[Federal Register Volume 75, Number 166 (Friday, August 27, 2010)]
[Proposed Rules]
[Pages 52655-52671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21202]


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FEDERAL TRADE COMMISSION

16 CFR Part 698

RIN 3084-AA94


Summary of Rights and Notices of Duties Under the Fair Credit 
Reporting Act

AGENCY: Federal Trade Commission

ACTION: Proposed rule; request for comment.

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SUMMARY: Pursuant to its responsibilities under the Fair Credit 
Reporting Act, the Federal Trade Commission (Commission or FTC) is 
publishing for public comment revised versions of three documents: a 
summary of consumer rights, a notice of responsibilities for persons 
that furnish information to consumer reporting agencies, and a notice 
of responsibilities for persons that obtain consumer reports from 
consumer reporting agencies. The Commission is proposing the current 
revisions to incorporate changes in rights and obligations created by 
several new rules issued pursuant to the Fair and Accurate Credit 
Transactions Act of 2003. The Commission is also proposing revisions to 
improve the clarity and usefulness of the documents for consumers, 
furnishers, and users.

DATES: Comments must be received on or before September 21, 2010.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form by following the instructions in the 
SUPPLEMENTARY INFORMATION section below. Comments in electronic form 
should be submitted by using the following weblink: (https://ftcpublic.commentworks.com/ftc/fcrarevisednotices) (and following the 
instructions on the web-based form). Comments filed in paper form 
should be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex M), 600 
Pennsylvania Avenue, NW, Washington, D.C. 20580, in the manner detailed 
in the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT: Pavneet Singh, Attorney, Division of 
Privacy and Identity Protection, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580, 
(202) 326-2252.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 609(c) of the Fair Credit Reporting Act (FCRA), 
consumer reporting agencies (CRAs) are required to include a summary of 
consumer rights with every consumer report they provide to 
consumers.\1\ The Commission is required to provide a model summary of 
rights (Summary of Rights) to be used for this purpose. In addition, 
section 607(d)(2) of the FCRA requires the Commission to prescribe the 
content of notices that CRAs must provide to those who furnish 
information to them (Furnisher Notice) and to those who obtain consumer 
reports from them (User Notice).\2\
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    \1\ 15 U.S.C. 1681g(c). Under section 609(a) of the FCRA, 15 
U.S.C. 1681g(a), CRAs are required to disclose to consumers the 
information in their files upon request. CRAs generally refer to 
these disclosures as ``file disclosures'' and provide them in a 
different format than the consumer reports they provide to third 
parties. For purposes of this notice, the term ``consumer report'' 
includes a ``file disclosure'' from a CRA to a consumer.
    \2\ 15 U.S.C. 1681e(d).
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    The Commission originally issued these three documents in 1997.\3\ 
It issued revised versions in 2004\4\ to reflect changes made to the 
FCRA by the Fair and Accurate Credit Transactions Act of 2003 (FACT 
Act).\5\ Since then, the Commission and other financial regulators have 
finalized new rules under the FACT Act. The Commission is now proposing 
a newly revised Summary of Rights, User Notice, and

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Furnisher Notice to reflect these new rules, as explained further 
below.\6\ The proposed revised versions are also intended to improve 
the clarity and usefulness of the documents for consumers, furnishers, 
and users. For comparison, the 2004 versions of these notices can be 
found at (www.ftc.gov/opa/2004/11/facta.shtm).
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    \3\ 62 FR 35586 (1997).
    \4\ 69 FR 69776 (2004).
    \5\ Pub. L. 108-159, 117 Stat. 1952 (2003).
    \6\ At this time, the Commission is not issuing a revised 
version of the identity theft rights summary required by section 
609(d) of the FCRA. The Commission is currently undertaking a survey 
of identity theft victims who contacted the FTC and expects that 
when completed, the results of that survey may influence any future 
revisions of the identity theft rights summary. See 73 FR 37457 
(2009).
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II. Summary of the Proposed Revised Notices

A. Summary of Rights (Appendix F to 16 CFR 698)

    Section 609(c) of the FCRA requires the Commission to issue a model 
Summary of Rights, which must include an explanation of (1) the 
consumer's right to obtain his or her consumer report; (2) the 
frequency and circumstances under which a consumer may receive free 
consumer reports under the FCRA; (3) the right of a consumer to dispute 
incorrect or outdated information in his or her consumer report; and 
(4) the right of a consumer to obtain a credit score.\7\
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    \7\ Section 609(c) also requires that CRAs notify consumers that 
they may have additional rights under state law and that the FCRA 
does not require accurate, current derogatory information to be 
removed from consumers' files. Thus, the Commission has also 
included this information in its Summary of Rights.
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    With respect to a consumer's right to dispute information in his or 
her consumer report, on July 1, 2009, the Commission and other federal 
regulatory agencies issued the Furnisher Direct Dispute Rule, which 
took effect on July 1, 2010. Prior to the effective date of this Rule, 
under the FCRA, consumers had a right to dispute the accuracy of 
information in their consumer reports only by filing a dispute with a 
CRA. Under the Furnisher Direct Dispute Rule, consumers may dispute the 
accuracy of information in their consumer report directly with the 
furnisher of that information as well as the CRA. The proposed revised 
Summary of Rights reflects this additional dispute right. Because it is 
difficult to inform consumers fully of their dispute rights in a 
summary fashion, the proposed revised Summary of Rights also directs 
consumers to the Commission's website for more information about 
disputing consumer report errors.\8\
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    \8\ The Commission is concurrently updating its consumer 
education materials on disputing errors in credit reports to reflect 
consumers' new right to dispute inaccurate information directly with 
furnishers.
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    In addition, the proposed revised Summary of Rights reflects 
changes to improve the clarity and readability of the document. The 
changes include reordering some of the information provided, as well as 
making formatting changes and minor wording changes to certain 
sections.
    Finally, in order to keep the Summary of Rights sufficiently brief 
and to improve its readability, the proposed revised Summary of Rights 
deletes certain information that the Commission is not required to 
include. The current Summary of Rights incorporates a list of Federal 
agencies responsible for enforcing the FCRA, which the CRAs are also 
required to provide to consumers with their consumer reports. However, 
the FCRA does not require this list to be included in the Summary of 
Rights. Accordingly, the Commission proposes not to include this 
information in the proposed revised Summary of Rights. Instead, the 
Commission proposes to make available on its website a separate 
document that lists the Federal agencies responsible for enforcing the 
FCRA, along with their addresses, phone numbers, and website addresses, 
which can be updated more easily. CRAs may use this document to satisfy 
their obligation to provide consumers a list of Federal agencies 
responsible for enforcing the FCRA.

B. Furnisher Notice (Appendix G to 16 CFR 698)

    The proposed revised Furnisher Notice reflects the new duties of 
furnishers set forth in the Furnisher Direct Dispute Rule described 
above. It also reflects new duties contained in the Furnisher Accuracy 
Rule, which became effective on July 1, 2010. The Rule requires 
furnishers to establish policies and procedures to ensure the accuracy 
and integrity of the consumer report information they furnish to CRAs, 
and to consider the guidelines prescribed by the agencies in 
establishing these policies and procedures. In addition, the proposed 
revised Furnisher Notice also includes revisions to improve the clarity 
and readability of the document.\9\
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    \9\ These revisions include deleting citation references to the 
relevant sections of the FCRA from the text of the Notice and 
placing them in endnotes to make the document easier to read.
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C. User Notice (Appendix H to 16 CFR 698)

    The proposed revised User Notice reflects the new duties of users 
set forth in several of the rules finalized pursuant to the FACT Act. 
First, effective January 1, 2011, the Risk-Based Pricing Rule will 
require users of consumer reports to provide risk-based pricing notices 
in certain circumstances if they extend credit to a particular consumer 
on less favorable terms than those they offer to others. As an 
alternative to providing risk-based pricing notices, the Rule permits 
such users to provide consumers who apply for credit with a free credit 
score and information about their credit score. Second, if a CRA 
notifies a user of consumer reports that the address the user provided 
about a consumer is different from the address in the consumer report, 
the Address Discrepancy Rule, which became effective on January 1, 
2008, requires the user to implement reasonable procedures to verify 
that the consumer report relates to the correct consumer. Users of 
consumer reports that verify the address is accurate, and that 
regularly furnish information to the CRA, have additional 
responsibilities under the Rule. Finally, the Medical Information 
Rules, which became effective on April 1, 2006, prescribe the 
circumstances under which creditors may obtain, use, and share medical 
information. The proposed revised User Notice has been revised to 
reflect all of these obligations, as well as to improve the clarity and 
readability of the document.\10\
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    \10\ As with the Furnisher Notice, these revisions include 
deleting citation references to the relevant sections of the FCRA 
from the text of the User Notice and placing them in endnotes.
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III. Request for Comments

    The Commission invites comment on all aspects of the proposed 
revised Summary of Rights, Furnisher Notice, and User Notice. The 
Commission also invites comment from all interested parties on the 
following issues:

Summary of Rights (Appendix F)

     Has the existing Summary of Rights been effective in 
informing consumers about their rights under the FCRA?
     Has the Commission included all of the rights that should 
be included in the model summary?
     Has the Commission clearly and sufficiently described a 
consumer's ability to dispute inaccurate consumer report information 
with both the furnisher of the information and with the CRA? Is it 
useful to provide a reference to the FTC's website for additional 
information about disputing such errors?
     Is it appropriate to provide information about the Federal 
agencies responsible for enforcing the FCRA and the contact information 
for these agencies in a separate document, which

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will be made available on the FTC's website?
     Are there areas where the understandability of the 
proposed revised Summary of Rights could be improved? Are there any 
sections for which the language does not accurately convey the 
substance of the provision? If so, how could such sections be improved?
     The proposed revised Summary of Rights uses the term 
``credit report'' to describe a consumer report under the FCRA because 
the Commission believes it is the term with which consumers are most 
familiar. However, as explained in the proposed revised Summary of 
Rights, consumers may obtain reports that contain non-credit 
information, such as rental or medical history information. Should an 
additional or alternate term be used to describe these types of 
reports? Would it be more effective and is it feasible to create a 
separate model Summary of Rights to send to consumers who request 
reports that contain non-credit information?

Furnisher Notice (Appendix G)

     Is the proposed revised Furnisher Notice accurate and easy 
to understand? In what ways could it be improved?
     The Commission expects that the Furnisher Notice will be 
sent to a wide range of entities with varying degrees of legal 
sophistication. Are the duties set forth in the proposed notice clear 
and understandable? Could the description of the duties be improved?
     Does the deletion of the citations to the relevant 
sections of the FCRA from the text to the endnotes improve the 
readability of the document? Or are the citations necessary for 
furnishers to locate and understand their statutory obligations?

User Notice (Appendix H)

     The proposed revised User Notice discusses the principal 
portions of the FCRA that impose obligations upon those who receive 
consumer reports. Should additional information be included in the 
notice?
     The Commission expects that the User Notice will be sent 
to a wide range of users with varying degrees of legal sophistication. 
Are the duties set forth in the proposed notice clear and easy to 
understand? Could the description of the duties be improved?
     Does the deletion of the citations to the relevant 
sections of the FCRA from the text to the endnotes improve the 
readability of the document? Or are the citations necessary for users 
to locate and understand their statutory obligations?
    Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``FACTA 
Notices, Project No. P105408,'' to facilitate the organization of 
comments. Please note that your comment - including your name and your 
state - will be placed on the public record of this proceeding, 
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as any individual's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include ``trade secret or any commercial 
or financial information which is obtained from any person and which is 
privileged or confidential'' as provided in Section 6(f) of the Federal 
Trade Commission Act (``FTC Act''), 15 U.S.C. 46(f), and FTC Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for which 
confidential treatment is requested must be filed in paper form, must 
be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c).\11\
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    \11\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted using the following weblink: (https://ftcpublic.commentworks.com/ftc/fcrarevisednotices) (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink (https://ftcpublic.commentworks.com/ftc/fcrarevisednotices). If this Notice appears at (http://www.regulations.gov/search/Regs/home.html#home), you may also file an 
electronic comment through that website. The Commission will consider 
all comments that regulations.gov forwards to it. You may also visit 
the FTC Website at (http://www.ftc.gov) to read the Notice and the news 
release describing it.
    A comment filed in paper form should include the ``FACTA Notices, 
Project No. P105408'' reference both in the text and on the envelope, 
and should be mailed or delivered to the following address: Federal 
Trade Commission, Office of the Secretary, Room H-135 (Annex M), 600 
Pennsylvania Avenue, NW, Washington, D.C. 20580. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions.
    The FTC Act and other laws that the Commission administers permit 
the collection of public comments to consider and use in this 
proceeding as appropriate. The Commission will consider all timely and 
responsive public comments that it receives, whether filed in paper or 
electronic form. Comments received will be available to the public on 
the FTC website, to the extent practicable, at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of discretion, the FTC makes every 
effort to remove home contact information for individuals from the 
public comments it receives before placing those comments on the FTC 
website. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at (http://www.ftc.gov/ftc/privacy.htm).

IV. Communications by Outside Parties to the Commissioners or Their 
Advisors

    Written communications and summaries or transcripts of oral 
communications respecting the merits of this proceeding from any 
outside party to any Commissioner or Commissioner's advisor will be 
placed on the public record.\12\
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    \12\ See 16 CFR 1.26(b)(5).
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V. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501-3521, the Commission reviewed the summary of rights and the 
furnisher and user notices for compliance with the PRA when it issued 
them in 1997 and when it revised them in 2004. At both times, the 
Commission concluded that the summary and notices consisted of 
information that is supplied by the Federal government. Accordingly, 
the Commission determined that these notices do not constitute a 
``collection of information'' as this term is defined in the 
regulations implementing the PRA,

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nor do the financial resources expended in relation to the distribution 
of these documents constitute a paperwork burden. See 5 CFR 
1320.3(c)(2). The Commission has reviewed the proposed changes to the 
current summary and notices. The Commission has concluded, consistent 
with its analyses in 1997 and 2004, that the proposed summary and 
notices do not fall within the definition of ``collection of 
information'' covered by the PRA because they are ``[t]he public 
disclosure of information originally supplied by the Federal government 
to the recipient for the purpose of disclosure to the public * * *.'' 5 
CFR 1320.3(c)(2).

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601--612, requires 
that the Commission provide an Initial Regulatory Flexibility Analysis 
(IRFA) with any action that may constitute a rule unless the Commission 
certifies that the action will not have a significant economic impact 
on a substantial number of small entities. See 5 U.S.C. 603--605. The 
Commission concludes that the proposed revised Summary of Rights, 
Furnisher Notice, and User Notice will not have a significant economic 
impact on a substantial number of small entities, as discussed below. 
Accordingly, this document serves as notice to the Small Business 
Administration of the agency's certification of no effect. To ensure 
the accuracy of this certification, however, the Commission requests 
comment on whether the proposed revised summary or notices will have a 
significant impact on a substantial number of small entities, including 
specific information on the number of entities that will be covered by 
the proposed rules, the number of these entities that are small, and 
the average annual burden for each entity. To assist commenters, the 
Commission has prepared the following analysis:

A. Description of the Reasons That Action by the Agency Is Being Taken

    The agency has undertaken this proceeding to implement provisions 
of the FCRA. Specifically, section 609(c) of the FCRA requires the 
Commission to prepare the Summary of Rights for consumers and section 
607(d) requires the Commission to issue the Furnisher Notice and User 
Notice. All of these documents will be distributed by CRAs.

B. The Proposal's Objectives and Legal Basis

    The objective of the Commission's action is the issuance of a 
proposed revised Summary of Rights, Furnisher Notice, and User Notice 
to educate consumers, furnishers of information to CRAs, and users of 
information from CRAs as to their rights or duties under the FCRA. As 
noted earlier, the legal bases for the proposed summary and notices are 
sections 609(c) and 607(d) of the FCRA, respectively.

C. Small Entities to Which the Proposed Rule Will Apply

    The proposed revised Summary of Rights, Furnisher Notice, and User 
Notice are to be distributed by CRAs. The consumer reporting industry 
is composed primarily of ``nationwide'' CRAs and ``nationwide 
specialty'' CRAs, as defined in FCRA sections 603(p) and 603(w), 
respectively. The Commission believes that the nationwide and 
nationwide specialty CRAs will be responsible for much of the 
distribution of the summary and notices. The Commission believes that 
none of the nationwide CRAs is a ``small'' entity.\13\ There are, 
however, small CRAs associated with the nationwide CRAs, and there are 
small, independent CRAs. Based on the membership of the major CRA trade 
associations, the Commission believes that the total universe of 
entities potentially covered by the requirement to distribute the 
summary and notices is between 600 and 1000. The Commission does not 
know how many of these entities are ``small.'' The Commission invites 
comments on the number of ``small'' entities that will be affected by 
its proposal.
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    \13\ CRAs subject to the Commission's jurisdiction with annual 
receipts of $7 million or less are considered small businesses. A 
list of the SBA's size standards for all industries can be found at 
(http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf) (last visited June 25, 2010).
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D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The proposed rule would impose no specific reporting or 
recordkeeping requirements. CRAs will be required, however, to 
distribute the prescribed summary and notices. The Summary of Rights 
will be distributed with each consumer report provided to consumers by 
CRAs, and will be distributed to large numbers of consumers each year. 
The CRAs will need to distribute the revised Furnisher Notice and User 
Notice on a one-time basis to all of the entities that furnish 
information to a CRA or use information obtained from a CRA, even if 
they were previously sent a prior version of the notices. However, the 
Commission does not believe that this requirement will increase in any 
significant way the burdens already imposed by the FCRA on CRAs. 
Because the Commission is providing the language for the summary and 
notices, businesses need not incur legal or other professional costs to 
develop any new written material. The cost of training employees, if 
any, should be minimal. Moreover, when the Furnisher Notice and User 
Notice are distributed electronically, the Commission believes the 
distribution costs will be negligible.

E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other federal statutes, 
rules, or policies that would duplicate, overlap, or conflict with the 
proposed summary or notices. The Commission invites comment and 
information on this issue.

F. Significant Alternatives to the Proposed Rule

    In some situations, the Commission has considered adopting a 
delayed effective date for small entities subject to new regulation in 
order to provide them with additional time to come into compliance. In 
this case, however, the Commission proposes not to delay the effective 
date because small entities will be given the texts of the proposed 
summary and notices to be distributed and will not incur additional 
costs in developing them.
    The Commission seeks comment and information with regard to (1) the 
existence of small business entities for which distribution of the 
required Summary of Rights, Furnisher Notices, and User Notices would 
have a significant economic impact; and (2) suggested alternative 
methods of compliance that, consistent with the statutory requirements, 
would reduce the economic impact of the requirements of this proceeding 
on these entities. If the comments filed in response to this notice 
identify small entities that are significantly affected, as well as 
alternative methods of compliance that would reduce the economic impact 
on such entities, the Commission will consider the feasibility of such 
alternatives.

List of Subjects in 16 CFR Part 698

    Fair Credit Reporting Act, Consumer reports, Consumer reporting 
agencies, Credit, Trade practices.
    Accordingly, pursuant to 15 U.S.C. 1681e and 1681g, the Federal 
Trade Commission hereby proposes to amend Part 698, chapter 1, title 
16, Code of Federal Regulations, as follows:
    1. The authority citation for this part continues to read as 
follows:

    Authority: 15 U.S.C. 1681e, 1681g, 1681s, and 1681j; 117 Stat. 
1952; Pub. L. 108-159,

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sections 151, 153, 211(c) and (d), 213, and 311.
    2. Revise Appendices F through H to read as follows:

APPENDIX F TO PART 698-GENERAL SUMMARY OF CONSUMER RIGHTS

    The prescribed form for this summary is a disclosure that is 
substantially similar to the Commission's model summary with all 
information clearly and prominently displayed. A separate list of 
federal regulators is available at the Commission's website at 
(www.ftc.gov/credit). A summary should accurately reflect changes to 
those items that may change over time (e.g., dollar amounts or 
telephone numbers) to remain in compliance. Translations of this 
summary will be in compliance with the Commission's model, provided 
that the translation is accurate and that it is provided in a 
language used by the recipient consumer.
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APPENDIX G TO PART 698-NOTICE OF FURNISHER RESPONSIBILITIES

    The prescribed form for this disclosure is a separate document 
that is substantially similar to the Commission's model notice with 
all information clearly and prominently displayed. Consumer 
reporting agencies may limit the disclosure to only those items that 
they know are relevant to the furnisher that will receive the 
notice.
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APPENDIX H TO PART 698-NOTICE OF USER RESPONSIBILITIES

    The prescribed form for this disclosure is a separate document 
that is substantially similar to the Commission's notice with all 
information clearly and prominently displayed. Consumer reporting 
agencies may limit the disclosure to only those items that they know 
are relevant to the user that will receive the notice.
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    By direction of the Commission.

Donald S. Clark,
Secretary

[FR Doc. 2010-21202 Filed 8-26-10; 7:35 am]
BILLING CODE 6750-01-C