90(d) of the final rules requires each financial 
institution or creditor that offers or maintains one or more covered 
accounts to develop and implement a written Program that is designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. To signal 
that the final rules are flexible, and allow smaller financial 
institutions and creditors to tailor their Programs to their 
operations, the final rules state that the Program must be appropriate 
to the size and complexity of the financial institution or creditor and 
the nature and scope of its activities.
    The guidelines are appended to the final rules to assist financial 
institutions and creditors in the formulation and maintenance of a 
Program that satisfies the requirements of the regulation. Section I of 
the guidelines, titled ``The Program,'' makes clear that a covered 
entity may incorporate into its Program, as appropriate, its existing 
processes that control reasonably foreseeable risks to customers or to 
the safety and soundness of the financial institution or creditor from 
identity theft, such as those already developed in connection with the 
entity's fraud prevention program. This will avoid duplication and 
allow covered entities to benefit from existing policies and 
procedures.
    The Agencies do not agree with those commenters who asserted that 
the scope of the proposed regulations (and hence the final rules that 
adopt the identical approach with respect to these issues)

[[Page 63725]]

exceed the Agencies'' statutory mandate. First, section 114 clearly 
permits the Agencies to issue regulations and guidelines that address 
more than the mere identification of the risk of identity theft. 
Section 114 contains a broad mandate directing the Agencies to issue 
guidelines ``regarding identity theft'' and to prescribe regulations 
requiring covered entities to establish reasonable policies and 
procedures for implementing the guidelines. Second, two provisions in 
section 114 indicate that Congress expected the Agencies to issue final 
regulations and guidelines requiring financial institutions and 
creditors to detect, prevent, and mitigate identity theft.
    The first relevant provision is codified in section 615(e)(1)(C) of 
the FCRA, where Congress addressed a particular scenario involving card 
issuers. In that provision, Congress directed the Agencies to prescribe 
regulations requiring a card issuer to take specific steps to assess 
the validity of a change of address request when it receives such a 
request and, within a short period of time, also receives a request for 
an additional or replacement card. The regulations must prohibit a card 
issuer from issuing an additional or replacement card under such 
circumstances, unless it notifies the cardholder or ``uses other means 
of assessing the validity of the change of address in accordance with 
reasonable policies and procedures established by the card issuer in 
accordance with the regulations prescribed [by the Agencies] * * *.'' 
This provision makes clear that Congress contemplated that the 
Agencies' regulations would require a financial institution or creditor 
to have policies and procedures not only to identify Red Flags, but 
also, to prevent and mitigate identity theft.
    The second relevant provision is codified in section 615(e)(2)(B) 
of the FCRA, and directs the Agencies to consider addressing in the 
identity theft guidelines transactions that occur with respect to 
credit or deposit accounts that have been inactive for more than two 
years. The Agencies must consider whether a creditor or financial 
institution detecting such activity should ``follow reasonable policies 
that provide for notice to be given to the consumer in a manner 
reasonably designed to reduce the likelihood of identity theft with 
respect to such account.'' This provision signals that the Agencies are 
authorized to prescribe regulations and guidelines that comprehensively 
address identity theft--in a manner that goes beyond the mere 
identification of possible risks.
    The Agencies' interpretation of section 114 is also supported by 
the legislative history that indicates Congress expected the Agencies 
to issue regulations and guidelines for the purposes of ``identifying 
and preventing identity theft.'' \25\
---------------------------------------------------------------------------

    \25\ See S. Rep. No. 108-166 at 13 (Oct. 17, 2003) (accompanying 
S. 1753).
---------------------------------------------------------------------------

    Finally, the Agencies' interpretation of section 114 is broad, 
based on a public policy perspective that regulations and guidelines 
addressing the identification of the risk of identity theft, without 
addressing the prevention and mitigation of identity theft, would not 
be particularly meaningful or effective.
    The Agencies also have concluded that the scope of section 114 does 
not only apply to credit transactions, but also applies, for example, 
to deposit accounts. Section 114 refers to the risk of identity theft, 
generally, and not strictly in connection with credit. Because identity 
theft can and does occur in connection with various types of accounts, 
including deposit accounts, the final rules address identity theft in a 
comprehensive manner.
    Furthermore, nothing in section 114 indicates that the regulations 
must only apply to identity theft in connection with account openings. 
The FTC has defined ``identity theft'' as ``a fraud committed or 
attempted using the identifying information of another person without 
authority.'' \26\ Such fraud may occur in connection with account 
openings and with existing accounts. Section 615(e)(3) states that the 
guidelines that the Agencies prescribe ``shall not be inconsistent'' 
with the policies and procedures required under 31 U.S.C. 5318(l), a 
reference to the CIP rules which require certain financial institutions 
to verify the identity of customers opening new accounts. However, the 
Agencies do not read this phrase to prevent them from prescribing rules 
directed at existing accounts. To interpret the provision in this 
manner would solely authorize the Agencies to prescribe regulations and 
guidelines identical to and duplicative of those already issued--making 
the Agencies' regulatory authority in this area superfluous and 
meaningless.\27\
---------------------------------------------------------------------------

    \26\ 16 CFR 603.2(a).
    \27\ The Agencies' conclusion is also supported by case law 
interpreting similar terminology, albeit in a different context, 
finding that ``inconsistent'' means it is impossible to comply with 
two laws simultaneously, or one law frustrates the purposes and 
objectives of another. See, e.g., Davenport v. Farmers Ins. Group, 
378 F.3d 839 (8th Cir. 2004); Retail Credit Co. v. Dade County, 
Florida, 393 F. Supp. 577 (S.D. Fla. 1975); Alexiou v. Brad Benson 
Mitsubishi, 127 F. Supp.2d 557 (D.N.J. 2000).
---------------------------------------------------------------------------

    The Agencies recognize that requiring a written Program will impose 
some burden. However, the Agencies believe the benefit of being able to 
assess a covered entity's compliance with the final rules by evaluating 
the adequacy and implementation of its written Program outweighs the 
burdens imposed by this requirement.
    Moreover, although the final rules continue to require a written 
Program, as detailed below, the Agencies have substantially revised the 
proposal to focus the final rules and guidelines on reasonably 
foreseeable risks, make the final rules less prescriptive, and provide 
financial institutions and creditors with more discretion to develop 
policies and procedures to detect, prevent, and mitigate identity 
theft.
    Proposed Sec.  --.90(c) also provided that the Program must address 
changing identity theft risks as they arise based upon the experience 
of the financial institution or creditor with identity theft and 
changes in: Methods of identity theft; methods to detect, prevent, and 
mitigate identity theft; the types of accounts the financial 
institution or creditor offers; and its business arrangements, such as 
mergers and acquisitions, alliances and joint ventures, and service 
provider arrangements.
    The Agencies continue to believe that, to ensure a Program's 
continuing effectiveness, it must be updated, at least periodically. 
However, in order to simplify the final rules, the Agencies moved this 
requirement into the next section, where it is one of the required 
elements of the Program, as discussed below.
Development and Implementation of Identity Theft Prevention Program
    The remaining provisions of the proposed rules were set forth under 
the above-referenced section heading. Many commenters asserted that the 
Agencies should simply articulate certain objectives and provide 
financial institutions and creditors the flexibility and discretion to 
design policies and procedures to fulfill the objectives of the Program 
without the level of detail required under this section.
    As described earlier, to ensure that financial institutions and 
creditors are able to design Programs that effectively address identity 
theft in a manner tailored to their own operations, the Agencies have 
made significant changes in the proposal by deleting whole provisions 
or moving them into the guidelines in Appendix J. More specifically, 
the Agencies abbreviated the proposed requirements formerly located in 
the provisions titled

[[Page 63726]]

``Identification and Evaluation of Red Flags'' and ``Identity Theft 
Prevention and Mitigation'' and have placed them under a section of the 
final rules titled ``Elements of a Program.'' The proposed requirements 
on ``Staff Training,'' ``Oversight of Service Provider Arrangements,'' 
and ``Involvement of Board of Directors and Senior Management'' are now 
in a section of the final rules titled ``Administration of the 
Program.'' The guidelines in Appendix J elaborate on these 
requirements. A discussion of the comments received on these sections 
of the proposed rules, and the corresponding sections of the final 
rules and guidelines follows.

Section --.90(d)(2)(i) Element I of the Program: Identification of Red 
Flags

    Proposed Sec.  --.90(d)(1)(i) required a Program to include 
policies and procedures to identify which Red Flags, singly or in 
combination, are relevant to detecting the possible risk of identity 
theft to customers or to the safety and soundness of the financial 
institution or creditor, using the risk evaluation described in Sec.  
--.90(d)(1)(ii). It also required the Red Flags identified to reflect 
changing identity theft risks to customers and to the financial 
institution or creditor as they arise.
    Proposed Sec.  --.90(d)(1)(i) provided that each financial 
institution and creditor must incorporate into its Program relevant Red 
Flags from Appendix J. The preamble to the proposed rules acknowledged 
that some Red Flags that are relevant today may become obsolete as time 
passes. The preamble stated that the Agencies expected to update 
Appendix J periodically,\28\ but that it may be difficult to do so 
quickly enough to keep pace with rapidly evolving patterns of identity 
theft or as quickly as financial institutions and creditors experience 
new types of identity theft. Therefore, proposed Sec.  --.90(d)(1)(i) 
also provided that each financial institution and creditor must 
incorporate into its Program relevant Red Flags from applicable 
supervisory guidance, incidents of identity theft that the financial 
institution or creditor has experienced, and methods of identity theft 
that the financial institution or creditor has identified that reflect 
changes in identity theft risks.
---------------------------------------------------------------------------

    \28\ Section 114 directs the Agencies to update the guidelines 
as often as necessary. See 15 U.S.C. 1681m(e)(1)(a).
---------------------------------------------------------------------------

    Some commenters objected to the proposed requirement that the 
Program contain policies and procedures to identify which Red Flags, 
singly or in combination, are relevant to detecting the possible risk 
of identity theft to customers or to the safety and soundness of the 
financial institution or creditor. They criticized the phrase 
``possible risk'' as too broad and stated that it was unrealistic to 
impose upon covered entities a continuing obligation to incorporate 
into their Programs Red Flags to address virtually any new identity 
theft incident or trend and potential fraud prevention measure. These 
commenters stated that this would be a burdensome compliance exercise 
that would limit flexibility and add costs, which in turn, would take 
away limited resources from the ultimate objective of combating 
identity theft.
    Many commenters objected to the proposed requirement that the Red 
Flags identified by a financial institution or creditor reflect 
changing identity theft risks to customers and to the financial 
institution or creditor ``as they arise.'' These commenters requested 
that the final rules permit financial institutions and creditors a 
reasonable amount of time to adjust the Red Flags included in their 
Programs.
    Some commenters agreed that the enumerated sources of Red Flags 
were appropriate. A few commenters stated that financial institutions 
and creditors should not be required to include in their Programs any 
Red Flags except for those set forth in Appendix J or in supervisory 
guidance, or that they had experienced. However, most commenters 
objected to the requirement that, at a minimum, the Program incorporate 
any relevant Red Flags from Appendix J.
    Some financial institution commenters urged deletion of the 
proposed requirement to include a list of relevant Red Flags in their 
Program. They stated that a financial institution should be able to 
assess which Red Flags are appropriate without having to justify to an 
examiner why it failed to include a specific Red Flag on a list. Other 
commenters recommended that the list of Red Flags in Appendix J be 
illustrative only. These commenters recommended that a financial 
institution or creditor be permitted to include any Red Flags on its 
list that it concludes are appropriate. They suggested that the 
Agencies encourage institutions to review the list of Red Flags, and 
use their own experience and expertise to identify other Red Flags that 
become apparent as fraudsters adapt and develop new techniques. They 
maintained that in this manner, institutions and creditors would be 
able to identify the appropriate Red Flags and not waste limited 
resources and effort addressing those Red Flags in Appendix J that were 
obsolete or not appropriate for their activities.
    By contrast, consumer groups criticized the flexibility and 
discretion afforded to financial institutions and creditors in this 
section of the proposed rules. These commenters urged the Agencies to 
make certain Red Flags from Appendix J mandatory, such as a fraud alert 
on a consumer report.
    Proposed Sec.  --.90(d)(1)(ii) provided that in order to identify 
which Red Flags are relevant to detecting a possible risk of identity 
theft to its customers or to its own safety and soundness, the 
financial institution or creditor must consider:
    A. Which of its accounts are subject to a risk of identity theft;
    B. The methods it provides to open these accounts;
    C. The methods it provides to access these accounts; and
    D. Its size, location, and customer base.
    While some industry commenters thought the enumerated factors were 
appropriate, other commenters stated that the factors on the list were 
not necessarily the ones used by financial institutions to identify 
risk and were irrelevant to any determination of identity theft or 
actual fraud. These commenters maintained that this proposed 
requirement would require financial institutions to develop entirely 
new programs that may not be as effective or efficient as those 
designed by anti-fraud experts. Therefore, they recommended that the 
final rules provide financial institutions and creditors with wide 
latitude to determine what factors they should consider and how they 
categorize them. These commenters urged the Agencies to refrain from 
providing a list of factors that financial institutions and creditors 
would have to consider because a finite list could limit their ability 
to adapt to new forms of identity theft.
    Some commenters suggested that the risk evaluation include an 
assessment of other factors such as the likelihood of harm, the cost 
and operational burden of using a particular Red Flag and the 
effectiveness of a particular Red Flag for that institution or 
creditor. Some commenters suggested that the factors refer to the 
likely risk of identity theft, while others suggested that the factors 
be modified to refer to the possible risk of identity theft to which 
each type of account offered by the financial institution or creditor 
is subject. Other commenters, including a trade association 
representing small financial institutions, asked the Agencies to 
provide guidelines on how to conduct a risk assessment.

[[Page 63727]]

    The final rules continue to address the identification of relevant 
Red Flags, but simply state that the first element of a Program must be 
reasonable policies and procedures to identify relevant Red Flags for 
the covered accounts that the financial institution or creditor offers 
or maintains. The final rules also state that a financial institution 
or creditor must incorporate these Red Flags into its Program.
    The final rules do not require policies and procedures for 
identifying which Red Flags are relevant to detecting a ``possible 
risk'' of identity theft. Moreover, as described below, a covered 
entity's obligation to update its Red Flags is now a separate element 
of the Program. The section of the proposed rules describing the 
various factors that a financial institution or creditor must consider 
to identify relevant Red Flags, and the sources from which a financial 
institution or creditor must derive its Red Flags, are now in section 
II of the guidelines titled `` Identifying Relevant Red Flags.''
    The Agencies acknowledge that establishing a finite list of factors 
that a financial institution or creditor must consider when identifying 
relevant Red Flags for covered accounts could limit the ability of a 
financial institution or creditor to respond to new forms of identity 
theft. Therefore, section II of the guidelines contains a list of 
factors that a financial institution or creditor ``should consider * * 
* as appropriate'' in identifying relevant Red Flags.
    The Agencies also modified the list in order to provide more 
appropriate examples of factors for consideration by a financial 
institution or creditor determining which Red Flags may be relevant. 
These factors are:
     The types of covered accounts it offers or maintains;
     The methods it provides to open its covered accounts;
     The methods it provides to access its covered accounts; 
and
     Its previous experiences with identity theft.
    Thus, for example, Red Flags relevant to deposit accounts may 
differ from those relevant to credit accounts, and those applicable to 
consumer accounts may differ from those applicable to business 
accounts. Red Flags appropriate for accounts that may be opened or 
accessed remotely may differ from those that require face-to-face 
contact. In addition, a financial institution or creditor should 
consider identifying as relevant those Red Flags that directly relate 
to its previous experiences with identity theft.
    Section II of the guidelines also gives examples of sources from 
which financial institutions and creditors should derive relevant Red 
Flags, rather than requiring that the Program incorporate relevant Red 
Flags strictly from the four sources listed in the proposed rules. 
Section II states that a financial institution or creditor should 
incorporate into its Program relevant Red Flags from sources such as: 
(1) Incidents of identity theft that the financial institution or 
creditor has experienced; (2) methods of identity theft that the 
financial institution or creditor has identified that reflect changes 
in identity theft risks; and (3) applicable supervisory guidance.
    The Agencies have deleted the reference to the Red Flags in 
Appendix J as a source. Instead, a separate provision in section II of 
the guidelines, titled ``Categories of Red Flags,'' states that the 
Program of a financial institution or creditor ``should include'' 
relevant Red Flags from five particular categories ``as appropriate.'' 
The Agencies have included these categories, which summarize the 
various types of Red Flags that were previously enumerated in Appendix 
J, in order to provide additional non-prescriptive guidance regarding 
the identification of relevant Red Flags.
    Section II of the guidelines also notes that ``examples'' of 
individual Red Flags from each of the five categories are appended as 
Supplement A to Appendix J. The examples in Supplement A are a list of 
Red Flags similar to those found in the proposed rules. The Agencies 
did not intend for these examples to be a comprehensive list of all 
types of identity theft that a financial institution or creditor may 
experience. When identifying Red Flags, financial institutions and 
creditors must consider the nature of their business and the type of 
identity theft to which they may be subject. For instance, creditors in 
the health care field may be at risk of medical identity theft (i.e., 
identity theft for the purpose of obtaining medical services) and, 
therefore, must identify Red Flags that reflect this risk.
    The Agencies also have decided not to single out any specific Red 
Flags as mandatory for all financial institutions and creditors. 
Rather, the final rule continues to follow the risk-based, non-
prescriptive approach regarding the identification of Red Flags that 
was set forth in the proposal. The Agencies recognize that the final 
rules and guidelines cover a wide variety of financial institutions and 
creditors that offer and maintain many different products and services, 
and require the flexibility to be able to adapt to rapidly changing 
risks of identity theft.

Sections --.90(d)(2)(ii) and (iii) Elements II and III of the Program: 
Detection of and Response to Red Flags

    Proposed Sec.  --.90(d)(2) stated that the Program must include 
reasonable policies and procedures designed to prevent and mitigate 
identity theft in connection with the opening of an account or any 
existing account. This section then described the policies and 
procedures that the Program must include, some of which related solely 
to account openings while others related to existing accounts.
    Some financial institution commenters acknowledged that reference 
to prevention and mitigation of identity theft was generally a good 
objective, but they urged that the final rules refrain from prescribing 
how financial institutions must achieve it. Others noted that the CIP 
rules and the Information Security Standards already required many of 
the steps in the proposal. They recommended that the final rules 
recognize this and clarify that compliance with parallel requirements 
would be sufficient for compliance under these rules.
    Section --.90(d)(1) of the final rules requires financial 
institutions and creditors to develop and implement a written Program 
to detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. 
Therefore, the Agencies concluded that it was not necessary to 
reiterate this requirement in Sec.  --.90(d)(2). The Agencies have 
deleted the prefatory language from proposed Sec.  --.90(d)(2) on 
prevention and mitigation in order to streamline the final rules. The 
various provisions addressing prevention and mitigation formerly in 
this section, namely, verification of identity, detection of Red Flags, 
assessment of the risk of Red Flags, and responses to the risk of 
identity theft, have been incorporated into the final rules as 
``Elements of the Program'' and into the guidelines elaborating on 
these provisions. Comments received regarding these provisions and the 
manner in which they have been integrated into the final rules and 
guidelines follows.
Detecting Red Flags
    Proposed Sec.  --.90(d)(2)(i) stated that the Program must include 
reasonable policies and procedures to obtain identifying information 
about, and verify the identity of, a person opening an account. This 
provision was designed to address the risk of identity

[[Page 63728]]

theft to a financial institution or creditor that occurs in connection 
with the opening of new accounts.
    The proposed rules stated that any financial institution or 
creditor would be able to satisfy the proposed requirement in Sec.  
--.90(d)(2)(i) by using the policies and procedures for identity 
verification set forth in the CIP rules. The preamble to the proposed 
rules explained that although the CIP rules exclude a variety of 
entities from the definition of ``customer'' and exclude a number of 
products and relationships from the definition of ``account,'' \29\ the 
Agencies were not proposing any exclusions from either of these terms 
given the risk-based nature of the regulations.
---------------------------------------------------------------------------

    \29\ See, e.g., 31 CFR 103.121(a).
---------------------------------------------------------------------------

    Most commenters supported this provision. Many of these commenters 
urged the Agencies to include in the final rules a clear statement 
acknowledging that financial institutions and creditors complying with 
the CIP rules would be deemed to be in compliance with this provision's 
requirements. Some of these commenters encouraged the Agencies to place 
the exemptions from the CIP rules in these final rules for consistency 
in implementing both regulatory mandates.
    Some commenters, however, believed the requirement to verify the 
identity of a person opening an account duplicated the requirements in 
the CIP rules and urged elimination of this redundancy. Other entities 
not already subject to the CIP rules stated that complying with those 
rules would be very costly and burdensome. These commenters asked that 
the Agencies provide them with additional guidance regarding the CIP 
rules.
    Consumer groups were concerned that use of the CIP rules would not 
adequately address identity theft. They stated that the CIP rules allow 
accounts to be opened before identity is verified, which is not the 
proper standard to prevent identity theft.
    As described below, the Agencies have moved verification of the 
identity of persons opening an account into section III of the 
guidelines where it is described as one of the policies and procedures 
that a financial institution or creditor should have to detect Red 
Flags in connection with the opening of a covered account.
    Proposed Sec.  --.90(d)(2)(ii) stated that the Program must include 
reasonable policies and procedures to detect the Red Flags identified 
pursuant to paragraph Sec.  --.90(d)(1). The Agencies did not receive 
any specific comments on this provision.
    In the final rules, the detection of Red Flags is the second 
element of the Program. The final rules provide that a Program must 
contain reasonable policies and procedures to detect the Red Flags that 
a financial institution or creditor has incorporated into its Program.
    Section III of the guidelines provides examples of various means to 
detect Red Flags. It states that the Program's policies and procedures 
should address the detection of Red Flags in connection with the 
opening of covered accounts, such as by obtaining identifying 
information about, and verifying the identity of, a person opening a 
covered account, for example, using the policies and procedures 
regarding identification and verification set forth in the CIP rules. 
Section III also states that the Program's policies and procedures 
should address the detection of Red Flags in connection with existing 
covered accounts, such as by authenticating customers, monitoring 
transactions, and verifying the validity of change of address requests, 
in the case of existing covered accounts.
    Covered entities subject to the CIP rules, the Federal Financial 
Institution's Examination Council's guidance on authentication,\30\ the 
Information Security Standards, and Bank Secrecy Act (BSA) rules \31\ 
may already be engaged in detecting Red Flags. These entities may wish 
to integrate the policies and procedures already developed for purposes 
of complying with these issuances into their Programs. However, such 
policies and procedures may need to be supplemented. For example, the 
CIP rules were written to implement section 326 \32\ of the USA PATRIOT 
Act,\33\ an Act directed toward facilitating the prevention, detection, 
and prosecution of international money laundering and the financing of 
terrorism. Certain types of ``accounts,'' ``customers,'' and products 
are exempted or treated specially in the CIP rules because they pose a 
lower risk of money laundering or terrorist financing. Such special 
treatment may not be appropriate to accomplish the broader objective of 
detecting, preventing, and mitigating identity theft. Accordingly, the 
Agencies expect all financial institutions and creditors to evaluate 
the adequacy of existing policies and procedures and to develop and 
implement risk-based policies and procedures that detect Red Flags in 
an effective and comprehensive manner.
---------------------------------------------------------------------------

    \30\ ``Authentication in an Internet Banking Environment'' 
(October 12, 2005) available at  http://www.ffiec.gov/press/pr101205.htm.
    \31\ See, e.g. 12 CFR 21.21 (national banks); 12 CFR 208.63 
(state member banks); 12 CFR 326.8 (state non-member banks); 12 CFR 
563.177 (savings associations); and 12 CFR 748.2 (credit unions).
    \32\ 31 U.S.C. 5318(l).
    \33\ Pub. L. 107-56.
---------------------------------------------------------------------------

Responding to Red Flags
    Proposed Sec.  --.90(d)(2)(iii) stated that to prevent and mitigate 
identity theft, the Program must include policies and procedures to 
assess whether the Red Flags the financial institution or creditor 
detected pursuant to proposed Sec.  --.90(d)(2)(ii) evidence a risk of 
identity theft. It also stated that a financial institution or creditor 
must have a reasonable basis for concluding that a Red Flag (detected) 
does not evidence a risk of identity theft.
    Financial institution commenters expressed concern that this 
standard would force an institution to justify to examiners why it did 
not take measures to respond to a particular Red Flag. Some consumer 
groups believed it was appropriate to require a financial institution 
or creditor to have a reasonable basis for concluding that a particular 
Red Flag detected does not evidence a risk of identity theft. Other 
consumer groups believed that this was too weak a standard and that 
mandating the detection of certain Red Flags would be more effective 
and preventive.
    Some commenters mistakenly read the proposed provision as requiring 
a financial institution or creditor to have a reasonable basis for 
excluding a Red Flag listed in Appendix J from its Program requiring 
the mandatory review and analysis of each and every Red Flag. These 
commenters urged the Agencies to delete this provision.
    Proposed Sec.  --.90(d)(2)(iv) stated that to prevent and mitigate 
identity theft, the Program must include policies and procedures that 
address the risk of identity theft to the customer, the financial 
institution, or creditor, commensurate with the degree of risk posed. 
The proposed regulations also provided an illustrative list of measures 
that a financial institution or creditor could take, including:
     Monitoring an account for evidence of identity theft;
     Contacting the customer;
     Changing any passwords, security codes, or other security 
devices that permit access to a customer's account;
     Reopening an account with a new account number;
     Not opening a new account;
     Closing an existing account;
     Notifying law enforcement and, for those that are subject 
to 31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;

[[Page 63729]]

     Implementing any requirements regarding limitations on 
credit extensions under 15 U.S.C. 1681c-1(h), such as declining to 
issue an additional credit card when the financial institution or 
creditor detects a fraud or active duty alert associated with the 
opening of an account, or an existing account; or
     Implementing any requirements for furnishers of 
information to consumer reporting agencies under 15 U.S.C. 1681s-2, to 
correct or update inaccurate or incomplete information.
    Some commenters agreed that financial institutions and creditors 
should be able to use their own judgment to determine which measures to 
take depending upon the degree of risk that is present. However, 
consumer groups believed that the final rules should require 
notification of consumers in every case where a Red Flag that requires 
a response has been detected.
    Other commenters objected to some of the examples given as measures 
that financial institutions and creditors could take to address the 
risk of identity theft. For example, one commenter objected to the 
inclusion, as an example, of the requirements regarding limitations on 
credit extensions under 15 U.S.C. 1681c-1(h). The commenter stated that 
this statutory provision is confusing, useless, and should not be 
referenced in the final rules. Other commenters suggested that the 
Agencies clarify that the inclusion of this statutory provision in the 
proposed rules as an example of how to address the risk of identity 
theft did not make this provision discretionary.
    The final rules merge the concepts previously in proposed Sec.  
--.90(d)(2)(iii) and Sec.  --.90(d)(2)(iv) into the third element of 
the Program: reasonable policies and procedures to respond 
appropriately to any Red Flags that are detected pursuant to paragraph 
(d)(2)(ii) of this section to prevent and mitigate identity theft.
    In order to ``respond appropriately,'' it is implicit that a 
financial institution or creditor must assess whether the Red Flags 
detected evidence a risk of identity theft, and must have a reasonable 
basis for concluding that a Red Flag does not evidence a risk of 
identity theft. Therefore, the Agencies concluded that it is not 
necessary to specify any such separate assessment, and, accordingly, 
deleted the language from the proposal regarding assessing Red Flags 
and addressing the risk of identity theft.
    Most of the examples of measures for preventing and mitigating 
identity theft previously listed in proposed Sec.  --.90(d)(2)(iv) are 
now located in section IV of the guidelines, titled ``Prevention and 
Mitigation of Identity Theft.'' Section IV states that the Program's 
policies and procedures should provide for appropriate responses to the 
Red Flags the financial institution or creditor has detected that are 
commensurate with the degree of risk posed. In addition, as described 
earlier, the final rules do not define Red Flags to include indicators 
of a ``possible risk'' of identity theft (including ``precursors'' to 
identity theft). Instead, section IV states that in determining an 
appropriate response, a financial institution or creditor should 
consider aggravating factors that may heighten the risk of identity 
theft, and provides examples of such factors.
    The Agencies also modified the examples of appropriate responses as 
follows. First, the Agencies added ``not attempting to collect on a 
covered account or not selling a covered account to a debt collector'' 
as a possible response to Red Flags detected. Second, the Agencies 
added ``determining that no response is warranted under the particular 
circumstances'' to make clear that an appropriate response may be no 
response, especially, for example, when a financial institution or 
creditor has a reasonable basis for concluding that the Red Flags 
detected do not evidence a risk of identity theft.
    In addition, the Agencies moved the proposed examples, that 
referenced responses mandated by statute, to section VII of the 
guidelines titled ``Other Applicable Legal Requirements'' to highlight 
that certain responses are legally required.
    The section of the proposal listing examples of measures to address 
the risk of identity theft included a footnote that discussed the 
relationship between a consumer's placement of a fraud or active duty 
alert on his or her consumer report and ECOA, 15 U.S.C. 1691, et seq. A 
few commenters objected to this footnote. Some commenters believed that 
creditors had a right to deny credit automatically whenever a fraud or 
active duty alert appears on the consumer report of an applicant. Other 
commenters believed that the footnote raised complex issues under the 
ECOA and FCRA that required more thorough consideration, and questioned 
the need and appropriateness of addressing ECOA in the context of this 
rulemaking.
    Under ECOA, it is unlawful for a creditor to discriminate against 
any applicant for credit because the applicant has in good faith 
exercised any right under the Consumer Credit Protection Act (CCPA), 15 
U.S.C. 1691(a). A consumer who requests the inclusion of a fraud alert 
or active duty alert in his or her credit file is exercising a right 
under the FCRA, which is a part of the CCPA, 15 U.S.C. 1601, et seq. 
When a credit file contains a fraud or active duty alert, section 605A 
of the FCRA, 15 U.S.C. 1681c-1(h), requires a creditor to take certain 
steps before extending credit, increasing a credit limit, or issuing an 
additional card on an existing credit account. For an initial or active 
duty alert, these steps include utilizing reasonable policies and 
procedures to form a reasonable belief that the creditor knows the 
identity of the consumer and, where a consumer has specified a 
telephone number for identity verification purposes, contacting the 
consumer at that telephone number or taking reasonable steps to verify 
the consumer's identity and confirm that the application is not the 
result of identity theft, 15 U.S.C. 1681c-1(h)(1)(B).
    The purpose of the footnote was to remind financial institutions 
and creditors of their legal responsibilities in circumstances where a 
consumer has placed a fraud or active duty alert on his or her consumer 
report. In particular, the Agencies have concerns that in some cases, 
creditors have adopted policies of automatically denying credit to 
consumers whenever an initial fraud alert or an active duty alert 
appears on an applicant's consumer report. The Agencies agree that this 
rulemaking is not the appropriate vehicle for addressing issues under 
ECOA. However, the Agencies will continue to evaluate compliance with 
ECOA through their routine examination or enforcement processes, 
including issues related to fraud and active duty alerts.

Section --.90(d)(2)(iv) Element IV of the Program: Updating the Program

    To ensure that the Program of a financial institution or creditor 
remains effective over time, the final rules provide a fourth element 
of the Program: policies and procedures to ensure the Program 
(including the Red Flags determined to be relevant) is updated 
periodically to reflect changes in risks to customers and to the safety 
and soundness of the financial institution or creditor from identity 
theft. As described earlier, this element replaces the requirements 
formerly in proposed Sec.  --.90(c)(2) which stated that the Program 
must be designed to address changing identity theft risks as they 
arise, and proposed Sec.  --.90(d)(1)(i) which stated that the Red 
Flags included in a covered entity's Program must reflect changing 
identity theft risks to customers and to the financial institution or 
creditor as they arise.

[[Page 63730]]

Unlike the proposed provisions, however, this element only requires 
``periodic'' updating. The Agencies concluded that requiring financial 
institutions and creditors to immediately and continuously update their 
Programs would be overly burdensome.
    Section V of the guidelines elaborates on the obligation to ensure 
that the Program is periodically updated. It reiterates the factors 
previously in proposed Sec.  --.90(c)(2) that should cause a financial 
institution or creditor to update its Program, such as its own 
experiences with identity theft, changes in methods of identity theft, 
changes in methods to detect, prevent and mitigate identity theft, 
changes in accounts that it offers or maintains, and changes in its 
business arrangements.

Section --.90(e) Administration of the Program

    The final rules group the remaining provisions of the proposed 
rules under the heading ``Administration of the Program,'' albeit in a 
different order than proposed. This section of the final rules 
describes the steps that financial institutions and creditors must take 
to administer the Program, including: Obtaining approval of the initial 
written Program; ensuring oversight of the development, implementation 
and administration of the Program; training staff; and overseeing 
service provider arrangements.
    A number of commenters criticized each of the proposed provisions 
regarding administration of the Program, arguing they were not 
specifically required by section 114. The Agencies believe the mandate 
in section 114 is broad, and provides the Agencies with an ample basis 
to issue rules and guidelines containing these provisions because they 
are critical to ensuring the effectiveness of a Program. Therefore, the 
Agencies have retained these elements in the final rules and guidelines 
with some modifications, as follows.

Sections --.90(e)(1) and (2) Involvement of the Board of Directors and 
Senior Management

    Proposed Sec.  --.90(d)(5) highlighted the responsibility of the 
board of directors and senior management to develop, implement, and 
oversee the Program. Proposed Sec.  --.90(d)(5)(i) specifically 
required the board of directors or an appropriate committee of the 
board to approve the written Program. Proposed Sec.  --.90(d)(5)(ii) 
required that the board, an appropriate committee of the board, or 
senior management be charged with overseeing the development, 
implementation, and maintenance of the Program, including assigning 
specific responsibility for its implementation. The proposal also 
provided that persons charged with overseeing the Program must review 
reports prepared at least annually by staff regarding compliance by the 
financial institution or creditor with the regulations.
    Proposed Sec.  --.90(d)(5)(iii) stated that reports must discuss 
material matters related to the Program and evaluate issues such as: 
The effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of accounts and with respect to existing 
accounts; service provider arrangements; significant incidents 
involving identity theft and management's response; and recommendations 
for changes in the Program.
    Some commenters agreed that identity theft is an important issue, 
and the board, therefore, should be involved in the overall 
development, approval, and oversight of the Program. These commenters 
suggested that the final rules make clear that the board need not be 
responsible for the day-to-day operations of the Program.
    Most industry commenters opposed the proposed requirement that the 
board or board committee approve the Program and receive annual reports 
about compliance with the Program. These commenters asserted that the 
statute does not mandate such requirements, and that compliance with 
these rules did not warrant more board attention than other 
regulations. They asserted that such requirements would impede the 
ability of a financial institution or creditor to keep up with the 
fast-paced changes and developments inherent with instances of fraud 
and identity theft. They stated that boards of directors should not be 
required to consider the minutiae of the fraud prevention efforts of a 
financial institution or creditor and suggested the task be delegated 
to senior management with expertise in this area. Some commenters 
suggested the final rules provide a covered entity with the discretion 
to assign oversight responsibilities in a manner consistent with the 
institution's own risk evaluation.
    One commenter suggested that the final rules permit the board of 
directors of a holding company to approve and oversee the Program for 
the entire organization. The commenter explained that this approach 
would eliminate the need for redundant actions by a multiplicity of 
boards, and help to insure uniformity of policy throughout large 
organizations.
    Some commenters stated that the preparation of reports for board 
review would be costly and burdensome. The SBA suggested that the FTC 
consider a one-page certification option for small low-risk entities to 
minimize the burden of reports. One commenter opined that it would be 
sufficient if the Agencies mandated that covered entities continuously 
review and evaluate the policies and procedures they adopted pursuant 
to the regulations and modify them as necessary. Consumer groups 
suggested that the final rules specifically require financial 
institutions and creditors to adjust their Programs to address 
deficiencies raised by their annual reports.
    Commenters generally took the position that reports to the board, a 
board committee, or senior management regarding compliance with the 
final rules should be prepared at most on a yearly basis, or when 
significant changes have occurred that alter the institution's risk. 
One commenter recommended a clarification that any reporting to the 
board of material information relating to the Program could be combined 
with reporting obligations required under the Information Security 
Standards.
    Section --.90(e)(1) of the final rules continues to require 
approval of the written Program by the board of directors or an 
appropriate committee of the board. However, to ensure that this 
requirement does not hamper the ability of a financial institution or 
creditor to update its Program in a timely manner, the final rules 
provide that the board or an appropriate committee must approve only 
the initial written Program. Thereafter, at the discretion of the 
covered entity, the board, a committee, or senior management may update 
the Program.
    Bank holding companies and their bank and non-bank subsidiaries 
will be governed by the principles articulated in connection with the 
banking agencies'' Information Security Standards:

    The Agencies agree that subsidiaries within a holding company 
can use the security program developed at the holding company level. 
However, if subsidiary institutions choose to use a security program 
developed at the holding company level, the board of directors or an 
appropriate committee at each subsidiary institution must conduct an 
independent review to ensure that the program is suitable and 
complies with the requirements prescribed by the subsidiary's 
primary regulator * * * .

66 FR 8620 (Feb. 1, 2001) (Preamble to final Information Security 
Standards.)

[[Page 63731]]

    The Agencies recognize that boards of directors have many 
responsibilities and it generally is not feasible for a board to 
involve itself in the detailed oversight, development, implementation, 
and administration of the Program. Accordingly, Sec.  --.90(e)(2) of 
the final rules provides discretion to a financial institution or 
creditor to determine who will be responsible for these aspects of the 
Program. It states that a financial institution or creditor must 
involve the board of directors, an appropriate committee thereof, or a 
designated employee at the level of senior management in the oversight, 
development, implementation, and administration of the Program.
    Section VI of the guidelines elaborates on this provision of the 
final rules. The guidelines note that such oversight should include 
assigning specific responsibility for the Program's implementation and 
reviewing reports prepared by staff on compliance by the financial 
institution or creditor with this section. As suggested by commenters, 
the guidelines also state that oversight should include approving 
material changes to the Program as necessary to address changing 
identity theft risks. Section VI also provides that reports should be 
prepared at least annually and describes the contents of a report as 
proposed in Sec.  --.90(d)(5)(iii)(B).
    These steps are modeled on sections of the Information Security 
Standards.\34\ As noted previously, financial institutions and 
creditors subject to these Standards may combine elements required 
under the final rules and guidelines, including reports, with those 
required by the Standards, as they see fit.
---------------------------------------------------------------------------

    \34\ A board approval requirement is also found in the BSA rules 
of the Federal banking agencies and the NCUA. See 12 CFR 21.21; 
(OCC); 12 CFR 208.63 (Board); 12 CFR 326.8 (FDIC); 12 CFR 563.177 
(OTS); and 12 CFR 748.2 (NCUA). Thus, contrary to the assertion of 
some commenters, this rule is being treated in a manner similar to 
other rules.
---------------------------------------------------------------------------

Section --.90(e)(3) Staff Training

    Proposed Sec.  --.90(d)(3) required each financial institution or 
creditor to train staff to implement its Program.
    Consumer groups believed that this provision should be more 
detailed and specifically require monitoring, oversight, and auditing 
of a covered entity's training efforts. By contrast, a number of 
industry commenters recommended that the Agencies withdraw this 
provision because they believed it was burdensome. Some of these 
commenters asserted that the Agencies had not taken into account the 
limited personnel and resources available to smaller institutions to 
provide training.
    Some financial institution commenters stated that it was not clear 
why staff training would be specifically required under the final 
rules, absent a specific statutory requirement. They maintained that 
financial institutions have sufficient incentives to ensure that 
appropriate staff is trained. Other commenters suggested that the 
Agencies clarify that this provision would only require training for 
relevant staff and would permit training on identity theft that is 
integrated into overall staff training on similar or overlapping 
matters such as fraud prevention.
    One commenter objected to an example in the preamble to the 
proposed rules which stated that staff should be trained to detect 
``anomalous wire transfers in connection with a customer's deposit 
account.'' The commenter stated that this example potentially exposed 
financial institutions to significant and unintended liability, 
predicting that customers and law enforcement would use the rules to 
support claims that financial institutions are responsible for 
authorizing transactions by fraudsters. The commenter asserted that 
financial institutions do not have systems that can detect these 
transactions because they fall outside the usual fraud filter 
parameters.
    Section --.90(e)(3) of the final rules provides that a covered 
entity must train staff, as necessary, to effectively implement the 
Program. There is no corresponding section of the guidelines.
    The Agencies continue to believe proper training will enable staff 
to address the risk of identity theft. However, this provision requires 
training of only relevant staff. In addition, staff that has already 
been trained, for example, as a part of the anti-fraud prevention 
efforts of the financial institution or creditor, do not need to be re-
trained except ``as necessary.''
    The Agencies recognize that some of the examples, such as detecting 
``anomalous wire transfers in connection with a customer's deposit 
account'' may fall outside the usual fraud filter parameters. However, 
the Agencies expect that compliance with the final rules will improve 
the ability of financial institutions and creditors to detect, prevent, 
and mitigate identity theft.

Section --.90(e)(4) Oversight of Service Provider Arrangements

    Proposed Sec.  --.90(d)(4) stated that, whenever a financial 
institution or creditor engaged a service provider to perform an 
activity on its behalf and the requirements of the Program applied to 
that activity, the financial institution or creditor would be required 
to take steps designed to ensure the activity is conducted in 
compliance with a Program that satisfies the regulations. The preamble 
to the proposed rules explained that this provision would allow a 
service provider serving multiple financial institutions and creditors 
to conduct activities on behalf of these entities in accordance with 
its own program to prevent identity theft, as long as the program meets 
the requirements of the regulations. The service provider would not 
need to apply the particular Program of each individual financial 
institution or creditor to whom it is providing services.
    Several commenters asserted it would be costly and burdensome for 
financial institutions and creditors to ensure third party compliance 
with the final rules and therefore, this provision should be 
eliminated. They urged that financial institutions and creditors be 
given maximum flexibility to manage service provider relationships.
    Some financial institution commenters also suggested that the 
Agencies withdraw this provision. They stated that the FACT Act does 
not address this issue and asserted that there already is no doubt that 
if a financial institution delegates any of its operations to a third 
party, the institution will remain responsible for related regulatory 
compliance.
    Other commenters stated that it should remain a contractual matter 
between the parties whether the service provider may implement a 
program that is different from its financial institution client.
    Consumer groups asked the Agencies to ensure that the decision of a 
financial institution or creditor to outsource would not lead to lower 
Red Flag standards. These commenters suggested the final rules state 
that the Program must also meet the requirements that would apply if 
the activity were performed without the use of a service provider. They 
also suggested the final rules clarify that, in addition to any 
responsibility on the service provider imposed by law, regulation, or 
contract, the financial institution or creditor would be responsible 
for a failure to comply with the Program.
    Most commenters, however, agreed with the proposal and stated that 
a service provider must have the flexibility to meet the objectives of 
the rules without having to tailor its services to the Program 
requirements of each company for which it provides

[[Page 63732]]

service. These commenters noted that this proposed approach was the 
same as that used in the Information Security Standards.
    The Agencies believe it is important to retain a provision in the 
final rules addressing service providers to remind financial 
institutions and creditors that they continue to remain responsible for 
compliance with the final rules, even if they outsource operations to a 
third party. However, the Agencies have simplified the service provider 
provision in the final rules and moved the remaining parts of proposed 
Sec.  --.90(d)(4) to the guidelines.
    Section --.90(e)(4) of the final rules provides that a covered 
entity must exercise appropriate and effective oversight of service 
provider arrangements, without further elaboration. This provision 
provides maximum flexibility to financial institutions and creditors in 
managing their service provider arrangements, while making clear that a 
covered entity cannot escape its obligations to comply with the final 
rules and to include in its Program those guidelines that are 
appropriate by simply outsourcing an activity.
    Section VI(c) of the guidelines provides that, whenever a financial 
institution or creditor engages a service provider to perform an 
activity in connection with one or more covered accounts, the financial 
institution or creditor should take steps to ensure that the activity 
of the service provider is conducted in accordance with reasonable 
policies and procedures designed to detect, prevent, and mitigate the 
risk of identity theft. Thus, the guidelines make clear that a service 
provider that provides services to multiple financial institutions and 
creditors may do so in accordance with its own program to prevent 
identity theft, as long as the program meets the requirements of the 
regulations. The guidelines also provide an example of how a covered 
entity may comply with this provision. The guidelines state that a 
financial institution or creditor could require the service provider, 
by contract, to have policies and procedures to detect relevant Red 
Flags that may arise in the performance of the service provider's 
activities and either report the Red Flags to the financial institution 
or creditor or take appropriate steps to prevent or mitigate identity 
theft.

Section --.90(f) Consideration of Guidelines in Appendix J

    The Agencies have added a provision to the final rules that 
explains the relationship of the rules to the guidelines. Section 
--.90(f) states that each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix J and include in its Program those guidelines that are 
appropriate.
    Each of the guidelines corresponds to a provision of the final 
rules. As mentioned earlier, the guidelines were issued to assist 
financial institutions and creditors in the development and 
implementation of a Program that satisfies the requirements of the 
final rules. The guidelines provide policies and procedures that 
financial institutions and creditors should use, where appropriate, to 
satisfy the regulatory requirements of the final rules. While an 
institution or a creditor may determine that a particular guideline is 
not appropriate for its circumstances, it nonetheless must ensure its 
Program contains reasonable policies and procedures to fulfill the 
requirements of the final rules. This approach provides financial 
institutions and creditors with the flexibility to determine ``how best 
to develop and implement the required policies and procedures.'' \35\
---------------------------------------------------------------------------

    \35\ See H.R. Rep. No. 108-263 at 43 (Sept. 4, 2003) 
(accompanying H.R. 2622); S. Rep. No. 108-166 at 13 (Oct. 17, 2003) 
(accompanying S. 1753).
---------------------------------------------------------------------------

Supplement A to Appendix J: Examples of Red Flags
    Section 114 of the FACT Act states that, in developing the 
guidelines, the Agencies must identify patterns, practices, and 
specific forms of activity, that indicate the possible existence of 
identity theft. The Agencies proposed implementing this provision by 
requiring the Program of a financial institution or creditor to include 
policies and procedures for the identification and detection of Red 
Flags in connection with an account opening or an existing account, 
including from among those listed in Appendix J.
    The Agencies compiled the Red Flags enumerated in Appendix J from a 
variety of sources, such as literature on the topic, information from 
credit bureaus, financial institutions, creditors, designers of fraud 
detection software, and the Agencies' own experiences. The preamble to 
the proposed rules stated that some of the Red Flags, by themselves, 
may be reliable indicators of identity theft, while others are more 
reliable when detected in combination with other Red Flags.
    The preamble to the proposed rules explained that the Agencies 
recognized that a wide range of financial institutions and creditors, 
and a broad variety of accounts would be covered by the regulations. 
Therefore, the Agencies proposed to afford each financial institution 
and creditor flexibility to determine which Red Flags were relevant for 
their purposes to detect identity theft, including from among those 
listed in Appendix J.
    As mentioned previously, consumer groups criticized the discretion 
in the proposal that permitted financial institutions and creditors to 
choose Red Flags relevant to detecting the risk of identity theft based 
upon the list of enumerated factors. These groups urged the Agencies to 
make certain Red Flags in Appendix J mandatory. In addition, consumer 
groups suggested a number of additional Red Flags for inclusion in 
Appendix J.
    Some commenters agreed that the list of examples of Red Flags was 
appropriate because, in their view, it was designed to be flexible. 
Some industry commenters, including a number of small financial 
institutions, stated that the Red Flags set forth in Appendix J would 
assist them in developing and improving their identity theft prevention 
programs. Other commenters suggested deleting the list of Red Flags or 
modifying the list in a manner appropriate to the nature of their own 
operations.
    The Agencies have retained the list of examples of Red Flags 
because section 114 states that the Agencies ``shall identify patterns, 
practices, and specific forms of activity that indicate the possible 
existence of identity theft.'' The Agencies also retained the list 
because some commenters indicated that having examples of Red Flags 
would be helpful to them. However, the examples of Red Flags are now 
set forth in a separate supplement to the guidelines. The list of 
examples is similar to that which the Agencies proposed, however, the 
Red Flags that the Agencies identified as precursors to identity theft 
have been deleted and are now addressed in section IV of the 
guidelines. Moreover, in response to a Congressional commenter, the 
Agencies added, as an example of a Red Flag, an application that gives 
the appearance of having been destroyed and reassembled.
    The introductory language to the supplement clarifies that the 
enumerated Red Flags are examples. Thus, a financial institution or 
creditor may tailor the Red Flags it chooses for its Program to its own 
operations. A financial institution or creditor will not need to 
justify to an Agency its failure to include in the Program a specific 
Red Flag from the list of examples. However, a covered entity will have 
to account for the overall effectiveness of a Program that is 
appropriate to its size and

[[Page 63733]]

complexity and the nature and scope of its activities.
Inactive Accounts
    Section 114 also directs the Agencies to consider whether to 
include reasonable guidelines for notifying the consumer when a 
transaction occurs in connection with a consumer's credit or deposit 
account that has been inactive for two years, in order to reduce the 
likelihood of identity theft. The preamble to the proposed rules noted 
that the Agencies believed that the two-year limit was not always an 
accurate indicator of identity theft given the wide variety of credit 
and deposit accounts that would be covered by the provision. Therefore, 
in place of guidelines on inactive accounts, the Agencies proposed 
incorporating a Red Flag on inactive accounts into Appendix J that was 
flexible and was designed to take into consideration the type of 
account, the expected pattern of usage of the account, and any other 
relevant factors.
    Some consumer groups suggested that a new section be added to the 
guidelines requiring notice to the consumer when a transaction occurs 
in connection with a consumer's credit or deposit account that has been 
inactive for two years unless this pattern would be expected for a 
particular type of account. Other commenters agreed with the Agencies' 
proposal to simply make activity on an inactive account a Red Flag. 
They also agreed that the Agencies should not use two years of 
inactivity as a hard and fast rule, and allow financial institutions 
and creditors to use their own standards to determine when an account 
is inactive.
    In the final rules, the Agencies continue to list activity on an 
inactive account as a Red Flag. Given the variety of covered accounts 
to which the final rules and guidelines will apply, the Agencies 
concluded that the two-year period suggested in section 114 would not 
necessarily be a useful indicator of identity theft. Therefore, the 
Agencies have not included a provision in the guidelines regarding 
notification when a transaction occurs in connection with a consumer's 
credit or deposit account that has been inactive for two years.

B. Special Rules for Card Issuers

1. Background
    Section 114 also requires the Agencies to prescribe joint 
regulations generally requiring credit and debit card issuers to assess 
the validity of change of address notifications. In particular, these 
regulations must ensure that if the card issuer receives a notice of 
change of address for an existing account and, within a short period of 
time (during at least the first 30 days), receives a request for an 
additional or replacement card for the same account, the issuer must 
follow reasonable policies and procedures to assess the validity of the 
change of address through one of three methods. The card issuer may not 
issue the card unless it: (1) Notifies the cardholder of the request at 
the cardholder's former address and provides the cardholder with a 
means to promptly report an incorrect address; (2) notifies the 
cardholder of the address change request by another means of 
communication previously agreed to by the issuer and the cardholder; or 
(3) uses other means of evaluating the validity of the address change 
in accordance with the reasonable policies and procedures established 
by the card issuer to comply with the joint regulations described 
earlier regarding identity theft.
    For this reason, the Agencies also proposed special rules that 
required credit and debit card issuers to assess the validity of change 
of address notifications by notifying the cardholder or through certain 
other means. The proposed regulations stated that a financial 
institution or creditor that is a card issuer may incorporate the 
requirements of Sec.  --.91 into its Program.
    As described in the section-by-section analysis that follows, 
commenters generally requested changes that would make the proposed 
rules more flexible.
2. Section-by-Section Analysis

Section --.91(a) Scope

    The proposed rules stated that this section applies to a person, 
described in proposed Sec.  --.90(a), that issues a debit or credit 
card. The Agencies did not receive any comments on this section.
    In the final rules, for clarity, the Agencies deleted the cross-
reference to Sec.  --.90(a). Each Agency also revised its scope 
paragraph to list the entities over which it has jurisdiction that are 
subject to Sec.  --.91. Under the final rules, section --.91 applies to 
any debit or credit card issuer (card issuer) that is subject to an 
Agency's jurisdiction.

Section --.91(b) Definitions

    The proposed rules included two definitions solely applicable to 
the special rules for card issuers: ``cardholder'' and ``clear and 
conspicuous.'' Section --.91(b) of the final rules also contains these 
definitions as follows.

Section --.91(b)(1) Cardholder

    Under section 114, the Agencies must prescribe regulations 
requiring a card issuer to follow reasonable policies and procedures to 
assess the validity of a change of address, before issuing an 
additional or replacement card. Section 114 provides that a card issuer 
may satisfy this requirement by notifying ``the cardholder.'' The term 
``cardholder'' is not defined in the FACT Act. The preamble to the 
proposed rules explained that the legislative record relating to this 
provision indicates that ``issuers of credit cards and debit cards who 
receive a consumer request for an additional or replacement card for an 
existing account'' may assess the validity of the request by notifying 
``the cardholder.'' \36\ As the preamble noted, the request, 
presumably, will be valid if the consumer making the request and the 
cardholder are one and the same ``consumer.'' Therefore, the proposal 
defined ``cardholder'' as a consumer who has been issued a credit or 
debit card. The preamble to the proposed rules also explained that, 
because ``consumer'' is defined in the FCRA as an ``individual,'' \37\ 
the proposed regulations applied to any request for an additional or 
replacement card by an individual, including a card for a business 
purpose, such as a corporate card.
---------------------------------------------------------------------------

    \36\ See 149 Cong. Rec. E2513 (daily ed. December 8, 2003) 
(statement of Rep. Oxley) (emphasis added).
    \37\ 15 U.S.C. 1681a(c).
---------------------------------------------------------------------------

    Some commenters asked the Agencies to clarify that this definition 
does not apply to holders of stored value cards, such as payroll and 
gift cards, or to cards used to access a home equity line of credit. 
Another commenter urged that the final rules exclude credit and debit 
cards for a business purpose.
    The final rules continue to define ``cardholder'' as a consumer who 
has been issued a credit or debit card. Both ``credit card'' and 
``debit card'' are defined in section 603(r) of the FCRA. \38\ The 
definition of ``credit card'' is defined by cross-reference to section 
103 of the Truth in Lending Act, 15 U.S.C. 1601, et seq. \39\ The 
definition of ``debit card'' is any card issued by a financial 
institution to a consumer for use in initiating an electronic fund 
transfer from the account of the consumer at such financial institution 
for the purposes of transferring money between accounts or obtaining 
money, property, labor, or services. \40\
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 1681a.
    \39\ See 15 U.S.C. 1681a(r)(2).
    \40\ 15 U.S.C. 1681a(r)(3).
---------------------------------------------------------------------------

    Section 603(r) of the FCRA provides that ``account'' and 
``electronic fund transfer'' have the same meaning as those terms have 
in the Electronic Funds Transfer Act (EFTA), 15 U.S.C.

[[Page 63734]]

1693, et seq. The EFTA, and Regulation E, 12 CFR part 205, govern 
electronic fund transfers. In contrast to section 603(r) of the FCRA, 
neither the EFTA nor Regulation E defines the term ``debit card.'' 
Instead, coverage under the EFTA and Regulation E depends upon whether 
electronic fund transfers can be made to or from an ``account,'' 
meaning a checking, savings, or other consumer asset account 
established primarily for personal, family or household purposes. The 
Board recently issued a final rule expanding the definition of 
``account'' under Regulation E to cover payroll card accounts. \41\ 
Therefore, a holder of a payroll card is a ``cardholder'' for purposes 
of Sec.  --.91(b)(1), provided that the card issuer is a ``financial 
institution'' as defined in section 603(t) of the FCRA.
---------------------------------------------------------------------------

    \41\ See 71 FR 51,437 (August 10, 2006).
---------------------------------------------------------------------------

    The Board decided not to cover other types of prepaid cards as 
accounts under Regulation E at the time it issued the payroll card 
rule. Therefore, the definition of ``cardholder'' does not include the 
holder of a gift card or other prepaid card product, unless and until 
the Board elects to cover such cards as accounts under Regulation E.
    The definition of ``cardholder'' would also include a recipient of 
a home equity loan if the holder is able to access the proceeds of the 
loan with a credit or debit card within the meaning of 15 U.S.C. 
1681a(r).
    Identity theft may occur in connection with a card that a consumer 
uses for a business purpose and may affect the consumer's personal 
credit standing. Additionally, the definition of ``consumer'' under the 
FCRA is simply an ``individual.'' \42\ For this reason, the Agencies 
continue to believe that the protections of this provision must extend 
to consumers who hold a card for a personal, household, family or 
business purpose.
---------------------------------------------------------------------------

    \42\ 15 U.S.C. 1681a(c).
---------------------------------------------------------------------------

Section --.91(b)(2) Clear and conspicuous

    The second proposed definition was for the phrase ``clear and 
conspicuous.'' Proposed Sec.  --.91 included a provision that required 
any written or electronic notice provided by a card issuer to the 
consumer pursuant to the regulations to be given in a ``clear and 
conspicuous manner.'' The proposed regulations defined ``clear and 
conspicuous'' based on the definition of this phrase found in the 
Agencies' privacy rules.
    The Agencies received no comments on the phrase ``clear and 
conspicuous,'' and have adopted the definition as proposed in Sec.  
--.91(b)(2).

Sections --.91(c) and (d) Address Validation

    Proposed Sec.  --.91(c) simply restated the statutory requirements 
described above with some minor stylistic changes. A number of 
commenters noted that the requirements of this section would be 
difficult and expensive to implement. They stated that millions of 
address changes are processed every year, though very few turn out to 
be fraudulent.
    By contrast, consumer groups suggested that the final regulations 
should require the card issuer to notify the consumer of a request for 
an address change followed by the request for an additional or 
replacement card, unless there are special circumstances that prevent 
doing so in a timely manner.
    Many commenters recommended that the final rules provide credit and 
debit card issuers with greater flexibility to verify address changes. 
For example, they stated it is not clear that an address change linked 
with a request for an additional card is a significant indicator of 
identity theft. Therefore, they recommended the rules (1) specifically 
permit card issuers to satisfy the requirements of this section by 
verifying the address at the time the address change notification is 
received, whether or not the notification is linked to a request for an 
additional or replacement card; or (2) verify the address whenever a 
request for an additional or replacement card is made, whether or not 
the card issuer receives notification of an address change.
    One commenter suggested that the rules should only apply to card 
issuers that receive direct notification of an address change rather 
than an address change notification from the U.S. Postal Service. The 
commenter asserted that there is a higher risk of fraud with a direct 
request for a change of address.
    Consumer groups also recommended that the Agencies set a period 
longer than the 30-day minimum for card issuers to be on alert after an 
address change request. These commenters recommended that, because of 
billing cycles and the time it takes to issue a new card, an issuer 
should be required to assess the validity of an address change if it 
receives a request for an additional or replacement card within at 
least 90 days after the request for the address change.
    Some commenters asked the Agencies to clarify what ``other means'' 
would be acceptable in assessing the validity of a change in address. 
One commenter stated that it is not cost effective to contact the 
customer, therefore, most card issuers would use ``other means'' of 
assessing the validity of the change of address in accordance with the 
policies and procedures the card issuer establishes pursuant to Sec.  
--.90.
    Commenters also asked the Agencies to clarify that the obligation 
to assess the validity of a request for an address change is not 
triggered unless the card issuer actually changes the cardholder's 
address.
    Some commenters asked the Agencies to clarify whether electronic 
notices would be acceptable if the cardholder had previously contracted 
for electronic communications. Consumer groups recommended electronic 
notification be permitted only when the consumer consents in accordance 
with the E-Sign Act.
    The Agencies note that the statutory provision being implemented 
here is quite specific. Congress mandated that the requirements set 
forth in section 615(e)(1)(C) of the FCRA apply to notifications of 
changes of address, which would necessarily include both those received 
directly from consumers and those received from the Postal Service. 
Congress also statutorily provided various methods to card issuers for 
assessing the validity of a change of address. \43\ Accordingly, the 
final rules reflect these methods.
---------------------------------------------------------------------------

    \43\ See S. Rep. No. 108-166 at 14 (October 17, 
2003)(accompanying S. 1753)(stating that a card issuer may rely on 
authentication procedures that do not involve a separate 
communication with the cardholder so long as the issuer has 
reasonably assessed the validity of the address change.)
---------------------------------------------------------------------------

    Under Sec.  --.91(c) of the final rules, a card issuer that 
receives an address change notification and, within at least 30 days, a 
request for an additional or replacement card, may not issue an 
additional or replacement card until it has notified the cardholder or 
has otherwise assessed the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  --.90. The Agencies have concluded that 
card issuers should be granted additional flexibility. Therefore, Sec.  
--.91(d) clarifies that a card issuer may satisfy the requirements of 
Sec.  --.91(c) by validating an address, according to the methods set 
forth in Sec.  --.91(c)(1) or (2), when it receives an address change 
notification, before it receives a request for an additional or 
replacement card. The rules do not require a card issuer that issues an 
additional or replacement card to validate an address whenever it 
receives a request for such a card, because section 114 only requires 
the validation of an address when the card issuer also has received a 
notification of a change of address.

[[Page 63735]]

    The Agencies also revised Sec.  --.91 to clarify that a card issuer 
must provide to the cardholder a ``reasonable'' means of promptly 
reporting incorrect address changes whenever the card issuer notifies 
the cardholder of the request for an additional or replacement card. 
\44\
---------------------------------------------------------------------------

    \44\ See S. Rep. No. 108-166 at 14 (October 17, 2003) 
(accompanying S. 1753) (stating that a means of reporting an 
incorrect change could be through the mail, by telephone, or 
electronically.)
---------------------------------------------------------------------------

    The Agencies declined to adopt the recommendation that an issuer 
assess the validity of an address change if it receives a request for 
an additional or replacement card within ``at least 90 days'' after an 
address change notification, as ``at least 30 days'' may be a 
reasonable period of time in some cases. However, a card issuer that 
does not validate an address when it receives an address change 
notification may find it prudent to validate the address before issuing 
an additional or replacement card, even when it receives a request for 
such a card more than 30 days after the notification of address change. 
In sum, the Agencies expect card issuers to exercise diligence 
commensurate with their own experiences with identity theft.
    The Agencies also confirm that a card issuer is not obligated to 
assess the validity of a notification of an address change after 
receiving a request for an additional or replacement card if it 
previously determined not to change the cardholder's address because 
the address change request was fraudulent. \45\
---------------------------------------------------------------------------

    \45\ This position is consistent with the legislative history of 
this section. See S. Rep. No. 108-166 at 14 (Oct. 17, 2003) 
(accompanying S. 1753) (stating that it would not be necessary for 
the card issuer to take these steps ``if, despite receiving a 
request for an address change, the issuer did not actually change 
the cardholder's address for any reason (e.g., the card issuer had 
previously determined that the request for an address change was 
invalid)'').
---------------------------------------------------------------------------

Section --.91(e) Form of Notice

    In the preamble to the proposed rules, the Agencies noted that 
Congress had singled out this scenario involving card issuers and 
placed it in section 114 because it is perceived to be a possible 
indicator of identity theft. To highlight the important and urgent 
nature of notice that a consumer receives from a card issuer pursuant 
to Sec.  --.91(c), the Agencies also proposed requiring that any 
written or electronic notice that a card issuer provides under this 
paragraph must be clear and conspicuous and provided separately from 
its regular correspondence with the cardholder. The preamble to the 
proposed rules stated that a card issuer could also provide notice 
orally, in accordance with the policies and procedures the card issuer 
has established.
    A few commenters recommended that this proposed requirement apply 
only if the issuer notifies the cardholder of the change of address 
request at the cardholder's former address. These commenters stated 
that, otherwise, the provision would prohibit other types of notices, 
such as those in periodic statements. Another commenter stated that 
this provision was not necessary because card issuers would send such 
notices separately in any event.
    The Agencies are not convinced that such a notice would be provided 
separately from a card issuer's regular correspondence with the 
cardholder unless required. Moreover, the Agencies do not agree that 
this requirement should apply only if a card issuer chooses to notify 
the cardholder of the change of address request at the cardholder's 
former address in accordance with Sec.  --.91(c)(1). Even where the 
card issuer and cardholder agree to some other means for notice, this 
alternative means does not change the important nature of the notice. 
Therefore, Sec.  --.91(e) of the final rules provides that any written 
or electronic notice that the card issuer provides under this paragraph 
must be clear and conspicuous, and provided separately from its regular 
correspondence with the cardholder.

III. Section 315 of the FACT Act

A. Background

    Section 315 of the FACT Act amends section 605 of the FCRA, 15 
U.S.C. 1681c, by adding a new subsection (h). Section 605(h)(1) 
requires that, when providing a consumer report to a person that 
requests the report (the user), a nationwide consumer reporting agency, 
as defined in section 603(p) of the FCRA, (CRA) must provide a notice 
of the existence of a discrepancy if the address provided by the user 
in its request ``substantially differs'' from the address the CRA has 
in the consumer's file.
    Section 605(h)(2) requires the Agencies to issue joint regulations 
that provide guidance regarding reasonable policies and procedures a 
user of a consumer report should employ when the user receives a notice 
of address discrepancy. These regulations must describe reasonable 
policies and procedures for a user of a consumer report to employ to 
(i) enable it to form a reasonable belief that the user knows the 
identity of the person for whom it has obtained a consumer report, and 
(ii) reconcile the address of the consumer with the CRA, if the user 
establishes a continuing relationship with the consumer and regularly 
and in the ordinary course of business furnishes information to the 
CRA.

B. Section-by-Section Analysis

Section --.82(a) Scope

    Proposed Sec.  --.82(a) noted that the scope of section 315 differs 
from the scope of section 114 and explained that section 315 applies to 
``users of consumer reports'' and ``persons requesting consumer 
reports'' (hereinafter referred to as ``users''), as opposed to 
financial institutions and creditors. Therefore, section 315 does not 
apply to a financial institution or creditor that does not use consumer 
reports. The Agencies did not receive any comments on this section and 
have adopted it as proposed in the final rules.

Section --.82(b) Definition

    Proposed Sec.  --.82(b) defined ``notice of address discrepancy'' 
as ``a notice sent to a user of a consumer report by a CRA pursuant to 
15 U.S.C. 1681c(h)(1), that informs the user of a substantial 
difference between the address for the consumer provided by the user in 
requesting the consumer report and the address or addresses the CRA has 
in the consumer's file.'' \46\
---------------------------------------------------------------------------

    \46\ All other terms used in this section have the same meanings 
as set forth in the FCRA (15 U.S.C. 1681a).
---------------------------------------------------------------------------

    In the preamble to the proposed rules, the Agencies noted that 
section 605(h)(1) requiring CRAs to provide notices of address 
discrepancy became effective on December 1, 2004. To the extent CRAs 
each have developed their own standards for delivery of notices of 
address discrepancy, the proposal noted that it is important for users 
to be able to recognize and receive notices of address discrepancy, 
especially if they are being delivered electronically by CRAs. For 
example, CRAs may provide consumer reports with some type of a code to 
indicate an address discrepancy. Users must be prepared to recognize 
the code as an indication of an address discrepancy.
    While some commenters agreed with the proposed definition, a number 
of commenters suggested that the Agencies clarify that only a 
``substantial'' discrepancy would trigger the requirements in this 
provision and that obvious errors would not. Some commenters also 
suggested that the Agencies provide examples of what constitutes a 
``substantial difference.'' One commenter stated that users should be 
able to determine when there is a substantial difference.

[[Page 63736]]

    As noted earlier, section 605(h)(1) requires a CRA to send a notice 
of address discrepancy when it determines that the address provided to 
the CRA by a user ``substantially differs'' from the address the CRA 
has in the consumer's file. The phrase ``substantially differs'' is not 
defined in the statute. Instead, the statute allows each CRA to 
construe this phrase as it chooses and, accordingly, to set the 
standard it will use to determine when it will send a notice of address 
discrepancy.
    As required by section 605(h)(2), this rulemaking focuses on the 
obligations of users that receive a notice of address discrepancy from 
a CRA. The statute does not indicate that the Agencies are to define 
the phrase ``substantially differs'' for CRAs or to permit users to 
define that phrase themselves. Therefore, the final rules adopt the 
proposed definition of ``notice of address discrepancy'' without 
change.

Section --.82(c) Requirement to form a reasonable belief

    Proposed Sec.  --.82(c) implemented the requirement in section 
605(h)(2)(B)(i) that the Agencies prescribe regulations describing 
reasonable policies and procedures to enable the user to form a 
reasonable belief that the user knows ``the identity of the person to 
whom the consumer report pertains'' when the user receives a notice of 
address discrepancy. Proposed Sec.  --.82(c) stated that a user must 
develop and implement reasonable policies and procedures for 
``verifying the identity of the consumer for whom it has obtained a 
consumer report'' whenever it receives a notice of address discrepancy. 
The proposal stated further that these policies and procedures must be 
designed to enable the user to form a reasonable belief that it knows 
the identity of the consumer for whom it has obtained a consumer 
report, or determine that it cannot do so.
    A number of commenters stated that the statutory requirement that a 
user form a reasonable belief that it knows the identity of the 
consumer for whom it obtained a consumer report should only apply in 
situations where the user establishes a continuing relationship with 
the consumer.
    A consumer group suggested that the language in the proposed 
regulation permitting a user to determine that it cannot form a 
reasonable belief of the identity of the consumer should be deleted 
because the statute specifically requires a reasonable belief to be 
formed. This commenter stated that the purpose of the statute was to 
reduce the number of new accounts opened using false addresses, and 
that permitting a user to satisfy its obligations under the regulations 
by simply determining it cannot form a reasonable belief would allow 
the user to open an account, effectively rendering the statute 
meaningless.
    The purpose of section 315 is to enhance the accuracy of consumer 
information, specifically to ensure that the user has obtained the 
correct consumer report for the consumer about whom it has requested 
such a report. To implement this concept more clearly, Sec.  --.82(c) 
of the final rules provides that a user must develop and implement 
reasonable policies and procedures designed to enable the user to form 
a reasonable belief that a consumer report relates to the consumer 
about whom it has requested the report when the user receives a notice 
of address discrepancy.\47\
---------------------------------------------------------------------------

    \47\ The Agencies acknowledge that an address discrepancy also 
may be an indicator of identity theft. To address this problem, the 
Agencies included address discrepancies as an example of a Red Flag 
in connection with the Identity Theft Red Flag regulations.
---------------------------------------------------------------------------

    The Agencies do not agree with commenters who suggested that the 
proposed provision should apply only in connection with the 
establishment of a continuing relationship with a consumer, in other 
words, when a user is opening a new account. The statutory requirement 
in section 605(h)(2)(B)(i) that a user form a reasonable belief that it 
knows the identity of the consumer for whom it obtained a consumer 
report applies whether or not the user subsequently establishes a 
continuing relationship with the consumer. This is in contrast to the 
additional statutory requirement in section 605(h)(2)(B)(ii) that a 
user reconcile the address of the consumer with the CRA, only when the 
user establishes a continuing relationship with the consumer.
    In addition, a user may receive a notice of address discrepancy 
with a consumer report, both in connection with the opening of an 
account and in other circumstances when the user already has a 
relationship with the consumer, such as when the consumer applies for 
an increased credit line. The Agencies believe it is important for a 
user to form a reasonable belief that a consumer report relates to the 
consumer about whom it has requested the report in both of these cases. 
Accordingly, the final rules do not limit this provision solely to the 
establishment of new accounts.
    Proposed Sec.  --.82(c) also provided that if a user employs the 
policies and procedures regarding identification and verification set 
forth in the CIP rules,\48\ it would satisfy the requirement to have 
policies and procedures to verify the identity of the consumer. This 
provision took into consideration the fact that many users already may 
be subject to the CIP rules, and have in place procedures to comply 
with those rules, at least with respect to the opening of accounts. 
Thus, a user could rely upon its existing CIP policies and procedures 
to satisfy this requirement, so long as it applied them in all 
situations where it receives a notice of address discrepancy. The 
proposal also stated that any user, such as a landlord or employer, may 
adopt the CIP rules and apply them in all situations where it receives 
a notice of address discrepancy to meet this requirement, even if it is 
not subject to a CIP rule.
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    \48\ See, e.g., 31 CFR 103.121(b)(2)(i) and (ii).
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    The Agencies requested comment on whether the CIP procedures would 
be sufficient to enable a user that receives a notice of address 
discrepancy with a consumer report to form a reasonable belief that it 
knows the identity of the consumer for whom it obtained the report, 
both in connection with the opening of an account, as well as in other 
circumstances where a user obtains a consumer report, such as when a 
user requests a consumer report to determine whether to increase the 
consumer's credit line, or in the case of a landlord or employer, to 
determine a consumer's eligibility to rent housing or for employment.
    Many commenters supported the use of CIP to satisfy this 
requirement. Some commenters, however, asked the Agencies to clarify 
that once a consumer's identity was verified using CIP, it would not be 
necessary to re-verify that consumer's identity under this provision.
    Some commenters found the proposal's preamble language confusing. 
These commenters did not understand why a user would need to use its 
CIP policies in every situation where a notice of address discrepancy 
was received in order to comply with this requirement; they felt that 
it might be possible to form a reasonable belief without using CIP in 
some circumstances.
    Other commenters noted that the CIP rules, which were issued for 
different purposes, are not the appropriate standard for investigating 
a consumer's identity after a notice of address discrepancy because 
those rules permit verification of an address to occur after an account 
is opened and do not require contacting the consumer. One commenter 
stated that it was not clear whether a user relying on the CIP rules to 
satisfy the obligations under the regulation must comply with some or 
all of the requirements in the CIP rules,

[[Page 63737]]

including those that require policies and procedures to address 
circumstances when a user cannot form a reasonable belief it knows the 
identity of the consumer.
    The Agencies believe that comparing information provided by a CRA 
to information the user obtains and uses (or has obtained and used) to 
verify a consumer's identity pursuant to the requirements set forth in 
the CIP rules is an appropriate way to satisfy this obligation, 
particularly in connection with the opening of a new account. However, 
when a user receives a notice of address discrepancy in connection with 
an existing account, after already having identified and verified the 
consumer in accordance with the CIP rules, the Agencies would not 
expect a user to employ the CIP procedures again. To address this issue 
and provide users with flexibility, Sec.  --.82(c) of the final rule 
provides examples of reasonable policies and procedures that a user may 
employ to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report. 
These examples include comparing information provided by the CRA with 
information the user: (1) Obtains and uses to verify the consumer's 
identity in accordance with the requirements of the CIP rules; (2) 
maintains in its own records, such as applications, change of address 
notifications, other customer account records, or retained CIP 
documentation; or (3) obtains from third-party sources. Another example 
is to verify the information in the consumer report provided by the CRA 
with the consumer.
    If a user cannot establish a reasonable belief that the consumer 
report relates to the consumer about whom it has requested the report, 
the Agencies expect the user will not use that report. While section 
605(h)(2)(B)(i) is silent on this point, other laws may be applicable 
in such a situation. For example, in the case of account openings, a 
user that is subject to the CIP rules generally will need to document 
how it has resolved the discrepancy between the address provided by the 
consumer and the address in the consumer report.\49\ If the user cannot 
establish a reasonable belief that it knows the true identity of the 
consumer, it will need to implement the policies and procedures for 
addressing these circumstances as required by the CIP rules, which may 
involve not opening an account or closing an account.\50\ If a user is 
a ``financial institution'' or ``creditor'' as defined by the FCRA, a 
notice of address discrepancy may be a Red Flag and require an 
appropriate response to prevent and mitigate identity theft under the 
user's Identity Theft Prevention Program.
---------------------------------------------------------------------------

    \49\ See, e.g., 31 CFR 103.121(b)(3)(i)(D).
    \50\ See, e.g., 31 CFR 103.121(b)(2)(iii).
---------------------------------------------------------------------------

Section --.82(d)(1) Requirement To Furnish Consumer's Address to a 
Consumer Reporting Agency

    Proposed Sec.  --.82(d)(1) provided that a user must develop and 
implement reasonable policies and procedures for furnishing to the CRA 
from whom it received the notice of address discrepancy an address for 
the consumer that the user has reasonably confirmed is accurate when 
the following three conditions are satisfied. The first condition, in 
proposed Sec.  --.82(d)(1)(i), was that the user must be able to form a 
reasonable belief that it knows the identity of the consumer for whom 
the consumer report was obtained. This condition would have ensured the 
user would furnish a new address for the consumer to the CRA only after 
the user had formed a reasonable belief that it knew the identity of 
the consumer, using the policies and procedures set forth in paragraph 
Sec.  --.82(c).
    The second condition, in proposed Sec.  --.82(d)(1)(ii), was that 
the user furnish the address to the CRA if it establishes or maintains 
a continuing relationship with the consumer. Section 315 specifically 
requires that the user furnish the consumer's address to the CRA if the 
user establishes a continuing relationship with the consumer. 
Therefore, proposed Sec.  --.82(d)(1)(ii) reiterated this requirement. 
However, because a user also may obtain a notice of address discrepancy 
in connection with a consumer with whom it already has an existing 
relationship, the proposal also provided that the user must furnish the 
consumer's address to the CRA from whom the user has received a notice 
of address discrepancy when the user maintains a continuing 
relationship with the consumer.
    Finally, the third condition, in proposed Sec.  --.82(d)(1)(iii), 
provided that if the user regularly and in the ordinary course of 
business furnishes information to the CRA from which a notice of 
address discrepancy pertaining to the consumer was obtained, the 
consumer's address must be communicated to the CRA as part of the 
information the user regularly provides.
    A majority of commenters recommended that the requirement to 
furnish a confirmed address should not apply to existing accounts. 
These commenters maintained that such a requirement would exceed the 
scope of the statute. They also noted that users often do not obtain 
full consumer reports for existing customers--just credit scores. These 
commenters noted that limited reports often do not contain an address 
for a customer. Some commenters also felt existing relationships should 
be excluded because users already would have verified a consumer's 
address at the time of account opening.
    The Agencies have modified this section as follows. The final rules 
continue to provide that a user must develop and implement reasonable 
policies and procedures for furnishing an address for the consumer that 
the user has reasonably confirmed is accurate to the CRA when three 
conditions are present. The first condition, in Sec.  --.82(d)(1)(i), 
has been revised to be consistent with the earlier changes in section 
Sec.  --.82(c) that focus more narrowly on accuracy and require that a 
user form a reasonable belief that a consumer report relates to the 
consumer about whom it requested the report. The second condition, in 
Sec.  --.82(d)(1)(ii), now applies only to new accounts and states that 
a confirmed address must be furnished if the user ``establishes'' a 
continuing relationship with the consumer. The reference to ``or 
maintains'' a continuing relationship has been deleted. The Agencies 
agree with commenters that section 605(h)(2)(B)(ii) does not require 
the reporting of a confirmed address to a CRA in connection with 
existing relationships. The Agencies have concluded that users are more 
likely than a CRA to have an accurate address for an existing customer 
and, therefore, should not be required by these rules to take 
additional steps to confirm the accuracy of the customer's address. 
Users already have an ongoing duty to correct and update information 
for their existing customers under section 623 of the FCRA, 15 U.S.C. 
1681s-2. Accordingly, under the final rules, the obligation to furnish 
a confirmed address for the consumer to the CRA is applicable only to 
new relationships. The third condition, in Sec.  --.82(d)(1)(iii), has 
been adopted in the final rule without substantive change.

Section --.82(d)(2) Requirement To Confirm Consumer's Address

    In the preamble to the proposal, the Agencies noted that section 
315 requires them to prescribe regulations describing reasonable 
policies and procedures for a user ``to reconcile the address of the 
consumer'' about whom it has obtained a notice of address discrepancy 
with the CRA ``by furnishing such address'' to the CRA. (Emphasis 
added.) The

[[Page 63738]]

Agencies noted that, even when the user is able to form a reasonable 
belief that it knows the identity of the consumer, there may be many 
reasons the initial address furnished by the consumer is incorrect. For 
example, a consumer may have provided the address of a secondary 
residence or inadvertently reversed a street number. To ensure that the 
address furnished to the CRA is accurate, the Agencies proposed to 
interpret the phrase, ``such address,'' as an address the user has 
reasonably confirmed is accurate. This interpretation would have 
required a user to take steps to ``reconcile'' the address it initially 
received from the consumer when it receives a notice of address 
discrepancy, rather than simply furnishing the initial address it 
received from the consumer to the CRA. Proposed Sec.  --.82(d)(2) 
contained the following list of illustrative measures that a user may 
employ to reasonably confirm the accuracy of the consumer's address:
     Verifying the address with the person to whom the consumer 
report pertains;
     Reviewing its own records of the address provided to 
request the consumer report;
     Verifying the address through third-party sources; or
     Using other reasonable means.
    The Agencies solicited comment on whether these examples were 
necessary, or whether different or additional examples should be 
listed.
    A number of commenters stated that requiring a user to confirm the 
address furnished exceeded the scope of the statute. They asserted that 
the benefit of improvements in the accuracy of addresses and the 
prevention of identity theft would not outweigh the additional burden 
of this requirement. A few commenters noted that complying with the CIP 
rules should be sufficient to verify the address. Commenters also felt 
that users should have the flexibility to establish their own 
validation processes based on risk.
    As stated earlier, the Agencies believe the purpose of the statute 
is to enhance the accuracy of information relating to consumers by 
requiring the user to furnish an address that the user has reasonably 
confirmed is accurate.\51\ Simply providing the CRA with the initial 
address supplied to the user by the consumer, and which caused the CRA 
to send a notice of address discrepancy, would not serve this purpose. 
The Agencies believe the options for confirmation listed in the 
regulation provide sufficient flexibility for users to confirm 
consumers' addresses. For this reason, they have been adopted in the 
final rule as proposed, with minor technical changes. Section 
--.82(d)(2)(i) has been revised to conform the language with Sec.  
--.82(c). Section --.82(d)(2)(ii) has been revised to emphasize the 
verification of the consumer's address rather than the review of the 
user's records to determine whether the address given by the consumer 
is the same.
---------------------------------------------------------------------------

    \51\ This requirement is consistent with the legislative history 
which provides that this section is intended to obligate the user to 
utilize reasonable policies and procedures to resolve discrepancies. 
See H.R. Rep. No. 108-263 at 46 (Sept. 4, 2003) (accompanying H.R. 
2622).
---------------------------------------------------------------------------

Section --.82(d)(3) Timing

    Section 315 specifies when a user must furnish the consumer's 
address to the CRA. It states that this information must be furnished 
for the reporting period in which the user's relationship with the 
consumer is established. Accordingly, proposed Sec.  --.82(d)(3)(i) 
stated that, with respect to new relationships, the policies and 
procedures a user develops in accordance with Sec.  --.82(d)(1) must 
provide that a user will furnish the consumer's address that it has 
reasonably confirmed to the CRA as part of the information it regularly 
furnishes for the reporting period in which it establishes a 
relationship with the consumer.
    The proposed rule also addressed other situations when a user may 
receive a notice of address discrepancy. Proposed Sec.  --.82(d)(3)(ii) 
stated that in other circumstances, such as when the user already has 
an existing relationship with the consumer, the user should furnish 
this information for the reporting period in which the user has 
reasonably confirmed the accuracy of the address of the consumer for 
whom it has obtained a consumer report.
    The Agencies also noted that, in order to satisfy the requirements 
of both Sec.  --.82(d)(1) and Sec.  --.82(d)(3)(i), a user employing 
the CIP rules would have to establish a continuing relationship and 
verify the identity of the consumer during the same reporting period.
    The Agencies recognized the timing provision for newly established 
relationships could be problematic for users hoping to take full 
advantage of the flexibility in timing for verification of identity 
afforded by the CIP rules. As required by statute, proposed Sec.  
--.82(d)(3)(i) stated that the reconciled address must be furnished for 
the reporting period in which the user establishes a relationship with 
the consumer. Proposed Sec.  --.82(d)(1), which also mirrored the 
requirement of the statute, required the reconciled address to be 
furnished to the CRA only when the user both establishes a continuing 
relationship with the consumer and forms a reasonable belief that it 
knows the identity of the consumer to whom the consumer report relates. 
Typically, the CIP rules permit an account to be opened (i.e., 
relationship to be established) if certain identifying information is 
provided. Verification to establish the true identity of the customer 
is required within a reasonable period of time after the account has 
been opened. As explained in the preamble to the proposed rules, to 
satisfy the requirements of both Sec.  --.82(d)(1) and Sec.  
--.82(d)(3)(i), a user employing the CIP rules would have to verify the 
identity of the consumer using the identifying information it obtained 
in accordance with the CIP rules within the same reporting period that 
the user opens the account and establishes a continuing relationship 
with the consumer.
    The Agencies requested comment on whether the timing for responding 
to notices of address discrepancy received in connection with newly 
established relationships and in connection with circumstances other 
than newly established relationships is appropriate. One commenter 
objected to the requirement that a user employing the CIP rules would 
have to both establish a continuing relationship and a reasonable 
belief that it knows the consumer's identity during the same reporting 
period. A few commenters noted that the timing for reporting should 
simply be ``reasonable,'' such as the next reporting cycle.
    Because the Agencies have determined that the requirement to 
furnish a confirmed address will apply only to newly established 
accounts, the Agencies have revised Sec.  --.82(d)(3) to remove the 
references to the timing for furnishing reports in connection with 
other accounts, contained in the proposal. The final rules reflect the 
language in section 605(h)(2)(B)(ii), and state that a user's policies 
and procedures must provide that the user will furnish the consumer's 
address that the user has reasonably confirmed is accurate to the 
consumer reporting agency as part of the information it regularly 
furnishes for the reporting period in which it establishes a 
relationship with the consumer.
    A timing issue still exists for a user that chooses to compare the 
information in the consumer report with information that the user 
obtains and uses to verify the consumer's identity in accordance with 
the CIP rules for the purpose of forming a reasonable belief that a 
consumer report relates to the consumer

[[Page 63739]]

about whom it has requested the report. However, the Agencies believe 
that the benefits of being able to use CIP for this purpose should 
outweigh any additional burden of having to establish a reasonable 
belief that a consumer report relates to the consumer about whom it has 
requested the report within the same reporting period that the user 
opens the account and establishes a continuing relationship with the 
consumer.

IV. General Provisions

    The OCC, the Board, the FDIC, the OTS, and the NCUA \52\ proposed 
to amend the first sentence in Sec.  --.3, which contains the 
definitions that are applicable throughout this part. This sentence 
stated that the list of definitions in Sec.  --.3 apply throughout the 
part ``unless the context requires otherwise.'' These agencies proposed 
to amend this introductory sentence to make clear that the definitions 
in Sec.  --.3 apply ``for purposes of this part, unless explicitly 
stated otherwise.'' Thus, these definitions apply throughout the part 
unless defined differently in an individual subpart. There were no 
comments on this proposal, and the change to Sec.  --.3 is adopted as 
proposed.
---------------------------------------------------------------------------

    \52\ The equivalent language for the FTC already exists in 16 
CFR 603.1.
---------------------------------------------------------------------------

    OTS proposed nonsubstantive, technical changes to its rule sections 
on purpose and scope (Sec.  571.1) and disposal of consumer information 
(Sec.  571.83). OTS explained that these changes were necessary in 
light of the proposed incorporation of the address discrepancy section 
into subpart I. There were no comments on these proposed changes and 
they are adopted substantially as proposed. Further, since these 
changes render the definition of ``you'' in Sec.  571.3(o) superfluous, 
OTS is removing that definition.
    The OCC's final rules add a purpose section at Sec.  41.1. The 
final rules are simply restoring the purpose section of part 41 that 
was inadvertently deleted when ``subpart D-Medical Information'' was 
added to this part.

V. Effective Date

    The Agencies received a number of comments regarding the effective 
date of the final regulations and guidelines, although the proposed 
rulemaking did not address this issue. While consumer groups 
recommended that the effective date for compliance with the regulations 
be the minimum time allowed by law, many financial institutions and 
creditors requested the time for compliance be extended from between 12 
to 24 months from issuance of the final rules. These commenters felt 
they needed time to take an inventory of their existing systems and 
develop new programs necessary for compliance. Some commenters noted 
that they likely would use technological solutions to comply with the 
rules and that it is necessary to schedule such projects well in 
advance. Commenters also noted that compliance with the final rules may 
require systemic and operational changes across business lines and 
could affect relationships with vendors and third party service 
providers that would require time to change.
    Neither section 114 nor section 315 of the FACT Act specifically 
addresses the effective date of the regulations issued pursuant to 
these sections. Under the Administrative Procedure Act (APA), 5 U.S.C. 
553(d), agencies must generally publish a substantive rule not less 
than 30 days before its effective date. In addition, under section 302 
of the Riegle Community Development and Regulatory Improvement Act of 
1994 (CDRIA),\53\ rules issued by the Federal banking agencies that 
impose additional reporting, disclosure, or other new requirements on 
financial institutions generally will take effect on the first day of a 
calendar quarter that begins on or after the date on which the 
regulations are published in the Federal Register. Because these final 
rules are substantive and impose additional requirements on financial 
institutions, the Agencies have provided for an effective date of 
[January 1, 2008], consistent with the APA and CDRIA.
---------------------------------------------------------------------------

    \53\ Pub. L. 103-325; 12 U.S.C. Sec.  4802(b).
---------------------------------------------------------------------------

    At the same time, the Agencies have determined that it is 
appropriate to provide all covered entities with a delayed compliance 
date of November 1, 2008, to comply with the requirements of the final 
rulemaking. Some financial institutions and creditors already employ a 
variety of measures that satisfy the requirements of the final 
rulemaking because these are usual and customary business practices to 
minimize losses due to fraud, or as a result of already complying with 
other existing regulations and guidance that relate to information 
security, authentication, identity theft, and response programs. 
However, the Agencies recognize that these entities may still need time 
to evaluate their existing programs, and to integrate appropriate 
elements from them into the Program and into the other policies and 
procedures required by this final rulemaking. Further, the Agencies 
recognize that some covered entities have not previously been subject 
to any related regulations or guidance, and thus may need more time to 
implement the final rules and guidelines. Therefore, the Agencies are 
providing covered entities with a transition period to comply with the 
requirements contained in the final rulemaking.

VI. Regulatory Analysis

A. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (PRA) (44 U.S.C. 3501 et seq., 5 CFR part 1320 Appendix A.1), 
the Agencies have reviewed the final rulemaking and determined that it 
contains collections of information subject to the PRA. The Board made 
this determination under authority delegated to the Board by the Office 
of Management and Budget (OMB). The information collection requirements 
in the final rulemaking may be found in 12 CFR 41.82, 41.90, 41.91, 
222.82, 222.90, 222.91, 334.82, 334.90, 334.91, 571.82, 571.90, 571.91, 
717.82, 717.90; and 717.91; and 16 CFR 681.1, 681.2, and 681.3.
    An agency may not conduct or sponsor, and a respondent is not 
required to respond to, an information collection unless it displays a 
currently valid OMB control number. The information collection 
requirements contained in this joint final rule were submitted by the 
OCC, FDIC, OTS, NCUA, and FTC to OMB for review and approval under the 
Paperwork Reduction Act of 1995. OMB assigned the following control 
numbers to the collections of information: OMB Control Nos. 1557-0237 
(OCC), 3064-0152 (FDIC), 1550-0113 (OTS), 3133-0175 (NCUA), and 3084-
0137 (FTC). The Board's OMB Control No. is 7100-0308.\54\
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    \54\ The information collections (ICs) in this rule will be 
incorporated with the Board's Disclosure Requirements Associated 
with Regulation V (OMB No. 7100-0308). The burden estimates provided 
in this rule pertain only to the ICs associated with this final 
rulemaking. The current OMB inventory for Regulation V is available 
at: http://www.reginfo.gov/public/do/PRAMain.
---------------------------------------------------------------------------

Description of the Collection
    Section 114: The proposed rules implementing section 114 required 
each financial institution and creditor to (1) create an Identity Theft 
Prevention Program (Program); (2) report to the board of directors, a 
committee thereof or senior management, at least annually, on 
compliance with the proposed regulations; and (3) train staff to 
implement the Program.
    In addition, the proposed rules required each credit and debit card 
issuer (card issuer) to establish policies and procedures to (1) assess 
the validity

[[Page 63740]]

of a change of address notification before honoring a request for an 
additional or replacement card received during at least the first 30 
days after it receives the notification; and (2) notify the cardholder 
in writing, electronically, or orally, or use another means of 
assessing the validity of the change of address.
    Section 315: The proposed rules implementing section 315 required 
each user of consumer reports to (1) develop reasonable policies and 
procedures it would employ when it receives a notice of address 
discrepancy from a CRA; and (2) to furnish an address the user 
reasonably confirmed is accurate to the CRA from which it receives a 
notice of address discrepancy.
    The information collections in the final rulemaking are the same as 
those in the proposal.
Comments Received
    The Agencies sought comment on the burden estimates for the 
information collections described in the proposal. The Agencies 
received approximately 129 comments on the proposed rulemaking. Most 
commenters maintained that proposal would impose additional regulatory 
burden and asserted that the estimates of the cost of compliance should 
be considerably higher than the Agencies projected. A few of these 
commenters specifically addressed PRA burden, however, they did not 
provide specific estimates of additional burden hours that would result 
from the proposal. Some of these commenters stated that staff training 
estimates were significantly underestimated. Other commenters stated 
that the costs of compliance failed to consider the cost to third-party 
service providers that the commenters characterized as being required 
to implement the Program.
Explanation of Burden Estimates Under the Final Rulemaking
    The Agencies believe that many of the comments received regarding 
burden stemmed from commenters' misreading of the requirements of the 
proposed rulemaking. The final rulemaking clarifies these requirements, 
including those that relate to the information collections. It also 
differs from the proposal as described below.
    The Agencies continue to believe that most covered entities already 
employ a variety of measures to detect and address identity theft that 
are required by section 114 of the final rulemaking because these are 
usual and customary business practices that they employ to minimize 
losses due to fraud. In addition, the Agencies believe that many 
financial institutions and creditors already have implemented some of 
the requirements of the final rules implementing section 114 as a 
result of having to comply with other existing regulations and 
guidance, such as the CIP regulations implementing section 326 of the 
USA PATRIOT Act, 31 U.S.C. 5318(l) that require verification of the 
identity of persons opening new accounts),\55\ the Information Security 
Standards that implement section 501(b) of the Gramm-Leach-Bliley Act 
(GLBA), 15 U.S.C. 6801, and section 216 of the FACT Act, 15 U.S.C. 
1681w,\56\ and guidance issued by the Agencies or the Federal Financial 
Institutions Examination Council regarding information security, 
authentication, identity theft, and response programs.\57\ The final 
rulemaking underscores the ability of a financial institution or 
creditor to incorporate into its Program its existing processes that 
control reasonably foreseeable risks to customers or to its own safety 
and soundness from identity theft, such as those already developed in 
connection with the covered entity's fraud prevention program. Thus, 
the burden estimate attributable to the creation of a Program is 
unchanged.
---------------------------------------------------------------------------

    \55\ See, e.g., 31 CFR 103.121 (banks, savings associations, 
credit unions, and certain non-federally regulated banks); 31 CFR 
103.122 (broker-dealers); 31 CFR 103.123 (futures commission 
merchants).
    \56\ 12 CFR part 30, app. B (national banks); 12 CFR part 208, 
app. D-2 and part 225, app. F (state member banks and holding 
companies); 12 CFR part 364, app. B (state non-member banks); 12 CFR 
part 570, app. B (savings associations); 12 CFR part 748, app. A and 
B, and 12 CFR 717 (credit unions); 16 CFR part 314 (financial 
institutions that are not regulated by the Board, FDIC, NCUA, OCC 
and OTS).
    \57\ See, e.g., 12 CFR part 30, supp. A to app. B (national 
banks); 12 CFR part 208, supp. A to app. D-2 and part 225, supp. A 
to app. F (state member banks and holding companies); 12 CFR part 
364, supp. A to app. B (state non-member banks); 12 CFR part 570, 
supp. A to app. B (savings associations); 12 CFR 748, app. A and B 
(credit unions); Federal Financial Institutions Examination Council 
(FFIEC) Information Technology Examination Handbook's Information 
Security Booklet (the ``IS Booklet'') available at http://www.ffiec.gov/guides.htm; FFIEC ``Authentication in an Internet 
Banking Environment'' available at http://www.ffiec.gov/pdf/authentication_guidance.pdf; Board SR 01-11 (Supp) (Apr. 26, 2001) 
available at: http://www.federalreserve.gov/boarddocs/srletters/2001/sr0111.htm; ``Guidance on Identity Theft and Pretext Calling,'' 
OCC AL 2001-4 (April 30, 2001); ``Identity Theft and Pretext 
Calling,'' OTS CEO Letter 139 (May 4, 2001); NCUA Letter to 
Credit Unions 01-CU-09, ``Identity Theft and Pretext Calling'' 
(Sept. 2001); OCC 2005-24, ``Threats from Fraudulent Bank Web Sites: 
Risk Mitigation and Response Guidance for Web Site Spoofing 
Incidents,'' (July 1, 2005); ``Phishing and E-mail Scams,'' OTS CEO 
Letter 193 (Mar. 8, 2004); NCUA Letter to Credit Unions 04-
CU-12, ``Phishing Guidance for Credit Unions'' (Sept. 2004).
---------------------------------------------------------------------------

    The final rulemaking also clarifies that only relevant staff need 
be trained to implement the Program, as necessary--meaning that staff 
already trained, for example, as a part of a covered entity's anti-
fraud prevention efforts do not need to be re-trained except as 
necessary. Despite this clarification, in response to comments 
received, the Agencies are increasing the burden estimates attributable 
to training from two to four hours.
    The Agencies' estimates attribute all burden to covered entities, 
which are entities directly subject to the requirements of the final 
rulemaking. A covered entity that outsources activities to a third-
party service provider is, in effect, reallocating to that service 
provider the burden that it would otherwise have carried itself. Under 
these circumstances, burden is, by contract, shifted from the covered 
entity to the service provider, but the total amount of burden is not 
increased. Thus, third-party service provider burden is already 
included in the burden estimates provided for covered entities.
    The Agencies continue to believe that card issuers already assess 
the validity of change of address requests and, for the most part, have 
automated the process of notifying the cardholder or using other means 
to assess the validity of changes of address. Further, as commenters 
requested, the final rulemaking clarifies that card issuers may satisfy 
the requirements of this section by verifying the address at the time 
the address change notification is received, before a request for an 
additional or replacement card. Therefore, the estimates attributable 
to this portion of the rulemaking are unchanged.
    Regarding the final rules implementing section 315, the Agencies 
recognize that users of consumer reports will need to develop policies 
and procedures to employ upon receiving a notice of address discrepancy 
in order to: (1) Ensure that the user has obtained the correct consumer 
report for the consumer; and (2) confirm the accuracy of the address 
the user furnishes to the CRA. However, under the final rules, a user 
only must furnish a confirmed address to a CRA for new relationships. 
Thus, the required policies and procedures will no longer need to 
address the furnishing of confirmed addresses for existing 
relationships, and users will not need to furnish to the CRA in 
connection with existing relationships an address the user reasonably 
confirmed is accurate.
    The Agencies believe that users of credit reports covered by the 
final rules,

[[Page 63741]]

on a regular basis, already furnish information to CRAs in response to 
notices of address discrepancy because it is a usual and customary 
business practice--except in connection with new deposit relationships. 
For the proposed rulemaking, the Agencies had estimated that there 
would be no implementation burden associated with furnishing confirmed 
addresses to CRAs. However, as the result of additional research, the 
Agencies now believe that some burden should be attributable to this 
collection, to account for information furnished to CRAs for new 
deposit relationships. Because this burden is offset by the reduction 
in burden described above, the estimates for the collections 
attributable to the final rules implementing section 315 remain 
unchanged.
    The Agencies continue to believe that 25 hours to develop a 
Program, four hours to prepare an annual report, four hours to develop 
policies and procedures to assess the validity of changes of address, 
and four hours to develop policies and procedures to respond to notices 
of address discrepancy, are reasonable estimates.
    The potential respondents are national banks and Federal branches 
and agencies of foreign banks and certain of their subsidiaries (OCC); 
state member banks, uninsured state agencies and branches of foreign 
banks, commercial lending companies owned or controlled by foreign 
banks, and Edge and agreement corporations (Board); insured nonmember 
banks, insured state branches of foreign banks, and certain of their 
subsidiaries (FDIC); savings associations and certain of their 
subsidiaries (OTS); Federally-chartered credit unions (NCUA); state-
chartered credit unions, non-bank lenders, mortgage brokers, motor 
vehicle dealers, utility companies, and any other person that regularly 
participates in a credit decision, including setting the terms of 
credit (FTC).

Burden Estimates

    The Agencies estimate the annual burden per respondent is 41 hours 
(25 hours to develop a Program, four hours to prepare an annual report, 
four hours for training, four hours for developing policies and 
procedures to assess the validity of changes of address, and four hours 
for developing policies and procedures to respond to notices of address 
discrepancy). The Agencies attribute total burden to covered entities 
as follows:
    OCC:
    Number of respondents: 1,806.
    Total estimated annual burden: 74,046.
    Board:
    Number of respondents: 1,172.
    Total Estimated Annual Burden: 48,052.
    FDIC:
    Number of respondents: 5,260.
    Total Estimated Annual Burden: 215,660 hours.
    OTS:
    Number of respondents: 832.
    Total Estimated Annual Burden: 34,112.
    NCUA:
    Number of respondents: 5,103.
    Total Estimated Annual Burden: 209,223.
    FTC Estimated Burden:\58\
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    \58\ Due to the varied nature of the entities subject to the 
jurisdiction of the FTC, this Estimated Burden section reflects only 
the view of the FTC. The banking regulatory agencies have jointly 
prepared a separate analysis.
---------------------------------------------------------------------------

    Section 114:
    Estimated Hours Burden:
    As discussed above, the final regulations require financial 
institutions and creditors to conduct a risk assessment periodically to 
determine whether they have covered accounts, which include, at a 
minimum, consumer accounts. If the financial institutions and creditors 
determine that they have covered accounts, the final regulations 
require them to create a written Identity Theft Prevention Program 
(Program) and they should report to the board of directors, a committee 
thereof, or senior management at least annually on compliance with the 
final regulations. The FCRA defines ``creditor'' to have the same 
meaning as in section 702 of the Equal Credit Opportunity Act 
(ECOA).\59\ Under Regulation B, which implements the ECOA, a creditor 
means a person who regularly participates in a credit decision, 
including setting the terms of credit. Regulation B defines credit as a 
transaction in which the party has a right to defer payment of a debt, 
regardless of whether the credit is for personal or commercial 
purposes.\60\ Given the broad scope of entities covered, it is 
difficult to determine precisely the number of financial institutions 
and creditors that are subject to the FTC's jurisdiction. There are 
numerous small businesses under the FTC's jurisdiction, and there is no 
formal way to track them; moreover, as a whole, the entities under the 
FTC's jurisdiction are so varied that there are no general sources that 
provide a record of their existence. Nonetheless, FTC staff estimates 
that the proposed regulations implementing section 114 will affect over 
3,500 financial institutions \61\ and over 11 million creditors \62\ 
subject to the FTC's jurisdiction, for a combined total of 
approximately 11.1 million affected entities. As detailed below, FTC 
staff estimates that the average annual information collection burden 
during the three-year period for which OMB clearance was sought will be 
4,466,000 hours (rounded to the nearest thousand). The estimated annual 
labor cost associated with this burden is $142,925,000 (rounded to the 
nearest thousand).
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    \59\ U.S.C. 1681a(r)(5).
    \60\ Regulation B Equal Credit Opportunity, 12 CFR 202 (as 
amended effective Apr. 15, 2003).
    \61\ Under the FCRA, the only financial institutions over which 
the FTC has jurisdiction are state-chartered credit unions. 15 
U.S.C. 1681s. As of December 31, 2005, there were 3,302 state-
chartered federally-insured credit unions and 362 state-chartered 
nonfederally insured credit unions, totaling 3,664 financial 
institutions. See www.ncua.gov/news/quick_facts/quick_facts.html 
and ``Disclosures for Non-Federally Insured Depository Institutions 
under the Federal Deposit Insurance Corporation Improvement Act 
(FDICIA),'' 70 FR 12823 (Mar. 16, 2005).
    \62\ This estimate is derived from an analysis of a database of 
U.S. businesses based on NAICS codes for businesses that market 
goods or services to consumers or other businesses, which totaled 
11,076,463 creditors subject to the FTC's jurisdiction.
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    For the proposed rule, FTC staff had divided affected entities into 
two categories: entities that are subject to a high risk of identity 
theft and entities that are subject to a low risk of identity theft. 
Based on comments as well as changes in the final rule, FTC staff 
believes that the affected entities can be categorized in three groups, 
based on the nature of their businesses: entities subject to a high 
risk of identity theft, entities subject to a low risk of identity 
theft, but having consumer accounts that will require them to have a 
written Program, and entities subject to a low risk of identity theft, 
but not having consumer accounts.\63\
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    \63\ In general, high-risk entities may provide consumer 
financial services or other goods or services of value to identity 
thieves such as telecommunication services or goods that are easily 
convertible to cash, whereas low-risk entities may do business 
primarily with other businesses or provide non-financial services or 
goods that are not easily convertible to cash.
---------------------------------------------------------------------------

A. High-Risk Entities

    In drafting its PRA analysis for the proposed regulations, FTC 
staff believed that because motor vehicle dealers'' loans typically are 
financed by financial institutions also subject to those regulations, 
the dealers were likely to use the latter's programs as a basis to 
develop their own. Therefore, although subject to a high risk of 
identity theft, their burden would be less than other high-risk 
entities. Commenters, however, noted among other concerns that some 
motor vehicle dealers finance

[[Page 63742]]

their own loans. Thus, for this burden estimate, FTC staff no longer is 
considering motor vehicle dealers separately from other high-risk 
entities.
    As noted above, the Agencies continue to believe that many of the 
high-risk entities, as part of their usual and customary business 
practices, already take steps to minimize losses due to fraud. The 
final rulemaking clarifies that only relevant staff need be trained to 
implement the Program, as necessary meaning, for example, that staff 
already trained as a part of a covered entity's anti-fraud prevention 
efforts do not need to be re-trained except as incrementally needed. 
Notwithstanding this clarification, in response to comments received, 
the Agencies are increasing the burden estimates attributable to 
training from two to four hours, as is the FTC for high-risk entities 
in their initial year of implementing the Program, but FTC staff 
continues to believe that one hour of recurring annual training remains 
a reasonable estimate.
    The FTC staff maintains its estimate of 25 hours for high-risk 
entities to create and implement a written Program, with an annual 
recurring burden of 1 hour. As before, FTC staff anticipates that these 
entities will incorporate policies and procedures that they likely 
already have in place. The FTC staff continues to believe that 
preparation of an annual report will take high-risk entities 4 hours 
initially, with an annual recurring burden of 1 hour.

B. Low-Risk Entities

    A few commenters believed that FTC staff had underestimated the 
amount of time it would take low-risk entities to comply with the 
proposed regulations. These commenters estimated that the amount of 
time would range from 6 to 20 hours to create a program and 1 hour each 
to train employees and draft the annual report. The FTC staff believes 
these estimates were based on a misunderstanding of the requirements of 
the proposed regulations, including that the list of 31 Red Flags in 
the proposed guidelines was intended to be a checklist. The final 
regulations clarify that the list of Red Flags is illustrative only. 
Moreover, the emphasis of the written Program, as required under the 
final regulations, is to identify risks of identity theft. To the 
extent that entities with consumer accounts determine that they have a 
minimal risk of identity theft, they would be tasked only with 
developing a streamlined Program. Therefore, the FTC staff does not 
believe that it would take such an entity 6 to 20 hours to develop a 
Program, 1 hour to train employees, and 1 hour to draft an annual 
report on risks of identity theft which are minimal or non-existent. 
Nonetheless, FTC staff believes that it may have underestimated the 
time low-risk entities may need to initially apply the final rule to 
develop a Program. Thus, FTC staff has increased from 20 minutes to 1 
hour its previously stated estimate for this activity.
    The final regulations have been revised from the proposed 
regulations to alleviate the burden of creating a written Program for 
entities that determine that they do not have any covered accounts. The 
FTC staff believes that entities subject to a low risk of identity 
theft, but not having consumer accounts, will likely determine that 
they do not have covered accounts. Such entities would not be required 
to develop a written Program, and thus will not incur PRA burden. The 
FTC staff estimates that approximately 9,191,496 \64\ of the 10,813,525 
low-risk entities subject to the requirement to create a written 
Program under the proposed regulations will not have covered accounts 
under the final rule. Therefore, these 9,191,496 low-risk entities will 
not be required to develop a written Program, thereby substantially 
reducing the original burden hours estimate in the NPRM for low-risk 
entities.
---------------------------------------------------------------------------

    \64\ This estimate is derived from an analysis of a database of 
U.S. businesses based on NAICS codes for businesses that market 
goods or services to consumers or other businesses, net of the 
number of creditors subject to the FTC's jurisdiction, an estimated 
subset of which comprise anticipated low-risk entities not having 
covered accounts under the final rule.
---------------------------------------------------------------------------

    The FTC staff believes that for entities subject to a low risk of 
identity theft, but having consumer accounts that will require them to 
have a written Program, it will take such entities 1 hour to review the 
final regulations and create a streamlined Program, with an annual 
recurring burden of 5 minutes. The FTC staff believes that training 
staff to be attentive to any future risks of identity theft will take 
low-risk entities 10 minutes, with an annual recurring burden of 5 
minutes. The FTC staff believes that preparing an annual report will 
take low-risk entities 10 minutes, with an annual recurring burden of 5 
minutes.
    Accordingly, FTC staff estimates that the final regulations 
implementing section 114 affect the following: 266,602 high-risk 
entities subject to the FTC's jurisdiction at an average annual burden 
of 13 hours per entity [average annual burden over 3-year clearance 
period for creation and implementation of Program ((25+1+1)/3) plus 
average annual burden over 3-year clearance period for staff training 
((4+1+1)/3) plus average annual burden over 3-year clearance period for 
preparing annual report ((4+1+1)/3)], for a total of 3,466,000 hours 
(rounded to the nearest thousand); and 1,622,029 low-risk entities that 
have consumer accounts subject to the FTC's jurisdiction at an average 
annual burden of approximately 37 minutes per entity [average annual 
burden over 3-year clearance period for creation and implementation of 
streamlined Program ((60+5+5)/3) plus average annual burden over 3-year 
clearance period for staff training ((10+5+5)/3) plus average annual 
burden over 3-year clearance period for preparing annual report 
((10+5+5)/3], for a total of 1,000,000 hours (rounded to the nearest 
thousand).
    The proposed regulations implementing Section 114 also require 
credit and debit card issuers to establish policies and procedures to 
assess the validity of a change of address request, including notifying 
the cardholder or using another means of assessing the validity of the 
change of address. The FTC received no comments on its burden estimates 
in the NPRM and FTC staff does not believe that the changes made to the 
final regulation have altered its original burden estimates. 
Accordingly, FTC staff maintains that it will take 100 credit or debit 
card issuers 4 hours to develop and implement policies and procedures 
to assess the validity of a change of address request for a total 
burden of 400 hours.
    Estimated Cost Burden:
    The FTC staff derived labor costs by applying appropriate estimated 
hourly cost figures to the burden hours described above. It is 
difficult to calculate with precision the labor costs associated with 
the proposed regulations, as they entail varying compensation levels of 
management and/or technical staff among companies of different sizes. 
In the NPRM, FTC staff had estimated that low-risk entities would use 
administrative support personnel at an hourly cost of $16.00. A few 
commenters disagreed that low-risk entities would use administrative 
support personnel, arguing instead that the Program would be 
implemented at a managerial level, and the labor cost should be at 
least $32.00 and possibly even $48.00. Therefore, in calculating the 
cost figures, FTC staff assumes that for all entities, professional 
technical personnel and/or managerial personnel will create and 
implement the Program, prepare the annual report, train employees, and 
assess the validity of a

[[Page 63743]]

change of address request, at an hourly rate of $32.00.\65\
---------------------------------------------------------------------------

    \65\ The cost is derived from a mid-range among the reported 
2006 Bureau of Labor Statistics rates for likely positions within 
the professional technical and managerial categories. See June 2006 
Bureau of Labor Statistics National Compensation Survey for 
occupational wages in the United States at http://www.bls.gov/ncs/ocs/sp/ncbl0910.pdf (``June 2006 BLS NCS Survey'').
---------------------------------------------------------------------------

    Based on the above estimates and assumptions, the total annual 
labor costs for all categories of covered entities under the final 
regulations implementing section 114 are $142,925,000 (rounded to the 
nearest thousand) [(3,466,000 hours + 400 hours + 1,000,000 hours) x 
$32.00)].
    Section 315:
    Estimated Hours Burden:
    The Commission did not receive any comments relating to its 
original burden estimates for the information collection requirements 
under section 315. Although the final regulations were modified such 
that they no longer require users to furnish a confirmed address to a 
CRA for existing relationships, FTC staff does not believe that this 
modification will significantly alter its original burden estimates. 
Therefore, FTC staff burden estimates remain unchanged under section 
315 from the estimates proposed in the NPRM. Accordingly, FTC staff 
estimates that the average annual information collection burden during 
the three-year period for which OMB clearance was sought will be 
831,000 hours (rounded to the nearest thousand). The FTC staff 
continues to assume that the policies and procedures for notice of 
address discrepancy and furnishing the correct address will be set up 
by administrative support personnel at an hourly rate of $16.\66\ Thus, 
the estimated annual labor cost associated with this burden is 
$13,296,000 (rounded to the nearest thousand).
---------------------------------------------------------------------------

    \66\ This hourly wage is a conservative inflation-adjusted 
updating of hourly mean wages ($14.86) shown for administrative 
support personnel in the June 2006 BLS NCS Survey.
---------------------------------------------------------------------------

    The Agencies have a continuing interest in the public's opinions of 
our collections of information. At any time, comments regarding the 
burden estimate, or any other aspect of this collection of information, 
including suggestions for reducing the burden, may be sent to:
    OCC: Communications Division, Office of the Comptroller of the 
Currency, Public Information Room, Mail stop 1-5, Attention: 1557-0237, 
250 E Street, SW., Washington, DC 20219. In addition, comments may be 
sent by fax to 202-874-4448, or by electronic mail to 
[email protected]. You can inspect and photocopy the comments 
at the OCC's Public Information Room, 250 E Street, SW., Washington, DC 
20219. For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling 202-874-5043. 
Upon arrival, visitors will be required to present valid government-
issued photo identification and submit to security screening in order 
to inspect and photocopy comments.
    Board: You may submit comments, identified by R-1255, by any of the 
following methods:
    Agency Web site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments on http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include docket number in 
the subject line of the message.
    Fax: 202-452-3819 or 202-452-3102.
    Mail: Jennifer J. Johnson, Secretary, Board of Governors of the 
Federal Reserve System, 20th Street and Constitution Avenue, NW., 
Washington, DC 20551.
    All public comments are available from the Board's Web site at 
http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons. Accordingly, your 
comments will not be edited to remove any identifying or contact 
information. Public comments may also be viewed electronically or in 
paper form in Room MP-500 of the Board's Martin Building (20th and C 
Streets, NW.) between 9 a.m. and 5 p.m. on weekdays.
    FDIC: You may submit written comments, which should refer to 3064-
AD00, by any of the following methods:
    Agency Web site: http://www.fdic.gov/regulations/laws/federal/propose.html.
    Follow the instructions for submitting comments on the FDIC Web 
site.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected].
    Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, 
FDIC, 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 a.m. 
and 5 p.m.
    Public Inspection: All comments received will be posted without 
change to http://www.fdic.gov/regulations/laws/federal/propose/html 
including any personal information provided. Comments may be inspected 
at the FDIC Public Information Center, Room 100, 801 17th Street, NW., 
Washington, DC, between 9 a.m. and 4:30 p.m. on business days.
    OTS: Information Collection Comments, Chief Counsel's Office, 
Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552; 
send a facsimile transmission to (202) 906-6518; or send an e-mail to 
related index on the OTS Internet site at http://www.ots.treas.gov. In 
addition, interested persons may inspect the comments at the Public 
Reading Room, 1700 G Street, NW., by appointment. To make an 
appointment, call (202) 906-5922, send an e-mail to 
[email protected], or send a facsimile transmission to (202) 
906-7755.
    NCUA: You may submit comments by any of the following methods 
(Please send comments by one method only):
    Federal eRulemaking Portal: http://www.regulations.gov.
    Follow the instructions for submitting comments.
    NCUA Web site: http://www.ncua.gov/RegulationsOpinionsLaws/proposedregs/proposedregs.html.
    Follow the instructions for submitting comments.
    E-mail: Address to [email protected]. Include ``[Your name] 
Comments on -,'' in the e-mail subject line.
    Fax: (703) 518-6319. Use the subject line described above for e-
mail.
    Mail: Address to Mary F. Rupp, Secretary of the Board, National 
Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-
3428.
    Hand Delivery/Courier: Same as mail address.
    Additionally, commenters may send a copy of their comments to the 
OMB desk officer for the OCC, Board, FDIC, OTS, and NCUA by mail to the 
Office of Information and Regulatory Affairs, U.S. Office of Management 
and Budget, New Executive Office Building, Room 10235, 725 17th Street, 
NW., Washington, DC 20503, or by fax to (202) 395-6974.
    FTC: Comments should refer to ``The Red Flags Rule: Project No. 
R611019,'' and may be submitted by any of the following methods. 
However, if the comment contains any material for which confidential 
treatment is requested, it must be filed in paper form, and the first 
page of the document

[[Page 63744]]

must be clearly labeled ``Confidential.'' \67\
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    \67\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    E-mail: Comments filed in electronic form should be submitted by 
clicking on the following Web link: https://secure.commentworks.com/ftc-redflags and following the instructions on the Web-based form. To 
ensure that the Commission considers an electronic comment, you must 
file it on the Web-based form at https://secure.commentworks.com/ftc-redflags.
    Federal eRulemaking Portal: If this notice appears at http://www.regulations.gov, you may also file an electronic comment through 
that Web site. The Commission will consider all comments that 
regulations.gov forwards to it.
    Mail or Hand Delivery: A comment filed in paper form should include 
``The Red Flags Rule, Project No. R611019,'' both in the text and on 
the envelope and should be mailed or delivered, with two complete 
copies, to the following address: Federal Trade Commission/Office of 
the Secretary, Room H-135 (Annex M), 600 Pennsylvania Avenue, NW., 
Washington, DC 20580. Because paper mail in the Washington area and at 
the Commission is subject to delay, please consider submitting your 
comments in electronic form, as prescribed above. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible.
    Comments on any proposed filing, recordkeeping, or disclosure 
requirements that are subject to paperwork burden review under the 
Paperwork Reduction Act should additionally be submitted to: Office of 
Management and Budget, Attention: Desk Officer for the Federal Trade 
Commission. Comments should be submitted via facsimile to (202) 395-
6974 because U.S. Postal Mail is subject to lengthy delays due to 
heightened security precautions.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC Web site, to the extent 
practicable, at http://www.ftc.gov/os/publiccomments.htm. As a matter 
of discretion, the FTC makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC Web site. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
    Members of the public also can request additional information or a 
copy of the collection from:
    OCC: Mary Gottlieb, OCC Clearance Officer, (202) 874-5090, 
Legislative and Regulatory Activities Division, Office of the 
Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
    Board: Michelle Shore, Clearance Officer, Division of Research and 
Statistics (202) 452-3829.
    FDIC: Steven F. Hanft, Clearance Officer, Legal Division, (202-898-
3907).
    OTS: Ira L. Mills, OTS Clearance Officer, Litigation Division, 
Chief Counsel's Office, at [email protected], (202) 906-6531, or 
facsimile number (202) 906-6518.
    NCUA: Regina M. Metz, Staff Attorney, Office of General Counsel, 
(703) 518-6540.
    FTC: See FOR FURTHER INFORMATION CONTACT above.

B. Regulatory Flexibility Act

    OCC: Under section 605(b) of the Regulatory Flexibility Act (RFA), 
5 U.S.C. 605(b), the OCC must either publish a Final Regulatory 
Flexibility Analysis (FRFA) for a final rule or certify, along with a 
statement providing the factual basis for such certification, the rule 
will not have a significant economic impact on a substantial number of 
small entities. The Small Business Administration has defined ``small 
entities'' for banking purposes as a bank or savings institution with 
assets of $165 million or less. See 13 CFR 121.201.
    Based on its analysis and for the reasons stated below, the OCC 
certifies that this final rulemaking will not have a significant 
economic impact on a substantial number of small entities.
Rules Implementing Section 114
    The proposed regulations implementing section 114 required the 
development and establishment of a written identity theft prevention 
program to detect, prevent, and mitigate identity theft. The proposed 
regulations also required card issuers to assess the validity of a 
notice of address change under certain circumstances.
    In connection with the proposed rulemaking, the OCC concluded that 
the proposed regulations implementing section 114, if adopted as 
proposed, would not impose undue costs on national banks and would not 
have a substantial economic impact on a substantial number of small 
national banks. The OCC noted that national banks already employ a 
variety of measures that satisfy the requirements of the rulemaking 
because (1) such measures are a good business practice and generally 
are a part of a bank's efforts to reduce losses due to fraud, and (2) 
national banks already comply with other regulations and guidance that 
relate to information security, authentication, identity theft, and 
response programs. For example, national banks are already subject to 
CIP rules requiring them to verify the identity of a person opening a 
new account \68\ and already have various systems in place to detect 
certain patterns, practices and specific activities that indicate the 
possible existence of identity theft in connection with the opening of 
new accounts. Similarly, national banks complying with the 
``Interagency Guidelines Establishing Information Security Standards'' 
\69\ and guidance recently issued by the FFIEC titled ``Authentication 
in an Internet Banking Environment'' \70\ already have policies and 
procedures in place to detect attempted and actual intrusions into 
customer information systems and to detect patterns, practices and 
specific activities that indicate the possible existence of identity 
theft in connection with existing accounts. Banks complying with the 
OCC's ``Guidance on Identity Theft and Pretext Calling'' \71\ already 
have policies and procedures to verify the validity of change of 
address requests on existing accounts.
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    \68\ 31 CFR 103.121; 12 CFR 21.21 (national banks).
    \69\ 12 CFR part 30, app. B (national banks).
    \70\ OCC Bulletin 2005-35 (Oct. 12, 2005).
    \71\ OCC AL 2001-4 (April 30, 2001).
---------------------------------------------------------------------------

    Nonetheless, the OCC specifically requested comment and specific 
data on the size of the incremental burden creating an identity theft 
prevention program would have on small national banks, given banks'' 
current practices and compliance with existing requirements. The OCC 
also requested comment on how the final regulations might minimize any 
burden imposed to the extent consistent with the requirements of the 
FACT Act.
    Commenters confirmed that the proposed regulations implementing 
section 114 of the FACT Act are consistent with banks'' usual and 
customary business practices used to minimize losses due to fraud in 
connection with new and existing

[[Page 63745]]

accounts. They also confirmed that banks have implemented measures to 
address many of the proposed requirements as a result of having to 
comply with existing regulations and guidance. However, commenters also 
asserted that the Agencies had underestimated the incremental burden 
imposed by the proposed rules. They highlighted aspects of the proposal 
that they maintained would have required banks to alter their current 
practices and implement duplicative policies and procedures.
    Only a few commenters provided estimates of additional burden that 
would result from the proposed rules. Many of these comments stemmed 
from a misreading of the requirements of the proposed rules. Further, 
many commenters confused the Agencies' PRA estimates with the Agencies' 
overall conclusions regarding regulatory burden.\72\
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    \72\ The PRA focuses more narrowly on the time, effort, and 
financial resources expended by persons to generate, maintain, or 
provide information to or for a Federal agency. See 44 U.S.C. 3501 
et seq.
---------------------------------------------------------------------------

    The OCC believes that the final rules substantially address the 
concerns of the commenters as follows:
     The final rules allow a covered entity to tailor its 
Program to its size, complexity and nature of its operations. The final 
rules and guidelines do not require the use of any specific technology, 
systems, processes or methodology.
     The final rules list the four elements that must be a part 
of a Program, and the steps that a covered entity must take to 
administer the Program. The rules provide covered entities with greater 
discretion to determine how to implement these mandates.
     Additional requirements previously in the proposed rules 
are now in guidelines that are located in Appendix J. The guidelines 
describe various policies and procedures that a financial institution 
or creditor must consider and include in its Program, where 
appropriate, to satisfy the requirements of the final rules. The 
preamble to the rules explains that an institution or creditor may 
determine that particular guidelines are not appropriate to incorporate 
into its Program as long as its Program contains reasonable policies 
and procedures to meet the specific requirements of the final rules.
     The guidelines clarify that a covered entity need not 
create duplicate policies and procedures and may incorporate into its 
Program, as appropriate, its existing processes that control reasonably 
foreseeable risks to customers or to the safety and soundness of the 
financial institution or creditor from identity theft, such as those 
already developed in connection with the entity's fraud prevention 
program.
     The final rules clarify that a Program (including the Red 
Flags determined to be relevant) may be periodically, rather than 
continually, updated to reflect changes in risks to customers and to 
the safety and soundness of the financial institution or creditor from 
identity theft.
     The rules focus on consumer accounts, and require a 
Program to include only other accounts ``for which there is a 
reasonably foreseeable risk to customers or to the safety and soundness 
of the financial institution or creditor from identity theft.''
     The definition of ``Red Flags'' no longer includes 
reference to the ``possible risk'' of identity theft and no longer 
incorporates precursors to identity theft.
     The final rules clarify that the Red Flags in Supplement A 
are examples rather than a mandatory checklist.
     Supplement A includes a Red Flag for activity on an 
inactive account in place of a separate guideline.
     The final rules clarify that the Board of Directors or a 
committee thereof must approve only the initial written Program. The 
rules provide a covered entity with the discretion to determine whether 
the Board or management will approve changes to the Program and the 
extent of Board involvement in oversight of the Program.
     The final rules clarify that only relevant staff must be 
trained to implement the Program, as necessary.
     Card issuers may satisfy the requirements of this section 
by verifying the address at the time the address change notification is 
received, whether or not the notification is linked to a request for an 
additional or replacement card--building on issuers' existing 
procedures.
     Covered entities need not comply with the final rules 
until November 1, 2008.
    The Agencies did consider whether it would be appropriate to extend 
different treatment or exempt small covered entities from the 
requirements of this section of the final rulemaking. The Agencies note 
that identity theft can occur in small entities as well as large ones. 
The Agencies do not believe that an exemption for small entities is 
appropriate given the flexibility built into the final rules and 
guidelines and the importance of the statutory goals and mandate of 
section 114.
    As a result of the changes and clarifications noted above, this 
section of the final rule is far more flexible and less burdensome than 
that in the proposed rules while still fulfilling the statutory 
mandates enumerated in section 114. Moreover, the OCC has concluded 
that the incremental cost of these final rules and guidelines will not 
impose undue costs and will not have a significant economic impact on a 
substantial number of small entities.
Rules Implementing Section 315
    The proposed regulations implementing section 315 required a user 
of consumer reports to have policies and procedures to enable the user 
to form a reasonable belief that it knows the identity of the consumer 
for whom it has obtained a consumer report. The proposed rules also 
required the user to furnish to the CRA from whom it received the 
notice of address discrepancy an address for the consumer that the user 
has reasonably confirmed is accurate when the user: (1) Is able to form 
a reasonable belief that it knows the identity of the consumer for whom 
the consumer report was obtained; (2) establishes or maintains a 
continuing relationship with the consumer; and (3) regularly and in the 
ordinary course of business furnishes information to the CRA from which 
a notice of address discrepancy pertaining to the consumer was 
obtained.
    In connection with the proposed rulemaking the OCC noted that the 
FACT Act already requires CRAs to provide notices of address 
discrepancy to users of credit reports. The OCC stated that with 
respect to new accounts, a national bank already is required by the CIP 
rules to ensure that it knows the identity of a person opening a new 
account and to keep a record describing the resolution of any 
substantive discrepancy discovered during the verification process. The 
OCC also stated that as a matter of good business practice, most 
national banks currently have policies and procedures in place to 
respond to notices of address discrepancy when they are provided in 
connection with both new and existing accounts, by furnishing an 
address for the consumer that the bank has reasonably confirmed is 
accurate to the CRA from which it received the notice of address 
discrepancy.
    The OCC specifically requested comment on whether the proposed 
requirements differ from small banks' current practices and whether the 
proposed requirements on users of consumer reports to have policies and 
procedures to respond to the receipt of an address discrepancy could be 
altered

[[Page 63746]]

to minimize any burden imposed to the extent consistent with the 
requirements of the FACT Act.
    Many suggestions received in response to this solicitation for 
comment would have required a statutory change. However, many 
commenters noted that section 315 does not require the reporting of a 
confirmed address to a CRA for a notice of address discrepancy received 
for an existing account. These commenters stated that the level of 
regulatory burden imposed by this requirement would be significant and 
would force users to reconcile and verify addresses millions of times a 
year in connection with routine account maintenance. Commenters 
maintained that this would result in enormous costs that provide 
relatively little benefit to consumers. The final rules address these 
comments and accordingly, under the rules implementing section 315, a 
user is not obligated to furnish a confirmed address for the consumer 
to the CRA in connection with existing accounts.
    Although, a bank will likely have to modify its existing procedures 
to add a new procedure for promptly reporting to CRAs the reconciled 
address for new deposit accounts, the OCC has concluded that the final 
rules implementing section 315 will not impose undue costs on national 
banks and will have not have a significant economic impact on a 
substantial number of small entities. Finally, as mentioned earlier, 
the final rules provide a transition period and do not require covered 
entities to fully comply with these requirements until November 1, 
2008.
    Board: The Board prepared an initial regulatory flexibility 
analysis as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.) in connection with the July 18, 2006 proposed rule. The 
Board received one comment on its regulatory flexibility analysis.
    Under Section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory 
flexibility analysis otherwise required under Section 604 of the RFA is 
not required if an agency certifies, along with a statement providing 
the factual basis for such certification, that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on its analysis and for the reasons stated below, the Board 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities.
    1. Statement of the need for, and objectives of, the final rule.
    The FACT Act amends the FCRA and was enacted, in part, for the 
purpose of helping to reduce identity theft. Section 114 of the FACT 
Act amends section 615 of the FCRA and directs the Board, together with 
the other Agencies, to issue joint regulations and guidelines regarding 
the detection, prevention, and mitigation of identity theft, including 
special regulations requiring debit and credit card issuers to validate 
notifications of changes of address under certain circumstances. 
Section 315 of the FACT Act adds section 605(h)(2) to the FCRA and 
requires 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 address 
discrepancy. The Board received no comments on the reasons for the 
proposed rule. The Board is adopting the final rule to implement 
sections 114 and 315 of the FACT Act. The SUPPLEMENTARY INFORMATION 
above contains information on the objectives of the final rule.
    2. Summary of issues raised by comments in response to the initial 
regulatory flexibility analysis.
    In accordance with Section 3(a) of the RFA, the Board conducted an 
initial regulatory flexibility analysis in connection with the proposed 
rule. One commenter, the Mortgage Bankers Association (MBA), responded 
to the initial regulatory flexibility analysis and stated that contrary 
to the Agencies' belief, the proposed rule would have a significant 
economic impact on a substantial number of affected small entities. The 
MBA stated that commercial and multifamily mortgage lenders should not 
be subject to the proposed rule because it would constitute useless 
regulatory burden. Three commenters (Independent Community Bankers of 
America, The Financial Services Roundtable and BITS, and KeyCorp) 
believed that the Board and the other Agencies had underestimated the 
costs of compliance. The issues raised by these commenters did not 
apply uniquely to small entities and are described in the Paperwork 
Reduction Act section above.
    Some small financial institutions expressed concern about the 
flexibility granted by the proposal. As stated in the Overview of 
Proposal and Comments Received, these commenters preferred to have more 
structured guidance that describes how to develop and implement a 
Program and what they would need to do to achieve compliance. In 
addition, one commenter expressed concern that smaller institutions 
would be particularly burdened by the proposal's requirement that the 
Program be designed to address changing identity risks ``as they 
arise.''
    3. Description and estimate of small entities affected by the final 
rule.
    The final rule applies to all banks that are members of the Federal 
Reserve System (other than national banks) and their respective 
operating subsidiaries, branches and Agencies of foreign banks (other 
than Federal branches, Federal Agencies, and insured State branches of 
foreign banks), commercial lending companies owned or controlled by 
foreign banks, and organizations operating under section 25 or 25A of 
the Federal Reserve Act (12 U.S.C. 601 et seq., and 611 et seq.). The 
Board's rule will apply to the following institutions (numbers 
approximate): State member banks (881), operating subsidiaries that are 
not functionally regulated with in the meaning of section 5(c)(5) of 
the Bank Holding Company Act of 1956, as amended (877), U.S. branches 
and agencies of foreign banks (219), commercial lending companies owned 
or controlled by foreign banks (3), and Edge and agreement corporations 
(64), for a total of approximately 2,044 institutions. The Board 
estimates that more than 1,448 of these institutions could be 
considered small entities with assets of $165 million or less.
    4. Recordkeeping, reporting, and other compliance requirements.
    Section 114 requires the Board to prescribe regulations that 
require financial institutions and creditors to establish reasonable 
policies and procedures to implement guidelines established by the 
Board and other federal agencies that address identity theft with 
respect to account holders and customers. This would be implemented by 
requiring a covered financial institution or creditor to create an 
Identity Theft Prevention Program that detects, prevents and mitigates 
the risk of identity theft applicable to its accounts.
    Section 114 also requires the Board to adopt regulations applicable 
to credit and debit card issuers to implement policies and procedures 
to assess the validity of change of address requests. The final rule 
implements this by requiring credit and debit card issuers to establish 
reasonable policies and procedures to assess the validity of a change 
of address if it receives notification of a change of address for a 
debit or credit card account and, within a short period of time 
afterwards (during at least the first 30 days after it receives such 
notification), the issuer receives a request for an additional or 
replacement card for the same account.
    Section 315 requires the Board to prescribe regulations that 
provide guidance regarding the reasonable policies and procedures that 
a user of

[[Page 63747]]

consumers' reports should employ to verify the identity of a consumer 
when a consumer reporting agency provides a notice of address 
discrepancy with the consumer reporting agency in certain 
circumstances. The final rule requires users of consumer reports to 
develop and implement reasonable policies and procedures for verifying 
the identity of a consumer for whom it has obtained a consumer report 
and for whom it receives a notice of address discrepancy and to 
reconcile an address discrepancy with the appropriate consumer 
reporting agency in certain circumstances.
    5. Steps taken to minimize the economic impact on small entities.
    The Board and the other Agencies have attempted to minimize the 
economic impact on small entities by providing more flexibility in 
developing a Program and moving certain detail contained in the 
proposed regulations to the guidelines. In addition, to allow small 
entities and creditors to tailor their Programs to their operations, 
the final rules provide that the Program must be appropriate to the 
size and complexity of the financial institution or creditor and the 
nature and scope of its activities. The Board has also eliminated the 
requirement for institutions to update their Program in response to 
changing identity theft risks ``as they arise.'' The final rule instead 
requires ``periodic'' updating.
    FDIC: The FDIC prepared an initial regulatory flexibility analysis 
as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.) in connection with the July 18, 2006 proposed rule. Under Section 
605(b) of the RFA, 5 U.S.C. 605(b), the regulatory flexibility analysis 
otherwise required under Section 604 of the RFA is not required if an 
agency certifies, along with a statement providing the factual basis 
for such certification, that the rule will not have a significant 
economic impact on a substantial number of small entities (defined for 
purposes of the RFA to include banks with less than $165 in assets). 
Based on its analysis and for the reasons stated below, the FDIC 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities
    Under the final rule implementing FACT Act Section 114, financial 
institutions and creditors must have a written program that includes 
controls to address the identity theft risks they have identified. 
Credit and debit card issuers must also have additional policies and 
procedures to assess the validity of change of address requests.
    The final rule would apply to all FDIC-insured state nonmember 
banks, approximately 3,260 of which are small entities. The rule is 
drafted in a flexible manner that allows institutions to develop and 
implement different types of programs based upon their size, 
complexity, and the nature and scope of their activities. The final 
rules and guidelines do not require the use of any specific technology, 
systems, processes or methodology.
    The guidelines clarify that a covered entity need not create 
duplicate policies and procedures and may incorporate into its Program, 
as appropriate, its existing processes that control reasonably 
foreseeable risks to customers or to the safety and soundness of the 
financial institution or creditor from identity theft, such as those 
already developed in connection with the entity's fraud prevention 
program. The FDIC believes that many institutions have already 
implemented a significant portion of the detection and mitigation 
efforts required by the rule.
    With respect to the portion of the rule covering card issuers, 
those entities may satisfy the requirements of this section by 
verifying the address at the time the address change notification is 
received, whether or not the notification is linked to a request for an 
additional or replacement card--building on issuers'' existing 
procedures.
    Under the final rule implementing FACT Act Section 315, a user of 
consumer reports (which constitutes most, if not all, FDIC-insured 
state nonmember banks) must have policies and procedures to enable the 
user to form a reasonable belief that it knows the identity of the 
consumer for whom it has obtained a consumer report. Although, a bank 
will likely have to modify its existing procedures to add a new 
procedure for promptly reporting to consumer reporting agencies the 
reconciled address for new deposit accounts, the FDIC has concluded 
that the final rules implementing section 315--which only obligates a 
user to furnish a confirmed address for the consumer to the consumer 
reporting agency in connection with new, and not existing, accounts--
will not impose undue costs on banks and will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, the final rules provide a transition period and do not 
require covered entities to fully comply with these requirements until 
November 1, 2008.
    OTS: Under section 605(b) of the Regulatory Flexibility Act (RFA), 
5 U.S.C. 605(b), OTS must either publish a Final Regulatory Flexibility 
Analysis (FRFA) for a final rule or certify, along with a statement 
providing the factual basis for such certification, the rule will not 
have a significant economic impact on a substantial number of small 
entities. The Small Business Administration has defined ``small 
entities'' to include savings associations with total assets of $165 
million or less. 13 CFR 121.201.
    The rule will implement section 114 and 315 of the FACT Act and 
will apply to all savings associations (and federal savings 
associations operating subsidiaries that are not functionally regulated 
within the meaning of section 5(c)(5) of the Bank Holding Company Act), 
424 of which have assets of less than or equal to $165 million. Based 
on its analysis and for the reasons stated below, OTS certifies that 
this final rulemaking will not have a significant economic impact on a 
substantial number of small entities.
Rules Implementing Section 114
    The proposed regulations implementing section 114 required the 
development and establishment of a written identity theft prevention 
program to detect, prevent, and mitigate identity theft. The proposed 
regulations also required card issuers to assess the validity of a 
notice of address change under certain circumstances.
    In connection with the proposed rulemaking, OTS concluded that the 
proposed regulations implementing section 114, if adopted as proposed, 
would not impose undue costs on savings associations and would not have 
a substantial economic impact on a substantial number of small savings 
associations. OTS noted that savings associations already employ a 
variety of measures that satisfy the requirements of the rulemaking 
because (1) such measures are a good business practice and generally 
are a part of a thrift's efforts to reduce losses due to fraud, and (2) 
savings associations already comply with other regulations and guidance 
that relate to information security, authentication, identity theft, 
and response programs. For example, savings associations are already 
subject to CIP rules requiring them to verify the identity of a person 
opening a new account \73\ and already have various systems in place to 
detect certain patterns, practices and specific activities that 
indicate the possible existence of identity theft in connection with 
the opening of new accounts. Similarly, savings associations complying 
with the ``Interagency Guidelines Establishing

[[Page 63748]]

Information Security Standards'' \74\ and guidance recently issued by 
the FFIEC titled ``Authentication in an Internet Banking Environment'' 
\75\ already have policies and procedures in place to detect attempted 
and actual intrusions into customer information systems and to detect 
patterns, practices and specific activities that indicate the possible 
existence of identity theft in connection with existing accounts. 
Savings associations complying with OTS's guidance on ``Identity Theft 
and Pretext Calling'' \76\ already have policies and procedures to 
verify the validity of change of address requests on existing accounts.
---------------------------------------------------------------------------

    \73\ 31 CFR 103.121; 12 CFR 563.177 (savings associations).
    \74\ 12 CFR part 570, app. B (savings associations).
    \75\ OTS CEO Letter 228 (Oct. 12, 2005).
    \76\ OTS CEO Letter 139 (May 4, 2001).
---------------------------------------------------------------------------

    Nonetheless, OTS specifically requested comment and specific data 
on the size of the incremental burden creating an identity theft 
prevention program would have on small saving associations, given their 
current practices and compliance with existing requirements. OTS also 
requested comment on how the final regulations might minimize any 
burden imposed to the extent consistent with the requirements of the 
FACT Act.
    Commenters confirmed that the proposed regulations implementing 
section 114 of the FACT Act are consistent with savings associations' 
usual and customary business practices used to minimize losses due to 
fraud in connection with new and existing accounts. They also confirmed 
that savings associations have implemented measures to address many of 
the proposed requirements as a result of having to comply with existing 
regulations and guidance. However, commenters also asserted that the 
Agencies had underestimated the incremental burden imposed by the 
proposed rules. They highlighted aspects of the proposal that they 
maintained would have required savings associations to alter their 
current practices and implement duplicative policies and procedures.
    Only a few commenters provided estimates of additional burden that 
would result from the proposed rules. Many of these comments stemmed 
from a misreading of the requirements of the proposed rules. Further, 
many commenters confused the Agencies' PRA estimates with the Agencies' 
overall conclusions regarding regulatory burden.\77\
---------------------------------------------------------------------------

    \77\ The PRA focuses more narrowly on the time, effort, and 
financial resources expended by persons to generate, maintain, or 
provide information to or for a Federal agency. See 44 U.S.C. 3501 
et seq.
---------------------------------------------------------------------------

    OTS believes that the final rules substantially address the 
concerns of the commenters as follows:
     The final rules allow a covered entity to tailor its 
Program to its size, complexity and nature of its operations. The final 
rules and guidelines do not require the use of any specific technology, 
systems, processes or methodology.
     The final rules list the four elements that must be a part 
of a Program, and the steps that a covered entity must take to 
administer the Program. The rules provide covered entities with greater 
discretion to determine how to implement these mandates.
     Additional requirements previously in the proposed rules 
are now in guidelines that are located in Appendix J. The guidelines 
describe various policies and procedures that a financial institution 
or creditor must consider and include in its Program, where 
appropriate, to satisfy the requirements of the final rules. The 
preamble to the rules explains that an institution or creditor may 
determine that particular guidelines are not appropriate to incorporate 
into its Program as long as its Program contains reasonable policies 
and procedures to meet the specific requirements of the final rules.
     The guidelines clarify that a covered entity need not 
create duplicate policies and procedures and may incorporate into its 
Program, as appropriate, its existing processes that control reasonably 
foreseeable risks to customers or to the safety and soundness of the 
financial institution or creditor from identity theft, such as those 
already developed in connection with the entity's fraud prevention 
program.
     The final rules clarify that a Program (including the Red 
Flags determined to be relevant) may be periodically, rather than 
continually, updated to reflect changes in risks to customers and to 
the safety and soundness of the financial institution or creditor from 
identity theft.
     The rules focus on consumer accounts, and require a 
Program to include only other accounts ``for which there is a 
reasonably foreseeable risk to customers or to the safety and soundness 
of the financial institution or creditor from identity theft.''
     The definition of ``Red Flags'' no longer includes 
reference to the ``possible risk'' of identity theft and no longer 
incorporates precursors to identity theft.
     The final rules clarify that the Red Flags in Supplement A 
are examples rather than a mandatory checklist.
     Supplement A includes a Red Flag for activity on an 
inactive account in place of a separate guideline.
     The final rules clarify that the Board of Directors or a 
committee thereof must approve only the initial written Program. The 
rules provide a covered entity with the discretion to determine whether 
the Board or management will approve changes to the Program and the 
extent of Board involvement in oversight of the Program.
     The final rules clarify that only relevant staff must be 
trained to implement the Program, as necessary.
     Card issuers may satisfy the requirements of this section 
by verifying the address at the time the address change notification is 
received, whether or not the notification is linked to a request for an 
additional or replacement card--building on issuers' existing 
procedures.
     Covered entities need not comply with the final rules 
until November 1, 2008.
    The Agencies did consider whether it would be appropriate to extend 
different treatment or exempt small covered entities from the 
requirements of this section of the final rulemaking. The Agencies note 
that identity theft can occur in small entities as well as large ones. 
The Agencies do not believe that an exemption for small entities is 
appropriate given the flexibility built into the final rules and 
guidelines and the importance of the statutory goals and mandate of 
section 114.
    As a result of the changes and clarifications noted above, this 
section of the final rule is far more flexible and less burdensome than 
that in the proposed rules while still fulfilling the statutory 
mandates enumerated in section 114. Moreover, OTS has concluded that 
the incremental cost of these final rules and guidelines will not 
impose undue costs and will not have a significant economic impact on a 
substantial number of small entities.
Rules Implementing Section 315
    The proposed regulations implementing section 315 required a user 
of consumer reports to have policies and procedures to enable the user 
to form a reasonable belief that it knows the identity of the consumer 
for whom it has obtained a consumer report. The proposed rules also 
required the user to furnish to the CRA from whom it received the 
notice of address discrepancy an address for the consumer that the user 
has reasonably confirmed is accurate when the user: (1) Is able to form 
a reasonable belief that it knows the identity of the consumer

[[Page 63749]]

for whom the consumer report was obtained; (2) establishes or maintains 
a continuing relationship with the consumer; and (3) regularly and in 
the ordinary course of business furnishes information to the CRA from 
which a notice of address discrepancy pertaining to the consumer was 
obtained.
    In connection with the proposed rulemaking OTS noted that the FACT 
Act already requires CRAs to provide notices of address discrepancy to 
users of credit reports. OTS stated that with respect to new accounts, 
a savings association already is required by the CIP rules to ensure 
that it knows the identity of a person opening a new account and to 
keep a record describing the resolution of any substantive discrepancy 
discovered during the verification process. OTS also stated that as a 
matter of good business practice, most savings associations currently 
have policies and procedures in place to respond to notices of address 
discrepancy when they are provided in connection with both new and 
existing accounts, by furnishing an address for the consumer that the 
association has reasonably confirmed is accurate to the CRA from which 
it received the notice of address discrepancy.
    OTS specifically requested comment on whether the proposed 
requirements differ from small savings associations' current practices 
and whether the proposed requirements on users of consumer reports to 
have policies and procedures to respond to the receipt of an address 
discrepancy could be altered to minimize any burden imposed to the 
extent consistent with the requirements of the FACT Act.
    Many suggestions received in response to this solicitation for 
comment would have required a statutory change. However, many 
commenters noted that section 315 does not require the reporting of a 
confirmed address to a CRA for a notice of address discrepancy received 
for an existing account. These commenters stated that the level of 
regulatory burden imposed by this requirement would be significant and 
would force users to reconcile and verify addresses millions of times a 
year in connection with routine account maintenance. Commenters 
maintained that this would result in enormous costs that provide 
relatively little benefit to consumers. The final rules address these 
comments and, accordingly, under the rules implementing section 315, a 
user is not obligated to furnish a confirmed address for the consumer 
to the CRA in connection with existing accounts.
    Although, a savings association will likely have to modify its 
existing procedures to add a new procedure for promptly reporting to 
CRAs the reconciled address for new deposit accounts, OTS has concluded 
that the final rules implementing section 315 will not impose undue 
costs on savings associations and will have not have a significant 
economic impact on a substantial number of small entities. Finally, as 
mentioned earlier, the final rules provide a transition period and do 
not require covered entities to fully comply with these requirements 
until November 1, 2008.
    FTC: The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612, 
requires that the Commission provide an Initial Regulatory Flexibility 
Analysis (``IRFA'') with a proposed rule and a Final Regulatory 
Flexibility Analysis (``FRFA''), if any, with the final rule, unless 
the Commission certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. See 5 U.S.C. 
603-605.
    The Commission hereby certifies that the final regulations will not 
have a significant economic impact on a substantial number of small 
business entities. The Commission recognizes that the final regulations 
will affect a substantial number of small businesses. We do not expect, 
however, that the final regulations will have a significant economic 
impact on these small entities.
    The Commission continues to believe that a precise estimate of the 
number of small entities that fall under the final regulations is not 
currently feasible. Based on changes made to the final regulations in 
response to comments received, however, and the Commission's own 
experience and knowledge of industry practices, the Commission also 
continues to believe that the cost and burden to small business 
entities of complying with the final regulations are minimal. 
Accordingly, this document serves as notice to the Small Business 
Administration of the agency's certification of no effect. Nonetheless, 
the Commission has decided to publish a FRFA with these final 
regulations. Therefore, the Commission has prepared the following 
analysis:
1. Need for and Objectives of the Rule
    The FTC is charged with enforcing the requirements of sections 114 
and 315 of the Fair and Accurate Credit Transactions Act of 2003 (FACT 
Act) (15 U.S.C. Sec. Sec.  1681m(e) and 1681c(h)(2)), which require the 
FTC to establish guidelines for financial institutions and creditors 
identifying patterns, practices, and specific forms of activity, that 
indicate the possible existence of identity theft, and regulations 
requiring each financial institution and creditor to establish policies 
and procedures for implementing the guidelines. In addition, section 
114 requires credit and debit card issuers to establish policies and 
procedures to assess the validity of a change of address request. 
Section 315 requires the FTC to develop policies and procedures that a 
user of consumer reports must employ when such a user receives a notice 
of address discrepancy from a consumer reporting agency described in 
section 603(p) of the FCRA. In this action, the FTC promulgates final 
rules that would implement these requirements of the FACT Act.
2. Significant Issues Received by Public Comment
    The Commission received a number of comments on the effect of the 
proposed regulations. Some of the comments addressed the effect of the 
proposed regulations on businesses generally, and did not identify 
small businesses as a particular category. The FTC staff, therefore, 
has included all comments in this FRFA that raised potentially 
significant compliance issues for small businesses, regardless of 
whether the commenter identified small businesses as being an affected 
category.
    In drafting its PRA analysis for the proposed regulations, FTC 
staff believed that because motor vehicle dealers' loans typically are 
financed by financial institutions also subject to those regulations, 
the dealers were likely to use the latter's programs as a basis to 
develop their own. Therefore, although subject to a high risk of 
identity theft, their burden would be less than other high-risk 
entities. Commenters, however, noted among other concerns that some 
motor vehicle dealers finance their own loans. Thus, FTC staff no 
longer is considering motor vehicle dealers separately from other high-
risk entities.
    As noted in the PRA analysis, the Agencies continue to believe that 
many of the high-risk entities, as part of their usual and customary 
business practices, already take steps to minimize losses due to fraud. 
The final rulemaking clarifies that only relevant staff need be trained 
to implement the Program, as necessary--meaning, for example, that 
staff already trained as a part of a covered entity's anti-fraud 
prevention efforts do not need to be re-trained except as incrementally 
needed. Notwithstanding this clarification, in response to comments 
received, the Agencies are increasing the burden estimates attributable 
to training from two to four hours, as is the FTC for high-risk 
entities in their initial year of

[[Page 63750]]

implementing the Program, but FTC staff continues to believe that one 
hour of recurring annual training remains a reasonable estimate.
    A few commenters believed that FTC staff had underestimated the 
amount of time it would take low-risk entities to comply with the 
proposed regulations. These commenters estimated that the amount of 
time would range from 6 to 20 hours to create a program and 1 hour each 
to train employees and draft the annual report. The FTC staff believes 
these estimates were based on a misunderstanding of the requirements of 
the proposed regulations, including that the list of 31 Red Flags in 
the proposed guidelines was intended to be a checklist. The final 
regulations clarify that the list of Red Flags is illustrative only. 
Moreover, the emphasis of the written Program, as required under the 
final regulations, is to identify risks of identity theft. To the 
extent that entities with consumer accounts determine that they have a 
minimal risk of identity theft, they would be tasked only with 
developing a streamlined Program. Therefore, FTC staff does not believe 
that it would take such an entity 6 to 20 hours to develop a Program, 1 
hour to train employees, and 1 hour to draft an annual report on risks 
of identity theft which are minimal or non-existent. Nonetheless, FTC 
staff believes that it may have underestimated the time low-risk 
entities may need to initially apply the final rule to develop a 
Program. Thus, FTC staff has increased from 20 minutes to 1 hour its 
previously stated estimate for this activity.
    In addition, the final regulations have been revised from the 
proposed regulations to alleviate the burden of creating a written 
Program for entities that determine that they do not have any covered 
accounts. The FTC staff believes that entities subject to a low risk of 
identity theft, but not having consumer accounts, will likely determine 
that they do not have covered accounts. Such entities would not be 
required to develop a written Program. The FTC staff estimates that 
approximately 9,191,496 \78\ of the 10,813,525 low-risk entities 
subject to the requirement to create a written Program under the 
proposed regulations will not have covered accounts under the final 
rule. Therefore, although these 9,191,496 low-risk entities will have 
to conduct a periodic risk assessment to determine if they covered 
accounts, they will not be required to develop a written Program, 
thereby substantially reducing the original burden estimate in the NPRM 
for low-risk entities.
---------------------------------------------------------------------------

    \78\ This estimate is derived from an analysis of a database of 
U.S. businesses based on NAICS codes for businesses that market 
goods or services to consumers or other businesses, net of the 
number of creditors subject to the FTC's jurisdiction, an estimated 
subset of which comprise anticipated low-risk entities not having 
covered accounts under the final rule.
---------------------------------------------------------------------------

    The FTC received additional comments on its IRFA requesting that 
the FTC delay implementation of the final rules for small businesses by 
a minimum of six months, consider creating a certification form for 
low-risk entities, and develop a small business compliance guide. The 
Agencies have set a mandatory compliance deadline of November 1, 2008, 
thereby providing all entities with well over six months in which to 
implement the final regulations. The FTC staff will be developing a 
small business compliance guide prior to the mandatory compliance 
deadline of November 1, 2008. The FTC staff will consider whether to 
include any model forms in such guide.
    The FTC did not receive any comments on its IRFA for the proposed 
regulations implementing section 114 requiring credit and debit card 
issuers to establish policies and procedures to assess the validity of 
a change of address request, including notifying the cardholder or 
using another means of assessing the validity of the change of address. 
The FTC staff does not believe that the changes made to the final 
regulation have altered its original burden estimates.
    The FTC did not receive any comments on its IRFA relating to the 
proposed regulations under section 315.
3. Small Entities to Which the Final Rule Will Apply
    The final regulations apply to a wide variety of business 
categories under the Small Business Size Standards. Generally, the 
final regulations would apply to financial institutions, creditors, and 
users of consumer reports. In particular, entities under FTC's 
jurisdiction covered by section 114 include State-chartered credit 
unions, non-bank lenders, mortgage brokers, automobile dealers, utility 
companies, telecommunications companies, and any other person that 
regularly participates in a credit decision, including setting the 
terms of credit. The section 315 requirements apply to State-chartered 
credit unions, non-bank lenders, insurers, landlords, employers, 
mortgage brokers, automobile dealers, collection agencies, and any 
other person who requests a consumer report from a consumer reporting 
agency described in section 603(p) of the FCRA.
    Given the coverage of the final rules, a very large number of small 
entities across almost every industry could be subject to the final 
rules. For the majority of these entities, a small business is defined 
by the Small Business Administration as one whose average annual 
receipts do not exceed $6.5 million or who have fewer than 500 
employees.\79\
---------------------------------------------------------------------------

    \79\ These numbers represent the size standards for most retail 
and service industries ($6.5 million total receipts) and 
manufacturing industries (500 employees). A list of the SBA's size 
standards for all industries can be found at http://www.sba.gov/size/summary-whatis.html.
---------------------------------------------------------------------------

    Section 114: As discussed in the PRA section of this Notice, given 
the broad scope of section 114's requirements, it is difficult to 
determine with precision the number of financial institutions and 
creditors that are subject to the FTC's jurisdiction. There are 
numerous small businesses under the FTC's jurisdiction and there is no 
formal way to track them; moreover, as a whole, the entities under the 
FTC's jurisdiction are so varied that there are no general sources that 
provide a record of their existence. Nonetheless, FTC staff estimates 
that the final regulations implementing section 114 will affect over 
3500 financial institutions and over 11 million creditors \80\ subject 
to the FTC's jurisdiction, for a combined total of approximately 11.1 
million affected entities. Of this total, the FTC staff expects that 
well over 90% of these firms qualify as small businesses under existing 
size standards (i.e., $165 million in assets for financial institutions 
and $6.5 million in sales for many creditors).
---------------------------------------------------------------------------

    \80\ This estimate is derived from census data of U.S. 
businesses based on NAICS codes for businesses that market goods or 
services to consumers and businesses. 2003 County Business Patterns, 
U.S. Census Bureau (http://censtats.census.gov/cgi- bin/cbpnaic/
cbpsel.pl); and 2002 Economic Census, Bureau (http://www.census.gov/econ/census02/).
---------------------------------------------------------------------------

    One commenter acknowledged that the FTC's estimates as to the 
number of small entities that will be affected were accurate, but did 
not provide precise numbers.
    The final regulations implementing section 114 also require credit 
and debit card issuers to establish policies and procedures to assess 
the validity of a change of address request. Indeed, the final 
regulations require credit and debit card issuers to notify the 
cardholder or to use another means of assessing the validity of the 
change of address. FTC staff believes that there may be as many as 
3,764 credit or debit card issuers that fall under the jurisdiction of 
the FTC and that well over 90% of these firms qualify as small 
businesses under existing size standards (i.e., $165 million in assets 
for financial

[[Page 63751]]

institutions and $6.5 million in sales for many creditors).
    The Commission did not receive any comments to the IRFA on the 
latter credit or debit card issuers that would allow it to determine 
the precise number of small entities that will be affected.
    Section 315: As discussed in the PRA section of this Notice, given 
the broad scope of section 315's requirements, it is difficult to 
determine with precision the number of users of consumer reports that 
are subject to the FTC's jurisdiction. There are numerous small 
businesses under the FTC's jurisdiction and there is no formal way to 
track them; moreover, as a whole, the entities under the FTC's 
jurisdiction are so varied that there are no general sources that 
provide a record of their existence. Nonetheless, FTC staff estimates 
that the final regulations implementing section 315 will affect 
approximately 1.6 million users of consumer reports subject to the 
FTC's jurisdiction \81\ and that well over 90% of these firms qualify 
as small businesses under existing size standards (i.e., $165 million 
in assets for financial institutions and $6.5 million in sales for many 
creditors).
---------------------------------------------------------------------------

    \81\ This estimate is derived from census data of U.S. 
businesses based on NAICS codes for businesses that market goods or 
services to consumers and businesses. 2003 County Business Patterns, 
U.S. Census Bureau (http://censtats.census.gov/cgi-bin/cbpnaic/cbpsel.pl); and 2002 Economic Census, Bureau (http://www.census.gov/econ/census02/).
---------------------------------------------------------------------------

    The Commission did not receive any comments to the IRFA on the 
proposed regulations under Section 315 that would allow it to determine 
the precise number of small entities that will be affected.
4. Projected Reporting, Recordkeeping and Other Compliance Requirements
    The final requirements will involve some increased costs for 
affected parties. Most of these costs will be incurred by those 
required to conduct periodic risk assessments, and draft identity theft 
Programs and annual reports. There will also be costs associated with 
training, and for credit and debit card issuers to establish policies 
and procedures to assess the validity of a change of address request. 
In addition, there will be costs related to developing reasonable 
policies and procedures that a user of consumer reports must employ 
when a user receives a notice of address discrepancy from a consumer 
reporting agency, and for furnishing an address that the user has 
reasonably confirmed is accurate. The Commission does not expect, 
however, that the increased costs associated with the final regulations 
will be significant as explained below.
    Section 114: The FTC staff estimates that there may be as many as 
90% of the businesses affected by the proposed rules under section 114 
that are subject to a high risk of identity theft that qualify as small 
businesses. It is likely that many such entities already engage in 
various activities to minimize losses due to fraud as part of their 
usual and customary business practices. Accordingly, the impact of the 
proposed requirements would be merely incremental and not significant. 
In particular, the rule will direct many of these entities to 
consolidate their existing policies and procedures into a written 
Program and may require some additional staff training.
    The FTC expects that well over 90% of the businesses affected by 
the proposed rules under section 114 that are subject to a low risk of 
identity theft qualify as small businesses under existing size 
standards (i.e., $165 million in assets for financial institutions and 
$6.5 million in sales for many creditors). The final requirements are 
drafted in a flexible manner that limits the burden on a substantial 
majority of low-risk entities to conducting periodic risk assessments 
for covered accounts, and allows the remaining minority of low-risk 
entities to develop and implement different types of programs based 
upon their size, complexity, and the nature and scope of their 
activities. As a result, the FTC staff expects that the burden on these 
low-risk entities will be minimal (i.e., not significant). The final 
regulations would require low-risk entities that have covered accounts 
that have no existing identity theft procedures to state in writing 
their low-risk of identity theft, train staff to be attentive to future 
risks of identity theft, and, if appropriate, prepare an annual report. 
The FTC staff believes that, for the affected low-risk entities, such 
activities will be not be complex or resource-intensive tasks.
    The final regulations implementing section 114 also require credit 
and debit card issuers to establish policies and procedures to assess 
the validity of a change of address request. It is likely that most of 
the entities have automated the process of notifying the cardholder or 
using other means to assess the validity of the change of address such 
that implementation will pose no further burden. For those that do not, 
the FTC staff expects that a small number of such entities (100) will 
need to develop policies and procedures to assess the validity of a 
change of address request. The impacts on such entities should not be 
significant, however.
    In calculating the costs, FTC staff assumes that for all entities, 
professional technical personnel and/or managerial personnel will 
conduct the periodic risk assessment, create and implement the Program, 
prepare the annual report, train employees, and assess the validity of 
a change of address request.
    Section 315: The final regulations implementing section 315 provide 
guidance regarding reasonable policies and procedures that a user of 
consumer reports must employ when a user receives a notice of address 
discrepancy from a consumer reporting agency. The final regulations 
also require a user of consumer reports to furnish an address that the 
user has reasonably confirmed is accurate to the consumer reporting 
agency from which it receives a notice of address discrepancy, but only 
to the extent that such user regularly and in the ordinary course of 
business furnishes information to such consumer reporting agency. The 
FTC staff believes that the impacts on users of consumer reports that 
are small businesses will not be significant. As discussed in the PRA 
section of the NPRM, the FTC staff believes that it will not take users 
of consumer reports under FTC jurisdiction a significant amount of time 
to develop policies and procedures that they will employ when they 
receive a notice of address discrepancy. FTC staff believes that only 
10,000 of such users of consumer reports furnish information to 
consumer reporting agencies as part of their usual and customary 
business practices and that approximately 20% of these entities qualify 
as small businesses. Therefore, the staff estimates that 2,000 small 
businesses will be affected by this portion of the final regulation 
that requires furnishing the correct address. As discussed in the PRA 
section of this NPRM, FTC staff estimates that it will not take such 
users of consumer reports a significant amount of time to develop the 
policies and procedures for furnishing the correct address to the 
consumer reporting agencies pursuant to the final regulations for 
implementing section 315. The FTC staff estimates that the costs 
associated with these impacts will not be significant.
    In calculating these costs, FTC staff assumes that the policies and 
procedures for notice of address discrepancy and furnishing the correct 
address will be set up by administrative support personnel.

[[Page 63752]]

5. Steps Taken To Minimize Significant Economic Impact of the Rule on 
Small Entities
    The Commission considered whether any significant alternatives, 
consistent with the purposes of the FACT Act, could further minimize 
the final regulations' impact on small entities. The FTC asked for 
comment on this issue. The final requirements are drafted in a flexible 
manner that limits the burden on a substantial majority of low-risk 
entities to conducting periodic risk assessments for covered accounts 
and allows the remaining minority of low-risk entities to develop and 
implement different types of programs based upon their size, 
complexity, and the nature and scope of their activities. In addition, 
a commenter requested that the FTC delay implementation of the final 
rules for small businesses by a minimum of six months, produce a 
shortened Red Flags list, consider creating a certification form for 
low-risk entities, and develop a small business compliance guide. The 
Agencies have set a mandatory compliance deadline of November 1, 2008, 
thereby providing all entities with well over six months in which to 
implement the final regulations. As discussed in the PRA analysis 
infra, the Agencies have clarified that the Red Flags Supplement is 
illustrative only, and is not intended to be used as a checklist. 
Therefore, the Agencies did not consider it necessary to alter the Red 
Flags listed. The FTC staff will be developing a small business 
compliance guide prior to the mandatory compliance deadline of November 
1, 2008. The FTC staff will consider whether to include any model forms 
in such guide.

C. OCC and OTS Executive Order 12866 Determination

    The OCC and the OTS each have independently determined that the 
final rule is not a ``significant regulatory action'' as defined in 
Executive Order 12866 because the annual effect on the economy is less 
than $100 million. Accordingly, a regulatory assessment is not 
required.

D. OCC and OTS Executive Order 13132 Determination

    The OCC and the OTS each has determined that these final rules do 
not have any federalism implications for purposes of Executive Order 
13132.

E. NCUA Executive Order 13132 Determination

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on State and local interests. In 
adherence to fundamental federalism principles, the NCUA, an 
independent regulatory agency as defined in 44 U.S.C. 3502(5) 
voluntarily complies with the Executive Order. These final rules apply 
only to federally chartered credit unions and would not have 
substantial direct effects on the States, on the connection between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government. The NCUA has 
determined that these final rules do not constitute a policy that has 
federalism implications for purposes of the Executive Order.

F. OCC and OTS Unfunded Mandates Reform Act of 1995 Determination

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4 (Unfunded Mandates Act) requests that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private section, of 
$100 million or more in any one year. If a budgetary impact statement 
is required, section 205, of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule.
    The OCC and OTS each has determined that this rule will not result 
in expenditures by State, local, and tribal governments, or by the 
private sector, of $100 million or more. National banks and savings 
associations already employ a variety of measures that satisfy the 
requirements of the final rulemaking because, as described earlier, 
these are usual and customary business practices to minimize losses due 
to fraud, or because, as described earlier, they already comply with 
other existing regulations and guidance that relate to information 
security, authentication, identity theft, and response programs. 
Accordingly, neither the OCC not the OTS has prepared a budgetary 
impact statement or specifically addressed the regulatory alternatives 
considered.

G. NCUA: The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    The NCUA has determined that these final rules will not affect 
family well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 
2681 (1998).

H. NCUA: Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) Determination

    A SBREFA (Pub. L. 104-121) reporting requirement is triggered in 
instances where NCUA issues a final rule as defined by section 551 of 
the Administrative Procedure Act, 5 U.S.C. 551. NCUA has determined 
this final rule is not a major rule for purposes of SBREFA and the 
Office of Management and Budget (OMB) has concurred.

I. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act (12 U.S.C. 4809) requires 
the Federal banking agencies and the NCUA to use ``plain language'' in 
all proposed and final rules published in the Federal Register. The 
Agencies received no comments on how to make the rules easier to 
understand, and believe the final rules are presented in a clear and 
straightforward manner.

List of Subjects

12 CFR Part 41

    Banks, banking, Consumer protection, National Banks, Reporting and 
recordkeeping requirements.

12 CFR Part 222

    Banks, banking, Holding companies, state member banks.

12 CFR Part 334

    Administrative practice and procedure, Bank deposit insurance, 
Banks, banking, Reporting and recordkeeping requirements, Safety and 
soundness.

12 CFR Part 364

    Administrative practice and procedure, Bank deposit insurance, 
Banks, banking, Reporting and recordkeeping requirements, Safety and 
Soundness.

12 CFR Part 571

    Consumer protection, Credit, Fair Credit Reporting Act, Privacy, 
Reporting and recordkeeping requirements, Savings associations.

12 CFR Part 717

    Consumer protection, Credit unions, Fair credit reporting, Privacy, 
Reporting and recordkeeping requirements.

16 CFR Part 681

    Fair Credit Reporting Act, Consumer reports, Consumer report users, 
Consumer reporting agencies, Credit, Creditors, Information furnishers, 
Identity theft, Trade practices.

[[Page 63753]]

Department of the Treasury

Office of the Comptroller of the Currency
12 CFR Chapter I

Authority and Issuance

0
For the reasons discussed in the joint preamble, the Office of the 
Comptroller of the Currency amends Part 41 of title 12, chapter I, of 
the Code of Federal Regulations as follows:

PART 41--FAIR CREDIT REPORTING

0
1. The authority citation for part 41 continues to read as follows:

    Authority: 12 U.S.C. 1 et seq., 24 (Seventh), 93a, 481, 484, and 
1818; 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t, 
1681w, Sec. 214, Pub. L. 108-159, 117 Stat. 1952.

Subpart A--General Provisions

0
2. Section 41.1 is added to read as follows:


Sec.  41.1  Purpose.

    (a) Purpose. The purpose of this part is to establish standards for 
national banks regarding consumer report information. In addition, the 
purpose of this part is to specify the extent to which national banks 
may obtain, use, or share certain information. This part also contains 
a number of measures national banks must take to combat consumer fraud 
and related crimes, including identity theft.
    (b) [Reserved]

0
3. Amend Sec.  41.3 by revising the introductory text to read as 
follows:


Sec.  41.3  Definitions.

    For purposes of this part, unless explicitly stated otherwise:
* * * * *

0
4. Revise the heading for Subpart I to read as follows:

Subpart I--Duties of Users of Consumer Reports Regarding Address 
Discrepancies and Records Disposal

0
5. Add Sec.  41.82 to read as follows:


Sec.  41.82  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to a user of consumer reports 
(user) that receives a notice of address discrepancy from a consumer 
reporting agency, and that is a national bank, Federal branch or agency 
of a foreign bank, or any of their operating subsidiaries that are not 
functionally regulated within the meaning of section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)).
    (b) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief. (1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other customer account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address. (1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;
    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance 
with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.

0
6. Add Subpart J to part 41 to read as follows:
Subpart J--Identity Theft Red Flags
Sec.
41.90 Duties regarding the detection, prevention, and mitigation of 
identity theft.
41.91 Duties of card issuers regarding changes of address.

Subpart J--Identity Theft Red Flags


Sec.  41.90  Duties regarding the detection, prevention, and mitigation 
of identity theft.

    (a) Scope. This section applies to a financial institution or 
creditor that is a national bank, Federal branch or agency of a foreign 
bank, and any of their operating subsidiaries that are not functionally 
regulated within the meaning of section 5(c)(5) of the Bank Holding 
Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)).
    (b) Definitions. For purposes of this section and Appendix J, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a financial institution or creditor to obtain a product or service 
for personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A deposit account.
    (2) The term board of directors includes:
    (i) In the case of a branch or agency of a foreign bank, the 
managing official in charge of the branch or agency; and
    (ii) In the case of any other creditor that does not have a board 
of directors, a designated employee at the level of senior management.
    (3) Covered account means:
    (i) An account that a financial institution or creditor offers or 
maintains, primarily for personal, family, or household purposes, that 
involves or is designed to permit multiple payments or transactions, 
such as a credit card account, mortgage loan, automobile loan, margin 
account, cell

[[Page 63754]]

phone account, utility account, checking account, or savings account; 
and
    (ii) Any other account that the financial institution or creditor 
offers or maintains for which there is a reasonably foreseeable risk to 
customers or to the safety and soundness of the financial institution 
or creditor from identity theft, including financial, operational, 
compliance, reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and 
includes lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications companies.
    (6) Customer means a person that has a covered account with a 
financial institution or creditor.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the financial institution or creditor.
    (c) Periodic Identification of Covered Accounts. Each financial 
institution or creditor must periodically determine whether it offers 
or maintains covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it offers or maintains covered accounts described in 
paragraph (b)(3)(ii) of this section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program. (1) 
Program requirement. Each financial institution or creditor that offers 
or maintains one or more covered accounts must develop and implement a 
written Identity Theft Prevention Program (Program) that is designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. The 
Program must be appropriate to the size and complexity of the financial 
institution or creditor and the nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
financial institution or creditor offers or maintains, and incorporate 
those Red Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the financial institution or creditor;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
customers and to the safety and soundness of the financial institution 
or creditor from identity theft.
    (e) Administration of the Program. Each financial institution or 
creditor that is required to implement a Program must provide for the 
continued administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix J of this part and include in its Program those guidelines 
that are appropriate.


Sec.  41.91  Duties of card issuers regarding changes of address.

    (a) Scope. This section applies to an issuer of a debit or credit 
card (card issuer) that is a national bank, Federal branch or agency of 
a foreign bank, and any of their operating subsidiaries that are not 
functionally regulated within the meaning of section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)).
    (b) Definitions. For purposes of this section:
    (1) Cardholder means a consumer who has been issued a credit or 
debit card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a change of address if it receives notification of a change of 
address for a consumer's debit or credit card account and, within a 
short period of time afterwards (during at least the first 30 days 
after it receives such notification), the card issuer receives a 
request for an additional or replacement card for the same account. 
Under these circumstances, the card issuer may not issue an additional 
or replacement card, until, in accordance with its reasonable policies 
and procedures and for the purpose of assessing the validity of the 
change of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and
    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  41.90 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendices D-I [Reserved]

0
7. Add and reserve appendices D through I to part 41.

0
8. Add Appendix J to part 41 to read as follows:

Appendix J to Part 41--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Section 41.90 of this part requires each financial institution 
and creditor that offers or maintains one or more covered accounts, 
as defined in Sec.  41.90(b)(3) of this part, to develop and provide 
for the continued administration of a written Program to detect, 
prevent, and mitigate identity theft in connection with the opening 
of a covered account or any existing covered account. These 
guidelines are intended to assist financial institutions and 
creditors in the

[[Page 63755]]

formulation and maintenance of a Program that satisfies the 
requirements of Sec.  41.90 of this part.

I. The Program

    In designing its Program, a financial institution or creditor 
may incorporate, as appropriate, its existing policies, procedures, 
and other arrangements that control reasonably foreseeable risks to 
customers or to the safety and soundness of the financial 
institution or creditor from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A financial institution or creditor should 
consider the following factors in identifying relevant Red Flags for 
covered accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Financial institutions and creditors 
should incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the financial institution 
or creditor has experienced;
    (2) Methods of identity theft that the financial institution or 
creditor has identified that reflect changes in identity theft 
risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix J.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and
    (5) Notice from customers, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
financial institution or creditor.

III. Detecting Red Flags

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules 
implementing 31 U.S.C. 5318(l) (31 CFR 103.121); and
    (b) Authenticating customers, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the financial institution or 
creditor has detected that are commensurate with the degree of risk 
posed. In determining an appropriate response, a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft, such as a data security 
incident that results in unauthorized access to a customer's account 
records held by the financial institution, creditor, or third party, 
or notice that a customer has provided information related to a 
covered account held by the financial institution or creditor to 
someone fraudulently claiming to represent the financial institution 
or creditor or to a fraudulent website. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the customer;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program

    Financial institutions and creditors should update the Program 
(including the Red Flags determined to be relevant) periodically, to 
reflect changes in risks to customers or to the safety and soundness 
of the financial institution or creditor from identity theft, based 
on factors such as:
    (a) The experiences of the financial institution or creditor 
with identity theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the financial 
institution or creditor offers or maintains; and
    (e) Changes in the business arrangements of the financial 
institution or creditor, including mergers, acquisitions, alliances, 
joint ventures, and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the financial institution or creditor with Sec.  41.90 of this part; 
and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the financial institution 
or creditor responsible for development, implementation, and 
administration of its Program should report to the board of 
directors, an appropriate committee of the board, or a designated 
employee at the level of senior management, at least annually, on 
compliance by the financial institution or creditor with Sec.  41.90 
of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: the 
effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of covered accounts and with respect to 
existing covered accounts; service provider arrangements; 
significant incidents involving identity theft and management's 
response; and recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
financial institution or creditor engages a service provider to 
perform an activity in connection with one or more covered accounts 
the financial institution or creditor should take steps to ensure 
that the activity of the service provider is conducted in accordance 
with reasonable policies and procedures designed to detect, prevent, 
and mitigate the risk of identity theft. For example, a financial 
institution or creditor could require the service provider by 
contract to have policies and procedures to detect relevant Red 
Flags that may arise in the performance of the service provider's 
activities, and either report the Red Flags to the financial 
institution or creditor, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Financial institutions and creditors should be mindful of other 
related legal requirements that may be applicable, such as:
    (a) For financial institutions and creditors that are subject to 
31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the financial institution or creditor detects a fraud or active duty 
alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix J

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix J of this 
part, each financial institution or creditor may consider 
incorporating into its Program, whether singly or in combination, 
Red Flags from the following illustrative examples in connection 
with covered accounts:

[[Page 63756]]

Alerts, Notifications or Warnings from a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  41.82(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or customer, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or customer 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or customer presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the 
financial institution or creditor, such as a signature card or a 
recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
financial institution or creditor. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the customer is 
not consistent with other personal identifying information provided 
by the customer. For example, there is a lack of correlation between 
the SSN range and date of birth.
    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the financial institution or creditor. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.
    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the financial institution or 
creditor. For example:
    a. The address on an application is fictitious, a mail drop, or 
a prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other customers.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
customers.
    16. The person opening the covered account or the customer fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
financial institution or creditor.
    18. For financial institutions and creditors that use challenge 
questions, the person opening the covered account or the customer 
cannot provide authenticating information beyond that which 
generally would be available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The customer fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the customer is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the customer's covered account.
    24. The financial institution or creditor is notified that the 
customer is not receiving paper account statements.
    25. The financial institution or creditor is notified of 
unauthorized charges or transactions in connection with a customer's 
covered account.

Notice From Customers, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection With Covered Accounts Held by the Financial Institution or 
Creditor

    26. The financial institution or creditor is notified by a 
customer, a victim of identity theft, a law enforcement authority, 
or any other person that it has opened a fraudulent account for a 
person engaged in identity theft.

Board of Governors of the Federal Reserve System

    12 CFR Chapter II.

Authority and Issuance

0
For the reasons set forth in the joint preamble, part 222 of title 12, 
chapter II, of the Code of Federal Regulations is amended as follows:

PART 222--FAIR CREDIT REPORTING (REGULATION V)

0
1. The authority citation for part 222 continues to read as follows:

    Authority: 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-2, 
1681s-3, 1681t, and 1681w; Secs. 3 and 214, Pub. L. 108-159, 117 
Stat. 1952.

Subpart A--General Provisions

0
2. Section 222.3 is amended by revising the introductory text to read 
as follows:


Sec.  222.3  Definitions.

    For purposes of this part, unless explicitly stated otherwise:
* * * * *

0
3. The heading for Subpart I is revised to read as follows:

Subpart I--Duties of Users of Consumer Reports Regarding Address 
Discrepancies and Records Disposal

0
4. A new Sec.  222.82 is added to read as follows:


Sec.  222.82  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to a user of consumer reports 
(user) that receives a notice of address discrepancy from a consumer 
reporting agency, and that is a member bank of the Federal Reserve 
System (other than a national bank) and its respective operating 
subsidiaries, a branch or agency of a foreign bank (other than a 
Federal branch, Federal agency, or insured State branch of a foreign 
bank), commercial

[[Page 63757]]

lending company owned or controlled by a foreign bank, and an 
organization operating under section 25 or 25A of the Federal Reserve 
Act (12 U.S.C. 601 et seq., and 611 et seq.).
    (b) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief. (1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other customer account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address. (1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;
    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance 
with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.

0
5. A new Subpart J is added to part 222 to read as follows:
Subpart J--Identity Theft Red Flags
Sec.
222.90 Duties regarding the detection, prevention, and mitigation of 
identity theft.
222.91 Duties of card issuers regarding changes of address.

Subpart J--Identity Theft Red Flags


Sec.  222.90  Duties regarding the detection, prevention, and 
mitigation of identity theft.

    (a) Scope. This section applies to financial institutions and 
creditors that are member banks of the Federal Reserve System (other 
than national banks) and their respective operating subsidiaries, 
branches and agencies of foreign banks (other than Federal branches, 
Federal agencies, and insured State branches of foreign banks), 
commercial lending companies owned or controlled by foreign banks, and 
organizations operating under section 25 or 25A of the Federal Reserve 
Act (12 U.S.C. 601 et seq., and 611 et seq.).
    (b) Definitions. For purposes of this section and Appendix J, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a financial institution or creditor to obtain a product or service 
for personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A deposit account.
    (2) The term board of directors includes:
    (i) In the case of a branch or agency of a foreign bank, the 
managing official in charge of the branch or agency; and
    (ii) In the case of any other creditor that does not have a board 
of directors, a designated employee at the level of senior management.
    (3) Covered account means:
    (i) An account that a financial institution or creditor offers or 
maintains, primarily for personal, family, or household purposes, that 
involves or is designed to permit multiple payments or transactions, 
such as a credit card account, mortgage loan, automobile loan, margin 
account, cell phone account, utility account, checking account, or 
savings account; and
    (ii) Any other account that the financial institution or creditor 
offers or maintains for which there is a reasonably foreseeable risk to 
customers or to the safety and soundness of the financial institution 
or creditor from identity theft, including financial, operational, 
compliance, reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and 
includes lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications companies.
    (6) Customer means a person that has a covered account with a 
financial institution or creditor.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the financial institution or creditor.
    (c) Periodic Identification of Covered Accounts. Each financial 
institution or creditor must periodically determine whether it offers 
or maintains covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it offers or maintains covered accounts described in 
paragraph (b)(3)(ii) of this section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program. (1) 
Program requirement. Each financial institution or creditor that offers 
or maintains one or more covered accounts must develop and implement a 
written Identity Theft Prevention Program (Program) that is designed to 
detect, prevent, and mitigate

[[Page 63758]]

identity theft in connection with the opening of a covered account or 
any existing covered account. The Program must be appropriate to the 
size and complexity of the financial institution or creditor and the 
nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
financial institution or creditor offers or maintains, and incorporate 
those Red Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the financial institution or creditor;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
customers and to the safety and soundness of the financial institution 
or creditor from identity theft.
    (e) Administration of the Program. Each financial institution or 
creditor that is required to implement a Program must provide for the 
continued administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix J of this part and include in its Program those guidelines 
that are appropriate.


Sec.  222.91  Duties of card issuers regarding changes of address.

    (a) Scope. This section applies to a person described in Sec.  
222.90(a) that issues a debit or credit card (card issuer).
    (b) Definitions. For purposes of this section:
    (1) Cardholder means a consumer who has been issued a credit or 
debit card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a change of address if it receives notification of a change of 
address for a consumer's debit or credit card account and, within a 
short period of time afterwards (during at least the first 30 days 
after it receives such notification), the card issuer receives a 
request for an additional or replacement card for the same account. 
Under these circumstances, the card issuer may not issue an additional 
or replacement card, until, in accordance with its reasonable policies 
and procedures and for the purpose of assessing the validity of the 
change of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and
    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  222.90 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendices D-I [Reserved]

0
6. Appendices D through I to part 222 are added and reserved.

0
7. A new Appendix J is added to part 222 to read as follows:

Appendix J to Part 222--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Section 222.90 of this part requires each financial institution 
and creditor that offers or maintains one or more covered accounts, 
as defined in Sec.  222.90(b)(3) of this part, to develop and 
provide for the continued administration of a written Program to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. These 
guidelines are intended to assist financial institutions and 
creditors in the formulation and maintenance of a Program that 
satisfies the requirements of Sec.  222.90 of this part.

I. The Program

    In designing its Program, a financial institution or creditor 
may incorporate, as appropriate, its existing policies, procedures, 
and other arrangements that control reasonably foreseeable risks to 
customers or to the safety and soundness of the financial 
institution or creditor from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A financial institution or creditor should 
consider the following factors in identifying relevant Red Flags for 
covered accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Financial institutions and creditors 
should incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the financial institution 
or creditor has experienced;
    (2) Methods of identity theft that the financial institution or 
creditor has identified that reflect changes in identity theft 
risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix J.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and
    (5) Notice from customers, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
financial institution or creditor.

III. Detecting Red Flags

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules

[[Page 63759]]

implementing 31 U.S.C. 5318(l) (31 CFR 103.121); and
    (b) Authenticating customers, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the financial institution or 
creditor has detected that are commensurate with the degree of risk 
posed. In determining an appropriate response, a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft, such as a data security 
incident that results in unauthorized access to a customer's account 
records held by the financial institution, creditor, or third party, 
or notice that a customer has provided information related to a 
covered account held by the financial institution or creditor to 
someone fraudulently claiming to represent the financial institution 
or creditor or to a fraudulent website. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the customer;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program

    Financial institutions and creditors should update the Program 
(including the Red Flags determined to be relevant) periodically, to 
reflect changes in risks to customers or to the safety and soundness 
of the financial institution or creditor from identity theft, based 
on factors such as:
    (a) The experiences of the financial institution or creditor 
with identity theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the financial 
institution or creditor offers or maintains; and
    (e) Changes in the business arrangements of the financial 
institution or creditor, including mergers, acquisitions, alliances, 
joint ventures, and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the financial institution or creditor with Sec.  222.90 of this 
part; and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the financial institution 
or creditor responsible for development, implementation, and 
administration of its Program should report to the board of 
directors, an appropriate committee of the board, or a designated 
employee at the level of senior management, at least annually, on 
compliance by the financial institution or creditor with Sec.  
222.90 of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: the 
effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of covered accounts and with respect to 
existing covered accounts; service provider arrangements; 
significant incidents involving identity theft and management's 
response; and recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
financial institution or creditor engages a service provider to 
perform an activity in connection with one or more covered accounts 
the financial institution or creditor should take steps to ensure 
that the activity of the service provider is conducted in accordance 
with reasonable policies and procedures designed to detect, prevent, 
and mitigate the risk of identity theft. For example, a financial 
institution or creditor could require the service provider by 
contract to have policies and procedures to detect relevant Red 
Flags that may arise in the performance of the service provider's 
activities, and either report the Red Flags to the financial 
institution or creditor, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Financial institutions and creditors should be mindful of other 
related legal requirements that may be applicable, such as:
    (a) For financial institutions and creditors that are subject to 
31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the financial institution or creditor detects a fraud or active duty 
alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix J

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix J of this 
part, each financial institution or creditor may consider 
incorporating into its Program, whether singly or in combination, 
Red Flags from the following illustrative examples in connection 
with covered accounts:

Alerts, Notifications or Warnings from a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  222.82(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or customer, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or customer 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or customer presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the 
financial institution or creditor, such as a signature card or a 
recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
financial institution or creditor. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the customer is 
not consistent with other personal identifying information provided 
by the customer. For example, there is a lack of correlation between 
the SSN range and date of birth.
    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the financial institution or creditor. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.

[[Page 63760]]

    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the financial institution or 
creditor. For example:
    a. The address on an application is fictitious, a mail drop, or 
a prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other customers.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
customers.
    16. The person opening the covered account or the customer fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
financial institution or creditor.
    18. For financial institutions and creditors that use challenge 
questions, the person opening the covered account or the customer 
cannot provide authenticating information beyond that which 
generally would be available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered 
Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The customer fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the customer is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the customer's covered account.
    24. The financial institution or creditor is notified that the 
customer is not receiving paper account statements.
    25. The financial institution or creditor is notified of 
unauthorized charges or transactions in connection with a customer's 
covered account.

Notice from Customers, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection with Covered Accounts Held by the Financial Institution 
or Creditor

    26. The financial institution or creditor is notified by a 
customer, a victim of identity theft, a law enforcement authority, 
or any other person that it has opened a fraudulent account for a 
person engaged in identity theft.

Federal Deposit Insurance Corporation

    12 CFR Chapter III

Authority and Issuance

0
For the reasons discussed in the joint preamble, the Federal Deposit 
Insurance Corporation is amending 12 CFR parts 334 and 364 of title 12, 
Chapter III, of the Code of Federal Regulations as follows:

PART 334--FAIR CREDIT REPORTING

0
1. The authority citation for part 334 is revised to read as follows:

    Authority: 12 U.S.C. 1818, 1819 (Tenth) and 1831p-1; 15 U.S.C. 
1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t, 1681w, 6801 and 
6805, Pub. L. 108-159, 117 Stat. 1952.

Subpart A--General Provisions

0
2. Amend Sec.  334.3 by revising the introductory text to read as 
follows:


Sec.  334.3  Definitions.

    For purposes of this part, unless explicitly stated otherwise:
* * * * *

0
3. Revise the heading for Subpart I as shown below.

Subpart I--Duties of Users of Consumer Reports Regarding Address 
Discrepancies and Records Disposal

0
4. Add Sec.  334.82 to read as follows:


Sec.  334.82  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to a user of consumer reports 
(user) that receives a notice of address discrepancy from a consumer 
reporting agency and that is an insured state nonmember bank, 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) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief. (1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other customer account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address. (1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;

[[Page 63761]]

    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance 
with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.

0
5. Add Subpart J to part 334 to read as follows:
Subpart J--Identity Theft Red Flags
Sec.
334.90 Duties regarding the detection, prevention, and mitigation of 
identity theft.
334.91 Duties of card issuers regarding changes of address.

Subpart J--Identity Theft Red Flags


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, 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) Definitions. For purposes of this section and Appendix J, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a financial institution or creditor to obtain a product or service 
for personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A deposit account.
    (2) The term board of directors includes:
    (i) In the case of a branch or agency of a foreign bank, the 
managing official in charge of the branch or agency; and
    (ii) In the case of any other creditor that does not have a board 
of directors, a designated employee at the level of senior management.
    (3) Covered account means:
    (i) An account that a financial institution or creditor offers or 
maintains, primarily for personal, family, or household purposes, that 
involves or is designed to permit multiple payments or transactions, 
such as a credit card account, mortgage loan, automobile loan, margin 
account, cell phone account, utility account, checking account, or 
savings account; and
    (ii) Any other account that the financial institution or creditor 
offers or maintains for which there is a reasonably foreseeable risk to 
customers or to the safety and soundness of the financial institution 
or creditor from identity theft, including financial, operational, 
compliance, reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and 
includes lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications companies.
    (6) Customer means a person that has a covered account with a 
financial institution or creditor.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the financial institution or creditor.
    (c) Periodic Identification of Covered Accounts. Each financial 
institution or creditor must periodically determine whether it offers 
or maintains covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it offers or maintains covered accounts described in 
paragraph (b)(3)(ii) of this section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program--(1) 
Program requirement. Each financial institution or creditor that offers 
or maintains one or more covered accounts must develop and implement a 
written Identity Theft Prevention Program (Program) that is designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. The 
Program must be appropriate to the size and complexity of the financial 
institution or creditor and the nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
financial institution or creditor offers or maintains, and incorporate 
those Red Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the financial institution or creditor;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
customers and to the safety and soundness of the financial institution 
or creditor from identity theft.
    (e) Administration of the Program. Each financial institution or 
creditor that is required to implement a Program must provide for the 
continued administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix J of this part and include in its Program those guidelines 
that are appropriate.


Sec.  334.91  Duties of card issuers regarding changes 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, 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) Definitions. For purposes of this section:
    (1) Cardholder means a consumer who has been issued a credit or 
debit card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a

[[Page 63762]]

change of address if it receives notification of a change of address 
for a consumer's debit or credit card account and, within a short 
period of time afterwards (during at least the first 30 days after it 
receives such notification), the card issuer receives a request for an 
additional or replacement card for the same account. Under these 
circumstances, the card issuer may not issue an additional or 
replacement card, until, in accordance with its reasonable policies and 
procedures and for the purpose of assessing the validity of the change 
of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and
    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  334.90 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendices D-I [Reserved]

0
6. Add and reserve appendices D through I to part 334.

0
7. Add Appendix J to part 334 to read as follows:

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

    Section 334.90 of this part requires each financial institution 
and creditor that offers or maintains one or more covered accounts, 
as defined in Sec.  334.90(b)(3) of this part, to develop and 
provide for the continued administration of a written Program to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. These 
guidelines are intended to assist financial institutions and 
creditors in the formulation and maintenance of a Program that 
satisfies the requirements of Sec.  334.90 of this part.

I. The Program

    In designing its Program, a financial institution or creditor 
may incorporate, as appropriate, its existing policies, procedures, 
and other arrangements that control reasonably foreseeable risks to 
customers or to the safety and soundness of the financial 
institution or creditor from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A financial institution or creditor should 
consider the following factors in identifying relevant Red Flags for 
covered accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Financial institutions and creditors 
should incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the financial institution 
or creditor has experienced;
    (2) Methods of identity theft that the financial institution or 
creditor has identified that reflect changes in identity theft 
risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix J.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and
    (5) Notice from customers, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
financial institution or creditor.

III. Detecting Red Flags.

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules 
implementing 31 U.S.C. 5318(l)(31 CFR 103.121); and
    (b) Authenticating customers, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft.

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the financial institution or 
creditor has detected that are commensurate with the degree of risk 
posed. In determining an appropriate response, a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft, such as a data security 
incident that results in unauthorized access to a customer's account 
records held by the financial institution, creditor, or third party, 
or notice that a customer has provided information related to a 
covered account held by the financial institution or creditor to 
someone fraudulently claiming to represent the financial institution 
or creditor or to a fraudulent Web site. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the customer;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program.

    Financial institutions and creditors should update the Program 
(including the Red Flags determined to be relevant) periodically, to 
reflect changes in risks to customers or to the safety and soundness 
of the financial institution or creditor from identity theft, based 
on factors such as:
    (a) The experiences of the financial institution or creditor 
with identity theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the financial 
institution or creditor offers or maintains; and
    (e) Changes in the business arrangements of the financial 
institution or creditor, including mergers, acquisitions, alliances, 
joint ventures, and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the financial institution or creditor with Sec.  334.90 of this 
part; and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the financial institution 
or creditor responsible for development, implementation, and 
administration of its Program should report to the board of 
directors, an appropriate committee of the board, or a designated 
employee at the level of senior management, at least annually, on 
compliance by the

[[Page 63763]]

financial institution or creditor with Sec.  334.90 of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: the 
effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of covered accounts and with respect to 
existing covered accounts; service provider arrangements; 
significant incidents involving identity theft and management's 
response; and recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
financial institution or creditor engages a service provider to 
perform an activity in connection with one or more covered accounts 
the financial institution or creditor should take steps to ensure 
that the activity of the service provider is conducted in accordance 
with reasonable policies and procedures designed to detect, prevent, 
and mitigate the risk of identity theft. For example, a financial 
institution or creditor could require the service provider by 
contract to have policies and procedures to detect relevant Red 
Flags that may arise in the performance of the service provider's 
activities, and either report the Red Flags to the financial 
institution or creditor, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Financial institutions and creditors should be mindful of other 
related legal requirements that may be applicable, such as:
    (a) For financial institutions and creditors that are subject to 
31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the financial institution or creditor detects a fraud or active duty 
alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix J

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix J of this 
part, each financial institution or creditor may consider 
incorporating into its Program, whether singly or in combination, 
Red Flags from the following illustrative examples in connection 
with covered accounts:

Alerts, Notifications or Warnings from a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  334.82(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or customer, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or customer 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or customer presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the 
financial institution or creditor, such as a signature card or a 
recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
financial institution or creditor. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the customer is 
not consistent with other personal identifying information provided 
by the customer. For example, there is a lack of correlation between 
the SSN range and date of birth.
    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the financial institution or creditor. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.
    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the financial institution or 
creditor. For example:
    a. The address on an application is fictitious, a mail drop, or 
a prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other customers.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
customers.
    16. The person opening the covered account or the customer fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
financial institution or creditor.
    18. For financial institutions and creditors that use challenge 
questions, the person opening the covered account or the customer 
cannot provide authenticating information beyond that which 
generally would be available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered 
Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The customer fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the customer is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the customer's covered account.
    24. The financial institution or creditor is notified that the 
customer is not receiving paper account statements.
    25. The financial institution or creditor is notified of 
unauthorized charges or transactions in connection with a customer's 
covered account.

[[Page 63764]]

Notice From Customers, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection With Covered Accounts Held by the Financial Institution 
or Creditor

    26. The financial institution or creditor is notified by a 
customer, a victim of identity theft, a law enforcement authority, 
or any other person that it has opened a fraudulent account for a 
person engaged in identity theft.

PART 364--STANDARDS FOR SAFETY AND SOUNDNESS

0
8. The authority citation for part 364 is revised to read as follows:

    Authority: 12 U.S.C. 1818 and 1819 (Tenth), 1831p-1; 15 U.S.C. 
1681b, 1681s, 1681w, 6801(b), 6805(b)(1).

0
9. Add the following sentence at the end of Sec.  364.101(b):


Sec.  364.101  Standards for safety and soundness.

* * * * *
    (b) * * * The interagency regulations and guidelines on identity 
theft detection, prevention, and mitigation prescribed pursuant to 
section 114 of the Fair and Accurate Credit Transactions Act of 2003, 
15 U.S.C. 1681m(e), are set forth in Sec. Sec.  334.90, 334.91, and 
Appendix J of part 334.

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision
12 CFR Chapter V

Authority and Issuance

0
For the reasons discussed in the joint preamble, the Office of Thrift 
Supervision is amending part 571 of title 12, chapter V, of the Code of 
Federal Regulations as follows:

PART 571--FAIR CREDIT REPORTING

0
1. Revise the authority citation for part 571 to read as follows:

    Authority: 12 U.S.C. 1462a, 1463, 1464, 1467a, 1828, 1831p-1, 
and 1881-1884; 15 U.S.C. 1681b, 1681c, 1681m, 1681s, 1681s-1, 1681t 
and 1681w; 15 U.S.C. 6801 and 6805; Sec. 214 Pub. L. 108-159, 117 
Stat. 1952.

Subpart A--General Provisions

0
2. Amend Sec.  571.1 by revising paragraph (b)(9) and adding a new 
paragraph (b)(10) to read as follows:


Sec.  571.1  Purpose and Scope.

* * * * *
    (b) scope.
* * * * *
    (9)(i) The scope of Sec.  571.82 of Subpart I of this part is 
stated in Sec.  571.82(a) of this part.
    (ii) The scope of Sec.  571.83 of Subpart I of this part is stated 
in Sec.  571.83(a) of this part.
    (10)(i) The scope of Sec.  571.90 of Subpart J of this part is 
stated in Sec.  571.90(a) of this part.
    (ii) The scope of Sec.  571.91 of Subpart J of this part is stated 
in Sec.  571.91(a) of this part.

0
3. Amend Sec.  571.3 by:
0
a. Removing paragraph (o); and
0
b. Revising the introductory text to read as follows:


Sec.  571.3  Definitions.

    For purposes of this part, unless explicitly stated otherwise:
* * * * *

0
4. Revise the heading for Subpart I as shown below.

Subpart I--Duties of Users of Consumer Reports Regarding Address 
Discrepancies and Records Disposal

0
5. Add Sec.  571.82 to read as follows:


Sec.  571.82  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to a user of consumer reports 
(user) that receives a notice of address discrepancy from a consumer 
reporting agency, and that is a savings association whose deposits are 
insured by the Federal Deposit Insurance Corporation or, in accordance 
with Sec.  559.3(h)(1) of this chapter, a federal savings association 
operating subsidiary that is not functionally regulated within the 
meaning of section 5(c)(5) of the Bank Holding Company Act of 1956, as 
amended (12 U.S.C. 1844(c)(5)).
    (b) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief. (1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other customer account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address. (1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;
    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance 
with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.

0
6. Amend Sec.  571.83 by:
0
a. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c), 
respectively.
0
b. Adding a new paragraph (a) to read as follows:


Sec.  571.83  Disposal of consumer information.

    (a) Scope. This section applies to savings associations whose 
deposits are

[[Page 63765]]

insured by the Federal Deposit Insurance Corporation and federal 
savings association operating subsidiaries in accordance with Sec.  
559.3(h)(1) of this chapter (defined as ``you'').
* * * * *
0
7. Add Subpart J to part 571 to read as follows:
Subpart J--Identity Theft Red Flags
Sec.
571.90 Duties regarding the detection, prevention, and mitigation of 
identity theft.
571.91 Duties of card issuers regarding changes of address.

Subpart J--Identity Theft Red Flags


Sec.  571.90  Duties regarding the detection, prevention, and 
mitigation of identity theft.

    (a) Scope. This section applies to a financial institution or 
creditor that is a savings association whose deposits are insured by 
the Federal Deposit Insurance Corporation or, in accordance with Sec.  
559.3(h)(1) of this chapter, a federal savings association operating 
subsidiary that is not functionally regulated within the meaning of 
section 5(c)(5) of the Bank Holding Company Act of 1956, as amended (12 
U.S.C. 1844(c)(5)).
    (b) Definitions. For purposes of this section and Appendix J, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a financial institution or creditor to obtain a product or service 
for personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A deposit account.
    (2) The term board of directors includes:
    (i) In the case of a branch or agency of a foreign bank, the 
managing official in charge of the branch or agency; and
    (ii) In the case of any other creditor that does not have a board 
of directors, a designated employee at the level of senior management.
    (3) Covered account means:
    (i) An account that a financial institution or creditor offers or 
maintains, primarily for personal, family, or household purposes, that 
involves or is designed to permit multiple payments or transactions, 
such as a credit card account, mortgage loan, automobile loan, margin 
account, cell phone account, utility account, checking account, or 
savings account; and
    (ii) Any other account that the financial institution or creditor 
offers or maintains for which there is a reasonably foreseeable risk to 
customers or to the safety and soundness of the financial institution 
or creditor from identity theft, including financial, operational, 
compliance, reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and 
includes lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications companies.
    (6) Customer means a person that has a covered account with a 
financial institution or creditor.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the financial institution or creditor.
    (c) Periodic Identification of Covered Accounts. Each financial 
institution or creditor must periodically determine whether it offers 
or maintains covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it offers or maintains covered accounts described in 
paragraph (b)(3)(ii) of this section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program. (1) 
Program requirement. Each financial institution or creditor that offers 
or maintains one or more covered accounts must develop and implement a 
written Identity Theft Prevention Program (Program) that is designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. The 
Program must be appropriate to the size and complexity of the financial 
institution or creditor and the nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
financial institution or creditor offers or maintains, and incorporate 
those Red Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the financial institution or creditor;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
customers and to the safety and soundness of the financial institution 
or creditor from identity theft.
    (e) Administration of the Program. Each financial institution or 
creditor that is required to implement a Program must provide for the 
continued administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix J of this part and include in its Program those guidelines 
that are appropriate.


Sec.  571.91  Duties of card issuers regarding changes of address.

    (a) Scope. This section applies to an issuer of a debit or credit 
card (card issuer) that is a savings association whose deposits are 
insured by the Federal Deposit Insurance Corporation or, in accordance 
with Sec.  559.3(h)(1) of this chapter, a federal savings association 
operating subsidiary that is not functionally regulated within the 
meaning of section 5(c)(5) of the Bank Holding Company Act of 1956, as 
amended (12 U.S.C. 1844(c)(5)).
    (b) Definitions. For purposes of this section:
    (1) Cardholder means a consumer who has been issued a credit or 
debit card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a

[[Page 63766]]

change of address if it receives notification of a change of address 
for a consumer's debit or credit card account and, within a short 
period of time afterwards (during at least the first 30 days after it 
receives such notification), the card issuer receives a request for an 
additional or replacement card for the same account. Under these 
circumstances, the card issuer may not issue an additional or 
replacement card, until, in accordance with its reasonable policies and 
procedures and for the purpose of assessing the validity of the change 
of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and
    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  571.90 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendices D-I [Reserved]

0
8. Add and reserve appendices D through I to part 571.

0
9. Add Appendix J to part 571 to read as follows:

Appendix J to Part 571--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Section 571.90 of this part requires each financial institution 
and creditor that offers or maintains one or more covered accounts, 
as defined in Sec.  571.90(b)(3) of this part, to develop and 
provide for the continued administration of a written Program to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. These 
guidelines are intended to assist financial institutions and 
creditors in the formulation and maintenance of a Program that 
satisfies the requirements of Sec.  571.90 of this part.

I. The Program

    In designing its Program, a financial institution or creditor 
may incorporate, as appropriate, its existing policies, procedures, 
and other arrangements that control reasonably foreseeable risks to 
customers or to the safety and soundness of the financial 
institution or creditor from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A financial institution or creditor should 
consider the following factors in identifying relevant Red Flags for 
covered accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Financial institutions and creditors 
should incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the financial institution 
or creditor has experienced;
    (2) Methods of identity theft that the financial institution or 
creditor has identified that reflect changes in identity theft 
risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix J.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and
    (5) Notice from customers, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
financial institution or creditor.

III. Detecting Red Flags

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules 
implementing 31 U.S.C. 5318(l) (31 CFR 103.121); and
    (b) Authenticating customers, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the financial institution or 
creditor has detected that are commensurate with the degree of risk 
posed. In determining an appropriate response, a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft, such as a data security 
incident that results in unauthorized access to a customer's account 
records held by the financial institution, creditor, or third party, 
or notice that a customer has provided information related to a 
covered account held by the financial institution or creditor to 
someone fraudulently claiming to represent the financial institution 
or creditor or to a fraudulent website. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the customer;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program

    Financial institutions and creditors should update the Program 
(including the Red Flags determined to be relevant) periodically, to 
reflect changes in risks to customers or to the safety and soundness 
of the financial institution or creditor from identity theft, based 
on factors such as:
    (a) The experiences of the financial institution or creditor 
with identity theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the financial 
institution or creditor offers or maintains; and
    (e) Changes in the business arrangements of the financial 
institution or creditor, including mergers, acquisitions, alliances, 
joint ventures, and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the financial institution or creditor with Sec.  571.90 of this 
part; and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the financial institution 
or creditor responsible for development, implementation, and 
administration of its Program should report to the board of 
directors, an appropriate committee of the board, or a designated

[[Page 63767]]

employee at the level of senior management, at least annually, on 
compliance by the financial institution or creditor with Sec.  
571.90 of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: the 
effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of covered accounts and with respect to 
existing covered accounts; service provider arrangements; 
significant incidents involving identity theft and management's 
response; and recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
financial institution or creditor engages a service provider to 
perform an activity in connection with one or more covered accounts 
the financial institution or creditor should take steps to ensure 
that the activity of the service provider is conducted in accordance 
with reasonable policies and procedures designed to detect, prevent, 
and mitigate the risk of identity theft. For example, a financial 
institution or creditor could require the service provider by 
contract to have policies and procedures to detect relevant Red 
Flags that may arise in the performance of the service provider's 
activities, and either report the Red Flags to the financial 
institution or creditor, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Financial institutions and creditors should be mindful of other 
related legal requirements that may be applicable, such as:
    (a) For financial institutions and creditors that are subject to 
31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the financial institution or creditor detects a fraud or active duty 
alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix J

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix J of this 
part, each financial institution or creditor may consider 
incorporating into its Program, whether singly or in combination, 
Red Flags from the following illustrative examples in connection 
with covered accounts:

Alerts, Notifications or Warnings from a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  571.82(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or customer, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or customer 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or customer presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the 
financial institution or creditor, such as a signature card or a 
recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
financial institution or creditor. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the customer is 
not consistent with other personal identifying information provided 
by the customer. For example, there is a lack of correlation between 
the SSN range and date of birth.
    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the financial institution or creditor. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.
    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the financial institution or 
creditor. For example:
    a. The address on an application is fictitious, a mail drop, or 
a prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other customers.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
customers.
    16. The person opening the covered account or the customer fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
financial institution or creditor.
    18. For financial institutions and creditors that use challenge 
questions, the person opening the covered account or the customer 
cannot provide authenticating information beyond that which 
generally would be available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered 
Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The customer fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the customer is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the customer's covered account.
    24. The financial institution or creditor is notified that the 
customer is not receiving paper account statements.
    25. The financial institution or creditor is notified of 
unauthorized charges or

[[Page 63768]]

transactions in connection with a customer's covered account.

Notice from Customers, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection With Covered Accounts Held by the Financial Institution 
or Creditor

    26. The financial institution or creditor is notified by a 
customer, a victim of identity theft, a law enforcement authority, 
or any other person that it has opened a fraudulent account for a 
person engaged in identity theft.

National Credit Union Administration

    12 CFR Chapter VII

Authority and Issuance

0
For the reasons discussed in the joint preamble, the National Credit 
Union Administration is amending part 717 of title 12, chapter VII, of 
the Code of Federal Regulations as follows:

PART 717--FAIR CREDIT REPORTING

0
1. The authority citation for part 717 is revised to read as follows:

    Authority: 12 U.S.C. 1751 et seq.; 15 U.S.C. 1681a, 1681b, 
1681c, 1681m, 1681s, 1681s-1, 1681t, 1681w, 6801 and 6805, Pub. L. 
108-159, 117 Stat. 1952.

Subpart A--General Provisions

0
2. Amend Sec.  717.3 by revising the introductory text to read as 
follows:


Sec.  717.3  Definitions.

    For purposes of this part, unless explicitly stated otherwise:
* * * * *

0
3. Revise the heading for Subpart I as shown below.

Subpart I--Duties of Users of Consumer Reports Regarding Address 
Discrepancies and Records Disposal

0
4. Add Sec.  717.82 to read as follows:


Sec.  717.82  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to a user of consumer reports 
(user) that receives a notice of address discrepancy from a consumer 
reporting agency, and that is federal credit union.
    (b) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief--(1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other member account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address--(1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;
    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance 
with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.

0
5. Add Subpart J to part 717 to read as follows:
Subpart J--Identity Theft Red Flags
Sec.
717.90 Duties regarding the detection, prevention, and mitigation of 
identity theft.
717.91 Duties of card issuers regarding changes of address.

Subpart J--Identity Theft Red Flags


Sec.  717.90  Duties regarding the detection, prevention, and 
mitigation of identity theft.

    (a) Scope. This section applies to a financial institution or 
creditor that is a federal credit union.
    (b) Definitions. For purposes of this section and Appendix J, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a federal credit union to obtain a product or service for 
personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A share or deposit account.
    (2) The term board of directors refers to a federal credit union's 
board of directors.
    (3) Covered account means:
    (i) An account that a federal credit union offers or maintains, 
primarily for personal, family, or household purposes, that involves or 
is designed to permit multiple payments or transactions, such as a 
credit card account, mortgage loan, automobile loan, checking account, 
or share account; and
    (ii) Any other account that the federal credit union offers or 
maintains for which there is a reasonably foreseeable risk to members 
or to the safety and soundness of the federal credit union from 
identity theft, including financial, operational, compliance, 
reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (6) Customer means a member that has a covered account with a 
federal credit union.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the federal credit union.

[[Page 63769]]

    (c) Periodic Identification of Covered Accounts. Each federal 
credit union must periodically determine whether it offers or maintains 
covered accounts. As a part of this determination, a federal credit 
union must conduct a risk assessment to determine whether it offers or 
maintains covered accounts described in paragraph (b)(3)(ii) of this 
section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program. (1) 
Program requirement. Each federal credit union that offers or maintains 
one or more covered accounts must develop and implement a written 
Identity Theft Prevention Program (Program) that is designed to detect, 
prevent, and mitigate identity theft in connection with the opening of 
a covered account or any existing covered account. The Program must be 
appropriate to the size and complexity of the federal credit union and 
the nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
federal credit union offers or maintains, and incorporate those Red 
Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the federal credit union;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
members and to the safety and soundness of the federal credit union 
from identity theft.
    (e) Administration of the Program. Each federal credit union that 
is required to implement a Program must provide for the continued 
administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each federal credit union that is required to 
implement a Program must consider the guidelines in Appendix J of this 
part and include in its Program those guidelines that are appropriate.


Sec.  717.91  Duties of card issuers regarding changes of address.

    (a) Scope. This section applies to an issuer of a debit or credit 
card (card issuer) that is a federal credit union.
    (b) Definitions. For purposes of this section:
    (1) Cardholder means a member who has been issued a credit or debit 
card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a change of address if it receives notification of a change of 
address for a member's debit or credit card account and, within a short 
period of time afterwards (during at least the first 30 days after it 
receives such notification), the card issuer receives a request for an 
additional or replacement card for the same account. Under these 
circumstances, the card issuer may not issue an additional or 
replacement card, until, in accordance with its reasonable policies and 
procedures and for the purpose of assessing the validity of the change 
of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and
    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  717.90 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendices D-I [Reserved]

0
6. Add and reserve appendices D through I to part 717.

0
7. Add Appendix J to part 717 to read as follows:

Appendix J to Part 717--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Section 717.90 of this part requires each federal credit union 
that offers or maintains one or more covered accounts, as defined in 
Sec.  717.90(b)(3) of this part, to develop and provide for the 
continued administration of a written Program to detect, prevent, 
and mitigate identity theft in connection with the opening of a 
covered account or any existing covered account. These guidelines 
are intended to assist federal credit unions in the formulation and 
maintenance of a Program that satisfies the requirements of Sec.  
717.90 of this part.

I. The Program

    In designing its Program, a federal credit union may 
incorporate, as appropriate, its existing policies, procedures, and 
other arrangements that control reasonably foreseeable risks to 
members or to the safety and soundness of the federal credit union 
from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A federal credit union should consider the 
following factors in identifying relevant Red Flags for covered 
accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Federal credit unions should 
incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the federal credit union 
has experienced;
    (2) Methods of identity theft that the federal credit union has 
identified that reflect changes in identity theft risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix J.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and

[[Page 63770]]

    (5) Notice from members, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
federal credit union.

III. Detecting Red Flags

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules 
implementing 31 U.S.C. 5318(l) (31 CFR 103.121); and
    (b) Authenticating members, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the federal credit union has 
detected that are commensurate with the degree of risk posed. In 
determining an appropriate response, a federal credit union should 
consider aggravating factors that may heighten the risk of identity 
theft, such as a data security incident that results in unauthorized 
access to a member's account records held by the federal credit 
union or a third party, or notice that a member has provided 
information related to a covered account held by the federal credit 
union to someone fraudulently claiming to represent the federal 
credit union or to a fraudulent website. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the member;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program

    Federal credit unions should update the Program (including the 
Red Flags determined to be relevant) periodically, to reflect 
changes in risks to members or to the safety and soundness of the 
federal credit union from identity theft, based on factors such as:
    (a) The experiences of the federal credit union with identity 
theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the federal credit 
union offers or maintains; and
    (e) Changes in the business arrangements of the federal credit 
union, including mergers, acquisitions, alliances, joint ventures, 
and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the federal credit union with Sec.  717.90 of this part; and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the federal credit union 
responsible for development, implementation, and administration of 
its Program should report to the board of directors, an appropriate 
committee of the board, or a designated employee at the level of 
senior management, at least annually, on compliance by the federal 
credit union with Sec.  717.90 of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: the 
effectiveness of the policies and procedures of the federal credit 
union in addressing the risk of identity theft in connection with 
the opening of covered accounts and with respect to existing covered 
accounts; service provider arrangements; significant incidents 
involving identity theft and management's response; and 
recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
federal credit union engages a service provider to perform an 
activity in connection with one or more covered accounts the federal 
credit union should take steps to ensure that the activity of the 
service provider is conducted in accordance with reasonable policies 
and procedures designed to detect, prevent, and mitigate the risk of 
identity theft. For example, a federal credit union could require 
the service provider by contract to have policies and procedures to 
detect relevant Red Flags that may arise in the performance of the 
service provider's activities, and either report the Red Flags to 
the federal credit union, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Federal credit unions should be mindful of other related legal 
requirements that may be applicable, such as:
    (a) Filing a Suspicious Activity Report under 31 U.S.C. 5318(g) 
and 12 CFR 748.1(c);
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the federal credit union detects a fraud or active duty alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix J

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix J of this 
part, each federal credit union may consider incorporating into its 
Program, whether singly or in combination, Red Flags from the 
following illustrative examples in connection with covered accounts:

Alerts, Notifications or Warnings From a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  717.82(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or member, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or member 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or member presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the federal 
credit union, such as a signature card or a recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
federal credit union. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the member is 
not consistent with other personal identifying information provided 
by the member. For example, there is a lack of correlation between 
the SSN range and date of birth.

[[Page 63771]]

    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the federal credit union. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.
    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the federal credit union. 
For example:
    a. The address on an application is fictitious, a mail drop, or 
prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other members.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
members.
    16. The person opening the covered account or the member fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
federal credit union.
    18. For federal credit unions that use challenge questions, the 
person opening the covered account or the member cannot provide 
authenticating information beyond that which generally would be 
available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered 
Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The member fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the member is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the member's covered account.
    24. The federal credit union is notified that the member is not 
receiving paper account statements.
    25. The federal credit union is notified of unauthorized charges 
or transactions in connection with a member's covered account.

Notice From Members, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection With Covered Accounts Held by the Federal Credit Union

    26. The federal credit union is notified by a member, a victim 
of identity theft, a law enforcement authority, or any other person 
that it has opened a fraudulent account for a person engaged in 
identity theft.

FEDERAL TRADE COMMISSION 

16 CFR Part 681

Authority and Issuance

0
For the reasons discussed in the joint preamble, the Commission is 
adding part 681 of title 16 of the Code of Federal Regulations as 
follows:
PART 681--IDENTITY THEFT RULES
Sec.
681.1 Duties of users of consumer reports regarding address 
discrepancies.
681.2 Duties regarding the detection, prevention, and mitigation of 
identity theft.
681.3 Duties of card issuers regarding changes of address.

Appendix A to Part 681--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Authority: Pub. L. 108-159, sec. 114 and sec. 315; 15 U.S.C. 
1681m(e) and 15 U.S.C. 1681c(h).


Sec.  681.1  Duties of users regarding address discrepancies.

    (a) Scope. This section applies to users of consumer reports that 
are subject to administrative enforcement of the FCRA by the Federal 
Trade Commission pursuant to 15 U.S.C. 1681s(a)(1) (users).
    (b) Definition. For purposes of this section, a notice of address 
discrepancy means a notice sent to a user by a consumer reporting 
agency pursuant to 15 U.S.C. 1681c(h)(1), that informs the user of a 
substantial difference between the address for the consumer that the 
user provided to request the consumer report and the address(es) in the 
agency's file for the consumer.
    (c) Reasonable belief. (1) Requirement to form a reasonable belief. 
A user must develop and implement reasonable policies and procedures 
designed to enable the user to form a reasonable belief that a consumer 
report relates to the consumer about whom it has requested the report, 
when the user receives a notice of address discrepancy.
    (2) Examples of reasonable policies and procedures. (i) Comparing 
the information in the consumer report provided by the consumer 
reporting agency with information the user:
    (A) Obtains and uses to verify the consumer's identity in 
accordance with the requirements of the Customer Information Program 
(CIP) rules implementing 31 U.S.C. 5318(l) (31 CFR 103.121);
    (B) Maintains in its own records, such as applications, change of 
address notifications, other customer account records, or retained CIP 
documentation; or
    (C) Obtains from third-party sources; or
    (ii) Verifying the information in the consumer report provided by 
the consumer reporting agency with the consumer.
    (d) Consumer's address. (1) Requirement to furnish consumer's 
address to a consumer reporting agency. A user must develop and 
implement reasonable policies and procedures for furnishing an address 
for the consumer that the user has reasonably confirmed is accurate to 
the consumer reporting agency from whom it received the notice of 
address discrepancy when the user:
    (i) Can form a reasonable belief that the consumer report relates 
to the consumer about whom the user requested the report;
    (ii) Establishes a continuing relationship with the consumer; and
    (iii) Regularly and in the ordinary course of business furnishes 
information to the consumer reporting agency from which the notice of 
address discrepancy relating to the consumer was obtained.
    (2) Examples of confirmation methods. The user may reasonably 
confirm an address is accurate by:
    (i) Verifying the address with the consumer about whom it has 
requested the report;
    (ii) Reviewing its own records to verify the address of the 
consumer;
    (iii) Verifying the address through third-party sources; or
    (iv) Using other reasonable means.
    (3) Timing. The policies and procedures developed in accordance

[[Page 63772]]

with paragraph (d)(1) of this section must provide that the user will 
furnish the consumer's address that the user has reasonably confirmed 
is accurate to the consumer reporting agency as part of the information 
it regularly furnishes for the reporting period in which it establishes 
a relationship with the consumer.


Sec.  681.2  Duties regarding the detection, prevention, and mitigation 
of identity theft.

    (a) Scope. This section applies to financial institutions and 
creditors that are subject to administrative enforcement of the FCRA by 
the Federal Trade Commission pursuant to 15 U.S.C. 1681s(a)(1).
    (b) Definitions. For purposes of this section, and Appendix A, the 
following definitions apply:
    (1) Account means a continuing relationship established by a person 
with a financial institution or creditor to obtain a product or service 
for personal, family, household or business purposes. Account includes:
    (i) An extension of credit, such as the purchase of property or 
services involving a deferred payment; and
    (ii) A deposit account.
    (2) The term board of directors includes:
    (i) In the case of a branch or agency of a foreign bank, the 
managing official in charge of the branch or agency; and
    (ii) In the case of any other creditor that does not have a board 
of directors, a designated employee at the level of senior management.
    (3) Covered account means:
    (i) An account that a financial institution or creditor offers or 
maintains, primarily for personal, family, or household purposes, that 
involves or is designed to permit multiple payments or transactions, 
such as a credit card account, mortgage loan, automobile loan, margin 
account, cell phone account, utility account, checking account, or 
savings account; and
    (ii) Any other account that the financial institution or creditor 
offers or maintains for which there is a reasonably foreseeable risk to 
customers or to the safety and soundness of the financial institution 
or creditor from identity theft, including financial, operational, 
compliance, reputation, or litigation risks.
    (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (5) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5), and 
includes lenders such as banks, finance companies, automobile dealers, 
mortgage brokers, utility companies, and telecommunications companies.
    (6) Customer means a person that has a covered account with a 
financial institution or creditor.
    (7) Financial institution has the same meaning as in 15 U.S.C. 
1681a(t).
    (8) Identity theft has the same meaning as in 16 CFR 603.2(a).
    (9) Red Flag means a pattern, practice, or specific activity that 
indicates the possible existence of identity theft.
    (10) Service provider means a person that provides a service 
directly to the financial institution or creditor.
    (c) Periodic Identification of Covered Accounts. Each financial 
institution or creditor must periodically determine whether it offers 
or maintains covered accounts. As a part of this determination, a 
financial institution or creditor must conduct a risk assessment to 
determine whether it offers or maintains covered accounts described in 
paragraph (b)(3)(ii) of this section, taking into consideration:
    (1) The methods it provides to open its accounts;
    (2) The methods it provides to access its accounts; and
    (3) Its previous experiences with identity theft.
    (d) Establishment of an Identity Theft Prevention Program. (1) 
Program requirement. Each financial institution or creditor that offers 
or maintains one or more covered accounts must develop and implement a 
written Identity Theft Prevention Program (Program) that is designed to 
detect, prevent, and mitigate identity theft in connection with the 
opening of a covered account or any existing covered account. The 
Program must be appropriate to the size and complexity of the financial 
institution or creditor and the nature and scope of its activities.
    (2) Elements of the Program. The Program must include reasonable 
policies and procedures to:
    (i) Identify relevant Red Flags for the covered accounts that the 
financial institution or creditor offers or maintains, and incorporate 
those Red Flags into its Program;
    (ii) Detect Red Flags that have been incorporated into the Program 
of the financial institution or creditor;
    (iii) Respond appropriately to any Red Flags that are detected 
pursuant to paragraph (d)(2)(ii) of this section to prevent and 
mitigate identity theft; and
    (iv) Ensure the Program (including the Red Flags determined to be 
relevant) is updated periodically, to reflect changes in risks to 
customers and to the safety and soundness of the financial institution 
or creditor from identity theft.
    (e) Administration of the Program. Each financial institution or 
creditor that is required to implement a Program must provide for the 
continued administration of the Program and must:
    (1) Obtain approval of the initial written Program from either its 
board of directors or an appropriate committee of the board of 
directors;
    (2) Involve the board of directors, an appropriate committee 
thereof, or a designated employee at the level of senior management in 
the oversight, development, implementation and administration of the 
Program;
    (3) Train staff, as necessary, to effectively implement the 
Program; and
    (4) Exercise appropriate and effective oversight of service 
provider arrangements.
    (f) Guidelines. Each financial institution or creditor that is 
required to implement a Program must consider the guidelines in 
Appendix A of this part and include in its Program those guidelines 
that are appropriate.


Sec.  681.3  Duties of card issuers regarding changes of address.

    (a) Scope. This section applies to a person described in Sec.  
681.2(a) that issues a debit or credit card (card issuer).
    (b) Definitions. For purposes of this section:
    (1) Cardholder means a consumer who has been issued a credit or 
debit card.
    (2) Clear and conspicuous means reasonably understandable and 
designed to call attention to the nature and significance of the 
information presented.
    (c) Address validation requirements. A card issuer must establish 
and implement reasonable policies and procedures to assess the validity 
of a change of address if it receives notification of a change of 
address for a consumer's debit or credit card account and, within a 
short period of time afterwards (during at least the first 30 days 
after it receives such notification), the card issuer receives a 
request for an additional or replacement card for the same account. 
Under these circumstances, the card issuer may not issue an additional 
or replacement card, until, in accordance with its reasonable policies 
and procedures and for the purpose of assessing the validity of the 
change of address, the card issuer:
    (1)(i) Notifies the cardholder of the request:
    (A) At the cardholder's former address; or
    (B) By any other means of communication that the card issuer and 
the cardholder have previously agreed to use; and

[[Page 63773]]

    (ii) Provides to the cardholder a reasonable means of promptly 
reporting incorrect address changes; or
    (2) Otherwise assesses the validity of the change of address in 
accordance with the policies and procedures the card issuer has 
established pursuant to Sec.  681.2 of this part.
    (d) Alternative timing of address validation. A card issuer may 
satisfy the requirements of paragraph (c) of this section if it 
validates an address pursuant to the methods in paragraph (c)(1) or 
(c)(2) of this section when it receives an address change notification, 
before it receives a request for an additional or replacement card.
    (e) Form of notice. Any written or electronic notice that the card 
issuer provides under this paragraph must be clear and conspicuous and 
provided separately from its regular correspondence with the 
cardholder.

Appendix A to Part 681--Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation

    Section 681.2 of this part requires each financial institution 
and creditor that offers or maintains one or more covered accounts, 
as defined in Sec.  681.2(b)(3) of this part, to develop and provide 
for the continued administration of a written Program to detect, 
prevent, and mitigate identity theft in connection with the opening 
of a covered account or any existing covered account. These 
guidelines are intended to assist financial institutions and 
creditors in the formulation and maintenance of a Program that 
satisfies the requirements of Sec.  681.2 of this part.

I. The Program

    In designing its Program, a financial institution or creditor 
may incorporate, as appropriate, its existing policies, procedures, 
and other arrangements that control reasonably foreseeable risks to 
customers or to the safety and soundness of the financial 
institution or creditor from identity theft.

II. Identifying Relevant Red Flags

    (a) Risk Factors. A financial institution or creditor should 
consider the following factors in identifying relevant Red Flags for 
covered accounts, as appropriate:
    (1) The types of covered accounts it offers or maintains;
    (2) The methods it provides to open its covered accounts;
    (3) The methods it provides to access its covered accounts; and
    (4) Its previous experiences with identity theft.
    (b) Sources of Red Flags. Financial institutions and creditors 
should incorporate relevant Red Flags from sources such as:
    (1) Incidents of identity theft that the financial institution 
or creditor has experienced;
    (2) Methods of identity theft that the financial institution or 
creditor has identified that reflect changes in identity theft 
risks; and
    (3) Applicable supervisory guidance.
    (c) Categories of Red Flags. The Program should include relevant 
Red Flags from the following categories, as appropriate. Examples of 
Red Flags from each of these categories are appended as Supplement A 
to this Appendix A.
    (1) Alerts, notifications, or other warnings received from 
consumer reporting agencies or service providers, such as fraud 
detection services;
    (2) The presentation of suspicious documents;
    (3) The presentation of suspicious personal identifying 
information, such as a suspicious address change;
    (4) The unusual use of, or other suspicious activity related to, 
a covered account; and
    (5) Notice from customers, victims of identity theft, law 
enforcement authorities, or other persons regarding possible 
identity theft in connection with covered accounts held by the 
financial institution or creditor.

III. Detecting Red Flags

    The Program's policies and procedures should address the 
detection of Red Flags in connection with the opening of covered 
accounts and existing covered accounts, such as by:
    (a) Obtaining identifying information about, and verifying the 
identity of, a person opening a covered account, for example, using 
the policies and procedures regarding identification and 
verification set forth in the Customer Identification Program rules 
implementing 31 U.S.C. 5318(l) (31 CFR 103.121); and
    (b) Authenticating customers, monitoring transactions, and 
verifying the validity of change of address requests, in the case of 
existing covered accounts.

IV. Preventing and Mitigating Identity Theft

    The Program's policies and procedures should provide for 
appropriate responses to the Red Flags the financial institution or 
creditor has detected that are commensurate with the degree of risk 
posed. In determining an appropriate response, a financial 
institution or creditor should consider aggravating factors that may 
heighten the risk of identity theft, such as a data security 
incident that results in unauthorized access to a customer's account 
records held by the financial institution, creditor, or third party, 
or notice that a customer has provided information related to a 
covered account held by the financial institution or creditor to 
someone fraudulently claiming to represent the financial institution 
or creditor or to a fraudulent website. Appropriate responses may 
include the following:
    (a) Monitoring a covered account for evidence of identity theft;
    (b) Contacting the customer;
    (c) Changing any passwords, security codes, or other security 
devices that permit access to a covered account;
    (d) Reopening a covered account with a new account number;
    (e) Not opening a new covered account;
    (f) Closing an existing covered account;
    (g) Not attempting to collect on a covered account or not 
selling a covered account to a debt collector;
    (h) Notifying law enforcement; or
    (i) Determining that no response is warranted under the 
particular circumstances.

V. Updating the Program

    Financial institutions and creditors should update the Program 
(including the Red Flags determined to be relevant) periodically, to 
reflect changes in risks to customers or to the safety and soundness 
of the financial institution or creditor from identity theft, based 
on factors such as:
    (a) The experiences of the financial institution or creditor 
with identity theft;
    (b) Changes in methods of identity theft;
    (c) Changes in methods to detect, prevent, and mitigate identity 
theft;
    (d) Changes in the types of accounts that the financial 
institution or creditor offers or maintains; and
    (e) Changes in the business arrangements of the financial 
institution or creditor, including mergers, acquisitions, alliances, 
joint ventures, and service provider arrangements.

VI. Methods for Administering the Program

    (a) Oversight of Program. Oversight by the board of directors, 
an appropriate committee of the board, or a designated employee at 
the level of senior management should include:
    (1) Assigning specific responsibility for the Program's 
implementation;
    (2) Reviewing reports prepared by staff regarding compliance by 
the financial institution or creditor with Sec.  681.2 of this part; 
and
    (3) Approving material changes to the Program as necessary to 
address changing identity theft risks.
    (b) Reports. (1) In general. Staff of the financial institution 
or creditor responsible for development, implementation, and 
administration of its Program should report to the board of 
directors, an appropriate committee of the board, or a designated 
employee at the level of senior management, at least annually, on 
compliance by the financial institution or creditor with Sec.  681.2 
of this part.
    (2) Contents of report. The report should address material 
matters related to the Program and evaluate issues such as: The 
effectiveness of the policies and procedures of the financial 
institution or creditor in addressing the risk of identity theft in 
connection with the opening of covered accounts and with respect to 
existing covered accounts; service provider arrangements; 
significant incidents involving identity theft and management's 
response; and recommendations for material changes to the Program.
    (c) Oversight of service provider arrangements. Whenever a 
financial institution or creditor engages a service provider to 
perform an activity in connection with one or more covered accounts 
the financial institution or creditor should take steps to ensure 
that the activity of the service provider is conducted in accordance 
with reasonable policies and procedures designed to detect, prevent, 
and mitigate the risk of identity theft. For example, a financial 
institution or creditor could require the service provider by 
contract to have policies and procedures to detect relevant Red 
Flags

[[Page 63774]]

that may arise in the performance of the service provider's 
activities, and either report the Red Flags to the financial 
institution or creditor, or to take appropriate steps to prevent or 
mitigate identity theft.

VII. Other Applicable Legal Requirements

    Financial institutions and creditors should be mindful of other 
related legal requirements that may be applicable, such as:
    (a) For financial institutions and creditors that are subject to 
31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance 
with applicable law and regulation;
    (b) Implementing any requirements under 15 U.S.C. 1681c-1(h) 
regarding the circumstances under which credit may be extended when 
the financial institution or creditor detects a fraud or active duty 
alert;
    (c) Implementing any requirements for furnishers of information 
to consumer reporting agencies under 15 U.S.C. 1681s-2, for example, 
to correct or update inaccurate or incomplete information, and to 
not report information that the furnisher has reasonable cause to 
believe is inaccurate; and
    (d) Complying with the prohibitions in 15 U.S.C. 1681m on the 
sale, transfer, and placement for collection of certain debts 
resulting from identity theft.

Supplement A to Appendix A

    In addition to incorporating Red Flags from the sources 
recommended in section II.b. of the Guidelines in Appendix A of this 
part, each financial institution or creditor may consider 
incorporating into its Program, whether singly or in combination, 
Red Flags from the following illustrative examples in connection 
with covered accounts:

Alerts, Notifications or Warnings from a Consumer Reporting Agency

    1. A fraud or active duty alert is included with a consumer 
report.
    2. A consumer reporting agency provides a notice of credit 
freeze in response to a request for a consumer report.
    3. A consumer reporting agency provides a notice of address 
discrepancy, as defined in Sec.  681.1(b) of this part.
    4. A consumer report indicates a pattern of activity that is 
inconsistent with the history and usual pattern of activity of an 
applicant or customer, such as:
    a. A recent and significant increase in the volume of inquiries;
    b. An unusual number of recently established credit 
relationships;
    c. A material change in the use of credit, especially with 
respect to recently established credit relationships; or
    d. An account that was closed for cause or identified for abuse 
of account privileges by a financial institution or creditor.

Suspicious Documents

    5. Documents provided for identification appear to have been 
altered or forged.
    6. The photograph or physical description on the identification 
is not consistent with the appearance of the applicant or customer 
presenting the identification.
    7. Other information on the identification is not consistent 
with information provided by the person opening a new covered 
account or customer presenting the identification.
    8. Other information on the identification is not consistent 
with readily accessible information that is on file with the 
financial institution or creditor, such as a signature card or a 
recent check.
    9. An application appears to have been altered or forged, or 
gives the appearance of having been destroyed and reassembled.

Suspicious Personal Identifying Information

    10. Personal identifying information provided is inconsistent 
when compared against external information sources used by the 
financial institution or creditor. For example:
    a. The address does not match any address in the consumer 
report; or
    b. The Social Security Number (SSN) has not been issued, or is 
listed on the Social Security Administration's Death Master File.
    11. Personal identifying information provided by the customer is 
not consistent with other personal identifying information provided 
by the customer. For example, there is a lack of correlation between 
the SSN range and date of birth.
    12. Personal identifying information provided is associated with 
known fraudulent activity as indicated by internal or third-party 
sources used by the financial institution or creditor. For example:
    a. The address on an application is the same as the address 
provided on a fraudulent application; or
    b. The phone number on an application is the same as the number 
provided on a fraudulent application.
    13. Personal identifying information provided is of a type 
commonly associated with fraudulent activity as indicated by 
internal or third-party sources used by the financial institution or 
creditor. For example:
    a. The address on an application is fictitious, a mail drop, or 
a prison; or
    b. The phone number is invalid, or is associated with a pager or 
answering service.
    14. The SSN provided is the same as that submitted by other 
persons opening an account or other customers.
    15. The address or telephone number provided is the same as or 
similar to the account number or telephone number submitted by an 
unusually large number of other persons opening accounts or other 
customers.
    16. The person opening the covered account or the customer fails 
to provide all required personal identifying information on an 
application or in response to notification that the application is 
incomplete.
    17. Personal identifying information provided is not consistent 
with personal identifying information that is on file with the 
financial institution or creditor.
    18. For financial institutions and creditors that use challenge 
questions, the person opening the covered account or the customer 
cannot provide authenticating information beyond that which 
generally would be available from a wallet or consumer report.

Unusual Use of, or Suspicious Activity Related to, the Covered 
Account

    19. Shortly following the notice of a change of address for a 
covered account, the institution or creditor receives a request for 
a new, additional, or replacement card or a cell phone, or for the 
addition of authorized users on the account.
    20. A new revolving credit account is used in a manner commonly 
associated with known patterns of fraud patterns. For example:
    a. The majority of available credit is used for cash advances or 
merchandise that is easily convertible to cash (e.g., electronics 
equipment or jewelry); or
    b. The customer fails to make the first payment or makes an 
initial payment but no subsequent payments.
    21. A covered account is used in a manner that is not consistent 
with established patterns of activity on the account. There is, for 
example:
    a. Nonpayment when there is no history of late or missed 
payments;
    b. A material increase in the use of available credit;
    c. A material change in purchasing or spending patterns;
    d. A material change in electronic fund transfer patterns in 
connection with a deposit account; or
    e. A material change in telephone call patterns in connection 
with a cellular phone account.
    22. A covered account that has been inactive for a reasonably 
lengthy period of time is used (taking into consideration the type 
of account, the expected pattern of usage and other relevant 
factors).
    23. Mail sent to the customer is returned repeatedly as 
undeliverable although transactions continue to be conducted in 
connection with the customer's covered account.
    24. The financial institution or creditor is notified that the 
customer is not receiving paper account statements.
    25. The financial institution or creditor is notified of 
unauthorized charges or transactions in connection with a customer's 
covered account.

Notice from Customers, Victims of Identity Theft, Law Enforcement 
Authorities, or Other Persons Regarding Possible Identity Theft in 
Connection With Covered Accounts Held by the Financial Institution 
or Creditor

    26. The financial institution or creditor is notified by a 
customer, a victim of identity theft, a law enforcement authority, 
or any other person that it has opened a fraudulent account for a 
person engaged in identity theft.

    Dated: October 5, 2007.
John C. Dugan,
Comptroller of the Currency.
    By order of the Board of Governors of the Federal Reserve 
System, October 29, 2007.
Jennifer J. Johnson,
Secretary of the Board.

    Dated at Washington, DC, this 16th day of October, 2007.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
    Dated: October 24, 2007.


[[Page 63775]]


    By the Office of Thrift Supervision.
John M. Reich,
Director.
    By order of the National Credit Union Administration Board, 
October 15, 2007.
Mary Rupp,
Secretary of the Board.
    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. 07-5453 Filed 11-8-07; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 6714-01-P; 6720-01-P; 7535-01-P; 
6750-01-P`