[Federal Register Volume 67, Number 182 (Thursday, September 19, 2002)]
[Rules and Regulations]
[Pages 58962-58978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23765]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Parts 7 and 37

[Docket No. 02-14]
RIN 1557-AB75


Debt Cancellation Contracts and Debt Suspension Agreements

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: Final rule.

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SUMMARY: The Office of the Comptroller of the Currency (OCC) is adding 
a new part 37 to its regulations that addresses debt cancellation 
contracts (DCCs) and debt suspension agreements (DSAs). The purpose of 
the final rule is to establish standards governing these products in 
order to ensure that national banks provide such products consistent 
with safe and sound banking practices and subject to appropriate 
consumer protections.

EFFECTIVE DATE: This rule is effective June 16, 2003.

FOR FURTHER INFORMATION CONTACT: Jean Campbell, Attorney, Legislative 
and Regulatory Activities Division, (202) 874-5090; Suzette Greco, 
Special Counsel, Securities and Corporate Practices Division, (202) 
874-5210; or Rick Freer, Compliance Specialist, Compliance Division, 
(202) 874-4862, Office of the Comptroller of the Currency, 250 E 
Street, SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

I. Background

National Banks' Authority to Offer DCCs and DSAs

    A DCC is a loan term or a contractual arrangement modifying loan 
terms linked to a bank's extension of credit, under which the bank 
agrees to cancel all or part of a customer's obligation to repay an 
extension of credit from that bank upon the occurrence of a specified 
event. A DSA is a loan term or a contractual arrangement modifying loan 
terms linked to a bank's extension of credit, under which the bank 
agrees to suspend all or part of a customer's obligation to repay an 
extension of credit from that bank upon the occurrence of a specified 
event.
    Under a DCC or a DSA, the customer typically agrees to pay an 
additional fee to the bank in exchange for the bank's promise to cancel 
or temporarily suspend the borrower's obligation to repay the loan. The 
fee may be a lump sum that is payable at the outset of a loan (that may 
be financed over the term of the loan), or the fee may take the form of 
a monthly or other periodic charge. The fee compensates the bank for 
releasing borrowers from loan obligations under the circumstances 
specified in the DCC or DSA. These arrangements also provide customers 
a convenient method of extinguishing debt in times of financial or 
personal hardship, and enable the bank to avoid the time and expense of 
collecting the balance of the loan from a borrower's estate in the 
event of the borrower's death or other specified circumstances.\1\
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    \1\ See generally, Joseph L. Moore & James W. Smith, Debt 
Cancellation Contracts: A Neglected Asset, 112 Banking L. J. 918 
(1995).
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    The authority of national banks to offer DCCs and DSAs is well-
established.\2\ Nearly 40 years ago, in 1963, the OCC concluded that 
offering DCCs was a lawful exercise of the powers of a national bank in 
connection with the business of banking.\3\ The following year various 
OCC issuances affirmed that position.\4\ As explained by Comptroller 
James Saxon:
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    \2\ 12 U.S.C. 24(Seventh). See Memorandum from Julie L. 
Williams, First Senior Deputy Comptroller and Chief Counsel, to John 
D. Hawke, Jr., Comptroller of the Currency, dated June 25, 2002 
(discussing national banks' authority to offer DCCs and DSAs).
    \3\ See Comptroller of the Currency, The National Banking Review 
264 (Dec. 1963).
    \4\ See Letter from James J. Saxon to the President of a 
National Bank (Mar. 10, 1964); Letter from James J. Saxon to the 
President of a National Bank (Mar. 26, 1964); James J. Saxon, 
Statement of the Comptroller of the Currency on Debt Cancellation 
Contracts and Their Relation to State Law (May 18, 1964); James J. 
Saxon, Letter to the Presidents of all National Banks (July 21, 
1964).


[[Page 58963]]


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    The debt cancellation ruling issued by this Office [OCC] is not 
intended as a means for National Banks to invade the field of 
insurance. Rather, it is a recognition by this Office of a National 
Bank's right to protect itself by the establishment and maintenance 
of appropriate reserves against anticipated losses in connection 
with its lending activities under 12 U.S.C. 24. The necessity to 
maintain such reserves and to adjust its charges in relation to both 
reserves and the risk involved in a particular transaction has long 
been recognized as an essential part of the business of banking.\5\
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    \5\ James J. Saxon, Statement of the Comptroller of the Currency 
on Debt Cancellation Contracts and Their Relation to State Law (May 
18, 1964).

In 1971, the OCC codified the interpretive ruling on DCCs as 12 CFR 
7.7495.
    The only Federal circuit court of appeals that has considered DCCs 
or DSAs upheld the OCC's determination that the National Bank Act 
authorizes national banks to enter into DCCs with their borrowers and 
that DCCs were banking products, not part of the ``business of 
insurance.'' \6\ In First Nat'l Bank of Eastern Arkansas v. Taylor, the 
Eighth Circuit Court of Appeals considered whether DCCs provided by a 
national bank to its loan customers were subject to Arkansas State 
insurance regulation. The court held that the National Bank Act 
authorized national banks to offer DCCs. Further, it held that Federal 
law precluded the State insurance commissioner from requiring the 
national bank to obtain a State insurance license and from taking 
enforcement action against the national bank for failing to do so.\7\
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    \6\ See First Nat'l Bank of Eastern Arkansas v. Taylor, 907 F.2d 
775(8th Cir.), cert. denied, 498 U.S. 972 (1990).
    \7\ ``Because national banks are considered federal 
instrumentalities, states may neither prohibit nor unduly restrict 
their activities. Thus, the National Bank Act preempts the 
Commissioner's authority to prohibit FNB from offering debt 
cancellation contracts.'' Id. at 778 (citations omitted).
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    The Eighth Circuit found that DCCs do not constitute the ``business 
of insurance'' under the McCarran-Ferguson Act because the product 
falls within the powers incidental to banking granted by the National 
Bank Act.\8\ The court emphasized that DCCs offered by banks in 
connection with their loans differ significantly from traditional 
insurance contracts. DCCs do not require the bank to take an investment 
risk or make payment to the borrower's estate. The loan simply is 
extinguished when the borrower dies. Thus, the court reasoned, ``the 
primary and traditional concern behind state insurance regulation--the 
prevention of [the insurer's] insolvency--is not of concern to a 
borrower who opts for a debt cancellation contract.''\9\ The court 
concluded that further support for its holding that DCCs do not 
constitute the ``business of insurance'' derives from the fact that 
national banks fulfilling their obligations under DCCs do not implicate 
this central concern of insurance regulation.\10\
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    \8\ The court recognized that whether an activity falls within 
the ``business of insurance'' for purposes of the McCarran-Ferguson 
Act is a federal question and not determined by State law defining 
insurance. Id. at 780, n.8 (citing SEC v. Variable Annuity Life Ins. 
Co., 359 U.S. 65, 69(1959)). See also Steele v. First Deposit Nat'l 
Bank, 732 So.2d 301 (Ala. Civ. App. 1999) (finding a credit 
protection debt deferral product was not within the meaning of the 
``business of insurance'').
    \9\ Taylor, 907 F.2d at 780.
    \10\ See id.
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    In 1996, the OCC amended the interpretive ruling (renumbered as 
Sec.  7.1013) to expressly include offering DCCs for the disability of 
the borrower, in addition to death.\11\ The OCC also has issued various 
interpretive letters concerning DCCs and DSAs over the years.\12\ In 
1998, for example, the OCC confirmed that a national bank may offer 
DSAs as well as DCCs, as part of its express authority to make 
loans.\13\
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    \11\ See 61 FR 4849 (Feb. 9, 1996).
    \12\ See, e.g., Interpretive Letter No. 641 (Jan. 7, 1994); 
Interpretive Letter No. 827 (Apr. 3, 1998); Interpretive Letter No. 
903 (Dec. 28, 2000).
    \13\ See Interpretive Letter No. 827 (Apr. 3, 1998).
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The OCC's Rulemaking

    On January 26, 2000, the OCC published in the Federal Register an 
advance notice of proposed rulemaking (ANPR) requesting comment on 
whether regulations addressing DCCs and DSAs were necessary or 
appropriate (65 FR 4176).\14\ In particular, in the ANPR, we noted the 
absence of a comprehensive Federal consumer protection scheme governing 
DCCs and DSAs.
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    \14\ The comments we received on the ANPR are summarized in the 
notice of proposed rulemaking (66 FR 19901, Apr. 18, 2001).
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    We OCC received 41 comments in response to the ANPR. Commenters 
were evenly divided on whether additional regulations were necessary. 
On balance, we agreed with those who favored additional standards in 
this area.
    On April 18, 2001, we published a notice of proposed rulemaking 
(NPRM) requesting comment on proposed regulations governing DCCs and 
DSAs (66 FR 19901). The preamble to the proposal said that the proposed 
rules were designed to facilitate consumers' informed choice about 
whether to purchase DCCs or DSAs, to discourage unfair or abusive sales 
practices, and to promote national banks' ability to offer DCCs and 
DSAs on a safe and sound basis.
    The OCC received 51 comment letters in response to the NPRM.\15\ 
The commenters included bank trade associations, national banks, credit 
card companies, and consumer groups. Comments were also filed by 
insurance trade associations, insurance companies, and State insurance 
regulators. Finally, we received comments from a number of individuals 
and companies. The vast majority of commenters favored the proposed 
regulation, but most of these commenters recommended changes.
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    \15\ Several commenters filed multiple comments.
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    The final rule makes a number of changes to the proposal, many in 
response to suggestions provided by commenters. The next section of 
this discussion sets out a general overview of the final rule.

II. Overview

    The final rule includes the following significant features:
    [sbull] It codifies the OCC's longstanding position that DCCs and 
DSAs are permissible banking products.
    [sbull] It establishes important safeguards to protect against 
consumer confusion and areas of potential customer abuse. In 
particular, the final rule prohibits national banks from offering lump 
sum, single premium DCCs or DSAs in connection with residential 
mortgage loans.
    [sbull] The rule provides for standardized disclosures of key 
information in connection with the offer and sale of DCCs and DSAs. The 
disclosure requirements are structured to accommodate widely used 
methods of marketing DCCs and DSAs, including telephone solicitations, 
mail inserts, and so-called ``take one'' applications.
    [sbull] To the extent feasible, the rules apply consumer 
protections modelled on the framework of consumer protections that 
Congress directed the OCC (and the other Federal banking agencies) to 
apply to banks' insurance sales. National banks are familiar with these 
insurance sales requirements, which are contained in part 14 of the 
OCC's regulations, and the approach taken in the final rule enables 
banks to harmonize their policies, procedures, and employee training 
programs across the two product lines.
    [sbull] The rule addresses safety and soundness considerations 
presented by DCCs and DSAs by requiring national banks to manage the 
risks associated with these products according to safe and sound 
banking principles,

[[Page 58964]]

including appropriate recognition and financial reporting of income, 
expenses, assets, and liabilities associated with DCCs and DSAs, 
adequate internal controls, and risk mitigation measures.
    Section III of this preamble discussion describes the most 
significant comments we received on the proposed rule and responds to 
the commenters' principal concerns. Section IV summarizes the final 
rule.

III. Summary of Comments

Authority, Purpose, and Scope (Section 37.1)

    The proposed rule removed 12 CFR 7.1013 and replaced it with 12 CFR 
37.1. Section 37.1(a) stated the authority of national banks under 12 
U.S.C. 24 (Seventh) to enter into both DCCs and DSAs and to charge a 
fee for these products. Section 37.1(b) set forth the purposes of the 
new regulations. Section 37.1(c) stated that the regulations applied to 
the provision of DCCs and DSAs by national banks and Federal branches 
and agencies. In addition, it clarified that the sale of DCCs and DSAs 
are governed by new part 37 and not by 12 CFR 14 (Consumer Protections 
for Depository Institution Sales of Insurance).
Applicability of State Law
    Many commenters sought clarification about the regulatory framework 
that governs DCCs and DSAs. They urged the OCC to clarify that DCCs and 
DSAs offered by national banks are not subject to regulation under 
State insurance law. One commenter, however, asserted that DCCs and 
DSAs are ``authorized'' insurance products under the Gramm-Leach-Bliley 
Act (GLBA)\16\ and that States have express authority to regulate them 
as insurance, subject only to the preemption standards set forth in 
section 104 of the GLBA.
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    \16\ Pub. L. No. 106-102, 113 Stat. 1338 (Nov. 12, 1999).
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    As is described in the Background section of this preamble 
discussion, DCCs and DSAs are banking products authorized under 12 
U.S.C. 24(Seventh). This final rule, together with any other applicable 
requirements of Federal law and regulations, are intended to constitute 
the entire framework for uniform national standards for DCCs and DSAs 
offered by national banks. Accordingly, the final rule states that DCCs 
and DSAs are regulated pursuant to Federal standards, including part 
37, and not State law.
Establishment of Fees
    Many commenters urged that the OCC regulate the amount of fees 
banks can charge for DCCs and DSAs. The premise of a number of these 
comments was the assertion that DCCs and DSAs are substitute products 
for credit insurance. These commenters contended that the market for 
DCCs is analogous to the market for credit insurance, which is 
characterized by ``reverse competition.'' ``Reverse competition'' 
refers to market conditions that result in increased prices because 
insurers compete with each other for the business of the agents who 
control placement of the product. To obtain this business, insurance 
companies pay high commissions or provide other compensation or 
services, resulting in higher costs that are then passed on to the 
consumer. These commenters expressed concern that disclosure 
requirements are inadequate to address this market failure, and they 
recommended that the OCC impose the same type of regulation--including 
fee, form, and claims regulation--on the sale of DCCs or DSAs as is 
commonly required by State insurance regulators with respect to the 
sale of credit insurance.
    For several reasons, we decline to depart from the basic regulatory 
approach we proposed, although the final rule does contain enhanced 
consumer protection features beyond those contained in the proposal. 
First, as the Taylor court explained, DCCs and DSAs are distinct from 
credit insurance as a matter of law. Moreover, we see no evidence that 
the market for DCCs and DSAs suffers from the same flaws as the 
commenters assert prevail in the credit insurance market. Issuers of 
DCCs and DSAs do not compete to enlist independent, third-party sellers 
to place their product. Instead, every national bank that issues DCCs 
or DSAs is its own seller because these products are provided in 
conjunction with loans that the bank itself makes. Commenters provided 
no evidence of impairment in the market for DCCs and DSAs, but instead 
relied on concerns regarding distortions and abuses in the credit 
insurance market. Thus, we cannot conclude that the strongest reason 
given by the commenters in support of fee regulation--dysfunction in 
the market that disclosures are inadequate to overcome--is present in 
the market for DCCs and DSAs. Moreover, as the rule's express 
prohibition on tying makes clear, the choice of purchasing the product 
is left exclusively to the customer. We have concluded, therefore, that 
a regulatory approach that includes price controls as a primary 
component is not warranted.
    The OCC's regulations reflect the fact that national banks may set 
fees subject to standards of prudent banking practices. Section 7.4002 
of our rules authorizes national banks to establish non-interest 
charges and fees ``according to sound banking judgment and safe and 
sound banking principles.'' \17\ A bank satisfies this standard if it 
employs a decision making process to set fees that involves 
consideration of four factors identified in the regulation. The 
standards of Sec.  7.4002 apply to the fees charged by a national bank 
for a DCC or DSA.
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    \17\ 12 CFR 7.4002(b)(2).
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    Several commenters stated that, in some cases, either banks do not 
charge customers a fee for a DCC or DSA or a third party pays the fee. 
These commenters urged the OCC to clarify that the regulation does not 
apply if the customer does not pay a fee for the DCC or DSA, or to 
create an exemption to some of the provisions of the rule. We have not 
modified the final rule in this way because, in our view, such a 
modification could create an incentive for banks to evade the 
requirements of the rule. This could occur if, for example, a bank 
structures its fees so that it does not explicitly charge the customer 
for a DCC or DSA but builds that fee into some other component of the 
transaction.
    For these reasons, Sec. Sec.  37.1(a), (b), and (c) are 
substantively the same in the final rule as in the proposal, with 
certain stylistic changes to improve clarity. For stylistic purposes, 
the regulation text uses both the terms ``extension of credit'' and 
``loan;'' we do not intend this usage to create any substantive 
distinctions. In addition, we have added a phrase in subsections (a) 
and (c) to clarify that DCCs and DSAs are offered in connection only 
with extensions of credit made by the same bank.

Definitions (section 37.2)

    The proposed rule defined a DCC as a contract entered into between 
a bank and its customer providing for cancellation of all or part of 
the amount a customer owes under an extension of credit from that bank 
upon the occurrence of a specified event. A DSA was similarly defined 
as a contract entered into between a bank and its customer providing 
for suspension of all or part of the customer's obligation to repay an 
extension of credit from that bank upon the occurrence of a specified 
event. The rule used the term ``bank'' to include a national bank as 
well as a Federal branch or agency. A customer was defined as an 
individual who obtains a loan or other extension of credit from a bank 
primarily for personal, family or household purposes.

[[Page 58965]]

    A number of commenters sought clarification of the terms defined in 
the proposal, and we have, accordingly, made a number of clarifying 
changes to the text. For example, many commenters were concerned that 
the definitions of a DCC and a DSA implied that they are products 
separate from the underlying extension of credit. The text of the final 
rule adds language to clarify this point.
    The final rule makes stylistic changes in all the definitions and 
adds five definitions: actuarial method, closed-end credit, contract, 
open-end credit, and residential mortgage loan. In response to 
suggestions from commenters, we have added a sentence to the definition 
of a DSA to clarify that the rule does not cover so-called ``skip-a-
payment'' agreements in which the triggering event for a deferral 
arrangement is either the borrower's unilateral election to defer 
payment or the bank's unilateral decision to allow a deferral of 
repayment. The rule covers ``hybrid'' arrangements that contain both 
debt suspension and debt cancellation features. It also covers DSAs 
where interest continues to accrue during the suspension period, as 
well as DSAs where the accrual of interest is suspended.
    Both the proposal and the final rule require that if a refund 
feature is part of the DCC or DSA, the bank must compute that refund 
using a method no less favorable to the consumer than the actuarial 
method. In response to requests from commenters, the final rule defines 
that term. The rule adopts the definition of ``actuarial'' found in the 
Truth in Lending Act (TILA), because banks are already familiar with 
the TILA definition and its implementation in the Federal Reserve 
Board's Regulation Z.\18\ For the same reason, the terms ``open-end 
credit'' and ``closed-end credit'' are defined based on Regulation 
Z.\19\
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    \18\ See 15 U.S.C. 1615(d)(1). See also 12 CFR 226, app. J 
(appendix to the Federal Reserve Board's Regulation Z, implementing 
the TILA, explaining the use of the actuarial method for purposes of 
computing the annual percentage rate).
    \19\ See 12 CFR 226.2(20) and 226.2(10), respectively.
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    For purposes of the prohibition on single-payment fees for DCCs and 
DSAs issued in connection with residential mortgage loans, we have 
added the term ``residential mortgage loan'' and defined it to mean a 
loan secured by one-to-four family, residential property.
    Finally, the rule adds the new term ``contract'' as a less 
cumbersome, short-form reference to a debt cancellation contract or a 
debt suspension agreement in the remainder of the regulation text.

Prohibited Practices (section 37.3)

Anti-Tying Provision
    The proposed rule contained several types of customer protections 
that would be standard when a bank provides products associated with a 
loan, including an anti-tying provision precluding a bank from 
extending credit or changing the terms or conditions of an extension of 
credit conditioned upon the purchase of a DCC or DSA from the bank.
    Several commenters supported the anti-tying prohibition. These 
commenters thought that a bank's authority to deny a consumer's request 
for credit gives the bank a unique ability to seek to coerce consumers 
to purchase a DCC or DSA. They asserted that disclosures alone are not 
effective to dispel the potentially coercive effect that tying has in 
this context.\20\
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    \20\ In support of this view, one commenter cited a study 
indicating that even when consumers receive disclosures informing 
them that the lender's decision to grant a loan is not conditioned 
on the purchase of insurance, some consumers still believe that 
there is a connection between their ability to obtain the loan or to 
obtain favorable loan terms and their purchase of insurance. See 
John M. Barron & Michael E. Staten, Credit Research Center, Purdue 
University, Credit Insurance: Rhetoric and Reality (1994).
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    A number of commenters opposed this provision, however. These 
commenters offered different objections, depending on their view of the 
effect on these products of the anti-tying provision in section 106 of 
the Bank Holding Company Act Amendments of 1970.\21\ Section 106 
generally forbids a bank from extending credit, leasing or selling 
property, furnishing services, or fixing or varying prices of these 
transactions, on the condition or requirement that the customer obtain 
additional credit, property, or service from the bank, subject to 
certain exceptions. One of these exceptions, the statutory 
``traditional bank product'' exemption, permits a bank to extend 
credit, lease or sell property, furnish services, or fix or vary prices 
on these transactions, on the condition that a customer obtain a loan, 
discount, deposit or trust service from the same bank.\22\ Some 
commenters argued that section 106 does not apply because DCCs and DSAs 
are an integral term of the loan agreement and the tying prohibition 
only applies to separate products. Others thought that section 106 
applies but would operate to permit tying either because the DCC or DSA 
is part of the loan and section 106 permits the tying of loan products, 
or because the DCC or DSA is a ``traditional bank product'' and may be 
tied to a loan on that basis. On the other hand, one commenter argued 
that the rule's anti-tying provision is unnecessary because section 106 
already applies to prohibit tying a loan to a customer's purchase of a 
DCC or DSA from the bank.
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    \21\ Section 106 is codified at 12 U.S.C. 1972.
    \22\ See 12 U.S.C. 1972(1)(A).
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    DCCs and DSAs may be offered and purchased either contemporaneously 
with the other terms of the loan agreement or subsequent to the 
execution of that agreement. In either case, the effect of the DCC or 
DSA is to extinguish or suspend the borrower's obligation to repay 
under the otherwise operative provisions of the loan. Since a bank's 
ability to adjust the terms of loan repayment is an integral component 
of its authority to lend, in our view, a DCC or DSA could properly be 
treated as a component of the loan and, as such, would not be subject 
to the tying prohibitions in section 106 because a DCC or DSA is a term 
of the loan rather than a separate product. Thus, the final rule 
retains a tying prohibition specifically applicable to DCCs and DSAs.
Misleading Practices
    The proposed rule prohibited a bank from engaging in any practice 
that could mislead a reasonable person with respect to the information 
that the proposal required to be disclosed.
    Several commenters objected to the ``reasonable person'' standard 
on the grounds that it was vague, subjective, or so broad that it would 
be impossible to enforce.\23\ Yet, the proposed standard was very 
similar to the standard governing misleading practices found in the 
regulations of the OCC (and the other Federal banking agencies) 
implementing consumer protections in the insurance sales context.\24\ 
National banks' sale of DCCs and DSAs, which may be solicited and 
marketed using methods similar to insurance solicitation and marketing, 
can present similar consumer protection issues as

[[Page 58966]]

the sale of insurance products. Moreover, national banks are already 
generally familiar with the standard contained in the insurance sales 
regulations. Thus, the final rule retains the substance of the 
prohibition as proposed but with changes in wording so that the 
language conforms more closely with the language of part 14. We have 
also added an express reference to misleading advertisements, as well 
as practices, to make clear that the scope of the prohibition is no 
less than that in part 14.
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    \23\ A few commenters also argued that this provision is 
unnecessary because national banks are already subject to the 
prohibitions in the Federal Trade Commission Act against fraud and 
misleading or deceptive advertising. Section 5 of the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.) (FTC Act) generally prohibits 
``unfair or deceptive acts or practices in or affecting commerce.'' 
The prohibition retained in the final rule is consistent with, but 
not duplicative of, the standards in the FTC Act.
    \24\ See 12 CFR 14.30(b). This provision is included in part 14 
of the OCC's regulations, which implements the insurance sales 
consumer protections prescribed by section 305 of the GLBA. The 
statute requires the regulators to prohibit advertising or 
statements that could mislead any person or cause a reasonable 
person to reach an erroneous belief with respect to several 
enumerated facts. See 12 U.S.C. 1831x (codifying section 305 of the 
GLBA).
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Unilateral Modification of the Contract
    The proposed rule prohibited a bank from retaining a unilateral 
right to modify or cancel the contract.
    A commenter representing several organizations supported this 
provision, but the majority of the commenters who addressed it either 
were opposed or recommended modifications. Many commenters stated that 
modifying the terms of credit is standard business practice in the 
credit card industry. They noted that modifications are subject to the 
protections of the TILA and Regulation Z, which permit changes in 
certain terms upon notice and agreement by the customer. Other 
commenters suggested that the OCC create an exemption in the case of 
customers who pay the fee on a monthly basis and have the right to 
cancel at any time. Several commenters urged the OCC to permit banks to 
make unilateral changes, provided the change benefits the customer.
    The OCC remains of the view that retaining a unilateral right to 
modify or cancel the DCC or DSA, whether the product is associated with 
open-or closed-end credit, has the potential to be abusive because it 
could be exercised in such a way as to deny a customer debt relief for 
which the customer has paid. We agree, however, that some of the 
circumstances described by the commenters do not present this potential 
for abuse. Accordingly, the final rule excepts unilateral changes from 
the prohibition in two circumstances: first, if the modification is 
favorable to the customer and is made without additional charge to the 
customer; and, second, if the customer is notified of the proposed 
change and provided a reasonable opportunity to cancel the contract 
without penalty before the change goes into effect. For example, the 
OCC would generally regard a 30-day notice period as reasonable. This 
time period is consistent with the time requirements imposed by TILA in 
an analogous situation.\25\ The final rule does not require that the 
contract language specify the circumstances under which the bank may 
make a unilateral modification, though inclusion of explicit provisions 
in the contract may be helpful to avoid misunderstandings. Rather, the 
rule operates to prohibit the bank from requiring its customer to abide 
by a unilateral modification unless it meets one of the exceptions 
described in the rule.
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    \25\ The types of changes that might occur if a bank made a 
unilateral modification to a DCC or DSA are analogous to changes for 
which Regulation Z requires 30 days prior notice. See, e.g., 12 CFR 
226.9(e) and (f).
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Single, Lump Sum Payment
    Several commenters urged the OCC to include in the final rule a 
provision prohibiting banks from requiring a customer to pay the fee 
for a DCC or DSA in a single payment. These commenters focused on 
abuses that have occurred in the sale of credit insurance in the 
subprime market for residential mortgage loans and argued that the sale 
of DCCs and DSAs present a similar potential for abuse. They noted that 
customers who pay the fee in a single payment routinely add the amount 
of the fee to the amount borrowed, which means that customers will pay 
interest on the fee for the life of the loan. They contended that 
lenders marketing credit insurance target borrowers who are 
unsophisticated about financial products and thus unlikely to realize 
that financing the fee has the effect of reducing the homeowner's 
equity in his or her home.
    The issues identified with respect to single premium credit 
insurance in the home mortgage market are particularly problematic 
because they highlight practices targeting consumers whose economic 
choices may be circumscribed or who may be especially vulnerable to 
predatory sales practices. Moreover, we are aware, as commenters 
pointed out, that some large financial institutions have voluntarily 
abandoned the practice of financing single payment credit insurance 
premiums for home mortgage loans. In addition, both Fannie Mae and 
Freddie Mac have announced that they will no longer purchase mortgages 
that carry single premium credit insurance.\26\ The reaction of these 
market participants supports the conclusion that the potential for 
abuse in the marketing and sale of these products outweighs any 
potential consumer benefits.
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    \26\ See Freddie Mac Unveils Policy on Insurance To Protect 
Borrowers, Wall St. J., Mar. 27, 2000, at A6; Fannie Mae Chairman 
Announces New Loan Guidelines to Combat Predatory Lending Practices, 
New Release (Fannie Mae), Apr. 11, 2000.
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    In the absence of evidence that the abuses identified by the 
commenters are occurring in the DCC or DSA market, we have declined to 
adopt an across-the-board prohibition on lump sum fees. We remain 
concerned, however, that abuses similar to those occurring in the 
credit insurance market not develop with respect to DCCs or DSAs 
provided in connection with home mortgage loans. To guard against that 
result, the final rule prohibits a national bank from requiring a 
customer to pay the fee for a DCC or DSA in a single payment, payable 
at the outset of the contract, if the debt that is the subject of the 
contract is a residential mortgage loan. The rule permits single 
payment contracts in the case of all other consumer loans, but requires 
banks that offer the option of paying the fee in a single payment to 
also offer the bona fide option of paying for that contract in periodic 
payments. In such cases, the bank must also make certain disclosures 
related to the fee.
Terms Not Routinely Enforced
    The proposed rule prohibited a bank from including in a DCC or DSA 
any term that the bank routinely does not enforce.
    Twelve commenters addressed this provision and they unanimously 
opposed it. They contended, among other things, that it sets a standard 
that is unclear and difficult to administer. In addition, they argued 
that the provision could harm customers because it would have a 
chilling effect on banks' flexibility to work with customers to resolve 
delinquent debt issues and rehabilitate credit relationships. Several 
commenters stated that legal means already exist to address instances 
in which the failure routinely to enforce a term would mislead 
consumers, such as the OCC's general authority to enforce unfair or 
deceptive business practices laws applicable to national banks.
    We agree with these commenters that this prohibition would be 
counterproductive if it produced the unintended result of deterring 
banks from negotiating with their customers to work out or restructure 
delinquent debt. Accordingly, we have deleted this prohibition from the 
final rule.

Refunds of Fees in the Event of Termination of the Agreement or 
Prepayment of the Covered Loan (section 37.4)

    The proposal required a bank that provides a no-refund DCC or DSA 
also to offer a product that provides for a refund of the unearned 
portion of the

[[Page 58967]]

fee in the event of termination of the agreement or prepayment of the 
covered loan. In addition, the proposal required banks to calculate the 
amount of any refund due a customer based on a method at least as 
favorable to the customer as the actuarial method.
    Several commenters opposed this provision. Some argued that fees 
charged in connection with DCCs and DSAs should be treated the same as 
any other fee a bank charges in connection with a loan. Others thought 
that no-refund DCCs and DSAs are inherently unfair to consumers and 
recommended that the OCC prohibit them. Many commenters stated that the 
refund provision should not apply to open-end credit where customers 
pay for DCCs or DSAs on a month-to-month basis.
    As we noted in the proposal, some banks that offer DCCs and DSAs 
may structure those products so that the customer does not receive a 
refund of any unearned portion of the fee paid for the product if the 
DCC or DSA is terminated or the customer prepays the loan covered by 
the contract. Banks have suggested that customers benefit from a ``no-
refund'' product because the total fee paid by the customer is 
substantially less than the fee that would be charged for the same 
product with a fee refund feature. On the other hand, a no-refund 
product could be structured in a way that is unfair to customers if, 
for example, the customer pays most of the fee early in the term of the 
contract but also prepays the loan well before the end of the term.
    We continue to believe that the approach that best balances 
encouraging banks to provide a viable choice of products for consumers 
with discouraging unfair practices is to require banks to offer both 
options so that a customer can choose between a lower total fee or the 
availability of a refund. In our view, the potential for unfairness in 
a no-refund product lies principally in the fact that the customer may 
be induced to pay ``up front'' for coverage that he or she never 
receives because the loan is prepaid. This result is substantially 
mitigated if the consumer has the option of DCC or DSA coverage on a 
``pay as you go'' basis.
    Accordingly, the final rule retains this provision (as renumbered) 
with one substantive change. The text of the final rule requires that a 
bank that offers a no-refund DCC or DSA must also offer the customer a 
bona fide option to purchase a comparable contract that provides for a 
refund. The option to purchase is bona fide if the refund product is 
not deliberately structured in such a way, including pricing of the 
product, as to deter a customer from selecting that option.
    In response to questions raised by commenters, we clarify that the 
refund provision does not apply in the case of open-end credit where 
customers pay for the contract on a month-to-month basis. In that case, 
there are no ``unearned'' fees to refund. Nor does it apply if the fee 
for the contract is paid by the bank or some other third party rather 
than the customer.
    If a customer is entitled to a refund, the amount due the customer 
may vary greatly depending on the method used to calculate the refund. 
The two most commonly used formulas for computing refunds are ``the 
Rule of 78's'' and the actuarial method. Under the Rule of 78's, a 
customer will receive a substantially lower refund than if the 
actuarial method had been used to compute the refund. Because 
application of the Rule of 78's creates substantial inequities for the 
customer, the final rule retains the requirement that banks calculate 
the amount of any refund due a customer based on a method at least as 
favorable to the customer as the actuarial method. As described earlier 
in this discussion, we have added to the final rule a definition of the 
term ``actuarial method.''

Method of Payment of Fees (section 37.5)

    As we have described, section 37.3(c)(2) prohibits a bank from 
requiring a customer to pay the fee for a DCC or a DSA in a single lump 
sum where the associated credit is a residential mortgage loan. Several 
commenters urged the OCC to prohibit a bank from requiring a customer 
to pay the fee for any DCC or DSA in a single payment. While we do not 
believe the available evidence supports that result, we agree that 
single payment fees have potential to be problematic even outside the 
home mortgage loan context. Accordingly, for DCCs or DSAs associated 
with any other type of loan, Sec.  37.5 of the final rule requires a 
bank that offers a customer the option to pay the fee for a contract in 
a single payment also to offer that customer a bona fide option to pay 
the fee for that contract in periodic payments. The option is ``bona 
fide'' if it is not deliberately priced in such a way as to deter a 
customer from selecting that option.

Disclosures (section 37.6)

Content of Short and Long Form of Disclosures in General
    The proposed rule listed eight disclosures that a bank, where 
applicable, was required to give.
    Many commenters objected to the number of required disclosures. 
They noted that banks already are required to provide disclosures under 
the TILA and argued that the new disclosures were too burdensome for 
banks and too confusing for customers. Several commenters who supported 
rate, form, and claims regulation similar to the regulation of the 
insurance industry challenged the usefulness of disclosures and 
criticized the OCC for relying too heavily on disclosures. For the 
reasons we have earlier described, in our view, regulation of DCCs and 
DSAs as if they were insurance products is not appropriate. We agree 
with the commenters who thought the proposed disclosure requirements 
could be improved, however.
    Therefore, the final rule retains much of the content of the 
disclosures prescribed by the proposal, but revises the disclosure 
process so that it more readily accommodates the methods banks use to 
market and sell DCCs and DSAs. The final rule specifies which 
disclosures must be given at different stages of the marketing and 
sales process and provides forms of disclosure that serve as models for 
satisfying the requirements of the rule.
    In the final rule the disclosures have been reorganized into two 
types: a short form of disclosure suitable for use in telemarketing and 
various abbreviated written solicitations, and a more detailed long 
form of disclosure that a customer generally will receive prior to 
purchasing the contract. A sample short form is provided as Appendix A 
to the regulation and a sample long form is provided as Appendix B. Use 
of these forms is not mandatory. A bank may adjust the form and wording 
of its disclosures so long as the requirements of the regulation are 
met. Because many of the disclosures will appear in both the short and 
long form, we discuss the short and long form disclosures together.
Anti-Tying Disclosure
    The proposed rule required a bank to inform the customer that 
neither its decision whether to approve a loan nor the terms and 
conditions of the loan are conditioned on the purchase of a DCC or DSA 
from the bank.
    Commenters opposed to the anti-tying prohibition also opposed the 
anti-tying disclosure. Most of these commenters contended that the 
anti-tying disclosure is necessary only if the DCC or DSA is being sold 
while a customer's application for credit is pending. If the OCC 
retains this disclosure, they recommended creating an exemption for

[[Page 58968]]

DCCs and DSAs sold subsequent to the extension of credit.
    As described earlier in this discussion, the final rule retains the 
prohibition on tying either the availability or the terms of credit to 
a customer's purchase of a DCC or DSA. Because the effectiveness of the 
prohibition is greatly enhanced if the customer knows that the bank may 
not tie DCCs or DSAs to its loan products, the final rule also retains 
the requirement that the bank provide an anti-tying disclosure. The 
disclosure appears in both the short form and long form and, insofar as 
appropriate,\27\ is similar in content to the anti-tying disclosure 
required by the insurance sales consumer protection rules. The 
appendices suggest a wording that is simpler than the text of the 
proposed rule, however, and contain a statement that purchase of the 
product is optional and will not affect either the bank's credit 
decision or the terms of credit already extended.
---------------------------------------------------------------------------

    \27\ See 12 CFR 14.40(b)(2). The insurance sales rules also 
require a bank to disclose that it may not condition an extension of 
credit on its customer's not obtaining insurance from an entity 
unaffiliated with the bank. A similar disclosure is not appropriate 
in the case of a DCC or DSA, since the DCC or DSA must be offered by 
the bank extending the credit.
---------------------------------------------------------------------------

Explanation of Effect of Debt Suspension Agreement
    Certain commenters asserted that there is a potential for increased 
customer confusion regarding DSAs when compared with credit disability 
insurance products and DCCs where disability is the triggering event. 
They noted that these products are similar to DSAs in that they address 
the health status of customers in relation to their ability to continue 
employment. In response to these commenters' suggestions, the final 
rule requires a bank to explain in the long form the nature of a debt 
suspension agreement. The bank must disclose that if a customer 
activates the agreement, the customer's duty to pay the loan principal 
and interest is only suspended and the customer must fully repay the 
loan after the period of suspension has expired.
Disclosure of the Amount of the Fee
    The proposed rule required a bank to inform customers of the total 
fee for the DCC or DSA.
    Many commenters argued that it is not possible to compute the total 
fee for a DCC sold in connection with open-end credit because the fee 
is based on the customer's outstanding balance which fluctuates from 
month to month. The commenters urged the OCC to eliminate this 
disclosure in the case of open-end credit or to adopt a more flexible 
alternative. Most commenters recommended that an appropriate disclosure 
would be the unit-cost approach under Regulation Z or the formula used 
to compute the fee.
    We agree that it may be impracticable to require disclosure of the 
amount of the fee at the time the bank first solicits the purchase of a 
DCC or DSA, particularly in the case of open-end credit. The final rule 
therefore requires a bank to make disclosures regarding the amount of 
the fee only in the long form. However, the disclosure must differ 
depending on whether the credit is open-end or closed-end. In the case 
of closed-end credit, the bank must disclose the total fee. In the case 
of open-end credit, the bank must either: (1) disclose that the 
periodic fee is based on the account balance multiplied by a unit-cost 
and provide the unit-cost, or (2) disclose the formula used to compute 
the fee.
Disclosure Concerning Lump Sum Payment of Fee
    The proposed rule required a bank to disclose the method of 
payment, including whether the payment would be collected in a single 
payment or periodic payments, and whether the fee was included in the 
loan amount.
    Only two commenters directly addressed this disclosure. One 
commenter recommended that the OCC eliminate this disclosure, and the 
second commenter stated that this disclosure would be confusing in the 
context of open-end credit.
    The final rule modifies this disclosure to reflect the requirements 
in Sec.  37.5. As modified, this disclosure, which is included in both 
the short and long form, requires a bank to disclose, where 
appropriate, that a customer has the option to pay the fee in a single 
payment or in periodic payments. This disclosure is not appropriate in 
the case of a DCC or DSA provided in connection with a home mortgage 
loan, since, under the final rule, the option to pay the fee in a 
single payment is not available in that case. The rule also requires a 
bank to disclose that adding the fee to the amount borrowed will 
increase the cost of the contract.
Disclosure Concerning Lump Sum Payment of Fee With No Refund
    The proposed rule required a bank to disclose, if applicable, that 
the customer is not entitled to a refund of the unearned portion of the 
fee in the event the customer terminates the contract or prepays the 
loan prior to the scheduled termination date, and that the customer has 
the option of purchasing a DCC or DSA that provides for a refund in 
those circumstances.
    A few commenters urged the OCC to clarify that this disclosure does 
not apply to open-end credit accounts where the fee is billed monthly. 
One commenter recommended that the OCC replace this disclosure with a 
statement as to whether the customer will be entitled to a refund of 
the unearned portion of the fee in the event the customer terminates 
the contract or prepays the loan in full prior to the scheduled 
termination date.
    In response to these comments, the final rule deletes part of this 
disclosure and adds a new sentence. The revised disclosure appears in 
both the short and long form. The final rule eliminates the requirement 
that a bank must state whether or not the customer will be entitled to 
a refund of the unearned portion of the fee in the event the customer 
terminates the contract or prepays the loan in full prior to the 
scheduled termination date. Instead, if a customer may elect to pay the 
fee in a single payment, the rule requires a bank to disclose that the 
customer has the option to choose a contract with or without a refund 
provision. An additional sentence in both the short and long form 
states that prices of refund and no-refund products are likely to 
differ.
Disclosure Concerning Refund of Fee Paid in Lump Sum
    A bank's cancellation policy may be a material factor in a 
customer's decision whether to purchase the product, particularly if 
the customer has elected to pay the fee for a DCC or DSA in a single 
payment and also has elected to finance the fee. The final rule 
accordingly requires, at Sec.  37.5, that (for DCCs or DSAs associated 
with loans other than residential mortgage loans) if a bank permits a 
customer to pay the fee in a single payment and to add the fee to the 
amount borrowed, the bank must disclose the bank's cancellation policy. 
This disclosure is required in both the short and long form. It 
apprises the customer that the DCC or DSA may be canceled at any time 
for a refund, within a specified number of days for a full refund, or 
at any time with no refund. The method the bank uses to calculate any 
refund due is addressed in Sec.  37.4(b).
Disclosure Concerning Whether Use of Credit Line Is Restricted
    The proposed rule required a bank to inform a customer if the 
customer's activation of the contract would prohibit

[[Page 58969]]

the customer from incurring additional charges or using the credit 
line.
    Only two commenters addressed this disclosure. One commenter 
contended that the phrase ``activation of the debt cancellation 
contract'' might be ambiguous and suggested that the OCC clarify that 
this phrase refers to the customer's assertion of the right to cancel 
or suspend payments on the debt. The second commenter recommended that 
the OCC amend this disclosure to state that it does not apply to 
closed-end loans.
    The final rule retains this disclosure, but only in the long form 
because the information, while relevant to the customer's final 
decision to purchase a DCC or DSA, is not necessarily central to the 
customer's initial evaluation of the product.
Disclosure Concerning Termination of a DCC or DSA
    The proposed rule required a bank to explain the circumstances 
under which a customer or the bank could terminate the contract if 
termination is permitted during the life of the loan.
    Two commenters urged the OCC to eliminate this disclosure. One of 
these commenters argued that it was unnecessary and burdensome and 
recommended that the OCC require this information to be contained in 
the DCC, provided the customer has 30 days within which to cancel the 
DCC. The final rule retains this disclosure, but requires it only in 
the long form.
Additional Disclosures To Be Provided
    The final rule adds a disclosure in the short form requiring banks 
to inform consumers that the bank will provide additional information 
before the customer is required to pay for the product. The adjustments 
made in the rule to accommodate marketing practices that do not lend 
themselves to detailed disclosures mean that some important information 
will not be conveyed when the bank first solicits the purchase of a DCC 
or DSA. This disclosure apprises the customer that more information 
will be available for consideration before the customer is obligated to 
pay for the product.
Disclosure Pertaining to Eligibility Requirements, Conditions, and 
Exclusions
    The proposed rule required a bank to describe any material 
limitations relating to the DCC or DSA.
    Many commenters objected to this disclosure, and the majority of 
them urged the OCC to eliminate it. They contended that the term 
``material limitations'' is ambiguous and creates the potential for 
litigation over its meaning.
    Several commenters noted that the ``material limitations'' are 
included in the contract that is mailed to the customer. They said that 
almost all of the provisions of a DCC impact in some way on the 
customer's ability to collect benefits and these limitations are 
therefore so lengthy that they are not suitable for disclosures apart 
from the contract. Commenters recommended a number of alternatives, 
including modifying the required timing of the disclosure and 
permitting a bank to refer the customer to the contract for a 
description of its limitations.
    The final rule retains this disclosure. The DCC and DSA contracts 
we have reviewed often contain provisions imposing requirements on a 
customer's eligibility to claim benefits under the contract, or 
conditions or exclusions that could effectively preclude the customer 
from obtaining those benefits. Examples include: imposing a waiting 
period before a customer may activate benefits; limiting the number of 
payments a customer may defer; limiting the term of coverage to a 
specific number of months; limiting the maximum amount of indebtedness 
the bank will cancel; or terminating coverage when the customer reaches 
a particular age. Knowledge of these limitations may be dispositive to 
the customer's decision whether to purchase the product. Moreover, 
disclosing them may enable the bank to avoid sales practices that could 
subject it to substantial reputation or litigation risk.
    We have modified the disclosure significantly, however, to address 
the concerns expressed by the commenters. In both the short and long 
form, the final rule replaces the phrase ``material limitations'' with 
the phrase ``eligibility requirements, conditions and exclusions'' and 
requires a bank to disclose that these features could prevent a 
customer from receiving benefits under the contract. The content of the 
short and long form may vary, depending on whether a bank elects to 
provide a summary of the conditions and exclusions in the long form 
disclosures or refer the customer to the pertinent paragraphs in the 
contract. The short form requires a bank to instruct the customer to 
read carefully both the long form disclosures and the contract for a 
full explanation of the terms of the contract. In response to 
commenters' suggestions, the long form gives a bank the option of 
either separately summarizing the limitations or advising the customer 
that a complete explanation of the eligibility requirements, 
conditions, and exclusions is available in the contract and identifying 
the paragraphs where a customer may find that information.
Disclosure Concerning Procedures
    The proposed rule required a bank to describe the procedures a 
customer must follow to notify the bank that a triggering event has 
occurred.
    Several commenters contended that disclosing this information would 
be lengthy and cumbersome, particularly if the DCC was offered in 
connection with a credit card or other marketing material where 
available space is limited. Some of these commenters urged the OCC to 
eliminate this disclosure while others proposed permitting a bank to 
deliver this information to a customer post-sale.
    We agree that, while this information is relevant to a customer who 
has purchased the contract and wishes to activate the debt suspension 
or debt cancellation feature, it is unlikely to be a factor in the 
customer's decision whether to purchase the product. Therefore, the 
final rule eliminates the requirement for this disclosure.

Disclosure Requirements; Timing and Method of Disclosures (Section 
37.6(c))

    The proposal required a bank to provide certain disclosures to a 
customer before the customer completes the purchase of a DCC or DSA. It 
also required that the disclosures be made in writing, or 
electronically, if done in a manner consistent with the requirements of 
the Electronic Signatures in Global and National Commerce Act (15 
U.S.C. 7001 et seq.) (E-Sign).
    Most commenters objected to the requirement that the disclosures be 
made in writing as impracticable where a bank advertises or solicits 
the purchase of DCCs or DSAs through telemarketing, so-called ``take 
one'' applications, statement inserts, and direct mail solicitations. 
Commenters recommended a variety of alternatives to the proposal, 
including mailing written disclosures to the customer within a 
prescribed number of days or permitting the customer to cancel the 
product without charge. A number of commenters urged the OCC to adopt 
the approach of Regulation Z, which permits a bank to make limited 
initial disclosures in the case of open-end credit if the bank provides 
the full disclosures before the customer is obligated to pay, and 
permits oral disclosures in certain cases.
    The final rule makes significant modifications in the timing and 
method requirements. It addresses the concerns raised by the commenters 
by

[[Page 58970]]

establishing different timing and method requirements for short form 
and long form disclosures. Creating two separate forms also eliminates 
the need for banks to provide the most detailed and complicated 
information--information about eligibility requirements, conditions, 
and exclusions that limit the customer's ability to obtain benefits--in 
the short form.
    Section 37.6(c)(1) requires a bank to disclose certain information 
in the short form orally at the time the bank first solicits the 
purchase of a contract. Section 37.6(c)(2) requires a bank to disclose 
the applicable information in the long form in writing before the 
customer completes the purchase of the contract. However, if the bank 
solicits a customer's purchase of a DCC or DSA in person--for example, 
at the time the customer applies for credit in person--then the bank 
must also provide the long form disclosures in writing at that time.
    The final rule creates special exceptions for transactions by 
telephone, solicitations through written materials such as mail inserts 
or ``take one'' applications, and electronic transactions. The first 
exception, in Sec.  37.6(c)(3), addresses the concern that lengthy 
disclosures are not practical for solicitations via telemarketing. 
Under the telemarketing exception, banks may give the short form 
disclosures orally, provided they mail the written disclosures within 3 
days after the telephone solicitation. These telemarketing provisions 
are similar to those in the insurance sales consumer protection rules 
with which banks are already familiar.\28\ The rule requires that the 
customer have an opportunity to review the more detailed information 
before being obligated to pay for the contract.
---------------------------------------------------------------------------

    \28\ See 12 CFR 14.40(c)(3).
---------------------------------------------------------------------------

    The second exception, in Sec.  37.6(c)(4), is for written 
solicitations such as mail inserts and ``take one'' applications. 
Similar to the telemarketing exception, it permits a bank to give only 
the short form disclosures in mail inserts or ``take one'' applications 
where space is limited, provided the bank mails the written disclosures 
within 3 days after the customer contacts the bank to respond to the 
solicitation. The effect of this exception is the same as the effect of 
the provision in the insurance sales consumer protection rules that 
covers mail and ``take one'' solicitations. No oral disclosures are 
required and the short form disclosures may be made in this written 
material.
    The third exception, in Sec.  37.6(c)(5), permits disclosures to be 
made electronically in a manner consistent with the requirements of E-
Sign.

Form of Disclosures (Section 37.6(d))

    Proposed Sec.  37.6(c) required disclosures to be clear, 
conspicuous, readily understandable, and designed to call attention to 
the nature and significance of the information provided.
    The only commenter that addressed the form of the disclosures 
thought that Regulation Z sets forth a standard for disclosures and 
that a new standard is unnecessary.
    In our view, however, the better model for requirements as to form 
is part 14 of the OCC's rules, which governs products that are often 
marketed and sold using methods similar to the methods used to market 
and sell DCCs and DSAs. Accordingly, the final rule modifies this 
provision so that its text is more similar to part 14.\29\ Section 
37.7(d)(1) therefore requires that the disclosures must be simple, 
direct, readily understandable and designed to call attention to the 
nature and significance of the information provided. Section 37.7(d) 
requires that the disclosures must be meaningful. The examples of 
methods, such as spacing and type style, that a bank could use to 
satisfy the requirements for the form of disclosures have not been 
changed.
---------------------------------------------------------------------------

    \29\ See 12 CFR 14.40(c)(5) and (6).
---------------------------------------------------------------------------

Advertisements and Other Promotional Material for Debt Cancellation 
Contracts and Debt Suspension Agreements (Section 37.6(e))

    As described earlier, the final rule conforms more closely with 
part 14\30\ because it covers advertising and promotional material. See 
Sec.  37.3(b). Accordingly, the final rule adds a new subsection (e) 
requiring that short form disclosures must be made in advertisements 
and promotional material for DCCs unless the advertising and 
promotional material is of a general nature describing or listing the 
services or products offered by the bank.
---------------------------------------------------------------------------

    \30\ See 12 CFR 14.40(d).
---------------------------------------------------------------------------

Affirmative Election to Purchase and Acknowledgment of Receipt of 
Disclosures Required (Section 37.7 )

    Proposed Sec.  37.4 required that the customer affirmatively elect 
to purchase a DCC or DSA in writing in a document that was separate 
from the documents pertaining to the credit transaction. The proposal 
permitted the acknowledgment to be made electronically if the bank 
complied with the requirements of E-Sign.
    Most of the commenters who addressed this provision opposed it 
because, they said, the written election would have the effect of 
curtailing or prohibiting current marketing practices. They urged the 
OCC to eliminate these requirements or to modify them to permit oral 
elections with certain safeguards.
    Several commenters stressed that requiring separate documents also 
would create significant compliance difficulties in the case of ``take 
one'' credit applications where space is limited to a single sheet of 
paper, and in the case of auto financing, where procedures are not as 
readily monitored by the bank. Many commenters contended that this 
provision was not consistent with the TILA, which permits a customer's 
affirmative election to be in the same document as the loan contract.
    The final rule retains the requirement that the bank obtain the 
customer's affirmative election to purchase a DCC or DSA before 
obligating the customer to pay for the product. We have made 
substantial revisions, however, to address the commenters' concerns 
about the effects of the proposed requirements on methods widely used 
to market DCCs and DSAs and to conform the rule with the insurance 
sales regulations with which banks already are familiar. The final rule 
also adds a requirement, like that contained in the insurance sales 
regulations, that the bank obtain a customer's written acknowledgment 
of receipt of the disclosures required by Sec.  37.6.\31\
---------------------------------------------------------------------------

    \31\ See 12 CFR 14.40(c)(7).
---------------------------------------------------------------------------

    In the case of telephone solicitations, the final rule permits the 
customer's affirmative election to be made orally, provided the bank: 
(1) Maintains sufficient documentation to show that the customer 
received the short form disclosures and then affirmatively elected to 
purchase the contract; (2) mails the affirmative written election and 
written acknowledgment, together with the long form disclosures to the 
customer within 3 business days after the telephone solicitation, and 
maintains sufficient documentation to show that it made reasonable 
efforts to obtain the documents from the customer; and (3) permits the 
customer to cancel the purchase of the contract without penalty within 
30 days after the bank has mailed the long form disclosures to the 
customer.
    In the case of solicitations conducted through written materials 
such as mail inserts or ``take one'' applications, the final rule 
permits the bank to provide

[[Page 58971]]

only the short form disclosures in the written materials, provided the 
bank mails the acknowledgment of receipt of disclosures and the long 
form disclosures to the customer within 3 business days, beginning on 
the first business day after the customer contacts the bank or 
otherwise responds to the solicitation. The bank may not obligate the 
customer to pay for the contract until after the bank receives the 
customer's written acknowledgment of receipt of disclosures, unless the 
bank: (1) Maintains sufficient documentation to show that the bank 
provided the acknowledgment of receipt of disclosures to the customer 
as required by this section; (2) maintains sufficient documentation to 
show that the bank made reasonable efforts to obtain from the customer 
a written acknowledgment of receipt of the long form disclosures; and 
(3) permits the customer to cancel the purchase of the contract without 
penalty within 30 days after the bank has mailed the long form 
disclosures to the customer.
    The final rule also eliminates the requirement that the customer's 
election to purchase be in a separate document, and thus better 
harmonizes this provision with the requirements of the TILA.\32\ 
Similarly, the rule imposes no requirement that the customer's written 
acknowledgment of receipt of disclosures be in a separate document. The 
final rule clarifies that the standard for the form of the election and 
acknowledgment information is the same as for the form of disclosures 
(which is also the same standard contained in part 14 of our rules). 
The information must be conspicuous, simple, direct, readily 
understandable, and designed to call attention to their significance. 
The rule also adds a statement that the election and acknowledgment 
will satisfy these standards if they conform with the requirements in 
Sec.  37.6.
---------------------------------------------------------------------------

    \32\ Regulation Z permits a creditor to exclude from the finance 
charge the charge or premium paid for voluntary debt cancellation 
coverage provided certain conditions are met. One of those 
conditions requires that the consumer sign or initial an affirmative 
written request for coverage after receiving the disclosures 
required by Regulation Z, but there is no requirement that the 
affirmative written request be contained in a separate document. See 
12 CFR 226.4(d)(3)(i)(C).
---------------------------------------------------------------------------

    Finally, the provision in proposed Sec.  37.4 permitting the 
customer's affirmative election to be made electronically has been 
moved to Sec.  37.7(d) and modified to include the customer's 
acknowledgment of receipt of the disclosures.

Safety and Soundness Requirement (Section 37.8)

    The OCC's prior regulation on DCCs (12 CFR 7.1013) permitted, but 
did not require, banks to establish the reserves necessary to enable 
them to enter into DCCs. The proposed rule required national banks to 
establish a separate loss reserve and to maintain the reserve at a 
level adequate to conduct this business in a safe and sound manner. As 
an alternative, the proposed rule also permitted a national bank to 
obtain third-party insurance to cover ``expected losses.''
    The commenters were divided about whether the OCC should retain the 
proposed requirement for an ``identifiable loss reserve.'' Some 
commenters, however, pointed out that the reserve requirement, as 
drafted, may not accurately reflect current accounting practices and 
the standards established by generally accepted accounting principles 
for recording the income and liabilities associated with DCCs and DSAs. 
One commenter, for example, said that the OCC should distinguish 
between reserve requirements for DCCs, which are based on future losses 
in the credit accounts and already included in the loan loss reserves, 
and DSAs, which need only address foregone interest payments. This 
commenter also said that losses on the two types of products may vary 
widely and that banks should be permitted to reserve separately on 
each.
    The OCC's recent supervisory experience indicates that 
methodologies for recognizing losses may appropriately vary depending 
on whether the product requires the bank to forgive the debt or only 
forego interest income for a period of time. These methodologies vary 
further and are more complex if the product has both debt cancellation 
and debt suspension features or if the bank securitizes the loans 
associated with the DCCs or DSAs.
    For these reasons, we have concluded that the loss reserve 
requirement contained in the proposal is not sufficiently flexible to 
permit appropriate management and recording of anticipated losses in 
the variety of situations that occur in actual practice. Accordingly, 
the final rule replaces that requirement with a requirement that banks 
must establish and maintain effective risk management and control 
processes over its DCCs and DSAs. Such processes include appropriate 
recognition and financial reporting of income, expenses, assets, 
liabilities, and appropriate treatment of all expected and unexpected 
losses associated with the products. The final rule also requires a 
bank to assess the adequacy of its internal control and risk mitigation 
activities, which would include, if appropriate, the bank's purchase of 
third-party insurance, in view of the nature and scope of its DCC and 
DSA programs.

IV. Summary of the Final Rule

    New part 37 defines the relevant terms, including ``debt 
cancellation contract'' and ``debt suspension agreement.''
    The rule prohibits certain practices for banks that provide DCCs or 
DSAs. These practices are: tying the approval or terms of an extension 
of credit to a customer's purchase of a DCC or DSA; engaging in 
misleading advertisements or practices; retaining a right to modify a 
DCC or DSA unilaterally, unless the modification benefits the customer 
or the customer has a reasonable opportunity to cancel without penalty; 
and charging a single, lump-sum fee for a DCC or DSA issued in 
connection with a residential mortgage loan.
    The rule permits a bank to offer a DCC or DSA that makes no 
provision for a refund of fees but, if the bank does so, it also must 
offer the customer a bona fide option to buy the product that includes 
a refund feature.
    For loans other than residential mortgage loans, the bank may offer 
the customer the option of paying the fee for the associated DCC or DSA 
in a single, lump sum; but if it does, it also must offer a bona fide 
option of paying the fee for that contract in monthly or other periodic 
payments. If the bank offers the option to finance the single payment 
fee, it must disclose to the customer whether the customer may cancel 
the product and receive a refund and any time limits that apply to the 
customer's right to cancel.
    The rule also requires that national banks disclose certain 
information to their customers. The rule accommodates the methods that 
national banks use to market DCCs and DSAs by permitting the use of 
abbreviated disclosures in marketing circumstances--including telephone 
solicitations and ``take one'' applications--where full disclosure of 
the terms most relevant to the consumer's decision to purchase is not 
practicable.
    The abbreviated or ``short form'' disclosures that the rule 
requires include:
    [sbull] Disclosure that the decision to buy a DCC or DSA is 
optional and whether or not the customer purchases the product will not 
affect the customer's application for credit or terms of any existing 
loan;

[[Page 58972]]

    [sbull] Disclosure that if a no-refund product is offered, a 
product with a refund feature also is available;
    [sbull] Disclosure for DCCs or DSAs offered in connection with 
loans other than residential mortgage loans, that if the customer may 
elect to finance a single payment, lump sum fee, the customer also has 
the option to pay the fee in periodic payments, and a statement about 
the effect of the customer's cancellation of the DCC or DSA before 
expiration of the term of the loan;
    [sbull] A statement that the customer will receive additional 
information before being obligated to pay for the DCC or DSA; and
    [sbull] A statement that certain eligibility requirements, 
conditions, and exclusions apply that may affect the customer's ability 
to claim benefits under the DCC or DSA are described more fully in the 
``long-form'' disclosures that the rule also requires.
    The ``long-form'' disclosures may be given after the bank's initial 
marketing occurs but generally must be given prior to the completion of 
the sale of the product. If the solicitation occurs when the customer 
applies for credit in person, then the long form disclosures must be 
given at that time. The information required to be disclosed in the 
long form includes:
    [sbull] Disclosure that the decision to buy a DCC or DSA is 
optional and whether or not the customer purchases the product will not 
affect the customer's application for credit or terms of any existing 
loan;
    [sbull] Disclosure that in the case of a DSA, the DSA only 
suspends, and does not cancel, the customer's obligation to pay the 
associated debt;
    [sbull] Disclosure, if applicable, that the customer may not incur 
additional charges under its loan agreement if the DCC or DSA is 
activated;
    [sbull] An explanation of the circumstances in which the customer 
has the right to cancel the DCC or DSA; and
    [sbull] A description of any applicable eligibility requirements, 
conditions, or exclusions, which may be provided either in the 
disclosure form itself or by reference to particular provisions of the 
DCC or DSA.
    The disclosure requirements are complemented by a requirement that 
a national bank generally obtain the customer's written acknowledgment 
of his or her receipt of the required disclosures and an affirmative 
election to purchase the DCC or DSA before completing the sale. Like 
the disclosure requirements, these provisions of the rule are also 
tailored to accommodate the use of sales methods--such as by 
telephone--where immediate receipt of a written acknowledgment is not 
practicable.
    The rule requires that disclosures and acknowledgments and 
affirmative elections be presented in a form that is simple, direct, 
readily understandable, and designed to call attention to the nature 
and significance of the information provided. Disclosures must also be 
meaningful, and the rule gives examples of methods--such as spacing and 
type styles--that may be used to satisfy that standard.
    Appendices to the rule contain the two sample forms of disclosure: 
the ``short form'' for use in situations where the abbreviated 
disclosures may be used, and the ``long form'' for use thereafter to 
ensure that the customer is adequately informed about the key terms of 
the DCC or DSA prior to completing the purchase. Banks are required to 
make only the disclosures that are appropriate to the product offered. 
The forms of disclosure are illustrative of the wording and format a 
bank could use to comply with the rule's disclosure requirements. Banks 
that make disclosures in a form substantially similar to the forms 
provided in the rule will be deemed to satisfy the disclosure 
requirements. These particular forms are not mandatory, however, and a 
bank may elect to use different wording or a different format, as long 
as the approach chosen satisfies the substance of the applicable 
requirements.
    Finally, the rule contains a safety and soundness requirement that 
a national bank that offers DCCs or DSAs must manage the risks 
associated with these products in accordance with safe and sound 
banking principles.
    The rule also requires a bank to establish and maintain effective 
risk management and control processes, including appropriate 
recognition and financial reporting of income, expenses, assets, and 
liabilities associated with the products and adequate internal control 
and risk mitigation measures.
Effective Date
    Two commenters requested that the OCC delay the effective date of 
the final rule until one year from the date of its publication. Another 
commenter requested a delayed effective date of six months to a year. 
Each of these commenters stressed that the rule will require banks that 
currently offer DCCs and DSAs to review their programs, create new 
forms, and train employees to comply with new procedures. One commenter 
thought that the adjustments to marketing and methods necessary to 
implement the regulations governing DCCs would be comparable to those 
required to implement the consumer protections for bank sales of 
insurance, which also required new disclosures. Part 14 originally had 
an effective date of 120 days, but that transition period was later 
extended to a total of nine months.
    The final rule has a delayed effective date of nine months. We 
agree with the commenters that we should be guided by our experience in 
implementing part 14. The final rule requires two types of disclosures 
and prohibits a number of practices that currently are not barred. 
Furthermore, unlike the sale of insurance products, DCCs and DSAs are 
offered in connection with an extension of credit, which will require 
banks to coordinate the disclosures in the final rule with disclosures 
they are required to make under TILA.

V. Regulatory Analysis

A. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995, the OCC may not conduct or sponsor, and a respondent is not 
required to respond to, an information collection unless it displays a 
currently valid Office of Management and Budget (OMB) control number.
    The OCC submitted the collection of information requirements 
contained in the notice of proposed rulemaking to the Office of 
Management and Budget
    (OMB) for review and received approval under OMB Control Number 
1557-0224.
    The revision of the collection of information requirements 
contained in this final rule have been submitted to the OMB for review.
    The final rule retains much of the content of the disclosures 
prescribed by the proposed rule, but revises the disclosure process so 
that it more readily accommodates the methods banks use to market and 
sell DCCs and DSAs. The final rule specifies which disclosures must be 
given at different stages of the marketing and sales process.
    The final rule provides two forms of disclosure that serve as 
models for satisfying the requirements of the rule. Those two 
disclosure forms are set forth in appendices to the final rule. 
Appendix A sets out a short form of disclosure suitable for use in 
telemarketing and various written solicitations, while Appendix B 
provides a more detailed long form of disclosure that a customer 
generally will receive prior to purchasing the contract. Use of the 
forms is not mandatory. A

[[Page 58973]]

bank may adjust the form and wording of its disclosures so long as the 
requirements of the regulation are met.
    The final rule generally requires a bank to disclose information 
about a DCC or DSA orally in the short form and in writing in the long 
form. In the case of solicitations through written materials such as 
mail inserts or ``take one'' applications, however, the bank may 
provide the short form disclosures in writing. The final rule also 
permits short and long form disclosures to be made electronically.
Comments Received
    The OCC received two comments regarding the burden imposed by the 
proposed rule. Both commenters stated that the amount of time required 
to develop the required disclosures was greater than the OCC's estimate 
of 10 hours. The first commenter, a large national bank, stated that 
developing the required disclosures would involve approximately 25 
hours to consider legal, operational, and marketing issues. However, if 
the disclosures were modified in accordance with the recommendations in 
its comment letter, the commenter estimated that the amount of time 
would be approximately 15 hours. We believe that modifications to the 
timing and manner of the required disclosures address most of the 
commenter's objections.
    Notwithstanding these changes, upon further consideration of the 
paperwork burdens likely to be imposed as a result of the final rule, 
the OCC has estimated that the burden imposed on the average national 
bank offering DCCs and DSAs is likely to be 24 hours per bank.
    The second commenter mentioned the increased burden associated with 
the requirements that the disclosures be in writing and separate from 
the loan application. The commenter contended that, particularly for 
credit cards banks, the total cost of creating, print, and distributing 
new forms could outweigh any benefit a national bank might gain from 
selling DCCs and DSAs. As described in the discussion above, 
modifications in the proposed rule eliminate the separate document 
requirement and permit oral disclosure in certain circumstances. In 
addition, we believe that the 9-month delayed effective date will 
enable banks to minimize costs. They should have sufficient lead time 
to deplete their current supply of forms, revise forms to be used once 
the rule becomes effective, and include the required disclosure in 
their next print run.
Disclosure Requirements
    Section 37.6 requires a bank to provide the following disclosures, 
as appropriate:
    [sbull] Anti-tying disclosure--The final rule requires a bank to 
inform the customer that neither its decision whether to approve a loan 
nor the terms and conditions of the loan are conditioned on the 
purchase of a DCC or DSA. This disclosure appears in both the short 
form and the long form (``This product is optional'').
    [sbull] Explanation of debt suspension agreement--The final rule 
requires a bank to disclose that if a customer activates the agreement, 
the customer's duty to pay the loan principal and interest is only 
suspended and the customer must fully repay the loan after the period 
of suspension has expired. This disclosure appears in the long form 
(``Explanation of debt suspension agreement'').
    [sbull] Disclosure of the amount of the fee--The final rule 
requires a bank to make disclosures regarding the amount of the fee. 
The disclosure must differ depending on whether the credit is open-end 
or closed-end. In the case of closed-end credit, the bank must disclose 
the total fee. In the case of open-end credit, the bank must either: 
(1) disclose that the periodic fee is based on the account balance 
multiplied by a unit cost and provide the unit cost, or (2) disclose 
the formula used to compute the fee. This disclosure appears in the 
long form (``Amount of fee'').
    [sbull] Disclosure concerning lump sum payment of fee--The final 
rule requires a bank to disclose, where appropriate, that a customer 
has the option to pay the fee in a single payment or in periodic 
payments. This disclosure is not appropriate in the case of a DCC or 
DSA provided in connection with a home mortgage loan since, under the 
final rule, the option to pay the fee in a single payment is not 
available in that case.
    The final rule also requires a bank to disclose that adding the fee 
to the amount borrowed will increase the cost of the contract. This 
disclosure appears in the both the short form and long form (``Lump sum 
payment of fee'').
    [sbull] Disclosure concerning lump sum payment of fee with no 
refund--The final rule requires a bank to disclose that the customer 
has the option to choose a contract with or without a refund provision. 
This disclosure appears in both the short form and long form (``Lump 
sum payment of fee with no refund''). This disclosure also contains a 
sentence that states that prices of refund and no-refund products are 
likely to differ.
    [sbull] Disclosure concerning refund of fee paid in lump sum--The 
final rule requires that if a bank permits a customer to pay the fee in 
a single payment and to add the fee to the amount borrowed, the bank 
must disclose the bank's cancellation policy. The disclosure informs 
the customer that the DCC or DSA may be canceled at any time for a 
refund, within a specified number of days for a full refund, or at any 
time with no refund. This disclosure appears in both the short form and 
long form (``Refund of fee paid in lump sum'').
    [sbull] Disclosure concerning whether use of credit line is 
restricted--The final rule requires a bank to inform a customer if the 
customer's activation of the contract would prohibit the customer from 
incurring additional charges or using the credit line. This disclosure 
appears in the long form (``Use of card or credit line restricted'').
    [sbull] Disclosure concerning termination of a DCC or DSA--The 
final rule requires a bank to explain the circumstances under which a 
customer or the bank could terminate the contract if termination is 
permitted during the life of the loan. This disclosure appears in the 
long form (``Termination of [PRODUCT NAME]'').
    [sbull] Disclosure concerning additional disclosures--The final 
rule requires a bank to inform consumers that the bank will provide 
additional information before the customer is required to pay for the 
product. This disclosure appears in the short form (``Additional 
disclosures'').
    [sbull] Disclosure pertaining to eligibility requirements, 
conditions, and exclusions--The final rule requires a bank to describe 
any material limitations relating to the DCC or DSA. This disclosure 
appears on both the short form and the long form (``Eligibility 
requirements, conditions, and exclusions''). The content of the short 
and long form may vary, depending on whether a bank elects to provide a 
summary of the conditions and exclusions in the long form disclosures 
or refer the customer to the pertinent paragraphs in the contract. The 
short form requires a bank to instruct the customer to read carefully 
both the long form disclosures and the contract for a full explanation 
of the terms of the contract. The long form gives a bank the option of 
either separately summarizing the limitations or advising the customer 
that a complete explanation of the eligibility requirements, 
conditions, and exclusions is available in the contract

[[Page 58974]]

and identifying the paragraphs where a customer may find that 
information.
Affirmative Election To Purchase and Acknowledgment of Receipt of 
Disclosures Required
    Section 37.7 requires a bank to obtain a customer's written 
affirmative election to purchase a contract and written acknowledgment 
of receipt of the disclosures required by Sec.  37.6.
    If the sale of the contract occurs by telephone, the customers 
affirmative election to purchase and acknowledgment of receipt of the 
required short form may be made orally, provided the bank maintains 
certain documentation.
    If the contract is solicited through written materials such as mail 
inserts or ``take one'' applications and the bank provides only the 
short form disclosures in the written materials, then the bank shall 
mail the acknowledgment, together with the long form disclosures, to 
the customer. The bank may not obligate the customer to pay for the 
contract until after the bank has received the customer's written 
acknowledgment of receipt of disclosures unless the bank maintains 
certain documentation.
    The affirmative election and acknowledgment may also be made 
electronically.
Burden Estimate
    The estimated total annual burden with respect to extensions of 
credit will depend on the number of banks that offer DCCs and DSAs, the 
number of consumer loan transactions per bank per year where 
disclosures are provided, and the amount of time per transaction. The 
OCC cannot at this time accurately estimate the total number of 
participating banks or the total number of consumer loan transactions 
in which disclosures are provided to individual customers because the 
OCC does not currently collect this type of data. Solely for the 
purpose of complying with the Paperwork Reduction Act, the OCC has 
estimated the annual paperwork burden assuming that 2,200 national 
banks will provide DCCs and DSAs, and the average burden associated 
with developing the disclosures would be approximately 24 hours.
    The likely respondents are national banks.
    Estimated number of respondents: 2,200 respondents.
    Estimated number of responses: 2,200 responses.
    Estimated burden hours per response: 24 hours.
    Estimated total annual burden hours: 52,800 hours.
Comments
    The OCC requests comment on appropriate ways to estimate the total 
number of participating banks, the total number of consumer loan 
transactions in which these disclosures will be provided to individual 
customers, and the burden associated with developing the disclosures 
and providing the disclosures to individual customers.
    The OCC will revisit the burden estimates when we have more 
information on the number of potential respondents and consumer loan 
transactions. The revised estimates will also reflect all comments 
received concerning the burden estimates.
    The OCC also invites comment on:
    Whether the collection of information contained in this final rule 
is necessary for the proper performance of the OCC's functions, 
including whether the information has practical utility;
    The accuracy of the OCC's estimate of the burden of the information 
collection;
    Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    Ways to minimize the burden of the information collection on the 
respondents, including the use of automated collection techniques or 
other forms of information technology; and
    Estimates of capital or start-up costs and costs of operation, 
maintenance, and purchase of services to provide information.
    Comments on the collection of information should be sent by mail to 
Joseph F. Lackey, Jr., Desk Officer, Office of Information and 
Regulatory Affairs, Attention: 1557-0224, Office of Management and 
Budget, Washington, DC 20503, or by e-mail to [email protected].
    Comments should also be sent to Jessie Dunaway, OCC Clearance 
Officer, Legislative and Regulatory Activities Division, Attention: 
1557-0224, Office of the Comptroller of the Currency, 250 E Street, SW, 
Mailstop 8-4, Washington, DC 20219. Due to disruptions in the OCC's 
mail service, commenters are encouraged to send comments by fax to 
(202) 874-4889, or by e-mail to [email protected].

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise 
required under section 604 of the RFA is not required if the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities and publishes its certification 
and short, explanatory statement in the Federal Register along with its 
rule.
    Pursuant to section 605(b) of the RFA, the OCC hereby certifies 
that this rulemaking will not have a significant economic impact on a 
substantial number of small entities.
    The final rule will apply only to those national banks that choose 
to offer DCCs or DSAs. However, the OCC has very limited data as to the 
number of national banks that currently offer these products. For 
purposes of this analysis, we have conservatively assumed that all 
national banks will offer these products.
Compliance and Recordkeeping Requirements of the Final Rule
    The final rule imposes the following conditions or requirements:
    [sbull] A national bank that offers a DCC or DSA with no refund of 
unearned fees in the event the customer terminates the DCC or DSA must 
also offer that customer the bona fide option to purchase the product 
with a refund feature;
    [sbull] A national bank is prohibited from requiring a customer to 
pay the fee for a DCC or DSA in a single payment, payable at the outset 
of the contract, if the debt that is the subject of the contract is a 
residential mortgage loan;
    [sbull] A national bank must provide customers with the short form 
disclosures at the time of solicitation;
    [sbull] A national bank must provide customers with the long form 
disclosures before the customer completes the purchase of a DCC or DSA;
    [sbull] A national bank must obtain a customer's written 
affirmative election to purchase the DCC or DSA; and
    [sbull] A national bank must obtain a customer's written 
acknowledgment of receipt of the disclosures.
    The rule provides banks significant flexibility in meeting these 
requirements. For example, in the case of telephone solicitations the 
rule permits an oral affirmation, provided the bank makes reasonable 
efforts to obtain a written affirmative election, and waives the 
requirement obtain a written acknowledgment, provided the bank makes 
reasonable efforts to obtain the acknowledgment. A bank that takes 
advantage of the special exceptions must maintain sufficient 
documentation to demonstrate that it made reasonable efforts to obtain 
the written affirmative election and written acknowledgment.

[[Page 58975]]

Costs Associated With Compliance and Recordkeeping Requirements of the 
Final Rule
    Based on input from OCC examiners and other staff, we have 
determined that national banks typically offer refundable products and 
are moving away from offering customers a lump sum DCC or DSA in 
conjunction with a mortgage loan. We have therefore concluded that 
there will be only minimal costs associated with complying with the 
requirement that a bank offer offers a DCC or DSA with a no refund DCC 
or DSA must also offer that customer the bona fide option to purchase 
the product with a refund feature and the prohibition on paying the fee 
in a single, lump sum. Accordingly, our cost estimate focuses on costs 
associated with the short form disclosure, long form disclosure, 
affirmative election, and written acknowledgment.
    We expect that national banks will incur four types of costs 
associated with these requirements: (1) Development of the short form 
disclosure, long form disclosure, affirmative election and 
acknowledgment forms; (2) distribution of the documents; (3) 
documentation requirements; and (4) employee training.
    We estimate these costs per bank to be $4,992. To determine whether 
this will have a significant impact on small banks, we considered the 
average annual net income for a small bank, which was $796,000 as of 
March 31, 2002. In light of the fact that these costs are approximately 
0.6 percent of net income, we do not find them to be significant.

C. Executive Order 12866

    The OCC has determined that the final rule does not constitute a 
``significant regulatory action'' for the purposes of Executive Order 
12866. Under the most conservative cost scenarios that the OCC can 
develop on the basis of available information, the impact of the 
proposal falls short of the thresholds established by the Executive 
Order.

D. Executive Order 13132

    Executive Order 13132 requires Federal agencies, including the OCC, 
to certify their compliance with that Order when they transmit to the 
Office of Management and Budget (OMB) any draft final regulation that 
has Federalism implications. Under the Order, a regulation has 
Federalism implications if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' In the case of a regulation that has 
Federalism implications and that preempts State law, the Order imposes 
certain consultation requirements with State and local officials; 
requires publication in the preamble of a Federalism summary impact 
statement; and requires the OCC to make available to the Director of 
the OMB any written communications submitted to us by State and local 
officials. By the terms of the Order, these requirements apply to the 
extent that they are practicable and permitted by law and, to that 
extent, must be satisfied before the OCC promulgates a final 
regulation.
    Some commenters raised issues concerning whether DCCs and DSAs 
should be regulated as insurance that could be construed as falling 
within the scope of Executive Order 13132. In the opinion of the OCC, 
however, the final regulation on DCCs and DSAs does not have Federalism 
implications. The GLBA designates the States as the appropriate 
functional regulators of national bank insurance activities.\33\ As we 
have described earlier in this preamble discussion, as a matter of law 
DCCs and DSAs are not insurance, but rather, bank products. This 
conclusion was confirmed, as to DCCs, by the Taylor case decided in 
1990. The reasoning and conclusions of the Taylor court are equally 
applicable to DSAs. Because these products are bank products and not 
insurance the framework of State insurance regulation would not apply 
to them, even in the absence of Federal regulations. While this 
regulation establishes new standards that govern national banks 
providing DCCs and DSAs, the standards are therefore not in derogation 
of State insurance law or regulation. For this reason, the regulation 
does not directly affect the States, substantially or otherwise; it 
does not alter the relationship between the national government and the 
States; and it does not alter the distribution of power and 
responsibilities among the various levels of government.
---------------------------------------------------------------------------

    \33\ GLBA sec. 301, codified at 15 U.S.C. 6711.
---------------------------------------------------------------------------

    Since the regulation does not satisfy any of the components of the 
definition of actions that have Federalism implications under Executive 
Order 13132, the provisions of the Executive Order do not apply. The 
OCC nonetheless believes that it has in material respects satisfied the 
requirements of the Order. First, the OCC has received and considered a 
number of comments from State insurance authorities, as described 
earlier in the preamble. In addition, at the end of the public comment 
period and very early in the development of the final rule, on June 18, 
2001, senior representatives of the OCC met with members of the 
National Association of Insurance Commissioners (NAIC). The concerns of 
the NAIC were memorialized in its written comment which is a part of 
the record of this rulemaking. Principally, the NAIC urged the OCC to 
adopt DCC/DSA regulations that were similar to the rate, form, and 
claims regulation imposed on insurance products under many State 
insurance regulatory regimes. For the reasons described earlier in this 
preamble, including the reason that DCCs and DSAs are not insurance, 
the OCC declined to follow that recommendation. Finally, prior to the 
publication of this final rule, the OCC has transmitted to the Director 
of OMB the written communications--that is, the comment letters--we 
have received from State officials.

E. Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Act of 1995 (Unfunded Mandates 
Act) requires that an agency prepare a budgetary impact statement 
before promulgating a rule that includes a Federal mandate that may 
result in the annual expenditure of $100 million or more in any one 
year by State, local, and tribal governments, in the aggregate, or by 
the private sector. If a budgetary impact statement is required, 
section 205 of the Unfunded Mandates Act requires an agency to identify 
and consider a reasonable number of alternatives before promulgating a 
rule.
    The OCC has determined that the final rule will not result in 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more in any one year. Accordingly, the OCC 
has not prepared a budgetary impact statement or specifically addressed 
the regulatory alternatives considered.
Solicitation of Comments on Use of ``Plain Language''
    Section 722 of the GLBA requires that the Federal banking agencies 
use ``plain language'' in all proposed and final rules published after 
January 1, 2000. We invite your comments on how to make the proposed 
rules easier to understand.

List of Subjects

12 CFR Part 7

    Credit, Insurance, Investments, National banks, Reporting and

[[Page 58976]]

recordkeeping requirements, Securities, Surety bonds.

12 CFR Part 37

    Banks, banking, Consumer protection, Debt cancellation contract, 
Debt suspension agreement, National banks, Reporting and recordkeeping 
requirements, Safety and soundness.

Authority and Issuance

    For the reasons set forth in the preamble, the OCC amends part 7 of 
chapter I of Title 12 of the Code of Federal Regulations and adds a new 
part 37 as follows:

PART 7--BANK ACTIVITIES AND OPERATIONS

    1. The authority citation for part 7 continues to read as follows:

    Authority: 12 U.S.C. 1 et seq., 93a, and 1818.

    2. Section 7.1013 is removed.

    3. Add part 37 to read as follows:

PART 37--DEBT CANCELLATION CONTRACTS AND DEBT SUSPENSION AGREEMENTS

Sec.
37.1 Authority, purpose, and scope.
37.2 Definitions.
37.3 Prohibited practices.
37.4 Refunds of fees in the event of termination or prepayment of 
the covered loan.
37.5 Method of payment of fees.
37.6 Disclosures.
37.7 Affirmative election to purchase and acknowledgment of receipt 
of disclosures required.
37.8 Safety and soundness requirement.
Appendix A to Part 37--Short Form Disclosures
Appendix B to part 37--Long Form Disclosures

    Authority: 12 U.S.C. 1 et seq., 24(Seventh), 93a, 1818.


Sec.  37.1  Authority, purpose, and scope.

    (a) Authority. A national bank is authorized to enter into debt 
cancellation contracts and debt suspension agreements and charge a fee 
therefor, in connection with extensions of credit that it makes, 
pursuant to 12 U.S.C. 24(Seventh).
    (b) Purpose. This part sets forth the standards that apply to debt 
cancellation contracts and debt suspension agreements entered into by 
national banks. The purpose of these standards is to ensure that 
national banks offer and implement such contracts and agreements 
consistent with safe and sound banking practices, and subject to 
appropriate consumer protections.
    (c) Scope. This part applies to debt cancellation contracts and 
debt suspension agreements entered into by national banks in connection 
with extensions of credit they make. National banks' debt cancellation 
contracts and debt suspension agreements are governed by this part and 
applicable Federal law and regulations, and not by part 14 of this 
chapter or by State law.


Sec.  37.2  Definitions.

    For purposes of this part:
    (a) Actuarial method means the method of allocating payments made 
on a debt between the amount financed and the finance charge pursuant 
to which a payment is applied first to the accumulated finance charge 
and any remainder is subtracted from, or any deficiency is added to, 
the unpaid balance of the amount financed.
    (b) Bank means a national bank and a Federal branch or Federal 
agency of a foreign bank as those terms are defined in part 28 of this 
chapter.
    (c) Closed-end credit means consumer credit other than open-end 
credit as defined in this section.
    (d) Contract means a debt] cancellation contract or a debt 
suspension agreement.
    (e) Customer means an individual who obtains an extension of credit 
from a bank primarily for personal, family or household purposes.
    (f) Debt cancellation contract means a loan term or contractual 
arrangement modifying loan terms under which a bank agrees to cancel 
all or part of a customer's obligation to repay an extension of credit 
from that bank upon the occurrence of a specified event. The agreement 
may be separate from or a part of other loan documents.
    (g) Debt suspension agreement means a loan term or contractual 
arrangement modifying loan terms under which a bank agrees to suspend 
all or part of a customer's obligation to repay an extension of credit 
from that bank upon the occurrence of a specified event. The agreement 
may be separate from or a part of other loan documents. The term debt 
suspension agreement does not include loan payment deferral 
arrangements in which the triggering event is the borrower's unilateral 
election to defer repayment, or the bank's unilateral decision to allow 
a deferral of repayment.
    (h) Open-end credit means consumer credit extended by a bank under 
a plan in which:
    (1) The bank reasonably contemplates repeated transactions;
    (2) The bank may impose a finance charge from time to time on an 
outstanding unpaid balance; and
    (3) The amount of credit that may be extended to the customer 
during the term of the plan (up to any limit set by the bank) is 
generally made available to the extent that any outstanding balance is 
repaid.
    (i) Residential mortgage loan means a loan secured by 1-4 family, 
residential real property.


Sec.  37.3  Prohibited practices.

    (a) Anti-tying. A national bank may not extend credit nor alter the 
terms or conditions of an extension of credit conditioned upon the 
customer entering into a debt cancellation contract or debt suspension 
agreement with the bank.
    (b) Misrepresentations generally. A national bank may not engage in 
any practice or use any advertisement that could mislead or otherwise 
cause a reasonable person to reach an erroneous belief with respect to 
information that must be disclosed under this part.
    (c) Prohibited contract terms. A national bank may not offer debt 
cancellation contracts or debt suspension agreements that contain 
terms:
    (1) Giving the bank the right unilaterally to modify the contract 
unless:
    (i) The modification is favorable to the customer and is made 
without additional charge to the customer; or
    (ii) The customer is notified of any proposed change and is 
provided a reasonable opportunity to cancel the contract without 
penalty before the change goes into effect; or
    (2) Requiring a lump sum, single payment for the contract payable 
at the outset of the contract, where the debt subject to the contract 
is a residential mortgage loan.


Sec.  37.4  Refunds of fees in the event of termination or prepayment 
of the covered loan.

    (a) Refunds. If a debt cancellation contract or debt suspension 
agreement is terminated (including, for example, when the customer 
prepays the covered loan), the bank shall refund to the customer any 
unearned fees paid for the contract unless the contract provides 
otherwise. A bank may offer a customer a contract that does not provide 
for a refund only if the bank also offers that customer a bona fide 
option to purchase a comparable contract that provides for a refund.
    (b) Method of calculating refund. The bank shall calculate the 
amount of a refund using a method at least as favorable to the customer 
as the actuarial method.

[[Page 58977]]

Sec.  37.5  Method of payment of fees.

    Except as provided in Sec.  37.3(c)(2), a bank may offer a customer 
the option of paying the fee for a contract in a single payment, 
provided the bank also offers the customer a bona fide option of paying 
the fee for that contract in monthly or other periodic payments. If the 
bank offers the customer the option to finance the single payment by 
adding it to the amount the customer is borrowing, the bank must also 
disclose to the customer, in accordance with Sec.  37.6, whether and, 
if so, the time period during which, the customer may cancel the 
agreement and receive a refund.


Sec.  37.6  Disclosures.

    (a) Content of short form of disclosures. The short form of 
disclosures required by this part must include the information 
described in appendix A to this part that is appropriate to the product 
offered. Short form disclosures made in a form that is substantially 
similar to the disclosures in appendix A to this part will satisfy the 
short form disclosure requirements of this section.
    (b) Content of long form of disclosures. The long form of 
disclosures required by this part must include the information 
described in appendix B to this part that is appropriate to the product 
offered. Long form disclosures made in a form that is substantially 
similar to the disclosures in appendix B to this part will satisfy the 
long form disclosure requirements of this section.
    (c) Disclosure requirements; timing and method of disclosures--(1) 
Short form disclosures. The bank shall make the short form disclosures 
orally at the time the bank first solicits the purchase of a contract.
    (2) Long form disclosures. The bank shall make the long form 
disclosures in writing before the customer completes the purchase of 
the contract. If the initial solicitation occurs in person, then the 
bank shall provide the long form disclosures in writing at that time.
    (3) Special rule for transactions by telephone. If the contract is 
solicited by telephone, the bank shall provide the short form 
disclosures orally and shall mail the long form disclosures, and, if 
appropriate, a copy of the contract to the customer within 3 business 
days, beginning on the first business day after the telephone 
solicitation.
    (4) Special rule for solicitations using written mail inserts or 
``take one'' applications. If the contract is solicited through written 
materials such as mail inserts or ``take one'' applications, the bank 
may provide only the short form disclosures in the written materials if 
the bank mails the long form disclosures to the customer within 3 
business days, beginning on the first business day after the customer 
contacts the bank to respond to the solicitation, subject to the 
requirements of Sec.  37.7(c).
    (5) Special rule for electronic transactions. The disclosures 
described in this section may be provided through electronic media in a 
manner consistent with the requirements of the Electronic Signatures in 
Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (d) Form of disclosures--(1) Disclosures must be readily 
understandable. The disclosures required by this section must be 
conspicuous, simple, direct, readily understandable, and designed to 
call attention to the nature and significance of the information 
provided.
    (2) Disclosures must be meaningful. The disclosures required by 
this section must be in a meaningful form. Examples of methods that 
could call attention to the nature and significance of the information 
provided include:
    (i) A plain-language heading to call attention to the disclosures;
    (ii) A typeface and type size that are easy to read;
    (iii) Wide margins and ample line spacing;
    (iv) Boldface or italics for key words; and
    (v) Distinctive type style, and graphic devices, such as shading or 
sidebars, when the disclosures are combined with other information.
    (e) Advertisements and other promotional material for debt 
cancellation contracts and debt suspension agreements. The short form 
disclosures are required in advertisements and promotional material for 
contracts unless the advertisements and promotional materials are of a 
general nature describing or listing the services or products offered 
by the bank.


Sec.  37.7  Affirmative election to purchase and acknowledgment of 
receipt of disclosures required.

    (a) Affirmative election and acknowledgment of receipt of 
disclosures. Before entering into a contract the bank must obtain a 
customer's written affirmative election to purchase a contract and 
written acknowledgment of receipt of the disclosures required by Sec.  
37.6(b). The election and acknowledgment information must be 
conspicuous, simple, direct, readily understandable, and designed to 
call attention to their significance. The election and acknowledgment 
satisfy these standards if they conform with the requirements in Sec.  
37.6(b) of this part.
    (b) Special rule for telephone solicitations. If the sale of a 
contract occurs by telephone, the customer's affirmative election to 
purchase may be made orally, provided the bank:
    (1) Maintains sufficient documentation to show that the customer 
received the short form disclosures and then affirmatively elected to 
purchase the contract;
    (2) Mails the affirmative written election and written 
acknowledgment, together with the long form disclosures required by 
Sec.  37.6 of this part, to the customer within 3 business days after 
the telephone solicitation, and maintains sufficient documentation to 
show it made reasonable efforts to obtain the documents from the 
customer; and
    (3) Permits the customer to cancel the purchase of the contract 
without penalty within 30 days after the bank has mailed the long form 
disclosures to the customer.
    (c) Special rule for solicitations using written mail inserts or 
``take one'' applications. If the contract is solicited through written 
materials such as mail inserts or ``take one'' applications and the 
bank provides only the short form disclosures in the written materials, 
then the bank shall mail the acknowledgment of receipt of disclosures, 
together with the long form disclosures required by Sec.  37.6 of this 
part, to the customer within 3 business days, beginning on the first 
business day after the customer contacts the bank or otherwise responds 
to the solicitation. The bank may not obligate the customer to pay for 
the contract until after the bank has received the customer's written 
acknowledgment of receipt of disclosures unless the bank:
    (1) Maintains sufficient documentation to show that the bank 
provided the acknowledgment of receipt of disclosures to the customer 
as required by this section;
    (2) Maintains sufficient documentation to show that the bank made 
reasonable efforts to obtain from the customer a written acknowledgment 
of receipt of the long form disclosures; and
    (3) Permits the customer to cancel the purchase of the contract 
without penalty within 30 days after the bank has mailed the long form 
disclosures to the customer.
    (d) Special rule for electronic election. The affirmative election 
and acknowledgment may be made electronically in a manner consistent 
with the requirements of the Electronic

[[Page 58978]]

Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq.


Sec.  37.8  Safety and soundness requirements.

    A national bank must manage the risks associated with debt 
cancellation contracts and debt suspension agreements in accordance 
with safe and sound banking principles. Accordingly, a national bank 
must establish and maintain effective risk management and control 
processes over its debt cancellation contracts and debt suspension 
agreements. Such processes include appropriate recognition and 
financial reporting of income, expenses, assets and liabilities, and 
appropriate treatment of all expected and unexpected losses associated 
with the products. A bank also should assess the adequacy of its 
internal control and risk mitigation activities in view of the nature 
and scope of its debt cancellation contract and debt suspension 
agreement programs.

Appendix A to Part 37--Short Form Disclosures

[sbull] This product is optional

    Your purchase of [PRODUCT NAME] is optional. Whether or not you 
purchase [PRODUCT NAME] will not affect your application for credit 
or the terms of any existing credit agreement you have with the 
bank.

[sbull] Lump sum payment of fee

[Applicable if a bank offers the option to pay the fee in a single 
payment]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    You may choose to pay the fee in a single lump sum or in 
[monthly/quarterly] payments. Adding the lump sum of the fee to the 
amount you borrow will increase the cost of [PRODUCT NAME].

[sbull] Lump sum payment of fee with no refund

[Applicable if a bank offers the option to pay the fee in a single 
payment for a no-refund DCC]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    You may choose [PRODUCT NAME] with a refund provision or without 
a refund provision. Prices of refund and no-refund products are 
likely to differ.

[sbull] Refund of fee paid in lump sum

[Applicable where the customer pays the fee in a single payment and 
the fee is added to the amount borrowed]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    [Either:] (1) You may cancel [PRODUCT NAME] at any time and 
receive a refund; or (2) You may cancel [PRODUCT NAME] within ---- 
days and receive a full refund; or (3) If you cancel [PRODUCT NAME] 
you will not receive a refund.

[sbull] Additional disclosures

    We will give you additional information before you are required 
to pay for [PRODUCT NAME]. [If applicable]: This information will 
include a copy of the contract containing the terms of [PRODUCT 
NAME].

[sbull] Eligibility requirements, conditions, and exclusions

    There are eligibility requirements, conditions, and exclusions 
that could prevent you from receiving benefits under [PRODUCT NAME].
    [Either:] You should carefully read our additional information 
for a full explanation of the terms of [PRODUCT NAME] or You should 
carefully read the contract for a full explanation of the terms of 
[PRODUCT NAME].

Appendix B to Part 37--Long Form Disclosures

[sbull] This product is optional

    Your purchase of [PRODUCT NAME] is optional. Whether or not you 
purchase [PRODUCT NAME] will not affect your application for credit 
or the terms of any existing credit agreement you have with the 
bank.

[sbull] Explanation of debt suspension agreement

[Applicable if the contract has a debt suspension feature]

    If [PRODUCT NAME] is activated, your duty to pay the loan 
principal and interest to the bank is only suspended. You must fully 
repay the loan after the period of suspension has expired. [If 
applicable]: This includes interest accumulated during the period of 
suspension.

[sbull] Amount of fee

    [For closed-end credit]: The total fee for [PRODUCT NAME] is --
--.
    [For open-end credit, either:] (1) The monthly fee for [PRODUCT 
NAME] is based on your account balance each month multiplied by the 
unit-cost, which is ------; or (2) The formula used to compute the 
fee is ----------].

[sbull] Lump sum payment of fee

[Applicable if a bank offers the option to pay the fee in a single 
payment]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    You may choose to pay the fee in a single lump sum or in 
[monthly/quarterly] payments. Adding the lump sum of the fee to the 
amount you borrow will increase the cost of [PRODUCT NAME].

[sbull] Lump sum payment of fee with no refund

[Applicable if a bank offers the option to pay the fee in a single 
payment for a no-refund DCC]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    You have the option to purchase [PRODUCT NAME] that includes a 
refund of the unearned portion of the fee if you terminate the 
contract or prepay the loan in full prior to the scheduled 
termination date. Prices of refund and no-refund products may 
differ.

[sbull] Refund of fee paid in lump sum

[Applicable where the customer pays the fee in a single payment and 
the fee is added to the amount borrowed]
[Prohibited where the debt subject to the contract is a residential 
mortgage loan]

    [Either:] (1) You may cancel [PRODUCT NAME] at any time and 
receive a refund; or (2) You may cancel [PRODUCT NAME] within ---- 
days and receive a full refund; or (3) If you cancel [PRODUCT NAME] 
you will not receive a refund.

[sbull] Use of card or credit line restricted

[Applicable if the contract restricts use of card or credit line 
when customer activates protection]

    If [PRODUCT NAME] is activated, you will be unable to incur 
additional charges on the credit card or use the credit line.

[sbull] Termination of [PRODUCT NAME]

    [Either]: (1) You have no right to cancel [PRODUCT NAME]; or (2) 
You have the right to cancel [PRODUCT NAME] in the following 
circumstances: ----------.
    [And either]: (1) The bank has no right to cancel [PRODUCT 
NAME]; or (2)The bank has the right to cancel [PRODUCT NAME] in the 
following circumstances: ----------.

[sbull] Eligibility requirements, conditions, and exclusions

    There are eligibility requirements, conditions, and exclusions 
that could prevent you from receiving benefits under [PRODUCT NAME].
    [Either]: (1) The following is a summary of the eligibility 
requirements, conditions, and exclusions. [The bank provides a 
summary of any eligibility requirements, conditions, and 
exclusions]; or (2) You may find a complete explanation of the 
eligibility requirements, conditions, and exclusions in paragraphs 
------ of the [PRODUCT NAME] agreement.

    Dated: August 16, 2002.
John D. Hawke, Jr.,
Comptroller of the Currency.
[FR Doc. 02-23765 Filed 9-18-02; 8:45 am]
BILLING CODE 4810-33-P