[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Proposed Rules]
[Pages 59226-59234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19176]


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FEDERAL TRADE COMMISSION

16 CFR Parts 642 and 698

RIN 3084-AB63


Prescreen Opt-Out Notice Rule

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking; request for public comment.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
requests public comment on its Prescreen Opt-Out Notice Rule as part of 
the FTC's systematic review of all current Commission regulations and 
guides. In addition, the FTC is proposing to amend the Rule to 
correspond to changes made to the Fair Credit Reporting Act (``FCRA'') 
by the Dodd-Frank Act and to reinstate a model prescreen opt-out 
notice.

DATES: Written comments must be received on or before December 7, 2020.

ADDRESSES: Interested parties may file a comment online or on paper by 
following the Request for Comment part of the SUPPLEMENTARY INFORMATION 
section below. Write ``Prescreen Opt-Out Notice Rule, 16 CFR part 642, 
Project No. P205408'' on your comment and file your comment online at 
https://www.regulations.gov by following the instructions on the web-
based form. If you prefer to file your comment on paper, mail your 
comment to the following address: Federal Trade Commission, Office of 
the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 
20024.

FOR FURTHER INFORMATION CONTACT: David Lincicum (202-326-2773), 
Division of Privacy and Identity Protection, Bureau of Consumer 
Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Prescreen Opt-Out Notice Rule

    Section 615(d) of the FCRA \1\ requires that any person who uses a 
consumer report in order to make an unsolicited firm offer of credit or 
insurance to the consumer (``prescreened offer'' or ``prescreened 
solicitation'') shall provide with each written solicitation a clear 
and conspicuous statement that: (A) Information contained in the 
consumer's consumer report was used in connection with the transaction; 
(B) the consumer received the offer of credit or insurance because the 
consumer satisfied the criteria for credit worthiness or insurability 
under which the consumer was selected for the offer; (C) if applicable, 
the credit or insurance may not be extended if, after the consumer 
responds to the offer, the consumer does not meet the criteria used to 
select the consumer for the offer or any applicable criteria bearing on 
credit worthiness or insurability or does not furnish any required 
collateral; (D) the consumer has a right to prohibit information 
contained in the consumer's file with any consumer reporting agency 
from being used in connection with any credit or insurance transaction 
that is not initiated by the consumer; and (E) the consumer may 
exercise the opt-out right by notifying a notification system 
established under section 604(e) of the FCRA.
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    \1\ 15 U.S.C. 1681m(d).
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    The Fair and Accurate Credit Transactions Act of 2003 (``FACT 
Act'') was signed into law on December 4, 2003. Public Law 108-159, 117 
Stat. 1952. Section 213(a) of the FACT Act amended FCRA section 615(d) 
to require that the statement mandated by section 615(d) ``be presented 
in such format and in such type size and manner as to be simple and 
easy to understand, as established by the Commission, by rule, in 
consultation with the Federal banking agencies and the National Credit 
Union Administration.'' On August 1, 2005, the FTC issued its Prescreen 
Opt-Out Notice Rule.\2\
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    \2\ 70 FR 5021 (Aug. 1, 2005).
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B. Dodd-Frank Act

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'') was signed into law in 2010.\3\ The Dodd-Frank Act 
substantially changed the federal legal framework for financial 
services providers. Among the changes, the Dodd-Frank Act transferred 
to the Consumer Financial Protection Bureau (``CFPB'') the Commission's 
rulemaking authority under portions of the FCRA.\4\ Accordingly, in 
2012, the Commission rescinded several of its FCRA rules, which had 
been replaced by rules issued by the CFPB.\5\ The FTC retained 
rulemaking authority for other rules to the extent the rules apply to 
motor vehicle dealers described in section 1029(a) of the Dodd-Frank 
Act \6\ that are predominantly engaged in the sale and servicing of 
motor vehicles, the leasing and servicing of motor vehicles, or both 
(``motor vehicle dealers'').\7\ The retained rules include the 
Prescreen Opt-Out Notice Rule, which now applies only to motor vehicle 
dealers.\8\ Consumer report users originally covered by the Prescreen 
Opt-Out Notice Rule that are not motor vehicle dealers are now covered 
by the CFPB's rule.\9\
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    \3\ Public Law 111-203 (2010).
    \4\ 15 U.S.C. 1681 et seq. The Dodd-Frank Act does not transfer 
to the CFPB rulemaking authority for section 615(e) of the FCRA 
(``Red Flag Guidelines and Regulations Required'') and section 628 
of the FCRA (``Disposal of Records''). See 15 U.S.C. 1681s(e).
    \5\ 77 FR 22200 (April 13, 2012); 12 U.S.C. 5519.
    \6\ 15 U.S.C. 5519.
    \7\ 77 FR 22200 (April 13, 2012).
    \8\ Id.
    \9\ 12 CFR 1022.54.
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    On May 22, 2019, the FTC rescinded several FCRA model notices and 
forms

[[Page 59227]]

that were no longer necessary because of the Dodd-Frank Act's change to 
its rulemaking authority.\10\ The prescreen opt-out model notice was 
included in this rescission.
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    \10\ 84 FR 23471 (May 22, 2019).
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II. Technical Changes To Correspond to Statutory Changes Resulting From 
the Dodd-Frank Act

    The Commission promulgated the Prescreen Opt-Out Notice Rule at a 
time when it had rulemaking authority for a broader group of consumer 
report users. While the Dodd-Frank Act did not change the Commission's 
enforcement authority for the Prescreen Opt-Out Notice Rule, it did 
narrow the Commission's rulemaking authority with respect to the Rule. 
It now covers only motor vehicle dealers.\11\ The amendments in the 
Dodd-Frank Act necessitate technical revisions to the Prescreen Opt-Out 
Notice Rule to ensure that the regulation is consistent with the text 
of the amended FCRA. Accordingly, the Commission proposes to modify the 
Prescreen Opt-Out Notice Rule to reflect the Rule's actual scope.
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    \11\ 15 U.S.C. 1681s(e)(1); 12 U.S.C. 5519.
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    The proposed amendment to Sec.  642.1 narrows the scope of the 
Prescreen Opt-Out Notice Rule to those entities set forth in the Dodd-
Frank Act that are predominantly engaged in the sale and servicing of 
motor vehicles, excluding those dealers that directly extend credit to 
consumers and do not routinely assign the extensions of credit to an 
unaffiliated third party.\12\ It does so by replacing the general term 
``person'' with the term ``motor vehicle dealers,'' as defined in 
amended Sec.  642.2.
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    \12\ 12 U.S.C. 5519.
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    The proposed amendment to Sec.  642.2 adds a definition of ``motor 
vehicle dealer'' that defines motor vehicle dealers as entities 
excluded from CFPB jurisdiction as described in the Dodd-Frank Act.\13\
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    \13\ Id.
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    The proposed amendment also reinstates the model prescreen opt-out 
notice as Appendix C to Part 698. The model form is unchanged from the 
previous model notice and is identical to the CFPB's model notice.\14\ 
The proposed amendment also revises Sec.  698.2 to include Appendix C 
in the list of model notices.
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    \14\ 12 CFR part 1022, App. D. In rescinding this and other 
model notices in light of changes to regulatory authority under the 
Dodd-Frank Act, see 84 FR 23471, the Commission noted that covered 
entities should look to the corresponding forms issued by the CFPB 
to obtain the appropriate model forms and disclosures. Although 
motor vehicle dealers can use the CFPB's existing form, in 
conjunction with revising the scope of the Prescreen Opt-Out Notice 
Rule the Commission is reinstating a model form for the Rule in case 
the CFPB were to revise its corresponding rule, and the 
corresponding model, in the future.
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    The amendments make no substantive changes to the Rule.

III. Regulatory Review of the Prescreen Opt-Out Notice Rule

    In addition to proposing the changes described above, the 
Commission seeks information about the costs and benefits of the Rule, 
and its regulatory and economic impact. It has been fifteen years since 
the Rule was enacted. Consistent with its practice of reviewing all of 
its rules and guides periodically, the Commission seeks to ascertain 
whether changes in technology, business models, or the law warrant 
modification or rescission of the Rule. As part of this review the 
Commission solicits comments on, among other things, the economic 
impact and benefits of the Prescreen Opt-Out Notice Rule; possible 
conflict between the Prescreen Opt-Out Notice Rule and state, local, or 
other federal laws or regulations; and the effect on the Prescreen Opt-
Out Notice Rule of any technological, economic, or other industry 
changes.

Issues for Comment

    The Commission requests written comment on any or all of the 
following questions. These questions are designed to assist the public 
and should not be construed as a limitation on the issues about which 
public comments may be submitted. The Commission requests that 
responses to its questions be as specific as possible, including a 
reference to the question being answered, and refer to empirical data 
or other evidence upon which the comment is based whenever available 
and appropriate.
    1. Is there a continuing need for specific provisions of the 
Prescreen Opt-Out Notice Rule? Why or why not?
    2. What benefits has the Prescreen Opt-Out Notice Rule provided to 
consumers? What evidence supports the asserted benefits?
    3. What modifications, if any, should be made to the Prescreen Opt-
Out Notice Rule to increase the benefits to consumers?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs imposed by the 
Prescreen Opt-Out Notice Rule?
    4. What significant costs, if any, has the Prescreen Opt-Out Notice 
Rule imposed on consumers? What evidence supports the asserted costs?
    5. What modifications, if any, should be made to the Prescreen Opt-
Out Notice Rule to reduce any costs imposed on consumers?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Prescreen Opt-Out Notice Rule?
    6. What benefits, if any, has the Prescreen Opt-Out Notice Rule 
provided to businesses, including small businesses? What evidence 
supports the asserted benefits?
    7. What modifications, if any, should be made to the Prescreen Opt-
Out Notice Rule to increase its benefits to businesses, including small 
businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs the Prescreen 
Opt-Out Notice Rule imposes on businesses, including small businesses?
    c. How would these modifications affect the benefits to consumers?
    8. What significant costs, if any, including costs of compliance, 
has the Prescreen Opt-Out Notice Rule imposed on businesses, including 
small businesses? What evidence supports the asserted costs?
    9. What modifications, if any, should be made to the Prescreen Opt-
Out Notice Rule to reduce the costs imposed on businesses, including 
small businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Prescreen Opt-Out Notice Rule?
    10. What evidence is available concerning the degree of industry 
compliance with the Prescreen Opt-Out Notice Rule?
    11. What modification, if any, should be made to the Prescreen Opt-
Out Notice Rule to account for changes in relevant technology or 
economic conditions? What evidence supports the proposed modifications?
    12. Does the Prescreen Opt-Out Notice Rule overlap or conflict with 
other federal, state, or local laws or regulations? If so, how?
    a. What evidence supports the asserted conflicts?
    b. With reference to the asserted conflicts, should the Prescreen 
Opt-Out Notice Rule be modified? If so, why, and how? If not, why not?
    13. The Commission proposes to amend the Rule to reflect that the 
Commission's rulemaking authority has been revised by statute to apply 
exclusively to motor vehicle dealers. Are the proposed modifications 
appropriate? Should additional amendments be made? Would these 
amendments create conflicts with any

[[Page 59228]]

other federal, state, or local regulations or laws?
    14. The Commission proposes to provide a model prescreen opt-out 
notice that motor vehicle dealers may use. Should the model be 
modified?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Prescreen Opt-Out Notice Rule?

IV. Request for Comment

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 7, 
2020. Write ``Prescreen Opt-Out Notice Rule, 16 CFR part 642, Project 
No. P205408'' on the comment. Your comment, including your name and 
your state, will be placed on the public record of this proceeding, 
including the https://www.regulations.gov website.
    Because of the public health emergency in response to the COVID-19 
outbreak and the agency's heightened security screening, postal mail 
addressed to the Commission will be subject to delay. We strongly 
encourage you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your 
online comment, please follow the instructions on the web-based form.
    If you file your comment on paper, write ``Prescreen Opt-Out Notice 
Rule, 16 CFR part 642, Project No. P205408'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex B), Washington, DC 20580; or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
B), Washington, DC 20024. If possible, please submit your paper comment 
to the Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible 
website, https://www.regulations.gov, you are solely responsible for 
making sure your comment does not include any sensitive or confidential 
information. In particular, your comment should not include sensitive 
personal information, such as your or anyone else'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. You are also 
solely responsible for making sure your comment does not include 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential,'' as provided by 
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2), including in particular, competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material 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). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. Your comment will be kept confidential only if the 
FTC General Counsel grants your request in accordance with the law and 
the public interest. Once your comment has been posted on https://www.regulations.gov, we cannot redact or remove your comment from that 
website unless you submit a confidentiality request that meets the 
requirements for such treatment under FTC Rule 4.9(c), and the General 
Counsel grants that request.
    Visit the Commission website at https://www.ftc.gov to read this 
document and the news release describing it. 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 on or before December 7, 2020. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

V. 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.\15\
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    \15\ 16 CFR 1.26(b)(5).
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VI. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA),\16\ federal 
agencies are generally required to seek Office of Management and Budget 
(``OMB'') approval for information collection requirements prior to 
implementation. Under the PRA, the FTC may not conduct or sponsor an 
information collection--and, notwithstanding any other provision of 
law, a person is not required to respond to one--unless the information 
collection displays a valid control number assigned by OMB.
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    \16\ 44 U.S.C. 3501 et seq.
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    This proposal would amend 16 CFR part 642. The Rule does not 
contain information collection requirements as defined by the PRA. The 
rule requires certain motor vehicle dealers using consumer reports to 
provide consumers with opt-out notices, and the proposed amendments 
include a model notice motor vehicle dealers may use. Public disclosure 
of information originally supplied by the federal government for the 
purpose of disclosure to the public is not included within the 
definition of the collection of information.\17\ Therefore, the 
Commission does not believe the proposed amendments would add any 
``collections of information'' as defined by the PRA.
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    \17\ See 5 CFR 1320.3(c)(2).
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VII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, requires an 
agency to either provide an Initial Regulatory Flexibility Analysis 
(``IRFA'') with a proposed rule, or certify that the proposed rule will 
not have a significant impact on a substantial number of small 
entities.\18\ The Commission does not expect that the proposed changes 
to this Rule, if adopted, would have the threshold impact on small 
entities. The Commission does not expect the proposal to impose costs 
on small motor vehicle dealers because the amendments are primarily for 
clarification purposes and should not result in any increased burden on 
any motor vehicle dealer. Thus, a small entity that complies with 
current law need not take any different or additional action if the 
proposal is adopted.
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    \18\ 5 U.S.C. 603-605.
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    Therefore, based on available information, the Commission certifies 
that amending the Address Discrepancy Rule as proposed will not have a 
significant economic impact on a substantial number of small 
businesses. Although the Commission certifies under the RFA that the 
proposed

[[Page 59229]]

amendment would not, if promulgated, have a significant impact on a 
substantial number of small entities, the Commission has determined, 
nonetheless, that it is appropriate to publish an IRFA to inquire into 
the impact of the proposed amendment on small entities. Therefore, the 
Commission has prepared the following analysis:

A. Description of Reasons for the Proposed Rule

    To address the Dodd-Frank Act's changes to the Commission's 
rulemaking authority, the Commission proposes to clarify that the Rule 
applies only to motor vehicle dealers and to reinstate a model form.

B. Succinct Statement of the Objectives, and Legal Basis For, the 
Proposed Rule

    The objectives of the proposed Rule are discussed above. The legal 
basis for the proposed Rule is 15 U.S.C. 1681m(d).

C. Description of Small Entities to Which the Proposed Rule Will Apply

    Determining a precise estimate of the number of small entities \19\ 
is not readily feasible. Financial institutions covered by the Rule 
include certain motor vehicle dealers. A substantial number of these 
entities likely qualify as small businesses. The Commission estimates 
that the proposed amendment will not have a significant impact on small 
businesses because it imposes no new obligations.
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    \19\ The U.S. Small Business Administration Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes (NAICS) are generally expressed in 
either millions of dollars or number of employees. A size standard 
is the largest that a business can be and still qualify as a small 
business for Federal Government programs. For the most part, size 
standards are the annual receipts or the average employment of a 
firm. New car dealers (NAICS code 441100) are classified as small if 
they have fewer than 200 employees. Used car dealers (NAICS code 
441120) are classified as small if their annual receipts are $27 
million or less. Recreational vehicle dealers, boat dealers, 
motorcycle, ATV and all other motor vehicle dealers (NAICS codes 
441210, 441222 and 441228) are classified as small if their annual 
receipts are $35 million or less. The 2019 Table of Small Business 
Size Standards is available at https://www.sba.gov/document/support-table-size-standards.
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D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements, Including Classes of Covered Small Entities and 
Professional Skills Needed To Comply

    The proposed amendments would impose no new reporting, 
recordkeeping, or other compliance requirements. The small entities 
potentially covered by the proposed amendment will include all such 
entities subject to the Rule.

E. Identification of 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 amendment. Nonetheless, the Commission requests comment on the 
extent to which other federal standards involving consumer reports may 
duplicate, satisfy, or potentially conflict with the Rule's 
requirements for any covered financial institutions.

F. Description of Any Significant Alternatives to the Proposed Rule

    The Commission has not proposed any specific small entity exemption 
or other significant alternatives because the proposed amendment would 
not impose any new requirements or compliance costs. Nonetheless, the 
Commission welcomes comment on any significant alternative consistent 
with the FCRA that would minimize the impact of the proposed Rule on 
small entities.

List of Subjects in 16 CFR Parts 642 and 698

    Consumer protection, Credit, Trade practices.

    For the reasons stated above, the Federal Trade Commission proposes 
to amend title 16 of the Code of Federal Regulations as follows:

PART 642--PRESCREEN OPT-OUT NOTICE

0
1. Revise the authority section for part 642 to read as follows:

    Authority:  15 U.S.C. 1681m(d); 12 U.S.C. 5519(d); Sec. 311, 
Pub. L. 108-159.

0
2. In Sec.  642.1, revise paragraph (b) to read as follows:


Sec.  642.1   Purpose and scope.

* * * * *
    (b) Scope. This part applies to any motor vehicle dealer as defined 
in Sec.  642.2 of this part that uses a consumer report on any consumer 
in connection with any credit or insurance transaction that is not 
initiated by the consumer, and that is provided to that motor vehicle 
dealer under section 604(c)(1)(B) of the FCRA (15 U.S.C. 
1681b(c)(1)(B)).
0
3. In Sec.  642.2, redesignate paragraph (b) as paragraph (c) and add a 
new paragraph (b) to read as follows:


Sec.  642.2   Definitions.

* * * * *
    (b) Motor vehicle dealer means any person excluded from Consumer 
Financial Protection Bureau jurisdiction as described in 12 U.S.C. 
5519.
* * * * *
0
4. In Sec.  642.3, revise the introductory text of Sec.  642.3 to read 
as follows:


Sec.  642.3   Prescreen opt-out notice.

    Any motor vehicle dealer that uses a consumer report on any 
consumer in connection with any credit or insurance transaction that is 
not initiated by the consumer, and that is provided to that person 
under section 604(c)(1)(B) of the FCRA (15 U.S.C. 1681b (c)(1)(B)), 
shall, with each written solicitation made to the consumer about the 
transaction, provide the consumer with the following statement, 
consisting of a short portion and a long portion, which shall be in the 
same language as the offer of credit or insurance:
* * * * *

PART 698--MODEL FORMS AND DISCLOSURES

0
5. The authority citation continues to read as follows:

    Authority  12 U.S.C. 5519; 15 U.S.C. 1681m(h); 15 U.S.C. 1681s-
3; Sec. 214(b), Pub. L. 108-159.

0
6. Revise Sec.  698.2 to read as follows:


Sec.  698.2   Legal effect.

    The model forms and disclosures prescribed by the FTC in this part 
do not constitute a trade regulation rule. The issuance of the model 
forms and disclosures set forth in appendices A, B, and C of this part 
carry out the directive in the statute that the FTC prescribe these 
forms and disclosures. Use or distribution of the model forms and 
disclosures in this part will constitute compliance with any section or 
subsection of the FCRA requiring that such forms and disclosures be 
used by any motor vehicle dealer subject to the FTC's rulemaking 
authority.
0
7. Add appendix C to part 698 to read as follows:

Appendix C to Part 698--Model Prescreen Opt-Out Notices

    In order to comply with CFR 16 part 642, the following model 
notices may be used:
    (a) English language model notice--(1) Short notice.
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[GRAPHIC] [TIFF OMITTED] TP21SE20.003

    (2) Long notice.

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[GRAPHIC] [TIFF OMITTED] TP21SE20.004

    (b) Spanish language model notice--(1) Short notice.

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[GRAPHIC] [TIFF OMITTED] TP21SE20.005

    (2) Long notice.

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[GRAPHIC] [TIFF OMITTED] TP21SE20.006



[[Page 59234]]


    By direction of the Commission, Commissioner Slaughter and 
Commissioner Wilson not participating.
April J. Tabor,
Acting Secretary.
[FR Doc. 2020-19176 Filed 9-18-20; 8:45 am]
BILLING CODE 6750-01-C