[Federal Register Volume 72, Number 215 (Wednesday, November 7, 2007)]
[Rules and Regulations]
[Pages 62910-62990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5349]



[[Page 62909]]

  
  
  
  
  
  
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Part II

Department of the Treasury



Office of the Comptroller of the Currency



12 CFR Part 41



Federal Reserve System

12 CFR Part 222



Federal Deposit Insurance Corporation

12 CFR Part 334



Department of the Treasury



Office of Thrift Supervision

12 CFR Part 571



National Credit Union Administration

12 CFR Part 717



Fair Credit Reporting Affiliate Marketing Regulations; Final Rule

  Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / 
Rules and Regulations  

[[Page 62910]]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 41

[Docket ID. OCC-2007-0010]
RIN 1557-AC88

FEDERAL RESERVE SYSTEM

12 CFR Part 222

[Regulation V; Docket No. R-1203]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 334

RIN 3064-AC83

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 571

[Docket ID. OTS-2007-0020]
RIN 1550-AB90

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 717


Fair Credit Reporting Affiliate Marketing Regulations

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

ACTION: Final rules.

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SUMMARY: The OCC, Board, FDIC, OTS, and NCUA (Agencies) are publishing 
final rules to implement the affiliate marketing provisions in section 
214 of the Fair and Accurate Credit Transactions Act of 2003, which 
amends the Fair Credit Reporting Act. The final rules generally 
prohibit a person from using information received from an affiliate to 
make a solicitation for marketing purposes to a consumer, unless the 
consumer is given notice and a reasonable opportunity and a reasonable 
and simple method to opt out of the making of such solicitations.

DATES: Effective Date: These rules are effective January 1, 2008.
    Mandatory Compliance Date: October 1, 2008.

FOR FURTHER INFORMATION CONTACT: OCC: Amy Friend, Assistant Chief 
Counsel, (202) 874-5200; Michael Bylsma, Director, or Stephen Van 
Meter, Assistant Director, Community and Consumer Law, (202) 874-5750; 
or Patrick T. Tierney, Senior Attorney, Legislative and Regulatory 
Activities Division, (202) 874-5090, Office of the Comptroller of the 
Currency, 250 E Street, SW., Washington, DC 20219.
    Board: David A. Stein, Counsel; Ky Tran-Trong, Counsel; or Amy E. 
Burke, Attorney, Division of Consumer and Community Affairs, (202) 452-
3667 or (202) 452-2412; or Kara Handzlik, Attorney, Legal Division, 
(202) 452-3852, Board of Governors of the Federal Reserve System, 20th 
and C Streets, NW., Washington, DC 20551. For users of a 
Telecommunications Device for the Deaf (TDD) only, contact (202) 263-
4869.
    FDIC: Ruth R. Amberg, Senior Counsel, (202) 898-3736, or Richard M. 
Schwartz, Counsel, Legal Division, (202) 898-7424; April Breslaw, 
Chief, Compliance Section, (202) 898-6609; David P. Lafleur, Policy 
Analyst, Division of Supervision and Consumer Protection, (202) 898-
6569, Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
    OTS: Suzanne McQueen, Consumer Regulations Analyst, Compliance and 
Consumer Protection Division, (202) 906-6459; or Richard Bennett, 
Senior Compliance Counsel, (202) 906-7409, Office of Thrift 
Supervision, 1700 G Street, NW., Washington, DC 20552.
    NCUA: Linda Dent, Staff Attorney, Office of General Counsel, (703) 
518-6540, National Credit Union Administration, 1775 Duke Street, 
Alexandria, VA 22314-3428.

SUPPLEMENTARY INFORMATION:

I. Background

The Fair Credit Reporting Act

    The Fair Credit Reporting Act (FCRA or Act), which was enacted in 
1970, sets standards for the collection, communication, and use of 
information bearing on a consumer's credit worthiness, credit standing, 
credit capacity, character, general reputation, personal 
characteristics, or mode of living. (15 U.S.C. 1681-1681x.) In 1996, 
the Consumer Credit Reporting Reform Act extensively amended the FCRA. 
(Pub. L. 104-208, 110 Stat. 3009.)
    The FCRA, as amended, provides that a person may communicate to an 
affiliate or a non-affiliated third party information solely as to 
transactions or experiences between the consumer and the person without 
becoming a consumer reporting agency.\1\ In addition, the communication 
of such transaction or experience information among affiliates will not 
result in any affiliate becoming a consumer reporting agency. See FCRA 
Sec. Sec.  603(d)(2)(A)(i) and (ii).
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    \1\ The FCRA creates substantial obligations for a person that 
meets the definition of a ``consumer reporting agency'' in section 
603(f) of the statute.
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    Section 603(d)(2)(A)(iii) of the FCRA provides that a person may 
communicate ``other'' information--that is, information that is not 
transaction or experience information--among its affiliates without 
becoming a consumer reporting agency if it is clearly and conspicuously 
disclosed to the consumer that such information may be communicated 
among affiliates and the consumer is given an opportunity, before the 
information is communicated, to ``opt out'' or direct that the 
information not be communicated among such affiliates, and the consumer 
has not opted out.

The Fair and Accurate Credit Transactions Act of 2003

    The President signed into law the Fair and Accurate Credit 
Transactions Act of 2003 (FACT Act) on December 4, 2003. (Pub. L. 108-
159, 117 Stat. 1952.) In general, the FACT Act amends the FCRA to 
enhance the ability of consumers to combat identity theft, increase the 
accuracy of consumer reports, restrict the use of medical information 
in credit eligibility determinations, and allow consumers to exercise 
greater control regarding the type and number of solicitations they 
receive.
    Section 214 of the FACT Act added a new section 624 to the FCRA. 
This provision gives consumers the right to restrict a person from 
using certain information obtained from an affiliate to make 
solicitations to that consumer. Section 624 generally provides that if 
a person receives certain consumer eligibility information from an 
affiliate, the person may not use that information to make 
solicitations to the consumer about its products or services, unless 
the consumer is given notice and an opportunity and a simple method to 
opt out of such use of the information, and the consumer does not opt 
out. The statute also provides that section 624 does not apply, for 
example, to a person using eligibility information: (1) To make 
solicitations to a consumer with whom the person has a pre-existing 
business relationship; (2) to perform services for another affiliate 
subject to certain conditions; (3) in response to a communication 
initiated by the

[[Page 62911]]

consumer; or (4) to make a solicitation that has been authorized or 
requested by the consumer. Unlike the FCRA affiliate sharing opt-out 
and the Gramm-Leach-Bliley Act (GLBA) non-affiliate sharing opt-out, 
which apply indefinitely, section 624 provides that a consumer's 
affiliate marketing opt-out election must be effective for a period of 
at least five years. Upon expiration of the opt-out period, the 
consumer must be given a renewal notice and an opportunity to renew the 
opt-out before information received from an affiliate may be used to 
make solicitations to the consumer.
    Section 624 governs the use of information by an affiliate, not the 
sharing of information among affiliates, and thus is distinct from the 
affiliate sharing opt-out under section 603(d)(2)(A)(iii) of the FCRA. 
Nevertheless, the affiliate marketing and affiliate sharing opt-outs 
and the information subject to the two opt-outs overlap to some extent. 
As noted above, the FCRA allows transaction or experience information 
to be shared among affiliates without giving the consumer notice and an 
opportunity to opt out, but provides that ``other'' information, such 
as information from credit reports and credit applications, may not be 
shared among affiliates without giving the consumer notice and an 
opportunity to opt out. The new affiliate marketing opt-out applies to 
both transaction or experience information and ``other'' information. 
Thus, certain information will be subject to two opt-outs, a sharing 
opt-out and a marketing use opt-out.
    Section 214(b) of the FACT Act requires the Agencies, the Federal 
Trade Commission (FTC), and the Securities and Exchange Commission 
(SEC) to prescribe regulations, in consultation and coordination with 
each other, to implement the FCRA's affiliate marketing opt-out 
provisions. In adopting regulations, each Agency must ensure that the 
affiliate marketing notification methods provide a simple means for 
consumers to make choices under section 624, consider the affiliate 
sharing notification practices employed on the date of enactment by 
persons subject to section 624, and ensure that notices may be 
coordinated and consolidated with other notices required by law.

II. The Interagency Proposal

    On July 15, 2004, the Agencies published a notice of proposed 
rulemaking in the Federal Register (69 FR 42502) to implement section 
214 of the FACT Act.\2\ The proposal defined the key terms ``pre-
existing business relationship'' and ``solicitation'' essentially as 
defined in the statute. The Agencies did not propose to include 
additional circumstances within the meaning of ``pre-existing business 
relationship'' or other types of communications within the meaning of 
``solicitation.''
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    \2\ The FTC published its proposed affiliate marketing rule in 
the Federal Register on June 15, 2004 (69 FR 33324). The SEC 
published its proposed affiliate marketing rule in the Federal 
Register on July 14, 2004 (69 FR 42301).
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    To address the scope of the affiliate marketing opt-out, the 
proposal defined ``eligibility information'' to mean any information 
the communication of which would be a ``consumer report'' if the 
statutory exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the FCRA for transaction or experience 
information and for ``other'' information that is subject to the 
affiliate-sharing opt-out did not apply. The Agencies substituted the 
term ``eligibility information'' for the more complicated statutory 
language regarding the communication of information that would be a 
consumer report, but for clauses (i), (ii), and (iii) of section 
603(d)(2)(A) of the FCRA.\3\ In addition, the proposal incorporated 
each of the scope limitations contained in the statute, such as the 
pre-existing business relationship exception.
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    \3\ Under section 603(d)(1) of the FCRA, a ``consumer report'' 
means any written, oral, or other communication of any information 
by a consumer reporting agency bearing on a consumer's credit 
worthiness, credit standing, credit capacity, character, general 
reputation, personal characteristics, or mode of living which is 
used or expected to be used or collected in whole or in part for the 
purpose of serving as a factor in establishing the consumer's 
eligibility for credit or insurance to be used primarily for 
personal, family, or household purposes, employment purposes, or any 
other purpose authorized in section 604 of the FCRA. 15 U.S.C. 
1681a(d).
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    Section 624 does not state which affiliate must give the consumer 
the affiliate marketing opt-out notice. The proposal provided that the 
person communicating information about a consumer to its affiliate 
would be responsible for satisfying the notice requirement, if 
applicable. A rule of construction provided flexibility to allow the 
notice to be given by the person that communicates information to its 
affiliate, by the person's agent, or through a joint notice with one or 
more other affiliates. The Agencies designed this approach to provide 
flexibility and to facilitate the use of a single coordinated notice, 
while taking into account existing affiliate sharing notification 
practices. At the same time, the approach sought to ensure that the 
notice would be effective because it generally would be provided by or 
on behalf of an entity from which the consumer would expect to receive 
important notices, and would not be provided along with solicitations.
    The proposal also provided guidance on the contents of the opt-out 
notice, what constitutes a reasonable opportunity to opt out, 
reasonable and simple methods of opting out, and the delivery of opt-
out notices. Finally, the proposal provided guidance on the effect of 
the limited duration of the opt-out and the requirement to provide an 
extension notice upon expiration of the opt-out period.

III. Overview of Comments Received

    Each agency received the following number of comment letters: OCC--
30, Board--42, FDIC--29, OTS--20, NCUA--18. Many commenters sent copies 
of the same letter to more than one Agency. The Agencies received 
comments from a variety of banks, thrifts, credit unions, credit card 
companies, mortgage lenders, other non-bank creditors, and industry 
trade associations. The Agencies also received comments from consumer 
groups, the National Association of Attorneys General (``NAAG''), and 
individual consumers. In addition, the Agencies considered comments 
submitted to the FTC and the SEC.
    Most industry commenters objected to several key aspects of the 
proposal. The most significant areas of concern raised by industry 
commenters related to which affiliate would be responsible for 
providing the notice, the scope of certain exceptions to the notice and 
opt-out requirement, and the content or the inclusion of definitions 
for terms such as ``clear and conspicuous'' and ``pre-existing business 
relationship.'' Consumer groups and NAAG generally supported the 
proposal, although these commenters believed that the proposal could be 
strengthened in certain respects. A more detailed discussion of the 
comments is contained in the Section-by-Section Analysis below.

IV. Section-by-Section Analysis

Section --.1 Purpose, Scope, and Effective Dates

    Section --.1 of the proposal set forth the purpose and scope of 
each Agency's regulations. The Agencies received few comments on this 
section. Some of the Agencies have revised this section in the final 
rules for clarity and to reflect the fact that the institutions subject 
to the FCRA regulation will vary in different subparts of the Agencies' 
FCRA rules. The coverage provision for

[[Page 62912]]

each Agency's affiliate marketing rule is set forth in Subpart C, Sec.  
--.20(a).

Section --.2 Examples

    Proposed Sec.  ----.2 described the scope and effect of the 
examples included in the proposed rule. Most commenters supported the 
proposed use of non-exclusive examples to illustrate the operation of 
the rules. One commenter, concerned that the use of examples would 
increase the risk of litigation, urged the Agencies to delete all 
examples.
    The Agencies adopted Sec.  --.2 as part of the final medical 
information rules. See 70 FR 70664 (Nov. 22, 2005). The comments 
received in this rulemaking do not warrant any revisions to Sec.  --.2. 
The Agencies do not believe the use of illustrative examples will 
materially increase the risk of litigation, but rather will provide 
useful guidance for compliance purposes, which may alleviate litigation 
risks for institutions. Therefore, it is unnecessary to re-publish 
Sec.  --.2 in these final rules.
    As Sec.  --.2 states, examples in a paragraph illustrate only the 
issue described in the paragraph and do not illustrate any other issue 
that may arise in the part. Similarly, the examples do not illustrate 
any issues that may arise under other laws or regulations.\4\
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    \4\ NCUA has modified examples in its final rule text where the 
original example referenced products or services impermissible for 
federal credit unions.
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Section --.3 Definitions

    Section --.3 of the proposal contained definitions for the 
following terms: ``Act,'' ``affiliate'' (as well as the related terms 
``company'' and ``control''); ``clear and conspicuous''; ``consumer''; 
``eligibility information''; ``person''; ``pre-existing business 
relationship''; ``solicitation''; and, except for the OCC's proposal, 
``you.''
    The Agencies have previously defined the terms ``Act,'' 
``affiliate,'' ``company,'' ``consumer,'' and ``person,'' along with a 
definition of ``common ownership or common corporate control'' as a 
substitute for the definition of ``control,'' as part of the final 
medical information rules. See 70 FR 70664 (Nov. 22, 2005). Those 
definitions that elicited comment are discussed below. However, it is 
unnecessary to re-publish Sec.  --.3 in these final rules because the 
Agencies have not revised these definitions.
    The Agencies have moved the definitions of ``clear and 
conspicuous,'' ``eligibility information,'' ``pre-existing business 
relationship,'' ``solicitation,'' and ``you'' or ``bank'' to Subpart C, 
Sec.  --.20(b). Three of these terms relate solely to the affiliate 
marketing provisions and, thus, are more appropriately defined in 
Subpart C. For the reasons discussed below, the Agencies also believe 
that it is more appropriate to define ``clear and conspicuous'' for the 
limited purpose of the affiliate marketing rules. Each of these 
definitions is discussed in detail below.
Affiliate, Common Ownership or Common Corporate Control, and Company
    Several FCRA provisions apply to information sharing with persons 
``related by common ownership or affiliated by corporate control,'' 
``related by common ownership or affiliated by common corporate 
control,'' or ``affiliated by common ownership or common corporate 
control.'' E.g., FCRA, sections 603(d)(2), 615(b)(2), and 625(b)(2). 
Each of these provisions was enacted as part of the 1996 amendments to 
the FCRA. Similarly, section 2 of the FACT Act defines the term 
``affiliate'' to mean ``persons that are related by common ownership or 
affiliated by corporate control.'' In contrast, the GLBA defines 
``affiliate'' to mean ``any company that controls, is controlled by, or 
is under common control with another company.'' See 15 U.S.C. 6809(6).
    In the proposal, the Agencies sought to harmonize the various FCRA 
and FACT Act formulations by defining ``affiliate'' to mean ``any 
person that is related by common ownership or common corporate control 
with another person.'' Industry commenters generally supported the 
Agencies' goal of harmonizing the various FCRA definitions of 
``affiliate'' for consistency. Many of these commenters, however, 
believed that the most effective way to do this was for the Agencies to 
incorporate into the FCRA the definition of ``affiliate'' used in the 
GLBA privacy regulations. In addition, a few industry commenters urged 
the Agencies to incorporate into the definition of ``affiliate'' 
certain concepts from California's Financial Information Privacy Act so 
as to exempt certain classes of corporate affiliates from the 
restrictions on affiliate sharing or marketing.\5\
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    \5\ These commenters noted that the California law places no 
restriction on information sharing among affiliates if they: (1) Are 
regulated by the same or similar functional regulators; (2) are 
involved in the same broad line of business, such as banking, 
insurance, or securities; and (3) share a common brand identity.
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    In the final medical information rules, the Agencies defined the 
term ``affiliate'' to mean a company that is related by common 
ownership or common corporate control with another company. See 70 FR 
70,664 (Nov. 22, 2005).\6\ The Agencies substituted the term 
``company'' for ``person'' in the definition because they did not 
believe that certain types of persons, such as individuals, could be 
related by common ownership or common corporate control.
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    \6\ For purposes of the regulation, an ``affiliate'' includes an 
operating subsidiary of a bank or savings association, and a credit 
union service organization that is controlled by a federal credit 
union.
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    The Agencies do not believe there is a substantive difference 
between the FACT Act definition of ``affiliate'' and the definition of 
``affiliate'' in section 509 of the GLBA. The Agencies are not aware of 
any circumstances in which two entities would be affiliates for 
purposes of the FCRA but not for purposes of the GLBA privacy rules, or 
vice versa. Also, even though affiliated entities have had to comply 
with different FCRA and GLBA formulations of the ``affiliate'' 
definition since 1999, commenters did not identify any specific 
compliance difficulties or uncertainty resulting from the fact that the 
two statutes use somewhat different wording to describe what 
constitutes an affiliate.
    As explained in the supplementary information to the final medical 
information rules, the Agencies declined to incorporate into the 
definition of ``affiliate'' exceptions for entities regulated by the 
same or similar functional regulators, entities in the same line of 
business, or entities that share a common brand or identity. See 70 FR 
70,665 (Nov. 22, 2005). These exceptions were incorporated into the 
California Financial Information Privacy Act in August 2003.\7\ 
Congress, however, did not incorporate these exceptions from California 
law into the definition of ``affiliate'' when it enacted the FACT Act 
at the end of 2003. Accordingly, the Agencies believe that the approach 
followed in the final medical information rules best effectuates the 
intent of Congress.
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    \7\ See Cal. Financial Code Sec.  4053(c).
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    Under the GLBA privacy rules, the definition of ``control'' 
determines whether two or more entities meet the definition of 
``affiliate.'' \8\ The Agencies included the same definition of 
``control'' in the proposal and received no comments on the proposed 
definition. The Agencies interpret the phrase ``related by common 
ownership or common corporate control'' used in the FACT Act to have 
the same meaning

[[Page 62913]]

as ``control'' in the GLBA privacy rules. For example, if an individual 
owns 25 percent of two companies, the companies would be affiliates 
under both the GLBA and FCRA definitions. However, the individual would 
not be considered an affiliate of the companies because the definition 
of ``affiliate'' is limited to companies. For purposes of clarity, the 
final medical information rules defined the term ``control'' to mean 
``common ownership or common corporate control'' in order to track more 
closely the terminology used in the FACT Act. See 70 FR 70,664 (Nov. 
22, 2005).\9\
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    \8\ See 12 CFR 40.3(g), 216.3(g), 332.3(g), 573.3(g), and 
716(g).
    \9\ For purposes of the regulation, NCUA presumes that a federal 
credit union has a controlling influence over the management or 
policies of a credit union service organization if it is 67 percent 
owned by credit unions.
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    The proposal also defined the term ``company'' to mean any 
corporation, limited liability company, business trust, general or 
limited partnership, association, or similar organization. The proposed 
definition of ``company'' excluded some entities that are ``persons'' 
under the FCRA, including estates, cooperatives, and governments or 
governmental subdivisions or agencies, as well as individuals. The 
Agencies received no comments on the proposed definition of 
``company,'' which was adopted in the final medical information rules.
    The Agencies adopted definitions of ``affiliate,'' ``common 
ownership and common corporate control,'' and ``company'' in the final 
FCRA medical information rules. See 70 FR 70,664 (Nov. 22, 2005). It is 
unnecessary to re-publish those definitions in these rules.
Consumer
    Proposed paragraph (e) defined the term ``consumer'' to mean an 
individual. This definition is identical to the definition of 
``consumer'' in section 603(c) of the FCRA.
    Several commenters asked the Agencies to narrow the proposed 
definition to apply only to individuals who obtain financial products 
or services primarily for personal, family, or household purposes, in 
part to achieve consistency with the definition of ``consumer'' in the 
GLBA. The FCRA's definition of ``consumer,'' however, differs from, and 
is broader than, the definition of that term in the GLBA. The Agencies 
believe that the use of distinct definitions of ``consumer'' in the two 
statutes reflects differences in the scope and objectives of each 
statute. Therefore, the Agencies adopted the FCRA's statutory 
definition of ``consumer'' in the final medical information rules. See 
70 FR 70,664 (Nov. 22, 2005). It is unnecessary to re-publish the 
definition in these rules. For purposes of this definition, an 
individual acting through a legal representative would qualify as a 
consumer.
Person
    Proposed paragraph (l) defined the term ``person'' to mean any 
individual, partnership, corporation, trust, estate, cooperative, 
association, government or governmental subdivision or agency, or other 
entity. This definition is identical to the definition of ``person'' in 
section 603(b) of the FCRA.
    One commenter requested clarification of how the proposed 
definition of ``person'' would affect other provisions of the affiliate 
marketing rules. Specifically, this commenter asked how the 
supplementary information's discussion of agents might affect the scope 
provisions of the rule.
    The supplementary information to the proposal stated that a person 
may act through an agent, including but not limited to a licensed agent 
(in the case of an insurance company) or a trustee. The supplementary 
information also provided that actions taken by an agent on behalf of a 
person that are within the scope of the agency relationship would be 
treated as actions of that person. The Agencies included these 
statements to address comprehensively the status of agents and to 
eliminate the need to refer specifically to licensed agents in the 
proposed definition of ``pre-existing business relationship.'' As 
discussed below, many commenters believed that licensed agents should 
be expressly included in the definition of ``pre-existing business 
relationship.'' The Agencies have revised the final rules in response 
to those comments. By specifically addressing licensed agents, the 
final rules do not alter the general principles of principal-agent 
relationships that apply to all agents, not just licensed agents. The 
Agencies will treat actions taken by an agent on behalf of a person 
that are within the scope of the agency relationship as actions of that 
person, regardless of whether the agent is a licensed agent or not.
    The Agencies adopted the FCRA's statutory definition of ``person'' 
in the final medical information rules. See 70 FR 70664 (Nov. 22, 
2005). Therefore, it is unnecessary to re-publish the definition in 
these rules.

Section --.20 Coverage and definitions

Coverage
    Section --.20(a) of the final rules identifies the persons covered 
by Subpart C of each Agency's rule. Section --.20(a) thus describes the 
scope of each Agency's rule.
Definitions
    Section --.20(b) of the final rules contains the definitions of six 
terms for purposes of Subpart C.
Clear and Conspicuous
    Proposed Sec.  --.3(c) defined the term ``clear and conspicuous'' 
to mean reasonably understandable and designed to call attention to the 
nature and significance of the information presented. Under this 
definition, institutions would retain flexibility in determining how 
best to meet the clear and conspicuous standard. The supplementary 
information to the proposal provided guidance regarding a number of 
practices that institutions might wish to consider in making their 
notices clear and conspicuous. These practices were derived largely 
from guidance included in the GLBA privacy rules.
    Industry commenters urged the Agencies not to define ``clear and 
conspicuous'' in the final rules. The principal objection these 
commenters raised was that this definition would significantly increase 
the risk of litigation and civil liability. Although these commenters 
recognized that the proposed definition was derived from the GLBA 
privacy regulations, they noted that compliance with the GLBA privacy 
regulations is enforced exclusively through administrative action, not 
through private litigation. These commenters also stated that the Board 
had withdrawn a similar proposal to define ``clear and conspicuous'' 
for purposes of Regulations B, E, M, Z, and DD, in part because of 
concerns about civil liability. Some industry commenters believed that 
it was not necessary to define the term in order for consumers to 
receive clear and conspicuous disclosures based on industry's 
experience in providing clear and conspicuous affiliate sharing opt-out 
notices. Consumer groups believed that incorporation of the standard 
and examples from the GLBA privacy regulations was not adequate because 
they did not believe that the existing standard has proven sufficient 
to ensure effective privacy notices.
    In the final rules, the Agencies have relocated the definition of 
``clear and conspicuous'' to Sec.  --.20(b)(1) in order to limit its 
applicability to the affiliate

[[Page 62914]]

marketing opt-out notice and renewal notice. Except for certain non-
substantive changes made for purposes of clarity, the definition of 
``clear and conspicuous'' is the same as in the proposal and is 
substantively the same as the definition used in the GLBA privacy 
rules. The Agencies believe that the clear and conspicuous standard for 
the affiliate marketing opt-out notices should be substantially similar 
to the standard that applies to GLBA privacy notices because the 
affiliate marketing opt-out notice may be provided on or with the GLBA 
privacy notice.
    In defining ``clear and conspicuous,'' the Agencies believe it is 
more appropriate to focus on the affiliate marketing opt-out notices 
that are the subject of this rulemaking, rather than adopting a 
generally applicable definition governing all consumer disclosures 
under the FCRA. This approach gives the Agencies the flexibility to 
refine or clarify the clear and conspicuous requirement for different 
disclosures, if necessary. In addition, this approach is consistent 
with the approach the Board indicated it would take when it withdrew 
its proposed clear and conspicuous rules. The Board noted that it 
intended ``to focus on individual disclosures and to consider ways to 
make specific improvements to the effectiveness of each disclosure.'' 
See 69 FR 35541, 35543 (June 25, 2004).
    The statute directs the Agencies to provide specific guidance 
regarding how to comply with the clear and conspicuous standard. See 15 
U.S.C. 1681s-3(a)(2)(B). For that reason, the Agencies do not agree 
with commenters that requested the elimination of the definition of 
``clear and conspicuous'' and related guidance. Rather, the Agencies 
believe it is necessary to define ``clear and conspicuous'' in the 
final rules and provide specific guidance for how to satisfy that 
standard in connection with this notice.
    Accordingly, the final rules contain two types of specific guidance 
on satisfying the requirement to provide a clear and conspicuous opt-
out notice. First, as in the proposal, the supplementary information to 
the final rules describes certain techniques that may be used to make 
notices clear and conspicuous. These techniques are described below. 
Second, the Agencies have adopted model forms that may, but are not 
required to, be used to facilitate compliance with the affiliate 
marketing notice requirements. The requirement for clear and 
conspicuous notices would be satisfied by the appropriate use of one of 
the model forms.
    As noted in the supplementary information to the proposal, 
institutions may wish to consider a number of methods to make their 
notices clear and conspicuous. The various methods described below for 
making a notice clear and conspicuous are suggestions that institutions 
may wish to consider in designing their notices. Use of any of these 
methods alone or in combination is voluntary. Institutions are not 
required to use any particular method or combination of methods to make 
their disclosures clear and conspicuous. Rather, the particular facts 
and circumstances will determine whether a disclosure is clear and 
conspicuous.
    A notice or disclosure may be made reasonably understandable 
through various methods that include: Using clear and concise 
sentences, paragraphs, and sections; using short explanatory sentences; 
using bullet lists; using definite, concrete, everyday words; using 
active voice; avoiding multiple negatives; avoiding legal and highly 
technical business terminology; and avoiding explanations that are 
imprecise and are readily subject to different interpretations. In 
addition, a notice or disclosure may be designed to call attention to 
the nature and significance of the information in it through various 
methods that include: Using a plain-language heading; using a typeface 
and type size that are easy to read; using wide margins and ample line 
spacing; and using boldface or italics for key words. Further, 
institutions that provide the notice on a Web page may use text or 
visual cues to encourage scrolling down the page, if necessary, to view 
the entire notice and may take steps to ensure that other elements on 
the Web site (such as text, graphics, hyperlinks, or sound) do not 
distract attention from the notice. When a notice or disclosure is 
combined with other information, methods for designing the notice or 
disclosure to call attention to the nature and significance of the 
information in it may include using distinctive type sizes, styles, 
fonts, paragraphs, headings, graphic devices, and appropriate groupings 
of information. However, there is no need to use distinctive features, 
such as distinctive type sizes, styles, or fonts, to differentiate an 
affiliate marketing opt-out notice from other components of a required 
disclosure, for example, where a GLBA privacy notice combines several 
opt-out disclosures in a single notice. Moreover, nothing in the clear 
and conspicuous standard requires segregation of the affiliate 
marketing opt-out notice when it is combined with a GLBA privacy notice 
or other required disclosures.
    The Agencies recognize that it will not be feasible or appropriate 
to incorporate all of the methods described above all the time. The 
Agencies recommend, but do not require, that institutions consider the 
methods described above in designing their opt-out notices. The 
Agencies also encourage the use of consumer or other readability 
testing to devise notices that are understandable to consumers.
    Finally, although the Agencies understand the concerns of some 
industry commenters about the potential for civil liability, the 
Agencies believe that these concerns are mitigated by the safe harbors 
afforded by the model forms in Appendix C. The Agencies note that the 
affiliate sharing opt-out notice under section 603(d)(2)(A)(iii) of the 
FCRA, which may be enforced through private rights of action, must be 
included in the GLBA privacy notice. Therefore, the affiliate sharing 
opt-out notice generally is disclosed in a manner consistent with the 
clear and conspicuous standard set forth in the GLBA privacy 
regulations. Commenters did not identify any litigation that has 
resulted from the requirement to provide a clear and conspicuous 
affiliate sharing opt-out notice. The Agencies believe that compliance 
with the examples and use of the model forms, although optional, should 
minimize the risk of litigation.
Concise
    Proposed Sec.  --.21(b) defined the term ``concise'' to mean a 
reasonably brief expression or statement. The proposal also provided 
that a notice required by Subpart C may be concise even if it is 
combined with other disclosures required or authorized by federal or 
state law. Such disclosures include, but are not limited to, a GLBA 
privacy notice, an affiliate-sharing notice under section 
603(d)(2)(A)(iii) of the FCRA, and other consumer disclosures. Finally, 
the proposal clarified that the requirement for a concise notice would 
be satisfied by the appropriate use of one of the model forms contained 
in proposed Appendix C to each Agency's FCRA rule, although use of the 
model forms is not required. The Agencies received no comments on the 
proposed definition of ``concise.'' The final rules renumber the 
definition of ``concise'' as Sec.  --.20(b)(2). The reference to the 
model forms has been moved to Appendix C, but otherwise the definition 
is adopted as proposed.

[[Page 62915]]

Eligibility Information
    Proposed Sec.  --.3(j) defined the term ``eligibility information'' 
to mean any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the FCRA did not apply. As proposed, 
eligibility information would include a person's own transaction or 
experience information, such as information about a consumer's account 
history with that person, and ``other'' information under section 
603(d)(2)(A)(iii), such as information from consumer reports or 
applications.
    Most commenters generally supported the proposed definition of 
``eligibility information'' as an appropriate means of simplifying the 
statutory terminology without changing the scope of the information 
covered by the rule. A number of commenters requested that the Agencies 
clarify that certain types of information do not constitute eligibility 
information, such as name, address, telephone number, Social Security 
number, and other identifying information. One commenter requested the 
exclusion of publicly available information from the definition. 
Another commenter requested additional clarification regarding the term 
``transaction or experience information.'' A few commenters suggested 
that the Agencies include examples of what is and is not included 
within ``eligibility information.'' Finally, one commenter urged the 
Agencies to revise the definition to restate much of the statutory 
definition of ``consumer report'' to eliminate the need for cross-
references.
    The final rules renumber the definition of ``eligibility 
information'' as --.20(b)(3). The Agencies have revised the definition 
to clarify that the term ``eligibility information'' does not include 
aggregate or blind data that does not contain personal identifiers. 
Examples of personal identifiers include account numbers, names, or 
addresses, as indicated in the definition, as well as Social Security 
numbers, driver's license numbers, telephone numbers, or other types of 
information that, depending on the circumstances or when used in 
combination, could identify the individual.
    The Agencies also believe that further clarification of, or 
exclusions from, the term ``eligibility information,'' such as the 
categorical exclusion of names, addresses, telephone numbers, other 
identifying information, or publicly available information, would 
directly implicate the definitions of ``consumer report'' and 
``consumer reporting agency'' in sections 603(d) and (f), respectively, 
of the FCRA. The Agencies decided not to define the terms ``consumer 
report'' and ``consumer reporting agency'' in this rulemaking and not 
to interpret the meaning of terms used in those definitions, such as 
``transaction or experience'' information. The Agencies anticipate 
addressing the definitions of ``consumer report'' and ``consumer 
reporting agency'' in a separate rulemaking after the required FACT Act 
rules have been completed. The Agencies also note that financial 
institutions have relied on these statutory definitions for many years.
Pre-Existing Business Relationship
    Proposed Sec.  --.3(m) defined the term ``pre-existing business 
relationship'' to mean a relationship between a person and a consumer 
based on the following:
    (1) A financial contract between the person and the consumer that 
is in force;
    (2) The purchase, rental, or lease by the consumer of that person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and that person, during the 18-month 
period immediately preceding the date on which a solicitation covered 
by Subpart C is sent to the consumer; or
    (3) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which a solicitation covered by 
Subpart C is sent to the consumer.
    The proposed definition generally tracked the statutory definition 
contained in section 624 of the FCRA, with certain revisions for 
clarity. Although the statute gave the Agencies the authority to 
identify by regulation other circumstances that qualify as a pre-
existing business relationship, the Agencies did not propose to 
exercise this authority. In the final rules, the definition of ``pre-
existing business relationship'' has been renumbered as Sec.  
--.20(b)(4).
    Industry commenters suggested certain revisions to the proposed 
definition of ``pre-existing business relationship.'' Many industry 
commenters asked the Agencies to include in the definition statutory 
language relating to ``a person's licensed agent.'' A number of these 
commenters noted that this concept was particularly important to the 
insurance industry where independent, licensed agents frequently act as 
the main point of contact between the consumer and the insurance 
company.
    In the final rules, the phrase ``or a person's licensed agent'' has 
been added to the definition of ``pre-existing business relationship'' 
to track the statutory language. For example, assume that a person is a 
licensed agent for the affiliated ABC life, auto, and homeowners' 
insurance companies. A consumer purchases an ABC auto insurance policy 
through the licensed agent. The licensed agent may use eligibility 
information about the consumer obtained in connection with the ABC auto 
policy it sold to the consumer to market ABC life and homeowner's 
insurance policies to the consumer for the duration of the pre-existing 
business relationship without offering the consumer the opportunity to 
opt out of that use.
    Regarding the first basis for a pre-existing business relationship 
(a financial contract in force), several industry commenters asked the 
Agencies to clarify that a financial contract includes any in-force 
contract that relates to a financial product or service covered by 
title V of the GLBA. One commenter objected to the requirement that the 
contract be in force on the date of the solicitation. This commenter 
believed that the Agencies should interpret the statute to permit the 
exception to apply if a contract is in force at the time the affiliate 
uses the information, rather than when the solicitation is sent, noting 
that there may be a delay between the use and the solicitation.
    The Agencies have revised the first prong of the definition of 
``pre-existing business relationship'' to reflect the definition's 
relocation to Subpart C, but have otherwise adopted it as proposed. 
Although a comprehensive definition of the term ``financial contract'' 
has not been included in the final rules, the Agencies construe the 
statutory term ``financial contract'' at least to include a contract 
that relates to a consumer's purchase or lease of a financial product 
or service that a financial holding company could offer under section 
4(k) of the Bank Holding Company Act of 1956 (12 U.S.C. 1843(k)). In 
addition, a financial contract which is in force will, in virtually all 
instances, qualify as a ``financial transaction,'' as that term is used 
in the second prong of the definition of ``pre-existing business 
relationship.'' The Agencies do not agree with the suggestion that the 
financial contract should be in force on the date of use rather than on 
the date the solicitation is sent. The approach taken in the proposed 
and final rules is consistent with the approach used in the other two 
prongs of the statutory definition.

[[Page 62916]]

    Industry commenters also suggested certain clarifications to the 
second basis for a pre-existing business relationship--a purchase, 
rental, or lease by the consumer of the person's goods or services, or 
a financial transaction between the consumer and the person during the 
preceding 18 months. Several industry commenters noted that, 
notwithstanding the example in the proposal regarding a lapsed 
insurance policy, it was not clear from what point in time the 18-month 
period begins to run in the case of many purchase, rental, lease, or 
financial transactions. These commenters asked the Agencies to clarify 
that the 18-month period begins to run at the time all contractual 
responsibilities of either party under the purchase, rental, lease, or 
financial transaction expire. In addition, some commenters indicated 
that the term ``active account'' should be clarified to mean any 
account with outstanding contractual responsibilities on either side of 
an account relationship, regardless of whether specific transactions do 
or do not occur on that account.
    The Agencies have revised the second prong of the definition of 
``pre-existing business relationship'' to reflect the definition's 
relocation to Subpart C, but have otherwise adopted it as proposed. The 
Agencies decline to interpret the term ``active account'' as requested 
by some commenters. The Agencies note that section 603(r) of the FCRA 
defines the term ``account'' to have the same meaning as in section 903 
of the Electronic Fund Transfer Act (EFTA). Under the EFTA, the term 
``account'' means a demand deposit, savings deposit, or other asset 
account established primarily for personal, family, or household 
purposes. Some commenters, however, apparently believed that the term 
``active account'' included extensions of credit. Credit extensions 
presumably would qualify as ``another continuing relationship,'' as 
used in the definition of ``pre-existing business relationship.''
    More generally, however, even though a ``financial transaction'' 
would include in virtually all cases a financial contract which is in 
force, as noted above, the Agencies do not believe it is appropriate to 
state that the 18-month period begins to run when all outstanding 
contractual responsibilities of both parties expire, regardless of 
whether specific transactions occur. Such a clarification would not 
appropriately address circumstances such as charge-offs, bankruptcies, 
early terminations, or extended periods of credit inactivity that could 
trigger commencement of the 18 month period. In addition, some contract 
provisions, such as arbitration clauses and choice of law provisions, 
may continue to have legal effect after all contractual performance has 
ended. The Agencies do not believe that the continued effectiveness of 
such provisions should delay commencement of the 18-month period.
    Nevertheless, the Agencies believe that a few examples may provide 
useful guidance to facilitate compliance. For example, in the case of a 
closed-end mortgage or auto loan, the 18-month period generally would 
begin to run when the consumer pays off the outstanding balance on the 
loan. In a lease or rental transaction, the 18-month period generally 
would begin to run when the lease or rental agreement expires or is 
terminated by mutual agreement. In the case of general purpose credit 
cards that are issued with an expiration date, the 18-month period 
generally would begin to run when the consumer pays off the outstanding 
balance on the card and the card is either cancelled or expires without 
being renewed.
    Commenters also made certain suggestions regarding the third basis 
for a pre-existing business relationship--an inquiry or application by 
the consumer regarding a product or service offered by the person 
during the preceding three months. Consumer groups urged the Agencies 
to clarify that an inquiry must be made of the specific affiliate, 
rather than a general inquiry about a product or service. Industry 
commenters expressed concern about certain statements in the 
supplementary information that explained the meaning of an inquiry.
    The Agencies do not agree that an inquiry must be made of a 
specific affiliate. Many affiliated institutions use a central call 
center to handle consumer inquiries. The clarification urged by 
consumer groups could preclude the establishment of a pre-existing 
business relationship based on a consumer's call to a central call 
center about a specific product or service offered by an affiliate.
    In the supplementary information to the proposal, the Agencies 
noted that certain elements of the definition of ``pre-existing 
business relationship'' were substantially similar to the definition of 
``established business relationship'' under the amended Telemarketing 
Sales Rule (TSR) (16 CFR 310.2(n)). The TSR definition was informed by 
Congress's intent that the ``established business relationship'' 
exemption to the ``do not call'' provisions of the Telephone Consumer 
Protection Act (47 U.S.C. 227 et seq.) should be grounded on the 
reasonable expectations of the consumer.\10\ The Agencies observed that 
Congress's incorporation of similar language in the definition of 
``pre-existing business relationship'' \11\ suggested that it would be 
appropriate to consider the reasonable expectations of the consumer in 
determining the scope of this exception. Thus, the Agencies explained 
that, for purposes of this regulation, an inquiry would include any 
affirmative request by a consumer for information after which the 
consumer would reasonably expect to receive information from the 
affiliate about its products or services.\12\ Moreover, a consumer 
would not reasonably expect to receive information from the affiliate 
if the consumer did not request information or did not provide contact 
information to the affiliate.
---------------------------------------------------------------------------

    \10\ H.R. Rep. No. 102-317, at 14-15 (1991). See also 68 FR 
4,580, 4,591-94 (Jan. 29, 2003).
    \11\ 149 Cong. Rec. S13,980 (daily ed. Nov. 5, 2003) (statement 
of Senator Feinstein) (noting that the ``pre-existing business 
relationship'' definition ``is the same definition developed by the 
Federal Trade Commission in creating a national `Do Not Call' 
registry for telemarketers'').
    \12\ See 68 FR at 4,594.
---------------------------------------------------------------------------

    Industry commenters objected to the discussion in the supplementary 
information. Some of these commenters believed that looking to the 
reasonable expectations of the consumer would narrow the scope of the 
exception and impose on institutions a subjective standard that 
depended upon the consumer's state of mind. These commenters also 
maintained that the availability of the exception should not depend 
upon the consumer both requesting information and providing contact 
information to the affiliate. Some commenters noted that either 
requesting information or providing contact information should suffice 
to establish an expectation of receiving solicitations. Other 
commenters noted that consumers would not provide contact information 
if they believed that the affiliate would already have the consumer's 
contact information or would obtain it from the consumer's financial 
institution. Some commenters believed that the consumer should not have 
to make an affirmative request for information in order to have an 
inquiry. Commenters also expressed concern that the discussion in the 
supplementary information would require consumers to use specific words 
to trigger the exception.
    The Agencies have revised the third prong of the definition of 
``pre-existing business relationship'' to reflect the definition's 
relocation to Subpart C, but have otherwise adopted it as proposed. The 
Agencies continue to believe that it

[[Page 62917]]

is appropriate to consider what the consumer says in determining 
whether the consumer has made an inquiry about a product or service. It 
may not be necessary, however, for the consumer to provide contact 
information in all cases. As discussed below, the Agencies have revised 
the examples of inquiries to illustrate different circumstances.
    Consumer groups and NAAG urged the Agencies not to expand the 
definition of ``pre-existing business relationship'' to include any 
additional types of relationships. Industry commenters suggested a 
number of additional bases for establishing a pre-existing business 
relationship. Several industry commenters believed that the term ``pre-
existing business relationship'' should be defined to include 
relationships arising out of the ownership of servicing rights, a 
participation interest in lending transactions, and similar 
relationships. These commenters provided no further explanation for why 
such an expansion was necessary. One commenter urged the Agencies to 
expand the definition of ``pre-existing business relationship'' to 
apply to affiliates that share a common trade name, share the same 
employees or representatives, operate out of the same physical location 
or locations, and offer similar products.
    In addition, a number of industry commenters requested 
clarification of the term ``pre-existing business relationship'' as 
applied to manufacturers that make sales through dealers. These 
commenters explained that automobile manufacturers do not sell vehicles 
directly to consumers, but through franchised dealers. Vehicle 
financing may be arranged through a manufacturer's captive finance 
company or independent sources of financing. These commenters noted 
that manufacturers often provide consumers with information about 
warranty coverage, recall notices, and other product information. 
According to these commenters, manufacturers also send solicitations to 
consumers about their products and services, drawing in part on 
transaction or experience information from the captive finance company. 
These commenters asked the Agencies to clarify that the relationship 
between a manufacturer and a consumer qualifies as a pre-existing 
business relationship based on the purchase, rental, or lease of the 
manufacturer's goods, or, alternatively, to exercise their authority to 
add this relationship as an additional basis for a pre-existing 
business relationship. One commenter asked the Agencies to clarify that 
a pre-existing business relationship could be established even if the 
person provides a product or service to the consumer without charging a 
fee.
    The Agencies do not believe it is necessary to add any additional 
bases for a pre-existing business relationship. The Agencies 
acknowledge that a pre-existing business relationship exists where a 
person owns the servicing rights to a consumer's loan and such person 
collects payments from, or otherwise deals directly with, the consumer. 
In the Agencies' view, however, that situation qualifies as a financial 
transaction and thus falls within the second prong of the definition of 
``pre-existing business relationship.'' The Agencies have included an 
example, discussed below, to illustrate how the ownership of servicing 
rights can create a pre-existing business relationship.
    A pre-existing business relationship does not arise, however, 
solely from a participation interest in a lending transaction because 
such an interest does not result in a financial contract or a financial 
transaction between the consumer and the participating party. The 
Agencies decline to add a specific provision for franchised dealers. 
The statute contains no special provision addressing franchised 
dealers, as it does for licensed agents. Moreover, a franchised dealer 
and a manufacturer generally are not affiliates and thus are subject to 
the GLBA privacy rules relating to information sharing with non-
affiliated third parties. The Agencies also find no basis for including 
within the meaning of ``pre-existing business relationship'' any 
affiliate that shares a common trade name or representatives, or that 
operates from the same location or offers similar products. Finally, 
the Agencies decline to add a provision that would create a pre-
existing business relationship when a consumer obtains a product or 
service without charge from a person. Such a provision would be overly 
broad, is not necessary given the breadth of the statutory definition 
of ``pre-existing business relationship,'' and could result in 
circumvention of the notice requirement.
    Proposed Sec.  --.20(d)(1) provided four examples of the pre-
existing business relationship exception. In the final rules, these 
examples have been renumbered as Sec.  --.20(b)(4)(ii) and (iii), and 
revised to illustrate the definition of ``pre-existing business 
relationship,'' rather than the corresponding exception.
    The two examples relating to the first and second prongs of the 
definition of ``pre-existing business relationship'' have been revised 
in Sec.  --.20(b)(4)(ii)(A) and (B) to focus on a depository 
institution as the person with the pre-existing business relationship, 
but are otherwise substantively similar to the proposal. One commenter 
recommended expanding the example now contained in Sec.  
--.20(b)(4)(ii)(A) to refer to the licensed agent that wrote the policy 
or services the relationship. The Agencies believe that adding the term 
``licensed agent'' to the definition is sufficient and see no reason to 
further complicate this example to illustrate how the definition 
applies to licensed agents.
    Section --.20(b)(4)(ii)(C) is new and illustrates when a pre-
existing business relationship is created in the context of a mortgage 
loan. This example specifically addresses circumstances where either 
the loan or ownership of the servicing rights to the loan is sold to a 
third party. As this example illustrates, sale of the entire loan by 
the original lender terminates the financial transaction between the 
consumer and that lender and creates a new financial transaction 
between the consumer and the purchaser of the loan. However, the 
original lender's sale of a fractional interest in the loan to an 
investor does not create a new financial transaction between the 
consumer and the investor. When the original lender sells a fractional 
interest in the consumer's loan to an investor but also retains an 
ownership interest in the loan, however, the original lender continues 
to have a pre-existing business relationship with the consumer because 
the consumer obtained a loan from the lender and the lender continues 
to own an interest in the loan. In addition, the ownership of servicing 
rights coupled with direct dealings with the consumer results in a 
financial transaction between the consumer and the owner of the 
servicing rights, thereby creating a pre-existing business relationship 
between the consumer and the owner of the servicing rights. The 
Agencies note that a financial institution that owns servicing rights 
generally has a customer relationship with the consumer and an 
obligation to provide a GLBA privacy notice to the consumer.
    The example in proposed Sec.  --.20(d)(1)(iii) regarding 
applications and inquiries elicited comment. Some industry commenters 
urged the Agencies to revise this example so that it does not depend 
upon the consumer's expectations or the consumer providing contact 
information. These commenters noted, for example, that the contact 
information would be self-evident if the consumer makes an e-mail 
request or provides a return address on an envelope. These commenters 
also believed that in the case of a telephone

[[Page 62918]]

call initiated by a consumer, a captured telephone number should be 
sufficient to create an inquiry if the consumer requests information 
about products or services.
    In the final rules, the Agencies have crafted three separate 
examples from proposed Sec.  --.20(d)(1)(iii). Section 
--.20(b)(4)(ii)(D) provides an example where a consumer applies for a 
product or service, but does not obtain the product or service for 
which she applied. Contact information is not mentioned in this example 
because the consumer presumably would have supplied it on the 
application.
    Section --.20(b)(4)(ii)(E) provides an example where a consumer 
makes a telephone inquiry about a product or service offered by a 
depository institution and provides contact information to the 
institution, but does not obtain a product or service from or enter 
into a financial transaction with the institution. The Agencies do not 
believe that an institution's capture of a consumer's telephone number 
during a telephone conversation with the consumer about the 
institution's products or services is sufficient to create an inquiry. 
In that circumstance, to ensure that an inquiry has been made, the 
institution should ask the consumer to provide his or her contact 
information, or confirm with the consumer that the consumer has a pre-
existing business relationship with an affiliate.
    Section --.20(b)(4)(ii)(F) provides an example where the consumer 
makes an e-mail inquiry about a product or service offered by a 
depository institution, but does not separately provide contact 
information. In that case, the consumer provides the financial 
institution with contact information in the form of the consumer's e-
mail address. In addition, e-mail communications, unlike telephone 
communications, do not provide institutions with the same opportunity 
to ask for the consumer's contact information.
    Industry commenters recommended deleting the example in proposed 
Sec.  --.20(d)(1)(iv) illustrating a call center scenario where a 
consumer would not reasonably expect to receive information from an 
affiliate. In the final rules, the Agencies have included a positive 
example of an inquiry made by a consumer through a call center in Sec.  
--.20(b)(4)(ii)(G), while retaining the negative example from the 
proposal in Sec.  --.20(b)(4)(iii)(A). In addition, the Agencies have 
included in Sec.  --.20(b)(4)(iii)(B) an example of a consumer call to 
ask about retail locations and hours, which does not create a pre-
existing business relationship. This example is substantively similar 
to the example from proposed Sec.  --.20(d)(2)(iii).
    A new example in Sec.  --.20(b)(4)(iii)(C) illustrates a case where 
a consumer responds to an advertisement that offers a free promotional 
item, but the advertisement does not indicate that an affiliate's 
products or services will be marketed to consumers who respond to the 
advertisement. The example illustrates that the consumer's response 
does not create a pre-existing business relationship because the 
consumer has not made an inquiry about a product or service, but has 
merely responded to an offer for a free promotional item. Similarly, if 
a consumer is directed by a company with which the consumer has a pre-
existing business relationship to contact the company's affiliate to 
receive a promotional item but the company does not mention the 
affiliate's products or services, the consumer's contact with the 
affiliate about the promotional item does not create a pre-existing 
business relationship between the consumer and the affiliate.
Solicitation
    Proposed Sec.  --.3(n) defined the term ``solicitation'' to mean 
marketing initiated by a person to a particular consumer that is based 
on eligibility information communicated to that person by its affiliate 
and is intended to encourage the consumer to purchase a product or 
service. The proposed definition further clarified that a 
communication, such as a telemarketing solicitation, direct mail, or e-
mail, would be a solicitation if it is directed to a specific consumer 
based on eligibility information. The proposed definition did not, 
however, include communications that were directed at the general 
public without regard to eligibility information, even if those 
communications were intended to encourage consumers to purchase 
products and services from the person initiating the communications.
    Congress gave the Agencies the authority to determine by regulation 
that other communications do not constitute a solicitation. The 
Agencies did not propose to exercise this authority. The Agencies 
solicited comment on whether, and to what extent, various tools used in 
Internet marketing, such as pop-up ads, may constitute solicitations as 
opposed to communications directed at the general public, and whether 
further guidance was needed to address Internet marketing.
    Most commenters believed that the proposed definition tracked the 
statutory definition contained in section 624 of the FCRA. A number of 
industry commenters, however, believed that the proposed definition 
misstated the types of marketing that would not qualify as a 
solicitation. Specifically, the first sentence of proposed Sec.  
--.3(n)(2) provided that ``[a] solicitation does not include 
communications that are directed at the general public and distributed 
without the use of eligibility information communicated by an 
affiliate.'' These commenters believed that a solicitation should not 
include either marketing directed at the general public or marketing 
distributed without the use of eligibility information communicated by 
an affiliate. Several industry commenters also requested that the 
Agencies include the phrase ``of a product or service'' in the 
introductory language for consistency with the statutory definition. 
Some industry commenters sought clarification that certain types of 
communications would not constitute solicitations, for example, 
marketing announcements delivered via pre-recorded call center 
messages, automated teller machine screens, or Internet sites, or 
product information provided at or through educational seminars, 
customer appreciation events, or newsletters.
    NAAG urged the Agencies to clarify the portion of the definition 
that refers to ``a particular consumer.'' NAAG believed that mass 
mailings of the same or similar marketing materials to a large group of 
consumers could fall within the definition of ``solicitation,'' so long 
as the marketing is based on eligibility information received from an 
affiliate. NAAG expressed concern that some might construe the term 
``particular'' to narrow the meaning of a ``solicitation.''
    With regard to Internet marketing, industry commenters urged the 
Agencies not to address such practices in this rulemaking. These 
commenters believed that the definition of ``solicitation'' should 
provide specific guidance that ``pop-up'' ads and other forms of 
Internet marketing generally were directed to the general public and 
not based on eligibility information received from an affiliate, or 
that such marketing would fall within an exception. NAAG believed that 
such advertisements should be treated as solicitations if they were 
based on any eligibility information received from an affiliate. 
Consumer groups believed that if an affiliate's pop-up ads and other 
Internet marketing were the result of specific actions by the consumer 
or information collected based upon a consumer's experience on the 
Internet,

[[Page 62919]]

then such marketing should be considered solicitations. These 
commenters also believed that pop-up ads and other Internet marketing 
targeted to all customers of a company should be treated as 
solicitations if based on the consumer's experience on the Internet.
    Section --.20(b)(5) of the final rules contains the definition of 
``solicitation.'' The definition has been revised to track the 
statutory language more closely. The phrase ``of a product or service'' 
has been added to the definition, as requested by some commenters. To 
ensure consistency with the definition of ``pre-existing business 
relationship,'' the phrase ``or obtain'' has been retained so that the 
definition of ``solicitation'' will include marketing for the rental or 
lease of goods or services, financial transactions, and financial 
contracts. The Agencies have also deleted as unnecessary the reference 
to communications ``distributed without the use of eligibility 
information communicated by an affiliate.'' Marketing that is 
undertaken without the use of eligibility information received from an 
affiliate is not covered by the affiliate marketing rules. Moreover, 
there is no restriction on using eligibility information received from 
an affiliate in marketing directed at the general public, such as 
radio, television, or billboard advertisements. The phrase ``to a 
particular consumer'' has been retained because it is part of the 
statutory definition. The Agencies do not believe that the phrase ``to 
a particular consumer'' excludes large-scale marketing campaigns from 
the definition of ``solicitation'' because, within such campaigns, 
eligibility information received from an affiliate may be used to 
target individual consumers.
    The definition of ``solicitation'' does not distinguish between 
different mediums. A determination of whether a marketing communication 
constitutes a solicitation depends upon the facts and circumstances. 
The Agencies have decided not to make those determinations in this 
rulemaking. Thus, the Agencies are not adopting special rules or 
guidance regarding Internet-based marketing; whether Internet-based 
marketing is a solicitation in a particular case will be determined 
according to the same criteria that apply to other means of marketing. 
The Agencies also decline to exclude categorically from the definition 
of ``solicitation'' marketing messages on voice response units, ATM 
screens, or other forms of media. Marketing delivered via such media 
may be solicitations if such marketing is targeted to a particular 
consumer based on eligibility information received from an affiliate. 
For example, a marketing message on an ATM screen would be a 
solicitation if it is targeted to a particular consumer based on 
eligibility information received from an affiliate, but would not be a 
solicitation if it is delivered to all consumers that use the ATM.
    Similarly, the Agencies decline to exclude educational seminars, 
customer appreciation events, focus group invitations, and similar 
forms of communication from the definition of ``solicitation.'' The 
Agencies believe that such activities must be evaluated according to 
the facts and circumstances and some of those activities may be coupled 
with, or a prelude to, a solicitation. For example, an invitation to a 
financial educational seminar where the invitees are selected based on 
eligibility information received from an affiliate may be a 
solicitation if the seminar is used to solicit the consumer to purchase 
investment products or services.
You or Bank
    Section --.20(b)(6) of each Agency's rule defines either ``you'' or 
``bank'' to include persons covered by Subpart C of the Agency's rule, 
as described in Sec.  --.20(a).

Section --.21 Affiliate Marketing Opt-out and Exceptions

Initial Notice and Opt-out Requirement
    The Agencies proposed to establish certain rules relating to the 
requirement to provide the consumer with notice and a reasonable 
opportunity and a simple method to opt out of a person's use of 
eligibility information that it obtained from an affiliate for the 
purpose of making or sending solicitations to the consumer. The 
Agencies noted that the statute is ambiguous because it does not 
specify which affiliate must provide the opt-out notice to the 
consumer. The Agencies addressed this ambiguity by proposing to place 
certain responsibilities on the communicating affiliate and other 
responsibilities on the receiving affiliate.
    Proposed Sec.  --.20(a) set forth the duties of a communicating 
affiliate. That section required the communicating affiliate to provide 
a notice to the consumer before a receiving affiliate could use 
eligibility information to make or send solicitations to the consumer. 
Under the proposal, the opt-out notice would state that eligibility 
information may be communicated to and used by the receiving affiliate 
to make or send solicitations to the consumer regarding the affiliate's 
products and services, and would give the consumer a reasonable 
opportunity and a simple method to opt out.
    Proposed Sec.  --.20(a) also contained two rules of construction 
relating to the communicating affiliate's duty to provide the notice. 
The first rule of construction would have allowed the notice to be 
provided either in the name of a person with which the consumer 
currently does or previously has done business or in one or more common 
corporate names shared by members of an affiliated group of companies 
that includes the common corporate name used by that person. The rule 
of construction also would have provided alternatives regarding the 
manner in which the notice could be given, such as by allowing the 
communicating affiliate to provide the notice either directly to the 
consumer, through an agent, or through a joint notice with one or more 
of its affiliates. The second rule of construction would have clarified 
that, to avoid duplicate notices, it would not be necessary for each 
affiliate that communicates the same eligibility information to provide 
an opt-out notice to the consumer, so long as the notice provided by 
the affiliate that initially communicated the information was broad 
enough to cover use of that information by each affiliate that received 
and used it to make solicitations. The proposal included examples to 
illustrate how each of these rules of construction would work.
    Proposed Sec.  --.20(b) set forth the general duties of a receiving 
affiliate. That section would have prohibited the receiving affiliate 
from using eligibility information it received from an affiliate to 
make solicitations to the consumer unless, prior to such use, the 
consumer was provided an opt-out notice that applied to that 
affiliate's use of eligibility information to make solicitations and a 
reasonable opportunity and simple method to opt out, and the consumer 
did not opt out of that use.
    Most industry commenters maintained that the final rules should not 
require any specific entity to provide the opt-out notice, but should 
only require that the consumer be provided an opt-out notice covering 
an affiliate's use of eligibility information before a solicitation is 
made to the consumer. These commenters believed the final rules should 
provide flexibility and allow either the receiving affiliate, the 
communicating affiliate, or any other affiliate to provide the opt-out 
notice. These commenters maintained that the statute is not ambiguous 
and

[[Page 62920]]

does not impose any obligations on a specific entity, such as the 
communicating affiliate, to provide the opt-out notice. Some of these 
commenters acknowledged, however, that the communicating affiliate 
would, as a practical matter, most likely give the opt-out notice.
    A number of industry commenters expressed concern that the proposed 
rules would create a basis for civil liability against the 
communicating affiliate under section 624 because that section is 
covered by the FCRA's private right of action provisions in sections 
616 and 617. Some commenters noted that, to avoid exposure to civil 
liability, a communicating affiliate would have to require receiving 
affiliates to commit to not using the information to make 
solicitations, give an opt-out notice whenever they share eligibility 
information with affiliates, or never share eligibility information 
with affiliates. These commenters maintained that, in many cases, none 
of these solutions would be practical, for example, where a receiving 
affiliate negligently failed to comply with a commitment not to make 
solicitations unless notice has been given to the consumer.
    Several industry commenters noted that the language in section 
624(a)(1)(A) that ``information may be communicated'' could be included 
in an opt-out notice provided by the receiving affiliate. These 
commenters also believed that the statutory requirement that the 
Agencies consider existing affiliate sharing notification practices and 
permit coordinated and consolidated notices did not imply that the 
communicating affiliate should be responsible for providing the opt-out 
notice.
    Industry commenters made several suggestions for revising the 
language of the proposal. Some suggested revising proposed Sec.  
--.20(a) to omit any reference to the communicating affiliate and to 
incorporate the passive voice used in the statute. Others suggested 
various ways of merging proposed Sec.  --.20(b) into proposed Sec.  
--.20(a) to focus exclusively on the responsibilities of the receiving 
affiliate. One commenter identified certain drafting problems it 
believed arose from the fact that the proposal focused alternately on 
the communicating affiliate and the receiving affiliate and that those 
two entities may be regulated by different regulatory agencies.
    A few industry commenters acknowledged that the Agencies had raised 
legitimate concerns in the supplementary information to the proposal 
about how meaningful a notice could be when provided by a receiving 
affiliate that the consumer may not recognize. These commenters 
believed that this concern could be addressed through other means. One 
commenter, for example, suggested the following introductory language 
in paragraph (a)(2): ``The notice required by this paragraph (a) may be 
provided either in the name of the bank receiving the information 
(provided that such bank also identifies the affiliate which provided 
such information), in the name of the affiliate which provided such 
information, or in one or more common corporate names shared by such 
bank and the affiliate which provided the information, and may be 
provided in the following manner * * * '' Another industry commenter 
expressed support for the rules of construction with revisions to allow 
the use of brand names and trade names, as well as the actual 
``corporate'' name, and to allow an agent or affiliate to send a common 
notice that uses more than one common name in a non-deceptive manner.
    Consumer group commenters supported making the communicating 
affiliate responsible for providing the notice and opportunity to opt 
out. These commenters believed that allowing the receiving affiliate to 
send the opt-out notice would invite consumer confusion as to whether 
or not the opt-out notice itself is a solicitation. These commenters 
also believed that the Agencies should require the names of the 
receiving affiliates to be clearly disclosed to the consumer. Consumer 
groups also believed that the proposed rules of construction struck a 
reasonable balance by allowing commonly named affiliates to share a 
notice while making clear that a notice from an affiliate with whom the 
consumer is not familiar will not be effective. They also suggested 
that the company with the pre-existing business relationship should be 
clearly marked on the opt-out notice.
    NAAG believed that a receiving affiliate should not be permitted to 
give the opt-out notice solely on its own behalf because a receiving 
affiliate is unlikely to be an entity from which the consumer would 
expect to receive important communications. NAAG also requested that 
the Agencies revise certain portions of the proposed rules of 
construction, for example, by deleting from proposed Sec.  
--.20(a)(2)(i) the phrase ``or previously has done business'' based on 
concerns that it would render the notice partially ineffective because, 
even without this phrase, the notice would not be required for 18 
months after a customer relationship ends. NAAG also requested that the 
Agencies revise proposed Sec. Sec.  --.20(a)(2)(B)(2) and (a)(2)(C) to 
clarify that the common name used must be one that includes the name 
used by the person providing the opt-out notice.
    In the proposal, the Agencies did not require the opt-out notice to 
be provided in writing. The Agencies noted, however, that they 
contemplated that the opt-out notice would be provided to the consumer 
in writing or, if the consumer agrees, electronically. The proposal 
solicited comment on whether there were circumstances in which it would 
be necessary and appropriate to allow oral notice and opt out and how 
an oral notice could satisfy the clear and conspicuous standard in the 
statute.
    Industry commenters believed that the final rules should permit 
oral notices. These commenters identified circumstances in which a 
relationship is established by telephone as an example of when oral 
notice would be appropriate. Some industry commenters also noted that 
an oral notice should be permitted because the affiliate sharing opt-
out notice under section 603(d)(2)(A)(iii) may be given orally, as well 
as in writing or electronically. Several industry commenters noted that 
the FTC in the Telemarketing Sales Rule and the OCC in regulations 
relating to debt cancellation contracts and debt suspension agreements 
have permitted clear and conspicuous oral notices. These commenters did 
not believe that allowing oral notice in these circumstances had 
created any enforcement difficulties for the FTC or OCC. Other industry 
commenters noted that institutions could demonstrate compliance through 
the use of scripts or by monitoring or recording calls.
    Consumer groups believed that a written opt-out notice should be 
required in all cases. These commenters believed that, with an oral 
notice, it is impossible to ensure that a consumer receives the 
appropriate notice or information on the right to opt out. They 
believed that allowing oral notices would create enforcement barriers 
for regulators. Consumer groups also believed that institutions have 
strong economic incentives to prevent consumers from opting out and 
would engage in misrepresentations or otherwise use language in their 
scripts that is designed to discourage consumers from opting out. NAAG 
believed that oral notices would not meet the statutory requirement for 
a clear, conspicuous, and concise notice, that consumers would be less 
likely to comprehend oral notices, and enforcement would be more 
difficult if oral opt-out notices were allowed.
    Section --.21(a) of the final rules contains the revised provisions

[[Page 62921]]

regarding the initial notice and opt out requirement. Although the 
language of this section has been revised and simplified, the substance 
of this provision is substantially similar to the proposal.
    Section --.21(a)(1) sets forth the general rule. This section 
contains the three conditions that must be met before a person may use 
eligibility information about a consumer that it receives from an 
affiliate to make a solicitation for marketing purposes to the 
consumer. First, it must be clearly and conspicuously disclosed to the 
consumer in writing or, if the consumer agrees, electronically, in a 
concise notice that the person may use shared eligibility information 
to make solicitations to the consumer. Second, the consumer must be 
provided a reasonable opportunity and a reasonable and simple method to 
opt out of the use of that eligibility information to make 
solicitations to the consumer. Third, the consumer must not have opted 
out. Section --.21(a)(2) of the final rules provides an example of the 
general rule.
    The Agencies have concluded that the opt-out notice may not be 
provided orally, but must be provided in writing or, if the consumer 
agrees, electronically. The statute requires the Agencies to consider 
the affiliate sharing notification practices employed on the date of 
enactment and to ensure that notices and disclosures may be coordinated 
and consolidated in promulgating regulations. The affiliate sharing 
notice under section 603(d)(2)(A)(iii) of the FCRA generally must be 
included in the GLBA privacy notice, which must be provided in writing, 
or if the consumer agrees, electronically. Requiring the affiliate 
marketing opt-out notice to be provided in writing, or if the consumer 
agrees, electronically, is thus consistent with existing affiliate 
sharing notification practices and promotes coordination and 
consolidation of the three privacy-related opt-out notices. The 
Agencies are not persuaded that there are any circumstances where it 
would be necessary to provide an oral opt-out notice. A number of key 
exceptions to the initial notice and opt-out requirement, such as the 
pre-existing business relationship exception, consumer-initiated 
communication exception, and consumer authorization or request 
exception, may be triggered by an oral communication with the consumer. 
It also could be more difficult for the Agencies to monitor and enforce 
compliance with the final rules if oral opt-out notices were allowed. 
Accordingly, the final rules require the opt-out notice to be provided 
in writing or, if the consumer agrees, electronically.
    Section --.21(a)(3) identifies those affiliates who may provide the 
initial opt-out notice. This section provides that the initial opt-out 
notice must be provided either by an affiliate that has or has 
previously had a pre-existing business relationship with the consumer, 
or as part of a joint notice from two or more members of an affiliated 
group of companies, provided that at least one of the affiliates on the 
joint notice has or has previously had a pre-existing business 
relationship with the consumer. The final rules follow the general 
approach taken in the proposal to ensure that the notice is provided by 
an entity known to the consumer, while eliminating potentially 
ambiguous and confusing terms like ``communicating affiliate'' and 
``receiving affiliate.''
    The Agencies also have eliminated as unnecessary the rules of 
construction. Joint notices are now addressed directly in Sec.  
--.21(a)(3). The Agencies also have concluded that the provisions from 
the proposal relating to notice provided by an agent are unnecessary. 
General agency principles, however, continue to apply. An affiliate 
that has or has previously had a pre-existing business relationship 
with the consumer may direct its agent to provide the opt-out notice on 
its behalf.
    The Agencies have concluded that the statute's silence with regard 
to which affiliates may provide the opt-out notice makes the statute 
ambiguous on this point, despite industry comments to the contrary. The 
Agencies also continue to believe that consumers are more likely to pay 
attention to a notice provided by a person known to the consumer. The 
Agencies remain concerned that a notice provided by an entity unknown 
to the consumer may not provide meaningful or effective notice, and 
that consumers may ignore or discard notices provided by unknown 
entities. Industry comments on the proposal did little to address those 
concerns. For practical reasons, the Agencies believe that affiliate 
marketing opt-out notices typically would be provided by an affiliate 
that has or has previously had a pre-existing business relationship 
with the consumer, or as part of a joint notice, whether or not 
required by the rule.
    The Agencies appreciate industry concerns about civil liability and 
have revised the final rules to address those concerns. Specifically, 
in contrast to the proposal, the final rules do not impose duties on 
any affiliate other than the affiliate that intends to use shared 
eligibility information to make solicitations to the consumer. Although 
an opt-out notice must be provided by an affiliate that has or has 
previously had a pre-existing business relationship with the consumer 
(or as part of a joint notice), that affiliate has no duty to provide 
such a notice. Instead, the final rule provides that absent such a 
notice, an affiliate must not use shared eligibility information to 
make solicitations to the consumer. Industry concerns about civil 
liability also may be mitigated to some extent by the Supreme Court's 
recent decision in Safeco Ins. Co. of America v. Burr, 127 S. Ct. 2201 
(June 4, 2007).
    Finally, many institutions currently require consumers to provide 
their Social Security numbers when exercising their existing GLBA and 
FCRA opt-out rights. The Agencies believe that institutions likely 
would follow their existing practice with regard to affiliate marketing 
opt-outs. To combat identity theft and prevent ``phishing,'' however, 
the Agencies, along with many institutions, have been educating 
consumers not to provide their Social Security numbers to unknown 
entities. Furthermore, as participants in the President's Identity 
Theft Task Force, the Agencies have made a commitment to examine and 
recommend ways to limit the private sector's use of Social Security 
numbers.
    The approach recommended by industry commenters would allow an 
unknown entity not only to provide an affiliate marketing opt-out 
notice to the consumer, but also to require the consumer to reveal his 
or her Social Security number to that unknown entity in order to 
exercise the opt-out right. Such an approach would send conflicting 
messages to consumers about providing Social Security numbers to 
unknown entities. This approach also would be inconsistent with the 
Agencies' current efforts to develop a comprehensive record on the uses 
of the Social Security number in the private sector and evaluate their 
necessity, as recommended by the President's Identity Theft Task 
Force.\13\
---------------------------------------------------------------------------

    \13\ See Combating Identity Theft: A Strategic Plan at 26-27 
(April 2007) (available at www.idtheft.gov).
---------------------------------------------------------------------------

Making Solicitations
    The proposal repeatedly referred to ``making or sending'' 
solicitations. Several commenters suggested revising the regulations to 
eliminate all references to ``sending'' solicitations. These commenters 
believed that the statute only concerns the use of eligibility 
information to ``make'' solicitations and does not address ``sending'' 
solicitations. Commenters expressed concern that by referring to

[[Page 62922]]

``sending'' solicitations, the proposal would apply the notice and opt-
out requirements to servicers that send solicitations on behalf of 
another entity.
    The Agencies have revised the final rules to eliminate all combined 
references to ``making or sending'' solicitations. The general rule in 
section 624(a)(1), along with the duration provisions in section 
624(a)(3) and the pre-existing business relationship exception in 
section 624(a)(4)(A), refer to ``making'' or ``to make'' a 
solicitation. Other provisions of the statute, such as the consumer 
choice provision in section 624(a)(2)(A), the service provider 
exception in section 624(a)(4)(C), the non-retroactivity provision in 
section 624(a)(5), and the definition of ``pre-existing business 
relationship'' in section 624(d)(1), refer to ``sending'' or ``to 
send'' a solicitation. The verb ``to send,'' as used in the statute, 
refers to a ministerial act that a service provider, such as a mail 
house, performs for the person making the solicitation, (see 15 U.S.C. 
1681s-3(a)(4)(C)), or indicates the point in time after which 
solicitations are no longer permitted. See 15 U.S.C. 1681s-3(d)(1)(B) 
and (C).
    The Agencies conclude that ``making'' and ``sending'' solicitations 
are different activities and that the focus of the statute is primarily 
on the ``making'' of solicitations. For example, a service provider may 
send a solicitation on behalf of another entity, but it is the entity 
on whose behalf the solicitation is sent that is making the 
solicitation and thus is subject to the general prohibition on making a 
solicitation, unless the consumer is given notice and an opportunity to 
opt out. Accordingly, the Agencies have revised the final rules to 
refer to ``making'' a solicitation, except where the statute 
specifically refers to ``sending'' solicitations.
    The statute, however, does not describe what a person must do in 
order ``to make'' a solicitation. Similarly, the legislative history 
does not contain guidance as to the meaning of ``making'' a 
solicitation. Nevertheless, the Agencies believe it is important to 
provide clear guidance regarding what activities result in making a 
solicitation.
    One commenter suggested that the test for making a solicitation 
should turn on whether an affiliate having a pre-existing business 
relationship with the consumer retains the discretion to determine 
whether or not to send the solicitation. This commenter provided an 
example where a financial institution obtains a list of an affiliate's 
customers from a common shared database, applies its own criteria to 
this list, and then requests the affiliate with an existing business 
relationship to solicit the affiliate's own customers to purchase the 
financial institution's products or services. (Thus, the financial 
institution would be using eligibility information to select a list of 
its affiliate's customers to receive the financial institution's 
marketing materials.) This commenter believed that section 624 should 
not apply so long as the affiliate with the existing business 
relationship has discretion to determine whether or not to send the 
solicitations. This commenter also maintained that the applicability of 
section 624's notice and opt-out requirement should depend on who 
markets the product and not on what the product is or whose product it 
is.
    Nothing in the statute indicates that the discretion of the 
affiliate providing the eligibility information to determine whether or 
not to send a solicitation on behalf of a person who has received 
eligibility information from that affiliate is the test for what 
constitutes making a solicitation. Rather, the statute focuses on 
whether the person receiving eligibility information from an affiliate 
uses that information to market its products or services to consumers. 
A ``discretion to send'' test would also inappropriately link the terms 
``making'' and ``sending'' in a manner that would promote confusion and 
undercut arguments made by commenters urging the Agencies to 
disassociate the two terms. Finally, a ``discretion to send'' test 
could foster circumvention of the notice and opt-out requirement, 
restrict the ability of consumers to prohibit solicitations in a manner 
not contemplated by the statute, and make it difficult for the Agencies 
to administer and enforce the statute.
    Section --.21(b) of the final rules clarifies what constitutes 
``making'' a solicitation for purposes of Subpart C. Section 
--.21(b)(1) provides that a person makes a solicitation for marketing 
purposes to a consumer if: (a) The person receives eligibility 
information from an affiliate; (b) the person uses that eligibility 
information to do one of the following--identify the consumer or type 
of consumer to receive a solicitation, establish the criteria used to 
select the consumer to receive a solicitation, or decide which of its 
products or services to market to the consumer or tailor its 
solicitation to that consumer; and (c) as a result of the person's use 
of the eligibility information, the consumer is provided a solicitation 
about the person's products or services.
    The Agencies recognize that several common industry practices may 
complicate application of the rule outlined in Sec.  --.21(b)(1). 
First, affiliated groups often use a common database as the repository 
for eligibility information obtained by various affiliates, and 
information in that database may be accessible to multiple affiliates. 
Second, affiliated companies often use service providers to perform 
marketing activities, and some of those service providers may provide 
services for a number of different affiliates. Third, an affiliate may 
use its own eligibility information to market the products or services 
of another affiliate. Sections --.21(b)(2)-(5) address these issues.
    Section --.21(b)(2) clarifies that a person may receive eligibility 
information from an affiliate in various ways, including when the 
affiliate places that information into a common database that the 
person may access. Of course, receipt of eligibility information from 
an affiliate is only one element of the rule outlined in Sec.  
--.21(b)(1). In the case of a common database, use of the eligibility 
information will be the key element in determining whether a person has 
made a solicitation.
    Section --.21(b)(3) provides that a person receives or uses an 
affiliate's eligibility information if a service provider acting on 
behalf of the person receives or uses that information in the manner 
described in Sec. Sec.  --.21(b)(1)(i) or (b)(1)(ii), except as 
provided in Sec.  --.21(b)(5), which is discussed below. Section 
--.21(b)(3) also provides that all relevant facts and circumstances 
will determine whether a service provider is acting on behalf of a 
person when it receives or uses an affiliate's eligibility information 
in connection with marketing that person's products or services.
    Section --.21(b)(4) addresses constructive sharing. In the 
supplementary information to the proposal, the Agencies solicited 
comment on whether the notice and opt-out requirements of these rules 
should apply to circumstances that involve a ``constructive sharing'' 
of eligibility information to conduct marketing, given the policy 
objectives of section 214 of the FACT Act. By way of example, in a 
``constructive sharing'' scenario, a consumer has a relationship with a 
financial institution, and the financial institution is affiliated with 
an insurance company. The insurance company develops specific 
eligibility criteria, such as consumers having combined deposit 
balances in excess of $50,000 or average monthly demand account 
deposits in excess of $10,000, without the use of eligibility 
information received from the financial institution. The insurance 
company provides its criteria to the financial

[[Page 62923]]

institution and asks the institution to identify financial institution 
consumers that meet the eligibility criteria and send insurance company 
marketing materials to those consumers. The financial institution sends 
the marketing materials to those consumers who meet the insurance 
company's eligibility criteria. A consumer who meets the eligibility 
criteria contacts the insurance company after receiving the insurance 
company marketing materials in the manner specified in those materials. 
The consumer's response provides the insurance company with discernible 
eligibility information, such as through a response form that is coded 
to identify the consumer as an individual who meets the specific 
eligibility criteria.\14\
---------------------------------------------------------------------------

    \14\ The supplementary information to the proposal noted that 
the notice and opt-out requirement would not apply if, for example, 
an insurance company asked its affiliated financial institution to 
include insurance company marketing material in periodic statements 
sent to consumers by the financial institution without regard to 
eligibility information.
---------------------------------------------------------------------------

    Industry commenters urged the Agencies not to apply the notice and 
opt-out requirement to ``constructive sharing'' situations. The 
principal arguments made by these commenters in support of their 
position were as follows. First, in a constructive sharing scenario, 
there is no sharing of eligibility information among affiliates. 
Rather, the consumer provides information to an affiliate when 
responding. Second, section 624 applies when a person uses eligibility 
information furnished by its affiliate to make a solicitation for its 
own products or services to the consumer. In constructive sharing, 
however, the person does not use eligibility information and does not 
make a solicitation as defined in the statute. Third, the affiliate 
that sends the marketing material has a pre-existing business 
relationship with the consumer and is thus exempt from the notice and 
opt-out requirements. Fourth, if the consumer responds to the marketing 
materials, for example, by returning a response card to an affiliate, 
one or more of the exceptions to the notice and opt-out requirement 
would apply, such as the consumer-initiated communication exception, 
the pre-existing business relationship exception, or both.
    Consumer groups believed that constructive sharing contravenes the 
intent of Congress and amounts to a loophole that should be fixed. 
Similarly, NAAG believed that the letter and spirit of section 624 
required subjecting constructive sharing to the notice and opt-out 
requirements and that to find otherwise would create a significant and 
unwarranted exception.
    After considering the constructive sharing issue, the Agencies 
conclude that the statute only covers situations where a person uses 
eligibility information that it received from an affiliate to make a 
solicitation to the consumer about its products or services. In a 
``constructive sharing'' scenario like that described above, a pre-
existing business relationship is established between the consumer and 
the insurance company when the consumer contacts the insurance company 
to inquire about or apply for insurance products as a result of the 
consumer's receipt of the insurance marketing materials. This pre-
existing business relationship is established before the insurance 
company uses any shared eligibility information to make solicitations 
to the consumer. Because the insurance company does not use shared 
eligibility information to make solicitations to the consumer before it 
establishes a pre-existing business relationship with the consumer, the 
statute does not apply.
    The Agencies acknowledge the concerns expressed by consumer groups 
and NAAG regarding the decision not to apply the notice and opt-out 
requirements to constructive sharing situations. The statute's 
affiliate marketing provisions, however, only limit the use of 
eligibility information received from an affiliate to make 
solicitations to a consumer. A separate provision of the FCRA, section 
603(d)(2)(A)(iii), regulates the sharing of eligibility information 
among affiliates and prohibits the sharing of non-transaction or 
experience information, such as credit scores from a consumer report or 
income from an application, among affiliates, unless the consumer is 
given notice and an opportunity to opt out of such sharing. The FCRA 
does not restrict the sharing of transaction or experience information 
among affiliates unless that information is medical information. 
Section 603(d)(2)(A)(iii) operates independent of the affiliate 
marketing rules. Thus, the existence of a pre-existing business 
relationship between a consumer and an affiliate that seeks to use 
shared eligibility information, such as credit scores or income, to 
market to that consumer (or the applicability of another exception to 
these affiliate marketing rules) does not relieve the entity sharing 
the credit score or income information of the requirement to comply 
with the affiliate sharing notice and opt-out provisions of section 
603(d)(2)(A)(iii) of the FCRA before it shares that non-transaction or 
experience information with its affiliate.\15\
---------------------------------------------------------------------------

    \15\ A sharing of information occurs if a reference code 
included in marketing materials reveals one affiliate's information 
about a consumer to another affiliate upon receipt of a consumer's 
response.
---------------------------------------------------------------------------

    Section --.21(b)(4) describes two situations where a person is 
deemed not to have made a solicitation subject to Subpart C. Both 
situations assume that the person has not used eligibility information 
received from an affiliate in the manner described in Sec.  
--.21(b)(1)(ii). First, a person does not make a solicitation subject 
to Subpart C if that person's affiliate uses its own eligibility 
information that it obtained in connection with a pre-existing business 
relationship it has or had with the consumer to market the person's 
products or services to the consumer. Second, if, in the situation just 
described, the person's affiliate directs its service provider to use 
the affiliate's own eligibility information to market the person's 
products or services to the consumer, and the person does not 
communicate directly with the service provider regarding that use of 
the eligibility information, then the person has not made a 
solicitation subject to Subpart C.
    The core concept underlying the second prong of this provision is 
that the affiliate that obtained the eligibility information in 
connection with a pre-existing business relationship with the consumer 
controls the actions of the service provider using that information. 
Therefore, the service provider's use of the eligibility information 
should not be attributed to the person whose products or services will 
be marketed to consumers. In such circumstances, the service provider 
is acting on behalf of the affiliate that obtained the eligibility 
information in connection with a pre-existing business relationship 
with the consumer, and not on behalf of the person whose products or 
services will be marketed to that affiliate's consumers.
    The Agencies also recognize that there may be situations where the 
person whose products or services are being marketed does communicate 
with the affiliate's service provider. This may be the case, for 
example, where the service provider performs services for various 
affiliates relying on information maintained in and accessed from a 
common database. In certain circumstances, the person whose products or 
services are being marketed may communicate with the affiliate's 
service provider, yet the service provider is still acting on behalf of 
the affiliate when it uses the affiliate's

[[Page 62924]]

eligibility information in connection with marketing the person's 
products or services. Section --.21(b)(5) describes the conditions 
under which a service provider would be deemed to be acting on behalf 
of the affiliate with the pre-existing business relationship, rather 
than the person whose products or services are being marketed, 
notwithstanding direct communications between the person and the 
service provider.
    Section --.21(b)(5) builds upon the concept of control of a service 
provider and thus is a natural outgrowth of Sec.  --.21(b)(4). Under 
the conditions set out in Sec.  --.21(b)(5), the service provider is 
acting on behalf of an affiliate that obtained the eligibility 
information in connection with a pre-existing business relationship 
with the consumer because, among other things, the affiliate controls 
the actions of the service provider in connection with the service 
provider's receipt and use of the eligibility information. This 
provision is designed to minimize uncertainty that may arise from 
application of the facts and circumstances test in Sec.  --.21(b)(3) to 
cases that involve direct communications between a service provider and 
a person whose products and services will be marketed to consumers.
    Section --.21(b)(5) provides that a person does not make a 
solicitation subject to Subpart C if a service provider (including an 
affiliated or third-party service provider that maintains or accesses a 
common database that the person may access) receives eligibility 
information from the person's affiliate that the person's affiliate 
obtained in connection with a pre-existing business relationship it has 
or had with the consumer and uses that eligibility information to 
market the person's products or services to the consumer, so long as 
the following five conditions are met.
    First, the person's affiliate controls access to and use of its 
eligibility information by the service provider (including the right to 
establish specific terms and conditions under which the service 
provider may use such information to market the person's products or 
services). This requirement must be set forth in a written agreement 
between the person's affiliate and the service provider. The person's 
affiliate may demonstrate control by, for example, establishing and 
implementing reasonable policies and procedures applicable to the 
service provider's access to and use of its eligibility information.
    Second, the person's affiliate establishes specific terms and 
conditions under which the service provider may access and use that 
eligibility information to market the person's products or services (or 
those of affiliates generally) to the consumer, and periodically 
evaluates the service provider's compliance with those terms and 
conditions. These terms and conditions may include the identity of the 
affiliated companies whose products or services may be marketed to the 
consumer by the service provider, the types of products or services of 
affiliated companies that may be marketed, and the number of times the 
consumer may receive marketing materials. The specific terms and 
conditions established by the person's affiliate must be set forth in 
writing, but need not be set forth in a written agreement between the 
person's affiliate and the service provider. If a periodic evaluation 
by the person's affiliate reveals that the service provider is not 
complying with those terms and conditions, the Agencies expect the 
person's affiliate to take appropriate corrective action.
    Third, the person's affiliate requires the service provider to 
implement reasonable policies and procedures designed to ensure that 
the service provider uses the affiliate's eligibility information in 
accordance with the terms and conditions established by the affiliate 
relating to the marketing of the person's products or services. This 
requirement must be set forth in a written agreement between the 
person's affiliate and the service provider.
    Fourth, the person's affiliate is identified on or with the 
marketing materials provided to the consumer. This requirement will be 
construed flexibly. For example, the person's affiliate may be 
identified directly on the marketing materials, on an introductory 
cover letter, on other documents included with the marketing materials, 
such as a periodic statement, or on the envelope which contains the 
marketing materials.
    Fifth, the person does not directly use the affiliate's eligibility 
information in the manner described in Sec.  --.21(b)(1)(ii).
    These five conditions together ensure that the service provider is 
acting on behalf of the affiliate that obtained the eligibility 
information in connection with a pre-existing business relationship 
with the consumer because that affiliate controls the service 
provider's receipt and use of that affiliate's eligibility information.
    Section --.21(b)(6) provides six illustrative examples of the rules 
relating to making solicitations as set forth in Sec. Sec.  
--.21(b)(1)-(5).
Exceptions
    Proposed Sec.  --.20(c) contained exceptions to the requirements of 
Subpart C and incorporated each of the statutory exceptions to the 
affiliate marketing notice and opt-out requirements that are set forth 
in section 624(a)(4) of the FCRA. The Agencies have revised the preface 
to the exceptions for clarity to provide that the provisions of Subpart 
C do not apply to ``you'' or ``the bank'' if a person uses eligibility 
information that it receives from an affiliate in certain 
circumstances. In addition, each of the exceptions has been moved to 
Sec.  --.21(c) in the final rules and is discussed below.

Pre-Existing Business Relationship Exception

    Proposed Sec.  --.20(c)(1) provided that the provisions of Subpart 
C would not apply to an affiliate using eligibility information to make 
a solicitation to a consumer with whom the affiliate has a pre-existing 
business relationship. As noted above, a pre-existing business 
relationship exists when: (1) There is a financial contract in force 
between the affiliate and the consumer; (2) the consumer and the 
affiliate have engaged in a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) during the 18 months immediately preceding the date of 
the solicitation; (3) the consumer has purchased, rented, or leased the 
affiliate's goods or services during the 18 months immediately 
preceding the date of the solicitation; or (4) the consumer has 
inquired about or applied for a product or service offered by the 
affiliate during the 3-month period immediately preceding the date of 
the solicitation. Proposed Sec.  --.20(d)(1) provided examples of the 
pre-existing business relationship exception. As explained above, the 
Agencies have revised the examples from proposed Sec.  --.20(d)(1) in 
the final rules and included them as examples of the definition of 
``pre-existing business relationship'' rather than as examples of the 
pre-existing business relationship exception.
    Section --.21(c)(1) of the final rules revises the pre-existing 
business relationship exception to delete the word ``send'' and to 
eliminate as unnecessary the cross-reference to the location of the 
definition of ``pre-existing business relationship.'' As discussed 
above, commenters made a number of suggestions regarding the definition 
of ``pre-existing business relationship.'' The Agencies have

[[Page 62925]]

addressed those comments elsewhere. Most commenters supported the 
proposed text of the pre-existing business relationship exception, 
which generally tracks the statutory language.
    Some commenters, however, apparently believed that the pre-existing 
business relationship exception is broader than it actually is. For 
example, assume that an insurance company has a pre-existing business 
relationship with a consumer and shares eligibility information about 
the consumer with its affiliates by putting that information into a 
common database that is accessible by all affiliates. The insurance 
company's depository institution affiliate accesses the database, 
reviews the data on the insurance company's consumers and, based on its 
review, decides to market to some of the insurance company's consumers. 
Rather than sending the solicitations itself, the depository 
institution asks the insurance company with the pre-existing business 
relationship to send solicitations on its behalf to the insurance 
company's consumers. As noted above, one commenter believed that in 
this circumstance the pre-existing business relationship exception 
would apply so long as the insurance company retained the discretion to 
decide whether or not to send the solicitations on behalf of the 
depository institution. However, the Agencies conclude that this 
situation does not fall within the pre-existing business relationship 
exception. Instead, the depository institution makes the solicitation 
because it used eligibility information received from an affiliate to 
select the consumer to receive a solicitation about its products or 
services and, as a result, the consumer is provided a solicitation. To 
eliminate any confusion and clarify the scope of the exception, the 
Agencies have added an example in Sec.  --.21(d)(1) of the final rules 
to illustrate a situation where the pre-existing business relationship 
exception would apply.

Employee Benefit Plan Exception

    Proposed Sec.  --.20(c)(2) provided that the provisions of Subpart 
C would not apply to an affiliate using the information to facilitate 
communications to an individual for whose benefit the affiliate 
provides employee benefit or other services under a contract with an 
employer related to and arising out of a current employment 
relationship or an individual's status as a participant or beneficiary 
of an employee benefit plan. One commenter believed that the exception 
should be revised to permit communications ``to an affiliate about an 
individual for whose benefit an entity provides employee benefit or 
other services pursuant to a contract with an employer related to and 
arising out of the current employment relationship or status of the 
individual as a participant or beneficiary of an employee benefit 
plan.'' This commenter also suggested deleting the phrase ``you receive 
from an affiliate'' in the introduction to proposed Sec.  --.20(c). 
This commenter believed that this exception should permit an employer 
or plan sponsor to share information with its affiliates in order to 
offer other financial services, such as brokerage accounts or IRAs, to 
its employees. This commenter further requested clarification on 
whether the exception applies only if related to products offered as an 
employee benefit.
    Section --.21(c)(2) of the final rules adopts the employee benefit 
exception as proposed. The Agencies decline to adopt the changes 
suggested by the one commenter. First, the suggestion to make the 
exception applicable to communications ``to an affiliate about an 
individual for whose benefit an entity provides employee benefit or 
other services'' differs from the language of the statute. The language 
of the proposed and final rules focuses on facilitating communications 
``to an individual for whose benefit the person provides employee 
benefit or other services,'' which tracks the statutory language better 
than the alternative language proposed by the commenter.
    Second, the only person to whom section 624 might apply is a person 
that receives eligibility information from an affiliate. Specifically, 
the statutory preface to the exceptions provides that ``[t]his section 
shall not apply to a person'' using information to do certain things. 
The language of the statute thus makes clear that the exceptions in 
section 624(a)(4) of the FCRA were meant to apply to persons that 
otherwise would be subject to section 624. In the case of the employee 
benefit exception, the person using the information is also ``the 
person provid[ing] employee benefit or other services pursuant to a 
contract with an employer.'' Therefore, the Agencies conclude that this 
exception, like the other provisions of Subpart C, should apply only to 
a person that uses eligibility information it receives from an 
affiliate to make solicitations to consumers about its products or 
services.

Service Provider Exception

    Proposed Sec.  --.20(c)(3) provided that the provisions of Subpart 
C would not apply to an affiliate using the information to perform 
services for another affiliate, unless the services involve making or 
sending solicitations on its own behalf or on behalf of an affiliate 
and the service provider or such affiliate is not permitted to make or 
send such solicitations as a result of the consumer's election to opt 
out. Thus, under the proposal, when the notice has been provided to a 
consumer and the consumer has opted out, an affiliate subject to the 
consumer's opt-out election may not circumvent the opt-out by 
instructing the person with the consumer relationship or another 
affiliate to send solicitations to the consumer on its behalf.
    Several industry commenters urged the Agencies to revise the 
proposed exception to conform to the statutory language. Specifically, 
with respect to the exclusion from the service provider exception, 
these commenters recommended that the Agencies delete the references to 
solicitations on behalf of the service provider. Some of these 
commenters maintained that the references to solicitations on behalf of 
the service provider itself would impose additional burdens and costs 
on companies that use a single affiliate to provide various 
administrative services to other affiliates and would make it more 
difficult to provide general educational materials to consumers. Some 
of these commenters also asked the Agencies to clarify that the 
limitation in the service provider exception has no applicability to 
any other exception.
    Section --.21(c)(3) of the final rules revises the service provider 
exception to delete as surplusage the references to solicitations by a 
service provider on its own behalf. The Agencies note that the general 
rule in Sec.  --.21(a)(1) prohibits a service provider from using 
eligibility information it received from an affiliate to make 
solicitations to the consumer about its own products or services unless 
the consumer is given notice and an opportunity to opt out or unless 
one of the other exceptions applies. The service provider exception 
simply allows a service provider to do what the affiliate on whose 
behalf it is acting may do, such as using shared eligibility 
information to make solicitations to consumers to whom the affiliate is 
permitted to make such solicitations. The final rules also delete the 
word ``make'' from the exception to the service provider exception 
because, as discussed above, ``making'' and ``sending'' solicitations 
are distinct activities and this provision of the statute uses the verb 
``to send.'' The Agencies note that, although the statute contains 
separate service provider and

[[Page 62926]]

pre-existing business relationship exceptions, nothing in those 
exceptions prevents an affiliate that has a pre-existing business 
relationship with the consumer from relying upon the service provider 
exception, where appropriate. Section --.21(d)(2) of the final rules 
provides examples of the service provider exception.

Consumer-Initiated Communication Exception

    Proposed Sec.  --.20(c)(4) provided that the provisions of Subpart 
C would not apply to an affiliate using the information to make 
solicitations in response to a communication initiated by the consumer. 
The proposed rule further clarified that this exception may be 
triggered by an oral, electronic, or written communication initiated by 
the consumer.
    The supplementary information noted that to be covered by the 
proposed exception, the use of eligibility information must be 
responsive to the communication initiated by the consumer. The 
supplementary information also explained that the time period during 
which solicitations remain responsive to the consumer's communication 
would depend on the facts and circumstances. As illustrated in the 
example in proposed Sec.  --.20(d)(2)(iii), if a consumer were to call 
an affiliate to ask about retail locations and hours, the affiliate 
could not use eligibility information to make solicitations to the 
consumer about specific products because those solicitations would not 
be responsive to the consumer's communication. Conversely, the example 
in proposed Sec.  --.20(d)(2)(i) illustrated that if the consumer calls 
an affiliate to ask about its products or services and provides contact 
information, solicitations related to those products or services would 
be responsive to the communication and thus permitted under the 
exception. Finally, as illustrated by the example in proposed Sec.  
--.20(d)(2)(ii), the Agencies also contemplated that a consumer would 
not initiate a communication if an affiliate made the initial call and 
left a message for the consumer to call back, and the consumer 
responded.
    Commenters generally supported the text of the proposed consumer-
initiated communication exception. Several commenters, however, urged 
the Agencies to either delete the phrase ``orally, electronically, or 
in writing'' from the regulation or modify the language to read 
``whether orally, electronically, or in writing.'' These commenters 
maintained that other means of communication may be used by consumers 
in the future and should not be precluded by the regulations. Another 
commenter welcomed the reference to oral communications and requested 
that the Agencies clarify that electronic communications refers to both 
e-mail and facsimile transmissions.
    Many industry commenters objected to the statement in the 
supplementary information that to qualify for this exception, the use 
of eligibility information ``must be responsive'' to the communication 
initiated by the consumer. These commenters believed that the concept 
of ``responsiveness'' creates a vague, subjective, and narrow standard 
that could subject institutions to compliance risk. These commenters 
noted that the Agencies did not and could not provide a clear 
definition of what would be ``responsive.'' Some of these commenters 
noted that consumers may not be familiar with the various types of 
products or services available to them and the different affiliates 
that offer those products or services and may rely on the institution 
to inform them about available options. For this reason, most of these 
commenters maintained that the exception should not limit an affiliate 
from responding with solicitations about any product or service. Some 
of these commenters believed that it would be difficult to monitor 
compliance with or to develop scripts for a ``responsiveness'' standard 
by customer service representatives. One commenter noted that the 
Senate bill used more restrictive language in this exception than the 
final bill passed by Congress. Some commenters also objected to the 
statement that the time period during which solicitations remain 
responsive would depend on the facts and circumstances.
    NAAG supported the statement in the supplementary information that, 
to qualify for this exception, the use of eligibility information 
``must be responsive'' to the communication initiated by the consumer. 
NAAG believed this clarification was so important that it should be 
incorporated into the rule itself. NAAG also suggested imposing a 
specific time limit to allow solicitations to be made for no more than 
30 days after the consumer-initiated communication under this 
exception.
    Industry commenters also objected to some of the examples. In 
particular, industry commenters objected to the example in proposed 
Sec.  --.20(d)(2)(i) on two grounds. First, these commenters believed 
that the consumer should not have to supply contact information in 
order to trigger the exception. These commenters noted that such a 
requirement would seem to preclude solicitations over the phone during 
the same call by presuming that a solicitation would be made by mail or 
e-mail. Some of these commenters also believed that consumers would 
expect an affiliated company, especially a company with a common brand, 
to have their contact information already and would not want to provide 
it again. Second, as noted above, some commenters maintained that the 
affiliate should be able to respond by making solicitations about any 
product or service, not just those mentioned by the consumer.
    Many industry commenters objected to the example in proposed Sec.  
--.20(d)(2)(ii) about the consumer responding to a call back message. 
These commenters believed that such a call back should qualify as a 
consumer-initiated communication, noting that the consumer has the 
option of not returning the call. Moreover, these commenters noted that 
the customer service representative receiving the call would not know 
what prompted the consumer's call. Several commenters acknowledged that 
there may be concerns about calls made under false pretenses to prompt 
consumers to return the call but suggested that those concerns should 
be addressed by other means, such as enforcement of the laws dealing 
with unfair or deceptive acts or practices.
    Finally, some industry commenters expressed concerns about the 
example in proposed Sec.  --.20(d)(2)(iii) regarding the consumer who 
calls to ask for retail locations and hours. These commenters noted 
that it is impossible to know what will transpire on a particular 
telephone call. One commenter noted, for example, that if a consumer 
called to ask for directions to an office, the customer service 
representative might ask why the consumer needed to go to that office. 
This, in turn, could prompt the consumer to mention a product or 
service that the consumer hoped to obtain and lead to a discussion of 
specific products or services that might be appropriate for the 
consumer.
    Section --.21(c)(4) of the final rules revises the consumer-
initiated communications exception to delete the reference to oral, 
electronic, or written communications. The Agencies believe that any 
form of communication may come within the exception as long as the 
consumer initiates the communication, whether in-person or by mail, e-
mail, telephone, facsimile, or through other means. New forms of 
communication that may develop in the future could also come within the 
exception.
    Section --.21(c)(4) of the final rules also provides that the 
communications

[[Page 62927]]

covered by the exception are consumer-initiated communications about a 
person's products or services. For the exception to apply, the statute 
requires that a person use eligibility information ``in response to'' a 
communication initiated by a consumer. The Agencies believe this 
statutory language contemplates that the consumer-initiated 
communications will relate to a person's products or services and that 
the solicitations covered by the exception will be those made in 
response to that communication.
    The Agencies also believe the exceptions should be construed 
narrowly to avoid undermining the general rule requiring notice and opt 
out. Thus, consistent with the purposes of the statute, the Agencies do 
not believe that a consumer-initiated communication that is unrelated 
to a product or service should trigger the exception. A rule that 
allowed any consumer-initiated communication, no matter how unrelated 
to a product or service, to trigger the exception would not to give 
meaning to the phrase ``in response to'' and could produce incongruous 
results. For example, if a consumer calls an affiliate solely to obtain 
retail hours and directions or solely to opt out, the exception is not 
triggered because the communication does not relate to the affiliate's 
products or services and making a solicitation about products or 
services to the consumer in those circumstances would not be a 
reasonable response to that communication.
    The Agencies recognize, however, that if the conversation shifts to 
a discussion of products or services that the consumer may need, 
solicitations may be responsive depending upon the facts and 
circumstances. Likewise, if a consumer who has opted out of an 
affiliate's use of eligibility information to make solicitations calls 
the affiliate for information about a particular product or service, 
for example, life insurance, solicitations regarding life insurance 
could be made in response to that call, but solicitations regarding 
other products or services would not be responsive. Finally, the 
Agencies do not believe it is appropriate to adopt a specific time 
limit for making solicitations following a consumer-initiated 
communication about products or services because solicitations will 
likely be made quickly and any time limit would be arbitrary.
    In the final rules, the Agencies have renumbered the example in 
proposed Sec.  --.20(d)(2)(i) as Sec.  --.21(d)(3)(i), and revised it 
to delete the references to a telephone call as the specific form of 
communication and the reference to providing contact information. As 
discussed above and illustrated in the examples in Sec. Sec.  
--.20(b)(4)(ii)(E) and (F), the need to provide contact information may 
vary depending on the form of communication used by the consumer. The 
new example in Sec.  --.21(d)(3)(ii) responds to commenters' concerns 
by illustrating a circumstance involving a consumer-initiated 
communication in which a consumer does not know exactly what products 
or services he or she wants, but initiates a communication to obtain 
information about investing for a child's college education.
    The Agencies have renumbered the call-back example in proposed 
Sec.  --.20(d)(2)(iii) as Sec.  --.21(d)(3)(iii) and revised it. The 
revised example provides that where the financial institution makes an 
initial marketing call without using eligibility information received 
from an affiliate and leaves a message that invites the consumer to 
apply for the credit card by calling a toll-free number, the consumer's 
response qualifies as a consumer-initiated communication about a 
product or service. The revised example balances commenters' concerns 
about tracking which calls are call backs and the Agencies' concerns 
that consumers may be induced into triggering the consumer-initiated 
communication exception as a result of inaccurate, incomplete, or 
deceptive telephone messages. Moreover, the revised example is similar 
to a provision in the Board's Regulation Z commentary, 12 CFR part 226, 
supplement I, Sec.  226.5a(a)(3)-2.
    For the reasons discussed above, the Agencies have renumbered the 
retail hours example in proposed Sec.  --.20(d)(2)(iv) as Sec.  
--.21(d)(3)(iv), but otherwise adopted it as proposed. In addition, the 
new example in Sec.  --.21(d)(3)(v) responds to commenters' concerns by 
illustrating a case where a consumer calls to ask about retail 
locations and hours and the call center representative, after eliciting 
information about the reason why the consumer wants to visit a retail 
location, offers to provide information about products of interest to 
the consumer by telephone and mail, thus demonstrating how the 
conversation may develop to the point where making solicitations would 
be responsive to the consumer's call.

Consumer Authorization or Request Exception

    Proposed Sec.  --.20(c)(5) clarified that the provisions of Subpart 
C would not apply to an affiliate using the information to make 
solicitations affirmatively authorized or requested by the consumer. 
The proposal further provided that this exception may be triggered by 
an oral, electronic, or written authorization or request by the 
consumer. However, a pre-selected check box or boilerplate language in 
a disclosure or contract would not constitute an affirmative 
authorization or request under the proposal.
    The proposal noted that the consumer authorization or request 
exception could be triggered, for example, if a consumer obtains a 
mortgage from a mortgage lender and authorizes or requests to receive 
solicitations about homeowner's insurance from an insurance affiliate 
of the mortgage lender. The consumer could provide the authorization or 
make the request either through the person with whom the consumer has a 
business relationship or directly to the affiliate that will make the 
solicitation. Proposed Sec.  --.20(d)(3) provided an example of the 
affirmative authorization or request exception.
    Most industry commenters argued that the proposed exception did not 
track the language of the statute because the Agencies included the 
word ``affirmative'' in the proposed exception. These commenters 
believed that including the word ``affirmative'' in the proposed rules 
narrowed the exception in a manner not intended by Congress. Several of 
these commenters noted that the Agencies had declined to specify what 
constitutes consumer consent under the GLBA privacy rules and indicated 
that they were not aware of any policy considerations or compliance 
issues that would warrant a departure from the Agencies' prior 
position.
    Some industry commenters believed that a pre-selected check box 
should be sufficient to evidence a consumer's authorization or request 
for solicitations. In other words, a consumer's decision not to 
deselect a pre-selected check box should constitute a knowing act of 
the consumer to authorize or request solicitations. Other industry 
commenters believed that preprinted language in a disclosure or 
contract should be sufficient to evidence a consumer's authorization or 
request for solicitations. One commenter cited case law and FTC 
informal staff opinion letters relating to a consumer's written 
instructions to obtain a consumer report pursuant to section 604(a)(2) 
of the FCRA as support for allowing boilerplate language to constitute 
authorization or request.
    A few industry commenters requested that the Agencies clarify that 
a consumer's authorization or request does not have to refer to a 
specific

[[Page 62928]]

product or service or to a specific provider of products or services in 
order for the exception to apply. As discussed above, industry 
commenters had differing views regarding the reference to oral, 
written, or electronic means of triggering the exception.
    NAAG suggested imposing a specific time limit to allow 
solicitations to be made for no more than 30 days after the consumer's 
authorization or request under this exception.
    Section --.21(c)(5) of the final rules revises the consumer 
authorization or request exception to delete the word ``affirmative'' 
as surplusage. The deletion of the word ``affirmative'' does not change 
the meaning of the exception however. The consumer still must take 
affirmative steps to ``authorize'' or ``request'' solicitations.
    The Agencies construe this exception, like the other exceptions, 
narrowly and in a manner that does not undermine the general notice and 
opt-out requirement. For that reason, the Agencies believe that 
affiliated companies cannot avoid use of the statute's notice and opt-
out provisions by including preprinted boilerplate language in the 
disclosures or contracts they provide to consumers, such as language 
stating that by applying to open an account, the consumer authorizes or 
requests to receive solicitations from affiliates. Such an 
interpretation would permit the exception to swallow the rule, a result 
that cannot be squared with the intent of Congress to give consumers 
notice and an opportunity to opt out of solicitations.
    The comparison made by some commenters to the GLBA privacy rules is 
misplaced. The GLBA and the privacy rules create an exception to permit 
the disclosure of nonpublic personal information ``with the consent or 
at the direction of the consumer.'' Section 624 of the FCRA creates an 
exception to permit the use of shared eligibility information ``in 
response to solicitations authorized or requested by the consumer.'' 
The Agencies interpret the ``authorized or requested'' language in the 
FCRA exception to require the consumer to take affirmative steps in 
order to trigger the exception.
    The Agencies have made conforming changes to the example in 
proposed Sec.  --.20(d)(3), which has been renumbered as Sec.  
--.21(d)(4)(i) in the final rules. In addition, the Agencies have added 
three additional examples. The example in Sec.  --.21(d)(4)(ii) 
illustrates how a consumer can authorize or request solicitations by 
checking a blank check box. The examples in Sec. Sec.  --.21(d)(4)(iii) 
and (iv) illustrate that preprinted boilerplate language and a pre-
selected check box would not meet the authorization or request 
exception.
    The Agencies do not believe it is appropriate to set a fixed time 
period for an authorization or request. As noted in the proposal, the 
duration of the authorization or request depends on what is reasonable 
under the facts and circumstances. In addition, an authorization to 
make solicitations to the consumer terminates if the consumer revokes 
the authorization.
    For the same reasons discussed above, the Agencies have deleted the 
reference to oral, electronic, or written communications from this 
exception to track the language of the statute. Further, the Agencies 
do not believe it is necessary to clarify the elements of an 
authorization or request. The statute clearly refers to ``solicitations 
authorized or requested by the consumer.'' The facts and circumstances 
will determine what solicitations have been authorized or requested by 
the consumer.

Compliance With Applicable Laws Exception

    Proposed Sec.  --.20(c)(6) clarified that the provisions of Subpart 
C would not apply to an affiliate if compliance with the requirements 
of section 624 by the affiliate would prevent that affiliate from 
complying with any provision of state insurance laws pertaining to 
unfair discrimination in a state where the affiliate is lawfully doing 
business. See FCRA, section 624(a)(4). The Agencies received no 
comments on this provision. Section --.21(c)(6) of the final rules 
adopts the state insurance law compliance exception as proposed.
    One commenter requested the creation of an additional exception to 
permit the sharing of eligibility information among affiliates that are 
aligned under one line of business within an organization and that 
share common management, branding, and regulatory oversight (i.e., 
banking, securities, and insurance companies). This commenter was 
focused on private banking enterprises. As discussed above, the 
Agencies find no statutory basis for creating such an exception to the 
notice and opt-out requirement.

Relation to Affiliate-Sharing Notice and Opt-Out

    Proposed Sec.  --.20(f) clarified the relationship between the 
affiliate sharing notice and opt-out under section 603(d)(2)(A)(iii) of 
the FCRA and the affiliate marketing notice and opt out in new section 
624 of the FCRA. Specifically, the proposal provided that nothing in 
the affiliate marketing rules limits the responsibility of a company to 
comply with the notice and opt-out provisions of section 
603(d)(2)(A)(iii) of the FCRA before it shares information other than 
transaction or experience information among affiliates to avoid 
becoming a consumer reporting agency.
    One commenter urged the Agencies to delete this provision as 
unnecessary. In the alternative, this commenter requested that the 
Agencies clarify that section 603(d)(2)(A)(iii) applies to the sharing 
of information that would otherwise meet the definition of a ``consumer 
report,'' and that the sharing affiliate does not automatically become 
a consumer reporting agency, but risks becoming a consumer reporting 
agency.
    This provision has been renumbered as Sec.  --.21(e) in the final 
rules. Section --.21(e) has been revised to delete the clause that 
referred to becoming a consumer reporting agency and to substitute in 
its place the neutral phrase ``where applicable.''

Section --.22 Scope and Duration of Opt-Out

Scope of the Opt-Out
    The Agencies addressed issues relating to the scope of the opt-out 
in various sections of the proposal. In the supplementary information 
to the proposal, the Agencies stated that the opt-out would be tied to 
the consumer, rather than to the information. Some industry commenters 
supported the approach of tying the opt-out to the consumer, rather 
than to the information. Other industry commenters, however, believed 
it was inappropriate to tie the opt-out to the consumer and requested 
that institutions have the flexibility to implement the consumer's opt-
out at the account level, rather than at the consumer level. These 
commenters believed that an account-by-account approach would be 
consistent with the menu of opt-out choices provided in this rule and 
the GLBA privacy rules. These commenters also noted that an account-
based approach would provide the consumer with a new notice and 
opportunity to opt out when a former customer decides to re-establish a 
new relationship with the institution.
    Proposed Sec.  --.21(c) provided that the notice could be designed 
to allow a consumer to choose from a menu of alternatives when opting 
out, such as by selecting certain types of affiliates, certain types of 
information, or certain modes of delivery from which to opt out, so 
long as one of the alternatives gave the consumer the opportunity to 
opt out with respect to all affiliates, all

[[Page 62929]]

eligibility information, and all methods of delivering solicitations. 
Several industry commenters objected to the requirement that the 
institution provide a single universal opt-out option that would allow 
consumers to opt out completely of all solicitations. In addition, one 
commenter found the reference to all types of eligibility information 
confusing, while another commenter noted that some institutions may 
want to implement the opt-out on an account-by-account basis.
    Section --.25(d) of the proposal provided that if a consumer's 
relationship with an institution terminated for any reason when a 
consumer's opt-out election was in force, the opt-out would continue to 
apply indefinitely, unless revoked by the consumer. Most industry 
commenters objected to having the opt-out period continue to apply 
indefinitely upon termination of the consumer's relationship with the 
institution. These commenters believed that this approach was not 
supported by the statute, would prove costly and difficult to 
administer, and would require the indefinite tracking of opt-outs. 
These commenters also believed that the five-year opt-out period would 
provide sufficient protection to consumers that terminate their 
relationship. One commenter noted that the proposed rule would impose 
particular hardships on mortgage lenders because those lenders often 
have consumer relationships of very short duration on account of 
selling the loans they originate into the secondary market. Consumer 
groups supported the proposed treatment of opt-outs for terminated 
consumer relationships.
    Upon further examination, the Agencies believe that the scope of 
the opt-out should be addressed comprehensively in a single section of 
the final rules. The Agencies also conclude that tying the opt-out to 
the consumer could have had unintended consequences. For example, if 
the opt-out were tied to the consumer, an institution would have to 
track the consumer indefinitely, even if the consumer's relationship 
with the institution terminated and a new relationship were 
subsequently established with that institution years later. The 
Agencies do not believe that institutions should be required to track 
consumers indefinitely following termination. In addition, an opt-out 
tied to the consumer could apply to the use of all eligibility 
information, not just to eligibility information about the consumer, 
received from an affiliate and used to make solicitations to the 
consumer. It is not clear from the statute or the legislative history 
that Congress intended the opt-out provisions of section 624 to apply 
to eligibility information about consumers other than the consumer to 
whom a solicitation is made. Finally, the Agencies do not believe it is 
necessary to make the opt-out effective in perpetuity upon termination 
of the relationship.
    Section --.22(a) of the final rules brings together these different 
scope considerations to address comprehensively the scope of the opt-
out. Under the revised approach, the scope of the opt-out is derived 
from language of section 624(a)(2)(A) of the FCRA and generally depends 
upon the content of the opt-out notice. Section --.22(a)(1) provides 
that, except as otherwise provided in that section, a consumer's 
election to opt out prohibits any affiliate covered by the opt-out 
notice from using the eligibility information received from another 
affiliate as described in the notice to make solicitations for 
marketing purposes to the consumer.
    Section --.22(a)(2)(i) clarifies that, in the context of a 
continuing relationship, an opt-out notice may apply to eligibility 
information obtained in connection with a single continuing 
relationship, multiple continuing relationships, continuing 
relationships established subsequent to delivery of the opt-out notice, 
or any other transaction with the consumer. Section --.22(a)(2)(ii) 
provides examples of continuing relationships. These examples are 
substantially similar to the examples used in the GLBA privacy rules 
with added references to relationships between the consumer and an 
affiliate.
    Section --.22(a)(3)(i) limits the scope of an opt-out notice that 
is not connected with a continuing relationship. This section provides 
that if there is no continuing relationship between the consumer and a 
person or its affiliate, and if the person or its affiliate provides an 
opt-out notice to a consumer that relates to eligibility information 
obtained in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, the opt-
out notice only applies to eligibility information obtained in 
connection with that transaction. The notice cannot apply to 
eligibility information that may be obtained in connection with 
subsequent transactions or a continuing relationship that may be 
subsequently established by the consumer with the person or its 
affiliate. Section --.22(a)(3)(ii) provides examples of isolated 
transactions.
    Section --.22(a)(4) provides that a consumer may be given the 
opportunity to choose from a menu of alternatives when electing to 
prohibit solicitations. An opt-out notice may give the consumer the 
opportunity to elect to prohibit solicitations from certain types of 
affiliates covered by the opt-out notice but not other types of 
affiliates covered by the notice, solicitations based on certain types 
of eligibility information but not other types of eligibility 
information, or solicitations by certain methods of delivery but not 
other methods of delivery, so long as one of the alternatives is the 
opportunity to prohibit all solicitations from all of the affiliates 
that are covered by the notice. The Agencies continue to believe that 
the language of section 624(a)(2)(A) of the FCRA requires the opt-out 
notice to contain a single opt-out option for all solicitations within 
the scope of the notice.
    The Agencies recognize that consumers could receive a number of 
different opt-out notices, even from the same affiliate. The Agencies 
will monitor industry notice practices and evaluate whether further 
action is needed.
    Section --.22(a)(5) contains a special rule for notice following 
termination of a continuing relationship. This rule provides that a 
consumer must be given a new opt-out notice if, after all continuing 
relationships with a person or its affiliate have been terminated, the 
consumer subsequently establishes a new continuing relationship with 
that person or the same or a different affiliate and the consumer's 
eligibility information is to be used to make a solicitation. This 
special rule affords the consumer and the company a fresh start 
following termination of all continuing relationships by requiring a 
new opt-out notice if a new continuing relationship is subsequently 
established.
    The new opt-out notice must apply, at a minimum, to eligibility 
information obtained in connection with the new continuing 
relationship. The new opt-out notice may apply more broadly to 
information obtained in connection with a terminated relationship and 
give the consumer the opportunity to opt out with respect to 
eligibility information obtained in connection with both the terminated 
and the new continuing relationships. Further, the consumer's failure 
to opt out does not override a prior opt-out election by the consumer 
applicable to eligibility information obtained in connection with a 
terminated relationship that is still in effect, regardless of whether 
the new opt-out notice applies to eligibility information obtained in 
connection

[[Page 62930]]

with the terminated relationship. The final rules also contain an 
example of this special rule. The Agencies note, however, that where a 
consumer was not given an opt-out notice in connection with the initial 
continuing relationship because eligibility information obtained in 
connection with that continuing relationship was not shared with 
affiliates for use in making solicitations, an opt-out notice provided 
in connection with a new continuing relationship would have to apply to 
any eligibility information obtained in connection with the terminated 
relationship that is to be shared with affiliates for use in making 
future solicitations.
Duration and Timing of Opt-Out
    Proposed Sec.  --.25 addressed the duration and effect of the 
consumer's opt-out election. Proposed Sec.  --.25(a) provided that the 
consumer's election to opt out would be effective for the opt-out 
period, which is a period of at least five years beginning as soon as 
reasonably practicable after the consumer's opt-out election is 
received. The supplementary information noted that if a consumer 
elected to opt out every year, a new opt-out period of at least five 
years would begin upon receipt of each successive opt-out election.
    Some industry commenters believed that the proposal was 
inconsistent with the statute because it provided that the opt-out 
period would begin as soon as reasonably practicable after the 
consumer's opt-out election is received. These commenters believed that 
the opt-out period should begin on the date the consumer's opt-out is 
received and that the final rules also should allow institutions a 
reasonable period of time to implement a consumer's initial or renewal 
opt-out election before it becomes effective. Consumer groups believed 
that the requirement to honor an opt-out ``beginning as soon as 
reasonably practicable'' was too vague. These commenters believed that 
a consumer's opt-out should be honored within a specific length of time 
not to exceed 30 days after the consumer responds to the opt-out 
notice.
    A few industry commenters urged the Agencies to allow consumers to 
revoke an opt-out election orally. Other industry commenters requested 
that the final rules include a clear statement that an opt-out period 
may be shortened to a period of less than five years by the consumer's 
revocation of an opt-out election. Consumer groups approved of the 
Agencies' statement that if a consumer opts out again during the five-
year opt-out period, then a new five-year period begins. Consumer 
groups also supported allowing institutions to make the opt-out period 
effective in perpetuity so long as this is clearly disclosed to the 
consumer in the original notice.
    The general provision regarding the duration of the opt-out has 
been renumbered as Sec.  --.22(b) in the final rules, consistent with 
the Agencies' decision to address all scope issues in the same section. 
The Agencies have revised the duration provision to clarify that the 
opt-out period expires if the consumer revokes the opt-out in writing, 
or if the consumer agrees, electronically. The requirement for a 
written or electronic revocation is retained and is consistent with the 
approach taken in the GLBA privacy rules. The Agencies do not believe 
it is necessary or appropriate to permit oral revocation. The Agencies 
note that many of the exceptions to the notice and opt-out requirements 
may be triggered by oral communications, as discussed above, which 
would enable the use of shared eligibility information to make 
solicitations pending receipt of a written or electronic revocation. 
Also, as noted in the proposal, nothing prohibits setting an opt-out 
period longer than five years, including an opt-out period that does 
not expire unless revoked by the consumer.
    The Agencies do not agree that the opt-out period should begin on 
the date the consumer's election to opt out is received. Commenters 
generally recognized that institutions cannot instantaneously implement 
a consumer's opt-out election but need time to do so. The Agencies 
interpret the statutory language to mean that the consumer's opt-out 
election must be honored for a period of at least five years from the 
date such election is implemented. The Agencies believe that Congress 
did not intend for the opt-out period to be shortened to a period of 
less than the five years specified in the statute to reflect the time 
between the date the consumer's opt-out election is received and the 
date the consumer's opt-out election is implemented.
    The Agencies also believe it is neither necessary nor desirable to 
set a mandatory deadline for implementing the consumer's opt-out 
election. A general standard is preferable because the time it will 
reasonably take to implement a consumer's opt-out election may vary.
    Consistent with the special rule for a notice following termination 
of a continuing relationship, the duration of the opt-out is not 
affected by the termination of a continuing relationship. When a 
consumer opts out in the course of a continuing relationship and that 
relationship is terminated during the opt-out period, the opt-out 
remains in effect for the rest of the opt-out period. If the consumer 
subsequently establishes a new continuing relationship while the opt-
out period remains in effect, the opt-out period may not be shortened 
with respect to information obtained in connection with the terminated 
relationship by sending a new opt-out notice to the consumer when the 
new continuing relationship is established, even if the consumer does 
not opt out upon receipt of the new opt-out notice. A person may track 
the eligibility information obtained in connection with the terminated 
relationship and provide a renewal notice to the consumer, or may 
choose not to use eligibility information obtained in connection with 
the terminated relationship to make solicitations to the consumer.
    Proposed Sec.  --.25(c) clarified that a consumer may opt out at 
any time. As explained in the supplementary information to the 
proposal, even if the consumer did not opt out in response to the 
initial opt-out notice or if the consumer's election to opt out was not 
prompted by an opt-out notice, a consumer may still opt out. Regardless 
of when the consumer opts out, the opt-out must be effective for a 
period of at least five years.
    The Agencies received few comments on this provision. Consumer 
groups urged the Agencies to reinforce the continuing nature of the 
right to opt out by requiring institutions to give the opt-out notice 
annually along with the annual GLBA privacy notice. These commenters 
acknowledged that the FCRA does not specifically state that the notice 
is required annually, but noted that the statute also does not say that 
the consumer has only one opportunity to opt out.
    The Agencies have renumbered the provision giving the consumer the 
right to opt out at any time as Sec.  --.22(c) in the final rules, but 
otherwise adopted the provision as proposed. The Agencies find no 
statutory basis for requiring the provision of an annual opt-out notice 
to consumers along with the GLBA privacy notice.

Section --.23 Contents of Opt-Out Notice; Consolidated and Equivalent 
Notices

Contents in General
    Section --.21 of the proposal addressed the contents of the opt-out 
notice. Proposed Sec.  --.21(a) would have required that the opt-out 
notice be clear,

[[Page 62931]]

conspicuous, and concise, and accurately disclose: (1) That the 
consumer may elect to limit a person's affiliate from using eligibility 
information about the consumer that it obtains from that person to make 
or send solicitations to the consumer; (2) if applicable, that the 
consumer's election will apply for a specified period of time and that 
the consumer will be allowed to extend the election once that period 
expires; and (3) a reasonable and simple method for the consumer to opt 
out.
    Some commenters expressed concern about requiring the notice to 
specify the applicable time period and the consumer's right to extend 
the election once the opt-out expires. One commenter believed this 
would require institutions to determine in advance the length of the 
opt-out period. Another commenter urged the Agencies to clarify that 
institutions could subsequently increase the duration of the opt-out or 
make it permanent without providing another notice to the consumer.
    The Agencies have renumbered the provisions addressing the contents 
of the opt-out notice as Sec.  --.23(a) in the final rules and revised 
them. Section --.23(a)(1) of the final rules requires additional 
information in opt-out notices. Section --.23(a)(1)(i) provides that 
all opt-out notices must identify, by name, the affiliate(s) that is 
providing the notice. A group of affiliates may jointly provide the 
notice. If the notice is provided jointly by multiple affiliates and 
each affiliate shares a common name, such as ``ABC,'' then the notice 
may indicate that it is being provided by multiple companies with the 
ABC name or multiple companies in the ABC group or family of companies. 
Acceptable ways of identifying the multiple affiliates providing the 
notice include stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. A representation that the notice is provided by ``the ABC 
banking, credit card, insurance, and securities companies'' applies to 
all companies in those categories, not just some of those companies. 
But if the affiliates providing the notice do not all share a common 
name, then the notice must either separately identify each affiliate by 
name or identify each of the common names used by those affiliates. For 
example, if the affiliates providing the notice do business under both 
the ABC name and the XYZ name, then the notice could list each 
affiliate by name or indicate that the notice is being provided by 
``all of the ABC and XYZ companies'' or by ``the ABC bank and credit 
card companies and the XYZ insurance companies.''
    Section --.23(a)(1)(ii) provides that an opt-out notice must 
contain a list of the affiliates or types of affiliates covered by the 
notice. The notice may apply to multiple affiliates and to companies 
that become affiliates after the notice is provided to the consumer. 
The rules for identifying the affiliates covered by the notice are 
substantially similar to the rules for identifying the affiliates 
providing the notice in Sec.  --.23(a)(1)(i), as described in the 
previous paragraph.
    Sections --.23(a)(1)(iii)-(vii) respectively require the opt-out 
notice to include the following: A general description of the types of 
eligibility information that may be used to make solicitations to the 
consumer; a statement that the consumer may elect to limit the use of 
eligibility information to make solicitations to the consumer; a 
statement that the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires; if the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, a 
statement that the consumer who has chosen to limit marketing offers 
does not need to act again until the consumer receives a renewal 
notice; and a reasonable and simple method for the consumer to opt out. 
The statement described in Sec.  --.23(a)(1)(vi) regarding consumers 
who may have previously opted out does not apply to the model privacy 
form that the Agencies are developing in a separate rulemaking. 
Appropriate use of the model forms in Appendix C will satisfy these 
content requirements.
    The Agencies continue to believe that the opt-out notice must 
specify the length of the opt-out period, if one is provided. However, 
an institution that subsequently chooses to increase the duration of 
the opt-out period that it previously disclosed or honor the opt-out in 
perpetuity has no obligation to provide a revised notice to the 
consumer. In that case, the result is the same as if the institution 
established a five-year opt-out period and then did not send a renewal 
notice at the end of that period. A person receiving eligibility 
information from an affiliate would be prohibited from using that 
information to make solicitations to a consumer unless a renewal notice 
is first provided to the consumer and the consumer does not renew the 
opt-out. So long as no solicitations are made using eligibility 
information received from an affiliate, there would be no violation of 
the statute or regulation for failing to send a renewal notice in this 
situation.
Joint Notice
    Proposed Sec.  --.24(c) permitted a person subject to this rule to 
provide a joint opt-out notice with one or more of its affiliates that 
are identified in the notice, so long as the notice was accurate with 
respect to each affiliate jointly issuing the notice. Under the 
proposal, a joint notice would not have to list each affiliate 
participating in the joint notice by its name, but could state that it 
applies to ``all institutions with the ABC name'' or ``all affiliates 
in the ABC family of companies.''
    One commenter believed that individually listing each company could 
result in long and confusing notices. This commenter suggested revising 
the rule to permit the generic identification of the types of 
affiliates by whom eligibility information may be used to make 
solicitations and to allow the notice to apply to entities that become 
affiliates after the notice is sent.
    In the final rules, the separate joint notice provision has been 
eliminated. Instead, the final rules incorporate the joint notice 
option into the provisions that address which affiliates may provide 
the opt-out notice and the contents of the notice.
Joint Relationships
    The proposal addressed joint relationships in the section dealing 
with delivery of opt-out notices. Proposed Sec.  --.24(d) set out rules 
that would apply when two or more consumers jointly obtain a product or 
service from a person subject to the rule (referred to in the proposed 
regulation as ``joint consumers''), such as a joint checking account. 
It also provided several examples. Under the proposal, a person subject 
to this rule could provide a single opt-out notice to joint 
accountholders. The notice would have had to indicate whether the 
person would consider an opt-out by a joint accountholder as an opt-out 
by all of the associated accountholders, or whether each accountholder 
would have to opt out separately. The person could not require all 
accountholders to opt out before honoring an opt-out direction by one 
of the joint accountholders. Because section 624 of the FCRA deals with 
the use of information for marketing by affiliates, rather than the 
sharing of information among affiliates, comment was requested on 
whether information about a joint account should be allowed to be used 
for making solicitations to a joint consumer who has not opted out.
    Some commenters supported the flexible approach proposed by the

[[Page 62932]]

Agencies for dealing with joint accounts and notice to joint 
accountholders. One commenter suggested providing additional 
flexibility to enable consumers to opt out in certain circumstances, 
such as when eligibility information from a joint account is involved, 
but not in others, such as when eligibility information from an 
individual account is involved. Another commenter, however, believed 
that the provisions regarding joint relationships may not be 
appropriate for the affiliate marketing rule because section 624 
relates to the use of information for marketing to a particular 
consumer, not to the sharing of information among affiliates. Consumer 
groups urged the Agencies to prohibit the use of eligibility 
information about a joint account for making solicitations to a 
consumer who has not opted out if the other joint consumer on the 
account has opted out.
    The Agencies have renumbered the provision addressing joint 
relationships as Sec.  --.23(a)(2) in the final rules. The Agencies 
have deleted the example of joint relationships from the final rules 
because it addressed, in part, the sharing of information, rather than 
the use of information. The Agencies have made other revisions to 
enhance the readability of this provision. The revised provision is 
substantively similar to the joint relationships provision of the GLBA 
privacy rules, except to the extent those rules refer to the sharing of 
information among affiliates.
    The Agencies believe that different issues may arise with regard to 
providing a single opt-out notice to joint consumers in the context of 
this rule, which focuses on the use of information, compared to issues 
that may arise with regard to providing such a notice in the context of 
other privacy rules that focus on the sharing of information. For 
example, a consumer may opt out with respect to affiliate marketing in 
connection with an individually-held account, but not opt out with 
respect to affiliate marketing in connection with a joint relationship. 
In that case, it could be challenging to identify which consumer 
information may and may not be used by affiliates to make solicitations 
to the consumer. Nevertheless, the final rules permit persons providing 
opt-out notices to consumers to provide a single opt-out notice to 
joint consumers.
Alternative Contents
    Proposed Sec.  --.21(d) provided that, where an institution elects 
to give consumers a broader right to opt out of marketing than is 
required by this subpart, the institution would have the ability to 
modify the contents of the opt-out notice to reflect accurately the 
scope of the opt-out right it provides to consumers. This section also 
noted that proposed Appendix C provided a model form that may be 
helpful for institutions that wish to allow consumers to opt out of all 
marketing from the institution and its affiliates, but use of the model 
form is not required. Commenters generally favored the flexibility 
afforded by this provision. The Agencies have renumbered the provision 
addressing alternative contents as Sec.  --.23(a)(3) in the final 
rules, but otherwise adopted it as proposed.
Model Notices
    Section --.23(a)(4) states that model notices are provided in 
Appendix C. The Agencies have provided these model notices to 
facilitate compliance with the rule. However, the final rules do not 
require use of the model notices.
Consolidated and Equivalent Notices
    Proposed Sec.  --.27 provided that an opt-out notice required by 
Subpart C could be coordinated and consolidated with any other notice 
or disclosure required to be issued under any other provision of law, 
including but not limited to the notice described in section 
603(d)(2)(A)(iii) of the FCRA and the notice required by title V of the 
GLBA. In addition, a notice or other disclosure that was equivalent to 
the notice required by this subpart, and that was provided to a 
consumer together with disclosures required by any other provision of 
law, would satisfy the requirements of Subpart C. The proposal 
specifically requested comment on the consolidation of the affiliate 
marketing notice with the GLBA privacy notice and the affiliate sharing 
opt-out notice under section 603(d)(2)(A)(iii) of the FCRA.
    Commenters generally supported the proposed provision. Several 
commenters believed it was probable that most institutions would want 
to provide the affiliate marketing opt-out notice with their existing 
GLBA privacy notice to reduce compliance costs and minimize consumer 
confusion. One commenter believed that institutions would be less 
likely to include the opt-out notice as part of their annual GLBA 
privacy notice because section 214 does not have an annual notice 
requirement.
    The Agencies have moved the provisions addressing consolidated and 
equivalent notices to the section addressing the contents of the notice 
and renumbered those provisions as Sec. Sec.  --.23(b) and (c) 
respectively in the final rules. Otherwise, those provisions have been 
adopted as proposed with one exception. The provision on equivalent 
notices clarifies that an equivalent notice satisfies the requirements 
of Sec.  --.23--not the entire subpart--because the subpart addresses 
many issues besides the content of the notice, such as delivery and 
renewal of opt-outs. The Agencies believe that these provisions are 
related to the contents of the notice and should therefore be included 
in this section.
    The Agencies encourage consolidation of the affiliate marketing 
opt-out notice with the GLBA privacy notice, including the affiliate 
sharing opt-out notice under section 603(d)(2)(A)(iii) of the FCRA, so 
that consumers receive a single notice they can use to review and 
exercise all privacy opt-outs. Consolidation of these notices, however, 
presents special issues. For example, the affiliate marketing opt-out 
may be limited to a period of at least five years, subject to renewal, 
whereas the GLBA privacy and FCRA section 603(d)(2)(A)(iii) opt-out 
notices are not time-limited. This difference, if applicable, must be 
made clear to the consumer. Thus, if a consolidated notice is used and 
the affiliate marketing opt-out is limited in duration, the notice must 
inform consumers that if they previously opted out, they do not need to 
opt out again until they receive a renewal notice when the opt-out 
expires or is about to expire. In addition, as discussed more fully 
below, the Agencies have developed a model privacy form that includes 
the affiliate marketing opt-out. The Agencies expect that once 
published in final form, use of the model privacy form will satisfy the 
requirement to provide an affiliate marketing opt-out notice.

Section --.24 Reasonable Opportunity To Opt Out

    Section --.22(a) of the proposal provided that before a receiving 
affiliate could use eligibility information to make or send 
solicitations to the consumer, the communicating affiliate would have 
to provide the consumer with a reasonable opportunity to opt out 
following delivery of the opt-out notice. Given the variety of 
circumstances in which institutions must provide a reasonable 
opportunity to opt out, the proposal construed the requirement for a 
reasonable opportunity to opt out as a general test that would avoid 
setting a mandatory waiting period in all cases.
    The proposed rules would not have required institutions subject to 
the rule to disclose how long a consumer would have to respond to the 
opt-out notice before eligibility information

[[Page 62933]]

communicated to affiliates could be used to make or send solicitations 
to the consumer, although institutions would have the flexibility to 
include such disclosures in their notices. In this respect, the 
proposed rules were consistent with the GLBA privacy rules.
    Industry commenters generally supported the Agencies' approach of 
treating the requirement for a reasonable opportunity to opt out as a 
general test that would avoid setting a mandatory waiting period. NAAG, 
on the other hand, believed that the Agencies should set a mandatory 
waiting period of at least 45 days from the date of mailing or other 
transmission of the notice because consumers may be ill, away from 
home, or otherwise unable to respond to correspondence promptly.
    Industry commenters generally supported the Agencies' decision not 
to require the disclosure of how long a consumer would have to respond 
to the opt-out notice before eligibility information could be used to 
make or send solicitations to the consumer. Consumer groups believed 
that consumers should be told how long they have to respond to the 
notice before eligibility information could be used by affiliates to 
make or send solicitations and that they may exercise their right to 
opt out at any time.
    The Agencies have renumbered the section addressing a reasonable 
opportunity to opt out as Sec.  --.24 in the final rules, and revised 
it. Section --.24(a) of the final rules retains the approach of 
construing the requirement for a reasonable opportunity to opt out as a 
general test that avoids setting a mandatory waiting period in all 
cases. Given the variety of circumstances in which a reasonable 
opportunity to opt out must be provided, the Agencies believe that the 
appropriate time to permit solicitations may vary depending upon the 
circumstances. A general standard provides flexibility to allow a 
person to use eligibility information it receives from an affiliate to 
make solicitations at an appropriate point in time that may vary 
depending upon the circumstances, while assuring that the consumer is 
given a realistic opportunity to prevent such use of this information. 
In the final rules, the Agencies have retained the approach of not 
requiring affiliate marketing opt-out notices to disclose how long a 
consumer has to respond before eligibility information may be used to 
make solicitations to the consumer or that consumers may exercise their 
right to opt out at any time. However, an institution may, at its 
option, add this information to its opt-out notice.
    Section --.22(b) of the proposal provided examples to illustrate 
what would constitute a reasonable opportunity to opt out. The proposed 
examples would have provided a generally applicable safe harbor for 
opt-out periods of 30 days. As explained in the supplementary 
information to the proposal, although 30 days would be a safe harbor, a 
person subject to this requirement could decide, at its option, to give 
consumers more than 30 days in which to decide whether or not to opt 
out. A shorter waiting period could be adequate in certain situations 
depending on the circumstances.
    Proposed Sec.  --.22(b)(1) contained an example of a reasonable 
opportunity to opt out when the notice was provided by mail. Proposed 
Sec.  --.22(b)(2) contained an example of a reasonable opportunity to 
opt out when the notice was provided by electronic means. The proposed 
examples were consistent with examples used in the GLBA privacy rules.
    Proposed Sec.  --.22(b)(3) contained an example of a reasonable 
opportunity to opt out where, in a transaction conducted 
electronically, the consumer was required to decide, as a necessary 
part of proceeding with the transaction, whether or not to opt out 
before completing the transaction, so long as the institution provided 
a simple process at the Internet Web site that the consumer could use 
at that time to opt out. In this example, the opt-out notice would 
automatically be provided to the consumer, such as through a non-
bypassable link to an intermediate Web page, or ``speedbump.'' The 
consumer would be given a choice of either opting out or not opting out 
at that time through a simple process conducted at the Web site. For 
example, the consumer could be required to check a box right at the 
Internet Web site in order to opt out or decline to opt out before 
continuing with the transaction. However, this example would not cover 
a situation where the consumer was required to send a separate e-mail 
or visit a different Internet Web site in order to opt out.
    Proposed Sec.  --.22(b)(4) illustrated that including the affiliate 
marketing opt-out notice in a notice under the GLBA would satisfy the 
reasonable opportunity standard. In such cases, the consumer would be 
allowed to exercise the opt-out in the same manner and would be given 
the same amount of time to exercise the opt-out as is provided for any 
other opt-out provided in the GLBA privacy notice.
    Proposed Sec.  --.22(b)(5) illustrated how an ``opt-in'' could meet 
the requirement to provide a reasonable opportunity to opt out. 
Specifically, if an institution has a policy of not allowing its 
affiliates to use eligibility information to market to consumers 
without the consumer's affirmative consent, providing the consumer with 
an opportunity to ``opt in'' or affirmatively consent to such use would 
constitute a reasonable opportunity to opt out. The supplementary 
information clarified that the consumer's affirmative consent must be 
documented and that a pre-selected check box would not evidence the 
consumer's affirmative consent.
    Some industry commenters supported the proposed 30-day safe harbor 
and the examples illustrating the safe harbor. Other industry 
commenters, however, expressed concern that the 30-day safe harbor 
would become the mandatory minimum waiting period in virtually all 
cases, particularly because of the risk of civil liability. For this 
reason, some industry commenters objected to the use of examples 
altogether and urged that the Agencies delete the proposed examples. 
Other industry commenters asked the Agencies to include only the 
examples from the GLBA.
    Consumer groups believed that the safe harbor should be 45 days, 
rather than 30 days. These commenters believed that 45 days was 
necessary in part to account for the time consumed in mail deliveries 
and in part to avoid penalizing consumers who are away from home for 
vacation or illness.
    Regarding the specific examples, a few commenters objected to the 
example in proposed Sec.  --.22(b)(2), stating that the acknowledgement 
of receipt requirement would be inconsistent with the Electronic 
Signatures in Global and National Commerce Act (E-Sign Act). One of 
these commenters believed this requirement amounted to an opt in for 
electronic notices. Several commenters believed that the example in 
proposed Sec.  --.22(b)(3) for requesting the consumer to opt out as a 
necessary step in proceeding with an electronic transaction should not 
be limited to electronic transactions, but should be expanded to apply 
to all transaction methods. A number of commenters believed that the 
example in proposed Sec.  --.22(b)(5) should either be deleted or, 
alternatively, should not refer to ``affirmative'' consent. These 
commenters noted that the example in proposed Sec.  --.22(b)(4) allowed 
a person to satisfy the reasonable opportunity standard by permitting 
the consumer to exercise the opt-out in the same manner and giving the 
consumer the same amount of time to exercise the opt-out as provided in 
the GLBA privacy notice

[[Page 62934]]

and that the GLBA rules did not require ``affirmative'' consent.
    The Agencies have renumbered the examples of a reasonable 
opportunity to opt out as Sec.  --.24(b) in the final rules, and 
revised them as discussed below. The Agencies believe the examples are 
helpful in illustrating what constitutes a reasonable opportunity to 
opt out.
    The generally applicable 30-day safe harbor is retained in the 
final rules. The Agencies believe that providing a generally applicable 
safe harbor of 30 days is helpful because it affords certainty to 
entities that choose to follow the 30-day waiting period. Although 30 
days is a safe harbor in all cases, a person providing an opt-out 
notice may decide, at its option, to give consumers more than 30 days 
in which to decide whether or not to opt out. A shorter waiting period 
could be adequate in certain situations, depending on the 
circumstances, in accordance with the general test for a reasonable 
opportunity to opt out. The use of examples and a 30-day safe harbor is 
consistent with the approach followed in the GLBA privacy rules. 
However, the Agencies believe that the examples in these rules should 
differ to some extent from the examples in the GLBA privacy rules 
because the affiliate marketing opt-out requires a one-time, not an 
annual, notice. Further, the affiliate marketing notice may, but need 
not, be included in the GLBA privacy notice.
    In the final rules, the Agencies have retained the example of a 
reasonable opportunity to opt out by mail with revisions for clarity. 
Commenters had no specific objections to this example.
    The Agencies have revised the example of a reasonable opportunity 
to opt out by electronic means and divided it into two subparts in the 
final rules to illustrate the different means of delivering an 
electronic notice. The example illustrates that for notices provided 
electronically, such as by posting the notice at an Internet Web site 
at which the consumer has obtained a product or service, a reasonable 
opportunity to opt out would include giving the consumer 30 days after 
the consumer acknowledges receipt of the electronic notice to opt out 
by any reasonable means. The acknowledgement of receipt aspect of this 
example is consistent with an example in the GLBA privacy regulations. 
The example also illustrates that for notices provided by e-mail to a 
consumer who had agreed to receive disclosures by e-mail from the 
person sending the notice, a reasonable opportunity to opt out would 
include giving the consumer 30 days after the e-mail is sent to elect 
to opt out by any reasonable means. The Agencies do not believe that 
consumer acknowledgement is necessary where the consumer has agreed to 
receive disclosures by e-mail.
    The Agencies have determined that the electronic delivery of 
affiliate marketing opt-out notices does not require consumer consent 
in accordance with the E-Sign Act because neither section 624 of the 
FCRA nor these final rules require that the notice be provided in 
writing. Thus, the Agencies do not believe that the acknowledgement of 
receipt trigger is beyond the scope of their interpretive authority. 
Persons that provide affiliate marketing opt-out notices under this 
Subpart C electronically may do so pursuant to the agreement of the 
consumer, as specified in these rules, or in accordance with the 
requirements of the E-Sign Act.
    The Agencies believe that the example of a consumer who is required 
to opt out as a necessary part of proceeding with the transaction 
should not be limited to electronic transactions. However, rather than 
revising the electronic transactions example, the Agencies have 
retained the electronic transactions example in Sec.  --.24(b)(3) and 
added a new example for in-person transactions in Sec.  --.24(b)(4). 
Together, these examples illustrate that an abbreviated opt-out period 
is appropriate when the consumer is given a ``yes'' or ``no'' choice 
and is not permitted to proceed with the transaction unless the 
consumer makes a choice. For in-person transactions, consumers could be 
provided a form with a question that requires the consumer to write a 
``yes'' or ``no'' to indicate their opt-out preference or a form that 
contains two blank check boxes: One that allows consumers to indicate 
that they want to opt out and one that allows consumers to indicate 
that they do not want to opt out.
    In the final rules, the Agencies have retained the example of 
including the opt-out notice in a privacy notice in Sec.  --.24(b)(5) 
as consistent with the statutory requirement that the Agencies consider 
methods for coordinating and combining notices. The Agencies have 
deleted the example of providing an opt-in as a form of opting out as 
unnecessary and confusing.

Section --.25 Reasonable and Simple Methods of Opting Out

    Section --.23 of the proposal set forth reasonable and simple 
methods of opting out. This section generally tracked the examples of 
reasonable opt-out means from Sec.  --.7(a)(2)(ii) of the GLBA privacy 
regulations with certain revisions to give effect to Congress's mandate 
that methods of opting out be simple. For instance, proposed Sec.  
--.23(a)(2) referred to including a self-addressed envelope with the 
reply form and opt-out notice. The Agencies also contemplated that a 
toll-free telephone number would be adequately designed and staffed to 
enable consumers to opt out in a single phone call.
    Proposed Sec.  --.23(b) set forth methods of opting out that are 
not reasonable and simple, such as requiring the consumer to write a 
letter to the institution or to call or write to obtain an opt-out form 
rather than including it with the notice. This section generally 
tracked the examples of unreasonable opt-out means from Sec.  
--.7(a)(2)(iii) of the GLBA privacy rules. In addition, the proposal 
contained an example of a consumer who agrees to receive the opt-out 
notice in electronic form only, such as by electronic mail or by using 
a process at a Web site. Such a consumer should not be required to opt 
out solely by telephone or paper mail.
    Many industry commenters asked the Agencies to clarify that the 
examples are not the only ways to comply with the rules. These 
commenters believed that, as drafted, the proposal could be interpreted 
as exclusive rules, rather than as examples. These commenters asked the 
Agencies to make clear in the final rules that the methods set out in 
the rules are examples and do not exclude other reasonable and simple 
methods of opting out. A few industry commenters believed that the 
final rules should not include any examples of methods of opting out 
because of the potential for civil liability.
    Many industry commenters also urged the Agencies to use the same 
examples used in the GLBA privacy rules. These commenters did not 
believe that Congress would allow coordinated and consolidated notices, 
but require different methods of opting out. For instance, these 
commenters recommended deleting the reference to a self-addressed 
envelope because there is no such reference in the GLBA privacy rules. 
One commenter noted that its experience with self-addressed envelopes 
was negative because consumers often used the envelopes for other 
purposes resulting in misdirected communications. Industry commenters 
also objected to requiring institutions to provide an electronic opt-
out mechanism to a consumer who agrees to receive an opt-out notice in 
electronic form. These commenters believed this example was unjustified 
and inconsistent with the GLBA privacy rules. Commenters also indicated 
that some institutions may not have the

[[Page 62935]]

technical capabilities to accept electronic opt-outs. Several 
commenters recommended that the Agencies clarify that an institution is 
not obligated to honor opt-outs submitted through means other than 
those designated by the institution.
    Consumer groups generally believed that the proposal appropriately 
tracked the examples in the GLBA privacy regulations with revisions to 
give effect to Congress's mandate that methods of opting out be simple. 
These commenters believed, however, that the proposal was inadequate 
because it provided examples instead of requiring the use of certain 
methods. These commenters believed that the final rule should require 
self-addressed envelopes and require that toll-free numbers be 
adequately designed and staffed to enable consumers to opt out in a 
single phone call. According to these commenters, inadequate and poorly 
trained staff has been a shortcoming of the GLBA opt-out procedures. 
These commenters also recommended that consumers be given the 
opportunity to opt out by a simple check box on payment coupons. 
Finally, these commenters asked the Agencies to clarify that the 
federal standard is a floor and that if the notice is combined with 
other choices made available under other federal and state laws, the 
most consumer-friendly means for opting out should apply.
    The Agencies have renumbered the section addressing reasonable and 
simple methods of opting out as Sec.  --.25 in the final rules, and 
revised it as discussed below. The Agencies have restructured this 
section to include a general rule and examples in separate paragraphs 
(a) and (b) respectively. This revision clarifies that the specific 
methods identified in the rule are examples, not an exhaustive list of 
permissible methods.
    The Agencies believe that including examples in Sec.  --.25(b) is 
helpful. However, the Agencies decline to adopt the GLBA examples 
without change. Section 624 of the FCRA requires the Agencies to ensure 
that the consumer is given reasonable and simple methods of opting out. 
The GLBA did not require simple methods of opting out. The Agencies 
believe that the methods of opting out can, in some instances, be 
simpler than some of the reasonable methods illustrated in the GLBA 
privacy rules. To effectuate the statutory mandate that consumers have 
simple methods of opting out, the Agencies have modified, for purposes 
of this rulemaking, some of the examples of reasonable methods of 
opting out that were used in the GLBA privacy regulations.
    Most of the examples in the final rules are substantially similar 
to those in Sec.  --.23(a) and (b) of the proposal with revisions for 
clarity. The example in Sec.  --.25(b)(1)(ii) has been revised to 
reflect the Agencies' understanding that the reply form and self-
addressed envelope would be included together with the opt-out notice. 
As in the proposal, the Agencies contemplate that a toll-free telephone 
number that consumers may call to opt out, as illustrated by the 
example in Sec.  --.25(b)(1)(iv), would be adequately designed and 
staffed to enable consumers to opt out in a single phone call. In 
setting up a toll-free telephone number that consumers may use to 
exercise their opt-out rights, institutions should minimize extraneous 
messages directed to consumers who are in the process of opting out.
    One new example in Sec.  --.25(b)(1)(v) illustrates that reasonable 
and simple methods include allowing consumers to exercise all of their 
opt-out rights described in a consolidated opt-out notice that includes 
the GLBA privacy, FCRA affiliate sharing, and FCRA affiliate marketing 
opt-outs, by a single method, such as by calling a single toll-free 
telephone number. This example furthers the statutory directive to the 
Agencies to ensure that notices and disclosures may be coordinated and 
consolidated. The final rules also clarify the example renumbered as 
Sec.  --.25(b)(2)(iii) to illustrate that it is not reasonable or 
simple to require a consumer who receives the opt-out notice in 
electronic form, such as through posting at an Internet Web site, to 
opt out solely by paper mail or by visiting a different Web site 
without providing a link to that site.
    Section .25(c) has been added to clarify that each consumer may be 
required to opt out through a specific means, as long as that means is 
reasonable and simple for that consumer. This new section corresponds 
to a provision in the GLBA privacy rules, Sec.  --.7(a)(2)(iv).

Section --.26 Delivery of Opt-Out Notices

General Rule and Examples
    Section --.24 of the proposal addressed the delivery of opt-out 
notices. Proposed Sec.  --.24(a) provided that an institution would 
have to deliver an opt-out notice so that each consumer could 
reasonably be expected to receive actual notice. This standard would 
not have required actual notice. The supplementary information to the 
proposal also clarified that, for opt-out notices delivered 
electronically, the notices could be delivered either in accordance 
with the electronic disclosure provisions in Subpart C or in accordance 
with the E-Sign Act. For example, the institution could e-mail its 
notice to a consumer who agreed to the electronic delivery of 
information or provide the notice on its Internet Web site for a 
consumer who obtained a product or service electronically from that Web 
site. Commenters generally supported the reasonable expectation of 
actual notice standard.
    Proposed Sec.  --.24(b) provided examples to illustrate what would 
constitute delivery of an opt-out notice. Commenters expressed concern 
about the electronic notice example in proposed paragraph (b)(1)(iii). 
Consumer groups objected to this example by pointing to a growing trend 
in which companies require consumers to agree to electronic notices if 
they conduct business on an Internet Web site. These commenters 
believed that there was nothing to ensure that the notice would be 
clearly accessible to consumers on the Web site. These commenters 
believed that, at a minimum, the Agencies should require the notice to 
be sent to the consumer's e-mail address, rather than posted to an 
Internet Web site, where the consumer has expressly opted in to the 
electronic delivery of notices. Some industry commenters objected to 
the acknowledgement of receipt requirement in this example as 
inconsistent with the E-Sign Act. One of these commenters urged the 
Agencies to explicitly incorporate the E-Sign Act into the requirements 
for delivering opt-out notices.
    The Agencies have renumbered the general rule regarding delivery of 
opt-out notices as Sec.  --.26(a) in the final rules and divided the 
examples into positive and negative examples in Sec. Sec.  --.26(b) and 
(c) respectively. In the final rules, the Agencies have retained the 
reasonable expectation of actual notice standard, which does not 
require the institution to determine if the consumer actually received 
the opt-out notice. For example, mailing a printed copy of the opt-out 
notice to the last known mailing address of a consumer satisfies the 
requirement to deliver the opt-out notice so that there is a reasonable 
expectation that the consumer has received actual notice.
    The Agencies have revised some of the examples of a reasonable 
expectation of actual notice for electronic notices. The new example in 
Sec.  --.26(b)(3) illustrates that the reasonable expectation of actual 
notice

[[Page 62936]]

standard would be satisfied by providing notice by e-mail to a consumer 
who has agreed to receive disclosures by e-mail from the person 
providing the notice. The Agencies reiterate that an acknowledgement of 
receipt is not necessary for a notice provided by e-mail to such a 
consumer. Conversely, the example in Sec.  --.26(c)(2) illustrates that 
the reasonable expectation of actual notice standard would not be 
satisfied by providing notice by e-mail to a consumer who has not 
agreed to receive disclosures by e-mail from the person providing the 
notice.
    The revised example in Sec.  --.26(b)(4) illustrates that for a 
consumer who obtains a product or service electronically, the 
reasonable expectation standard would be satisfied by posting the 
notice on the Internet Web site at which the consumer obtains such 
product or services and requiring the consumer to acknowledge receipt 
of the notice. Conversely, the new example in Sec.  --.26(c)(3) 
illustrates that the reasonable expectation standard would not be 
satisfied by posting the notice on the Internet Web site without 
requiring the consumer to acknowledge receipt of the notice. As 
discussed above, the Agencies have determined that the electronic 
delivery of opt-out notices does not require consumer consent in 
accordance with the E-Sign Act because neither section 624 of the FCRA 
nor the final rules require that the notice be provided in writing. 
Thus, requiring an acknowledgement of receipt is within the scope of 
the Agencies' interpretive authority. This example is also consistent 
with an example in the GLBA privacy rules and seems appropriate where 
the notice is posted at an Internet Web site.
    The Agencies decline to require the delivery of electronic notices 
by e-mail. Concerns about the security of e-mail, especially phishing, 
make it inappropriate to require e-mail as the only permissible form of 
electronic delivery for opt-out notices.

Section --.27 Renewal of Opt-Out

    Proposed Sec. --.26 described the procedures for extension of an 
opt-out. Proposed Sec. --.26(a) provided that a receiving affiliate 
could not make or send solicitations to the consumer after the 
expiration of the opt-out period based on eligibility information it 
receives or has received from an affiliate, unless the person 
responsible for providing the initial opt-out notice, or its successor, 
has given the consumer an extension notice and a reasonable opportunity 
to extend the opt-out, and the consumer does not extend the opt-out. 
Thus, if an extension notice was not provided to the consumer, the opt-
out period would continue indefinitely. Proposed Sec. --.26(b) provided 
that each opt-out extension would have to be effective for a period of 
at least five years.
    Proposed Sec. --.26(c) addressed the contents of a clear, 
conspicuous, and concise extension notice and provided flexibility to 
comply in either of two ways. Under one approach, the notice would 
disclose the same items required to be disclosed in the initial opt-out 
notice, along with a statement explaining that the consumer's prior 
opt-out has expired or is about to expire, as applicable, and that if 
the consumer wishes to keep the consumer's opt-out election in force, 
the consumer must opt out again. Under a second approach, the extension 
notice would provide: (1) That the consumer previously elected to limit 
an affiliate from using eligibility information about the consumer that 
it obtains from the communicating affiliate to make or send 
solicitations to the consumer; (2) that the consumer's election has 
expired or is about to expire, as applicable; (3) that the consumer may 
elect to extend the consumer's previous election; and (4) a reasonable 
and simple method for the consumer to opt out. The supplementary 
information to the proposal clarified that institutions would not need 
to provide extension notices if they treated the consumer's opt-out 
election as valid in perpetuity, unless revoked by the consumer.
    Proposed Sec. --.26(d) addressed the timing of the extension notice 
and provided that an extension notice could be given to the consumer 
either a reasonable period of time before the expiration of the opt-out 
period, or any time after the expiration of the opt-out period but 
before solicitations that would have been prohibited by the expired 
opt-out are made to the consumer. The Agencies did not propose to set a 
fixed time for what would constitute a reasonable period of time before 
the expiration of the opt-out period to send an extension notice 
because a reasonable period of time may depend upon the amount of time 
afforded to the consumer for a reasonable opportunity to opt out, the 
amount of time necessary to process opt-outs, and other factors. 
Proposed Sec. --.26(e) made clear that sending an extension notice to 
the consumer before the expiration of the opt-out period does not 
shorten the five-year opt-out period.
    A few industry commenters objected to the fact that the contents of 
the extension notice would differ from the contents of the initial 
notice by requiring that the extension notice inform the consumer that 
the consumer's prior opt-out has expired or is about to expire, as 
applicable, and that the consumer must opt out again to keep the opt-
out election in force. These commenters argued that the added 
disclosure requirement would be costly and provide little benefit to 
consumers. One commenter maintained that the added disclosure 
requirement would make it difficult, if not impossible, to combine the 
extension notice with the GLBA privacy notice. Commenters also 
maintained that the language of the statute, particularly section 
624(a)(1), contemplates that the same notice would satisfy the 
requirements for the initial and extension notices. Consumer groups and 
NAAG recommended that the Agencies define a ``reasonable opportunity'' 
to extend the opt-out as a period of at least 45 days before shared 
eligibility information is used to make solicitations to the consumer.
    The Agencies have renumbered the provisions addressing the 
extension or renewal of opt-outs as Sec. --.27 in the final rules and 
revised them. For purposes of clarity, the final rules refer to a 
``renewal'' notice, rather than an ``extension'' notice.
    Section--.27(a) contains the general rule, which provides that 
after the opt-out period expires, a person may not make solicitations 
based on eligibility information received from an affiliate to a 
consumer who previously opted out unless the consumer has been given a 
compliant renewal notice and a reasonable opportunity to opt out, and 
the consumer does not renew the opt-out. This section also clarifies 
that a person can make solicitations to a consumer after expiration of 
the opt-out period if one of the exceptions in Sec. --.21(c) applies.
    The Agencies decline to set a fixed minimum time period for a 
reasonable opportunity to renew the opt-out as unnecessary and 
inconsistent with the approach taken elsewhere in this rule and in the 
GLBA privacy rules. The provision regarding the duration of the renewed 
opt-out elicited no comment, and it has been retained in 
Sec. --.27(a)(2) of the final rules.
    Section--.27(a)(3) identifies the affiliates who may provide the 
renewal notice. A renewal notice must be provided either by the 
affiliate that provided the previous opt-out notice or its successor, 
or as part of a joint renewal notice from two or more members of an 
affiliated group of companies, or their successors, that jointly 
provided the previous opt-out notice. This rule balances the Agencies' 
goal of ensuring that the notice is

[[Page 62937]]

provided by an entity known to the consumer with a recognition that 
flexibility is required to account for changes in the corporate 
structure that may result from mergers and acquisitions, corporate name 
changes, and other events.
    The Agencies recognize that the content of the extension or renewal 
notice differs from the content of the initial notice. Nothing in the 
statute, however, requires identical content in the initial and renewal 
notices. Moreover, the statute requires the Agencies to provide 
specific guidance to ensure that opt-out notices are clear, 
conspicuous, and concise. It is unreasonable to expect consumers, upon 
receipt of a renewal notice, to remember that they previously opted out 
five years ago (or longer) or, even if they do remember, to know that 
they must opt out again in order to renew their opt-out decision. 
Therefore, to ensure that the renewal notice is meaningful, the 
Agencies conclude that the renewal notice must remind the consumer that 
he or she previously opted out, inform the consumer that the opt-out 
has expired or is about to expire, and advise the consumer that he or 
she must opt out again to renew the opt-out and continue to limit 
solicitations from affiliates. Under the final rules, the renewal 
notice can state that ``the consumer's election has expired or is about 
to expire.'' The Agencies have deleted the words ``as applicable'' so 
that the notice does not have to be tailored to differentiate consumers 
for whom the election ``has expired'' from those for whom the election 
``is about to expire.''
    The Agencies are not persuaded that the additional content of the 
renewal notice will have any impact on the ability to combine the opt-
out notice with the GLBA privacy notice. Even if the language of the 
renewal notice were identical to the initial notice, it still could be 
difficult to avoid honoring a consumer's opt-out in perpetuity if the 
affiliate marketing opt-out notice is incorporated into the GLBA 
privacy notice. Privacy notices typically state that if a consumer has 
previously opted out, it is not necessary for the consumer to opt out 
again. This statement would be accurate with respect to the affiliate 
marketing opt-out only if the consumer's opt-out is honored in 
perpetuity. It would not be accurate, however, if the affiliate 
marketing opt-out is effective only for a limited period of time, 
subject to renewal by the consumer at intervals of five years or 
longer. Thus, if the affiliate marketing opt-out notice was 
consolidated with GLBA privacy notices and were effective for a limited 
period of time, the privacy notices would have to be modified to make 
clear that statements that the consumer does not have to opt out again 
do not apply to the affiliate marketing renewal notice. Therefore, the 
Agencies do not believe that requiring a renewal notice to contain 
information not included in an initial notice will significantly affect 
the ability to incorporate the affiliate marketing opt-out notices into 
GLBA privacy notices because consolidation of the notices is most 
likely to occur when the affiliate marketing opt-out will be honored in 
perpetuity. Entities that prefer not to provide renewal notices may do 
so by honoring the consumer's opt-out in perpetuity. The contents of 
the renewal notice are adopted in Sec. --.27(b) with revisions that 
incorporate the changes to Sec. --.23, as discussed above. 
Section--.27(b) of the final rules also omits the alternative contents 
set forth in the proposal, which the Agencies now believe would be 
unnecessarily duplicative.
    Proposed Sec. --.26(d) addressed the timing of the extension or 
renewal notice and elicited no comment. The Agencies have renumbered 
this provision as Sec. --.27(d) in the final rules, and adopted it with 
technical revisions. As explained in the supplementary information to 
the proposal, providing the renewal notice a reasonable period of time 
before the expiration of the opt-out period would enable institutions 
to begin marketing to consumers who do not renew their opt-out upon 
expiration of the opt-out period. But giving a renewal notice too far 
in advance of the expiration of the opt-out period may confuse 
consumers. The Agencies will deem a renewal notice provided on or with 
the last annual privacy notice required by the GLBA privacy provisions 
sent to the consumer before the expiration of the opt-out period to be 
reasonable in all cases.
    Proposed Sec. --.26(e) regarding the effect of an extension or 
renewal notice on the existing opt-out period elicited no comment. The 
Agencies have renumbered this provision as Sec. --.27(d) in the final 
rules, and adopted it with technical changes.

Section --.28 Effective Date, Compliance Date, and Prospective 
Application

Effective Date and Compliance Date
    Consistent with the requirements of section 624 of the FCRA, the 
proposal indicated that the final rules would become effective six 
months after the date on which they would be issued in final form. The 
Agencies requested comment on whether there was any need to delay the 
mandatory compliance date beyond the effective date specifically to 
permit institutions to incorporate the affiliate marketing opt-out 
notice into their next annual GLBA privacy notice.
    Most industry commenters believed that the Agencies should delay 
the mandatory compliance date until some time after the effective date 
of the final rules. These commenters suggested various periods for 
delaying the mandatory compliance date ranging from three months to 
more than 24 months. Common recommendations were for a delayed 
mandatory compliance date of six, 12, or 18 months.
    Some of these commenters suggested a two-part mandatory compliance 
date consisting of a delayed mandatory compliance date of either three 
or six months for new accounts or for general application and a special 
mandatory compliance date for institutions that intend to consolidate 
their affiliate marketing opt-out notice with their GLBA privacy 
notice. Under this special mandatory compliance date, institutions 
would have to comply at the time they provide their next GLBA privacy 
notice following the effective date of the final rules or a date 
certain, whichever is earlier.
    Industry commenters believed that a delayed mandatory compliance 
date was necessary in order to make significant changes to business 
practices and procedures, to implement necessary operational and 
systems changes, and to design and provide opt-out notices. Industry 
commenters also noted that many institutions would like to send the 
affiliate marketing opt-out notice with their initial or annual GLBA 
privacy notices, both to minimize costs and to avoid consumer 
confusion. These commenters noted that many large institutions provide 
GLBA privacy notices on a rolling basis and that a delayed mandatory 
compliance date was necessary to enable institutions to introduce the 
affiliate marketing opt-out notice into this cycle. One large 
institution estimated that its first-year compliance costs would 
increase by a minimum of $660,000 if it was not able to consolidate the 
affiliate marketing opt-out notice with its GLBA privacy notice. A few 
industry commenters believed that Congress knew that an effective date 
is not necessarily the same as a mandatory compliance date because 
banking regulations commonly have effective dates and mandatory 
compliance dates that differ.
    Consumer groups and NAAG believed that the effective date of the 
final rules

[[Page 62938]]

should be the mandatory compliance date. These commenters believed that 
institutions have had time to prepare for compliance since the FACT Act 
became law in December 2003. Consumer groups believed that if 
institutions need more time to comply, affiliates should cease using 
eligibility information to make solicitations until the notice and 
opportunity to opt out is provided.
    The final rules will become effective January 1, 2008. Consistent 
with the statute's directive that the Agencies ensure that notices may 
be consolidated and coordinated, the mandatory compliance date is 
delayed to give institutions a reasonable amount of time to include the 
affiliate marketing opt-out notice with their initial and annual 
privacy notices. Accordingly, compliance with Subpart C is required not 
later than October 1, 2008. The Agencies believe that delaying the 
mandatory compliance date for approximately one year will give all 
institutions adequate time to develop and distribute opt-out notices 
and give most institutions sufficient time to develop and distribute 
consolidated notices if they choose to do so.
Prospective Application
    Proposed Sec. --.20(e) provided that the provisions of Subpart C 
would not apply to eligibility information that was received by a 
receiving affiliate prior to the date on which compliance with these 
regulations would be required. Some industry commenters supported this 
provision. Other industry commenters, however, believed that the 
proposed rule did not track the statutory language or reflect the 
intent of Congress. These commenters believed that the final rules 
should grandfather all information received by any financial 
institution or affiliate in a holding company prior to the mandatory 
compliance date, and not grandfather only that information received 
prior to the mandatory compliance date by a person that intends to use 
the information to make solicitations to the consumer. Some of these 
commenters recommended, in the alternative, that the Agencies clarify 
that any information placed into a common database by an affiliate 
should be deemed to have been provided to an affiliated person if the 
Agencies opt to retain the prospective application provision as 
proposed. These commenters argued that without such a clarification, 
affiliated companies would have to undertake the costly deconstruction 
of existing databases to ensure compliance.
    In the final rules, the provision addressing prospective 
application has been renumbered as Sec. --.28(c), and revised. The 
Agencies continue to believe that the better interpretation of the non-
retroactivity provision is that it is tied to receipt of eligibility 
information by a person that intends to use the information to make 
solicitations to the consumer. The final rules clarify, however, that a 
person is deemed to receive eligibility information from its affiliate 
when the affiliate places that information in a common database where 
it is accessible by the person, even if the person has not accessed or 
used that information as of the compliance date. For example, assume 
that an affiliate obtains eligibility information about a consumer as a 
result of having a pre-existing business relationship with that 
consumer. The affiliate places that information into a common database 
that is accessible to other affiliates before the mandatory compliance 
date. The final rules do not apply to that information and other 
affiliates may use that information for marketing to the consumer. On 
the other hand, if the affiliate obtains eligibility information about 
the consumer before the mandatory compliance date, but does not either 
place that information into a common database that is accessible to 
other affiliates or otherwise provide that information to another 
affiliate before the mandatory compliance date, the final rules will 
apply to that eligibility information. Further, if the database is 
updated with new eligibility information after the mandatory compliance 
date, the final rules will apply to the new or updated eligibility 
information.
Appendix C
    Appendix A of the proposal contained model forms to illustrate by 
way of example how institutions could comply with the notice and opt-
out requirements of section 624 and the proposed regulations. Appendix 
A included three proposed model forms. Model Form A-1 was a proposed 
form of an initial opt-out notice. Model Form A-2 was a proposed form 
of an extension notice. Model Form A-3 was a proposed form that 
institutions may use if they offer consumers a broader right to opt out 
of marketing than is required by law.
    The proposed model forms were designed to convey the necessary 
information to consumers as simply as possible. The Agencies tested the 
proposed model forms using two widely available readability tests, the 
Flesch reading ease test and the Flesch-Kincaid grade level test, each 
of which generates a readability score.\16\ Proposed Model Form A-1 had 
a Flesch reading ease score of 53.7 and a Flesch-Kincaid grade level 
score of 9.9. Proposed Model Form A-2 had a Flesch reading ease score 
of 57.5 and a Flesch-Kincaid grade level score of 9.6. Proposed Model 
Form A-3 had a Flesch reading ease score of 69.9 and a Flesch-Kincaid 
grade level score of 6.7.
---------------------------------------------------------------------------

    \16\ The Flesch reading ease test generates a score between zero 
and 100, where the higher score correlates with improved 
readability. The Flesch-Kincaid grade level test generates a 
numerical assessment of the grade-level at which the text is 
written.
---------------------------------------------------------------------------

    Commenters generally supported the proposed model forms. As noted 
above, some commenters had concerns about the content of the initial 
and renewal notices. Some industry commenters expressed concern about 
requiring the notice to specify the applicable time period and the 
consumer's right to renew the election once the opt-out expires. 
Industry commenters also suggested revising the language of the notice 
to refer either to ``financial'' information or ``credit eligibility'' 
information for clarity. One commenter suggested deleting the examples 
of the types of information shared with affiliates. Another commenter 
suggested rephrasing the model forms in the passive voice. One 
commenter encouraged the Agencies to clarify that use of the model 
forms provides a safe harbor. Another commenter believed that the 
optional third paragraph of Model Form A-1 should be revised, or an 
alternate paragraph added, to provide guidance on how to clearly 
disclose to consumers that the opt-out may not limit the sharing of 
contact information and other information that does not meet the 
definition of ``consumer report.''
    Consumer groups and NAAG commended the Agencies for reporting the 
Flesch reading ease score and Flesch-Kincaid grade-level score for each 
of the model forms. These commenters urged the Agencies to modify the 
proposed rule to require that any person that does not use the model 
forms must provide a notice that achieves readability scores at least 
as good as the scores for the model forms. Consumer groups also 
suggested adding a sentence about providing the form annually to 
mitigate consumer confusion. These commenters also urged the Agencies 
to adopt a short-form notice.
    The Agencies have revised and expanded the number of model forms to 
reflect changes made to the final rules. In addition, for ease of 
reference, the model forms have been renumbered as

[[Page 62939]]

Appendix C to correspond with Subpart C to which they pertain. The 
Agencies believe that model forms are helpful for entities that give 
notices and beneficial for consumers. The model forms are provided as 
stand-alone documents. However, some persons may choose to combine the 
opt-out notice with other consumer disclosures, such as the GLBA 
privacy notice. Creating a consolidated model form is beyond the scope 
of this rulemaking, but, as discussed above, institutions can combine 
the affiliate marketing opt-out notice with other disclosures, 
including the GLBA privacy notice.
    On March 31, 2006, the Board, FDIC, FTC, NCUA, OCC, and SEC 
released a report entitled Evolution of a Prototype Financial Privacy 
Notice prepared by Kleimann Communication Group, Inc., summarizing 
research that led to the development of a prototype short-form GLBA 
privacy notice. That prototype included an affiliate marketing opt-out 
notice. The prototype assumed that the notice would be provided by the 
affiliate that is sharing eligibility information. The Agencies believe 
that providing model forms in this rule for stand-alone opt-out notices 
that may be used in a more diverse set of circumstances than a model 
privacy form is appropriate and consistent with efforts to develop a 
model privacy form. On March 29, 2007, the Agencies, the FTC, SEC, and 
Commodity Futures Trading Commission published for public comment in 
the Federal Register (72 FR 14,940) a model privacy form that includes 
the affiliate marketing opt-out. Once such a notice is published in 
final form, use of the model privacy form will satisfy the requirement 
to provide an initial affiliate marketing opt-out notice.
    The final rules include five model forms. Model Form C-1 is the 
model for an initial notice provided by a single affiliate. Model Form 
C-2 is the model for an initial notice provided as a joint notice from 
two or more affiliates. Model Form C-3 is the model for a renewal 
notice provided by a single affiliate. Model Form C-4 is the model for 
a renewal notice provided as a joint notice from two or more 
affiliates. Model Form C-5 is a model for a voluntary ``no marketing'' 
opt-out.
    The Agencies tested each of the model forms using two widely-
available readability tests, the Flesch reading ease test and the 
Flesch-Kincaid grade level test. In conducting these tests, the 
Agencies eliminated parenthetical text wherever possible, included the 
optional clauses, and substituted the names of fictional entities, for 
example, ABC Bank or the ABC group of companies, as the names of the 
relevant entities to ensure that the test results were not skewed by 
the inclusion of descriptive text that would not be included in actual 
opt-out notices. The results of these tests are summarized for each of 
the model forms in Table 1 below.
    Although the Agencies encourage the use of these tests as well as 
other types of consumer testing in designing opt-out notices, the 
Agencies decline to adopt a prescriptive approach that requires notices 
to achieve certain scores under the Flesch reading ease or Flesch-
Kincaid grade level tests. Some variation in readability scores is 
inevitable and may be caused by minor differences in the language of 
the notice, such as the name of the entity providing the notice or the 
types of information that may be used for marketing.

                                 Table 1
------------------------------------------------------------------------
                                                               Flesch-
                                                   Flesch      Kincaid
                                                  reading    grade level
                                                 ease score     score
------------------------------------------------------------------------
Model Form C-1................................         50.2         11.5
Model Form C-2................................         51.7         11.5
Model Form C-3................................         54.6          9.7
Model Form C-4................................         54.2          9.8
Model Form C-5................................         81.3          3.8
------------------------------------------------------------------------

    As noted in the proposal, use of the model forms is not mandatory. 
However, appropriate use of the model forms provides a safe harbor. 
There is flexibility to use or not use the model forms, or to modify 
the forms, so long as the requirements of the regulation are met. For 
example, although several of the model forms use five years as the 
duration of the opt-out period, an opt-out period of longer than five 
years may be used and the longer time period substituted in the opt-out 
notices. Alternatively, the consumer's opt-out may be treated as 
effective in perpetuity and, if so, the opt-out notice should omit any 
reference to the limited duration of the opt-out period or the right to 
renew the opt-out.
    The Agencies have revised the model forms so that the disclosure 
regarding the duration of the opt-out may state that the opt-out 
applies either for a fixed number of years or ``at least 5 years.'' 
This revision permits institutions that use a longer opt-out period or 
that subsequently extend their opt-out period to rely on the model 
language. The model form also contains a reference to the consumer's 
right to revoke an opt-out. In addition, language has been added to the 
model forms to clarify that, with an opt-out of limited duration, a 
consumer does not have to opt out again until a renewal notice is sent.

V. Regulatory Analysis

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the 
Agencies have reviewed the final rules and determined that they contain 
collections of information subject to the PRA. The Board made this 
determination under authority delegated to the Board by the Office of 
Management and Budget (OMB). The collections of information required by 
these rules are found in 12 CFR 41.21-41.27, 12 CFR 222.21-222.27, 12 
CFR 334.21-334.27, 12 CFR 571.21-571.27, and 12 CFR 717.21-717.27. The 
Agencies may not conduct or sponsor, and the respondent is not required 
to respond to, an information collection unless it displays a currently 
valid OMB control number. This collection is mandatory (15 U.S.C. 1693 
et seq.). The respondents/recordkeepers are financial institutions that 
share certain information for marketing purposes, and certain consumers 
of their services.
    The final rules impose disclosure requirements on certain 
affiliated companies subject to each Agency's jurisdiction. 
Specifically, the FACT Act and the final rules provide that when a 
company communicates certain information about the consumer 
(``eligibility information'') to an affiliate, the affiliate may not 
use that information to make solicitations for marketing purposes to 
the consumer unless the consumer is given a notice and an opportunity 
to opt-out of that use of the information and the consumer does not 
opt-out.
    In the proposal, the Agencies estimated that the average amount of 
time for a person to prepare an initial notice as required under the 
proposal and distribute the notice to consumers would be approximately 
18 hours. The Agencies recognized that the amount of time needed for 
any particular person subject to the proposed requirements may be 
higher or lower, but believed that this average figure was a reasonable 
estimate. To minimize the compliance costs and burdens for persons, 
particularly small entities, the proposed rule contained model 
disclosures and opt-out notices that may be used to satisfy the 
statutory requirements. The proposed rule gave covered persons 
flexibility to satisfy the notice and opt-out requirement by sending 
the consumer a free-standing opt-out notice or by adding the opt-out 
notice to the

[[Page 62940]]

privacy notices already provided to consumers in accordance with the 
provisions of Title V of the GLBA. For covered persons that choose to 
prepare a free-standing opt-out notice, the time necessary to prepare a 
free-standing opt-out notice would be minimal, because those persons 
could simply copy the model disclosure, making minor adjustments as 
indicated by the model disclosure. Similarly, for covered persons that 
choose to incorporate the opt-out notice into their GLBA privacy 
notices, the time necessary to integrate the model opt-out notice into 
their privacy notices would be minimal. The Agencies estimated that the 
average consumer would take approximately five minutes to respond to 
the notice and opt-out.
    The Agencies did not estimate the burden for preparing and 
distributing extension notices by covered persons that choose to limit 
the duration of the opt-out time period because the minimum effective 
time period for the opt-out is five years. The Agencies proposed to 
estimate the burden for this requirement when they conduct a subsequent 
review of the information collection.

Information Collection

    The Agencies, other than the Board and NCUA, are seeking OMB 
approval to extend for three years, with revision, the information 
collections in connection with this final rule. The Board, under its 
delegated authority from OMB, has approved the implementation of this 
information collection. The NCUA is seeking OMB approval for this new 
collection of information.
    OCC:
    Title: Fair Credit Reporting Affiliate Marketing (12 CFR part 41).
    OMB Number: 1557-0230
    Frequency of Response: On occasion.
    Affected Public: National banks, Federal branches and agencies of 
foreign banks, and their respective operating subsidiaries that are not 
functionally regulated within the meaning of section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5).
    Number of Respondents: 770 National banks and 916,895 Consumers.
    Estimated Time per Response: 18 hours, Prepare and distribute 
notice to consumers, and employee training; 5 minutes, Consumer 
response to opt-out notice.
    Total Estimated Annual Burden: 90,265 hours.
    Board:
    Title: Information Collection Requirements in Connection with 
Regulation V (Fair Credit Reporting Act) (Affiliate Marketing 
Disclosures/Consumer Opt-Out Notices).
    OMB Number: 7100-0308.\17\
---------------------------------------------------------------------------

    \17\ The information collections (ICs) in this rule will be 
incorporated with the Board's Disclosure Requirements Associated 
with Regulation V (OMB No. 7100-0308). The burden estimates provided 
in this rule pertain only to the ICs associated with this final 
rulemaking. The current OMB inventory for Regulation V is available 
at: http://www.reginfo.gov/public/do/PRAMain.
---------------------------------------------------------------------------

    Frequency of Response: On occasion.
    Affected Public: State member banks, branches and agencies of 
foreign banks (other than federal branches, Federal agencies, and 
insured State branches of foreign banks), commercial lending companies 
owned or controlled by foreign banks, Edge and agreement corporations, 
and bank holding companies and affiliates of such holding companies 
(other than depository institutions and consumer reporting agencies).
    Number of Respondents: 2,619 Financial institutions and 638,380 
Consumers.
    Estimated Time per Response: 18 hours, Prepare and distribute 
notice to consumers, and employee training; 5 minutes, Consumer 
response to opt-out notice.
    Total Estimated Annual Burden: 100,423 hours.
    FDIC:
    Title: Affiliate Marketing Disclosures/Consumer Opt-Out Notices.
    OMB Number: 3064-0149.
    Frequency of Response: On occasion.
    Affected Public: Insured state nonmember banks.
    Number of Respondents: 978 Financial institutions and 198,450 
Consumers.
    Estimated Time per Response: 18 hours, Prepare and distribute 
notice to consumers, and employee training; 5 minutes, Consumer 
response to opt-out notice.
    Total Estimated Annual Burden: 34,142 hours.
    OTS:
    Title: Fair Credit Reporting Affiliate Marketing Regulations.
    OMB Number: 1550-0112.
    Frequency of Response: On occasion.
    Affected Public: Savings associations and Federal savings 
association operating subsidiaries that are not functionally regulated 
within the meaning of section 5(c)(5) of the Bank Holding Company Act 
of 1956, as amended (12 U.S.C. 1844(c)(5)).
    Number of Respondents: 609 Financial institutions and 216,783 
Consumers.
    Estimated Time per Response: 18 hours, Prepare and distribute 
notice to consumers, and employee training; 5 minutes, Consumer 
response to opt-out notice.
    Total Estimated Annual Burden: 28,955 hours.
    NCUA:
    Title: Information Collection Requirements in Connection with Fair 
Credit Reporting Act Regulations.
    OMB Number: 3133-New.
    Frequency of Response: On occasion.
    Affected Public: Federal credit unions with CUSO affiliates.
    Number of Respondents: 1,065 Financial institutions and 1,023,693 
Consumers.
    Estimated Time per Response: 18 hours, Prepare and distribute 
notice to consumers, and employee training; 5 minutes, Consumer 
response to opt-out notice.
    Total Estimated Annual Burden: 104,137 hours.
    The Agencies received one comment, from a trade association, in 
response to the PRA section of the proposal. The commenter raised 
concerns that the Agencies' PRA cost estimates conveyed a misleading 
impression of the cost of complying with the affiliate marketing opt-
out rule. The commenter's principal objection was that the cost 
estimates assume that the major cost is that of sending the 
disclosures, rather than processing any opt-out requests and ensuring 
that solicitations are not sent to consumers who have opted-out (or 
have not yet had a reasonable opportunity to opt-out). The commenter 
was concerned that the cost estimates did not reflect the costs 
associated with building compliance systems, such as costs attributed 
to significant database programming, coordination across business 
entities, legal and managerial review, employee training, and business 
process changes. The commenter stated that the PRA analysis did not 
take into account the significant clerical effort needed to comply with 
the proposed rule. The commenter also stated that companies that 
currently provide GLBA privacy and Fair Credit Reporting Act (FCRA) 
affiliate sharing opt-out notices would still incur significant costs 
because (1) unlike under the GLBA opt-out right, the new affiliate 
marketing opt-out right applies to affiliates, and (2) unlike under the 
FCRA affiliate sharing opt-out, the new affiliate marketing opt-out 
right applies to transaction or experience information. The commenter 
objected to the Agencies' use of average figures which take into 
account the fact that some companies may not need to provide affiliate 
marketing opt-out notices to consumers, rather than focusing 
exclusively on the costs to companies that must provide the notice. 
Finally, the commenter stated that

[[Page 62941]]

compliance with the proposed rule would be particularly difficult 
because software modifications and employee training would be required 
to ensure that both bank and affiliate employees have access to 
consumer's transaction or experience information in order to service 
their accounts, but are prevented from using that information to 
solicit business from consumers that have exercised their opt-out 
rights.
    In response, the Agencies continue to believe that 18 hours is a 
reasonable estimate of the average amount of time to prepare and 
distribute an initial notice to consumers and for employee training; 
and five minutes is a reasonable estimate of the average consumer 
response time. The Agencies continue to believe that institutions 
should be able to modify existing database systems and employee 
training programs, used to comply with the GLBA and FCRA notice and 
opt-out requirements, to meet the requirements held in this final rule. 
As required by the PRA, the Agencies' annual burden estimates take into 
account the burden associated with the reporting, recordkeeping, and 
third-party disclosure requirements of the final rules (see 44 U.S.C. 
3502(2); 5 CFR 1320.3(b)). The Agencies also believe that the 
availability of model disclosures and opt-out notices may significantly 
reduce the cost of compliance. In addition, the final rules give 
persons flexibility to provide a joint opt-out notice on behalf of 
multiple affiliates and to define the scope and the duration of the 
opt-out. This flexibility may reduce the cost of compliance by allowing 
covered persons to make choices that are most appropriate for their 
business. Moreover, since the notice is only required to be given once 
for a minimum period of at least five years, the Agencies' estimates 
assume a higher burden will be incurred during the first year of the 
OMB clearance period with a lesser burden incurred during the 
subsequent two years.
    The Agencies have a continuing interest in the public's opinions of 
our collections of information. At any time, comments regarding the 
burden estimate, or any other aspect of this collection of information, 
including suggestions for reducing the burden, may be sent to the 
following:
    OCC: Communications Division, Office of the Comptroller of the 
Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0230, 
250 E Street, SW., Washington, DC 20219. In addition, comments may be 
sent by fax to (202) 874-4448, or by electronic mail to 
[email protected]. You can inspect and photocopy comments at 
the OCC's Public Information Room, 250 E Street, SW., Washington, DC 
20219. For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
5043. Upon arrival, visitors will be required to present valid 
government-issued photo identification and submit to security screening 
in order to inspect and photocopy comments.
    Board: You may submit comments, which should refer to ``Information 
Collection Requirements in Connection with Regulation V (Fair Credit 
Reporting Act) (Affiliate Marketing Disclosures/Consumer Opt-Out 
Notices), 7100-0308'' by any of the following methods:
     Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments on the http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include docket 
number in the subject line of the message.
     Fax: 202-452-3819 or 202-452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., Washington, DC 20551.
    All public comments are available from the Board's Web site at 
www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, 
unless modified for technical reasons. Accordingly, your comments will 
not be edited to remove any identifying or contact information. Public 
comments may also be viewed electronically or in paper in Room MP-500 
of the Board's Martin Building (20th and C Streets, NW.) between 9 a.m. 
and 5 p.m. on weekdays.
    FDIC: You may submit comments, which should refer to ``Affiliate 
Marketing Disclosures/Consumer Opt-Out Notices, 3064-0149,'' by any of 
the following methods:
     http://www.FDIC.gov/regulations/laws/federal/notices.html.
     E-mail: [email protected]. Include ``Affiliate Marketing 
Disclosures/Consumer Opt-Out Notices, 3064-0149,'' in the subject line 
of the message.
     Mail: Steven F. Hanft (202-898-3907), Clearance Officer, 
Attn: Comments, Room MB-2088, Federal Deposit Insurance Corporation, 
550 17th Street, NW., Washington, DC 20429.
     Hand Delivery: Comments may be hand delivered to the guard 
station at the rear of the 550 17th Street Building (located on F 
Street) on business days between 7 a.m. and 5 p.m.
    Public Inspection: All comments received will be posted without 
change to http://www.fdic.gov/regulations/laws/federal/notices.html 
including any personal information provided. Comments may be inspected 
at the FDIC Public Information Center, Room E-1002, 3501 Fairfax Drive, 
Arlington, VA 22226, between 9 a.m. and 5 p.m. on business days.
    OTS: You may submit comments, identified by ``1550-0112 (Fair 
Credit Reporting Affiliate Marketing Regulations),'' by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail address: [email protected]. 
Please include ``1550-0112 (Fair Credit Reporting Affiliate Marketing 
Regulations),'' in the subject line of the message and include your 
name and telephone number in the message.
     Fax: (202) 906-6518.
     Mail: Information Collection Comments, Chief Counsel's 
Office, Office of Thrift Supervision, 1700 G Street, NW, Washington, DC 
20552, Attention: ``1550-0112 (Fair Credit Reporting Affiliate 
Marketing Regulations).''
     Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 
1700 G Street, NW, from 9 a.m. to 4 p.m. on business days, Attention: 
Information Collection Comments, Chief Counsel's Office, Attention: 
``1550-0112 (Fair Credit Reporting Affiliate Marketing Regulations).''
    Instructions: All submissions received must include the agency name 
and OMB Control Number for this information collection. All comments 
received will be posted without change to the OTS Internet Site at 
http://www.ots.treas.gov/pagehtml.cfm?catNumber=67&an=1, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.ots.treas.gov/pagehtml.cfm?catNumber=67&an=1.
    In addition, you may inspect comments at the Public Reading Room, 
1700 G Street, NW., by appointment. To make an appointment for access, 
call (202) 906-5922, send an e-mail to public.info@ots.treas.gov">public.info@ots.treas.gov, or 
send a facsimile transmission to (202) 906-7755. (Prior notice 
identifying the materials you will be requesting will

[[Page 62942]]

assist us in serving you.) We schedule appointments on business days 
between 10 a.m. and 4 p.m. In most cases, appointments will be 
available the next business day following the date we receive a 
request.
    NCUA: You may submit comments by any of the following methods 
(please send comments by one method only):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     NCUA Web Site: http://www.ncua.gov/RegulationsOpinionsLaws/proposedregs/proposedregs.html. Follow the 
instructions for submitting comments.
     E-mail: Address to [email protected]. Include ``[Your 
name] Comments on Information Collection Requirements in Connection 
with Fair Credit,'' in the e-mail subject line.
     Fax: (703) 518-6319. Use the subject line described above 
for e-mail.
     Mail: Address to Neil McNamara, Deputy Chief Information 
Officer, National Credit Union Administration, 1775 Duke Street, 
Alexandria, VA 22314-3428.
     Hand Delivery/Courier: Same as mail address.
    Additionally, you should send a copy of your comments to [Agency] 
Desk Officer, [OMB No.], by mail to U.S. Office of Management and 
Budget, 725 17th Street, NW., 10235, Washington, DC 20503, or 
by fax to (202) 395-6974.

Regulatory Flexibility Act

    OCC: OCC prepared an initial regulatory flexibility analysis as 
required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
in connection with the July 15, 2004 proposed rule. OCC received one 
comment on its regulatory flexibility analysis.
    Under Section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory 
flexibility analysis otherwise required under Section 604 of the RFA is 
not required if an agency certifies, along with a statement providing 
the factual basis for such certification, that the rule will not have a 
significant economic impact on a substantial number of small entities. 
For purposes of the RFA and OCC-regulated entities, a ``small entity'' 
is a national bank with assets of $165 million or less (small national 
bank). Based on its analysis and for the reasons stated below, OCC 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities. OCC's final rule will 
not impact a substantial number of small entities because OCC estimates 
that the final rule will affect no more than 12 out of 948 small 
national banks (approximately 1%) with assets of $165 million or less.
1. Statement of the Need for, and Objectives of, the Final Rule
    The FACT Act amends the FCRA and was enacted, in part, for the 
purpose of allowing consumers to limit the use of eligibility 
information received from an affiliate to make solicitations to the 
consumer. Section 214 of the FACT Act generally prohibits a person from 
using certain information received from an affiliate to make a 
solicitation for marketing purposes to a consumer, unless the consumer 
is given notice and an opportunity and simple method to opt out of the 
making of such solicitations. Section 214 requires the OCC, together 
with the other Agencies, the FTC, and the SEC, to consult and 
coordinate with each other and to prescribe regulations implementing 
section 214 that, to the extent possible, are consistent and 
comparable. OCC is adopting the final rule to implement section 214 of 
the FACT Act. The Supplementary Information contains information on the 
objectives of the final rule.
2. Summary of Issues Raised by Comments in Response to the Initial 
Regulatory Flexibility Analysis
    OCC conducted an initial regulatory flexibility analysis in 
connection with the proposed rule as required by section 3(a) of the 
RFA (5 U.S.C. 603(a)). One commenter, the Mortgage Bankers Association 
(MBA), believed that the Agencies had underestimated compliance costs. 
The issues raised by the MBA are described in the Paperwork Reduction 
Act section of the SUPPLEMENTARY INFORMATION. The MBA's concerns 
applied equally to small entities and larger entities. The MBA did not 
raise any issues unique to small entities.
3. Description and Estimate of Small Entities Affected by the Final 
Rule
    The final rule applies to national banks, Federal branches and 
agencies of foreign banks, and any of their operating subsidiaries that 
are not functionally regulated within the meaning of section 5(c)(5) of 
the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)) 
(national banks). However, the rule's requirements only affect those 
entities with affiliates that choose to structure their marketing 
activities in a manner that triggers the rule's requirements.
    OCC estimates that its final rule could apply to as many as 1,806 
national banks. The OCC also estimates that 1,036 of these national 
banks do not have affiliates and, therefore, will not affected by the 
requirements of the final rule. Of the estimated 770 national banks 
that would be subject to the final rule's requirements, approximately 
12 of these institutions are small national banks with assets of $165 
million or less.
    In addition, small entities that have affiliates may choose not to 
engage in activities that would require compliance with the final rule. 
For example, small entities may choose not to share eligibility 
information with their affiliates for the purpose of making 
solicitations. Alternatively, small entities and their affiliates may 
structure their marketing activities in a way that does not trigger the 
requirement to comply with the final rule, such as by relying upon the 
exceptions to the notice requirement contained in the final rule.
4. Recordkeeping, Reporting, and Other Compliance Requirements
    The final rule requires all national banks, including small 
national banks, to provide opt-out notices and renewal notices to 
consumers in certain circumstances, as discussed in the SUPPLEMENTARY 
INFORMATION section above, and to implement consumers' opt-out 
elections. The final rule contains no requirement to report information 
to the Agencies.
    Small entities that have affiliates, share eligibility information 
with those affiliates, and use that information to make solicitations 
for marketing purposes may be subject to the rule. Small entities that 
do not have affiliates, do not share eligibility information with their 
affiliates for marketing purposes, use shared eligibility information 
for purposes of making solicitations only in accordance with one of the 
exceptions set forth in the final rule, or structure their marketing 
activities to eliminate the need to provide an opt-out notice would not 
be subject to the final rule. The professional skills necessary for 
preparation of the opt-out notice include compliance and/or privacy 
specialists and computer programmers.
5. Steps Taken To Minimize the Economic Impact on Small Entities
    OCC and the other Agencies have attempted to minimize the economic 
impact on small entities by adopting consistent rules and by allowing 
joint notices on behalf of multiple affiliates. In addition, OCC and 
the other Agencies have provided model forms that small institutions 
may, but are not required to, use to minimize the cost of compliance.

[[Page 62943]]

    Board: The Board prepared an initial regulatory flexibility 
analysis as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 
601 et seq.) in connection with the July 15, 2004 proposed rule. The 
Board received one comment on its regulatory flexibility analysis.
    Under Section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory 
flexibility analysis otherwise required under Section 604 of the RFA is 
not required if an agency certifies, along with a statement providing 
the factual basis for such certification, that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on its analysis and for the reasons stated below, the Board 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities.
1. Statement of the Need for, and Objectives of, the Final Rule
    The FACT Act amends the FCRA and was enacted, in part, for the 
purpose of allowing consumers to limit the use of eligibility 
information received from an affiliate to make solicitations to the 
consumer. Section 214 of the FACT Act generally prohibits a person from 
using certain information received from an affiliate to make a 
solicitation for marketing purposes to a consumer, unless the consumer 
is given notice and an opportunity and simple method to opt out of the 
making of such solicitations. Section 214 requires the Board, together 
with the other Agencies, the FTC, and the SEC, to issue regulations 
implementing the section in consultation and coordination with each 
other. The Board received no comments on the reasons for the proposed 
rule. The Board is adopting the final rule to implement Sec.  214 of 
the FACT Act. The SUPPLEMENTARY INFORMATION above contains information 
on the objectives of the final rule.
2. Summary of Issues Raised by Comments in Response to the Initial 
Regulatory Flexibility Analysis
    In accordance with Section 3(a) of the RFA, the Board conducted an 
initial regulatory flexibility analysis in connection with the proposed 
rule. One commenter, the Mortgage Bankers Association (MBA), believed 
that the Board and the other Agencies had underestimated the costs of 
compliance. The issues raised by the MBA are described in the Paperwork 
Reduction Act section above. The MBA's concerns applied equally to 
small entities and larger entities. The MBA did not raise any issues 
unique to small entities.
3. Description and Estimate of Small Entities Affected by the Final 
Rule
    The final rule applies to all banks that are members of the Federal 
Reserve System (other than national banks) and their respective 
operating subsidiaries, branches and Agencies of foreign banks (other 
than Federal branches, Federal Agencies, and insured State branches of 
foreign banks), commercial lending companies owned or controlled by 
foreign banks, and organizations operating under section 25 or 25A of 
the Federal Reserve Act (12 U.S.C. 601 et seq., and 611 et seq.). The 
Board's rule will apply to the following institutions (numbers 
approximate): State member banks (881), operating subsidiaries that are 
not functionally regulated with in the meaning of section 5(c)(5) of 
the Bank Holding Company Act of 1956, as amended (877), U.S. branches 
and agencies of foreign banks (219), commercial lending companies owned 
or controlled by foreign banks (3), and Edge and agreement corporations 
(64), for a total of approximately 2,044 institutions. The Board 
estimates that more than 1,448 of these institutions could be 
considered small entities with assets of $165 million or less.
    All small entities covered by the Board's rule potentially could be 
subject to the final rule. However, small entities that do not have 
affiliates would not be subject to the final rule. In addition, small 
entities that have affiliates may choose not to engage in activities 
that would require compliance with the final rule. For example, small 
entities may choose not to share eligibility information with their 
affiliates for the purpose of making solicitations. Alternatively, 
small entities and their affiliates may structure their marketing 
activities in a way that does not trigger the requirement to comply 
with the final rule, such as by relying upon the exceptions to the 
notice requirement contained in the final rule.
4. Recordkeeping, Reporting, and Other Compliance Requirements
    The final rule requires small entities to provide opt-out notices 
and renewal notices to consumers in certain circumstances, as discussed 
in the SUPPLEMENTARY INFORMATION above. The final rule also requires 
small entities to implement consumers' opt-out elections. The final 
rule contains no requirement to report information to the Agencies.
    Small entities that have affiliates and that share eligibility 
information with those affiliates for purposes of making solicitations 
may be subject to the rule. Small entities that do not have affiliates, 
do not share eligibility information with their affiliates for 
marketing purposes, use shared eligibility information for purposes of 
making solicitations only in accordance with one of the exceptions set 
forth in the final rule, or structure their marketing activities to 
eliminate the need to provide an opt-out notice would not be subject to 
the final rule. The professional skills necessary for preparation of 
the opt-out notice include compliance and/or privacy specialists and 
computer programmers.
5. Steps Taken To Minimize the Economic Impact on Small Entities
    The Board and the other Agencies have attempted to minimize the 
economic impact on small entities by adopting consistent rules and by 
allowing joint notices on behalf of multiple affiliates. In addition, 
the Board and the other Agencies have provided model forms that small 
institutions may, but are not required to, use to minimize the cost of 
compliance.
    FDIC: The FDIC prepared an initial regulatory flexibility analysis 
as required by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.) in connection with the July 15, 2004 proposed rule. The FDIC 
received one comment on its regulatory flexibility analysis.
    Under Section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory 
flexibility analysis otherwise required under Section 604 of the RFA is 
not required if an agency certifies, along with a statement providing 
the factual basis for such certification, that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on its analysis and for the reasons stated below, the FDIC 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities.
1. Statement of the Need for, and Objectives of, the Final Rule
    The FACT Act amends the FCRA and was enacted, in part, for the 
purpose of allowing consumers to limit the use of eligibility 
information received from an affiliate to make solicitations to the 
consumer. Section 214 of the FACT Act generally prohibits a person from 
using certain information received from an affiliate to make a 
solicitation for marketing purposes to a consumer, unless the consumer 
is given notice and an opportunity and simple method to opt out of the 
making of such solicitations. Section 214 requires the FDIC, together 
with the other Agencies, the FTC, and the SEC, to issue regulations 
implementing the section in consultation and coordination with each

[[Page 62944]]

other. The FDIC received no comments on the reasons for the proposed 
rule. The FDIC is adopting the final rule to implement Sec.  214 of the 
FACT Act. The SUPPLEMENTARY INFORMATION above contains information on 
the objectives of the final rule.
2. Summary of Issues Raised by Comments in Response to the Initial 
Regulatory Flexibility Analysis
    In accordance with Section 3(a) of the RFA, the FDIC conducted an 
initial regulatory flexibility analysis in connection with the proposed 
rule. One commenter, the Mortgage Bankers Association (MBA), believed 
that the FDIC and the other Agencies had underestimated the costs of 
compliance. The issues raised by the MBA are described in the Paperwork 
Reduction Act section above. The MBA's concerns applied equally to 
small entities and larger entities. The MBA did not raise any issues 
unique to small entities.
3. Description and Estimate of Small Entities Affected by the Final 
Rule
    The final rule applies to insured state nonmember banks, insured 
state licensed branches of foreign banks, and subsidiaries of such 
entities (except brokers, dealers, persons providing insurance, 
investment companies, and investment advisers). The FDIC's rule will 
apply to a total of approximately 978 institutions. The FDIC estimates 
that more than 542 of these institutions could be considered small 
entities with assets of $165 million or less. All small entities 
covered by the FDIC's rule potentially could be subject to the final 
rule. However, small entities that do not have affiliates would not be 
subject to the final rule. In addition, small entities that have 
affiliates may choose not to engage in activities that would require 
compliance with the final rule. For example, small entities may choose 
not to share eligibility information with their affiliates for the 
purpose of making solicitations. Alternatively, small entities and 
their affiliates may structure their marketing activities in a way that 
does not trigger the requirement to comply with the final rule, such as 
by relying upon the exceptions to the notice requirement contained in 
the final rule.
4. Recordkeeping, Reporting, and Other Compliance Requirements
    The final rule requires small entities to provide opt-out notices 
and renewal notices to consumers in certain circumstances, as discussed 
in the SUPPLEMENTARY INFORMATION above. The final rule also requires 
small entities to implement consumers' opt-out elections. The final 
rule contains no requirement to report information to the Agencies.
    Small entities that have affiliates and that share eligibility 
information with those affiliates for purposes of making solicitations 
may be subject to the rule. Small entities that do not have affiliates, 
do not share eligibility information with their affiliates for 
marketing purposes, use shared eligibility information for purposes of 
making solicitations only in accordance with one of the exceptions set 
forth in the final rule, or structure their marketing activities to 
eliminate the need to provide an opt-out notice would not be subject to 
the final rule. The professional skills necessary for preparation of 
the opt-out notice include compliance and/or privacy specialists and 
computer programmers.
5. Steps Taken To Minimize the Economic Impact on Small Entities
    The FDIC and the other Agencies have attempted to minimize the 
economic impact on small entities by adopting consistent rules and by 
allowing joint notices on behalf of multiple affiliates. In addition, 
the FDIC and the other Agencies have provided model forms that small 
institutions may, but are not required to, use to minimize the cost of 
compliance.
    OTS: OTS prepared an initial regulatory flexibility analysis under 
the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) in 
connection with the July 15, 2004 proposed rule. OTS received one 
comment on its regulatory flexibility analysis.
    Under Section 605(b) of the RFA, 5 U.S.C. 605(b), the regulatory 
flexibility analysis otherwise required under Section 604 of the RFA is 
not required if an agency certifies, along with a statement providing 
the factual basis for such certification, that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on its analysis and for the reasons stated below, OTS certifies 
that this final rule will not have a significant economic impact on a 
substantial number of small entities.
1. Statement of the Need for, and Objectives of, the Final Rule
    The FACT Act amends the FCRA and was enacted, in part, for the 
purpose of allowing consumers to limit the use of eligibility 
information received from an affiliate to make solicitations to the 
consumer. Section 214 of the FACT Act generally prohibits a person from 
using certain information received from an affiliate to make a 
solicitation for marketing purposes to a consumer, unless the consumer 
is given notice and an opportunity and simple method to opt out of the 
making of such solicitations. Section 214 requires OTS, together with 
the other Agencies, the FTC, and the SEC, to consult and coordinate 
with each other and to prescribe regulations implementing the section 
that, to the extent possible, are consistent and comparable. OTS is 
adopting the final rule to implement section 214 of the FACT Act. The 
SUPPLEMENTARY INFORMATION contains information on the objectives of the 
final rule.
2. Summary of Issues Raised by Comments in Response to the Initial 
Regulatory Flexibility Analysis
    OTS conducted an initial regulatory flexibility analysis in 
connection with the proposed rule under section 3(a) of the RFA (5 
U.S.C. 603(a)). One commenter, the Mortgage Bankers Association (MBA), 
believed that the Agencies had underestimated compliance costs. The 
issues raised by the MBA are described in the Paperwork Reduction Act 
section of the SUPPLEMENTARY INFORMATION. The MBA's concerns applied 
equally to small entities and larger entities. The MBA did not raise 
any issues unique to small entities.
3. Description and Estimate of Small Entities Affected by the Final 
Rule
    The final rule applies to all savings associations and federal 
savings associations operating subsidiaries that are not functionally 
regulated within the meaning of section 5(c)(5) of the Bank Holding 
Company Act of 1956, as amended (12 U.S.C. 1844(c)(5). However, the 
rule's requirements only affect those entities with affiliates and that 
choose to structure their marketing activities in a manner that 
triggers the rule's requirements.
    OTS's estimates that its final rule could apply to as many as 609 
savings associations, since that is the number of savings associations 
with affiliates. OTS estimates that 230 of these savings associations 
are small entities with assets of $165 million or less.
    In addition, small entities that have affiliates may choose not to 
engage in activities that would require compliance with the final rule. 
For example, small entities may choose not to share eligibility 
information with their affiliates for the purpose of making 
solicitations. Alternatively, small entities and their affiliates may 
structure their marketing activities in a way that does not trigger the 
requirement to comply with the final rule, such as by relying upon the 
exceptions to the

[[Page 62945]]

notice requirement contained in the final rule.
4. Recordkeeping, Reporting, and Other Compliance Requirements
    The final rule requires all entities, including small savings 
associations, to provide opt-out notices and renewal notices to 
consumers in certain circumstances, as discussed in the SUPPLEMENTARY 
INFORMATION, and to implement consumers' opt-out elections. The final 
rule contains no requirement to report information to the Agencies.
    Small entities that have affiliates, share eligibility information 
with those affiliates, and use that information to make solicitations 
for marketing purposes may be subject to the rule. Small entities that 
do not have affiliates, do not share eligibility information with their 
affiliates for marketing purposes, use shared eligibility information 
for purposes of making solicitations only in accordance with one of the 
exceptions set forth in the final rule, or structure their marketing 
activities to eliminate the need to provide an opt-out notice would not 
be subject to the final rule. The professional skills necessary for 
preparation of the opt-out notice include compliance and/or privacy 
specialists and computer programmers.
5. Steps Taken To Minimize the Economic Impact on Small Entities
    OTS and the other Agencies have attempted to minimize the economic 
impact on small entities by adopting consistent rules and by allowing 
joint notices on behalf of multiple affiliates. In addition, OTS and 
the other Agencies have provided model forms that small institutions 
may, but are not required to, use to minimize the cost of compliance.
    NCUA: The Regulatory Flexibility Act (RFA) requires NCUA to prepare 
an analysis to describe any significant economic impact a proposed 
regulation may have on a substantial number of small entities. 5 U.S.C. 
601-612. NCUA considers credit unions having less than ten million 
dollars in assets to be small for purposes of RFA. NCUA Interpretive 
Ruling and Policy Statement (IRPS) 87-2 as amended by IRPS 03-2. In 
connection with the July 15, 2004 proposed rule, NCUA certified that 
the proposed rule would not have a significant economic impact on a 
substantial number of small credit unions and therefore, a regulatory 
flexibility analysis was not required. Upon further review, the NCUA 
now certifies that the final rule also will not have a significant 
economic impact on a substantial number of small credit unions. The 
rule will apply to all federal credit unions regardless of asset size.

OCC and OTS Executive Order 12866 Determination

    The OCC and OTS each has determined that its portion of the rule is 
not a significant regulatory action under Executive Order 12866.

OCC Executive Order 13132 Determination

    The OCC has determined that this rule does not have any Federalism 
implications, as required by Executive Order 13132.

NCUA Executive Order 13132 Determination

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

OCC and OTS Unfunded Mandates Reform Act of 1995 Determination

    Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 
104-4 (Unfunded Mandates Act) requires that an agency prepare a 
budgetary impact statement before promulgating a rule that includes a 
Federal mandate that may result in expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires an 
agency to identify and consider a reasonable number of regulatory 
alternatives before promulgating a rule. The OCC and OTS each has 
determined that this rule will not result in expenditures by State, 
local, and tribal governments, or by the private sector, of $100 
million or more. Accordingly, neither the OCC nor the OTS has prepared 
a budgetary impact statement or specifically addressed the regulatory 
alternatives considered.

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

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

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

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

List of Subjects

12 CFR Part 41

    Banks, Banking, Consumer protection, National banks, Reporting and 
recordkeeping requirements.

12 CFR Part 222

    Banks, Banking, Consumer protection, Fair Credit Reporting Act, 
Holding companies, Privacy, Reporting and recordkeeping requirements, 
State member banks.

12 CFR Part 334

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

12 CFR Part 571

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

12 CFR Part 717

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

Office of the Comptroller of the Currency

12 CFR Chapter I.

Authority and Issuance

0
For the reasons set forth in the preamble, the OCC amends part 41 of 
chapter I of title 12 of the Code of Federal Regulations as follows:

[[Page 62946]]

PART 41--FAIR CREDIT REPORTING

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

    Authority: 12 U.S.C. 1 et seq., 24 (Seventh), 93a, 481, 484, and 
1818; 15 U.S.C. 1681a, 1681b, 1681c, 1681m, 1681s, 1681s-3, 1681t, 
1681w, 6801, and 6805; Sec. 214, Pub. L. 108-159, 117 Stat. 1952.

0
2. A new Subpart C is added to part 41 to read as follows:
Subpart C--Affiliate Marketing
Sec.
41.20 Scope and definitions.
41.21 Affiliate marketing opt-out and exceptions.
41.22 Scope and duration of opt-out.
41.23 Contents of opt-out notice; consolidated and equivalent 
notices.
41.24 Reasonable opportunity to opt out.
41.25 Reasonable and simple methods of opting out.
41.26 Delivery of opt-out notices.
41.27 Renewal of opt-out.
41.28 Effective date, compliance date, and prospective application.

Subpart C--Affiliate Marketing


Sec.  41.20  Scope and definitions.

    (a) Scope. This subpart applies to national banks, Federal branches 
and agencies of foreign banks, and any of their operating subsidiaries 
that are not functionally regulated within the meaning of section 
5(c)(5) of the Bank Holding Company Act of 1956, as amended (12 U.S.C. 
1844(c)(5)). These entities are referred to in this subpart as 
``banks.''
    (b) Definitions. For purposes of this subpart:
    (1) Clear and conspicuous. The term ``clear and conspicuous'' means 
reasonably understandable and designed to call attention to the nature 
and significance of the information presented.
    (2) Concise. (i) In general. The term ``concise'' means a 
reasonably brief expression or statement.
    (ii) Combination with other required disclosures. A notice required 
by this subpart may be concise even if it is combined with other 
disclosures required or authorized by federal or state law.
    (3) Eligibility information. The term ``eligibility information'' 
means any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the Act did not apply. Eligibility information 
does not include aggregate or blind data that does not contain personal 
identifiers such as account numbers, names, or addresses.
    (4) Pre-existing business relationship. (i) In general. The term 
``pre-existing business relationship'' means a relationship between a 
person, or a person's licensed agent, and a consumer based on--
    (A) A financial contract between the person and the consumer which 
is in force on the date on which the consumer is sent a solicitation 
covered by this subpart;
    (B) The purchase, rental, or lease by the consumer of the person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and the person, during the 18-month 
period immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart; or
    (C) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart.
    (ii) Examples of pre-existing business relationships. (A) If a 
consumer has a time deposit account, such as a certificate of deposit, 
at a depository institution that is currently in force, the depository 
institution has a pre-existing business relationship with the consumer 
and can use eligibility information it receives from its affiliates to 
make solicitations to the consumer about its products or services.
    (B) If a consumer obtained a certificate of deposit from a 
depository institution, but did not renew the certificate at maturity, 
the depository institution has a pre-existing business relationship 
with the consumer and can use eligibility information it receives from 
its affiliates to make solicitations to the consumer about its products 
or services for 18 months after the date of maturity of the certificate 
of deposit.
    (C) If a consumer obtains a mortgage, the mortgage lender has a 
pre-existing business relationship with the consumer. If the mortgage 
lender sells the consumer's entire loan to an investor, the mortgage 
lender has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services for 18 
months after the date it sells the loan, and the investor has a pre-
existing business relationship with the consumer upon purchasing the 
loan. If, however, the mortgage lender sells a fractional interest in 
the consumer's loan to an investor but also retains an ownership 
interest in the loan, the mortgage lender continues to have a pre-
existing business relationship with the consumer, but the investor does 
not have a pre-existing business relationship with the consumer. If the 
mortgage lender retains ownership of the loan, but sells ownership of 
the servicing rights to the consumer's loan, the mortgage lender 
continues to have a pre-existing business relationship with the 
consumer. The purchaser of the servicing rights also has a pre-existing 
business relationship with the consumer as of the date it purchases 
ownership of the servicing rights, but only if it collects payments 
from or otherwise deals directly with the consumer on a continuing 
basis.
    (D) If a consumer applies to a depository institution for a product 
or service that it offers, but does not obtain a product or service 
from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the application.
    (E) If a consumer makes a telephone inquiry to a depository 
institution about its products or services and provides contact 
information to the institution, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (F) If a consumer makes an inquiry to a depository institution by 
e-mail about its products or services, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (G) If a consumer has an existing relationship with a depository 
institution that is part of a group of affiliated companies, makes a 
telephone call to the centralized call center for the group of 
affiliated companies to inquire about products or services offered by 
the insurance affiliate, and provides contact information to the call 
center, the call constitutes an inquiry to the insurance affiliate that 
offers those products or services. The insurance affiliate has a pre-
existing business relationship with the consumer and can therefore use

[[Page 62947]]

eligibility information it receives from its affiliated depository 
institution to make solicitations to the consumer about its products or 
services for three months after the date of the inquiry.
    (iii) Examples where no pre-existing business relationship is 
created. (A) If a consumer makes a telephone call to a centralized call 
center for a group of affiliated companies to inquire about the 
consumer's existing account at a depository institution, the call does 
not constitute an inquiry to any affiliate other than the depository 
institution that holds the consumer's account and does not establish a 
pre-existing business relationship between the consumer and any 
affiliate of the account-holding depository institution.
    (B) If a consumer who has a deposit account with a depository 
institution makes a telephone call to an affiliate of the institution 
to ask about the affiliate's retail locations and hours, but does not 
make an inquiry about the affiliate's products or services, the call 
does not constitute an inquiry and does not establish a pre-existing 
business relationship between the consumer and the affiliate. Also, the 
affiliate's capture of the consumer's telephone number does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate.
    (C) If a consumer makes a telephone call to a depository 
institution in response to an advertisement that offers a free 
promotional item to consumers who call a toll-free number, but the 
advertisement does not indicate that the depository institution's 
products or services will be marketed to consumers who call in 
response, the call does not create a pre-existing business relationship 
between the consumer and the depository institution because the 
consumer has not made an inquiry about a product or service offered by 
the institution, but has merely responded to an offer for a free 
promotional item.
    (5) Solicitation. (i) In general. The term ``solicitation'' means 
the marketing of a product or service initiated by a person to a 
particular consumer that is--
    (A) Based on eligibility information communicated to that person by 
its affiliate as described in this subpart; and
    (B) Intended to encourage the consumer to purchase or obtain such 
product or service.
    (ii) Exclusion of marketing directed at the general public. A 
solicitation does not include marketing communications that are 
directed at the general public. For example, television, general 
circulation magazine, and billboard advertisements do not constitute 
solicitations, even if those communications are intended to encourage 
consumers to purchase products and services from the person initiating 
the communications.
    (iii) Examples of solicitations. A solicitation would include, for 
example, a telemarketing call, direct mail, e-mail, or other form of 
marketing communication directed to a particular consumer that is based 
on eligibility information received from an affiliate.


Sec.  41.21  Affiliate marketing opt-out and exceptions.

    (a) Initial notice and opt-out requirement. (1) In general. A bank 
may not use eligibility information about a consumer that it receives 
from an affiliate to make a solicitation for marketing purposes to the 
consumer, unless--
    (i) It is clearly and conspicuously disclosed to the consumer in 
writing or, if the consumer agrees, electronically, in a concise notice 
that the bank may use eligibility information about that consumer 
received from an affiliate to make solicitations for marketing purposes 
to the consumer;
    (ii) The consumer is provided a reasonable opportunity and a 
reasonable and simple method to ``opt out,'' or prohibit the bank from 
using eligibility information to make solicitations for marketing 
purposes to the consumer; and
    (iii) The consumer has not opted out.
    (2) Example. A consumer has a homeowner's insurance policy with an 
insurance company. The insurance company furnishes eligibility 
information about the consumer to its affiliated depository 
institution. Based on that eligibility information, the depository 
institution wants to make a solicitation to the consumer about its home 
equity loan products. The depository institution does not have a pre-
existing business relationship with the consumer and none of the other 
exceptions apply. The depository institution is prohibited from using 
eligibility information received from its insurance affiliate to make 
solicitations to the consumer about its home equity loan products 
unless the consumer is given a notice and opportunity to opt out and 
the consumer does not opt out.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By an affiliate that has or has previously had a pre-existing 
business relationship with the consumer; or
    (ii) As part of a joint notice from two or more members of an 
affiliated group of companies, provided that at least one of the 
affiliates on the joint notice has or has previously had a pre-existing 
business relationship with the consumer.
    (b) Making solicitations. (1) In general. For purposes of this 
subpart, a bank makes a solicitation for marketing purposes if--
    (i) The bank receives eligibility information from an affiliate;
    (ii) The bank uses that eligibility information to do one or more 
of the following:
    (A) Identify the consumer or type of consumer to receive a 
solicitation;
    (B) Establish criteria used to select the consumer to receive a 
solicitation; or
    (C) Decide which of the bank's products or services to market to 
the consumer or tailor the bank's solicitation to that consumer; and
    (iii) As a result of the bank's use of the eligibility information, 
the consumer is provided a solicitation.
    (2) Receiving eligibility information from an affiliate, including 
through a common database. A bank may receive eligibility information 
from an affiliate in various ways, including when the affiliate places 
that information into a common database that the bank may access.
    (3) Receipt or use of eligibility information by a bank's service 
provider. Except as provided in paragraph (b)(5) of this section, a 
bank receives or uses an affiliate's eligibility information if a 
service provider acting on the bank's behalf (whether an affiliate or a 
nonaffiliated third party) receives or uses that information in the 
manner described in paragraphs (b)(1)(i) or (b)(1)(ii) of this section. 
All relevant facts and circumstances will determine whether a person is 
acting as a bank's service provider when it receives or uses an 
affiliate's eligibility information in connection with marketing the 
bank's products and services.
    (4) Use by an affiliate of its own eligibility information. Unless 
a bank has used eligibility information that it receives from an 
affiliate in the manner described in paragraph (b)(1)(ii) of this 
section, the bank does not make a solicitation subject to this subpart 
if the bank's affiliate:
    (i) Uses its own eligibility information that it obtained in 
connection with a pre-existing business relationship it has or had with 
the consumer to market the bank's products or services to the consumer; 
or
    (ii) Directs its service provider to use the affiliate's own 
eligibility information that it obtained in connection with a pre-
existing business relationship it has or had with the consumer to 
market the bank's products or services to the consumer, and the bank 
does not

[[Page 62948]]

communicate directly with the service provider regarding that use.
    (5) Use of eligibility information by a service provider. (i) In 
general. A bank does not make a solicitation subject to Subpart C of 
this part if a service provider (including an affiliated or third-party 
service provider that maintains or accesses a common database that the 
bank may access) receives eligibility information from the bank's 
affiliate that the bank's affiliate obtained in connection with a pre-
existing business relationship it has or had with the consumer and uses 
that eligibility information to market the bank's products or services 
to the consumer, so long as--
    (A) The bank's affiliate controls access to and use of its 
eligibility information by the service provider (including the right to 
establish the specific terms and conditions under which the service 
provider may use such information to market the bank's products or 
services);
    (B) The bank's affiliate establishes specific terms and conditions 
under which the service provider may access and use the affiliate's 
eligibility information to market the bank's products and services (or 
those of affiliates generally) to the consumer, such as the identity of 
the affiliated companies whose products or services may be marketed to 
the consumer by the service provider, the types of products or services 
of affiliated companies that may be marketed, and the number of times 
the consumer may receive marketing materials, and periodically 
evaluates the service provider's compliance with those terms and 
conditions;
    (C) The bank's affiliate requires the service provider to implement 
reasonable policies and procedures designed to ensure that the service 
provider uses the affiliate's eligibility information in accordance 
with the terms and conditions established by the bank's affiliate 
relating to the marketing of the bank's products or services;
    (D) The bank's affiliate is identified on or with the marketing 
materials provided to the consumer; and
    (E) The bank does not directly use its affiliate's eligibility 
information in the manner described in paragraph (b)(1)(ii) of this 
section.
    (ii) Writing requirements. (A) The requirements of paragraphs 
(b)(5)(i)(A) and (C) of this section must be set forth in a written 
agreement between the bank's affiliate and the service provider; and
    (B) The specific terms and conditions established by the bank's 
affiliate as provided in paragraph (b)(5)(i)(B) of this section must be 
set forth in writing.
    (6) Examples of making solicitations. (i) A consumer has a deposit 
account with a depository institution, which is affiliated with an 
insurance company. The insurance company receives eligibility 
information about the consumer from the depository institution. The 
insurance company uses that eligibility information to identify the 
consumer to receive a solicitation about insurance products, and, as a 
result, the insurance company provides a solicitation to the consumer 
about its insurance products. Pursuant to paragraph (b)(1) of this 
section, the insurance company has made a solicitation to the consumer.
    (ii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that after using the eligibility information to 
identify the consumer to receive a solicitation about insurance 
products, the insurance company asks the depository institution to send 
the solicitation to the consumer and the depository institution does 
so. Pursuant to paragraph (b)(1) of this section, the insurance company 
has made a solicitation to the consumer because it used eligibility 
information about the consumer that it received from an affiliate to 
identify the consumer to receive a solicitation about its products or 
services, and, as a result, a solicitation was provided to the consumer 
about the insurance company's products.
    (iii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that eligibility information about consumers that 
have deposit accounts with the depository institution is placed into a 
common database that all members of the affiliated group of companies 
may independently access and use. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the depository institution. The depository 
institution reviews eligibility information about its own consumers 
using the selection criteria provided by the insurance company to 
determine which consumers should receive the insurance company's 
marketing materials and sends marketing materials about the insurance 
company's products to those consumers. Even though the insurance 
company has received eligibility information through the common 
database as provided in paragraph (b)(2) of this section, it did not 
use that information to identify consumers or establish selection 
criteria; instead, the depository institution used its own eligibility 
information. Therefore, pursuant to paragraph (b)(4)(i) of this 
section, the insurance company has not made a solicitation to the 
consumer.
    (iv) The same facts as in the example in paragraph (b)(6)(iii) of 
this section, except that the depository institution provides the 
insurance company's criteria to the depository institution's service 
provider and directs the service provider to use the depository 
institution's eligibility information to identify depository 
institution consumers who meet the criteria and to send the insurance 
company's marketing materials to those consumers. The insurance company 
does not communicate directly with the service provider regarding the 
use of the depository institution's information to market its products 
to the depository institution's consumers. Pursuant to paragraph 
(b)(4)(ii) of this section, the insurance company has not made a 
solicitation to the consumer.
    (v) An affiliated group of companies includes a depository 
institution, an insurance company, and a service provider. Each 
affiliate in the group places information about its consumers into a 
common database. The service provider has access to all information in 
the common database. The depository institution controls access to and 
use of its eligibility information by the service provider. This 
control is set forth in a written agreement between the depository 
institution and the service provider. The written agreement also 
requires the service provider to establish reasonable policies and 
procedures designed to ensure that the service provider uses the 
depository institution's eligibility information in accordance with 
specific terms and conditions established by the depository institution 
relating to the marketing of the products and services of all 
affiliates, including the insurance company. In a separate written 
communication, the depository institution specifies the terms and 
conditions under which the service provider may use the depository 
institution's eligibility information to market the insurance company's 
products and services to the depository institution's consumers. The 
specific terms and conditions are: A list of affiliated companies 
(including the insurance company) whose products or services may be 
marketed to the depository institution's consumers by the service 
provider; the specific products or types of products that may be 
marketed to the depository institution's consumers by the service 
provider; the categories of eligibility information that may be used by 
the service provider in marketing products

[[Page 62949]]

or services to the depository institution's consumers; the types or 
categories of the depository institution's consumers to whom the 
service provider may market products or services of depository 
institution affiliates; the number and/or types of marketing 
communications that the service provider may send to the depository 
institution's consumers; and the length of time during which the 
service provider may market the products or services of the depository 
institution's affiliates to its consumers. The depository institution 
periodically evaluates the service provider's compliance with these 
terms and conditions. The insurance company asks the service provider 
to market insurance products to certain consumers who have deposit 
accounts with the depository institution. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the service provider. The service provider 
uses the depository institution's eligibility information from the 
common database to identify the depository institution's consumers to 
whom insurance products will be marketed. When the insurance company's 
marketing materials are provided to the identified consumers, the name 
of the depository institution is displayed on the insurance marketing 
materials, an introductory letter that accompanies the marketing 
materials, an account statement that accompanies the marketing 
materials, or the envelope containing the marketing materials. The 
requirements of paragraph (b)(5) of this section have been satisfied, 
and the insurance company has not made a solicitation to the consumer.
    (vi) The same facts as in the example in paragraph (b)(6)(v) of 
this section, except that the terms and conditions permit the service 
provider to use the depository institution's eligibility information to 
market the products and services of other affiliates to the depository 
institution's consumers whenever the service provider deems it 
appropriate to do so. The service provider uses the depository 
institution's eligibility information in accordance with the discretion 
afforded to it by the terms and conditions. Because the terms and 
conditions are not specific, the requirements of paragraph (b)(5) of 
this section have not been satisfied.
    (c) Exceptions. The provisions of this subpart do not apply to a 
bank if it uses eligibility information that it receives from an 
affiliate:
    (1) To make a solicitation for marketing purposes to a consumer 
with whom the bank has a pre-existing business relationship;
    (2) To facilitate communications to an individual for whose benefit 
the bank provides employee benefit or other services pursuant to a 
contract with an employer related to and arising out of the current 
employment relationship or status of the individual as a participant or 
beneficiary of an employee benefit plan;
    (3) To perform services on behalf of an affiliate, except that this 
subparagraph shall not be construed as permitting the bank to send 
solicitations on behalf of an affiliate if the affiliate would not be 
permitted to send the solicitation as a result of the election of the 
consumer to opt out under this subpart;
    (4) In response to a communication about the bank's products or 
services initiated by the consumer;
    (5) In response to an authorization or request by the consumer to 
receive solicitations; or
    (6) If the bank's compliance with this subpart would prevent it 
from complying with any provision of State insurance laws pertaining to 
unfair discrimination in any State in which the bank is lawfully doing 
business.
    (d) Examples of exceptions. (1) Example of the pre-existing 
business relationship exception. A consumer has a deposit account with 
a depository institution. The consumer also has a relationship with the 
depository institution's securities affiliate for management of the 
consumer's securities portfolio. The depository institution receives 
eligibility information about the consumer from its securities 
affiliate and uses that information to make a solicitation to the 
consumer about the depository institution's wealth management services. 
The depository institution may make this solicitation even if the 
consumer has not been given a notice and opportunity to opt out because 
the depository institution has a pre-existing business relationship 
with the consumer.
    (2) Examples of service provider exception. (i) A consumer has an 
insurance policy issued by an insurance company. The insurance company 
furnishes eligibility information about the consumer to its affiliated 
depository institution. Based on that eligibility information, the 
depository institution wants to make a solicitation to the consumer 
about its deposit products. The depository institution does not have a 
pre-existing business relationship with the consumer and none of the 
other exceptions in paragraph (c) of this section apply. The consumer 
has been given an opt-out notice and has elected to opt out of 
receiving such solicitations. The depository institution asks a service 
provider to send the solicitation to the consumer on its behalf. The 
service provider may not send the solicitation on behalf of the 
depository institution because, as a result of the consumer's opt-out 
election, the depository institution is not permitted to make the 
solicitation.
    (ii) The same facts as in paragraph (d)(2)(i) of this section, 
except the consumer has been given an opt-out notice, but has not 
elected to opt out. The depository institution asks a service provider 
to send the solicitation to the consumer on its behalf. The service 
provider may send the solicitation on behalf of the depository 
institution because, as a result of the consumer's not opting out, the 
depository institution is permitted to make the solicitation.
    (3) Examples of consumer-initiated communications. (i) A consumer 
who has a deposit account with a depository institution initiates a 
communication with the depository institution's credit card affiliate 
to request information about a credit card. The credit card affiliate 
may use eligibility information about the consumer it obtains from the 
depository institution or any other affiliate to make solicitations 
regarding credit card products in response to the consumer-initiated 
communication.
    (ii) A consumer who has a deposit account with a depository 
institution contacts the institution to request information about how 
to save and invest for a child's college education without specifying 
the type of product in which the consumer may be interested. 
Information about a range of different products or services offered by 
the depository institution and one or more affiliates of the 
institution may be responsive to that communication. Such products or 
services may include the following: Mutual funds offered by the 
institution's mutual fund affiliate; section 529 plans offered by the 
institution, its mutual fund affiliate, or another securities 
affiliate; or trust services offered by a different financial 
institution in the affiliated group. Any affiliate offering investment 
products or services that would be responsive to the consumer's request 
for information about saving and investing for a child's college 
education may use eligibility information to make solicitations to the 
consumer in response to this communication.
    (iii) A credit card issuer makes a marketing call to the consumer 
without

[[Page 62950]]

using eligibility information received from an affiliate. The issuer 
leaves a voice-mail message that invites the consumer to call a toll-
free number to apply for the issuer's credit card. If the consumer 
calls the toll-free number to inquire about the credit card, the call 
is a consumer-initiated communication about a product or service and 
the credit card issuer may now use eligibility information it receives 
from its affiliates to make solicitations to the consumer.
    (iv) A consumer calls a depository institution to ask about retail 
locations and hours, but does not request information about products or 
services. The institution may not use eligibility information it 
receives from an affiliate to make solicitations to the consumer about 
its products or services because the consumer-initiated communication 
does not relate to the depository institution's products or services. 
Thus, the use of eligibility information received from an affiliate 
would not be responsive to the communication and the exception does not 
apply.
    (v) A consumer calls a depository institution to ask about retail 
locations and hours. The customer service representative asks the 
consumer if there is a particular product or service about which the 
consumer is seeking information. The consumer responds that the 
consumer wants to stop in and find out about certificates of deposit. 
The customer service representative offers to provide that information 
by telephone and mail additional information and application materials 
to the consumer. The consumer agrees and provides or confirms contact 
information for receipt of the materials to be mailed. The depository 
institution may use eligibility information it receives from an 
affiliate to make solicitations to the consumer about certificates of 
deposit because such solicitations would respond to the consumer-
initiated communication about products or services.
    (4) Examples of consumer authorization or request for 
solicitations. (i) A consumer who obtains a mortgage from a mortgage 
lender authorizes or requests information about homeowner's insurance 
offered by the mortgage lender's insurance affiliate. Such 
authorization or request, whether given to the mortgage lender or to 
the insurance affiliate, would permit the insurance affiliate to use 
eligibility information about the consumer it obtains from the mortgage 
lender or any other affiliate to make solicitations to the consumer 
about homeowner's insurance.
    (ii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a blank check box that the consumer may check to authorize or 
request information from the credit card issuer's affiliates. The 
consumer checks the box. The consumer has authorized or requested 
solicitations from the card issuer's affiliates.
    (iii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a pre-selected check box indicating that the consumer 
authorizes or requests information from the issuer's affiliates. The 
consumer does not deselect the check box. The consumer has not 
authorized or requested solicitations from the card issuer's 
affiliates.
    (iv) The terms and conditions of a credit card account agreement 
contain preprinted boilerplate language stating that by applying to 
open an account the consumer authorizes or requests to receive 
solicitations from the credit card issuer's affiliates. The consumer 
has not authorized or requested solicitations from the card issuer's 
affiliates.
    (e) Relation to affiliate-sharing notice and opt-out. Nothing in 
this subpart limits the responsibility of a person to comply with the 
notice and opt-out provisions of section 603(d)(2)(A)(iii) of the Act 
where applicable.


Sec.  41.22  Scope and duration of opt-out.

    (a) Scope of opt-out. (1) In general. Except as otherwise provided 
in this section, the consumer's election to opt out prohibits any 
affiliate covered by the opt-out notice from using eligibility 
information received from another affiliate as described in the notice 
to make solicitations to the consumer.
    (2) Continuing relationship. (i) In general. If the consumer 
establishes a continuing relationship with a bank or its affiliate, an 
opt-out notice may apply to eligibility information obtained in 
connection with--
    (A) A single continuing relationship or multiple continuing 
relationships that the consumer establishes with the bank or its 
affiliates, including continuing relationships established subsequent 
to delivery of the opt-out notice, so long as the notice adequately 
describes the continuing relationships covered by the opt-out; or
    (B) Any other transaction between the consumer and the bank or its 
affiliates as described in the notice.
    (ii) Examples of continuing relationships. A consumer has a 
continuing relationship with a bank or its affiliate if the consumer--
    (A) Opens a deposit or investment account with the bank or its 
affiliate;
    (B) Obtains a loan for which the bank or its affiliate owns the 
servicing rights;
    (C) Purchases an insurance product from the bank or its affiliate;
    (D) Holds an investment product through the bank or its affiliate, 
such as when the bank acts or its affiliate acts as a custodian for 
securities or for assets in an individual retirement arrangement;
    (E) Enters into an agreement or understanding with the bank or its 
affiliate whereby the bank or its affiliate undertakes to arrange or 
broker a home mortgage loan for the consumer;
    (F) Enters into a lease of personal property with the bank or its 
affiliate; or
    (G) Obtains financial, investment, or economic advisory services 
from the bank or its affiliate for a fee.
    (3) No continuing relationship. (i) In general. If there is no 
continuing relationship between a consumer and a bank or its affiliate, 
and the bank or its affiliate obtains eligibility information about the 
consumer in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, an opt-out 
notice provided to the consumer only applies to eligibility information 
obtained in connection with that transaction.
    (ii) Examples of isolated transactions. An isolated transaction 
occurs if--
    (A) The consumer uses a bank's or its affiliate's ATM to withdraw 
cash from an account at another financial institution; or
    (B) A bank or its affiliate sells the consumer a cashier's check or 
money order, airline tickets, travel insurance, or traveler's checks in 
isolated transactions.
    (4) Menu of alternatives. A consumer may be given the opportunity 
to choose from a menu of alternatives when electing to prohibit 
solicitations, such as by electing to prohibit solicitations from 
certain types of affiliates covered by the opt-out notice but not other 
types of affiliates covered by the notice, electing to prohibit 
solicitations based on certain types of eligibility information but not 
other types of eligibility information, or electing to prohibit 
solicitations by certain methods of delivery but not other methods of 
delivery. However, one of the alternatives must allow the consumer to 
prohibit all solicitations from all of the affiliates that are covered 
by the notice.
    (5) Special rule for a notice following termination of all 
continuing relationships. (i) In general. A consumer must be given a 
new opt-out notice if, after all continuing relationships with a

[[Page 62951]]

bank or its affiliate(s) are terminated, the consumer subsequently 
establishes another continuing relationship with the bank or its 
affiliate(s) and the consumer's eligibility information is to be used 
to make a solicitation. The new opt-out notice must apply, at a 
minimum, to eligibility information obtained in connection with the new 
continuing relationship. Consistent with paragraph (b) of this section, 
the consumer's decision not to opt out after receiving the new opt-out 
notice would not override a prior opt-out election by the consumer that 
applies to eligibility information obtained in connection with a 
terminated relationship, regardless of whether the new opt-out notice 
applies to eligibility information obtained in connection with the 
terminated relationship.
    (ii) Example. A consumer has a checking account with a depository 
institution that is part of an affiliated group. The consumer closes 
the checking account. One year after closing the checking account, the 
consumer opens a savings account with the same depository institution. 
The consumer must be given a new notice and opportunity to opt out 
before the depository institution's affiliates may make solicitations 
to the consumer using eligibility information obtained by the 
depository institution in connection with the new savings account 
relationship, regardless of whether the consumer opted out in 
connection with the checking account.
    (b) Duration of opt-out. The election of a consumer to opt out must 
be effective for a period of at least five years (the ``opt-out 
period'') beginning when the consumer's opt-out election is received 
and implemented, unless the consumer subsequently revokes the opt-out 
in writing or, if the consumer agrees, electronically. An opt-out 
period of more than five years may be established, including an opt-out 
period that does not expire unless revoked by the consumer.
    (c) Time of opt-out. A consumer may opt out at any time.


Sec.  41.23  Contents of opt-out notice; consolidated and equivalent 
notices.

    (a) Contents of opt-out notice. (1) In general. A notice must be 
clear, conspicuous, and concise, and must accurately disclose:
    (i) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (ii) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (iii) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (iv) That the consumer may elect to limit the use of eligibility 
information to make solicitations to the consumer;
    (v) That the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires;
    (vi) If the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, that 
the consumer who has chosen to limit solicitations does not need to act 
again until the consumer receives a renewal notice; and
    (vii) A reasonable and simple method for the consumer to opt out.
    (2) Joint relationships. (i) If two or more consumers jointly 
obtain a product or service, a single opt-out notice may be provided to 
the joint consumers. Any of the joint consumers may exercise the right 
to opt out.
    (ii) The opt-out notice must explain how an opt-out direction by a 
joint consumer will be treated. An opt-out direction by a joint 
consumer may be treated as applying to all of the associated joint 
consumers, or each joint consumer may be permitted to opt-out 
separately. If each joint consumer is permitted to opt out separately, 
one of the joint consumers must be permitted to opt out on behalf of 
all of the joint consumers and the joint consumers must be permitted to 
exercise their separate rights to opt out in a single response.
    (iii) It is impermissible to require all joint consumers to opt out 
before implementing any opt-out direction.
    (3) Alternative contents. If the consumer is afforded a broader 
right to opt out of receiving marketing than is required by this 
subpart, the requirements of this section may be satisfied by providing 
the consumer with a clear, conspicuous, and concise notice that 
accurately discloses the consumer's opt-out rights.
    (4) Model notices. Model notices are provided in Appendix C of this 
part.
    (b) Coordinated and consolidated notices. A notice required by this 
subpart may be coordinated and consolidated with any other notice or 
disclosure required to be issued under any other provision of law by 
the entity providing the notice, including but not limited to the 
notice described in section 603(d)(2)(A)(iii) of the Act and the Gramm-
Leach-Bliley Act privacy notice.
    (c) Equivalent notices. A notice or other disclosure that is 
equivalent to the notice required by this subpart, and that is provided 
to a consumer together with disclosures required by any other provision 
of law, satisfies the requirements of this section.


Sec.  41.24  Reasonable opportunity to opt out.

    (a) In general. A bank must not use eligibility information about a 
consumer that it receives from an affiliate to make a solicitation to 
the consumer about the bank's products or services, unless the consumer 
is provided a reasonable opportunity to opt out, as required by Sec.  
41.21(a)(1)(ii) of this part.
    (b) Examples of a reasonable opportunity to opt out. The consumer 
is given a reasonable opportunity to opt out if:
    (1) By mail. The opt-out notice is mailed to the consumer. The 
consumer

[[Page 62952]]

is given 30 days from the date the notice is mailed to elect to opt out 
by any reasonable means.
    (2) By electronic means. (i) The opt-out notice is provided 
electronically to the consumer, such as by posting the notice at an 
Internet Web site at which the consumer has obtained a product or 
service. The consumer acknowledges receipt of the electronic notice. 
The consumer is given 30 days after the date the consumer acknowledges 
receipt to elect to opt out by any reasonable means.
    (ii) The opt-out notice is provided to the consumer by e-mail where 
the consumer has agreed to receive disclosures by e-mail from the 
person sending the notice. The consumer is given 30 days after the e-
mail is sent to elect to opt out by any reasonable means.
    (3) At the time of an electronic transaction. The opt-out notice is 
provided to the consumer at the time of an electronic transaction, such 
as a transaction conducted on an Internet Web site. The consumer is 
required to decide, as a necessary part of proceeding with the 
transaction, whether to opt out before completing the transaction. 
There is a simple process that the consumer may use to opt out at that 
time using the same mechanism through which the transaction is 
conducted.
    (4) At the time of an in-person transaction. The opt-out notice is 
provided to the consumer in writing at the time of an in-person 
transaction. The consumer is required to decide, as a necessary part of 
proceeding with the transaction, whether to opt out before completing 
the transaction, and is not permitted to complete the transaction 
without making a choice. There is a simple process that the consumer 
may use during the course of the in-person transaction to opt out, such 
as completing a form that requires consumers to write a ``yes'' or 
``no'' to indicate their opt-out preference or that requires the 
consumer to check one of two blank check boxes--one that allows 
consumers to indicate that they want to opt out and one that allows 
consumers to indicate that they do not want to opt out.
    (5) By including in a privacy notice. The opt-out notice is 
included in a Gramm-Leach-Bliley Act privacy notice. The consumer is 
allowed to exercise the opt-out within a reasonable period of time and 
in the same manner as the opt-out under that privacy notice.


Sec.  41.25  Reasonable and simple methods of opting out.

    (a) In general. A bank must not use eligibility information about a 
consumer that it receives from an affiliate to make a solicitation to 
the consumer about its products or services, unless the consumer is 
provided a reasonable and simple method to opt out, as required by 
Sec.  41.21(a)(1)(ii) of this part.
    (b) Examples. (1) Reasonable and simple opt-out methods. Reasonable 
and simple methods for exercising the opt-out right include--
    (i) Designating a check-off box in a prominent position on the opt-
out form;
    (ii) Including a reply form and a self-addressed envelope together 
with the opt-out notice;
    (iii) Providing an electronic means to opt out, such as a form that 
can be electronically mailed or processed at an Internet Web site, if 
the consumer agrees to the electronic delivery of information;
    (iv) Providing a toll-free telephone number that consumers may call 
to opt out; or
    (v) Allowing consumers to exercise all of their opt-out rights 
described in a consolidated opt-out notice that includes the privacy 
opt-out under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., the 
affiliate sharing opt-out under the Act, and the affiliate marketing 
opt-out under the Act, by a single method, such as by calling a single 
toll-free telephone number.
    (2) Opt-out methods that are not reasonable and simple. Reasonable 
and simple methods for exercising an opt-out right do not include--
    (i) Requiring the consumer to write his or her own letter;
    (ii) Requiring the consumer to call or write to obtain a form for 
opting out, rather than including the form with the opt-out notice;
    (iii) Requiring the consumer who receives the opt-out notice in 
electronic form only, such as through posting at an Internet Web site, 
to opt out solely by paper mail or by visiting a different Web site 
without providing a link to that site.
    (c) Specific opt-out means. Each consumer may be required to opt 
out through a specific means, as long as that means is reasonable and 
simple for that consumer.


Sec.  41.26  Delivery of opt-out notices.

    (a) In general. The opt-out notice must be provided so that each 
consumer can reasonably be expected to receive actual notice. For opt-
out notices provided electronically, the notice may be provided in 
compliance with either the electronic disclosure provisions in this 
subpart or the provisions in section 101 of the Electronic Signatures 
in Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (b) Examples of reasonable expectation of actual notice. A consumer 
may reasonably be expected to receive actual notice if the affiliate 
providing the notice:
    (1) Hand-delivers a printed copy of the notice to the consumer;
    (2) Mails a printed copy of the notice to the last known mailing 
address of the consumer;
    (3) Provides a notice by e-mail to a consumer who has agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (4) Posts the notice on the Internet Web site at which the consumer 
obtained a product or service electronically and requires the consumer 
to acknowledge receipt of the notice.
    (c) Examples of no reasonable expectation of actual notice. A 
consumer may not reasonably be expected to receive actual notice if the 
affiliate providing the notice:
    (1) Only posts the notice on a sign in a branch or office or 
generally publishes the notice in a newspaper;
    (2) Sends the notice via e-mail to a consumer who has not agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (3) Posts the notice on an Internet Web site without requiring the 
consumer to acknowledge receipt of the notice.


Sec.  41.27  Renewal of opt-out.

    (a) Renewal notice and opt-out requirement. (1) In general. After 
the opt-out period expires, a bank may not make solicitations based on 
eligibility information it receives from an affiliate to a consumer who 
previously opted out, unless:
    (i) The consumer has been given a renewal notice that complies with 
the requirements of this section and Sec. Sec.  41.24 through 41.26 of 
this part, and a reasonable opportunity and a reasonable and simple 
method to renew the opt-out, and the consumer does not renew the opt-
out; or
    (ii) An exception in Sec.  41.21(c) of this part applies.
    (2) Renewal period. Each opt-out renewal must be effective for a 
period of at least five years as provided in Sec.  41.22(b) of this 
part.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By the affiliate that provided the previous opt-out notice, or 
its successor; or (ii) As part of a joint renewal notice from two or 
more members of an affiliated group of companies, or their

[[Page 62953]]

successors, that jointly provided the previous opt-out notice.
    (b) Contents of renewal notice. The renewal notice must be clear, 
conspicuous, and concise, and must accurately disclose:
    (1) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (2) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (3) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (4) That the consumer previously elected to limit the use of 
certain information to make solicitations to the consumer;
    (5) That the consumer's election has expired or is about to expire;
    (6) That the consumer may elect to renew the consumer's previous 
election;
    (7) If applicable, that the consumer's election to renew will apply 
for the specified period of time stated in the notice and that the 
consumer will be allowed to renew the election once that period 
expires; and
    (8) A reasonable and simple method for the consumer to opt out.
    (c) Timing of the renewal notice. (1) In general. A renewal notice 
may be provided to the consumer either--
    (i) A reasonable period of time before the expiration of the opt-
out period; or
    (ii) Any time after the expiration of the opt-out period but before 
solicitations that would have been prohibited by the expired opt-out 
are made to the consumer.
    (2) Combination with annual privacy notice. If a bank provides an 
annual privacy notice under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 
et seq., providing a renewal notice with the last annual privacy notice 
provided to the consumer before expiration of the opt-out period is a 
reasonable period of time before expiration of the opt-out in all 
cases.
    (d) No effect on opt-out period. An opt-out period may not be 
shortened by sending a renewal notice to the consumer before expiration 
of the opt-out period, even if the consumer does not renew the opt out.


Sec.  41.28  Effective date, compliance date, and prospective 
application.

    (a) Effective date. This subpart is effective January 1, 2008.
    (b) Mandatory compliance date. Compliance with this subpart is 
required not later than October 1, 2008.
    (c) Prospective application. The provisions of this subpart shall 
not prohibit a bank from using eligibility information that it receives 
from an affiliate to make solicitations to a consumer if the bank 
receives such information prior to October 1, 2008. For purposes of 
this section, a bank is deemed to receive eligibility information when 
such information is placed into a common database and is accessible by 
the bank.
    3. Appendixes A and B to part 41 are added and reserved, and a new 
Appendix C to part 41 is added to read as follows:

Appendix C To Part 41--Model Forms for Opt-Out Notices

    a. Although use of the model forms is not required, use of the 
model forms in this Appendix (as applicable) complies with the 
requirement in section 624 of the Act for clear, conspicuous, and 
concise notices.
    b. Certain changes may be made to the language or format of the 
model forms without losing the protection from liability afforded by 
use of the model forms. These changes may not be so extensive as to 
affect the substance, clarity, or meaningful sequence of the 
language in the model forms. Persons making such extensive revisions 
will lose the safe harbor that this Appendix provides. Acceptable 
changes include, for example:
    1. Rearranging the order of the references to ``your income,'' 
``your account history,'' and ``your credit score.''
    2. Substituting other types of information for ``income,'' 
``account history,'' or ``credit score'' for accuracy, such as 
``payment history,'' ``credit history,'' ``payoff status,'' or 
``claims history.''
    3. Substituting a clearer and more accurate description of the 
affiliates providing or covered by the notice for phrases such as 
``the [ABC] group of companies,'' including without limitation a 
statement that the entity providing the notice recently purchased 
the consumer's account.
    4. Substituting other types of affiliates covered by the notice 
for ``credit card,'' ``insurance,'' or ``securities'' affiliates.
    5. Omitting items that are not accurate or applicable. For 
example, if a person does not limit the duration of the opt-out 
period, the notice may omit information about the renewal notice.
    6. Adding a statement informing consumers how much time they 
have to opt out before shared eligibility information may be used to 
make solicitations to them.
    7. Adding a statement that the consumer may exercise the right 
to opt out at any time.
    8. Adding the following statement, if accurate: ``If you 
previously opted out, you do not need to do so again.''
    9. Providing a place on the form for the consumer to fill in 
identifying information, such as his or her name and address:

C-1 Model Form for Initial Opt-out Notice (Single-Affiliate Notice)
C-2 Model Form for Initial Opt-out Notice (Joint Notice)
C-3 Model Form for Renewal Notice (Single-Affiliate Notice)
C-4 Model Form for Renewal Notice (Joint Notice)
C-5 Model Form for Voluntary ``No Marketing'' Notice

C-1--Model Form for Initial Opt-out Notice (Single-Affiliate 
Notice)--[Your Choice To Limit Marketing]/[Marketing Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You may limit our affiliates in the [ABC] group of 
companies, such as our [credit card, insurance, and securities] 
affiliates, from marketing their products or services to you based 
on your personal information that we collect and share with them. 
This information includes your [income], your [account history with 
us], and your [credit score].
     Your choice to limit marketing offers from our 
affiliates will apply [until you tell

[[Page 62954]]

us to change your choice]/[for x years from when you tell us your 
choice]/[for at least 5 years from when you tell us your choice]. 
[Include if the opt-out period expires.] Once that period expires, 
you will receive a renewal notice that will allow you to continue to 
limit marketing offers from our affiliates for [another x years]/[at 
least another 5 years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from our affiliates, you do not need to act again until you 
receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow your affiliates to use my personal information to 
market to me.

C-2--Model Form for Initial Opt-out Notice (Joint Notice)--[Your 
Choice To Limit Marketing]/[Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You may limit the [ABC] companies, such as the [ABC 
credit card, insurance, and securities] affiliates, from marketing 
their products or services to you based on your personal information 
that they receive from other [ABC] companies. This information 
includes your [income], your [account history], and your [credit 
score].
     Your choice to limit marketing offers from the [ABC] 
companies will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from the [ABC] companies for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from the [ABC] companies, you do not need to act again until 
you receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:
[Company name]
[Company address]

    --Do not allow any company [in the ABC group of companies] to 
use my personal information to market to me.

C-3--Model Form for Renewal Notice (Single-Affiliate Notice)--
[Renewing Your Choice to Limit Marketing]/[Renewing Your Marketing 
Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You previously chose to limit our affiliates in the 
[ABC] group of companies, such as our [credit card, insurance, and 
securities] affiliates, from marketing their products or services to 
you based on your personal information that we share with them. This 
information includes your [income], your [account history with us], 
and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-4--Model Form for Renewal Notice (Joint Notice)--[Renewing Your 
Choice To Limit Marketing]/[Renewing Your Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You previously chose to limit the [ABC] companies, such 
as the [ABC credit card, insurance, and securities] affiliates, from 
marketing their products or services to you based on your personal 
information that they receive from other ABC companies. This 
information includes your [income], your [account history], and your 
[credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-5--Model Form for Voluntary ``No Marketing'' Notice--Your Choice 
to Stop Marketing

     [Name of Affiliate] is providing this notice.
     You may choose to stop all marketing from us and our 
affiliates.
    To stop all marketing, contact us [include all that apply]:
     By telephone: 1-877---

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not market to me.

Board of Governors of the Federal Reserve System

    12 CFR Chapter II.

Authority and Issuance

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

PART 222--FAIR CREDIT REPORTING (REGULATION V)

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

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

Subpart A--General Provisions

0
2. Section 222.1 is amended by adding a new paragraph (a) and revising 
paragraph (b)(2)(i) to read as follows:


Sec.  222.1  Purpose, scope, and effective dates.

    (a) Purpose. The purpose of this part is to implement the Fair 
Credit Reporting Act. This part generally applies to persons that 
obtain and use information about consumers to determine the consumer's 
eligibility for products, services, or employment, share such 
information among affiliates, and furnish information to consumer 
reporting agencies.
    (b) * * *
    (2) Institutions covered. (i) Except as otherwise provided in this 
part, the regulations in this part apply to banks that are members of 
the Federal Reserve System (other than national banks) and their 
respective operating subsidiaries that are not functionally regulated 
within the meaning of section 5(c)(5) of the Bank Holding Company Act, 
as amended (12 U.S.C. 1844(c)(5)), branches and Agencies of foreign 
banks (other than Federal branches, Federal Agencies, and insured State 
branches of foreign banks), commercial lending companies owned or 
controlled by foreign banks, organizations operating under section 25 
or 25A of the Federal Reserve Act (12 U.S.C. 601 et seq., and 611 et 
seq.), and bank holding companies and affiliates of such holding 
companies, but do not apply to affiliates

[[Page 62955]]

of bank holding companies that are depository institutions regulated by 
another federal banking agency or to consumer reporting agencies.
* * * * *

0
3. A new Subpart C is added to part 222 to read as follows:

Subpart C--Affiliate Marketing

Sec.
222.20 Coverage and definitions.
222.21 Affiliate marketing opt-out and exceptions.
222.22 Scope and duration of opt-out.
222.23 Contents of opt-out notice; consolidated and equivalent 
notices.
222.24 Reasonable opportunity to opt out.
222.25 Reasonable and simple methods of opting out.
222.26 Delivery of opt-out notices.
222.27 Renewal of opt-out.
222.28 Effective date, compliance date, and prospective application.

Subpart C--Affiliate Marketing


Sec.  222.20  Coverage and definitions.

    (a) Coverage. Subpart C of this part applies to member banks of the 
Federal Reserve System (other than national banks) and their respective 
operating subsidiaries that are not functionally regulated within the 
meaning of section 5(c)(5) of the Bank Holding Company Act, as amended 
(12 U.S.C. 1844(c)(5)), branches and Agencies of foreign banks (other 
than Federal branches, Federal Agencies, and insured State branches of 
foreign banks), commercial lending companies owned or controlled by 
foreign banks, and organizations operating under section 25 or 25A of 
the Federal Reserve Act (12 U.S.C. 601 et seq., and 611 et seq.).
    (b) Definitions. For purposes of this subpart:
    (1) Clear and conspicuous. The term ``clear and conspicuous'' means 
reasonably understandable and designed to call attention to the nature 
and significance of the information presented.
    (2) Concise. (i) In general. The term ``concise'' means a 
reasonably brief expression or statement.
    (ii) Combination with other required disclosures. A notice required 
by this subpart may be concise even if it is combined with other 
disclosures required or authorized by federal or state law.
    (3) Eligibility information. The term ``eligibility information'' 
means any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the Act did not apply. Eligibility information 
does not include aggregate or blind data that does not contain personal 
identifiers such as account numbers, names, or addresses.
    (4) Pre-existing business relationship. (i) In general. The term 
``pre-existing business relationship'' means a relationship between a 
person, or a person's licensed agent, and a consumer based on--
    (A) A financial contract between the person and the consumer which 
is in force on the date on which the consumer is sent a solicitation 
covered by this subpart;
    (B) The purchase, rental, or lease by the consumer of the person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and the person, during the 18-month 
period immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart; or
    (C) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart.
    (ii) Examples of pre-existing business relationships. (A) If a 
consumer has a time deposit account, such as a certificate of deposit, 
at a depository institution that is currently in force, the depository 
institution has a pre-existing business relationship with the consumer 
and can use eligibility information it receives from its affiliates to 
make solicitations to the consumer about its products or services.
    (B) If a consumer obtained a certificate of deposit from a 
depository institution, but did not renew the certificate at maturity, 
the depository institution has a pre-existing business relationship 
with the consumer and can use eligibility information it receives from 
its affiliates to make solicitations to the consumer about its products 
or services for 18 months after the date of maturity of the certificate 
of deposit.
    (C) If a consumer obtains a mortgage, the mortgage lender has a 
pre-existing business relationship with the consumer. If the mortgage 
lender sells the consumer's entire loan to an investor, the mortgage 
lender has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services for 18 
months after the date it sells the loan, and the investor has a pre-
existing business relationship with the consumer upon purchasing the 
loan. If, however, the mortgage lender sells a fractional interest in 
the consumer's loan to an investor but also retains an ownership 
interest in the loan, the mortgage lender continues to have a pre-
existing business relationship with the consumer, but the investor does 
not have a pre-existing business relationship with the consumer. If the 
mortgage lender retains ownership of the loan, but sells ownership of 
the servicing rights to the consumer's loan, the mortgage lender 
continues to have a pre-existing business relationship with the 
consumer. The purchaser of the servicing rights also has a pre-existing 
business relationship with the consumer as of the date it purchases 
ownership of the servicing rights, but only if it collects payments 
from or otherwise deals directly with the consumer on a continuing 
basis.
    (D) If a consumer applies to a depository institution for a product 
or service that it offers, but does not obtain a product or service 
from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the application.
    (E) If a consumer makes a telephone inquiry to a depository 
institution about its products or services and provides contact 
information to the institution, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (F) If a consumer makes an inquiry to a depository institution by 
e-mail about its products or services, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (G) If a consumer has an existing relationship with a depository 
institution that is part of a group of affiliated companies, makes a 
telephone call to the centralized call center for the group of 
affiliated companies to inquire about products or services offered by 
the insurance affiliate, and provides contact information to the call 
center, the call constitutes an inquiry to the insurance

[[Page 62956]]

affiliate that offers those products or services. The insurance 
affiliate has a pre-existing business relationship with the consumer 
and can therefore use eligibility information it receives from its 
affiliated depository institution to make solicitations to the consumer 
about its products or services for three months after the date of the 
inquiry.
    (iii) Examples where no pre-existing business relationship is 
created. (A) If a consumer makes a telephone call to a centralized call 
center for a group of affiliated companies to inquire about the 
consumer's existing account at a depository institution, the call does 
not constitute an inquiry to any affiliate other than the depository 
institution that holds the consumer's account and does not establish a 
pre-existing business relationship between the consumer and any 
affiliate of the account-holding depository institution.
    (B) If a consumer who has a deposit account with a depository 
institution makes a telephone call to an affiliate of the institution 
to ask about the affiliate's retail locations and hours, but does not 
make an inquiry about the affiliate's products or services, the call 
does not constitute an inquiry and does not establish a pre-existing 
business relationship between the consumer and the affiliate. Also, the 
affiliate's capture of the consumer's telephone number does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate.
    (C) If a consumer makes a telephone call to a depository 
institution in response to an advertisement that offers a free 
promotional item to consumers who call a toll-free number, but the 
advertisement does not indicate that the depository institution's 
products or services will be marketed to consumers who call in 
response, the call does not create a pre-existing business relationship 
between the consumer and the depository institution because the 
consumer has not made an inquiry about a product or service offered by 
the institution, but has merely responded to an offer for a free 
promotional item.
    (5) Solicitation. (i) In general. The term ``solicitation'' means 
the marketing of a product or service initiated by a person to a 
particular consumer that is--
    (A) Based on eligibility information communicated to that person by 
its affiliate as described in this subpart; and
    (B) Intended to encourage the consumer to purchase or obtain such 
product or service.
    (ii) Exclusion of marketing directed at the general public. A 
solicitation does not include marketing communications that are 
directed at the general public. For example, television, general 
circulation magazine, and billboard advertisements do not constitute 
solicitations, even if those communications are intended to encourage 
consumers to purchase products and services from the person initiating 
the communications.
    (iii) Examples of solicitations. A solicitation would include, for 
example, a telemarketing call, direct mail, e-mail, or other form of 
marketing communication directed to a particular consumer that is based 
on eligibility information received from an affiliate.
    (6) You means a person described in paragraph (a) of this section.


Sec.  222.21  Affiliate marketing opt-out and exceptions.

    (a) Initial notice and opt-out requirement. (1) In general. You may 
not use eligibility information about a consumer that you receive from 
an affiliate to make a solicitation for marketing purposes to the 
consumer, unless--
    (i) It is clearly and conspicuously disclosed to the consumer in 
writing or, if the consumer agrees, electronically, in a concise notice 
that you may use eligibility information about that consumer received 
from an affiliate to make solicitations for marketing purposes to the 
consumer;
    (ii) The consumer is provided a reasonable opportunity and a 
reasonable and simple method to ``opt out,'' or prohibit you from using 
eligibility information to make solicitations for marketing purposes to 
the consumer; and
    (iii) The consumer has not opted out.
    (2) Example. A consumer has a homeowner's insurance policy with an 
insurance company. The insurance company furnishes eligibility 
information about the consumer to its affiliated depository 
institution. Based on that eligibility information, the depository 
institution wants to make a solicitation to the consumer about its home 
equity loan products. The depository institution does not have a pre-
existing business relationship with the consumer and none of the other 
exceptions apply. The depository institution is prohibited from using 
eligibility information received from its insurance affiliate to make 
solicitations to the consumer about its home equity loan products 
unless the consumer is given a notice and opportunity to opt out and 
the consumer does not opt out.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By an affiliate that has or has previously had a pre-existing 
business relationship with the consumer; or
    (ii) As part of a joint notice from two or more members of an 
affiliated group of companies, provided that at least one of the 
affiliates on the joint notice has or has previously had a pre-existing 
business relationship with the consumer.
    (b) Making solicitations. (1) In general. For purposes of this 
subpart, you make a solicitation for marketing purposes if--
    (i) You receive eligibility information from an affiliate;
    (ii) You use that eligibility information to do one or more of the 
following:
    (A) Identify the consumer or type of consumer to receive a 
solicitation;
    (B) Establish criteria used to select the consumer to receive a 
solicitation; or
    (C) Decide which of your products or services to market to the 
consumer or tailor your solicitation to that consumer; and
    (iii) As a result of your use of the eligibility information, the 
consumer is provided a solicitation.
    (2) Receiving eligibility information from an affiliate, including 
through a common database. You may receive eligibility information from 
an affiliate in various ways, including when the affiliate places that 
information into a common database that you may access.
    (3) Receipt or use of eligibility information by your service 
provider. Except as provided in paragraph (b)(5) of this section, you 
receive or use an affiliate's eligibility information if a service 
provider acting on your behalf (whether an affiliate or a nonaffiliated 
third party) receives or uses that information in the manner described 
in paragraphs (b)(1)(i) or (b)(1)(ii) of this section. All relevant 
facts and circumstances will determine whether a person is acting as 
your service provider when it receives or uses an affiliate's 
eligibility information in connection with marketing your products and 
services.
    (4) Use by an affiliate of its own eligibility information. Unless 
you have used eligibility information that you receive from an 
affiliate in the manner described in paragraph (b)(1)(ii) of this 
section, you do not make a solicitation subject to this subpart if your 
affiliate:
    (i) Uses its own eligibility information that it obtained in 
connection with a pre-existing business relationship it has or had with 
the consumer to market your products or services to the consumer; or
    (ii) Directs its service provider to use the affiliate's own 
eligibility information

[[Page 62957]]

that it obtained in connection with a pre-existing business 
relationship it has or had with the consumer to market your products or 
services to the consumer, and you do not communicate directly with the 
service provider regarding that use.
    (5) Use of eligibility information by a service provider. (i) In 
general. You do not make a solicitation subject to Subpart C of this 
part if a service provider (including an affiliated or third-party 
service provider that maintains or accesses a common database that you 
may access) receives eligibility information from your affiliate that 
your affiliate obtained in connection with a pre-existing business 
relationship it has or had with the consumer and uses that eligibility 
information to market your products or services to the consumer, so 
long as--
    (A) Your affiliate controls access to and use of its eligibility 
information by the service provider (including the right to establish 
the specific terms and conditions under which the service provider may 
use such information to market your products or services);
    (B) Your affiliate establishes specific terms and conditions under 
which the service provider may access and use the affiliate's 
eligibility information to market your products and services (or those 
of affiliates generally) to the consumer, such as the identity of the 
affiliated companies whose products or services may be marketed to the 
consumer by the service provider, the types of products or services of 
affiliated companies that may be marketed, and the number of times the 
consumer may receive marketing materials, and periodically evaluates 
the service provider's compliance with those terms and conditions;
    (C) Your affiliate requires the service provider to implement 
reasonable policies and procedures designed to ensure that the service 
provider uses the affiliate's eligibility information in accordance 
with the terms and conditions established by the affiliate relating to 
the marketing of your products or services;
    (D) Your affiliate is identified on or with the marketing materials 
provided to the consumer; and
    (E) You do not directly use your affiliate's eligibility 
information in the manner described in paragraph (b)(1)(ii) of this 
section.
    (ii) Writing requirements. (A) The requirements of paragraphs 
(b)(5)(i)(A) and (C) of this section must be set forth in a written 
agreement between your affiliate and the service provider; and
    (B) The specific terms and conditions established by your affiliate 
as provided in paragraph (b)(5)(i)(B) of this section must be set forth 
in writing.
    (6) Examples of making solicitations. (i) A consumer has a deposit 
account with a depository institution, which is affiliated with an 
insurance company. The insurance company receives eligibility 
information about the consumer from the depository institution. The 
insurance company uses that eligibility information to identify the 
consumer to receive a solicitation about insurance products, and, as a 
result, the insurance company provides a solicitation to the consumer 
about its insurance products. Pursuant to paragraph (b)(1) of this 
section, the insurance company has made a solicitation to the consumer.
    (ii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that after using the eligibility information to 
identify the consumer to receive a solicitation about insurance 
products, the insurance company asks the depository institution to send 
the solicitation to the consumer and the depository institution does 
so. Pursuant to paragraph (b)(1) of this section, the insurance company 
has made a solicitation to the consumer because it used eligibility 
information about the consumer that it received from an affiliate to 
identify the consumer to receive a solicitation about its products or 
services, and, as a result, a solicitation was provided to the consumer 
about the insurance company's products.
    (iii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that eligibility information about consumers that 
have deposit accounts with the depository institution is placed into a 
common database that all members of the affiliated group of companies 
may independently access and use. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the depository institution. The depository 
institution reviews eligibility information about its own consumers 
using the selection criteria provided by the insurance company to 
determine which consumers should receive the insurance company's 
marketing materials and sends marketing materials about the insurance 
company's products to those consumers. Even though the insurance 
company has received eligibility information through the common 
database as provided in paragraph (b)(2) of this section, it did not 
use that information to identify consumers or establish selection 
criteria; instead, the depository institution used its own eligibility 
information. Therefore, pursuant to paragraph (b)(4)(i) of this 
section, the insurance company has not made a solicitation to the 
consumer.
    (iv) The same facts as in the example in paragraph (b)(6)(iii) of 
this section, except that the depository institution provides the 
insurance company's criteria to the depository institution's service 
provider and directs the service provider to use the depository 
institution's eligibility information to identify depository 
institution consumers who meet the criteria and to send the insurance 
company's marketing materials to those consumers. The insurance company 
does not communicate directly with the service provider regarding the 
use of the depository institution's information to market its products 
to the depository institution's consumers. Pursuant to paragraph 
(b)(4)(ii) of this section, the insurance company has not made a 
solicitation to the consumer.
    (v) An affiliated group of companies includes a depository 
institution, an insurance company, and a service provider. Each 
affiliate in the group places information about its consumers into a 
common database. The service provider has access to all information in 
the common database. The depository institution controls access to and 
use of its eligibility information by the service provider. This 
control is set forth in a written agreement between the depository 
institution and the service provider. The written agreement also 
requires the service provider to establish reasonable policies and 
procedures designed to ensure that the service provider uses the 
depository institution's eligibility information in accordance with 
specific terms and conditions established by the depository institution 
relating to the marketing of the products and services of all 
affiliates, including the insurance company. In a separate written 
communication, the depository institution specifies the terms and 
conditions under which the service provider may use the depository 
institution's eligibility information to market the insurance company's 
products and services to the depository institution's consumers. The 
specific terms and conditions are: A list of affiliated companies 
(including the insurance company) whose products or services may be 
marketed to the depository institution's consumers by the service 
provider; the specific products or types of products that may be 
marketed to the depository institution's consumers by the service 
provider; the categories of eligibility

[[Page 62958]]

information that may be used by the service provider in marketing 
products or services to the depository institution's consumers; the 
types or categories of the depository institution's consumers to whom 
the service provider may market products or services of depository 
institution affiliates; the number and/or types of marketing 
communications that the service provider may send to the depository 
institution's consumers; and the length of time during which the 
service provider may market the products or services of the depository 
institution's affiliates to its consumers. The depository institution 
periodically evaluates the service provider's compliance with these 
terms and conditions. The insurance company asks the service provider 
to market insurance products to certain consumers who have deposit 
accounts with the depository institution. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the service provider. The service provider 
uses the depository institution's eligibility information from the 
common database to identify the depository institution's consumers to 
whom insurance products will be marketed. When the insurance company's 
marketing materials are provided to the identified consumers, the name 
of the depository institution is displayed on the insurance marketing 
materials, an introductory letter that accompanies the marketing 
materials, an account statement that accompanies the marketing 
materials, or the envelope containing the marketing materials. The 
requirements of paragraph (b)(5) of this section have been satisfied, 
and the insurance company has not made a solicitation to the consumer.
    (vi) The same facts as in the example in paragraph (b)(6)(v) of 
this section, except that the terms and conditions permit the service 
provider to use the depository institution's eligibility information to 
market the products and services of other affiliates to the depository 
institution's consumers whenever the service provider deems it 
appropriate to do so. The service provider uses the depository 
institution's eligibility information in accordance with the discretion 
afforded to it by the terms and conditions. Because the terms and 
conditions are not specific, the requirements of paragraph (b)(5) of 
this section have not been satisfied.
    (c) Exceptions. The provisions of this subpart do not apply to you 
if you use eligibility information that you receive from an affiliate:
    (1) To make a solicitation for marketing purposes to a consumer 
with whom you have a pre-existing business relationship;
    (2) To facilitate communications to an individual for whose benefit 
you provide employee benefit or other services pursuant to a contract 
with an employer related to and arising out of the current employment 
relationship or status of the individual as a participant or 
beneficiary of an employee benefit plan;
    (3) To perform services on behalf of an affiliate, except that this 
subparagraph shall not be construed as permitting you to send 
solicitations on behalf of an affiliate if the affiliate would not be 
permitted to send the solicitation as a result of the election of the 
consumer to opt out under this subpart;
    (4) In response to a communication about your products or services 
initiated by the consumer;
    (5) In response to an authorization or request by the consumer to 
receive solicitations; or
    (6) If your compliance with this subpart would prevent you from 
complying with any provision of State insurance laws pertaining to 
unfair discrimination in any State in which you are lawfully doing 
business.
    (d) Examples of exceptions. (1) Example of the pre-existing 
business relationship exception. A consumer has a deposit account with 
a depository institution. The consumer also has a relationship with the 
depository institution's securities affiliate for management of the 
consumer's securities portfolio. The depository institution receives 
eligibility information about the consumer from its securities 
affiliate and uses that information to make a solicitation to the 
consumer about the depository institution's wealth management services. 
The depository institution may make this solicitation even if the 
consumer has not been given a notice and opportunity to opt out because 
the depository institution has a pre-existing business relationship 
with the consumer.
    (2) Examples of service provider exception. (i) A consumer has an 
insurance policy issued by an insurance company. The insurance company 
furnishes eligibility information about the consumer to its affiliated 
depository institution. Based on that eligibility information, the 
depository institution wants to make a solicitation to the consumer 
about its deposit products. The depository institution does not have a 
pre-existing business relationship with the consumer and none of the 
other exceptions in paragraph (c) of this section apply. The consumer 
has been given an opt-out notice and has elected to opt out of 
receiving such solicitations. The depository institution asks a service 
provider to send the solicitation to the consumer on its behalf. The 
service provider may not send the solicitation on behalf of the 
depository institution because, as a result of the consumer's opt-out 
election, the depository institution is not permitted to make the 
solicitation.
    (ii) The same facts as in paragraph (d)(2)(i) of this section, 
except the consumer has been given an opt-out notice, but has not 
elected to opt out. The depository institution asks a service provider 
to send the solicitation to the consumer on its behalf. The service 
provider may send the solicitation on behalf of the depository 
institution because, as a result of the consumer's not opting out, the 
depository institution is permitted to make the solicitation.
    (3) Examples of consumer-initiated communications. (i) A consumer 
who has a deposit account with a depository institution initiates a 
communication with the depository institution's credit card affiliate 
to request information about a credit card. The credit card affiliate 
may use eligibility information about the consumer it obtains from the 
depository institution or any other affiliate to make solicitations 
regarding credit card products in response to the consumer-initiated 
communication.
    (ii) A consumer who has a deposit account with a depository 
institution contacts the institution to request information about how 
to save and invest for a child's college education without specifying 
the type of product in which the consumer may be interested. 
Information about a range of different products or services offered by 
the depository institution and one or more affiliates of the 
institution may be responsive to that communication. Such products or 
services may include the following: Mutual funds offered by the 
institution's mutual fund affiliate; section 529 plans offered by the 
institution, its mutual fund affiliate, or another securities 
affiliate; or trust services offered by a different financial 
institution in the affiliated group. Any affiliate offering investment 
products or services that would be responsive to the consumer's request 
for information about saving and investing for a child's college 
education may use eligibility information to make solicitations to the 
consumer in response to this communication.

[[Page 62959]]

    (iii) A credit card issuer makes a marketing call to the consumer 
without using eligibility information received from an affiliate. The 
issuer leaves a voice-mail message that invites the consumer to call a 
toll-free number to apply for the issuer's credit card. If the consumer 
calls the toll-free number to inquire about the credit card, the call 
is a consumer-initiated communication about a product or service and 
the credit card issuer may now use eligibility information it receives 
from its affiliates to make solicitations to the consumer.
    (iv) A consumer calls a depository institution to ask about retail 
locations and hours, but does not request information about products or 
services. The institution may not use eligibility information it 
receives from an affiliate to make solicitations to the consumer about 
its products or services because the consumer-initiated communication 
does not relate to the depository institution's products or services. 
Thus, the use of eligibility information received from an affiliate 
would not be responsive to the communication and the exception does not 
apply.
    (v) A consumer calls a depository institution to ask about retail 
locations and hours. The customer service representative asks the 
consumer if there is a particular product or service about which the 
consumer is seeking information. The consumer responds that the 
consumer wants to stop in and find out about certificates of deposit. 
The customer service representative offers to provide that information 
by telephone and mail additional information and application materials 
to the consumer. The consumer agrees and provides or confirms contact 
information for receipt of the materials to be mailed. The depository 
institution may use eligibility information it receives from an 
affiliate to make solicitations to the consumer about certificates of 
deposit because such solicitations would respond to the consumer-
initiated communication about products or services.
    (4) Examples of consumer authorization or request for 
solicitations. (i) A consumer who obtains a mortgage from a mortgage 
lender authorizes or requests information about homeowner's insurance 
offered by the mortgage lender's insurance affiliate. Such 
authorization or request, whether given to the mortgage lender or to 
the insurance affiliate, would permit the insurance affiliate to use 
eligibility information about the consumer it obtains from the mortgage 
lender or any other affiliate to make solicitations to the consumer 
about homeowner's insurance.
    (ii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a blank check box that the consumer may check to authorize or 
request information from the credit card issuer's affiliates. The 
consumer checks the box. The consumer has authorized or requested 
solicitations from the card issuer's affiliates.
    (iii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a pre-selected check box indicating that the consumer 
authorizes or requests information from the issuer's affiliates. The 
consumer does not deselect the check box. The consumer has not 
authorized or requested solicitations from the card issuer's 
affiliates.
    (iv) The terms and conditions of a credit card account agreement 
contain preprinted boilerplate language stating that by applying to 
open an account the consumer authorizes or requests to receive 
solicitations from the credit card issuer's affiliates. The consumer 
has not authorized or requested solicitations from the card issuer's 
affiliates.
    (e) Relation to affiliate-sharing notice and opt-out. Nothing in 
this subpart limits the responsibility of a person to comply with the 
notice and opt-out provisions of section 603(d)(2)(A)(iii) of the Act 
where applicable.


Sec.  222.22  Scope and duration of opt-out.

    (a) Scope of opt-out. (1) In general. Except as otherwise provided 
in this section, the consumer's election to opt out prohibits any 
affiliate covered by the opt-out notice from using eligibility 
information received from another affiliate as described in the notice 
to make solicitations to the consumer.
    (2) Continuing relationship. (i) In general. If the consumer 
establishes a continuing relationship with you or your affiliate, an 
opt-out notice may apply to eligibility information obtained in 
connection with--
    (A) A single continuing relationship or multiple continuing 
relationships that the consumer establishes with you or your 
affiliates, including continuing relationships established subsequent 
to delivery of the opt-out notice, so long as the notice adequately 
describes the continuing relationships covered by the opt-out; or
    (B) Any other transaction between the consumer and you or your 
affiliates as described in the notice.
    (ii) Examples of continuing relationships. A consumer has a 
continuing relationship with you or your affiliate if the consumer--
    (A) Opens a deposit or investment account with you or your 
affiliate;
    (B) Obtains a loan for which you or your affiliate owns the 
servicing rights;
    (C) Purchases an insurance product from you or your affiliate;
    (D) Holds an investment product through you or your affiliate, such 
as when you act or your affiliate acts as a custodian for securities or 
for assets in an individual retirement arrangement;
    (E) Enters into an agreement or understanding with you or your 
affiliate whereby you or your affiliate undertakes to arrange or broker 
a home mortgage loan for the consumer;
    (F) Enters into a lease of personal property with you or your 
affiliate; or
    (G) Obtains financial, investment, or economic advisory services 
from you or your affiliate for a fee.
    (3) No continuing relationship. (i) In general. If there is no 
continuing relationship between a consumer and you or your affiliate, 
and you or your affiliate obtain eligibility information about a 
consumer in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, an opt-out 
notice provided to the consumer only applies to eligibility information 
obtained in connection with that transaction.
    (ii) Examples of isolated transactions. An isolated transaction 
occurs if-
    (A) The consumer uses your or your affiliate's ATM to withdraw cash 
from an account at another financial institution; or
    (B) You or your affiliate sells the consumer a cashier's check or 
money order, airline tickets, travel insurance, or traveler's checks in 
isolated transactions.
    (4) Menu of alternatives. A consumer may be given the opportunity 
to choose from a menu of alternatives when electing to prohibit 
solicitations, such as by electing to prohibit solicitations from 
certain types of affiliates covered by the opt-out notice but not other 
types of affiliates covered by the notice, electing to prohibit 
solicitations based on certain types of eligibility information but not 
other types of eligibility information, or electing to prohibit 
solicitations by certain methods of delivery but not other methods of 
delivery. However, one of the alternatives must allow the consumer to 
prohibit all solicitations from all of the affiliates that are covered 
by the notice.
    (5) Special rule for a notice following termination of all 
continuing relationships. (i) In general. A consumer must be given a 
new opt-out notice if,

[[Page 62960]]

after all continuing relationships with you or your affiliate(s) are 
terminated, the consumer subsequently establishes another continuing 
relationship with you or your affiliate(s) and the consumer's 
eligibility information is to be used to make a solicitation. The new 
opt-out notice must apply, at a minimum, to eligibility information 
obtained in connection with the new continuing relationship. Consistent 
with paragraph (b) of this section, the consumer's decision not to opt 
out after receiving the new opt-out notice would not override a prior 
opt-out election by the consumer that applies to eligibility 
information obtained in connection with a terminated relationship, 
regardless of whether the new opt-out notice applies to eligibility 
information obtained in connection with the terminated relationship.
    (ii) Example. A consumer has a checking account with a depository 
institution that is part of an affiliated group. The consumer closes 
the checking account. One year after closing the checking account, the 
consumer opens a savings account with the same depository institution. 
The consumer must be given a new notice and opportunity to opt out 
before the depository institution's affiliates may make solicitations 
to the consumer using eligibility information obtained by the 
depository institution in connection with the new savings account 
relationship, regardless of whether the consumer opted out in 
connection with the checking account.
    (b) Duration of opt-out. The election of a consumer to opt out must 
be effective for a period of at least five years (the ``opt-out 
period'') beginning when the consumer's opt-out election is received 
and implemented, unless the consumer subsequently revokes the opt-out 
in writing or, if the consumer agrees, electronically. An opt-out 
period of more than five years may be established, including an opt-out 
period that does not expire unless revoked by the consumer.
    (c) Time of opt-out. A consumer may opt out at any time.


Sec.  222.23  Contents of opt-out notice; consolidated and equivalent 
notices.

    (a) Contents of opt-out notice. (1) In general. A notice must be 
clear, conspicuous, and concise, and must accurately disclose:
    (i) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (ii) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (iii) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (iv) That the consumer may elect to limit the use of eligibility 
information to make solicitations to the consumer;
    (v) That the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires;
    (vi) If the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, that 
the consumer who has chosen to limit solicitations does not need to act 
again until the consumer receives a renewal notice; and
    (vii) A reasonable and simple method for the consumer to opt out.
    (2) Joint relationships. (i) If two or more consumers jointly 
obtain a product or service, a single opt-out notice may be provided to 
the joint consumers. Any of the joint consumers may exercise the right 
to opt out.
    (ii) The opt-out notice must explain how an opt-out direction by a 
joint consumer will be treated. An opt-out direction by a joint 
consumer may be treated as applying to all of the associated joint 
consumers, or each joint consumer may be permitted to opt out 
separately. If each joint consumer is permitted to opt out separately, 
one of the joint consumers must be permitted to opt out on behalf of 
all of the joint consumers and the joint consumers must be permitted to 
exercise their separate rights to opt out in a single response.
    (iii) It is impermissible to require all joint consumers to opt out 
before implementing any opt-out direction.
    (3) Alternative contents. If the consumer is afforded a broader 
right to opt out of receiving marketing than is required by this 
subpart, the requirements of this section may be satisfied by providing 
the consumer with a clear, conspicuous, and concise notice that 
accurately discloses the consumer's opt-out rights.
    (4) Model notices. Model notices are provided in Appendix C of this 
part.
    (b) Coordinated and consolidated notices. A notice required by this 
subpart may be coordinated and consolidated with any other notice or 
disclosure required to be issued under any other provision of law by 
the entity providing the notice, including but not limited to the 
notice described in section 603(d)(2)(A)(iii) of the Act and the Gramm-
Leach-Bliley Act privacy notice.
    (c) Equivalent notices. A notice or other disclosure that is 
equivalent to the notice required by this subpart, and that is provided 
to a consumer together with disclosures required by any other provision 
of law, satisfies the requirements of this section.


Sec.  222.24  Reasonable opportunity to opt out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable opportunity to opt out, as required by Sec.  
222.21(a)(1)(ii) of this part.
    (b) Examples of a reasonable opportunity to opt out. The consumer 
is given a reasonable opportunity to opt out if:

[[Page 62961]]

    (1) By mail. The opt-out notice is mailed to the consumer. The 
consumer is given 30 days from the date the notice is mailed to elect 
to opt out by any reasonable means.
    (2) By electronic means. (i) The opt-out notice is provided 
electronically to the consumer, such as by posting the notice at an 
Internet Web site at which the consumer has obtained a product or 
service. The consumer acknowledges receipt of the electronic notice. 
The consumer is given 30 days after the date the consumer acknowledges 
receipt to elect to opt out by any reasonable means.
    (ii) The opt-out notice is provided to the consumer by e-mail where 
the consumer has agreed to receive disclosures by e-mail from the 
person sending the notice. The consumer is given 30 days after the e-
mail is sent to elect to opt out by any reasonable means.
    (3) At the time of an electronic transaction. The opt-out notice is 
provided to the consumer at the time of an electronic transaction, such 
as a transaction conducted on an Internet Web site. The consumer is 
required to decide, as a necessary part of proceeding with the 
transaction, whether to opt out before completing the transaction. 
There is a simple process that the consumer may use to opt out at that 
time using the same mechanism through which the transaction is 
conducted.
    (4) At the time of an in-person transaction. The opt-out notice is 
provided to the consumer in writing at the time of an in-person 
transaction. The consumer is required to decide, as a necessary part of 
proceeding with the transaction, whether to opt out before completing 
the transaction, and is not permitted to complete the transaction 
without making a choice. There is a simple process that the consumer 
may use during the course of the in-person transaction to opt out, such 
as completing a form that requires consumers to write a ``yes'' or 
``no'' to indicate their opt-out preference or that requires the 
consumer to check one of two blank check boxes--one that allows 
consumers to indicate that they want to opt out and one that allows 
consumers to indicate that they do not want to opt out.
    (5) By including in a privacy notice. The opt-out notice is 
included in a Gramm-Leach-Bliley Act privacy notice. The consumer is 
allowed to exercise the opt-out within a reasonable period of time and 
in the same manner as the opt-out under that privacy notice.


Sec.  222.25  Reasonable and simple methods of opting out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable and simple method to opt out, as required by 
Sec.  222.21(a)(1)(ii) of this part.
    (b) Examples. (1) Reasonable and simple opt-out methods. Reasonable 
and simple methods for exercising the opt-out right include--
    (i) Designating a check-off box in a prominent position on the opt-
out form;
    (ii) Including a reply form and a self-addressed envelope together 
with the opt-out notice;
    (iii) Providing an electronic means to opt out, such as a form that 
can be electronically mailed or processed at an Internet Web site, if 
the consumer agrees to the electronic delivery of information;
    (iv) Providing a toll-free telephone number that consumers may call 
to opt out; or
    (v) Allowing consumers to exercise all of their opt-out rights 
described in a consolidated opt-out notice that includes the privacy 
opt-out under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., the 
affiliate sharing opt-out under the Act, and the affiliate marketing 
opt-out under the Act, by a single method, such as by calling a single 
toll-free telephone number.
    (2) Opt-out methods that are not reasonable and simple. Reasonable 
and simple methods for exercising an opt-out right do not include--
    (i) Requiring the consumer to write his or her own letter;
    (ii) Requiring the consumer to call or write to obtain a form for 
opting out, rather than including the form with the opt-out notice;
    (iii) Requiring the consumer who receives the opt-out notice in 
electronic form only, such as through posting at an Internet Web site, 
to opt out solely by paper mail or by visiting a different Web site 
without providing a link to that site.
    (c) Specific opt-out means. Each consumer may be required to opt 
out through a specific means, as long as that means is reasonable and 
simple for that consumer.


Sec.  222.26  Delivery of opt-out notices.

    (a) In general. The opt-out notice must be provided so that each 
consumer can reasonably be expected to receive actual notice. For opt-
out notices provided electronically, the notice may be provided in 
compliance with either the electronic disclosure provisions in this 
subpart or the provisions in section 101 of the Electronic Signatures 
in Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (b) Examples of reasonable expectation of actual notice. A consumer 
may reasonably be expected to receive actual notice if the affiliate 
providing the notice:
    (1) Hand-delivers a printed copy of the notice to the consumer;
    (2) Mails a printed copy of the notice to the last known mailing 
address of the consumer;
    (3) Provides a notice by e-mail to a consumer who has agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (4) Posts the notice on the Internet Web site at which the consumer 
obtained a product or service electronically and requires the consumer 
to acknowledge receipt of the notice.
    (c) Examples of no reasonable expectation of actual notice. A 
consumer may not reasonably be expected to receive actual notice if the 
affiliate providing the notice:
    (1) Only posts the notice on a sign in a branch or office or 
generally publishes the notice in a newspaper;
    (2) Sends the notice via e-mail to a consumer who has not agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (3) Posts the notice on an Internet Web site without requiring the 
consumer to acknowledge receipt of the notice.


Sec.  222.27  Renewal of opt-out.

    (a) Renewal notice and opt-out requirement. (1) In general. After 
the opt-out period expires, you may not make solicitations based on 
eligibility information you receive from an affiliate to a consumer who 
previously opted out, unless:
    (i) The consumer has been given a renewal notice that complies with 
the requirements of this section and Sec. Sec.  222.24 through 222.26 
of this part, and a reasonable opportunity and a reasonable and simple 
method to renew the opt-out, and the consumer does not renew the opt-
out; or
    (ii) An exception in Sec.  222.21(c) of this part applies.
    (2) Renewal period. Each opt-out renewal must be effective for a 
period of at least five years as provided in Sec.  222.22(b) of this 
part.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By the affiliate that provided the previous opt-out notice, or 
its successor; or
    (ii) As part of a joint renewal notice from two or more members of 
an

[[Page 62962]]

affiliated group of companies, or their successors, that jointly 
provided the previous opt-out notice.
    (b) Contents of renewal notice. The renewal notice must be clear, 
conspicuous, and concise, and must accurately disclose:
    (1) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (2) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (3) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (4) That the consumer previously elected to limit the use of 
certain information to make solicitations to the consumer;
    (5) That the consumer's election has expired or is about to expire;
    (6) That the consumer may elect to renew the consumer's previous 
election;
    (7) If applicable, that the consumer's election to renew will apply 
for the specified period of time stated in the notice and that the 
consumer will be allowed to renew the election once that period 
expires; and
    (8) A reasonable and simple method for the consumer to opt out.
    (c) Timing of the renewal notice. (1) In general. A renewal notice 
may be provided to the consumer either--
    (i) A reasonable period of time before the expiration of the opt-
out period; or
    (ii) Any time after the expiration of the opt-out period but before 
solicitations that would have been prohibited by the expired opt-out 
are made to the consumer.
    (2) Combination with annual privacy notice. If you provide an 
annual privacy notice under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 
et seq., providing a renewal notice with the last annual privacy notice 
provided to the consumer before expiration of the opt-out period is a 
reasonable period of time before expiration of the opt-out in all 
cases.
    (d) No effect on opt-out period. An opt-out period may not be 
shortened by sending a renewal notice to the consumer before expiration 
of the opt-out period, even if the consumer does not renew the opt out.


Sec.  222.28  Effective date, compliance date, and prospective 
application.

    (a) Effective date. This subpart is effective January 1, 2008.
    (b) Mandatory compliance date. Compliance with this subpart is 
required not later than October 1, 2008.
    (c) Prospective application. The provisions of this subpart shall 
not prohibit you from using eligibility information that you receive 
from an affiliate to make solicitations to a consumer if you receive 
such information prior to October 1, 2008. For purposes of this 
section, you are deemed to receive eligibility information when such 
information is placed into a common database and is accessible by you.

0
4. A new Appendix C to part 222 is added to read as follows:

Appendix C to Part 222--Model Forms for Opt-Out Notices

    a. Although use of the model forms is not required, use of the 
model forms in this Appendix (as applicable) complies with the 
requirement in section 624 of the Act for clear, conspicuous, and 
concise notices.
    b. Certain changes may be made to the language or format of the 
model forms without losing the protection from liability afforded by 
use of the model forms. These changes may not be so extensive as to 
affect the substance, clarity, or meaningful sequence of the 
language in the model forms. Persons making such extensive revisions 
will lose the safe harbor that this Appendix provides. Acceptable 
changes include, for example:
    1. Rearranging the order of the references to ``your income,'' 
``your account history,'' and ``your credit score.''
    2. Substituting other types of information for ``income,'' 
``account history,'' or ``credit score'' for accuracy, such as 
``payment history,'' ``credit history,'' ``payoff status,'' or 
``claims history.''
    3. Substituting a clearer and more accurate description of the 
affiliates providing or covered by the notice for phrases such as 
``the [ABC] group of companies,'' including without limitation a 
statement that the entity providing the notice recently purchased 
the consumer's account.
    4. Substituting other types of affiliates covered by the notice 
for ``credit card,'' ``insurance,'' or ``securities'' affiliates.
    5. Omitting items that are not accurate or applicable. For 
example, if a person does not limit the duration of the opt-out 
period, the notice may omit information about the renewal notice.
    6. Adding a statement informing consumers how much time they 
have to opt out before shared eligibility information may be used to 
make solicitations to them.
    7. Adding a statement that the consumer may exercise the right 
to opt out at any time.
    8. Adding the following statement, if accurate: ``If you 
previously opted out, you do not need to do so again.''
    9. Providing a place on the form for the consumer to fill in 
identifying information, such as his or her name and address

C-1 Model Form for Initial Opt-out Notice (Single-Affiliate Notice)

C-2 Model Form for Initial Opt-out Notice (Joint Notice)
C-3 Model Form for Renewal Notice (Single-Affiliate Notice)
C-4 Model Form for Renewal Notice (Joint Notice)
C-5 Model Form for Voluntary ``No Marketing'' Notice

C-1--Model Form for Initial Opt-out Notice (Single-Affiliate 
Notice)--[Your Choice To Limit Marketing]/[Marketing Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You may limit our affiliates in the [ABC] group of 
companies, such as our [credit card, insurance, and securities] 
affiliates, from marketing their products or services to you based 
on your personal information that we collect and share with them. 
This information includes your [income], your [account history with 
us], and your [credit score].
     Your choice to limit marketing offers from our 
affiliates will apply [until you tell

[[Page 62963]]

us to change your choice]/[for x years from when you tell us your 
choice]/[for at least 5 years from when you tell us your choice]. 
[Include if the opt-out period expires.] Once that period expires, 
you will receive a renewal notice that will allow you to continue to 
limit marketing offers from our affiliates for [another x years]/[at 
least another 5 years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from our affiliates, you do not need to act again until you 
receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow your affiliates to use my personal information to 
market to me.

C-2--Model Form for Initial Opt-out Notice (Joint Notice)--[Your 
Choice To Limit Marketing]/[Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You may limit the [ABC] companies, such as the [ABC 
credit card, insurance, and securities] affiliates, from marketing 
their products or services to you based on your personal information 
that they receive from other [ABC] companies. This information 
includes your [income], your [account history], and your [credit 
score].
     Your choice to limit marketing offers from the [ABC] 
companies will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from the [ABC] companies for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from the [ABC] companies, you do not need to act again until 
you receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow any company [in the ABC group of companies] to 
use my personal information to market to me.

C-3--Model Form for Renewal Notice (Single-Affiliate Notice)--
[Renewing Your Choice To Limit Marketing]/[Renewing Your Marketing 
Opt-Out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You previously chose to limit our affiliates in the 
[ABC] group of companies, such as our [credit card, insurance, and 
securities] affiliates, from marketing their products or services to 
you based on your personal information that we share with them. This 
information includes your [income], your [account history with us], 
and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

--Renew my choice to limit marketing for [x] more years.

C-4--Model Form for Renewal Notice (Joint Notice)--[Renewing Your 
Choice To Limit Marketing]/[Renewing Your Marketing Opt-Out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You previously chose to limit the [ABC] companies, such 
as the [ABC credit card, insurance, and securities] affiliates, from 
marketing their products or services to you based on your personal 
information that they receive from other ABC companies. This 
information includes your [income], your [account history], and your 
[credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

--Renew my choice to limit marketing for [x] more years.

C-5--Model Form for Voluntary ``No Marketing'' Notice--Your Choice 
To Stop Marketing

     [Name of Affiliate] is providing this notice.
     You may choose to stop all marketing from us and our 
affiliates.
    To stop all marketing, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

--Do not market to me.

Federal Deposit Insurance Corporation

    12 CFR Chapter III.

Authority and Issuance

0
For the reasons set forth in the joint preamble, part 334 of title 12, 
chapter III, of the Code of Federal Regulations is amended as follows:

PART 334--FAIR CREDIT REPORTING

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

    Authority: 12 U.S.C. 1818 and 1819 (Tenth); 15 U.S.C. 1681b, 
1681c, 1681m, 1681s, 1681w, 6801 and 6805.

Subpart A--General Provisions

0
2. A new Sec.  334.1 is added to part 334 to read as follows:


Sec.  334.1  Purpose and scope.

    (a) Purpose. The purpose of this part is to implement the Fair 
Credit Reporting Act. This part generally applies to persons that 
obtain and use information about consumers to determine the consumer's 
eligibility for products, services, or employment, share such 
information among affiliates, and furnish information to consumer 
reporting agencies.
    (b) Scope. Except as otherwise provided in this part, the 
regulations in this part apply to insured state nonmember banks, 
insured state licensed branches of foreign banks, and subsidiaries of 
such entities (except brokers, dealers, persons providing insurance, 
investment companies, and investment advisers).

0
3. A new Subpart C is added to part 334 to read as follows:
Subpart C--Affiliate Marketing
Sec.
334.20 Coverage and definitions.
334.21 Affiliate marketing opt-out and exceptions.
334.22 Scope and duration of opt-out.
334.23 Contents of opt-out notice; consolidated and equivalent 
notices.
334.24 Reasonable opportunity to opt out.
334.25 Reasonable and simple methods of opting out.
334.26 Delivery of opt-out notices.
334.27 Renewal of opt-out.
334.28 Effective date, compliance date, and prospective application.

[[Page 62964]]

Subpart C--Affiliate Marketing


Sec.  334.20  Coverage and definitions.

    (a) Coverage. Subpart C of this part applies to insured state 
nonmember banks, insured state licensed branches of foreign banks, and 
subsidiaries of such entities (except brokers, dealers, persons 
providing insurance, investment companies, and investment advisers).
    (b) Definitions. For purposes of this subpart:
    (1) Clear and conspicuous. The term ``clear and conspicuous'' means 
reasonably understandable and designed to call attention to the nature 
and significance of the information presented.
    (2) Concise. (i) In general. The term ``concise'' means a 
reasonably brief expression or statement.
    (ii) Combination with other required disclosures. A notice required 
by this subpart may be concise even if it is combined with other 
disclosures required or authorized by federal or state law.
    (3) Eligibility information. The term ``eligibility information'' 
means any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the Act did not apply. Eligibility information 
does not include aggregate or blind data that does not contain personal 
identifiers such as account numbers, names, or addresses.
    (4) Pre-existing business relationship. (i) In general. The term 
``pre-existing business relationship'' means a relationship between a 
person, or a person's licensed agent, and a consumer based on--
    (A) A financial contract between the person and the consumer which 
is in force on the date on which the consumer is sent a solicitation 
covered by this subpart;
    (B) The purchase, rental, or lease by the consumer of the person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and the person, during the 18-month 
period immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart; or
    (C) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart.
    (ii) Examples of pre-existing business relationships. (A) If a 
consumer has a time deposit account, such as a certificate of deposit, 
at a depository institution that is currently in force, the depository 
institution has a pre-existing business relationship with the consumer 
and can use eligibility information it receives from its affiliates to 
make solicitations to the consumer about its products or services.
    (B) If a consumer obtained a certificate of deposit from a 
depository institution, but did not renew the certificate at maturity, 
the depository institution has a pre-existing business relationship 
with the consumer and can use eligibility information it receives from 
its affiliates to make solicitations to the consumer about its products 
or services for 18 months after the date of maturity of the certificate 
of deposit.
    (C) If a consumer obtains a mortgage, the mortgage lender has a 
pre-existing business relationship with the consumer. If the mortgage 
lender sells the consumer's entire loan to an investor, the mortgage 
lender has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services for 18 
months after the date it sells the loan, and the investor has a pre-
existing business relationship with the consumer upon purchasing the 
loan. If, however, the mortgage lender sells a fractional interest in 
the consumer's loan to an investor but also retains an ownership 
interest in the loan, the mortgage lender continues to have a pre-
existing business relationship with the consumer, but the investor does 
not have a pre-existing business relationship with the consumer. If the 
mortgage lender retains ownership of the loan, but sells ownership of 
the servicing rights to the consumer's loan, the mortgage lender 
continues to have a pre-existing business relationship with the 
consumer. The purchaser of the servicing rights also has a pre-existing 
business relationship with the consumer as of the date it purchases 
ownership of the servicing rights, but only if it collects payments 
from or otherwise deals directly with the consumer on a continuing 
basis.
    (D) If a consumer applies to a depository institution for a product 
or service that it offers, but does not obtain a product or service 
from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the application.
    (E) If a consumer makes a telephone inquiry to a depository 
institution about its products or services and provides contact 
information to the institution, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (F) If a consumer makes an inquiry to a depository institution by 
e-mail about its products or services, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (G) If a consumer has an existing relationship with a depository 
institution that is part of a group of affiliated companies, makes a 
telephone call to the centralized call center for the group of 
affiliated companies to inquire about products or services offered by 
the insurance affiliate, and provides contact information to the call 
center, the call constitutes an inquiry to the insurance affiliate that 
offers those products or services. The insurance affiliate has a pre-
existing business relationship with the consumer and can therefore use 
eligibility information it receives from its affiliated depository 
institution to make solicitations to the consumer about its products or 
services for three months after the date of the inquiry.
    (iii) Examples where no pre-existing business relationship is 
created. (A) If a consumer makes a telephone call to a centralized call 
center for a group of affiliated companies to inquire about the 
consumer's existing account at a depository institution, the call does 
not constitute an inquiry to any affiliate other than the depository 
institution that holds the consumer's account and does not establish a 
pre-existing business relationship between the consumer and any 
affiliate of the account-holding depository institution.
    (B) If a consumer who has a deposit account with a depository 
institution makes a telephone call to an affiliate of the institution 
to ask about the affiliate's retail locations and hours, but does not 
make an inquiry about the affiliate's products or services, the call 
does not constitute an inquiry and does not establish a pre-existing 
business

[[Page 62965]]

relationship between the consumer and the affiliate. Also, the 
affiliate's capture of the consumer's telephone number does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate.
    (C) If a consumer makes a telephone call to a depository 
institution in response to an advertisement that offers a free 
promotional item to consumers who call a toll-free number, but the 
advertisement does not indicate that the depository institution's 
products or services will be marketed to consumers who call in 
response, the call does not create a pre-existing business relationship 
between the consumer and the depository institution because the 
consumer has not made an inquiry about a product or service offered by 
the institution, but has merely responded to an offer for a free 
promotional item.
    (5) Solicitation. (i) In general. The term ``solicitation'' means 
the marketing of a product or service initiated by a person to a 
particular consumer that is--
    (A) Based on eligibility information communicated to that person by 
its affiliate as described in this subpart; and
    (B) Intended to encourage the consumer to purchase or obtain such 
product or service.
    (ii) Exclusion of marketing directed at the general public. A 
solicitation does not include marketing communications that are 
directed at the general public. For example, television, general 
circulation magazine, and billboard advertisements do not constitute 
solicitations, even if those communications are intended to encourage 
consumers to purchase products and services from the person initiating 
the communications.
    (iii) Examples of solicitations. A solicitation would include, for 
example, a telemarketing call, direct mail, e-mail, or other form of 
marketing communication directed to a particular consumer that is based 
on eligibility information received from an affiliate.
    (6) You means a person described in paragraph (a) of this section.


Sec.  334.21  Affiliate marketing opt-out and exceptions.

    (a) Initial notice and opt-out requirement. (1) In general. You may 
not use eligibility information about a consumer that you receive from 
an affiliate to make a solicitation for marketing purposes to the 
consumer, unless--
    (i) It is clearly and conspicuously disclosed to the consumer in 
writing or, if the consumer agrees, electronically, in a concise notice 
that you may use eligibility information about that consumer received 
from an affiliate to make solicitations for marketing purposes to the 
consumer;
    (ii) The consumer is provided a reasonable opportunity and a 
reasonable and simple method to ``opt out,'' or prohibit you from using 
eligibility information to make solicitations for marketing purposes to 
the consumer; and
    (iii) The consumer has not opted out.
    (2) Example. A consumer has a homeowner's insurance policy with an 
insurance company. The insurance company furnishes eligibility 
information about the consumer to its affiliated depository 
institution. Based on that eligibility information, the depository 
institution wants to make a solicitation to the consumer about its home 
equity loan products. The depository institution does not have a pre-
existing business relationship with the consumer and none of the other 
exceptions apply. The depository institution is prohibited from using 
eligibility information received from its insurance affiliate to make 
solicitations to the consumer about its home equity loan products 
unless the consumer is given a notice and opportunity to opt out and 
the consumer does not opt out.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By an affiliate that has or has previously had a pre-existing 
business relationship with the consumer; or
    (ii) As part of a joint notice from two or more members of an 
affiliated group of companies, provided that at least one of the 
affiliates on the joint notice has or has previously had a pre-existing 
business relationship with the consumer.
    (b) Making solicitations. (1) In general. For purposes of this 
subpart, you make a solicitation for marketing purposes if--
    (i) You receive eligibility information from an affiliate;
    (ii) You use that eligibility information to do one or more of the 
following:
    (A) Identify the consumer or type of consumer to receive a 
solicitation;
    (B) Establish criteria used to select the consumer to receive a 
solicitation; or
    (C) Decide which of your products or services to market to the 
consumer or tailor your solicitation to that consumer; and
    (iii) As a result of your use of the eligibility information, the 
consumer is provided a solicitation.
    (2) Receiving eligibility information from an affiliate, including 
through a common database. You may receive eligibility information from 
an affiliate in various ways, including when the affiliate places that 
information into a common database that you may access.
    (3) Receipt or use of eligibility information by your service 
provider. Except as provided in paragraph (b)(5) of this section, you 
receive or use an affiliate's eligibility information if a service 
provider acting on your behalf (whether an affiliate or a nonaffiliated 
third party) receives or uses that information in the manner described 
in paragraphs (b)(1)(i) or (b)(1)(ii) of this section. All relevant 
facts and circumstances will determine whether a person is acting as 
your service provider when it receives or uses an affiliate's 
eligibility information in connection with marketing your products and 
services.
    (4) Use by an affiliate of its own eligibility information. Unless 
you have used eligibility information that you receive from an 
affiliate in the manner described in paragraph (b)(1)(ii) of this 
section, you do not make a solicitation subject to this subpart if your 
affiliate:
    (i) Uses its own eligibility information that it obtained in 
connection with a pre-existing business relationship it has or had with 
the consumer to market your products or services to the consumer; or
    (ii) Directs its service provider to use the affiliate's own 
eligibility information that it obtained in connection with a pre-
existing business relationship it has or had with the consumer to 
market your products or services to the consumer, and you do not 
communicate directly with the service provider regarding that use.
    (5) Use of eligibility information by a service provider. (i) In 
general. You do not make a solicitation subject to Subpart C of this 
part if a service provider (including an affiliated or third-party 
service provider that maintains or accesses a common database that you 
may access) receives eligibility information from your affiliate that 
your affiliate obtained in connection with a pre-existing business 
relationship it has or had with the consumer and uses that eligibility 
information to market your products or services to the consumer, so 
long as--
    (A) Your affiliate controls access to and use of its eligibility 
information by the service provider (including the right to establish 
the specific terms and conditions under which the service provider may 
use such information to market your products or services);
    (B) Your affiliate establishes specific terms and conditions under 
which the service provider may access and use the affiliate's 
eligibility information to

[[Page 62966]]

market your products and services (or those of affiliates generally) to 
the consumer, such as the identity of the affiliated companies whose 
products or services may be marketed to the consumer by the service 
provider, the types of products or services of affiliated companies 
that may be marketed, and the number of times the consumer may receive 
marketing materials, and periodically evaluates the service provider's 
compliance with those terms and conditions;
    (C) Your affiliate requires the service provider to implement 
reasonable policies and procedures designed to ensure that the service 
provider uses the affiliate's eligibility information in accordance 
with the terms and conditions established by the affiliate relating to 
the marketing of your products or services;
    (D) Your affiliate is identified on or with the marketing materials 
provided to the consumer; and
    (E) You do not directly use your affiliate's eligibility 
information in the manner described in paragraph (b)(1)(ii) of this 
section.
    (ii) Writing requirements. (A) The requirements of paragraphs 
(b)(5)(i)(A) and (C) of this section must be set forth in a written 
agreement between your affiliate and the service provider; and
    (B) The specific terms and conditions established by your affiliate 
as provided in paragraph (b)(5)(i)(B) of this section must be set forth 
in writing.
    (6) Examples of making solicitations. (i) A consumer has a deposit 
account with a depository institution, which is affiliated with an 
insurance company. The insurance company receives eligibility 
information about the consumer from the depository institution. The 
insurance company uses that eligibility information to identify the 
consumer to receive a solicitation about insurance products, and, as a 
result, the insurance company provides a solicitation to the consumer 
about its insurance products. Pursuant to paragraph (b)(1) of this 
section, the insurance company has made a solicitation to the consumer.
    (ii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that after using the eligibility information to 
identify the consumer to receive a solicitation about insurance 
products, the insurance company asks the depository institution to send 
the solicitation to the consumer and the depository institution does 
so. Pursuant to paragraph (b)(1) of this section, the insurance company 
has made a solicitation to the consumer because it used eligibility 
information about the consumer that it received from an affiliate to 
identify the consumer to receive a solicitation about its products or 
services, and, as a result, a solicitation was provided to the consumer 
about the insurance company's products.
    (iii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that eligibility information about consumers that 
have deposit accounts with the depository institution is placed into a 
common database that all members of the affiliated group of companies 
may independently access and use. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the depository institution. The depository 
institution reviews eligibility information about its own consumers 
using the selection criteria provided by the insurance company to 
determine which consumers should receive the insurance company's 
marketing materials and sends marketing materials about the insurance 
company's products to those consumers. Even though the insurance 
company has received eligibility information through the common 
database as provided in paragraph (b)(2) of this section, it did not 
use that information to identify consumers or establish selection 
criteria; instead, the depository institution used its own eligibility 
information. Therefore, pursuant to paragraph (b)(4)(i) of this 
section, the insurance company has not made a solicitation to the 
consumer.
    (iv) The same facts as in the example in paragraph (b)(6)(iii) of 
this section, except that the depository institution provides the 
insurance company's criteria to the depository institution's service 
provider and directs the service provider to use the depository 
institution's eligibility information to identify depository 
institution consumers who meet the criteria and to send the insurance 
company's marketing materials to those consumers. The insurance company 
does not communicate directly with the service provider regarding the 
use of the depository institution's information to market its products 
to the depository institution's consumers. Pursuant to paragraph 
(b)(4)(ii) of this section, the insurance company has not made a 
solicitation to the consumer.
    (v) An affiliated group of companies includes a depository 
institution, an insurance company, and a service provider. Each 
affiliate in the group places information about its consumers into a 
common database. The service provider has access to all information in 
the common database. The depository institution controls access to and 
use of its eligibility information by the service provider. This 
control is set forth in a written agreement between the depository 
institution and the service provider. The written agreement also 
requires the service provider to establish reasonable policies and 
procedures designed to ensure that the service provider uses the 
depository institution's eligibility information in accordance with 
specific terms and conditions established by the depository institution 
relating to the marketing of the products and services of all 
affiliates, including the insurance company. In a separate written 
communication, the depository institution specifies the terms and 
conditions under which the service provider may use the depository 
institution's eligibility information to market the insurance company's 
products and services to the depository institution's consumers. The 
specific terms and conditions are: a list of affiliated companies 
(including the insurance company) whose products or services may be 
marketed to the depository institution's consumers by the service 
provider; the specific products or types of products that may be 
marketed to the depository institution's consumers by the service 
provider; the categories of eligibility information that may be used by 
the service provider in marketing products or services to the 
depository institution's consumers; the types or categories of the 
depository institution's consumers to whom the service provider may 
market products or services of depository institution affiliates; the 
number and/or types of marketing communications that the service 
provider may send to the depository institution's consumers; and the 
length of time during which the service provider may market the 
products or services of the depository institution's affiliates to its 
consumers. The depository institution periodically evaluates the 
service provider's compliance with these terms and conditions. The 
insurance company asks the service provider to market insurance 
products to certain consumers who have deposit accounts with the 
depository institution. Without using the depository institution's 
eligibility information, the insurance company develops selection 
criteria and provides those criteria, marketing materials, and related 
instructions to the service provider. The service provider uses the 
depository institution's eligibility information from the common 
database

[[Page 62967]]

to identify the depository institution's consumers to whom insurance 
products will be marketed. When the insurance company's marketing 
materials are provided to the identified consumers, the name of the 
depository institution is displayed on the insurance marketing 
materials, an introductory letter that accompanies the marketing 
materials, an account statement that accompanies the marketing 
materials, or the envelope containing the marketing materials. The 
requirements of paragraph (b)(5) of this section have been satisfied, 
and the insurance company has not made a solicitation to the consumer.
    (vi) The same facts as in the example in paragraph (b)(6)(v) of 
this section, except that the terms and conditions permit the service 
provider to use the depository institution's eligibility information to 
market the products and services of other affiliates to the depository 
institution's consumers whenever the service provider deems it 
appropriate to do so. The service provider uses the depository 
institution's eligibility information in accordance with the discretion 
afforded to it by the terms and conditions. Because the terms and 
conditions are not specific, the requirements of paragraph (b)(5) of 
this section have not been satisfied.
    (c) Exceptions. The provisions of this subpart do not apply to you 
if you use eligibility information that you receive from an affiliate:
    (1) To make a solicitation for marketing purposes to a consumer 
with whom you have a pre-existing business relationship;
    (2) To facilitate communications to an individual for whose benefit 
you provide employee benefit or other services pursuant to a contract 
with an employer related to and arising out of the current employment 
relationship or status of the individual as a participant or 
beneficiary of an employee benefit plan;
    (3) To perform services on behalf of an affiliate, except that this 
subparagraph shall not be construed as permitting you to send 
solicitations on behalf of an affiliate if the affiliate would not be 
permitted to send the solicitation as a result of the election of the 
consumer to opt out under this subpart;
    (4) In response to a communication about your products or services 
initiated by the consumer;
    (5) In response to an authorization or request by the consumer to 
receive solicitations; or
    (6) If your compliance with this subpart would prevent you from 
complying with any provision of State insurance laws pertaining to 
unfair discrimination in any State in which you are lawfully doing 
business.
    (d) Examples of exceptions. (1) Example of the pre-existing 
business relationship exception. A consumer has a deposit account with 
a depository institution. The consumer also has a relationship with the 
depository institution's securities affiliate for management of the 
consumer's securities portfolio. The depository institution receives 
eligibility information about the consumer from its securities 
affiliate and uses that information to make a solicitation to the 
consumer about the depository institution's wealth management services. 
The depository institution may make this solicitation even if the 
consumer has not been given a notice and opportunity to opt out because 
the depository institution has a pre-existing business relationship 
with the consumer.
    (2) Examples of service provider exception. (i) A consumer has an 
insurance policy issued by an insurance company. The insurance company 
furnishes eligibility information about the consumer to its affiliated 
depository institution. Based on that eligibility information, the 
depository institution wants to make a solicitation to the consumer 
about its deposit products. The depository institution does not have a 
pre-existing business relationship with the consumer and none of the 
other exceptions in paragraph (c) of this section apply. The consumer 
has been given an opt-out notice and has elected to opt out of 
receiving such solicitations. The depository institution asks a service 
provider to send the solicitation to the consumer on its behalf. The 
service provider may not send the solicitation on behalf of the 
depository institution because, as a result of the consumer's opt-out 
election, the depository institution is not permitted to make the 
solicitation.
    (ii) The same facts as in paragraph (d)(2)(i) of this section, 
except the consumer has been given an opt-out notice, but has not 
elected to opt out. The depository institution asks a service provider 
to send the solicitation to the consumer on its behalf. The service 
provider may send the solicitation on behalf of the depository 
institution because, as a result of the consumer's not opting out, the 
depository institution is permitted to make the solicitation.
    (3) Examples of consumer-initiated communications. (i) A consumer 
who has a deposit account with a depository institution initiates a 
communication with the depository institution's credit card affiliate 
to request information about a credit card. The credit card affiliate 
may use eligibility information about the consumer it obtains from the 
depository institution or any other affiliate to make solicitations 
regarding credit card products in response to the consumer-initiated 
communication.
    (ii) A consumer who has a deposit account with a depository 
institution contacts the institution to request information about how 
to save and invest for a child's college education without specifying 
the type of product in which the consumer may be interested. 
Information about a range of different products or services offered by 
the depository institution and one or more affiliates of the 
institution may be responsive to that communication. Such products or 
services may include the following: Mutual funds offered by the 
institution's mutual fund affiliate; section 529 plans offered by the 
institution, its mutual fund affiliate, or another securities 
affiliate; or trust services offered by a different financial 
institution in the affiliated group. Any affiliate offering investment 
products or services that would be responsive to the consumer's request 
for information about saving and investing for a child's college 
education may use eligibility information to make solicitations to the 
consumer in response to this communication.
    (iii) A credit card issuer makes a marketing call to the consumer 
without using eligibility information received from an affiliate. The 
issuer leaves a voice-mail message that invites the consumer to call a 
toll-free number to apply for the issuer's credit card. If the consumer 
calls the toll-free number to inquire about the credit card, the call 
is a consumer-initiated communication about a product or service and 
the credit card issuer may now use eligibility information it receives 
from its affiliates to make solicitations to the consumer.
    (iv) A consumer calls a depository institution to ask about retail 
locations and hours, but does not request information about products or 
services. The institution may not use eligibility information it 
receives from an affiliate to make solicitations to the consumer about 
its products or services because the consumer-initiated communication 
does not relate to the depository institution's products or services. 
Thus, the use of eligibility information received from an affiliate 
would not be responsive to the communication and the exception does not 
apply.
    (v) A consumer calls a depository institution to ask about retail 
locations and hours. The customer service representative asks the 
consumer if

[[Page 62968]]

there is a particular product or service about which the consumer is 
seeking information. The consumer responds that the consumer wants to 
stop in and find out about certificates of deposit. The customer 
service representative offers to provide that information by telephone 
and mail additional information and application materials to the 
consumer. The consumer agrees and provides or confirms contact 
information for receipt of the materials to be mailed. The depository 
institution may use eligibility information it receives from an 
affiliate to make solicitations to the consumer about certificates of 
deposit because such solicitations would respond to the consumer-
initiated communication about products or services.
    (4) Examples of consumer authorization or request for 
solicitations. (i) A consumer who obtains a mortgage from a mortgage 
lender authorizes or requests information about homeowner's insurance 
offered by the mortgage lender's insurance affiliate. Such 
authorization or request, whether given to the mortgage lender or to 
the insurance affiliate, would permit the insurance affiliate to use 
eligibility information about the consumer it obtains from the mortgage 
lender or any other affiliate to make solicitations to the consumer 
about homeowner's insurance.
    (ii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a blank check box that the consumer may check to authorize or 
request information from the credit card issuer's affiliates. The 
consumer checks the box. The consumer has authorized or requested 
solicitations from the card issuer's affiliates.
    (iii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a pre-selected check box indicating that the consumer 
authorizes or requests information from the issuer's affiliates. The 
consumer does not deselect the check box. The consumer has not 
authorized or requested solicitations from the card issuer's 
affiliates.
    (iv) The terms and conditions of a credit card account agreement 
contain preprinted boilerplate language stating that by applying to 
open an account the consumer authorizes or requests to receive 
solicitations from the credit card issuer's affiliates. The consumer 
has not authorized or requested solicitations from the card issuer's 
affiliates.
    (e) Relation to affiliate-sharing notice and opt-out. Nothing in 
this subpart limits the responsibility of a person to comply with the 
notice and opt-out provisions of section 603(d)(2)(A)(iii) of the Act 
where applicable.


Sec.  334.22  Scope and duration of opt-out.

    (a) Scope of opt-out. (1) In general. Except as otherwise provided 
in this section, the consumer's election to opt out prohibits any 
affiliate covered by the opt-out notice from using eligibility 
information received from another affiliate as described in the notice 
to make solicitations to the consumer.
    (2) Continuing relationship. (i) In general. If the consumer 
establishes a continuing relationship with you or your affiliate, an 
opt-out notice may apply to eligibility information obtained in 
connection with--
    (A) A single continuing relationship or multiple continuing 
relationships that the consumer establishes with you or your 
affiliates, including continuing relationships established subsequent 
to delivery of the opt-out notice, so long as the notice adequately 
describes the continuing relationships covered by the opt-out; or
    (B) Any other transaction between the consumer and you or your 
affiliates as described in the notice.
    (ii) Examples of continuing relationships. A consumer has a 
continuing relationship with you or your affiliate if the consumer--
    (A) Opens a deposit or investment account with you or your 
affiliate;
    (B) Obtains a loan for which you or your affiliate owns the 
servicing rights;
    (C) Purchases an insurance product from you or your affiliate;
    (D) Holds an investment product through you or your affiliate, such 
as when you act or your affiliate acts as a custodian for securities or 
for assets in an individual retirement arrangement;
    (E) Enters into an agreement or understanding with you or your 
affiliate whereby you or your affiliate undertakes to arrange or broker 
a home mortgage loan for the consumer;
    (F) Enters into a lease of personal property with you or your 
affiliate; or
    (G) Obtains financial, investment, or economic advisory services 
from you or your affiliate for a fee.
    (3) No continuing relationship. (i) In general. If there is no 
continuing relationship between a consumer and you or your affiliate, 
and you or your affiliate obtain eligibility information about a 
consumer in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, an opt-out 
notice provided to the consumer only applies to eligibility information 
obtained in connection with that transaction.
    (ii) Examples of isolated transactions. An isolated transaction 
occurs if--
    (A) The consumer uses your or your affiliate's ATM to withdraw cash 
from an account at another financial institution; or
    (B) You or your affiliate sells the consumer a cashier's check or 
money order, airline tickets, travel insurance, or traveler's checks in 
isolated transactions.
    (4) Menu of alternatives. A consumer may be given the opportunity 
to choose from a menu of alternatives when electing to prohibit 
solicitations, such as by electing to prohibit solicitations from 
certain types of affiliates covered by the opt-out notice but not other 
types of affiliates covered by the notice, electing to prohibit 
solicitations based on certain types of eligibility information but not 
other types of eligibility information, or electing to prohibit 
solicitations by certain methods of delivery but not other methods of 
delivery. However, one of the alternatives must allow the consumer to 
prohibit all solicitations from all of the affiliates that are covered 
by the notice.
    (5) Special rule for a notice following termination of all 
continuing relationships. (i) In general. A consumer must be given a 
new opt-out notice if, after all continuing relationships with you or 
your affiliate(s) are terminated, the consumer subsequently establishes 
another continuing relationship with you or your affiliate(s) and the 
consumer's eligibility information is to be used to make a 
solicitation. The new opt-out notice must apply, at a minimum, to 
eligibility information obtained in connection with the new continuing 
relationship. Consistent with paragraph (b) of this section, the 
consumer's decision not to opt out after receiving the new opt-out 
notice would not override a prior opt-out election by the consumer that 
applies to eligibility information obtained in connection with a 
terminated relationship, regardless of whether the new opt-out notice 
applies to eligibility information obtained in connection with the 
terminated relationship.
    (ii) Example. A consumer has a checking account with a depository 
institution that is part of an affiliated group. The consumer closes 
the checking account. One year after closing the checking account, the 
consumer opens a savings account with the same depository institution. 
The consumer must be given a new notice and opportunity to opt out 
before the depository institution's affiliates may make solicitations 
to the consumer using eligibility information obtained by the 
depository institution in connection

[[Page 62969]]

with the new savings account relationship, regardless of whether the 
consumer opted out in connection with the checking account.
    (b) Duration of opt-out. The election of a consumer to opt out must 
be effective for a period of at least five years (the ``opt-out 
period'') beginning when the consumer's opt-out election is received 
and implemented, unless the consumer subsequently revokes the opt-out 
in writing or, if the consumer agrees, electronically. An opt-out 
period of more than five years may be established, including an opt-out 
period that does not expire unless revoked by the consumer.
    (c) Time of opt-out. A consumer may opt out at any time.


Sec.  334.23  Contents of opt-out notice; consolidated and equivalent 
notices.

    (a) Contents of opt-out notice. (1) In general. A notice must be 
clear, conspicuous, and concise, and must accurately disclose:
    (i) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (ii) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (iii) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (iv) That the consumer may elect to limit the use of eligibility 
information to make solicitations to the consumer;
    (v) That the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires;
    (vi) If the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, that 
the consumer who has chosen to limit solicitations does not need to act 
again until the consumer receives a renewal notice; and
    (vii) A reasonable and simple method for the consumer to opt out.
    (2) Joint relationships. (i) If two or more consumers jointly 
obtain a product or service, a single opt-out notice may be provided to 
the joint consumers. Any of the joint consumers may exercise the right 
to opt out.
    (ii) The opt-out notice must explain how an opt-out direction by a 
joint consumer will be treated. An opt-out direction by a joint 
consumer may be treated as applying to all of the associated joint 
consumers, or each joint consumer may be permitted to opt-out 
separately. If each joint consumer is permitted to opt out separately, 
one of the joint consumers must be permitted to opt out on behalf of 
all of the joint consumers and the joint consumers must be permitted to 
exercise their separate rights to opt out in a single response.
    (iii) It is impermissible to require all joint consumers to opt out 
before implementing any opt-out direction.
    (3) Alternative contents. If the consumer is afforded a broader 
right to opt out of receiving marketing than is required by this 
subpart, the requirements of this section may be satisfied by providing 
the consumer with a clear, conspicuous, and concise notice that 
accurately discloses the consumer's opt-out rights.
    (4) Model notices. Model notices are provided in Appendix C of this 
part.
    (b) Coordinated and consolidated notices. A notice required by this 
subpart may be coordinated and consolidated with any other notice or 
disclosure required to be issued under any other provision of law by 
the entity providing the notice, including but not limited to the 
notice described in section 603(d)(2)(A)(iii) of the Act and the Gramm-
Leach-Bliley Act privacy notice.
    (c) Equivalent notices. A notice or other disclosure that is 
equivalent to the notice required by this subpart, and that is provided 
to a consumer together with disclosures required by any other provision 
of law, satisfies the requirements of this section.


Sec.  334.24  Reasonable opportunity to opt out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable opportunity to opt out, as required by Sec.  
334.21(a)(1)(ii) of this part.
    (b) Examples of a reasonable opportunity to opt out. The consumer 
is given a reasonable opportunity to opt out if:
    (1) By mail. The opt-out notice is mailed to the consumer. The 
consumer is given 30 days from the date the notice is mailed to elect 
to opt out by any reasonable means.
    (2) By electronic means. (i) The opt-out notice is provided 
electronically to the consumer, such as by posting the notice at an 
Internet Web site at which the consumer has obtained a product or 
service. The consumer acknowledges receipt of the electronic notice. 
The consumer is given 30 days after the date the consumer acknowledges 
receipt to elect to opt out by any reasonable means.
    (ii) The opt-out notice is provided to the consumer by e-mail where 
the consumer has agreed to receive disclosures by e-mail from the 
person sending the notice. The consumer is given 30 days after the e-
mail is sent to elect to opt out by any reasonable means.
    (3) At the time of an electronic transaction. The opt-out notice is 
provided to the consumer at the time of an electronic transaction, such 
as a transaction conducted on an Internet Web site. The consumer is 
required to decide, as a necessary part of proceeding with the 
transaction, whether to opt out before completing the transaction. 
There is a simple process that the consumer may use to opt out at that 
time using the same

[[Page 62970]]

mechanism through which the transaction is conducted.
    (4) At the time of an in-person transaction. The opt-out notice is 
provided to the consumer in writing at the time of an in-person 
transaction. The consumer is required to decide, as a necessary part of 
proceeding with the transaction, whether to opt out before completing 
the transaction, and is not permitted to complete the transaction 
without making a choice. There is a simple process that the consumer 
may use during the course of the in-person transaction to opt out, such 
as completing a form that requires consumers to write a ``yes'' or 
``no'' to indicate their opt-out preference or that requires the 
consumer to check one of two blank check boxes--one that allows 
consumers to indicate that they want to opt out and one that allows 
consumers to indicate that they do not want to opt out.
    (5) By including in a privacy notice. The opt-out notice is 
included in a Gramm-Leach-Bliley Act privacy notice. The consumer is 
allowed to exercise the opt-out within a reasonable period of time and 
in the same manner as the opt-out under that privacy notice.


Sec.  334.25  Reasonable and simple methods of opting out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable and simple method to opt out, as required by 
Sec.  334.21(a)(1)(ii) of this part.
    (b) Examples. (1) Reasonable and simple opt-out methods. Reasonable 
and simple methods for exercising the opt-out right include--
    (i) Designating a check-off box in a prominent position on the opt-
out form;
    (ii) Including a reply form and a self-addressed envelope together 
with the opt-out notice;
    (iii) Providing an electronic means to opt out, such as a form that 
can be electronically mailed or processed at an Internet Web site, if 
the consumer agrees to the electronic delivery of information;
    (iv) Providing a toll-free telephone number that consumers may call 
to opt out; or
    (v) Allowing consumers to exercise all of their opt-out rights 
described in a consolidated opt-out notice that includes the privacy 
opt-out under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., the 
affiliate sharing opt-out under the Act, and the affiliate marketing 
opt-out under the Act, by a single method, such as by calling a single 
toll-free telephone number.
    (2) Opt-out methods that are not reasonable and simple. Reasonable 
and simple methods for exercising an opt-out right do not include--
    (i) Requiring the consumer to write his or her own letter;
    (ii) Requiring the consumer to call or write to obtain a form for 
opting out, rather than including the form with the opt-out notice;
    (iii) Requiring the consumer who receives the opt-out notice in 
electronic form only, such as through posting at an Internet Web site, 
to opt out solely by paper mail or by visiting a different Web site 
without providing a link to that site.
    (c) Specific opt-out means. Each consumer may be required to opt 
out through a specific means, as long as that means is reasonable and 
simple for that consumer.


Sec.  334.26  Delivery of opt-out notices.

    (a) In general. The opt-out notice must be provided so that each 
consumer can reasonably be expected to receive actual notice. For opt-
out notices provided electronically, the notice may be provided in 
compliance with either the electronic disclosure provisions in this 
subpart or the provisions in section 101 of the Electronic Signatures 
in Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (b) Examples of reasonable expectation of actual notice. A consumer 
may reasonably be expected to receive actual notice if the affiliate 
providing the notice:
    (1) Hand-delivers a printed copy of the notice to the consumer;
    (2) Mails a printed copy of the notice to the last known mailing 
address of the consumer;
    (3) Provides a notice by e-mail to a consumer who has agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (4) Posts the notice on the Internet Web site at which the consumer 
obtained a product or service electronically and requires the consumer 
to acknowledge receipt of the notice.
    (c) Examples of no reasonable expectation of actual notice. A 
consumer may not reasonably be expected to receive actual notice if the 
affiliate providing the notice:
    (1) Only posts the notice on a sign in a branch or office or 
generally publishes the notice in a newspaper;
    (2) Sends the notice via e-mail to a consumer who has not agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (3) Posts the notice on an Internet Web site without requiring the 
consumer to acknowledge receipt of the notice.


Sec.  334.27  Renewal of opt-out.

    (a) Renewal notice and opt-out requirement. (1) In general. After 
the opt-out period expires, you may not make solicitations based on 
eligibility information you receive from an affiliate to a consumer who 
previously opted out, unless:
    (i) The consumer has been given a renewal notice that complies with 
the requirements of this section and Sec. Sec.  334.24 through 334.26 
of this part, and a reasonable opportunity and a reasonable and simple 
method to renew the opt-out, and the consumer does not renew the opt-
out; or
    (ii) An exception in Sec.  334.21(c) of this part applies.
    (2) Renewal period. Each opt-out renewal must be effective for a 
period of at least five years as provided in Sec.  334.22(b) of this 
part.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By the affiliate that provided the previous opt-out notice, or 
its successor; or
    (ii) As part of a joint renewal notice from two or more members of 
an affiliated group of companies, or their successors, that jointly 
provided the previous opt-out notice.
    (b) Contents of renewal notice. The renewal notice must be clear, 
conspicuous, and concise, and must accurately disclose:
    (1) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies;''
    (2) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a

[[Page 62971]]

common name, such as ``ABC,'' then the notice may indicate that it 
applies to multiple companies with the ABC name or multiple companies 
in the ABC group or family of companies, for example, by stating that 
the notice is provided by ``all of the ABC companies,'' ``the ABC 
banking, credit card, insurance, and securities companies,'' or by 
listing the name of each affiliate providing the notice. But if the 
affiliates covered by the notice do not all share a common name, then 
the notice must either separately identify each covered affiliate by 
name or identify each of the common names used by those affiliates, for 
example, by stating that the notice applies to ``all of the ABC and XYZ 
companies'' or to ``the ABC banking and credit card companies and the 
XYZ insurance companies;''
    (3) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (4) That the consumer previously elected to limit the use of 
certain information to make solicitations to the consumer;
    (5) That the consumer's election has expired or is about to expire;
    (6) That the consumer may elect to renew the consumer's previous 
election;
    (7) If applicable, that the consumer's election to renew will apply 
for the specified period of time stated in the notice and that the 
consumer will be allowed to renew the election once that period 
expires; and
    (8) A reasonable and simple method for the consumer to opt out.
    (c) Timing of the renewal notice. (1) In general. A renewal notice 
may be provided to the consumer either--
    (i) A reasonable period of time before the expiration of the opt-
out period; or
    (ii) Any time after the expiration of the opt-out period but before 
solicitations that would have been prohibited by the expired opt-out 
are made to the consumer.
    (2) Combination with annual privacy notice. If you provide an 
annual privacy notice under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 
et seq., providing a renewal notice with the last annual privacy notice 
provided to the consumer before expiration of the opt-out period is a 
reasonable period of time before expiration of the opt-out in all 
cases.
    (d) No effect on opt-out period. An opt-out period may not be 
shortened by sending a renewal notice to the consumer before expiration 
of the opt-out period, even if the consumer does not renew the opt-out.


Sec.  334.28  Effective date, compliance date, and prospective 
application.

    (a) Effective date. This subpart is effective January 1, 2008.
    (b) Mandatory compliance date. Compliance with this subpart is 
required not later than October 1, 2008.
    (c) Prospective application. The provisions of this subpart shall 
not prohibit you from using eligibility information that you receive 
from an affiliate to make solicitations to a consumer if you receive 
such information prior to October 1, 2008. For purposes of this 
section, you are deemed to receive eligibility information when such 
information is placed into a common database and is accessible by you.

0
4. Appendixes A and B to part 334 are added and reserved, and a new 
Appendix C to part 334 is added to read as follows:

Appendix C To Part 334--Model Forms for Opt-Out Notices

    a. Although use of the model forms is not required, use of the 
model forms in this Appendix (as applicable) complies with the 
requirement in section 624 of the Act for clear, conspicuous, and 
concise notices.
    b. Certain changes may be made to the language or format of the 
model forms without losing the protection from liability afforded by 
use of the model forms. These changes may not be so extensive as to 
affect the substance, clarity, or meaningful sequence of the 
language in the model forms. Persons making such extensive revisions 
will lose the safe harbor that this Appendix provides. Acceptable 
changes include, for example:
    1. Rearranging the order of the references to ``your income,'' 
``your account history,'' and ``your credit score.''
    2. Substituting other types of information for ``income,'' 
``account history,'' or ``credit score'' for accuracy, such as 
``payment history,'' ``credit history,'' ``payoff status,'' or 
``claims history.''
    3. Substituting a clearer and more accurate description of the 
affiliates providing or covered by the notice for phrases such as 
``the [ABC] group of companies,'' including without limitation a 
statement that the entity providing the notice recently purchased 
the consumer's account.
    4. Substituting other types of affiliates covered by the notice 
for ``credit card,'' ``insurance,'' or ``securities'' affiliates.
    5. Omitting items that are not accurate or applicable. For 
example, if a person does not limit the duration of the opt-out 
period, the notice may omit information about the renewal notice.
    6. Adding a statement informing consumers how much time they 
have to opt out before shared eligibility information may be used to 
make solicitations to them.
    7. Adding a statement that the consumer may exercise the right 
to opt out at any time.
    8. Adding the following statement, if accurate: ``If you 
previously opted out, you do not need to do so again.''
    9. Providing a place on the form for the consumer to fill in 
identifying information, such as his or her name and address:

C-1 Model Form for Initial Opt-out Notice (Single-Affiliate Notice)
C-2 Model Form for Initial Opt-out Notice (Joint Notice)
C-3 Model Form for Renewal Notice (Single-Affiliate Notice)
C-4 Model Form for Renewal Notice (Joint Notice)
C-5 Model Form for Voluntary ``No Marketing'' Notice

C-1--Model Form for Initial Opt-out Notice (Single-Affiliate 
Notice)--[Your Choice To Limit Marketing]/[Marketing Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You may limit our affiliates in the [ABC] group of 
companies, such as our [credit card, insurance, and securities] 
affiliates, from marketing their products or services to you based 
on your personal information that we collect and share with them. 
This information includes your [income], your [account history with 
us], and your [credit score].
     Your choice to limit marketing offers from our 
affiliates will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from our affiliates for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from our affiliates, you do not need to act again until you 
receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow your affiliates to use my personal information to 
market to me.

C-2--Model Form for Initial Opt-out Notice (Joint Notice)--[Your 
Choice To Limit Marketing]/[Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You may limit the [ABC] companies, such as the [ABC 
credit card, insurance, and securities] affiliates, from marketing 
their

[[Page 62972]]

products or services to you based on your personal information that 
they receive from other [ABC] companies. This information includes 
your [income], your [account history], and your [credit score].
     Your choice to limit marketing offers from the [ABC] 
companies will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from the [ABC] companies for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from the [ABC] companies, you do not need to act again until 
you receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow any company [in the ABC group of companies] to 
use my personal information to market to me.

C-3--Model Form for Renewal Notice (Single-Affiliate Notice)--
[Renewing Your Choice To Limit Marketing]/[Renewing Your Marketing 
Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You previously chose to limit our affiliates in the 
[ABC] group of companies, such as our [credit card, insurance, and 
securities] affiliates, from marketing their products or services to 
you based on your personal information that we share with them. This 
information includes your [income], your [account history with us], 
and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-4--Model Form for Renewal Notice (Joint Notice)--[Renewing Your 
Choice To Limit Marketing]/[Renewing Your Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You previously chose to limit the [ABC] companies, such 
as the [ABC credit card, insurance, and securities] affiliates, from 
marketing their products or services to you based on your personal 
information that they receive from other ABC companies. This 
information includes your [income], your [account history], and your 
[credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-5--Model Form for Voluntary ``No Marketing'' Notice--Your Choice 
To Stop Marketing

     [Name of Affiliate] is providing this notice.
     You may choose to stop all marketing from us and our 
affiliates.
    To stop all marketing, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not market to me.

Department of the Treasury

Office of Thrift Supervision

    12 CFR Chapter V.

Authority and Issuance

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

PART 571--FAIR CREDIT REPORTING

0
1. The authority citation for part 571 is revised to read as follows:

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

Subpart A--General Provisions

0
2. Amend Sec.  571.1 by adding a new paragraph (b)(3) to read as 
follows:


Sec.  571.1  Purpose and scope.

* * * * *
    (b) * * *
    (3) The scope of Subpart C of this part is stated in Sec.  
571.20(a) of this part.
* * * * *

0
3. Add a new Subpart C to part 571 to read as follows:
Subpart C--Affiliate Marketing
Sec.
571.20 Coverage and definitions.
571.21 Affiliate marketing opt-out and exceptions.
571.22 Scope and duration of opt-out.
571.23 Contents of opt-out notice; consolidated and equivalent 
notices.
571.24 Reasonable opportunity to opt out.
571.25 Reasonable and simple methods of opting out.
571.26 Delivery of opt-out notices.
571.27 Renewal of opt-out.
571.28 Effective date, compliance date, and prospective application.

Subpart C--Affiliate Marketing


Sec.  571.20  Coverage and definitions.

    (a) Coverage. Subpart C of this part applies to savings 
associations whose deposits are insured by the Federal Deposit 
Insurance Corporation or, in accordance with Sec.  559.3(h)(1) of this 
chapter, federal savings association operating subsidiaries that are 
not functionally regulated within the meaning of section 5(c)(5) of the 
Bank Holding Company Act of 1956, as amended (12 U.S.C. 1844(c)(5)).
    (b) Definitions. For purposes of this subpart:
    (1) Clear and conspicuous. The term ``clear and conspicuous'' means 
reasonably understandable and designed to call attention to the nature 
and significance of the information presented.
    (2) Concise. (i) In general. The term ``concise'' means a 
reasonably brief expression or statement.
    (ii) Combination with other required disclosures. A notice required 
by this subpart may be concise even if it is combined with other 
disclosures required or authorized by federal or state law.
    (3) Eligibility information. The term ``eligibility information'' 
means any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the Act did not apply. Eligibility information 
does not include aggregate or blind data that does not contain personal 
identifiers such as account numbers, names, or addresses.
    (4) Pre-existing business relationship. (i) In general. The term 
``pre-existing business relationship'' means a relationship between a 
person, or a person's licensed agent, and a consumer based on--

[[Page 62973]]

    (A) A financial contract between the person and the consumer which 
is in force on the date on which the consumer is sent a solicitation 
covered by this subpart;
    (B) The purchase, rental, or lease by the consumer of the person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and the person, during the 18-month 
period immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart; or
    (C) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart.
    (ii) Examples of pre-existing business relationships. (A) If a 
consumer has a time deposit account, such as a certificate of deposit, 
at a depository institution that is currently in force, the depository 
institution has a pre-existing business relationship with the consumer 
and can use eligibility information it receives from its affiliates to 
make solicitations to the consumer about its products or services.
    (B) If a consumer obtained a certificate of deposit from a 
depository institution, but did not renew the certificate at maturity, 
the depository institution has a pre-existing business relationship 
with the consumer and can use eligibility information it receives from 
its affiliates to make solicitations to the consumer about its products 
or services for 18 months after the date of maturity of the certificate 
of deposit.
    (C) If a consumer obtains a mortgage, the mortgage lender has a 
pre-existing business relationship with the consumer. If the mortgage 
lender sells the consumer's entire loan to an investor, the mortgage 
lender has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services for 18 
months after the date it sells the loan, and the investor has a pre-
existing business relationship with the consumer upon purchasing the 
loan. If, however, the mortgage lender sells a fractional interest in 
the consumer's loan to an investor but also retains an ownership 
interest in the loan, the mortgage lender continues to have a pre-
existing business relationship with the consumer, but the investor does 
not have a pre-existing business relationship with the consumer. If the 
mortgage lender retains ownership of the loan, but sells ownership of 
the servicing rights to the consumer's loan, the mortgage lender 
continues to have a pre-existing business relationship with the 
consumer. The purchaser of the servicing rights also has a pre-existing 
business relationship with the consumer as of the date it purchases 
ownership of the servicing rights, but only if it collects payments 
from or otherwise deals directly with the consumer on a continuing 
basis.
    (D) If a consumer applies to a depository institution for a product 
or service that it offers, but does not obtain a product or service 
from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the application.
    (E) If a consumer makes a telephone inquiry to a depository 
institution about its products or services and provides contact 
information to the institution, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (F) If a consumer makes an inquiry to a depository institution by 
e-mail about its products or services, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the depository institution has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (G) If a consumer has an existing relationship with a depository 
institution that is part of a group of affiliated companies, makes a 
telephone call to the centralized call center for the group of 
affiliated companies to inquire about products or services offered by 
the insurance affiliate, and provides contact information to the call 
center, the call constitutes an inquiry to the insurance affiliate that 
offers those products or services. The insurance affiliate has a pre-
existing business relationship with the consumer and can therefore use 
eligibility information it receives from its affiliated depository 
institution to make solicitations to the consumer about its products or 
services for three months after the date of the inquiry.
    (iii) Examples where no pre-existing business relationship is 
created. (A) If a consumer makes a telephone call to a centralized call 
center for a group of affiliated companies to inquire about the 
consumer's existing account at a depository institution, the call does 
not constitute an inquiry to any affiliate other than the depository 
institution that holds the consumer's account and does not establish a 
pre-existing business relationship between the consumer and any 
affiliate of the account-holding depository institution.
    (B) If a consumer who has a deposit account with a depository 
institution makes a telephone call to an affiliate of the institution 
to ask about the affiliate's retail locations and hours, but does not 
make an inquiry about the affiliate's products or services, the call 
does not constitute an inquiry and does not establish a pre-existing 
business relationship between the consumer and the affiliate. Also, the 
affiliate's capture of the consumer's telephone number does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate.
    (C) If a consumer makes a telephone call to a depository 
institution in response to an advertisement that offers a free 
promotional item to consumers who call a toll-free number, but the 
advertisement does not indicate that the depository institution's 
products or services will be marketed to consumers who call in 
response, the call does not create a pre-existing business relationship 
between the consumer and the depository institution because the 
consumer has not made an inquiry about a product or service offered by 
the institution, but has merely responded to an offer for a free 
promotional item.
    (5) Solicitation. (i) In general. The term ``solicitation'' means 
the marketing of a product or service initiated by a person to a 
particular consumer that is--
    (A) Based on eligibility information communicated to that person by 
its affiliate as described in this subpart; and
    (B) Intended to encourage the consumer to purchase or obtain such 
product or service.
    (ii) Exclusion of marketing directed at the general public. A 
solicitation does not include marketing communications that are 
directed at the general public. For example, television, general 
circulation magazine, and billboard advertisements do not constitute 
solicitations, even if those communications are intended to encourage 
consumers to purchase

[[Page 62974]]

products and services from the person initiating the communications.
    (iii) Examples of solicitations. A solicitation would include, for 
example, a telemarketing call, direct mail, e-mail, or other form of 
marketing communication directed to a particular consumer that is based 
on eligibility information received from an affiliate.
    (6) You means a person described in paragraph (a) of this section.


Sec.  571.21  Affiliate marketing opt-out and exceptions.

    (a) Initial notice and opt-out requirement. (1) In general. You may 
not use eligibility information about a consumer that you receive from 
an affiliate to make a solicitation for marketing purposes to the 
consumer, unless--
    (i) It is clearly and conspicuously disclosed to the consumer in 
writing or, if the consumer agrees, electronically, in a concise notice 
that you may use eligibility information about that consumer received 
from an affiliate to make solicitations for marketing purposes to the 
consumer;
    (ii) The consumer is provided a reasonable opportunity and a 
reasonable and simple method to ``opt out,'' or prohibit you from using 
eligibility information to make solicitations for marketing purposes to 
the consumer; and
    (iii) The consumer has not opted out.
    (2) Example. A consumer has a homeowner's insurance policy with an 
insurance company. The insurance company furnishes eligibility 
information about the consumer to its affiliated depository 
institution. Based on that eligibility information, the depository 
institution wants to make a solicitation to the consumer about its home 
equity loan products. The depository institution does not have a pre-
existing business relationship with the consumer and none of the other 
exceptions apply. The depository institution is prohibited from using 
eligibility information received from its insurance affiliate to make 
solicitations to the consumer about its home equity loan products 
unless the consumer is given a notice and opportunity to opt out and 
the consumer does not opt out.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By an affiliate that has or has previously had a pre-existing 
business relationship with the consumer; or
    (ii) As part of a joint notice from two or more members of an 
affiliated group of companies, provided that at least one of the 
affiliates on the joint notice has or has previously had a pre-existing 
business relationship with the consumer.
    (b) Making solicitations. (1) In general. For purposes of this 
subpart, you make a solicitation for marketing purposes if--
    (i) You receive eligibility information from an affiliate;
    (ii) You use that eligibility information to do one or more of the 
following:
    (A) Identify the consumer or type of consumer to receive a 
solicitation;
    (B) Establish criteria used to select the consumer to receive a 
solicitation; or
    (C) Decide which of your products or services to market to the 
consumer or tailor your solicitation to that consumer; and
    (iii) As a result of your use of the eligibility information, the 
consumer is provided a solicitation.
    (2) Receiving eligibility information from an affiliate, including 
through a common database. You may receive eligibility information from 
an affiliate in various ways, including when the affiliate places that 
information into a common database that you may access.
    (3) Receipt or use of eligibility information by your service 
provider. Except as provided in paragraph (b)(5) of this section, you 
receive or use an affiliate's eligibility information if a service 
provider acting on your behalf (whether an affiliate or a nonaffiliated 
third party) receives or uses that information in the manner described 
in paragraphs (b)(1)(i) or (b)(1)(ii) of this section. All relevant 
facts and circumstances will determine whether a person is acting as 
your service provider when it receives or uses an affiliate's 
eligibility information in connection with marketing your products and 
services.
    (4) Use by an affiliate of its own eligibility information. Unless 
you have used eligibility information that you receive from an 
affiliate in the manner described in paragraph (b)(1)(ii) of this 
section, you do not make a solicitation subject to this subpart if your 
affiliate:
    (i) Uses its own eligibility information that it obtained in 
connection with a pre-existing business relationship it has or had with 
the consumer to market your products or services to the consumer; or
    (ii) Directs its service provider to use the affiliate's own 
eligibility information that it obtained in connection with a pre-
existing business relationship it has or had with the consumer to 
market your products or services to the consumer, and you do not 
communicate directly with the service provider regarding that use.
    (5) Use of eligibility information by a service provider. (i) In 
general. You do not make a solicitation subject to Subpart C of this 
part if a service provider (including an affiliated or third-party 
service provider that maintains or accesses a common database that you 
may access) receives eligibility information from your affiliate that 
your affiliate obtained in connection with a pre-existing business 
relationship it has or had with the consumer and uses that eligibility 
information to market your products or services to the consumer, so 
long as--
    (A) Your affiliate controls access to and use of its eligibility 
information by the service provider (including the right to establish 
the specific terms and conditions under which the service provider may 
use such information to market your products or services);
    (B) Your affiliate establishes specific terms and conditions under 
which the service provider may access and use the affiliate's 
eligibility information to market your products and services (or those 
of affiliates generally) to the consumer, such as the identity of the 
affiliated companies whose products or services may be marketed to the 
consumer by the service provider, the types of products or services of 
affiliated companies that may be marketed, and the number of times the 
consumer may receive marketing materials, and periodically evaluates 
the service provider's compliance with those terms and conditions;
    (C) Your affiliate requires the service provider to implement 
reasonable policies and procedures designed to ensure that the service 
provider uses the affiliate's eligibility information in accordance 
with the terms and conditions established by the affiliate relating to 
the marketing of your products or services;
    (D) Your affiliate is identified on or with the marketing materials 
provided to the consumer; and
    (E) You do not directly use your affiliate's eligibility 
information in the manner described in paragraph (b)(1)(ii) of this 
section.
    (ii) Writing requirements. (A) The requirements of paragraphs 
(b)(5)(i)(A) and (C) of this section must be set forth in a written 
agreement between your affiliate and the service provider; and
    (B) The specific terms and conditions established by your affiliate 
as provided in paragraph (b)(5)(i)(B) of this section must be set forth 
in writing.
    (6) Examples of making solicitations. (i) A consumer has a deposit 
account with a depository institution, which is affiliated with an 
insurance company. The insurance company receives

[[Page 62975]]

eligibility information about the consumer from the depository 
institution. The insurance company uses that eligibility information to 
identify the consumer to receive a solicitation about insurance 
products, and, as a result, the insurance company provides a 
solicitation to the consumer about its insurance products. Pursuant to 
paragraph (b)(1) of this section, the insurance company has made a 
solicitation to the consumer.
    (ii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that after using the eligibility information to 
identify the consumer to receive a solicitation about insurance 
products, the insurance company asks the depository institution to send 
the solicitation to the consumer and the depository institution does 
so. Pursuant to paragraph (b)(1) of this section, the insurance company 
has made a solicitation to the consumer because it used eligibility 
information about the consumer that it received from an affiliate to 
identify the consumer to receive a solicitation about its products or 
services, and, as a result, a solicitation was provided to the consumer 
about the insurance company's products.
    (iii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that eligibility information about consumers that 
have deposit accounts with the depository institution is placed into a 
common database that all members of the affiliated group of companies 
may independently access and use. Without using the depository 
institution's eligibility information, the insurance company develops 
selection criteria and provides those criteria, marketing materials, 
and related instructions to the depository institution. The depository 
institution reviews eligibility information about its own consumers 
using the selection criteria provided by the insurance company to 
determine which consumers should receive the insurance company's 
marketing materials and sends marketing materials about the insurance 
company's products to those consumers. Even though the insurance 
company has received eligibility information through the common 
database as provided in paragraph (b)(2) of this section, it did not 
use that information to identify consumers or establish selection 
criteria; instead, the depository institution used its own eligibility 
information. Therefore, pursuant to paragraph (b)(4)(i) of this 
section, the insurance company has not made a solicitation to the 
consumer.
    (iv) The same facts as in the example in paragraph (b)(6)(iii) of 
this section, except that the depository institution provides the 
insurance company's criteria to the depository institution's service 
provider and directs the service provider to use the depository 
institution's eligibility information to identify depository 
institution consumers who meet the criteria and to send the insurance 
company's marketing materials to those consumers. The insurance company 
does not communicate directly with the service provider regarding the 
use of the depository institution's information to market its products 
to the depository institution's consumers. Pursuant to paragraph 
(b)(4)(ii) of this section, the insurance company has not made a 
solicitation to the consumer.
    (v) An affiliated group of companies includes a depository 
institution, an insurance company, and a service provider. Each 
affiliate in the group places information about its consumers into a 
common database. The service provider has access to all information in 
the common database. The depository institution controls access to and 
use of its eligibility information by the service provider. This 
control is set forth in a written agreement between the depository 
institution and the service provider. The written agreement also 
requires the service provider to establish reasonable policies and 
procedures designed to ensure that the service provider uses the 
depository institution's eligibility information in accordance with 
specific terms and conditions established by the depository institution 
relating to the marketing of the products and services of all 
affiliates, including the insurance company. In a separate written 
communication, the depository institution specifies the terms and 
conditions under which the service provider may use the depository 
institution's eligibility information to market the insurance company's 
products and services to the depository institution's consumers. The 
specific terms and conditions are: A list of affiliated companies 
(including the insurance company) whose products or services may be 
marketed to the depository institution's consumers by the service 
provider; the specific products or types of products that may be 
marketed to the depository institution's consumers by the service 
provider; the categories of eligibility information that may be used by 
the service provider in marketing products or services to the 
depository institution's consumers; the types or categories of the 
depository institution's consumers to whom the service provider may 
market products or services of depository institution affiliates; the 
number and/or types of marketing communications that the service 
provider may send to the depository institution's consumers; and the 
length of time during which the service provider may market the 
products or services of the depository institution's affiliates to its 
consumers. The depository institution periodically evaluates the 
service provider's compliance with these terms and conditions. The 
insurance company asks the service provider to market insurance 
products to certain consumers who have deposit accounts with the 
depository institution. Without using the depository institution's 
eligibility information, the insurance company develops selection 
criteria and provides those criteria, marketing materials, and related 
instructions to the service provider. The service provider uses the 
depository institution's eligibility information from the common 
database to identify the depository institution's consumers to whom 
insurance products will be marketed. When the insurance company's 
marketing materials are provided to the identified consumers, the name 
of the depository institution is displayed on the insurance marketing 
materials, an introductory letter that accompanies the marketing 
materials, an account statement that accompanies the marketing 
materials, or the envelope containing the marketing materials. The 
requirements of paragraph (b)(5) of this section have been satisfied, 
and the insurance company has not made a solicitation to the consumer.
    (vi) The same facts as in the example in paragraph (b)(6)(v) of 
this section, except that the terms and conditions permit the service 
provider to use the depository institution's eligibility information to 
market the products and services of other affiliates to the depository 
institution's consumers whenever the service provider deems it 
appropriate to do so. The service provider uses the depository 
institution's eligibility information in accordance with the discretion 
afforded to it by the terms and conditions. Because the terms and 
conditions are not specific, the requirements of paragraph (b)(5) of 
this section have not been satisfied.
    (c) Exceptions. The provisions of this subpart do not apply to you 
if you use eligibility information that you receive from an affiliate:
    (1) To make a solicitation for marketing purposes to a consumer 
with whom you have a pre-existing business relationship;

[[Page 62976]]

    (2) To facilitate communications to an individual for whose benefit 
you provide employee benefit or other services pursuant to a contract 
with an employer related to and arising out of the current employment 
relationship or status of the individual as a participant or 
beneficiary of an employee benefit plan;
    (3) To perform services on behalf of an affiliate, except that this 
subparagraph shall not be construed as permitting you to send 
solicitations on behalf of an affiliate if the affiliate would not be 
permitted to send the solicitation as a result of the election of the 
consumer to opt out under this subpart;
    (4) In response to a communication about your products or services 
initiated by the consumer;
    (5) In response to an authorization or request by the consumer to 
receive solicitations; or
    (6) If your compliance with this subpart would prevent you from 
complying with any provision of State insurance laws pertaining to 
unfair discrimination in any State in which you are lawfully doing 
business.
    (d) Examples of exceptions. (1) Example of the pre-existing 
business relationship exception. A consumer has a deposit account with 
a depository institution. The consumer also has a relationship with the 
depository institution's securities affiliate for management of the 
consumer's securities portfolio. The depository institution receives 
eligibility information about the consumer from its securities 
affiliate and uses that information to make a solicitation to the 
consumer about the depository institution's wealth management services. 
The depository institution may make this solicitation even if the 
consumer has not been given a notice and opportunity to opt out because 
the depository institution has a pre-existing business relationship 
with the consumer.
    (2) Examples of service provider exception. (i) A consumer has an 
insurance policy issued by an insurance company. The insurance company 
furnishes eligibility information about the consumer to its affiliated 
depository institution. Based on that eligibility information, the 
depository institution wants to make a solicitation to the consumer 
about its deposit products. The depository institution does not have a 
pre-existing business relationship with the consumer and none of the 
other exceptions in paragraph (c) of this section apply. The consumer 
has been given an opt-out notice and has elected to opt out of 
receiving such solicitations. The depository institution asks a service 
provider to send the solicitation to the consumer on its behalf. The 
service provider may not send the solicitation on behalf of the 
depository institution because, as a result of the consumer's opt-out 
election, the depository institution is not permitted to make the 
solicitation.
    (ii) The same facts as in paragraph (d)(2)(i) of this section, 
except the consumer has been given an opt-out notice, but has not 
elected to opt out. The depository institution asks a service provider 
to send the solicitation to the consumer on its behalf. The service 
provider may send the solicitation on behalf of the depository 
institution because, as a result of the consumer's not opting out, the 
depository institution is permitted to make the solicitation.
    (3) Examples of consumer-initiated communications. (i) A consumer 
who has a deposit account with a depository institution initiates a 
communication with the depository institution's credit card affiliate 
to request information about a credit card. The credit card affiliate 
may use eligibility information about the consumer it obtains from the 
depository institution or any other affiliate to make solicitations 
regarding credit card products in response to the consumer-initiated 
communication.
    (ii) A consumer who has a deposit account with a depository 
institution contacts the institution to request information about how 
to save and invest for a child's college education without specifying 
the type of product in which the consumer may be interested. 
Information about a range of different products or services offered by 
the depository institution and one or more affiliates of the 
institution may be responsive to that communication. Such products or 
services may include the following: Mutual funds offered by the 
institution's mutual fund affiliate; section 529 plans offered by the 
institution, its mutual fund affiliate, or another securities 
affiliate; or trust services offered by a different financial 
institution in the affiliated group. Any affiliate offering investment 
products or services that would be responsive to the consumer's request 
for information about saving and investing for a child's college 
education may use eligibility information to make solicitations to the 
consumer in response to this communication.
    (iii) A credit card issuer makes a marketing call to the consumer 
without using eligibility information received from an affiliate. The 
issuer leaves a voice-mail message that invites the consumer to call a 
toll-free number to apply for the issuer's credit card. If the consumer 
calls the toll-free number to inquire about the credit card, the call 
is a consumer-initiated communication about a product or service and 
the credit card issuer may now use eligibility information it receives 
from its affiliates to make solicitations to the consumer.
    (iv) A consumer calls a depository institution to ask about retail 
locations and hours, but does not request information about products or 
services. The institution may not use eligibility information it 
receives from an affiliate to make solicitations to the consumer about 
its products or services because the consumer-initiated communication 
does not relate to the depository institution's products or services. 
Thus, the use of eligibility information received from an affiliate 
would not be responsive to the communication and the exception does not 
apply.
    (v) A consumer calls a depository institution to ask about retail 
locations and hours. The customer service representative asks the 
consumer if there is a particular product or service about which the 
consumer is seeking information. The consumer responds that the 
consumer wants to stop in and find out about certificates of deposit. 
The customer service representative offers to provide that information 
by telephone and mail additional information and application materials 
to the consumer. The consumer agrees and provides or confirms contact 
information for receipt of the materials to be mailed. The depository 
institution may use eligibility information it receives from an 
affiliate to make solicitations to the consumer about certificates of 
deposit because such solicitations would respond to the consumer-
initiated communication about products or services.
    (4) Examples of consumer authorization or request for 
solicitations. (i) A consumer who obtains a mortgage from a mortgage 
lender authorizes or requests information about homeowner's insurance 
offered by the mortgage lender's insurance affiliate. Such 
authorization or request, whether given to the mortgage lender or to 
the insurance affiliate, would permit the insurance affiliate to use 
eligibility information about the consumer it obtains from the mortgage 
lender or any other affiliate to make solicitations to the consumer 
about homeowner's insurance.
    (ii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a blank check box that the consumer may check

[[Page 62977]]

to authorize or request information from the credit card issuer's 
affiliates. The consumer checks the box. The consumer has authorized or 
requested solicitations from the card issuer's affiliates.
    (iii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a pre-selected check box indicating that the consumer 
authorizes or requests information from the issuer's affiliates. The 
consumer does not deselect the check box. The consumer has not 
authorized or requested solicitations from the card issuer's 
affiliates.
    (iv) The terms and conditions of a credit card account agreement 
contain preprinted boilerplate language stating that by applying to 
open an account the consumer authorizes or requests to receive 
solicitations from the credit card issuer's affiliates. The consumer 
has not authorized or requested solicitations from the card issuer's 
affiliates.
    (e) Relation to affiliate-sharing notice and opt-out. Nothing in 
this subpart limits the responsibility of a person to comply with the 
notice and opt-out provisions of section 603(d)(2)(A)(iii) of the Act 
where applicable.


Sec.  571.22  Scope and duration of opt-out.

    (a) Scope of opt-out. (1) In general. Except as otherwise provided 
in this section, the consumer's election to opt out prohibits any 
affiliate covered by the opt-out notice from using eligibility 
information received from another affiliate as described in the notice 
to make solicitations to the consumer.
    (2) Continuing relationship. (i) In general. If the consumer 
establishes a continuing relationship with you or your affiliate, an 
opt-out notice may apply to eligibility information obtained in 
connection with--
    (A) A single continuing relationship or multiple continuing 
relationships that the consumer establishes with you or your 
affiliates, including continuing relationships established subsequent 
to delivery of the opt-out notice, so long as the notice adequately 
describes the continuing relationships covered by the opt-out; or
    (B) Any other transaction between the consumer and you or your 
affiliates as described in the notice.
    (ii) Examples of continuing relationships. A consumer has a 
continuing relationship with you or your affiliate if the consumer--
    (A) Opens a deposit or investment account with you or your 
affiliate;
    (B) Obtains a loan for which you or your affiliate owns the 
servicing rights;
    (C) Purchases an insurance product from you or your affiliate;
    (D) Holds an investment product through you or your affiliate, such 
as when you act or your affiliate acts as a custodian for securities or 
for assets in an individual retirement arrangement;
    (E) Enters into an agreement or understanding with you or your 
affiliate whereby you or your affiliate undertakes to arrange or broker 
a home mortgage loan for the consumer;
    (F) Enters into a lease of personal property with you or your 
affiliate; or
    (G) Obtains financial, investment, or economic advisory services 
from you or your affiliate for a fee.
    (3) No continuing relationship. (i) In general. If there is no 
continuing relationship between a consumer and you or your affiliate, 
and you or your affiliate obtain eligibility information about a 
consumer in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, an opt-out 
notice provided to the consumer only applies to eligibility information 
obtained in connection with that transaction.
    (ii) Examples of isolated transactions. An isolated transaction 
occurs if--
    (A) The consumer uses your or your affiliate's ATM to withdraw cash 
from an account at another financial institution; or
    (B) You or your affiliate sells the consumer a cashier's check or 
money order, airline tickets, travel insurance, or traveler's checks in 
isolated transactions.
    (4) Menu of alternatives. A consumer may be given the opportunity 
to choose from a menu of alternatives when electing to prohibit 
solicitations, such as by electing to prohibit solicitations from 
certain types of affiliates covered by the opt-out notice but not other 
types of affiliates covered by the notice, electing to prohibit 
solicitations based on certain types of eligibility information but not 
other types of eligibility information, or electing to prohibit 
solicitations by certain methods of delivery but not other methods of 
delivery. However, one of the alternatives must allow the consumer to 
prohibit all solicitations from all of the affiliates that are covered 
by the notice.
    (5) Special rule for a notice following termination of all 
continuing relationships. (i) In general. A consumer must be given a 
new opt-out notice if, after all continuing relationships with you or 
your affiliate(s) are terminated, the consumer subsequently establishes 
another continuing relationship with you or your affiliate(s) and the 
consumer's eligibility information is to be used to make a 
solicitation. The new opt-out notice must apply, at a minimum, to 
eligibility information obtained in connection with the new continuing 
relationship. Consistent with paragraph (b) of this section, the 
consumer's decision not to opt out after receiving the new opt-out 
notice would not override a prior opt-out election by the consumer that 
applies to eligibility information obtained in connection with a 
terminated relationship, regardless of whether the new opt-out notice 
applies to eligibility information obtained in connection with the 
terminated relationship.
    (ii) Example. A consumer has a checking account with a depository 
institution that is part of an affiliated group. The consumer closes 
the checking account. One year after closing the checking account, the 
consumer opens a savings account with the same depository institution. 
The consumer must be given a new notice and opportunity to opt out 
before the depository institution's affiliates may make solicitations 
to the consumer using eligibility information obtained by the 
depository institution in connection with the new savings account 
relationship, regardless of whether the consumer opted out in 
connection with the checking account.
    (b) Duration of opt-out. The election of a consumer to opt out must 
be effective for a period of at least five years (the ``opt-out 
period'') beginning when the consumer's opt-out election is received 
and implemented, unless the consumer subsequently revokes the opt-out 
in writing or, if the consumer agrees, electronically. An opt-out 
period of more than five years may be established, including an opt-out 
period that does not expire unless revoked by the consumer.
    (c) Time of opt-out. A consumer may opt out at any time.


Sec.  571.23  Contents of opt-out notice; consolidated and equivalent 
notices.

    (a) Contents of opt-out notice. (1) In general. A notice must be 
clear, conspicuous, and concise, and must accurately disclose:
    (i) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the

[[Page 62978]]

joint notice do not all share a common name, then the notice must 
either separately identify each affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice is provided by ``all of the ABC and XYZ companies'' or by 
``the ABC banking and credit card companies and the XYZ insurance 
companies'';
    (ii) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (iii) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (iv) That the consumer may elect to limit the use of eligibility 
information to make solicitations to the consumer;
    (v) That the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires;
    (vi) If the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, that 
the consumer who has chosen to limit solicitations does not need to act 
again until the consumer receives a renewal notice; and
    (vii) A reasonable and simple method for the consumer to opt out.
    (2) Joint relationships. (i) If two or more consumers jointly 
obtain a product or service, a single opt-out notice may be provided to 
the joint consumers. Any of the joint consumers may exercise the right 
to opt out.
    (ii) The opt-out notice must explain how an opt-out direction by a 
joint consumer will be treated. An opt-out direction by a joint 
consumer may be treated as applying to all of the associated joint 
consumers, or each joint consumer may be permitted to opt-out 
separately. If each joint consumer is permitted to opt out separately, 
one of the joint consumers must be permitted to opt out on behalf of 
all of the joint consumers and the joint consumers must be permitted to 
exercise their separate rights to opt out in a single response.
    (iii) It is impermissible to require all joint consumers to opt out 
before implementing any opt-out direction.
    (3) Alternative contents. If the consumer is afforded a broader 
right to opt out of receiving marketing than is required by this 
subpart, the requirements of this section may be satisfied by providing 
the consumer with a clear, conspicuous, and concise notice that 
accurately discloses the consumer's opt-out rights.
    (4) Model notices. Model notices are provided in Appendix C of this 
part.
    (b) Coordinated and consolidated notices. A notice required by this 
subpart may be coordinated and consolidated with any other notice or 
disclosure required to be issued under any other provision of law by 
the entity providing the notice, including but not limited to the 
notice described in section 603(d)(2)(A)(iii) of the Act and the Gramm-
Leach-Bliley Act privacy notice.
    (c) Equivalent notices. A notice or other disclosure that is 
equivalent to the notice required by this subpart, and that is provided 
to a consumer together with disclosures required by any other provision 
of law, satisfies the requirements of this section.


Sec.  571.24  Reasonable opportunity to opt out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable opportunity to opt out, as required by Sec.  
571.21(a)(1)(ii) of this part.
    (b) Examples of a reasonable opportunity to opt out. The consumer 
is given a reasonable opportunity to opt out if:
    (1) By mail. The opt-out notice is mailed to the consumer. The 
consumer is given 30 days from the date the notice is mailed to elect 
to opt out by any reasonable means.
    (2) By electronic means. (i) The opt-out notice is provided 
electronically to the consumer, such as by posting the notice at an 
Internet Web site at which the consumer has obtained a product or 
service. The consumer acknowledges receipt of the electronic notice. 
The consumer is given 30 days after the date the consumer acknowledges 
receipt to elect to opt out by any reasonable means.
    (ii) The opt-out notice is provided to the consumer by e-mail where 
the consumer has agreed to receive disclosures by e-mail from the 
person sending the notice. The consumer is given 30 days after the e-
mail is sent to elect to opt out by any reasonable means.
    (3) At the time of an electronic transaction. The opt-out notice is 
provided to the consumer at the time of an electronic transaction, such 
as a transaction conducted on an Internet Web site. The consumer is 
required to decide, as a necessary part of proceeding with the 
transaction, whether to opt out before completing the transaction. 
There is a simple process that the consumer may use to opt out at that 
time using the same mechanism through which the transaction is 
conducted.
    (4) At the time of an in-person transaction. The opt-out notice is 
provided to the consumer in writing at the time of an in-person 
transaction. The consumer is required to decide, as a necessary part of 
proceeding with the transaction, whether to opt out before completing 
the transaction, and is not permitted to complete the transaction 
without making a choice. There is a simple process that the consumer 
may use during the course of the in-person transaction to opt out, such 
as completing a form that requires consumers to write a ``yes'' or 
``no'' to indicate their opt-out preference or that requires the 
consumer to check one of two blank check boxes--one that allows 
consumers to indicate that they want to opt out and one that allows 
consumers to indicate that they do not want to opt out.
    (5) By including in a privacy notice. The opt-out notice is 
included in a Gramm-Leach-Bliley Act privacy notice. The consumer is 
allowed to exercise the opt-out within a reasonable period of time and 
in the same manner as the opt-out under that privacy notice.


Sec.  571.25  Reasonable and simple methods of opting out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable and simple method to opt out, as required by 
Sec.  571.21(a)(1)(ii) of this part.

[[Page 62979]]

    (b) Examples. (1) Reasonable and simple opt-out methods. Reasonable 
and simple methods for exercising the opt-out right include--
    (i) Designating a check-off box in a prominent position on the opt-
out form;
    (ii) Including a reply form and a self-addressed envelope together 
with the opt-out notice;
    (iii) Providing an electronic means to opt out, such as a form that 
can be electronically mailed or processed at an Internet Web site, if 
the consumer agrees to the electronic delivery of information;
    (iv) Providing a toll-free telephone number that consumers may call 
to opt out; or
    (v) Allowing consumers to exercise all of their opt-out rights 
described in a consolidated opt-out notice that includes the privacy 
opt-out under the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.), the 
affiliate sharing opt-out under the Act, and the affiliate marketing 
opt-out under the Act, by a single method, such as by calling a single 
toll-free telephone number.
    (2) Opt-out methods that are not reasonable and simple. Reasonable 
and simple methods for exercising an opt-out right do not include--
    (i) Requiring the consumer to write his or her own letter;
    (ii) Requiring the consumer to call or write to obtain a form for 
opting out, rather than including the form with the opt-out notice;
    (iii) Requiring the consumer who receives the opt-out notice in 
electronic form only, such as through posting at an Internet Web site, 
to opt out solely by paper mail or by visiting a different Web site 
without providing a link to that site.
    (c) Specific opt-out means. Each consumer may be required to opt 
out through a specific means, as long as that means is reasonable and 
simple for that consumer.


Sec.  571.26  Delivery of opt-out notices.

    (a) In general. The opt-out notice must be provided so that each 
consumer can reasonably be expected to receive actual notice. For opt-
out notices provided electronically, the notice may be provided in 
compliance with either the electronic disclosure provisions in this 
subpart or the provisions in section 101 of the Electronic Signatures 
in Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (b) Examples of reasonable expectation of actual notice. A consumer 
may reasonably be expected to receive actual notice if the affiliate 
providing the notice:
    (1) Hand-delivers a printed copy of the notice to the consumer;
    (2) Mails a printed copy of the notice to the last known mailing 
address of the consumer;
    (3) Provides a notice by e-mail to a consumer who has agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (4) Posts the notice on the Internet Web site at which the consumer 
obtained a product or service electronically and requires the consumer 
to acknowledge receipt of the notice.
    (c) Examples of no reasonable expectation of actual notice. A 
consumer may not reasonably be expected to receive actual notice if the 
affiliate providing the notice:
    (1) Only posts the notice on a sign in a branch or office or 
generally publishes the notice in a newspaper;
    (2) Sends the notice via e-mail to a consumer who has not agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (3) Posts the notice on an Internet Web site without requiring the 
consumer to acknowledge receipt of the notice.


Sec.  571.27  Renewal of opt-out.

    (a) Renewal notice and opt-out requirement. (1) In general. After 
the opt-out period expires, you may not make solicitations based on 
eligibility information you receive from an affiliate to a consumer who 
previously opted out, unless:
    (i) The consumer has been given a renewal notice that complies with 
the requirements of this section and Sec. Sec.  571.24 through 571.26 
of this part, and a reasonable opportunity and a reasonable and simple 
method to renew the opt-out, and the consumer does not renew the opt-
out; or
    (ii) An exception in Sec.  571.21(c) of this part applies.
    (2) Renewal period. Each opt-out renewal must be effective for a 
period of at least five years as provided in Sec.  571.22(b) of this 
part.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By the affiliate that provided the previous opt-out notice, or 
its successor; or
    (ii) As part of a joint renewal notice from two or more members of 
an affiliated group of companies, or their successors, that jointly 
provided the previous opt-out notice.
    (b) Contents of renewal notice. The renewal notice must be clear, 
conspicuous, and concise, and must accurately disclose:
    (1) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC banking, credit card, insurance, and securities 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates providing the joint notice do not all 
share a common name, then the notice must either separately identify 
each affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice is provided 
by ``all of the ABC and XYZ companies'' or by ``the ABC banking and 
credit card companies and the XYZ insurance companies'';
    (2) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC banking, credit 
card, insurance, and securities companies,'' or by listing the name of 
each affiliate providing the notice. But if the affiliates covered by 
the notice do not all share a common name, then the notice must either 
separately identify each covered affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice applies to ``all of the ABC and XYZ companies'' or to ``the 
ABC banking and credit card companies and the XYZ insurance 
companies'';
    (3) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (4) That the consumer previously elected to limit the use of 
certain information to make solicitations to the consumer;
    (5) That the consumer's election has expired or is about to expire;
    (6) That the consumer may elect to renew the consumer's previous 
election;
    (7) If applicable, that the consumer's election to renew will apply 
for the specified period of time stated in the notice and that the 
consumer will be allowed to renew the election once that period 
expires; and

[[Page 62980]]

    (8) A reasonable and simple method for the consumer to opt out.
    (c) Timing of the renewal notice. (1) In general. A renewal notice 
may be provided to the consumer either--
    (i) A reasonable period of time before the expiration of the opt-
out period; or
    (ii) Any time after the expiration of the opt-out period but before 
solicitations that would have been prohibited by the expired opt-out 
are made to the consumer.
    (2) Combination with annual privacy notice. If you provide an 
annual privacy notice under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 
et seq., providing a renewal notice with the last annual privacy notice 
provided to the consumer before expiration of the opt-out period is a 
reasonable period of time before expiration of the opt-out in all 
cases.
    (d) No effect on opt-out period. An opt-out period may not be 
shortened by sending a renewal notice to the consumer before expiration 
of the opt-out period, even if the consumer does not renew the opt-out.


Sec.  571.28  Effective date, compliance date, and prospective 
application.

    (a) Effective date. This subpart is effective January 1, 2008.
    (b) Mandatory compliance date. Compliance with this subpart is 
required not later than October 1, 2008.
    (c) Prospective application. The provisions of this subpart shall 
not prohibit you from using eligibility information that you receive 
from an affiliate to make solicitations to a consumer if you receive 
such information prior to October 1, 2008. For purposes of this 
section, you are deemed to receive eligibility information when such 
information is placed into a common database and is accessible by you.

0
4. Add and reserve Appendixes A and B to part 571, and add a new 
Appendix C to part 571 to read as follows:

Appendix C To Part 571--Model Forms for Opt-Out Notices

    a. Although use of the model forms is not required, use of the 
model forms in this Appendix (as applicable) complies with the 
requirement in section 624 of the Act for clear, conspicuous, and 
concise notices.
    b. Certain changes may be made to the language or format of the 
model forms without losing the protection from liability afforded by 
use of the model forms. These changes may not be so extensive as to 
affect the substance, clarity, or meaningful sequence of the 
language in the model forms. Persons making such extensive revisions 
will lose the safe harbor that this Appendix provides. Acceptable 
changes include, for example:
    1. Rearranging the order of the references to ``your income,'' 
``your account history,'' and ``your credit score.''
    2. Substituting other types of information for ``income,'' 
``account history,'' or ``credit score'' for accuracy, such as 
``payment history,'' ``credit history,'' ``payoff status,'' or 
``claims history.''
    3. Substituting a clearer and more accurate description of the 
affiliates providing or covered by the notice for phrases such as 
``the [ABC] group of companies,'' including without limitation a 
statement that the entity providing the notice recently purchased 
the consumer's account.
    4. Substituting other types of affiliates covered by the notice 
for ``credit card,'' ``insurance,'' or ``securities'' affiliates.
    5. Omitting items that are not accurate or applicable. For 
example, if a person does not limit the duration of the opt-out 
period, the notice may omit information about the renewal notice.
    6. Adding a statement informing consumers how much time they 
have to opt out before shared eligibility information may be used to 
make solicitations to them.
    7. Adding a statement that the consumer may exercise the right 
to opt out at any time.
    8. Adding the following statement, if accurate: ``If you 
previously opted out, you do not need to do so again.''
    9. Providing a place on the form for the consumer to fill in 
identifying information, such as his or her name and address:

C-1 Model Form for Initial Opt-out Notice (Single-Affiliate Notice)
C-2 Model Form for Initial Opt-out Notice (Joint Notice)
C-3 Model Form for Renewal Notice (Single-Affiliate Notice)
C-4 Model Form for Renewal Notice (Joint Notice)
C-5 Model Form for Voluntary ``No Marketing'' Notice

C-1--Model Form for Initial Opt-out Notice (Single-Affiliate 
Notice)--[Your Choice To Limit Marketing]/[Marketing Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You may limit our affiliates in the [ABC] group of 
companies, such as our [credit card, insurance, and securities] 
affiliates, from marketing their products or services to you based 
on your personal information that we collect and share with them. 
This information includes your [income], your [account history with 
us], and your [credit score].
     Your choice to limit marketing offers from our 
affiliates will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from our affiliates for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from our affiliates, you do not need to act again until you 
receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow your affiliates to use my personal information to 
market to me.

C-2--Model Form for Initial Opt-out Notice (Joint Notice)--[Your 
Choice To Limit Marketing]/[Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You may limit the [ABC] companies, such as the [ABC 
credit card, insurance, and securities] affiliates, from marketing 
their products or services to you based on your personal information 
that they receive from other [ABC] companies. This information 
includes your [income], your [account history], and your [credit 
score].
     Your choice to limit marketing offers from the [ABC] 
companies will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from the [ABC] companies for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from the [ABC] companies, you do not need to act again until 
you receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow any company [in the ABC group of companies] to 
use my personal information to market to me.

C-3--Model Form for Renewal Notice (Single-Affiliate Notice)--
[Renewing Your Choice To Limit Marketing]/[Renewing Your Marketing 
Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to

[[Page 62981]]

give you this notice to tell you about your choice to limit 
marketing from our affiliates.]
     You previously chose to limit our affiliates in the 
[ABC] group of companies, such as our [credit card, insurance, and 
securities] affiliates, from marketing their products or services to 
you based on your personal information that we share with them. This 
information includes your [income], your [account history with us], 
and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-4--Model Form for Renewal Notice (Joint Notice)--[Renewing Your 
Choice To Limit Marketing]/[Renewing Your Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You previously chose to limit the [ABC] companies, such 
as the [ABC credit card, insurance, and securities] affiliates, from 
marketing their products or services to you based on your personal 
information that they receive from other ABC companies. This 
information includes your [income], your [account history], and your 
[credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-5--Model Form for Voluntary ``No Marketing'' Notice Your Choice 
To Stop Marketing

     [Name of Affiliate] is providing this notice.
     You may choose to stop all marketing from us and our 
affiliates.
    To stop all marketing, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not market to me.

National Credit Union Administration

    12 CFR Chapter VII.

Authority and Issuance

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

PART 717--FAIR CREDIT REPORTING

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

    Authority: 12 U.S.C. 1751 et seq.; 15 U.S.C. 1681a, 1681b, 
1681c, 1681m, 1681s, 1681w, 6801 and 6805.

Subpart A--General Provisions

0
2. Revise Sec.  717.1 to read as follows:


Sec.  717.1  Purpose, scope, and effective dates.

    (a) Purpose. The purpose of this part is to implement the 
provisions of the Fair Credit Reporting Act. This part generally 
applies to federal credit unions that obtain and use information about 
consumers to determine the consumer's eligibility for products, 
services, or employment, share such information among affiliates, and 
furnish information to consumer reporting agencies.
    (b) Scope.
    (1) [Reserved]
    (2) Institutions covered. (i) Except as otherwise provided in this 
part, the regulations in this part apply to federal credit unions.

0
3. A new Subpart C is added to part 717 to read as follows:
Subpart C--Affiliate Marketing
Sec.
717.20 Coverage and definitions.
717.21 Affiliate marketing opt-out and exceptions.
717.22 Scope and duration of opt-out.
717.23 Contents of opt-out notice; consolidated and equivalent 
notices.
717.24 Reasonable opportunity to opt out.
717.25 Reasonable and simple methods of opting out.
717.26 Delivery of opt-out notices.
717.27 Renewal of opt-out.
717.28 Effective date, compliance date, and prospective application.

Subpart C--Affiliate Marketing


Sec.  717.20  Coverage and definitions

    (a) Coverage. Subpart C of this part applies to federal credit 
unions and their affiliates as defined in Sec.  717.3(a) of Subpart A.
    (b) Definitions. For purposes of this subpart:
    (1) Clear and conspicuous. The term ``clear and conspicuous'' means 
reasonably understandable and designed to call attention to the nature 
and significance of the information presented.
    (2) Concise. (i) In general. The term ``concise'' means a 
reasonably brief expression or statement.
    (ii) Combination with other required disclosures. A notice required 
by this subpart may be concise even if it is combined with other 
disclosures required or authorized by federal or state law.
    (3) Eligibility information. The term ``eligibility information'' 
means any information the communication of which would be a consumer 
report if the exclusions from the definition of ``consumer report'' in 
section 603(d)(2)(A) of the Act did not apply. Eligibility information 
does not include aggregate or blind data that does not contain personal 
identifiers such as account numbers, names, or addresses.
    (4) Pre-existing business relationship. (i) In general. The term 
``pre-existing business relationship'' means a relationship between a 
person, or a person's licensed agent, and a consumer based on--
    (A) A financial contract between the person and the consumer which 
is in force on the date on which the consumer is sent a solicitation 
covered by this subpart;
    (B) The purchase, rental, or lease by the consumer of the person's 
goods or services, or a financial transaction (including holding an 
active account or a policy in force or having another continuing 
relationship) between the consumer and the person, during the 18-month 
period immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart; or
    (C) An inquiry or application by the consumer regarding a product 
or service offered by that person during the three-month period 
immediately preceding the date on which the consumer is sent a 
solicitation covered by this subpart.
    (ii) Examples of pre-existing business relationships. (A) If a 
consumer has a time deposit account, such as a share certificate, at a 
federal credit union that is currently in force, the federal credit 
union has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services.
    (B) If a consumer obtained a share certificate from a federal 
credit union, but did not renew the certificate at maturity, the 
federal credit union has a pre-existing business relationship with the 
consumer and can use eligibility information it receives from its 
affiliates

[[Page 62982]]

to make solicitations to the consumer about its products or services 
for 18 months after the date of maturity of the share certificate.
    (C) If a consumer obtains a mortgage, the mortgage lender has a 
pre-existing business relationship with the consumer. If the mortgage 
lender sells the consumer's entire loan to an investor, the mortgage 
lender has a pre-existing business relationship with the consumer and 
can use eligibility information it receives from its affiliates to make 
solicitations to the consumer about its products or services for 18 
months after the date it sells the loan, and the investor has a pre-
existing business relationship with the consumer upon purchasing the 
loan. If, however, the mortgage lender sells a fractional interest in 
the consumer's loan to an investor but also retains an ownership 
interest in the loan, the mortgage lender continues to have a pre-
existing business relationship with the consumer, but the investor does 
not have a pre-existing business relationship with the consumer. If the 
mortgage lender retains ownership of the loan, but sells ownership of 
the servicing rights to the consumer's loan, the mortgage lender 
continues to have a pre-existing business relationship with the 
consumer. The purchaser of the servicing rights also has a pre-existing 
business relationship with the consumer as of the date it purchases 
ownership of the servicing rights, but only if it collects payments 
from or otherwise deals directly with the consumer on a continuing 
basis.
    (D) If a consumer applies to a federal credit union for a product 
or service that it offers, but does not obtain a product or service 
from or enter into a financial contract or transaction with the 
institution, the federal credit union has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the application.
    (E) If a consumer makes a telephone inquiry to a federal credit 
union about its products or services and provides contact information 
to the institution, but does not obtain a product or service from or 
enter into a financial contract or transaction with the institution, 
the federal credit union has a pre-existing business relationship with 
the consumer and can therefore use eligibility information it receives 
from an affiliate to make solicitations to the consumer about its 
products or services for three months after the date of the inquiry.
    (F) If a consumer makes an inquiry to a federal credit union by e-
mail about its products or services, but does not obtain a product or 
service from or enter into a financial contract or transaction with the 
institution, the federal credit union has a pre-existing business 
relationship with the consumer and can therefore use eligibility 
information it receives from an affiliate to make solicitations to the 
consumer about its products or services for three months after the date 
of the inquiry.
    (G) If a consumer has an existing relationship with a federal 
credit union that is part of a group of affiliated companies, makes a 
telephone call to the centralized call center for the group of 
affiliated companies to inquire about products or services offered by 
the insurance brokerage affiliate, and provides contact information to 
the call center, the call constitutes an inquiry to the insurance 
brokerage affiliate that offers those products or services. The 
insurance brokerage affiliate has a pre-existing business relationship 
with the consumer and can therefore use eligibility information it 
receives from its affiliated federal credit union to make solicitations 
to the consumer about its products or services for three months after 
the date of the inquiry.
    (iii) Examples where no pre-existing business relationship is 
created. (A) If a consumer makes a telephone call to a centralized call 
center for a group of affiliated companies to inquire about the 
consumer's existing account at a federal credit union, the call does 
not constitute an inquiry to any affiliate other than the federal 
credit union that holds the consumer's account and does not establish a 
pre-existing business relationship between the consumer and any 
affiliate of the account-holding federal credit union.
    (B) If a consumer who has a deposit account with a federal credit 
union makes a telephone call to an affiliate of the institution to ask 
about the affiliate's retail locations and hours, but does not make an 
inquiry about the affiliate's products or services, the call does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate. Also, the 
affiliate's capture of the consumer's telephone number does not 
constitute an inquiry and does not establish a pre-existing business 
relationship between the consumer and the affiliate.
    (C) If a consumer makes a telephone call to a federal credit union 
in response to an advertisement that offers a free promotional item to 
consumers who call a toll-free number, but the advertisement does not 
indicate that the federal credit union's products or services will be 
marketed to consumers who call in response, the call does not create a 
pre-existing business relationship between the consumer and the federal 
credit union because the consumer has not made an inquiry about a 
product or service offered by the institution, but has merely responded 
to an offer for a free promotional item.
    (5) Solicitation. (i) In general. The term ``solicitation'' means 
the marketing of a product or service initiated by a person to a 
particular consumer that is--
    (A) Based on eligibility information communicated to that person by 
its affiliate as described in this subpart; and
    (B) Intended to encourage the consumer to purchase or obtain such 
product or service.
    (ii) Exclusion of marketing directed at the general public. A 
solicitation does not include marketing communications that are 
directed at the general public. For example, television, general 
circulation magazine, and billboard advertisements do not constitute 
solicitations, even if those communications are intended to encourage 
consumers to purchase products and services from the person initiating 
the communications.
    (iii) Examples of solicitations. A solicitation would include, for 
example, a telemarketing call, direct mail, e-mail, or other form of 
marketing communication directed to a particular consumer that is based 
on eligibility information received from an affiliate.
    (6) You means a person described in paragraph (a) of this section.


Sec.  717.21  Affiliate marketing opt-out and exceptions.

    (a) Initial notice and opt-out requirement. (1) In general. You may 
not use eligibility information about a consumer that you receive from 
an affiliate to make a solicitation for marketing purposes to the 
consumer, unless--
    (i) It is clearly and conspicuously disclosed to the consumer in 
writing or, if the consumer agrees, electronically, in a concise notice 
that you may use eligibility information about that consumer received 
from an affiliate to make solicitations for marketing purposes to the 
consumer;
    (ii) The consumer is provided a reasonable opportunity and a 
reasonable and simple method to ``opt out,'' or prohibit you from using 
eligibility information to make solicitations for marketing purposes to 
the consumer; and
    (iii) The consumer has not opted out.

[[Page 62983]]

    (2) Example. A consumer has a homeowner's insurance policy obtained 
through an insurance brokerage. The insurance brokerage furnishes 
eligibility information about the consumer to its affiliated federal 
credit union. Based on that eligibility information, the federal credit 
union wants to make a solicitation to the consumer about its home 
equity loan products. The federal credit union does not have a pre-
existing business relationship with the consumer and none of the other 
exceptions apply. The federal credit union is prohibited from using 
eligibility information received from its insurance brokerage affiliate 
to make solicitations to the consumer about its home equity loan 
products unless the consumer is given a notice and opportunity to opt 
out and the consumer does not opt out.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By an affiliate that has or has previously had a pre-existing 
business relationship with the consumer; or
    (ii) As part of a joint notice from two or more members of an 
affiliated group of companies, provided that at least one of the 
affiliates on the joint notice has or has previously had a pre-existing 
business relationship with the consumer.
    (b) Making solicitations. (1) In general. For purposes of this 
subpart, you make a solicitation for marketing purposes if--
    (i) You receive eligibility information from an affiliate;
    (ii) You use that eligibility information to do one or more of the 
following:
    (A) Identify the consumer or type of consumer to receive a 
solicitation;
    (B) Establish criteria used to select the consumer to receive a 
solicitation; or
    (C) Decide which of your products or services to market to the 
consumer or tailor your solicitation to that consumer; and
    (iii) As a result of your use of the eligibility information, the 
consumer is provided a solicitation.
    (2) Receiving eligibility information from an affiliate, including 
through a common database. You may receive eligibility information from 
an affiliate in various ways, including when the affiliate places that 
information into a common database that you may access.
    (3) Receipt or use of eligibility information by your service 
provider. Except as provided in paragraph (b)(5) of this section, you 
receive or use an affiliate's eligibility information if a service 
provider acting on your behalf (whether an affiliate or a nonaffiliated 
third party) receives or uses that information in the manner described 
in paragraphs (b)(1)(i) or (b)(1)(ii) of this section. All relevant 
facts and circumstances will determine whether a person is acting as 
your service provider when it receives or uses an affiliate's 
eligibility information in connection with marketing your products and 
services.
    (4) Use by an affiliate of its own eligibility information. Unless 
you have used eligibility information that you receive from an 
affiliate in the manner described in paragraph (b)(1)(ii) of this 
section, you do not make a solicitation subject to this subpart if your 
affiliate:
    (i) Uses its own eligibility information that it obtained in 
connection with a pre-existing business relationship it has or had with 
the consumer to market your products or services to the consumer; or
    (ii) Directs its service provider to use the affiliate's own 
eligibility information that it obtained in connection with a pre-
existing business relationship it has or had with the consumer to 
market your products or services to the consumer, and you do not 
communicate directly with the service provider regarding that use.
    (5) Use of eligibility information by a service provider. (i) In 
general. You do not make a solicitation subject to Subpart C of this 
part if a service provider (including an affiliated or third-party 
service provider that maintains or accesses a common database that you 
may access) receives eligibility information from your affiliate that 
your affiliate obtained in connection with a pre-existing business 
relationship it has or had with the consumer and uses that eligibility 
information to market your products or services to the consumer, so 
long as--
    (A) Your affiliate controls access to and use of its eligibility 
information by the service provider (including the right to establish 
the specific terms and conditions under which the service provider may 
use such information to market your products or services);
    (B) Your affiliate establishes specific terms and conditions under 
which the service provider may access and use the affiliate's 
eligibility information to market your products and services (or those 
of affiliates generally) to the consumer, such as the identity of the 
affiliated companies whose products or services may be marketed to the 
consumer by the service provider, the types of products or services of 
affiliated companies that may be marketed, and the number of times the 
consumer may receive marketing materials, and periodically evaluates 
the service provider's compliance with those terms and conditions;
    (C) Your affiliate requires the service provider to implement 
reasonable policies and procedures designed to ensure that the service 
provider uses the affiliate's eligibility information in accordance 
with the terms and conditions established by the affiliate relating to 
the marketing of your products or services;
    (D) Your affiliate is identified on or with the marketing materials 
provided to the consumer; and
    (E) You do not directly use your affiliate's eligibility 
information in the manner described in paragraph (b)(1)(ii) of this 
section.
    (ii) Writing requirements. (A) The requirements of paragraphs 
(b)(5)(i)(A) and (C) of this section must be set forth in a written 
agreement between your affiliate and the service provider; and
    (B) The specific terms and conditions established by your affiliate 
as provided in paragraph (b)(5)(i)(B) of this section must be set forth 
in writing.
    (6) Examples of making solicitations. (i) A consumer has a deposit 
account with a federal credit union, which is affiliated with an 
insurance brokerage. The insurance brokerage receives eligibility 
information about the consumer from the federal credit union. The 
insurance brokerage uses that eligibility information to identify the 
consumer to receive a solicitation about insurance brokerage services, 
and, as a result, the insurance brokerage provides a solicitation to 
the consumer about its services. Pursuant to paragraph (b)(1) of this 
section, the insurance brokerage has made a solicitation to the 
consumer.
    (ii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that after using the eligibility information to 
identify the consumer to receive a solicitation about insurance 
brokerage services, the insurance brokerage asks the federal credit 
union to send the solicitation to the consumer and the federal credit 
union does so. Pursuant to paragraph (b)(1) of this section, the 
insurance brokerage has made a solicitation to the consumer because it 
used eligibility information about the consumer that it received from 
an affiliate to identify the consumer to receive a solicitation about 
its products or services, and, as a result, a solicitation was provided 
to the consumer about the insurance brokerage's services.
    (iii) The same facts as in the example in paragraph (b)(6)(i) of 
this section, except that eligibility information about consumers that 
have deposit accounts with the federal credit union is placed into a 
common database that all

[[Page 62984]]

members of the affiliated group of companies may independently access 
and use. Without using the federal credit union's eligibility 
information, the insurance brokerage develops selection criteria and 
provides those criteria, marketing materials, and related instructions 
to the federal credit union. The federal credit union reviews 
eligibility information about its own consumers using the selection 
criteria provided by the insurance brokerage to determine which 
consumers should receive the insurance brokerage's marketing materials 
and sends marketing materials about the insurance brokerage's services 
to those consumers. Even though the insurance brokerage has received 
eligibility information through the common database as provided in 
paragraph (b)(2) of this section, it did not use that information to 
identify consumers or establish selection criteria; instead, the 
federal credit union used its own eligibility information. Therefore, 
pursuant to paragraph (b)(4)(i) of this section, the insurance 
brokerage has not made a solicitation to the consumer.
    (iv) The same facts as in the example in paragraph (b)(6)(iii) of 
this section, except that the federal credit union provides the 
insurance brokerage's criteria to the federal credit union's service 
provider and directs the service provider to use the federal credit 
union's eligibility information to identify federal credit union 
consumers who meet the criteria and to send the insurance brokerage's 
marketing materials to those consumers. The insurance brokerage does 
not communicate directly with the service provider regarding the use of 
the federal credit union's information to market its services to the 
federal credit union's consumers. Pursuant to paragraph (b)(4)(ii) of 
this section, the insurance brokerage has not made a solicitation to 
the consumer.
    (v) An affiliated group of companies includes a federal credit 
union, an insurance brokerage, and a service provider. Each affiliate 
in the group places information about its consumers into a common 
database. The service provider has access to all information in the 
common database. The federal credit union controls access to and use of 
its eligibility information by the service provider. This control is 
set forth in a written agreement between the federal credit union and 
the service provider. The written agreement also requires the service 
provider to establish reasonable policies and procedures designed to 
ensure that the service provider uses the federal credit union's 
eligibility information in accordance with specific terms and 
conditions established by the federal credit union relating to the 
marketing of the products and services of all affiliates, including the 
insurance brokerage. In a separate written communication, the federal 
credit union specifies the terms and conditions under which the service 
provider may use the federal credit union's eligibility information to 
market the insurance brokerage's products and services to the federal 
credit union's consumers. The specific terms and conditions are: a list 
of affiliated companies (including the insurance brokerage) whose 
products or services may be marketed to the federal credit union's 
consumers by the service provider; the specific products or types of 
products that may be marketed to the federal credit union's consumers 
by the service provider; the categories of eligibility information that 
may be used by the service provider in marketing products or services 
to the federal credit union's consumers; the types or categories of the 
federal credit union's consumers to whom the service provider may 
market products or services of federal credit union affiliates; the 
number and/or types of marketing communications that the service 
provider may send to the federal credit union's consumers; and the 
length of time during which the service provider may market the 
products or services of the federal credit union's affiliates to its 
consumers. The federal credit union periodically evaluates the service 
provider's compliance with these terms and conditions. The insurance 
brokerage asks the service provider to market insurance products to 
certain consumers who have deposit accounts with the federal credit 
union. Without using the federal credit union's eligibility 
information, the insurance brokerage develops selection criteria and 
provides those criteria, marketing materials, and related instructions 
to the service provider. The service provider uses the federal credit 
union's eligibility information from the common database to identify 
the federal credit union's consumers to whom insurance brokerage 
services will be marketed. When the insurance brokerage's marketing 
materials are provided to the identified consumers, the name of the 
federal credit union is displayed on the brokerage marketing materials, 
an introductory letter that accompanies the marketing materials, an 
account statement that accompanies the marketing materials, or the 
envelope containing the marketing materials. The requirements of 
paragraph (b)(5) of this section have been satisfied, and the insurance 
brokerage has not made a solicitation to the consumer.
    (vi) The same facts as in the example in paragraph (b)(6)(v) of 
this section, except that the terms and conditions permit the service 
provider to use the federal credit union's eligibility information to 
market the products and services of other affiliates to the federal 
credit union's consumers whenever the service provider deems it 
appropriate to do so. The service provider uses the federal credit 
union's eligibility information in accordance with the discretion 
afforded to it by the terms and conditions. Because the terms and 
conditions are not specific, the requirements of paragraph (b)(5) of 
this section have not been satisfied.
    (c) Exceptions. The provisions of this subpart do not apply to you 
if you use eligibility information that you receive from an affiliate:
    (1) To make a solicitation for marketing purposes to a consumer 
with whom you have a pre-existing business relationship;
    (2) To facilitate communications to an individual for whose benefit 
you provide employee benefit or other services pursuant to a contract 
with an employer related to and arising out of the current employment 
relationship or status of the individual as a participant or 
beneficiary of an employee benefit plan;
    (3) To perform services on behalf of an affiliate, except that this 
subparagraph shall not be construed as permitting you to send 
solicitations on behalf of an affiliate if the affiliate would not be 
permitted to send the solicitation as a result of the election of the 
consumer to opt out under this subpart;
    (4) In response to a communication about your products or services 
initiated by the consumer;
    (5) In response to an authorization or request by the consumer to 
receive solicitations; or
    (6) If your compliance with this subpart would prevent you from 
complying with any provision of State insurance laws pertaining to 
unfair discrimination in any State in which you are lawfully doing 
business.
    (d) Examples of exceptions. (1) Example of the pre-existing 
business relationship exception. A consumer has a deposit account with 
a federal credit union. The consumer also has a relationship with the 
federal credit union's securities brokerage affiliate. The federal 
credit union receives eligibility information about the consumer from 
its securities brokerage affiliate and uses that information to make a 
solicitation to the consumer

[[Page 62985]]

about the federal credit union's wealth management services. The 
federal credit union may make this solicitation even if the consumer 
has not been given a notice and opportunity to opt out because the 
federal credit union has a pre-existing business relationship with the 
consumer.
    (2) Examples of service provider exception. (i) A consumer has an 
insurance policy obtained through an insurance brokerage. The insurance 
brokerage furnishes eligibility information about the consumer to its 
affiliated federal credit union. Based on that eligibility information, 
the federal credit union wants to make a solicitation to the consumer 
about membership and its deposit products. The federal credit union 
does not have a pre-existing business relationship with the consumer 
and none of the other exceptions in paragraph (c) of this section 
apply. The consumer has been given an opt-out notice and has elected to 
opt out of receiving such solicitations. The federal credit union asks 
a service provider to send the solicitation to the consumer on its 
behalf. The service provider may not send the solicitation on behalf of 
the federal credit union because, as a result of the consumer's opt-out 
election, the federal credit union is not permitted to make the 
solicitation.
    (ii) The same facts as in paragraph (d)(2)(i) of this section, 
except the consumer has been given an opt-out notice, but has not 
elected to opt out. The federal credit union asks a service provider to 
send the solicitation to the consumer on its behalf. The service 
provider may send the solicitation on behalf of the federal credit 
union because, as a result of the consumer's not opting out, the 
federal credit union is permitted to make the solicitation.
    (3) Examples of consumer-initiated communications. (i) A consumer 
who has a deposit account with a federal credit union initiates a 
communication with the federal credit union's credit card affiliate to 
request information about a credit card. The credit card affiliate may 
use eligibility information about the consumer it obtains from the 
federal credit union or any other affiliate to make solicitations 
regarding credit card products in response to the consumer-initiated 
communication.
    (ii) A consumer who has a deposit account with a federal credit 
union contacts the institution to request information about how to save 
and invest for a child's college education without specifying the type 
of product in which the consumer may be interested. Information about a 
range of different products or services offered by the federal credit 
union and one or more affiliates of the institution may be responsive 
to that communication. Such products or services may include the 
following: Mutual funds offered by the institution; section 529 plans 
offered by the institution or its securities brokerage affiliate; or 
trust services offered by the institution or its trust services 
affiliate. Any affiliate offering investment counseling services that 
would be responsive to the consumer's request for information about 
saving and investing for a child's college education may use 
eligibility information to make solicitations to the consumer in 
response to this communication.
    (iii) A credit card issuer makes a marketing call to the consumer 
without using eligibility information received from an affiliate. The 
issuer leaves a voice-mail message that invites the consumer to call a 
toll-free number to apply for the issuer's credit card. If the consumer 
calls the toll-free number to inquire about the credit card, the call 
is a consumer-initiated communication about a product or service and 
the credit card issuer may now use eligibility information it receives 
from its affiliates to make solicitations to the consumer.
    (iv) A consumer calls a federal credit union to ask about retail 
locations and hours, but does not request information about products or 
services. The institution may not use eligibility information it 
receives from an affiliate to make solicitations to the consumer about 
its products or services because the consumer-initiated communication 
does not relate to the federal credit union's products or services. 
Thus, the use of eligibility information received from an affiliate 
would not be responsive to the communication and the exception does not 
apply.
    (v) A consumer calls a federal credit union to ask about retail 
locations and hours. The customer service representative asks the 
consumer if there is a particular product or service about which the 
consumer is seeking information. The consumer responds that the 
consumer wants to stop in and find out about share certificates. The 
customer service representative offers to provide that information by 
telephone and mail additional information and application materials to 
the consumer. The consumer agrees and provides or confirms contact 
information for receipt of the materials to be mailed. The federal 
credit union may use eligibility information it receives from an 
affiliate to make solicitations to the consumer about share 
certificates because such solicitations would respond to the consumer-
initiated communication about products or services.
    (4) Examples of consumer authorization or request for 
solicitations. (i) A consumer who obtains a mortgage from a federal 
credit union authorizes or requests information about obtaining 
homeowner's insurance through the federal credit union's insurance 
brokerage affiliate. Such authorization or request, whether given to 
the federal credit union or to the insurance brokerage affiliate, would 
permit the insurance brokerage to use eligibility information about the 
consumer it obtains from the federal credit union or any other 
affiliate to make solicitations to the consumer about its homeowner's 
insurance services.
    (ii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a blank check box that the consumer may check to authorize or 
request information from the credit card issuer's affiliates. The 
consumer checks the box. The consumer has authorized or requested 
solicitations from the card issuer's affiliates.
    (iii) A consumer completes an online application to apply for a 
credit card from a credit card issuer. The issuer's online application 
contains a pre-selected check box indicating that the consumer 
authorizes or requests information from the issuer's affiliates. The 
consumer does not deselect the check box. The consumer has not 
authorized or requested solicitations from the card issuer's 
affiliates.
    (iv) The terms and conditions of a credit card account agreement 
contain preprinted boilerplate language stating that by applying to 
open an account the consumer authorizes or requests to receive 
solicitations from the credit card issuer's affiliates. The consumer 
has not authorized or requested solicitations from the card issuer's 
affiliates.
    (e) Relation to affiliate-sharing notice and opt-out. Nothing in 
this subpart limits the responsibility of a person to comply with the 
notice and opt-out provisions of section 603(d)(2)(A)(iii) of the Act 
where applicable.


Sec.  717.22  Scope and duration of opt-out.

    (a) Scope of opt-out. (1) In general. Except as otherwise provided 
in this section, the consumer's election to opt out prohibits any 
affiliate covered by the opt-out notice from using eligibility 
information received from another affiliate as described in the notice 
to make solicitations to the consumer.
    (2) Continuing relationship. (i) In general. If the consumer 
establishes a continuing relationship with you or your affiliate, an 
opt-out notice may

[[Page 62986]]

apply to eligibility information obtained in connection with--
    (A) A single continuing relationship or multiple continuing 
relationships that the consumer establishes with you or your 
affiliates, including continuing relationships established subsequent 
to delivery of the opt-out notice, so long as the notice adequately 
describes the continuing relationships covered by the opt-out; or
    (B) Any other transaction between the consumer and you or your 
affiliates as described in the notice.
    (ii) Examples of continuing relationships. A consumer has a 
continuing relationship with you or your affiliate if the consumer--
    (A) Opens a deposit or investment account with you or your 
affiliate;
    (B) Obtains a loan for which you or your affiliate owns the 
servicing rights;
    (C) Purchases an insurance product from you or your affiliate;
    (D) Holds an investment product through you or your affiliate, such 
as when you act or your affiliate acts as a custodian for securities or 
for assets in an individual retirement arrangement;
    (E) Enters into an agreement or understanding with you or your 
affiliate whereby you or your affiliate undertakes to arrange or broker 
a home mortgage loan for the consumer;
    (F) Enters into a lease of personal property with you or your 
affiliate; or
    (G) Obtains financial, investment, or economic advisory services 
from you or your affiliate for a fee.
    (3) No continuing relationship. (i) In general. If there is no 
continuing relationship between a consumer and you or your affiliate, 
and you or your affiliate obtain eligibility information about a 
consumer in connection with a transaction with the consumer, such as an 
isolated transaction or a credit application that is denied, an opt-out 
notice provided to the consumer only applies to eligibility information 
obtained in connection with that transaction.
    (ii) Examples of isolated transactions. An isolated transaction 
occurs if--
    (A) The consumer uses your or your affiliate's ATM to withdraw cash 
from an account at another financial institution; or
    (B) You or your affiliate sells the consumer a cashier's check or 
money order, airline tickets, travel insurance, or traveler's checks in 
isolated transactions.
    (4) Menu of alternatives. A consumer may be given the opportunity 
to choose from a menu of alternatives when electing to prohibit 
solicitations, such as by electing to prohibit solicitations from 
certain types of affiliates covered by the opt-out notice but not other 
types of affiliates covered by the notice, electing to prohibit 
solicitations based on certain types of eligibility information but not 
other types of eligibility information, or electing to prohibit 
solicitations by certain methods of delivery but not other methods of 
delivery. However, one of the alternatives must allow the consumer to 
prohibit all solicitations from all of the affiliates that are covered 
by the notice.
    (5) Special rule for a notice following termination of all 
continuing relationships. (i) In general. A consumer must be given a 
new opt-out notice if, after all continuing relationships with you or 
your affiliate(s) are terminated, the consumer subsequently establishes 
another continuing relationship with you or your affiliate(s) and the 
consumer's eligibility information is to be used to make a 
solicitation. The new opt-out notice must apply, at a minimum, to 
eligibility information obtained in connection with the new continuing 
relationship. Consistent with paragraph (b) of this section, the 
consumer's decision not to opt out after receiving the new opt-out 
notice would not override a prior opt-out election by the consumer that 
applies to eligibility information obtained in connection with a 
terminated relationship, regardless of whether the new opt-out notice 
applies to eligibility information obtained in connection with the 
terminated relationship.
    (ii) Example. A consumer is a member of a federal credit union that 
is part of an affiliated group. The consumer terminates his membership. 
One year later, the consumer rejoins and opens a savings account with 
the same federal credit union. The consumer must be given a new notice 
and opportunity to opt out before the federal credit union's affiliates 
may make solicitations to the consumer using eligibility information 
obtained by the federal credit union in connection with the newly 
established account relationship, regardless of whether the consumer 
opted out in connection with accounts held during the previous member 
relationship.
    (b) Duration of opt-out. The election of a consumer to opt out must 
be effective for a period of at least five years (the ``opt-out 
period'') beginning when the consumer's opt-out election is received 
and implemented, unless the consumer subsequently revokes the opt-out 
in writing or, if the consumer agrees, electronically. An opt-out 
period of more than five years may be established, including an opt-out 
period that does not expire unless revoked by the consumer.
    (c) Time of opt-out. A consumer may opt out at any time.


Sec.  717.23  Contents of opt-out notice; consolidated and equivalent 
notices.

    (a) Contents of opt-out notice. (1) In general. A notice must be 
clear, conspicuous, and concise, and must accurately disclose:
    (i) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC federal credit union, credit card, insurance 
brokerage, and securities brokerage companies,'' or by listing the name 
of each affiliate providing the notice. But if the affiliates providing 
the joint notice do not all share a common name, then the notice must 
either separately identify each affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice is provided by ``all of the ABC and XYZ companies'' or by 
``the ABC federal credit union and credit card companies and the XYZ 
insurance brokerage company'';
    (ii) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC federal credit 
union, credit card, insurance brokerage, and securities brokerage 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates covered by the notice do not all share a 
common name, then the notice must either separately identify each 
covered affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice applies to 
``all of the ABC and XYZ companies'' or to ``the ABC federal credit 
union and credit card companies and the XYZ insurance brokerage 
company'';
    (iii) A general description of the types of eligibility information 
that may be

[[Page 62987]]

used to make solicitations to the consumer;
    (iv) That the consumer may elect to limit the use of eligibility 
information to make solicitations to the consumer;
    (v) That the consumer's election will apply for the specified 
period of time stated in the notice and, if applicable, that the 
consumer will be allowed to renew the election once that period 
expires;
    (vi) If the notice is provided to consumers who may have previously 
opted out, such as if a notice is provided to consumers annually, that 
the consumer who has chosen to limit solicitations does not need to act 
again until the consumer receives a renewal notice; and
    (vii) A reasonable and simple method for the consumer to opt out.
    (2) Joint relationships. (i) If two or more consumers jointly 
obtain a product or service, a single opt-out notice may be provided to 
the joint consumers. Any of the joint consumers may exercise the right 
to opt out.
    (ii) The opt-out notice must explain how an opt-out direction by a 
joint consumer will be treated. An opt-out direction by a joint 
consumer may be treated as applying to all of the associated joint 
consumers, or each joint consumer may be permitted to opt-out 
separately. If each joint consumer is permitted to opt out separately, 
one of the joint consumers must be permitted to opt out on behalf of 
all of the joint consumers and the joint consumers must be permitted to 
exercise their separate rights to opt out in a single response.
    (iii) It is impermissible to require all joint consumers to opt out 
before implementing any opt-out direction.
    (3) Alternative contents. If the consumer is afforded a broader 
right to opt out of receiving marketing than is required by this 
subpart, the requirements of this section may be satisfied by providing 
the consumer with a clear, conspicuous, and concise notice that 
accurately discloses the consumer's opt-out rights.
    (4) Model notices. Model notices are provided in Appendix C of this 
part.
    (b) Coordinated and consolidated notices. A notice required by this 
subpart may be coordinated and consolidated with any other notice or 
disclosure required to be issued under any other provision of law by 
the entity providing the notice, including but not limited to the 
notice described in section 603(d)(2)(A)(iii) of the Act and the Gramm-
Leach-Bliley Act privacy notice.
    (c) Equivalent notices. A notice or other disclosure that is 
equivalent to the notice required by this subpart, and that is provided 
to a consumer together with disclosures required by any other provision 
of law, satisfies the requirements of this section.


Sec.  717.24  Reasonable opportunity to opt out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable opportunity to opt out, as required by Sec.  
717.21(a)(1)(ii) of this part.
    (b) Examples of a reasonable opportunity to opt out. The consumer 
is given a reasonable opportunity to opt out if:
    (1) By mail. The opt-out notice is mailed to the consumer. The 
consumer is given 30 days from the date the notice is mailed to elect 
to opt out by any reasonable means.
    (2) By electronic means. (i) The opt-out notice is provided 
electronically to the consumer, such as by posting the notice at an 
Internet Web site at which the consumer has obtained a product or 
service. The consumer acknowledges receipt of the electronic notice. 
The consumer is given 30 days after the date the consumer acknowledges 
receipt to elect to opt out by any reasonable means.
    (ii) The opt-out notice is provided to the consumer by e-mail where 
the consumer has agreed to receive disclosures by e-mail from the 
person sending the notice. The consumer is given 30 days after the e-
mail is sent to elect to opt out by any reasonable means.
    (3) At the time of an electronic transaction. The opt-out notice is 
provided to the consumer at the time of an electronic transaction, such 
as a transaction conducted on an Internet Web site. The consumer is 
required to decide, as a necessary part of proceeding with the 
transaction, whether to opt out before completing the transaction. 
There is a simple process that the consumer may use to opt out at that 
time using the same mechanism through which the transaction is 
conducted.
    (4) At the time of an in-person transaction. The opt-out notice is 
provided to the consumer in writing at the time of an in-person 
transaction. The consumer is required to decide, as a necessary part of 
proceeding with the transaction, whether to opt out before completing 
the transaction, and is not permitted to complete the transaction 
without making a choice. There is a simple process that the consumer 
may use during the course of the in-person transaction to opt out, such 
as completing a form that requires consumers to write a ``yes'' or 
``no'' to indicate their opt-out preference or that requires the 
consumer to check one of two blank check boxes--one that allows 
consumers to indicate that they want to opt out and one that allows 
consumers to indicate that they do not want to opt out.
    (5) By including in a privacy notice. The opt-out notice is 
included in a Gramm-Leach-Bliley Act privacy notice. The consumer is 
allowed to exercise the opt-out within a reasonable period of time and 
in the same manner as the opt-out under that privacy notice.


Sec.  717.25  Reasonable and simple methods of opting out.

    (a) In general. You must not use eligibility information about a 
consumer that you receive from an affiliate to make a solicitation to 
the consumer about your products or services, unless the consumer is 
provided a reasonable and simple method to opt out, as required by 
Sec.  717.21(a)(1)(ii) of this part.
    (b) Examples. (1) Reasonable and simple opt-out methods. Reasonable 
and simple methods for exercising the opt-out right include--
    (i) Designating a check-off box in a prominent position on the opt-
out form;
    (ii) Including a reply form and a self-addressed envelope together 
with the opt-out notice;
    (iii) Providing an electronic means to opt out, such as a form that 
can be electronically mailed or processed at an Internet Web site, if 
the consumer agrees to the electronic delivery of information;
    (iv) Providing a toll-free telephone number that consumers may call 
to opt out; or
    (v) Allowing consumers to exercise all of their opt-out rights 
described in a consolidated opt-out notice that includes the privacy 
opt-out under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., the 
affiliate sharing opt-out under the Act, and the affiliate marketing 
opt-out under the Act, by a single method, such as by calling a single 
toll-free telephone number.
    (2) Opt-out methods that are not reasonable and simple. Reasonable 
and simple methods for exercising an opt-out right do not include--
    (i) Requiring the consumer to write his or her own letter;
    (ii) Requiring the consumer to call or write to obtain a form for 
opting out, rather than including the form with the opt-out notice;
    (iii) Requiring the consumer who receives the opt-out notice in 
electronic form only, such as through posting at an

[[Page 62988]]

Internet Web site, to opt out solely by paper mail or by visiting a 
different Web site without providing a link to that site.
    (c) Specific opt-out means. Each consumer may be required to opt 
out through a specific means, as long as that means is reasonable and 
simple for that consumer.


Sec.  717.26  Delivery of opt-out notices.

    (a) In general. The opt-out notice must be provided so that each 
consumer can reasonably be expected to receive actual notice. For opt-
out notices provided electronically, the notice may be provided in 
compliance with either the electronic disclosure provisions in this 
subpart or the provisions in section 101 of the Electronic Signatures 
in Global and National Commerce Act, 15 U.S.C. 7001 et seq.
    (b) Examples of reasonable expectation of actual notice. A consumer 
may reasonably be expected to receive actual notice if the affiliate 
providing the notice:
    (1) Hand-delivers a printed copy of the notice to the consumer;
    (2) Mails a printed copy of the notice to the last known mailing 
address of the consumer;
    (3) Provides a notice by e-mail to a consumer who has agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (4) Posts the notice on the Internet Web site at which the consumer 
obtained a product or service electronically and requires the consumer 
to acknowledge receipt of the notice.
    (c) Examples of no reasonable expectation of actual notice. A 
consumer may not reasonably be expected to receive actual notice if the 
affiliate providing the notice:
    (1) Only posts the notice on a sign in a branch or office or 
generally publishes the notice in a newspaper;
    (2) Sends the notice via e-mail to a consumer who has not agreed to 
receive electronic disclosures by e-mail from the affiliate providing 
the notice; or
    (3) Posts the notice on an Internet Web site without requiring the 
consumer to acknowledge receipt of the notice.


Sec.  717.27  Renewal of opt-out.

    (a) Renewal notice and opt-out requirement. (1) In general. After 
the opt-out period expires, you may not make solicitations based on 
eligibility information you receive from an affiliate to a consumer who 
previously opted out, unless:
    (i) The consumer has been given a renewal notice that complies with 
the requirements of this section and Sec. Sec.  717.24 through 717.26 
of this part, and a reasonable opportunity and a reasonable and simple 
method to renew the opt-out, and the consumer does not renew the opt-
out; or
    (ii) An exception in Sec.  717.21(c) of this part applies.
    (2) Renewal period. Each opt-out renewal must be effective for a 
period of at least five years as provided in Sec.  717.22(b) of this 
part.
    (3) Affiliates who may provide the notice. The notice required by 
this paragraph must be provided:
    (i) By the affiliate that provided the previous opt-out notice, or 
its successor; or
    (ii) As part of a joint renewal notice from two or more members of 
an affiliated group of companies, or their successors, that jointly 
provided the previous opt-out notice.
    (b) Contents of renewal notice. The renewal notice must be clear, 
conspicuous, and concise, and must accurately disclose:
    (1) The name of the affiliate(s) providing the notice. If the 
notice is provided jointly by multiple affiliates and each affiliate 
shares a common name, such as ``ABC,'' then the notice may indicate 
that it is being provided by multiple companies with the ABC name or 
multiple companies in the ABC group or family of companies, for 
example, by stating that the notice is provided by ``all of the ABC 
companies,'' ``the ABC federal credit union, credit card, insurance 
brokerage, and securities brokerage companies,'' or by listing the name 
of each affiliate providing the notice. But if the affiliates providing 
the joint notice do not all share a common name, then the notice must 
either separately identify each affiliate by name or identify each of 
the common names used by those affiliates, for example, by stating that 
the notice is provided by ``all of the ABC and XYZ companies'' or by 
``the ABC federal credit union and credit card companies and the XYZ 
insurance brokerage company'';
    (2) A list of the affiliates or types of affiliates whose use of 
eligibility information is covered by the notice, which may include 
companies that become affiliates after the notice is provided to the 
consumer. If each affiliate covered by the notice shares a common name, 
such as ``ABC,'' then the notice may indicate that it applies to 
multiple companies with the ABC name or multiple companies in the ABC 
group or family of companies, for example, by stating that the notice 
is provided by ``all of the ABC companies,'' ``the ABC federal credit 
union, credit card, insurance brokerage, and securities brokerage 
companies,'' or by listing the name of each affiliate providing the 
notice. But if the affiliates covered by the notice do not all share a 
common name, then the notice must either separately identify each 
covered affiliate by name or identify each of the common names used by 
those affiliates, for example, by stating that the notice applies to 
``all of the ABC and XYZ companies'' or to ``the ABC federal credit 
union and credit card companies and the XYZ insurance brokerage 
company'';
    (3) A general description of the types of eligibility information 
that may be used to make solicitations to the consumer;
    (4) That the consumer previously elected to limit the use of 
certain information to make solicitations to the consumer;
    (5) That the consumer's election has expired or is about to expire;
    (6) That the consumer may elect to renew the consumer's previous 
election;
    (7) If applicable, that the consumer's election to renew will apply 
for the specified period of time stated in the notice and that the 
consumer will be allowed to renew the election once that period 
expires; and
    (8) A reasonable and simple method for the consumer to opt out.
    (c) Timing of the renewal notice. (1) In general. A renewal notice 
may be provided to the consumer either--
    (i) A reasonable period of time before the expiration of the opt-
out period; or
    (ii) Any time after the expiration of the opt-out period but before 
solicitations that would have been prohibited by the expired opt-out 
are made to the consumer.
    (2) Combination with annual privacy notice. If you provide an 
annual privacy notice under the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 
et seq., providing a renewal notice with the last annual privacy notice 
provided to the consumer before expiration of the opt-out period is a 
reasonable period of time before expiration of the opt-out in all 
cases.
    (d) No effect on opt-out period. An opt-out period may not be 
shortened by sending a renewal notice to the consumer before expiration 
of the opt-out period, even if the consumer does not renew the opt out.


Sec.  717.28  Effective date, compliance date, and prospective 
application.

    (a) Effective date. This subpart is effective January 1, 2008.
    (b) Mandatory compliance date. Compliance with this subpart is 
required not later than October 1, 2008.
    (c) Prospective application. The provisions of this subpart shall 
not

[[Page 62989]]

prohibit you from using eligibility information that you receive from 
an affiliate to make solicitations to a consumer if you receive such 
information prior to October 1, 2008. For purposes of this section, you 
are deemed to receive eligibility information when such information is 
placed into a common database and is accessible by you.
    4. Appendixes A and B to part 717 are added and reserved, a new 
Appendix C to part 717 is added to read as follows:

Appendix C To Part 717--Model Forms for Opt-Out Notices

    a. Although use of the model forms is not required, use of the 
model forms in this Appendix (as applicable) complies with the 
requirement in section 624 of the Act for clear, conspicuous, and 
concise notices.
    b. Certain changes may be made to the language or format of the 
model forms without losing the protection from liability afforded by 
use of the model forms. These changes may not be so extensive as to 
affect the substance, clarity, or meaningful sequence of the 
language in the model forms. Persons making such extensive revisions 
will lose the safe harbor that this Appendix provides. Acceptable 
changes include, for example:
    1. Rearranging the order of the references to ``your income,'' 
``your account history,'' and ``your credit score.''
    2. Substituting other types of information for ``income,'' 
``account history,'' or ``credit score'' for accuracy, such as 
``payment history,'' ``credit history,'' ``payoff status,'' or 
``claims history.''
    3. Substituting a clearer and more accurate description of the 
affiliates providing or covered by the notice for phrases such as 
``the [ABC] group of companies,'' including without limitation a 
statement that the entity providing the notice recently purchased 
the consumer's account.
    4. Substituting other types of affiliates covered by the notice 
for ``credit card,'' ``insurance brokerage,'' or ``securities 
brokerage'' affiliates.
    5. Omitting items that are not accurate or applicable. For 
example, if a person does not limit the duration of the opt-out 
period, the notice may omit information about the renewal notice.
    6. Adding a statement informing consumers how much time they 
have to opt out before shared eligibility information may be used to 
make solicitations to them.
    7. Adding a statement that the consumer may exercise the right 
to opt out at any time.
    8. Adding the following statement, if accurate: ``If you 
previously opted out, you do not need to do so again.''
    9. Providing a place on the form for the consumer to fill in 
identifying information, such as his or her name and address:

C-1 Model Form for Initial Opt-out Notice (Single-Affiliate Notice)
C-2 Model Form for Initial Opt-out Notice (Joint Notice)
C-3 Model Form for Renewal Notice (Single-Affiliate Notice)
C-4 Model Form for Renewal Notice (Joint Notice)
C-5 Model Form for Voluntary ``No Marketing'' Notice

C-1--Model Form for Initial Opt-out Notice (Single-Affiliate 
Notice)--[Your Choice To Limit Marketing]/[Marketing Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You may limit our affiliates in the [ABC] group of 
companies, such as our [credit card, insurance brokerage, and 
securities brokerage] affiliates, from marketing their products or 
services to you based on your personal information that we collect 
and share with them. This information includes your [income], your 
[account history with us], and your [credit score].
     Your choice to limit marketing offers from our 
affiliates will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from our affiliates for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from our affiliates, you do not need to act again until you 
receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow your affiliates to use my personal information to 
market to me.

C-2--Model Form for Initial Opt-out Notice (Joint Notice)--[Your 
Choice To Limit Marketing]/[Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You may limit the [ABC] companies, such as the [ABC 
credit card, insurance brokerage, and securities brokerage] 
affiliates, from marketing their products or services to you based 
on your personal information that they receive from other [ABC] 
companies. This information includes your [income], your [account 
history], and your [credit score].
     Your choice to limit marketing offers from the [ABC] 
companies will apply [until you tell us to change your choice]/[for 
x years from when you tell us your choice]/[for at least 5 years 
from when you tell us your choice]. [Include if the opt-out period 
expires.] Once that period expires, you will receive a renewal 
notice that will allow you to continue to limit marketing offers 
from the [ABC] companies for [another x years]/[at least another 5 
years].
     [Include, if applicable, in a subsequent notice, 
including an annual notice, for consumers who may have previously 
opted out.] If you have already made a choice to limit marketing 
offers from the [ABC] companies, you do not need to act again until 
you receive the renewal notice.
    To limit marketing offers, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not allow any company [in the ABC group of companies] to 
use my personal information to market to me.

C-3--Model Form for Renewal Notice (Single-Affiliate Notice)--
[Renewing Your Choice To Limit Marketing]/[Renewing Your Marketing 
Opt-out]

     [Name of Affiliate] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from our affiliates. Federal law also 
requires us to give you this notice to tell you about your choice to 
limit marketing from our affiliates.]
     You previously chose to limit our affiliates in the 
[ABC] group of companies, such as our [credit card, insurance 
brokerage, and securities brokerage] affiliates, from marketing 
their products or services to you based on your personal information 
that we share with them. This information includes your [income], 
your [account history with us], and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-4--Model Form for Renewal Notice (Joint Notice)--[Renewing Your 
Choice To Limit Marketing]/[Renewing Your Marketing Opt-out]

     The [ABC group of companies] is providing this notice.
     [Optional: Federal law gives you the right to limit 
some but not all marketing from the [ABC] companies. Federal law 
also requires us to give you this notice to tell you about your 
choice to limit marketing from the [ABC] companies.]
     You previously chose to limit the [ABC] companies, such 
as the [ABC credit card, insurance brokerage, and securities

[[Page 62990]]

brokerage] affiliates, from marketing their products or services to 
you based on your personal information that they receive from other 
ABC companies. This information includes your [income], your 
[account history], and your [credit score].
     Your choice has expired or is about to expire.
    To renew your choice to limit marketing for [x] more years, 
contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Renew my choice to limit marketing for [x] more years.

C-5--Model Form for Voluntary ``No Marketing'' Notice--Your Choice 
To Stop Marketing

     [Name of Affiliate] is providing this notice.
     You may choose to stop all marketing from us and our 
affiliates.
    To stop all marketing, contact us [include all that apply]:
     By telephone: 1-877--

     On the Web: www.---.com
     By mail: Check the box and complete the form below, and 
send the form to:

[Company name]
[Company address]

    --Do not market to me.

    Dated: October 12, 2007.
John C. Dugan,
Comptroller of the Currency.
    By order of the Board of Governors of the Federal Reserve 
System, October 23, 2007.
Jennifer J. Johnson,
Secretary of the Board.
    By order of the Board of Directors,
    Dated at Washington, DC., this 16th day of October, 2007.
FEDERAL DEPOSIT INSURANCE CORPORATION
Robert E. Feldman,
Executive Secretary.
    Dated: September 27, 2007.
    By the Office of Thrift Supervision,
John M. Reich,
Director.
    By order of the National Credit Union Administration Board, 
October 15, 2007.
Mary F. Rupp,
Secretary of the Board.
[FR Doc. 07-5349 Filed 11-6-07; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 6714-01-P; 6720-01-P; 7535-01-P