Truth in Lending, 20784-20801 [E9-10081]
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20784
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Burke or Vivian Wong, Senior
Attorneys, or Ky Tran-Trong or John
Wood, Counsels, Division of Consumer
and Community Affairs, Board of
Governors of the Federal Reserve
System, at (202) 452–3667 or 452–2412;
for users of Telecommunications Device
for the Deaf (TDD) only, contact (202)
263–4869.
SUPPLEMENTARY INFORMATION:
FEDERAL RESERVE SYSTEM
12 CFR Part 226
[Regulation Z; Docket No. R–1286]
Truth in Lending
AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Proposed rule; request for
public comment.
On December 18, 2008, the
Board adopted a final rule amending
Regulation Z’s provisions that apply to
open-end (not home-secured) credit
plans. The Board believes that
clarification is needed regarding
compliance with certain aspects of the
final rule. Accordingly, in order to
facilitate compliance, the Board
proposes to amend specific portions of
the regulations and official staff
commentary.
SUMMARY:
DATES: Comments on the proposed
amendments must be received on or
before June 4, 2009. Comments on the
Paperwork Reduction Act analysis set
forth in Section V of this Federal
Register notice must be received on or
before July 6, 2009.
ADDRESSES: You may submit comments,
identified by Docket No. R–1286, by any
of the following methods:
• Agency Web Site: https://
www.federalreserve.gov. Follow the
instructions for submitting comments at
https://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• E-mail:
regs.comments@federalreserve.gov.
Include the docket number in the
subject line of the message.
• Facsimile: (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 https://
www.federalreserve.gov/generalinfo/
foia/ProposedRegs.cfm as submitted,
unless modified for technical reasons.
Accordingly, your comments will not be
edited to remove any identifying or
contact information. Public comments
may also be viewed electronically or in
paper form in Room MP–500 of the
Board’s Martin Building (20th and C
Streets, NW.) between 9 a.m. and 5 p.m.
on weekdays.
FOR FURTHER INFORMATION CONTACT:
Benjamin K. Olson, Attorney, Amy
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I. Background
On December 18, 2008, the Federal
Reserve Board (Board) adopted a final
rule amending Regulation Z’s provisions
that apply to open-end (not homesecured) credit. This rule was published
in the Federal Register on January 29,
2009. See 74 FR 5244 (January 2009
Regulation Z Rule). On the same date,
the Board, the Office of Thrift
Supervision (OTS), and the National
Credit Union Administration (NCUA)
(collectively, the Agencies) adopted a
final rule under the Federal Trade
Commission Act (FTC Act) to protect
consumers from unfair acts or practices
with respect to consumer credit card
accounts. This rule also was published
in the Federal Register on January 29,
2009. See 74 FR 5498 (January 2009 FTC
Act Rule). The effective date for both
rules is July 1, 2010. See 74 FR 5388–
5390; 74 FR 5548.
Since publication of the two rules, the
Board has become aware that
clarification is needed to resolve
confusion regarding how institutions
will comply with particular aspects of
those rules. Accordingly, in order to
provide guidance and facilitate
compliance with the January 2009
Regulation Z Rule by the effective date,
the Board proposes to amend portions of
the regulations and the accompanying
staff commentary. These proposed
amendments are discussed in detail in
Section III of this supplementary
information. Similarly, elsewhere in
today’s Federal Register, the Agencies
have proposed to amend certain aspects
of the January 2009 FTC Act Rule (FTC
Act Proposed Clarifications).
Although comment is requested on
the proposed amendments, the Board
emphasizes that the purpose of this
rulemaking is to clarify and facilitate
compliance with the consumer
protections contained in the final rules,
not to reconsider the need for—or the
extent of—those protections. Thus,
commenters are encouraged to limit
their submissions accordingly. Finally,
in order to ensure that any amendments
can be adopted in final form with
sufficient time for implementation prior
to the effective date, comments
regarding those amendments must be
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submitted within 30 days of publication
in the Federal Register.1
II. Statutory Authority
In the supplementary information for
the January 2009 Regulation Z Rule, the
Board set forth the sources of its
statutory authority under the Truth in
Lending Act. See 74 FR 5249. For
purposes of these proposed rules, the
Board continues to rely on this legal
authority.
III. Section-by-Section Analysis
Section 226.5a Credit and Charge Card
Applications and Solicitations
5a(b) Required Disclosures
5a(b)(1) Annual Percentage Rate
To complement the proposed
disclosure requirements for deferred or
waived interest plans described in the
supplementary information to §§ 226.7
and 226.16, the Board also proposes a
new comment 5a(b)(1)–9 to clarify that
an issuer offering a deferred or waived
interest plan may not disclose a rate as
0% due to the possibility that the
consumer may not be obligated for
interest regarding the deferred or
waived interest transaction. Given the
contingent nature of deferred or waived
interest programs, and the fact that
interest is accruing at a non-zero rate on
the account, the Board believes that a
disclosure of a 0% rate could be
misleading to consumers.
Section 226.6
Disclosures
Account-Opening
6(b) Rules Affecting Open-End (Not
Home-Secured) Plans
In addition to the specific proposed
amendments to § 226.6 described below,
the Board also is considering whether
additional transition guidance is needed
for creditors offering open-end credit
secured by real property that may not be
subject to § 226.5b because the real
property is not the consumer’s dwelling.
The January 2009 Regulation Z Rule
preserved certain existing rules, for
example the rules under §§ 226.6, 226.7,
and 226.9, for home-equity plans subject
to § 226.5b pending the completion of
the Board’s separate review of the rules
applicable to home-secured credit.
Since publication of the January 2009
Regulation Z Rule, the Board
understands that there is uncertainty
regarding how creditors that offer openend credit secured by real property, that
1 As discussed elsewhere in the supplementary
information to this proposed rule, commenters have
60 days to submit comments regarding the
Paperwork Reduction Act analysis for the Board’s
proposed amendments to the January 2009
Regulation Z Rule.
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may be unaware whether that property
is, or remains, the consumer’s dwelling,
should comply with the January 2009
Regulation Z Rule. In particular,
creditors offering such plans have asked
whether they may comply with the
existing disclosure requirements that
were preserved for home-equity plans
subject to § 226.5b or whether they need
to comply with the new disclosure
requirements set forth in the final rule
for plans that are not subject to § 226.5b.
Pursuant to the January 2009
Regulation Z Rule, the new disclosure
requirements apply to open-end credit
that is not subject to § 226.5b. However,
the Board believes that it may be
appropriate to permit creditors offering
open-end credit secured by real
property that is not the consumer’s
dwelling to continue to comply with the
existing rules (consistent with treatment
of plans covered under § 226.5b) until
the Board’s review of the rules
applicable to home-secured open-end
credit is completed. At that time, the
Board would determine the appropriate
treatment for these plans. The Board
solicits comment on the prevalence of
such open-end credit plans and the
burden that would be associated with
determining whether such plans must
comply with the new disclosure
requirements contained in the January
2009 Regulation Z Rule or the existing
rules (as applicable to plans subject to
§ 226.5b). The Board also solicits
comment on whether it would be
appropriate to subject these plans to the
same disclosure requirements that apply
to home-secured plans or whether they
should be treated the same as other
open-end (not home-secured) credit.
6(b)(1) Form of Disclosures; Tabular
Format for Open-End (Not HomeSecured) Plans
The Board proposes to make two
technical corrections to § 226.6(b)(1)
and (b)(1)(ii) to delete parentheses that
were inadvertently included in the rule
due to a scrivener’s error, without
intended substantive change.
6(b)(2) Required Disclosures for
Account-Opening Table for Open-End
(Not Home-Secured) Plans
6(b)(2)(i) Annual Percentage Rate
Section 226.6(b)(2)(i) sets forth
disclosure requirements for rates that
apply to open-end (not home-secured)
accounts. Under the January 2009
Regulation Z Rule, creditors generally
must disclose the specific APRs that
will apply to the account in the table
provided at account opening. The
Board, however, provided a limited
exception to this rule where the APRs
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that creditors may charge vary by state
for accounts opened at the point of sale.
See § 226.6(b)(2)(i)(E). Pursuant to that
exception, creditors imposing APRs that
vary by state and providing the
disclosures required by § 226.6(b) in
person at the time an open-end (not
home-secured) plan is established in
connection with financing the purchase
of goods or services may, at the
creditor’s option, disclose in the
account-opening table either (1) the
specific APR applicable to the
consumer’s account, or (2) the range of
the APRs, if the disclosure includes a
statement that the APR varies by state
and refers the consumer to the account
agreement or other disclosure provided
with the account-opening summary
table where the APR applicable to the
consumer’s account is disclosed, for
example in a list of APRs for all states.
The Board is proposing to provide
similar flexibility to the disclosure of
APRs at the point of sale when rates
vary based on the consumer’s
creditworthiness. Thus, the Board
proposes to amend § 226.6(b)(2)(i)(E) to
state that creditors providing the
disclosures required by § 226.6(b) in
person at the time an open-end (not
home-secured) plan is established in
connection with financing the purchase
of goods or services may, at the
creditor’s option, disclose in the
account-opening table either (1) the
specific APR applicable to the
consumer’s account, or (2) the range of
the APRs, if the disclosure includes a
statement that the APR varies by state or
depends on the consumer’s
creditworthiness, as applicable, and
refers the consumer to an account
agreement or other disclosure provided
with the account-opening summary
table where the APR applicable to the
consumer’s account is disclosed, for
example in a separate document
provided with the account-opening
table.
The Board understands that if
creditors are not given additional
flexibility, some consumers could be
disadvantaged because creditors may
provide a single rate for all consumers
rather than varying the rate, with some
consumers receiving lower rates than
would be offered under a single-rate
plan. Thus, without the proposed
change, some consumers may be
harmed by receiving higher rates.
Moreover, the Board believes the
operational changes necessary to
provide the specific APR applicable to
the consumer’s account in the table at
point of sale when that rate depends on
the consumer’s creditworthiness may be
too burdensome and increase creditors’
risk of inadvertent noncompliance.
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Currently, creditors that establish openend plans at point of sale provide
account-opening disclosures at point of
sale before the first transaction, with a
reference to the APR in a separate
document provided with the account
agreement, and commonly provide an
additional set of disclosures which
reflect the actual APR for the account
when, for example, a credit card is sent
to the consumer. The Board believes
that permitting creditors to provide the
specific APR information outside of the
table at point of sale, with the
expectation that consumers will receive
disclosures with the specific APR
applicable to the consumer properly
formatted in the account-opening table
at a later time, would strike an
appropriate balance between the burden
on creditors and the need to disclose to
consumers the specific APR applicable
to the consumer’s account in the
account-opening table provided at point
of sale. The consumer would receive a
disclosure of the actual APR that applies
to the account at the point of sale, but
that rate could be provided in a separate
document.
6(b)(4) Disclosure of Rates for OpenEnd (Not Home-Secured) Plans
6(b)(4)(ii)
Variable-Rate Accounts
Section 226.6(b)(4)(ii) as adopted in
the January 2009 Regulation Z Rule sets
forth the rules for variable-rate
disclosures at account-opening,
including accuracy requirements for the
disclosed rate. The accuracy standard as
adopted provides that a disclosed rate is
accurate if it is in effect as of a
‘‘specified date’’ within 30 days before
the disclosures are provided. See
§ 226.6(b)(4)(ii)(G).
Currently, creditors generally update
rate disclosures provided at point of sale
only when the rates have changed. The
Board understands that some confusion
has arisen as to whether the new rule as
adopted literally requires that the
account-opening disclosure specify a
date as of which the rate was accurate,
and that this date must be within 30
days of when the disclosures are given.
Such a requirement could pose
operational challenges for disclosures
provided at point of sale as it would
require creditors to reprint disclosures
periodically, even if the variable rate
has not changed since the last time the
disclosures were printed.
The Board did not intend such a
result. Requiring creditors to update rate
disclosures to specify a date within the
past 30 days would impose a burden on
creditors with no corresponding benefit
to consumers, where the disclosed rate
is still accurate within the last 30 days
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before the disclosures are provided.
Accordingly, the Board proposes to
revise the rule to clarify that a variable
rate is accurate if it is a rate as of a
specified date and this rate was in effect
within the last 30 days before the
disclosures are provided.
Section 226.7
Periodic Statement
7(b) Rules Affecting Open-End (Not
Home-Secured) Plans
Deferred or waived interest plans.
Comment 7(b)–1, as adopted in the
January 2009 Regulation Z Rule,
provides guidance on periodic
statement disclosures for deferred
interest transactions for open-end (not
home-secured) plans, such as plans that
permit a consumer to avoid interest
charges if a purchase balance is paid in
full by a certain date. The comment
permits, but does not generally require,
creditors to disclose during the
promotional period information about
accruing interest, balances subject to
interest rates, and the date by which the
balance must be paid in full to avoid
interest. Comment 7(b)–1 as adopted
indicated that guidance in the comment
does not apply to card issuers that are
subject to 12 CFR 227.24 or similar law,
because in the January 2009 FTC Act
Rule, the Agencies had concluded that
deferred interest programs, as currently
designed and marketed, were
inconsistent with the general
prohibition on the application of
increased rates to existing balances.
As discussed in the supplementary
information to the FTC Act Proposed
Clarifications, the Board and other
Agencies are proposing to clarify that
creditors may continue to offer deferred
or waived interest programs where the
consumer will not be obligated to pay
interest that accrues on a balance if that
balance is paid in full by a specified
date or within a specified period of
time. Any such programs, however,
would be fully subject to the protections
set forth in the January 2009 FTC Act
Rule as amended by the FTC Act
Proposed Clarifications, as well as to
disclosure requirements under
Regulation Z discussed in this Federal
Register. These protections would apply
to all deferred or waived interest plans
and not solely those covered by the
January 2009 FTC Act Rule.
The Board believes that it is important
that consumers receive clear disclosures
regarding deferred or waived interest
balances and interest accruing during
the term of a deferred or waived interest
program, in order to ensure that
consumers understand the terms of the
promotion and can tailor their account
usage and payment patterns
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accordingly. As a result, the Board is
proposing several revisions to comment
7(b)–1 to require creditors to provide
consumers with pertinent information
throughout the life of a deferred or
waived interest promotion.
First, the Board believes that it is
important for a consumer to be informed
of the amount of interest charges that
are accruing and for which the
consumer will be obligated if the
consumer does not repay a deferred or
waived interest balance in full by the
relevant due date. Comment 7(b)–1
would therefore be amended to require
creditors offering deferred or waived
interest programs to disclose
information about accruing interest
balances for such programs. The Board
also proposes that each periodic
statement be required to disclose the
amount of the deferred or waived
interest balance on which interest may
be imposed, so that consumers will be
aware of the amount that they are
required to pay to avoid being obligated
for the deferred or waived interest
amount.
The Board also is proposing to add a
new § 226.7(b)(14) to require creditors to
include on a consumer’s periodic
statement, for two billing cycles
immediately preceding the date on
which deferred or waived interest
transactions must be paid in full in
order to avoid the imposition of interest
charges, a disclosure that the consumer
must pay such transactions in full by
that date in order to avoid being
obligated for the accrued interest. The
Board also proposes several
complementary changes to comment
7(b)–1 to provide additional guidance
on compliance with this disclosure
requirement. The Board believes that it
is important for consumers to receive
this notice in the last two billing cycles
prior to the deferred or waived interest
due date. This would ensure that
consumers are reminded of the terms of
the deferred or waived interest
promotion close to the date on which
full payment is due, in order to give
consumers an opportunity to pay off any
deferred or waived interest balance and
take advantage of the terms of the
promotion.
In particular, proposed § 226.7(b)(14)
would require creditors offering
deferred or waived interest programs to
disclose on the front of the periodic
statement the date in a future cycle by
which the balance on the deferred or
waived interest transaction must be paid
in full to avoid interest charges. This
disclosure would be required to be
provided on each periodic statement for
the last two billing cycles immediately
preceding such date. Creditors may, but
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would not be required to, include this
disclosure on prior statements. If the
deferred or waived interest period’s
duration is such that the reminder
cannot be given for the last two billing
cycles immediately preceding the
deferred or waived interest due date, for
example if the deferred interest period
is less than two months, proposed
comment 7(b)–1.iv clarifies that the
disclosure must be included on every
periodic statement during the deferred
or waived interest period. Proposed
comment 7(b)–1.iv sets forth examples
of how this timing requirement would
operate.
Proposed Sample G–18(H) sets forth
model language for making the
disclosure required by proposed
§ 226.7(b)(14). The language used to
make the disclosure under § 226.7(b)(14)
would be required to be substantially
similar to Sample G–18(H).
Finally, in a technical amendment,
the Board proposes to amend the
terminology of comment 7(b)–1 to refer
to both deferred and waived interest
programs. The provisions in proposed
§ 226.7(b)(14) and comment 7(b)–1
would apply to all types of deferred or
waived interest programs, regardless of
the particular nomenclature used to
describe a specific plan. In a conforming
technical change, the Board proposes to
amend comment 5(b)(2)(ii)–1, which
cross-references comment 7(b)–1, to
refer to deferred and waived interest
transactions.
Interest and Fees for Acquired or
Modified Accounts. To highlight the
overall cost of a credit account to
consumers, the January 2009 Regulation
Z Rule requires creditors to disclose the
total amount of interest charges and fees
for the statement period and calendar
year to date. See § 226.7(b)(6). New
comments 7(b)(6)–6 and –7 would
clarify a creditor’s obligations under
§ 227.7(b)(6) when it acquires a plan or
account from another creditor or when
the underlying account relationship
with the creditor is changed in some
way, for example, if a retail credit card
account is upgraded to a cobranded
general purpose credit card account or
if a credit card account is replaced with
another credit card product with
different or additional features. The
proposed comments would generally
provide that the creditor must include
the interest charges and fees incurred by
the consumer prior to the account
acquisition or change in the aggregate
totals provided for the statement period
and calendar year to date after the
change. At the creditor’s option, it may
add the prior charges and fees to the
disclosed totals following the change, or
it may provide separate totals for each
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time period. The proposed comments
would not apply when the consumer
opens a new plan or account with
another creditor and transfers balances
from the old plan or account. Comment
is requested regarding the operational
issues associated with carrying over cost
totals in the circumstances described in
the proposed commentary.
Section 226.9 Subsequent Disclosure
Requirements
226.9(c)
Change in Terms
9(c)(2) Rules Affecting Open-end (Not
Home-secured) Plans
Relationship between § 226.9(b) and
(c). Section 226.9(c)(2) generally
requires creditors to provide 45 days’
advance notice prior to a change in any
term that must be disclosed in the
account-opening summary table. For
changed terms that must be disclosed in
the account-opening summary table,
creditors must similarly provide a
summary of that change in a tabular
format. Notice is not required in certain
specified circumstances, including if the
change involves a reduction of any
component of a finance or other charge
or where future credit privileges have
been suspended or an account or plan
has been terminated. The Board
proposes to amend § 226.9(c)(2)(iv) to
provide that notice is also not required
when the change in terms is applicable
only to a check or checks that access a
credit card account and the changed
terms are disclosed on or with the
checks in accordance with § 226.9(b)(3).
Under § 226.9(b)(3), if a creditor mails
or delivers a check that accesses a credit
card account, it must disclose certain
key terms applicable to the check,
including any discounted promotional
rate and when that rate will expire; the
type of rate that will apply to the checks
after expiration of the discounted
promotional rate and the applicable
APR; the date by which the consumer
must use the checks in order to qualify
for any discounted promotional rate;
and any transaction fees applicable to
the checks. These key terms must be
disclosed in a tabular format on the
front of the page containing the checks.
The format and location requirements
were informed through consumer
testing conducted on behalf of the
Board, which indicated that consumers
were more likely to notice and
understand the terms applicable to the
checks when these terms were
presented in this manner. In light of
these requirements, requiring an
additional tabular disclosure for a
change in terms about the access check
terms could create consumer confusion
and would likely provide little
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consumer benefit. The Board also
believes that given the enhanced
disclosure requirements, a 45-day notice
period before consumers may use a
check would be unnecessary.
The proposed exception in
§ 226.9(c)(2)(iv) is limited to
circumstances where the consumer has
been provided disclosures pursuant to
§ 226.9(b)(3) in connection with a check
that accesses a credit card account.
Thus, the exception would not permit a
creditor to make a balance transfer offer
by other means, such as by telephone or
written solicitation, on finance charge
terms higher than those previously
disclosed for a balance transfer, unless
the creditor also complies with the
notice and advance timing requirements
of § 226.9(c) before the new fee or rate
can be applied to the offer.
The exception also would extend only
to a check accompanied by the
§ 226.9(b)(3) disclosures and not to
terms applicable to other features of the
consumer’s account. A creditor would
not be permitted to use a set of checks
and § 226.9(b)(3) disclosures, for
example, to change the rate applicable
when a consumer uses his or her credit
card to take a cash advance at an ATM
machine. For example, assume the rate
that typically applies to the checks is
the issuer’s cash advance rate, currently
20%, and the issuer intends to
prospectively increase the cash advance
rate to 25%. Under the proposal, the
issuer could send a set of checks
disclosing the 25% rate in the table
required by § 226.9(b)(3), and would not
be required to provide an additional 45
days’ advance notice indicating that the
25% rate applies to those checks. The
issuer would, however, be required to
send 45 days’ advance notice pursuant
to § 226.9(c)(2) prior to changing the
cash advance rate applicable to the
consumer’s account to 25% (for access
other than by a check accompanied with
the § 226.9(b)(3) disclosure).
Proposed comment 9(c)(2)–4 would
clarify the relationship between the
change-in-terms requirements in
§ 226.9(c) and the notice provisions of
§ 226.9(b) that apply when a creditor
adds a credit feature or delivers a credit
access device for an existing open-end
plan. The proposed comment would
provide that notwithstanding any notice
provided under § 226.9(b) (except for a
notice provided under § 226.9(b)(3) as
discussed above), a creditor must also
satisfy the change-in-terms notice
requirements under § 226.9(c), where
applicable, including any advance
notice requirement. For example, if a
creditor adds a balance transfer feature
to an account more than 30 days after
account-opening disclosures are
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20787
provided, it must give the finance
charge disclosures for the balance
transfer feature under § 226.9(b) as well
as provide a change in terms notice
under § 226.9(c). This notice must be
provided at least 45 days prior to the
effective date of the change.2 Similarly,
if a creditor makes a balance transfer
offer on finance charge terms that are
higher than those previously disclosed
for balance transfers, it would also
generally be required to provide a
change-in-terms notice 45 days in
advance of the effective date of the
change. The proposed comment also
provides that a creditor may provide a
single notice under § 226.9(c) to satisfy
the notice requirements of both
§ 226.9(b) and (c).
Change-in-terms requirements for
temporary rate reductions. The Board
believes that clarification is needed as to
the relationship between the guidance
in comment 9(c)(2)(iv)–2 regarding how
to disclose skip payment features and
the general timing, format, and content
requirements of § 226.9(c)(2), for
temporary rate reductions offered on an
existing account. In general, under
§ 226.9(c)(2)(iv), no advance notice need
be given prior to the reduction of any
component of a finance charge.
However, under § 226.9(c)(2)(i), 45 days’
advance written notice is required prior
to a rate increase. Comment 9(c)(2)(iv)–
2 provides guidance as to how a creditor
that is offering a skip payment feature
or interest waiver may comply with the
requirements of § 226.9(c)(2)(iv). This
guidance was intended to address only
the limited circumstances where a
creditor offers a feature that permits a
consumer to skip a payment or
payments or where a creditor intends to
waive interest charges due on the
account, without changing the
contractual rate of interest applicable to
the consumer’s balances. This comment
was not intended to alter the notice
requirements of § 226.9(c)(2) for
promotional rate offers, where the
creditor lowers the rate applicable to the
consumer’s account and subsequently
increases the rate. However, as drafted
the comment may create confusion
because it refers to any temporary
reductions in finance charges.
To clarify that advance notice in
accordance with the requirements of
§ 226.9(c)(2) is required prior to
increasing a consumer’s rate following a
rate reduction, the Board proposes to
amend comment 9(c)(2)(iv)–2 by
including language indicating that
2 If the creditor changes a term required to be
disclosed in the account-opening table, the creditor
must also provide a summary of the change in a
tabular format under § 226.9(c)(2)(iii)(B).
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creditors offering a temporary reduction
in an interest rate must provide a notice
in accordance with the timing
requirements of § 226.9(c)(2)(i) and the
content and format requirements of
§ 226.9(c)(2)(ii)(A) and (B) prior to
resuming the original rate.
Specific consumer agreement
exception. Section 226.9(c)(2)(i)
provides that the 45-day advance notice
timing requirement does not apply if the
consumer has agreed to a particular
change. In this case, notice must be
given before the effective date of the
change. Comment 9(c)(2)(i)–3 states that
the provision is intended for use in
‘‘unusual instances,’’ such as when a
consumer substitutes collateral or when
the creditor may advance additional
credit only if a change relatively unique
to that consumer is made. The comment
further provides examples of actions
that do not constitute specific consumer
agreement, including the consumer’s
acceptance of an account agreement that
contains a general reservation of the
right to change terms or the consumer’s
use of the account. Thus, the comment
recognizes that the change in terms
notice requirements generally cannot be
waived or forfeited by the consumer.
The Board is proposing to amend the
comment to emphasize the limited
scope of the exception and provide that
the exception applies ‘‘solely’’ to the
unique circumstances specifically
identified in the comment. The
proposed comment would also add an
example of an occurrence that would
not be considered an ‘‘agreement’’ for
purposes of relieving the creditor of its
responsibility to provide an advance
change-in-terms notice. This example
would state that an ‘‘agreement’’ does
not include a consumer’s request to
reopen a closed account or to upgrade
an existing account to another account
offered by the creditor with different
credit or other features. Thus, a creditor
would be required to provide the
consumer 45 days’ advance notice
before increasing the rate for new
transactions or increasing the amount of
any applicable fees to the account in
those circumstances.
226.9(g) Increase in Rates Due to
Delinquency or Default or as a Penalty
Section 226.9(g)(4) sets forth
exceptions to the general requirement to
provide 45 days’ advance notice before
increasing a rate due to the consumer’s
delinquency or default or as a penalty.
Section 226.9(g)(4)(i) as adopted in the
January 2009 Regulation Z Rule
provides a specific exception to the
notice requirement when the
consumer’s rate is increased due to the
consumer’s failure to comply with the
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terms of a workout arrangement,
provided that the annual percentage rate
applicable to a category of transactions
following any such increase does not
exceed the rate that applied to that
category of transactions prior to
commencement of the workout
arrangement. This exception is intended
to encourage institutions to continue
offering workout arrangements that
reduce rates to consumers in serious
default, while also ensuring that a
consumer who enters into such an
arrangement but is unable to comply
with its terms is not charged a rate that
exceeds the rate that applied prior to the
arrangement without first receiving
advance notice of that rate increase.
The Board understands that there is
some confusion as to whether this
exception also applies to temporary
hardship arrangements that assist
consumers in overcoming financial
difficulties by lowering the annual
percentage rate for a period of time. For
example, if an account becomes
seriously delinquent, the institution
may reduce the rate that applies to the
outstanding balance from the penalty
rate to a rate of zero on the condition
that the consumer make payments that
will cure the delinquency within a
specified period of time. If the consumer
successfully cures the delinquency in
accordance with the terms of the
temporary hardship arrangement, the
institution may choose to raise the
annual percentage rate to the rate that
applied prior to commencement of the
temporary hardship arrangement.
Because such arrangements can provide
important benefits to consumers, the
Board proposes to amend § 226.9(g)(4)(i)
to clarify that the exception also applies
to temporary hardship arrangements.
The Board also proposes to revise
§ 226.9(g)(4)(iii) for consistency with the
terminology used in 12 CFR 227.24 and
similar regulation, without intended
substantive change, by deleting
references to ‘‘outstanding balances.’’
In a technical amendment, the Board
proposes to designate as comment
9(g)(4)(ii)–1 commentary that was
placed with commentary to
§ 226.9(g)(4)(ii) but was not numbered
due to a scrivener’s error.
The Board also proposes several
amendments to comment 9(g)–1 for
consistency and conformity with
substantively similar amendments
published elsewhere in today’s Federal
Register as part of the FTC Act Proposed
Clarifications. For example, the Board
proposes to correct a typographical error
in comment 9(g)–1.iii.C, and to clarify
the fact patterns presented in comments
9(g)–1.i and 9(g)–1.iii.
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Section 226.12
Provisions
Special Credit Card
Section 226.13 Billing Error Resolution
Comment 12(b)–3 states that a card
issuer must investigate claims in a
reasonable manner before imposing
liability for an unauthorized use, and
sets forth guidance on conducting an
investigation of a claim. Comment 13(f)–
3 contains similar guidance for a
creditor investigating a billing error
claim. The January 2009 Regulation Z
Rule amended both comments to
specifically provide that a card issuer
(or creditor) may not require a consumer
to submit an affidavit or to file a police
report as a condition of investigating a
claim. These additions reflected the
Board’s concerns that such requests
could cause a chilling effect on a
consumer’s ability to assert his or her
error resolution rights.
In the supplementary information
discussing the amended comments, the
Board recognized that in some cases, a
card issuer may need to provide some
form of certification indicating that the
cardholder’s claim is legitimate, for
example, to obtain documentation from
a merchant relevant to a claim or to
pursue chargeback rights. Accordingly,
the Board stated that a card issuer could
‘‘require’’ the cardholder to provide a
signed statement supporting the
asserted claim, provided that the act of
providing the signed statement would
not subject the cardholder to potential
criminal penalty. See 74 FR at 5363. The
final comments, however, did not reflect
the ability of the card issuer (or creditor)
to require a consumer signed statement
for these types of circumstances.
Instead, the text of the final comments
stated that a card issuer (or creditor)
could ‘‘request’’ a signed statement.
Accordingly, comments 12(b)–3 and
13(f)–3 would be amended to conform
to the Board’s intent as stated in the
supplementary information to the
January 2009 Regulation Z Rule.
Section 226.16 Advertising
TILA Section 143, implemented by
the Board in § 226.16, governs
advertisements of open-end credit
plans. 15 U.S.C. 1663. In May 2008, the
Board proposed requirements regarding
the advertising of deferred interest offers
in order to improve consumer
awareness of the terms of such offers.
However, the Board and other Agencies
concluded in the January 2009 FTC Act
Rule that deferred interest programs, as
currently designed, are inconsistent
with the general prohibition on the
application of increased rates to existing
balances and prohibited issuers subject
to the January 2009 FTC Act Rule from
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establishing such programs.
Consequently, the Board withdrew the
proposed advertising requirements
related to deferred interest offers from
the January 2009 Regulation Z Rule.
Although the January 2009 FTC Act
Rule prohibited deferred interest
programs, the Agencies noted that
institutions were not prohibited from
offering promotional programs that
provide similar benefits to consumers,
such as programs where interest is
assessed on purchases at a disclosed
rate for a period of time but the interest
charged is waived or refunded if the
principal is paid in full by the end of
that period. Recognizing that the
distinction between deferred interest
and waived or refunded interest
programs has caused confusion, the
Agencies are proposing in the FTC Act
Proposed Clarifications to clarify that
creditors may offer promotional
programs where the consumer will not
be obligated to pay interest that accrues
on a balance if that balance is paid in
full by a specified date or within a
specified period of time. However, such
programs remain fully subject to the
consumer protections set forth in the
January 2009 FTC Act Rule as amended
by the FTC Act Proposed Clarifications.
In light of the FTC Act Proposed
Clarifications, the Board also is
proposing new advertising requirements
in § 226.16(h), similar to those proposed
in May 2008, for deferred, waived, or
refunded interest programs in order to
better inform consumers of the terms of
these offers. The Board believes that
these advertising requirements will
complement the new periodic statement
disclosures for such programs that are
discussed in the supplementary
information to § 226.7(b).
16(h) Deferred or Waived Interest
Offers
The Board is proposing to use its
authority under TILA Section 143(3) to
add a new § 226.16(h) to require
additional disclosures in advertisements
in order to improve information
consumers receive about the terms of
deferred or waived interest offers. 15
U.S.C. 1663(3). The new disclosure
requirements would apply to
advertisements that use terms such as
‘‘no interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ ‘‘same as cash,’’ or similar
terms in describing these offers.3 In
summary, the proposed rules would
require that the deferred or waived
interest period be disclosed in
3 For ease of reference, the supplementary
information to proposed § 226.16(h) refers
generically to these terms as ‘‘deferred interest
triggering terms.’’
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immediate proximity to each deferred
interest triggering term. For
advertisements stating ‘‘no interest’’ or a
similar term, the fact that the balance
must be paid in full by the end of the
deferred or waived interest period also
would need to be disclosed in
immediate proximity to that term. The
proposal also would require that certain
additional information about the terms
of the deferred or waived interest offer
be disclosed in close proximity to the
first statement of a deferred interest
triggering term. Each of these proposals
is discussed in more detail below.
16(h)(1) Scope
The new requirements for deferred or
waived interest offers under proposed
§ 226.16(h) would apply to any
advertisement of such offers for openend (not home-secured) plans, and
would not be limited to credit card
plans. In addition, the rules would
apply to promotional materials
accompanying applications or
solicitations made available by direct
mail or electronically, as well as
applications or solicitations that are
publicly available. The Board believes
that the proposed disclosures under this
section would be beneficial to
consumers whether the offer is
applicable to a consumer credit card
account or any other open-end (not
home-secured) plan.
16(h)(2) Definitions
The Board proposes to define
‘‘deferred or waived interest’’ in new
§ 226.16(h)(2) as finance charges on
balances or transactions that a consumer
is not obligated to pay if those balances
or transactions are paid in full by a
specified date. The term would not,
however, include finance charges the
creditor allows a consumer to avoid in
connection with a recurring grace
period. Therefore, an advertisement
including information on a recurring
grace period that could potentially
apply each billing period, would not be
subject to the additional disclosure
requirements under § 226.16(h).
Proposed comment 16(h)–1 clarifies that
deferred or waived interest offers also
do not include offers that allow a
consumer to defer payments during a
specified time period, and under which
the consumer is not obligated under any
circumstances for any interest or other
finance charges that could be
attributable to that period. The comment
also clarifies that skip payment
programs that allow a consumer to
avoid making a minimum payment for
one or more billing cycles but where
interest continues to accrue and be
imposed during that period are not
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20789
deferred or waived interest offers.
Furthermore, proposed comment 16(h)–
2 specifies that deferred or waived
interest offers do not include zero
percent APR offers where a consumer is
not obligated under any circumstances
for interest attributable to the time
period the zero percent APR was in
effect, although such offers may be
considered promotional rates under
§ 226.16(g)(2)(i).
Furthermore, the Board proposes to
define the ‘‘deferred or waived interest
period’’ for purposes of proposed
§ 226.16(h) as the maximum period from
the date the consumer becomes
obligated for the balance or transaction
until the specified date that the
consumer must pay the balance or
transaction in full in order to avoid
finance charges on such balance or
transaction. To clarify the meaning of
deferred or waived interest period, the
Board is proposing to include a new
comment 16(h)–3 to state that the
advertisement need not include the end
of an informal ‘‘courtesy period’’ in
disclosing the deferred or waived
interest period. For example, an
advertisement may state that the
deferred interest period is six months,
even if the creditor in practice extends
that period by several days, for example,
to coincide with the payment due date
for other transactions that are not
subject to a deferred interest plan.
16(h)(3) Stating the Deferred or
Waived Interest Period
General rule. The Board is proposing
a new § 226.16(h)(3) to require that
advertisements of deferred or waived
interest plans disclose the deferred or
waived interest period clearly and
conspicuously in immediate proximity
to each statement of a deferred interest
triggering term. New § 226.16(h)(3) also
would require such advertisements that
use the phrase ‘‘no interest’’ or similar
term to describe the possible avoidance
of interest obligations under the
deferred or waived interest program to
state ‘‘if paid in full’’ in a clear and
conspicuous manner preceding the
disclosure of the deferred or waived
interest period. For example, as
described in proposed comment 16(h)–
7, an advertisement might state ‘‘no
interest if paid in full within 6 months’’
or ‘‘no interest if paid in full by
December 31, 2010.’’ The Board is
proposing to require these disclosures
because of concerns that the statement
‘‘no interest,’’ in the absence of
additional details about the applicable
conditions of the offer may confuse
consumers who might not understand
that they need to pay their balances in
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full by a certain date in order to avoid
the obligation to pay interest.
Immediate proximity. Proposed
comment 16(h)–4 provides guidance on
the meaning of ‘‘immediate proximity’’
by establishing a safe harbor for
disclosures made in the same phrase.
Therefore, if the deferred or waived
interest period is disclosed in the same
phrase as each statement of a deferred
interest triggering term (for example,
‘‘no interest if paid in full within 12
months’’ or ‘‘no interest if paid in full
by December 1, 2010’’ the deferred or
waived interest period would be
deemed to be in immediate proximity to
the statement.
Clear and conspicuous standard. The
Board proposes to amend comment 16–
2.ii to provide that advertisements
clearly and conspicuously disclose the
deferred or waived interest period only
if the information is equally prominent
to each statement of a deferred interest
triggering term. Proposed comment 16–
2.ii states that if the disclosure of the
deferred or waived interest period is the
same type size as the statement of the
deferred interest triggering term, it will
be deemed to be equally prominent. The
Board believes that requiring equal
prominence for the disclosure of the
deferred or waived interest period will
call attention to the nature and
significance of that information by
ensuring that the information is at least
as significant as the terms to which it
relates. Furthermore, applying an
equally prominent standard would be
consistent with the treatment of certain
disclosures related to promotional rates.
The Board also proposes to clarify in
comment 16–2.ii that the equally
prominent standard applies only to
written and electronic advertisements.
This approach is consistent with the
treatment of written and electronic
advertisements of promotional rates.
Because equal prominence is a difficult
standard to measure outside the context
of written and electronic
advertisements, the Board believes that
the guidance on clear and conspicuous
disclosures set forth in proposed
comment 16–2.ii, should apply solely to
written and electronic advertisements.
Disclosure of the deferred or waived
interest period under § 226.16(h)(3) for
non-written, non-electronic
advertisements, while not required to
meet the specific clear and conspicuous
standard in comment 16–2.ii would
nonetheless be subject to the general
clear and conspicuous standard set forth
in comment 16–1.
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16(h)(4) Stating the Terms of the
Deferred or Waived Interest Offer
In order to ensure that consumers are
informed of the terms applicable to a
deferred or waived interest offer, the
proposal would require disclosure of
key terms of such an offer in a
prominent location closely proximate to
the first listing of a statement of a
deferred interest triggering term. First,
the Board proposes to require a
statement that if the balance or
transaction is not paid within the
deferred or waived interest period,
interest will be charged from the date
the consumer became obligated for the
balance or transaction. Second, the
Board also proposes to require a
statement, if applicable, that interest can
also be charged from the date the
consumer became obligated for the
balance or transaction if the consumer’s
account is in default prior to the end of
the deferred or waived interest period.
To facilitate compliance with this
provision, the Board proposes model
language in Sample G–22 in Appendix
G. Proposed § 226.16(h)(4) would
require that advertisements of deferred
or waived interest offers use language
similar to Sample G–22. The Board is
proposing that language be ‘‘similar,’’
rather than ‘‘substantially similar,’’ in
recognition of the fact that creditors may
need to modify or supplement the
model language to accurately describe
the terms of a particular promotion. For
issuers subject to the January 2009 FTC
Act Rule or similar law, the proposed
language would reflect that interest can
be charged from the date the consumer
became obligated for the balance or
transaction only if the consumer fails to
pay the balance subject to the deferred
or waived interest program in full or
makes a payment that is more than 30
days late.4 For creditors that are not
subject to the January 2009 FTC Act
Rule or similar law, such as a creditor
that offers a deferred or waived interest
program in connection with a line of
credit, the Board proposes separate
model language.
While most advertisements of
deferred or waived interest offers
describe the conditions required to take
advantage of the offer, the conditions
may be placed in a location that is not
easily noticed or stated in terms that are
not easily understood. Thus, as
discussed below, the proposal would
require this information to be in a
4 This statement is intended to be consistent with
substantive restrictions in the January 2009 FTC Act
Rule and FTC Act Proposed Clarifications which
would not permit an issuer to revoke a deferred or
waived interest program unless the consumer’s
payment is more than 30 days late.
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prominent location closely proximate to
the first listing of a statement of ‘‘no
interest,’’ ‘‘no payments,’’ ‘‘deferred
interest’’ or similar term regarding
interest and payments under the
deferred interest period.
Prominent location closely proximate.
The Board is proposing guidance on the
meaning of ‘‘prominent location closely
proximate to the first listing’’ in
comments 16(h)–5 and 16(h)–6. This
guidance is similar to, and intended to
be consistent with, the provisions in
§ 226.16(g) that apply to advertisements
of promotional rates. Proposed comment
16(h)–5 would provide that if the
additional disclosures required under
proposed § 226.16(h)(4) are in the same
paragraph as the first listing of a
deferred interest triggering term, they
would be deemed to be in a prominent
location closely proximate to the
statement. Information appearing in a
footnote would not be deemed to be in
a prominent location closely proximate
to the statement. The Board believes
that the safe harbor under proposed
comment 16(h)–5 is, and should be,
more flexible than the safe harbor for
‘‘immediate proximity’’ under proposed
comment 16(h)–4 above.
First listing. Proposed comment
16(h)–6 provides that the first listing of
a statement of a deferred interest
triggering term is the most prominent
listing of one of these statements (on the
front side of the first page of the
principal promotional document).
Consistent with the rules for
promotional rates in § 226.16(g), the
proposed comment borrows the concept
of ‘‘principal promotional document’’
from the FTC’s definition of the term
under its regulations promulgated under
the FCRA. 16 CFR § 642.2(b). Under the
proposal, if none of these statements is
listed on the principal promotional
document or there is no principal
promotional document, the first listing
of one of these statements would be
deemed to be the most prominent listing
of the statement on the front side of the
first page of each document containing
one of these statements. The Board also
proposes that the listing with the largest
type size be a safe harbor for
determining which listing is the most
prominent. The proposed comment
notes that a catalog or other multiplepage advertisement would be
considered one document for these
purposes, consistent with comment
16(c)–1.
Because both the rules for advertising
of promotional rates in § 226.16(g) and
proposed § 226.16(h)(4) require
disclosures closely proximate to the
‘‘first listing’’ of a rate or a statement,
respectively, the Board believes that the
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guidance on what constitutes the ‘‘first
listing’’ should be consistent for both
rules.
Segregation. The Board also proposes
comment 16(h)–7 to clarify that the
information required under proposed
§ 226.16(h)(4) need not be segregated
from other information the
advertisement discloses about the
deferred or waived interest offer. This
may include triggered terms that the
advertisement is required to disclose
under § 226.16(b). The comment is
consistent with the Board’s approach on
many other required disclosures under
Regulation Z. See comment 5(a)–2.
Moreover, the Board believes flexibility
is warranted to allow advertisers to
provide other information that may be
essential for the consumer to evaluate
the offer, such as a minimum purchase
amount to qualify for the deferred or
waived interest offer.
Clear and conspicuous disclosure.
The Board is proposing to amend
comment 16–2.ii to require equal
prominence only for the disclosure of
the information required under
§ 226.16(h)(3). Therefore, disclosures
under proposed § 226.16(h)(4) would
not be required to be equally prominent
to the first listing of the deferred interest
triggering statement. Because of the
amount of information the Board is
proposing to require under
§ 226.16(h)(4)(i) and (ii), the Board
believes that requiring equal
prominence to the triggering statement
for this information would render the
advertisement difficult to read and
confusing to consumers.
Non-written, non-electronic
advertisements. The Board believes
providing flexibility in how advertisers
may present information to consumers
in a non-written, non-electronic context
is appropriate due to the time and space
constraints of such media. Therefore,
consistent with the approach adopted
for advertisements of promotional rate
offers in the January 2009 Regulation Z
Rule and the approach in proposed
§ 226.16(h)(3) discussed above, the
Board is proposing that only written or
electronic advertisements be subject to
the requirement to provide the
disclosures required by proposed
§ 226.16(h)(4) in a prominent location
closely proximate to the first listing of
a deferred interest triggering term. For
non-written, non-electronic
advertisements, the information
required under § 226.16(h)(4)(i), and (ii)
would be included in the advertisement,
but would not be subject to any
proximity or formatting requirements
other than the general requirement that
information be clear and conspicuous,
as contemplated under comment 16–1.
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16(h)(5) Envelope Excluded
The Board proposes to exclude
envelopes or other enclosures in which
an application or solicitation is mailed,
or banner advertisements or pop-up
advertisements linked to an electronic
application or solicitation from the
requirements of proposed § 226.16(h)(4).
This proposed exception is consistent
with the approach adopted for
promotional rate advertisements in the
January 2009 Regulation Z Rule.
Interested consumers generally look at
the contents of an envelope or click on
the link in a banner advertisement or
pop-up advertisement in order to learn
more about an offer instead of relying
solely on the information on an
envelope, banner advertisement, or popup advertisement. Given the limited
space that envelopes, banner
advertisements, and pop-up
advertisements have to convey
information, the Board believes the
burden of providing the information
proposed under § 226.16(h)(4) on these
types of communications would likely
exceed any benefit to consumers.
Appendix G—Open-End Model Forms
and Clauses
The Board proposes to revise Model
Form G–10(A) to insert a row disclosing
any grace period on purchases
applicable to the account, in accordance
with the requirements set forth in
§ 226.5a(b)(5). This row was
inadvertently omitted from Model Form
G–10(A) as published in the Federal
Register on January 29, 2009.
The Board also proposes to revise the
minimum payment warning set forth on
Sample Form G–18(G) for conformity
with Sample Clause G–18(C), without
any intended substantive change to the
requirements of the final rule.
As discussed in the supplementary
information to §§ 226.7(b)(14) and
226.16(h), the Board proposes to adopt
model language for the disclosures
required to be given in connection with
deferred or waived interest programs as
Samples G–18(H) and G–22. The Board
notes that proposed Sample G–22
contains two model clauses, one for use
by credit card issuers subject to 12 CFR
227.24 or similar law and one for other
creditors. The model clause for issuers
subject to 12 CFR 227.24 reflects the fact
that, under those rules, an issuer may
only revoke a deferred or waived
interest program if the consumer’s
payment is more than 30 days late. The
Board proposes to add a new comment
App. G–12 to clarify which creditors
should use each of the model clauses in
proposed Sample G–22.
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The Board also proposes a technical
correction to comment App. G–5.v.C. As
adopted in the January 2009 Regulation
Z Rule, comment App. G–5.v.C refers to
cross-references in the samples of the
table provided on or with applications
and solicitations and the table provided
at account opening. However, crossreferences were not included in those
samples because they are not a
disclosure required by the January 2009
Regulation Z Rule. Accordingly, the
Board proposes to delete the examples
mentioning cross-references from
comment App. G–5.v.C.
IV. Regulatory Flexibility Analysis
Section VIII of the supplementary
information to the January 2009
Regulation Z Rule sets forth the Board’s
analysis under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
The Board notes that the amendments in
this proposed rulemaking would require
small entities that offer deferred or
waived interest programs to comply
with new disclosure requirements for
periodic statements and advertisements,
as discussed in the supplementary
information to the amendments to
§§ 226.7 and 226.16. Because the
proposed amendments are a
continuation of the January 2009
Regulation Z Rule and would not, if
adopted, alter the analysis and
determination accompanying the
January 2009 Regulation Z Rule, the
Board continues to rely on that analysis
and determination for purposes of this
rulemaking.
V. Paperwork Reduction Act
In accordance with the Paperwork
Reduction Act (PRA) of 1995 (44 U.S.C.
3506; 5 CFR Part 1320 Appendix A.1),
the Board reviewed the proposed rule
under the authority delegated to the
Board by the Office of Management and
Budget (OMB). The collection of
information that is required by this
proposed rule is found in 12 CFR part
226. The Federal Reserve may not
conduct or sponsor, and an organization
is not required to respond to, this
information collection unless the
information collection displays a
currently valid OMB control number.
The OMB control number is 7100–0199.
This information collection is
required to provide benefits for
consumers and is mandatory (15 U.S.C.
1601 et seq.). Since the Federal Reserve
does not collect any information, no
issue of confidentiality arises. The
respondents/recordkeepers are creditors
and other entities subject to Regulation
Z, including for-profit financial
institutions and small businesses.
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TILA and Regulation Z are intended
to ensure effective disclosure of the
costs and terms of credit to consumers.
For open-end credit, creditors are
required to, among other things,
disclose information about the initial
costs and terms and to provide periodic
statements of account activity, notice of
changes in terms, and statements of
rights concerning billing error
procedures. Regulation Z requires
specific types of disclosures for credit
and charge card accounts and home
equity plans. For closed-end loans, such
as mortgage and installment loans, cost
disclosures are required to be provided
prior to consummation. Special
disclosures are required in connection
with certain products, such as reverse
mortgages, certain variable-rate loans,
and certain mortgages with rates and
fees above specified thresholds. TILA
and Regulation Z also contain rules
concerning credit advertising. Creditors
are required to retain evidence of
compliance for twenty-four months
(§ 226.25), but Regulation Z does not
specify the types of records that must be
retained.
Under the PRA, the Federal Reserve
accounts for the paperwork burden
associated with Regulation Z for the
state member banks and other creditors
supervised by the Federal Reserve that
engage in lending covered by Regulation
Z and, therefore, are respondents under
the PRA. Appendix I of Regulation Z
defines the Federal Reserve-regulated
institutions as: 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, and organizations
operating under section 25 or 25A of the
Federal Reserve Act. Other federal
agencies account for the paperwork
burden imposed on the entities for
which they have administrative
enforcement authority. The current total
annual burden to comply with the
provisions of Regulation Z is estimated
to be 688,607 hours for the 1,138
Federal Reserve-regulated institutions
that are deemed to be respondents for
the purposes of the PRA. To ease the
burden and cost of complying with
Regulation Z (particularly for small
entities), the Federal Reserve provides
model forms, which are appended to the
regulation.
The proposed rule would impose a
one-time increase in the total annual
burden under Regulation Z for all
respondents regulated by the Federal
Reserve by 27,312 hours, from 688,607
hours to 715,919 hours.
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The total estimated burden increase,
as well as the estimates of the burden
increase associated with each major
section of the proposed rule as set forth
below, represents averages for all
respondents regulated by the Federal
Reserve. The Federal Reserve expects
that the amount of time required to
implement each of the proposed
changes for a given institution may vary
based on the size and complexity of the
respondent. Furthermore, the burden
estimate for this rulemaking does not
include the burden addressing
provisions from the Mortgage Disclosure
Improvement Act of 2008 (Docket No.
R–1340) or Higher Education
Opportunity Act (Docket No. R–1353)
announced in separate proposed
rulemakings.
The Federal Reserve estimates that
1,138 respondents regulated by the
Federal Reserve would take, on average,
16 hours (two business days) to update
their systems for periodic statements to
comply with the proposed disclosure
requirements in § 226.7. In addition, the
Federal Reserve estimates that the 1,138
respondents would take, on average, 8
hours (one business day) to update their
systems for advertising to comply with
the proposed disclosure requirements in
§ 226.16. This one-time revision would
increase the burden by 27,312 hours.
The other federal agencies are
responsible for estimating and reporting
to OMB the total paperwork burden for
the institutions for which they have
administrative enforcement authority.
They may, but are not required to, use
the Federal Reserve’s burden estimation
methodology. Using the Federal
Reserve’s method, the total current
estimated annual burden for institutions
regulated by the federal financial
agencies, including Federal Reservesupervised institutions, would be
approximately 13,568,725 hours. The
proposed rule would impose a one-time
increase in the estimated annual burden
by 412,800 hours to 13,981,525 hours.
The above estimates represent an
average across all respondents regulated
by federal financial agencies and reflect
variations between institutions based on
their size, complexity, and practices. All
covered institutions, of which there are
approximately 17,200, potentially are
affected by this collection of
information, and thus are respondents
for purposes of the PRA.
Comments are invited on: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the Federal Reserve’s functions;
including whether the information has
practical utility; (2) the accuracy of the
Federal Reserve’s estimate of the burden
of the proposed information collection,
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including the cost of compliance; (3)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (4) ways to minimize the
burden of information collection on
respondents, including through the use
of automated collection techniques or
other forms of information technology.
Comments on the collection of
information should be sent to Michelle
Shore, Federal Reserve Board Clearance
Officer, Division of Research and
Statistics, Mail Stop 151–A, Board of
Governors of the Federal Reserve
System, Washington, DC 20551, with
copies of such comments sent to the
Office of Management and Budget,
Paperwork Reduction Project (7100–
0199), Washington, DC 20503.
List of Subjects in 12 CFR Part 226
Advertising, Consumer protection,
Federal Reserve System, Reporting and
recordkeeping requirements, Truth in
Lending.
Text of Proposed Revisions
Certain conventions have been used
to highlight the proposed revisions.
New language is shown inside flboldtype arrowsfi while language that
would be deleted is set off with øboldtype brackets¿.
For the reasons set forth in the
preamble, the Board proposes to further
amend Regulation Z, 12 CFR part 226,
as amended at 74 FR 5559, January 29,
2009, as set forth below:
PART 226—TRUTH IN LENDING
(REGULATION Z)
1. The authority citation for part 226
continues to read as follows:
Authority: 12 U.S.C. 3806; 15 U.S.C. 1604,
1637(c)(5), and 1639(l).
2. Section 226.6 is amended as
follows:
A. Paragraph (b)(1) introductory text
is revised.
B. Paragraph (b)(1)(ii) is revised.
C. Paragraph (b)(2)(i)(E) is revised.
D. Paragraph (b)(4)(ii)(G) is revised.
§ 226.6
Account-opening disclosures.
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(b) Rules affecting open-end (not
home-secured) plans. The requirements
of paragraph (b) of this section apply to
plans other than home-equity plans
subject to the requirements of § 226.5b.
(1) Form of disclosures; tabular
format for open-end (not home-secured)
plans. Creditors must provide the
account-opening disclosures specified
in paragraphs (b)(2)(i) through (b)(2)(v)
(except for (b)(2)(i)(D)(2)) and (b)(2)(vii)
through (b)(2)(xiv) of this sectionø)¿ in
the form of a table with the headings,
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content, and format substantially similar
to any of the applicable tables in G–17
in Appendix G to this part.
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(ii) Location. Only the information
required or permitted by paragraphs
(b)(2)(i) through (b)(2)(v) (except for
(b)(2)(i)(D)(2)) and (b)(2)(vii) through
(b)(2)(xiv) of this sectionø)¿ shall be in
the table. Disclosures required by
paragraphs (b)(2)(i)(D)(2), (b)(2)(vi) and
(b)(2)(xv) of this section shall be placed
directly below the table. Disclosures
required by paragraphs (b)(3) through
(b)(5) of this section that are not
otherwise required to be in the table and
other information may be presented
with the account agreement or accountopening disclosure statement, provided
such information appears outside the
required table.
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(2) * * *
(i) * * *
(E) Point of sale where APRs vary by
statefl or based on creditworthinessfi.
Creditors imposing annual percentage
rates that vary by statefl or based on the
consumer’s creditworthinessfi and
providing the disclosures required by
paragraph (b) of this section in person
at the time the open-end (not homesecured) plan is established in
connection with financing the purchase
of goods or services may, at the
creditor’s option, disclose pursuant to
paragraph (b)(2)(i) of this section in the
account-opening tablefl;
(1) Thefi øthe¿ specific annual
percentage rate applicable to the
consumer’s account, or
fl(2) Thefi øthe¿ range of the annual
percentage rates, if the disclosure
includes a statement that the annual
percentage rate varies by state flor will
be determined based on the consumer’s
creditworthiness fiand refers the
consumer to the account agreement or
other disclosure provided with the
account-opening table where the annual
percentage rate applicable to the
consumer’s account is disclosed. A
creditor may not list annual percentage
rates for multiple states in the accountopening table.
*
*
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(4) * * *
(ii) * * *
(G) A rate is accurate if it is a rate as
of a specified date fland this rate was
in effectfi within the last 30 days before
the disclosures are provided.
*
*
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3. Section 226.7 is amended by
adding paragraph (b)(14) to read as
follows:
§ 226.7
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*
Periodic statement.
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(b) * * *
fl(14) Deferred or waived interest
transactions. For accounts with an
outstanding balance subject to a
deferred or waived interest program, the
date by which that outstanding balance
must be paid in full in order to avoid
the obligation to pay finance charges on
such balance must be disclosed on the
front of the periodic statement for two
billing cycles immediately preceding
the billing cycle in which such date
occurs. The disclosure provided
pursuant to this paragraph must be
substantially similar to Sample G–18(H)
in Appendix G to this part.fi
*
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*
4. Section 226.9 is amended as
follows:
A. Paragraph (c)(2)(iv) is revised.
B. Paragraph (g)(4)(i) introductory text
is revised.
C. Paragraphs (g)(4)(i)(A) and (B) are
revised
D. Paragraph (g)(4)(iii) is revised.
§ 226.9 Subsequent disclosure
requirements.
*
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(c) * * *
(2) * * *
(iv) Notice not required. For open-end
plans (other than home equity plans
subject to the requirements of § 226.5b),
a creditor is not required to provide
notice under this section when the
change involves charges for
documentary evidence; a reduction of
any component of a finance or other
charge; suspension of future credit
privileges (except as provided in
paragraph (c)(2)(v) of this section) or
termination of an account or plan; [or]
when the change results from an
agreement involving a court
proceedingfl; or if the change is
applicable only to a check or checks that
access a credit card account and the
changed terms are disclosed on or with
the checks in accordance with
§ 226.9(b)(3)fi.
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*
(g) * * *
(4) Exceptions. (i) Workout fland
temporary hardshipfi arrangements. A
creditor is not required to provide a
notice pursuant to paragraph (g)(1) of
this section if a rate applicable to a
category of transactions is increased
fldue to the consumer’s completion of
a workout or temporary hardship
arrangement orfi as a result of the
consumer’s default, delinquency or as a
penalty, in each case for failure to
comply with the terms of a workout
flor temporary hardshipfi arrangement
between the creditor and the consumer,
provided that:
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20793
(A) The rate following any such
increase does not exceed the rate that
applied to the category of transactions
prior to commencement of the workout
flor temporary hardshipfi
arrangement; or
(B) If the rate that applied to a
category of transactions prior to the
commencement of the workout flor
temporary hardshipfi arrangement was
a variable rate, the rate following any
such increase is a variable rate
determined by the same formula (index
and margin) that applied to the category
of transactions prior to commencement
of the workout flor temporary
hardshipfi arrangement.
*
*
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*
*
(iii) Certain rate increases applicable
to outstanding balances. A creditor is
not required to provide a notice
pursuant to paragraph (g)(1) of this
section prior to increasing øthe¿ flafi
rate øapplicable to an outstanding
balance as defined in 12 CFR
§ 227.24(a)(2), if:¿ flpursuant to 12 CFR
227.24(b)(4) or similar law, if:fi
(A) The creditor previously provided
a notice pursuant to paragraph (g)(1) of
this section containing the content
specified in paragraph (g)(3) of this
section;
(B) After that notice is provided but
prior to the effective date of the rate
increase or rate increases disclosed in
the notice pursuant to paragraph
(g)(3)(i)(B) of this section, the consumer
fails to make a required minimum
periodic payment within 30 days from
the due date for that payment; and
(C) The rate increase øapplicable to
outstanding balances¿ flpursuant to 12
CFR 227.24(b)(4) or similar lawfi takes
effect on the effective date set forth in
the notice.
5. Section 226.16 is amended by
adding new paragraph (h) to read as
follows:
§ 226.16
Advertising.
*
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*
*
fl(h) Deferred or waived interest
offers. (1) Scope. The requirements of
this paragraph apply to any
advertisement of an open-end credit
plan not subject to § 226.5b, including
promotional materials accompanying
applications or solicitations subject to
§ 226.5a(c) or accompanying
applications or solicitations subject to
§ 226.5a(e).
(2) Definitions. ‘‘Deferred interest’’ or
‘‘waived interest’’ means finance
charges accrued on balances or
transactions that a consumer is not
obligated to pay or that will be waived
or refunded to a consumer if those
balances or transactions are paid in full
by a specified date. The maximum
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period from the date the consumer
becomes obligated for the balance or
transaction until the specified date by
which the consumer must pay the
balance or transaction in full in order to
avoid finance charges, or receive a
waiver or refund of finance charges, is
the ‘‘deferred interest period’’ or
‘‘waived interest period.’’ ‘‘Deferred
interest’’ or ‘‘waived interest’’ does not
include any finance charges the
consumer is not obligated to pay in
connection with any recurring grace
period.
(3) Stating the deferred or waived
interest period. If a deferred or waived
interest offer is advertised, the deferred
or waived interest period must be stated
in a clear and conspicuous manner in
the advertisement. If the phrase ‘‘no
interest’’ or similar term regarding the
possible avoidance of interest
obligations under the deferred or
waived interest program is stated, the
term ‘‘if paid in full’’ must also be stated
in a clear and conspicuous manner
preceding the disclosure of the deferred
or waived interest period in the
advertisement. If the deferred or waived
interest offer is advertised in a written
or electronic advertisement, the deferred
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or waived interest period and, if
applicable, the term ‘‘if paid in full’’
must also be stated in immediate
proximity to each statement of ‘‘no
interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ ‘‘same as cash,’’ or similar
term regarding interest or payments
during the deferred or waived interest
period.
(4) Stating the terms of the deferred or
waived interest offer. If any deferred or
waived interest offer is advertised, the
information in paragraphs (h)(4)(i) and
(h)(4)(ii) of this section must be stated
in the advertisement, in language
similar to Samples G–22 in appendix G
to this part. If the deferred or waived
interest offer is advertised in a written
or electronic advertisement, the
information in paragraphs (h)(4)(i), and
(h)(4)(ii) of this section must also be
stated in a prominent location closely
proximate to the first statement of ‘‘no
interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ ‘‘same as cash,’’ or similar
term regarding interest or payments
during the deferred or waived interest
period.
(i) A statement that interest will be
charged from the date the consumer
becomes obligated for the balance or
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transaction subject to the deferred or
waived interest offer if the balance or
transaction is not paid in full within the
deferred or waived interest period; and
(ii) A statement, if applicable, that
interest will be charged from the date
the consumer incurs the balance or
transaction subject to the deferred or
waived interest offer if the account is in
default before the end of the deferred or
waived interest period.
(5) Envelope excluded. The
requirements in paragraph (h)(4) of this
section do not apply to an envelope or
other enclosure in which an application
or solicitation is mailed, or to a banner
advertisement or pop-up advertisement
linked to an application or solicitation
provided electronically.fi
6. Appendix G to Part 226 is amended
by:
A. Revising Forms G–10(A) and G–
18(G).
B. Adding new Forms G–18(H) and
G–22.
Appendix G to Part 226—Open-End
Model Forms and Clauses
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BILLING CODE 6210–01–P
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flG–18(H) Deferred or Waived Interest
Periodic Statement Clause
øYou must pay your promotional balance
in full by ødate¿ to avoid paying accrued
interest charges.¿fi
flG–22 Deferred or Waived Interest Offer
Clauses
(a) For Issuers Subject to 12 CFR 227.24 or
Similar Law.
øInterest will be charged to your account
from the purchase date if the purchase
balance is not paid in full within the/by
ødeferred interest period/date¿ or if you
make a late payment.¿
(b) For Creditors Not Subject to 12 CFR
227.24 or Similar Law.
øInterest will be charged to your account
from the purchase date if the purchase
balance is not paid in full within the/by
ødeferred interest period/date¿ or if your
account is otherwise in default.¿ fi
7. In Supplement I to Part 226:
A. In § 226.5, Paragraph 5(b)(2)(ii).,
paragraph 2. is revised.
B. In § 226.5a, 5a(b)(1), paragraph 9. is
added.
C. In § 226.7:
(i) In 7(b), paragraph 1. is revised.
(ii) In 7(b)(6), paragraphs 6. and 7. are
added.
D. In § 226.9:
(i) In 9(c)(2), paragraph 4. is added.
(ii) In 9(c)(2)(i), paragraph 3. is revised.
(iii) In 9(c)(2)(iv), paragraph 2. is revised.
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(iv) In 9(g), paragraphs 1.i., 1.iii.
introductory text, and 1.iii.C. are revised.
(v) In 9(g)(4)(ii), the undesignated
paragraph is designated as paragraph 1.
E. In § 226.12, in 12(b), paragraph 3.vi. is
revised.
F. In § 226.13, in 13(f), paragraph 3.i.F. is
revised.
G. In § 226.16:
(i) Paragraphs 1 and 2 are revised.
(ii) Paragraph 16(h) is added.
H. In Appendix G, paragraph 5.v.C. is
revised and paragraph 12. is added.
Supplement I to Part 226—Official Staff
Interpretations
Subpart B—Open-End Credit
5a(b)
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*
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*
5(b)
*
*
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*
*
*
Periodic statements.
*
*
*
Paragraph 5(b)(2)(ii).
*
*
*
*
*
2. Deferred flor waivedfi interest
transactions. See comment 7(b)–1.iv.
*
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§ 226.5a—Credit and Charge Card
Applications and Solicitations
*
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*
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§ 226.7—Periodic Statement
*
Time of disclosures.
5(b)(2)
*
*
*
*
Annual percentage rate.
fl9. Deferred or waived interest
transactions. An issuer offering a deferred or
waived interest plan, such as a promotional
program that provides that a consumer will
not be obligated to pay interest that accrues
on a balance if that balance is paid in full
prior to the expiration of a specified period
of time, may not disclose a 0% rate as the
rate applicable to deferred or waived interest
transactions if there are any circumstances
under which the consumer will be obligated
for interest on such transactions for the
waived or deferred interest period.fi
*
*
*
5a(b)(1)
§ 226.5—General Disclosure
Requirements
*
Required disclosures.
*
*
*
*
*
7(b) Rules affecting open-end (not homesecured) plans.
1. Deferred flor waivedfi interest
transactions. Creditors offer a variety of
payment plans for purchases that permit
consumers to avoid interest charges if the
purchase balance is paid in full by a certain
date. The following provides guidance for a
deferred flor waivedfi interest plan where,
for example, no interest charge is imposed on
a $500 purchase made in January if the $500
balance is paid by March 31. øThe following
guidance does not apply to card issuers that
are subject to 12 CFR § 227.24 or similar law
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which does not permit the assessment of
deferred interest.¿
i. Annual percentage rates. Under
§ 226.7(b)(4), creditors must disclose each
annual percentage rate that may be used to
compute the interest charge. Under some
plans with a deferred flor waivedfi interest
feature, if the deferred flor waivedfi
interest balance is not paid by a certain date,
March 31 in this example, interest charges
applicable to the billing cycles between the
date of purchase in January and March 31
may be imposed. Annual percentage rates
that may apply to the deferred flor waivedfi
interest balance ($500 in this example) if the
balance is not paid in full by March 31 must
appear on periodic statements for the billing
cycles between the date of purchase and
March 31. However, if the consumer does not
pay the deferred flor waivedfi interest
balance by March 31, the creditor is not
required to identify, on the periodic
statement disclosing the interest charge for
the deferred flor waivedfi interest balance,
annual percentage rates that have been
disclosed in previous billing cycles between
the date of purchase and March 31.
ii. Balances subject to periodic rates.
Under § 226.7(b)(5), creditors must disclose
the balances subject to interest during a
billing cycle. The deferred interest balance
($500 in this example) is not subject to
interest for billing cycles between the date of
purchase and March 31 in this example.
Periodic statements sent for those billing
cycles should not include the deferred
interest balance in the balance disclosed
under § 226.7(b)(5). øAt the creditor’s option,
t¿ flTfihis amount ømay¿ flmustfi be
separately disclosed on periodic statements
øprovided it is¿ flandfi identified by a term
other than the term used to identify the
balance disclosed under § 226.7(b)(5) (such
as ‘‘deferred interest balance’’). During any
billing cycle in which an interest charge on
the deferred flor waivedfi interest balance
is debited to the account, the balance
disclosed under § 226.7(b)(5) should include
the deferred flor waivedfi interest balance
for that billing cycle.
iii. Amount of interest charge. Under
§ 226.7(b)(6)(ii), creditors must disclose
interest charges imposed during a billing
cycle. For some deferred flor waivedfi
interest purchases, the creditor may impose
interest from the date of purchase if the
deferred flor waivedfi interest balance
($500 in this example) is not paid in full by
March 31 in this example, but otherwise will
not impose interest for billing cycles between
the date of purchase and March 31. Periodic
statements for billing cycles preceding March
31 in this example should not include in the
interest charge disclosed under
§ 226.7(b)(6)(ii) the amounts a consumer may
owe if the deferred flor waivedfi interest
balance is not paid in full by March 31. In
this example, the February periodic
statement should not identify as interest
charges interest attributable to the $500
January purchase. øAt the creditor’s option,
t¿ flTfihis amount ømay¿ flmustfi be
separately disclosed on periodic statements
øprovided it is¿ flandfiidentified by a term
other than ‘‘interest charge’’ (such as
‘‘contingent interest charge’’ or ‘‘deferred
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interest charge’’). The interest charge on a
deferred flor waivedfi interest balance
should be reflected on the periodic statement
under § 226.7(b)(6)(ii) for the billing cycle in
which the interest charge is debited to the
account.
iv. øGrace period.¿ flDue date to avoid
obligation for finance charges under a
deferred or waived interest program. Section
226.7(b)(14) requires disclosure on periodic
statements of the date by which any
outstanding balance subject to a deferred or
waived interest program must be paid in full
in order to avoid the obligation for finance
charges on such balance. This disclosure
must appear on the front of the periodic
statement for two billing cycles immediately
preceding the billing cycle in which the
disclosed date occurs. However, if the
duration of the deferred or waived interest
period is such that the reminder cannot be
given for the last two billing cycles
immediately preceding the disclosed date,
the disclosure must be included on all
periodic statements during the deferred or
waived interest period.fi Assuming monthly
billing cycles ending at month-end and a
øgrace period ending on¿ flpayment due
date offi the 25th of the following month
flfor balances not subject to the deferred or
waived interest programfi, the following
øare four¿ examples illustratflefiøing¿ how
a creditor may comply with the requirement
flin § 226.7(b)(14)fi to disclose the øgrace
period¿ fldate by which payment in full of
balances subject to the deferred or waived
interest program must occur in order to avoid
the obligation to pay finance chargesfi
applicable to a deferred flor waivedfi
interest balance ($500 in this example) øand
with the 14-day rule for mailing or delivering
periodic statements before imposing finance
charges (see § 226.5)¿:
A. øThe creditor could include the $500
purchase on the periodic statement reflecting
account activity for February and sent on
March 1 and¿ flIf the creditorfi
identiføy¿fliesfi March 31 as the paymentdue date for the $500 purchasefl, the
creditor must include the $500 purchase and
its due date on the periodic statement
reflecting activity for January sent on
February 1, and the periodic statement
reflecting activity for February sent on March
1fi. (flFor the periodic statement reflecting
account activity for February sent on March
1,fi øT¿ fltfihe creditor could also identify
March 31 as the payment-due date for any
other amounts that would normally be due
on March 25.)
B. øThe creditor could include the $500
purchase on the periodic statement reflecting
activity for March and sent on April 1 and
identify April 25 as the payment-due date for
the $500 purchase,¿ flIf the creditor opts to
delay the end of the deferred or waived
interest period to coincide with the end of
the grace period for balances not subject to
the deferred or waived interest program byfi
permitting the consumer to avoid finance
charges if the $500 is paid in full by April
25fl, the creditor must include the $500
purchase and its due date on the periodic
statement reflecting activity for February sent
on March 1, and the periodic statement
reflecting activity for March sent on April
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1fi. flThe creditor could also include the
$500 purchase and its due date on flthe
periodic statement reflecting activity for
January sent on February 1.fi
C. flIf the purchase was made in
December (instead of January), fiøT¿fltfihe
creditor flmust include the $500 purchase
and its due date on the periodic statement
reflecting activity for January sent on
February 1 and the periodic statement
reflecting activity for February sent on March
1. The creditor flalsofi could include the
$500 purchase and its due date on flthe
periodic statement reflecting activity for
December sent on January 1fiøeach periodic
statement sent during the deferred interest
period (January, February, and March in this
example)¿.
D. If the due date for the deferred flor
waivedfi interest balance is øMarch
7¿flFebruary 20fi (instead of March 31), the
creditor flmustfi øcould¿ include the $500
purchase and its due date on the periodic
statement reflecting activity for January and
sent on February 1ø, the most recent
statement sent at least 14 days prior to the
due date¿.
*
*
*
7(b)(6)
*
*
*
*
Charges imposed.
*
*
*
fl6. Acquired accounts. An institution that
acquires an account or plan must include, as
applicable, fees and charges imposed on the
account or plan prior to the acquisition in the
aggregate disclosures provided under
§ 226.7(b)(6) for the acquired account or plan.
Alternatively, the institution may provide
separate totals reflecting activity prior and
subsequent to the account or plan
acquisition. For example, a creditor that
acquires an account or plan on August 12 of
a given calendar year may provide one total
for the period from January 1 to August 11
and a separate total for the period beginning
on August 12.
7. Account upgrades. A creditor that
upgrades, or otherwise changes, a consumer’s
plan to a different open-end credit plan must
include, as applicable, fees and charges
imposed for that portion of the calendar year
prior to the upgrade or change in the
consumer’s plan in the aggregate disclosures
provided pursuant to § 226.7(b)(6) for the
new plan. For example, assume a consumer
has incurred $125 in fees for the calendar
year to date for a retail credit card account,
which is then replaced by a cobranded credit
card account also issued by the creditor. In
this case, the creditor must reflect the $125
in fees incurred prior to the replacement of
the retail credit card account in the calendar
year-to-date totals provided for the
cobranded credit card account. Alternatively,
the institution may provide two separate
totals reflecting activity prior and subsequent
to the plan upgrade or change.fi
*
*
*
*
*
§ 226.9—Subsequent Disclosure
Requirements
*
*
9(c)
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9(c)(2) Rules affecting open-end (not
home-secured) plans.
by the creditor with different credit or other
featuresfi.
*
*
*
*
*
*
fl4. Relationship to § 226.9(b). If a creditor
adds a feature to the account on the type of
terms otherwise required to be disclosed
under § 226.6, the creditor must satisfy: the
requirement to provide the finance charge
disclosures for the added feature under
§ 226.9(b); and any applicable requirement to
provide a change-in-terms notice under
§ 226.9(c), including any advance notice that
must be provided. For example, if a creditor
adds a balance transfer feature to an account
more than 30 days after account-opening
disclosures are provided, it must give the
finance charge disclosures for the balance
transfer feature under § 226.9(b) as well as
comply with the change-in-terms notice
requirements under § 226.9(c), including
providing notice of the change at least 45
days prior to the effective date of the change.
Similarly, if a creditor makes a balance
transfer offer on finance charge terms that are
higher than those previously disclosed for
balance transfers, it would also generally be
required to provide a change-in-terms notice
at least 45 days in advance of the effective
date of the change. A creditor may provide
a single notice under § 226.9(c) to satisfy the
notice requirements of both paragraphs (b)
and (c) of § 226.9. For checks that access a
credit card account subject to the disclosure
requirements in § 226.9(b)(3), a creditor is not
subject to the notice requirements under
§ 226.9(c) even if the applicable rate or fee is
higher than those previously disclosed for
such checks. Thus, for example, the creditor
need not wait 45 days before applying the
new rate or fee for transactions made using
such checks, but the creditor must make the
required disclosures on or with the checks in
accordance with § 226.9(b)(3). fi
*
*
*
*
*
9(c)(2)(i) Changes where written advance
notice is required
*
*
*
*
*
3. Timing—advance notice not required.
Advance notice of 45 days is not necessary—
that is, a notice of change in terms is
required, but it may be mailed or delivered
as late as the effective date of the change if
the consumer agrees to the particular change.
This provision is flsolelyfi intended for use
in the unusual instance when a consumer
substitutes collateral or when the creditor
can advance additional credit only if a
change relatively unique to that consumer is
made, such as the consumer’s providing
additional security or paying an increased
minimum payment amount. Therefore, the
following are not ‘‘agreements’’ between the
consumer and the creditor for purposes of
§ 226.9(c)(2)(i): The consumer’s general
acceptance of the creditor’s contract
reservation of the right to change terms; the
consumer’s use of the account (which might
imply acceptance of its terms under state
law); øand¿ the consumer’s acceptance of a
unilateral term change that is not particular
to that consumer, but rather is of general
applicability to consumers with that type of
accountfl; and the consumer’s request to
reopen a closed account or to upgrade an
existing account to another account offered
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22:33 May 04, 2009
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*
*
9(c)(2)(iv)
*
*
*
*
Notice not required.
*
*
*
2. Skip features. If a credit program allows
consumers to skip or reduce one or more
payments during the year, or involves
temporary reductions in finance charges, no
notice of the change in terms is required
either prior to the reduction or upon
resumption of the higher rates or payments
if these features are explained on the
account-opening disclosure statement
(including an explanation of the terms upon
resumption). For example, a merchant may
allow consumers to skip the December
payment to encourage holiday shopping, or
a teacher’s credit union may not require
payments during summer vacation.
Otherwise, the creditor must give notice prior
to resuming the original schedule or rate,
even though no notice is required prior to the
reduction. The change-in-terms notice may
be combined with the notice offering the
reduction. For example, the periodic
statement reflecting the reduction or skip
feature may also be used to notify the
consumer of the resumption of the original
schedule or rate, either by stating explicitly
when the higher payment or charges resume
or by indicating the duration of the skip
option. Language such as ‘‘You may skip
your October payment,’’ or ‘‘We will waive
your interest charges for January’’ may serve
as the change-in-terms notice. flHowever, a
creditor offering a temporary reduction in an
interest rate must provide a notice in
accordance with the timing requirements of
§ 226.9(c)(2)(i) and the content and format
requirements of § 226.9(c)(2)(ii)(A) and (B)
prior to resuming the original rate.fi
*
*
*
*
*
9(g) Increase in rates due to delinquency
or default or as a penalty.
1. * * *
i. Assume that, at account opening on
January 1 of year one, an issuer discloses, in
accordance with the applicable notice
requirements of § 226.6, that that the annual
percentage rate for purchases is a nonvariable rate of 15% and will apply for six
months. The issuer also discloses that, after
six months, the annual percentage rate for
purchases will be a variable rate that is
currently 18% and will be adjusted quarterly
by adding a margin of 8 percentage points to
a publicly-available index not under the
issuer’s control. flFurthermore,fiøFinally,¿
the issuer discloses that the annual
percentage rate for cash advances is the same
variable rate that will apply to purchases
after six months. flFinally, the bank
discloses that a non-variable penalty rate of
30% may apply if the consumer makes a late
payment. fiThe payment due date for the
account is the twenty-fifth day of the month
and the required minimum periodic
payments are applied to accrued interest and
fees but do not reduce the purchase and cash
advance balances.
*
*
*
*
*
iii. Assume that, at account opening on
January 1 of year one, a issuer discloses in
accordance with the applicable notice
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requirements in § 226.6 that the annual
percentage rate for purchases is a variable
rate determined by adding a margin of 6
percentage points to a publicly-available
index outside of the issuer’s control. The
issuer also discloses that a non-variable
penalty rate of 28% may apply if the
consumer makes a late payment. The due
date for the account is the fifteenth of the
month. On May 30 of year two, the account
has an outstanding purchase balance of
$1,000. On May 31, the creditor provides a
notice pursuant to § 226.9(c) informing the
consumer of a new variable rate that will
apply effective July 16 for all purchases made
on or after June 8 (calculated by using the
same index and an increased margin of 8
percentage points). On June 7, the consumer
makes a $500 purchase. On June 8, the
consumer makes a $200 purchase. On June
25, the issuer has not received the payment
due on June 15 and provides the consumer
with a notice pursuant to § 226.9(g) stating
that the penalty rate of 28% will apply as of
August 9 to all transactions made on or after
July 3 that includes the content required by
§ 226.9(g)(3)(i) fland states that if the
consumer becomes more than 30 days late,
the penalty rate will apply to all balances on
the accountfi. On July 4, the consumer
makes a $300 purchase.
*
*
*
*
*
C. Same facts as paragraph A. above except
the payment due on June 15 of year two is
received on July 20. The issuer is permitted
under 12 CFR 227.24 or similar law to apply
the 28% penalty rate to all balances on the
account and to future transactions because it
has not received payment within 30 days
after the due date. Because the issuer
provided a notice pursuant to § 226.9(g) on
June fl25fiø24¿ disclosing the 28% penalty
rate, the issuer may apply the 28% penalty
rate to all balances on the account as well as
any future transactions on August 9 without
providing an additional notice pursuant to
§ 226.9(g).
*
*
*
*
*
9(g)(4) Exceptions.
9(g)(4)(ii) Decrease in credit limit.
fl1. fiThe following illustrates the
requirements of § 226.9(g)(4)(ii). Assume that
a creditor decreased the credit limit
applicable to a consumer’s account and sent
a notice pursuant to § 226.9(g)(4)(ii) on
January 1, stating among other things that the
penalty rate would apply if the consumer’s
balance exceeded the new credit limit as of
February 16. If the consumer’s balance
exceeded the credit limit on February 16, the
creditor could impose the penalty rate on
that date. However, a creditor could not
apply the penalty rate if the consumer’s
balance did not exceed the new credit limit
on February 16, even if the consumer’s
balance had exceeded the new credit limit on
several dates between January 1 and February
15. If the consumer’s balance did not exceed
the new credit limit on February 16 but the
consumer conducted a transaction on
February 17 that caused the balance to
exceed the new credit limit, the general rule
in § 226.9(g)(1)(ii) would apply and the
creditor would be required to give an
additional 45 days’ notice prior to imposition
of the penalty rate (but under these
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circumstances the consumer would have no
ability to cure the over-the-limit balance in
order to avoid penalty pricing).
*
*
*
*
*
§ 226.12—Special Credit Card Provisions
*
*
*
*
*
12(b) Liability of cardholder for
unauthorized use.
*
*
*
*
*
3. * * *
vi. flRequiringfiøRequesting¿ a written,
signed statement from the cardholder or
authorized user. For example, the creditor
may include a signature line on a billing
rights form that the cardholder may send in
to provide notice of the claim. However, a
creditor may not require the cardholder to
provide an affidavit or signed statement
under penalty of perjury as part of a
reasonable investigation.
*
*
*
*
*
§ 226.13—Billing Error Resolution
*
*
*
*
*
13(f) Procedures if different billing error
or no billing error occurred.
*
*
*
*
*
3. * * *
i. * * *
F. flRequiringfiøRequesting¿ a written,
signed statement from the consumer (or
authorized user, in the case of a credit card
account). For example, the creditor may
include a signature line on a billing rights
form that the consumer may send in to
provide notice of the claim. However, a
creditor may not require the consumer to
provide an affidavit or signed statement
under penalty of perjury as a part of a
reasonable investigation.
*
*
*
*
*
*
§ 226.16—Advertising
1. Clear and conspicuous standard—
general. Section 226.16 is subject to the
general ‘‘clear and conspicuous’’ standard for
subpart B (see § 226.5(a)(1)) but prescribes no
specific rules for the format of the necessary
disclosures, other than the format
requirements related to the disclosure of a
promotional rate or payment under
§ 226.16(d)(6) fl,fiøor¿ a promotional rate
under § 226.16(g) flor a deferred or waived
interest offer under § 226.16(h)fi. Other than
the disclosure of certain terms described in
§§ 226.16(d)(6)fl,fiøor¿ (g) flor (h)fi, the
credit terms need not be printed in a certain
type size nor need they appear in any
particular place in the advertisement.
2. Clear and conspicuous standard—
promotional rates or paymentsfl; deferred or
waived interest offersfi.
i. For purposes of § 226.16(d)(6), a clear
and conspicuous disclosure means that the
required information in § 226.16(d)(6)(ii)(A)–
(C) is disclosed with equal prominence and
in close proximity to the promotional rate or
payment to which it applies. If the
information in § 226.16(d)(6)(ii)(A)–(C) is the
same type size and is located immediately
next to or directly above or below the
promotional rate or payment to which it
applies, without any intervening text or
graphical displays, the disclosures would be
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22:33 May 04, 2009
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deemed to be equally prominent and in close
proximity. Notwithstanding the above, for
electronic advertisements that disclose
promotional rates or payments, compliance
with the requirements of § 226.16(c) is
deemed to satisfy the clear and conspicuous
standard.
ii. For purposes of § 226.16(g)(4) as it
applies to written or electronic
advertisements only, a clear and conspicuous
disclosure means the required information in
§ 226.16(g)(4)(i) and (g)(4)(ii) must be equally
prominent to the promotional rate to which
it applies. If the information in
§ 226.16(g)(4)(i) and (g)(4)(ii) is the same type
size as the promotional rate to which it
applies, the disclosures would be deemed to
be equally prominent. flFor purposes of
§ 226.16(h)(3) as it applies to written or
electronic advertisements only, a clear and
conspicuous disclosure means the required
information in § 226.16(h)(3) must be equally
prominent to each statement of ‘‘no interest,’’
‘‘no payments,’’ ‘‘deferred interest,’’ ‘‘same as
cash,’’ or similar term regarding interest or
payments during the deferred or waived
interest period. If the information required to
be disclosed under § 226.16(h)(3) is the same
type size as the statement of ‘‘no interest,’’
‘‘no payments,’’ ‘‘deferred interest,’’ ‘‘same as
cash,’’ or similar term regarding interest or
payments during the deferred or waived
interest period, the disclosure would be
deemed to be equally prominent.fi
*
*
*
*
fl16(h) Deferred or waived interest
offers.
1. Deferred or waived interest clarified.
Deferred or waived interest offers do not
include offers that allow a consumer to skip
payments during a specified period of time,
and under which the consumer is not
obligated under any circumstances for any
interest or other finance charges that could be
attributable to that period. Deferred or
waived interest offers also do not include 0%
annual percentage rate offers where a
consumer is not obligated under any
circumstances for interest attributable to the
time period the 0% annual percentage rate
was in effect, though such offers may be
considered promotional rates under
§ 226.16(e)(2)(i). Deferred or waived interest
offers also do not include skip payment
programs that have no required minimum
payment for one or more billing cycles but
where interest continues to accrue and be
imposed during that period.
2. Deferred or waived interest period
clarified. Although the terms of an advertised
deferred or waived interest offer may provide
that a creditor may charge the accrued
interest if a full payment is not received by
a certain date, creditors sometimes have an
informal policy or practice that delays
charging the accrued interest for payment
received a brief period of time after the date
upon which a creditor has the contractual
right to charge the accrued interest. The
advertisement need not include the end of an
informal ‘‘courtesy period’’ in disclosing the
deferred or waived interest period under
§ 226.16(h)(3).
3. Immediate proximity. For written or
electronic advertisements, including the
deferred or waived interest period in the
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same phrase as the statement of ‘‘no
interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ or ‘‘same as cash’’ or similar term
regarding interest or payments during the
deferred or waived interest period is deemed
to be in immediate proximity of the
statement.
4. Prominent location closely proximate.
For written or electronic advertisements,
information required to be disclosed in
§ 226.16(h)(4)(i) and (ii) that is in the same
paragraph as the first statement of ‘‘no
interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ or ‘‘same as cash’’ or similar term
regarding interest or payments during the
deferred or waived interest period is deemed
to be in a prominent location closely
proximate to the statement. Information
disclosed in a footnote is not considered in
a prominent location closely proximate to the
statement.
5. First listing. For purposes of
§ 226.16(h)(4) as it applies to written or
electronic advertisements, the first statement
of ‘‘no interest,’’ ‘‘no payments,’’ ‘‘deferred
interest,’’ ‘‘same as cash,’’ or similar term
regarding interest or payments during the
deferred or waived interest period is the most
prominent listing of one of these statements
on the front side of the first page of the
principal promotional document. The
principal promotional document is the
document designed to be seen first by the
consumer in a mailing, such as a cover letter
or solicitation letter. If one of the statements
does not appear on the front side of the first
page of the principal promotional document,
then the first listing of one of these
statements is the most prominent listing of a
statement on the subsequent pages of the
principal promotional document. If one of
the statements is not listed on the principal
promotional document or there is no
principal promotional document, the first
listing of one of these statements is the most
prominent listing of the statement on the
front side of the first page of each document
containing one of these statements. If one of
the statements does not appear on the front
side of the first page of a document, then the
first listing of one of these statements is the
most prominent listing of a statement on the
subsequent pages of the document. If the
listing of one of these statements with the
largest type size on the front side of the first
page (or subsequent pages if one of these
statements is not listed on the front side of
the first page) of the principal promotional
document (or each document listing one of
these statements if a statement is not listed
on the principal promotional document or
there is no principal promotional document)
is used as the most prominent listing, it will
be deemed to be the first listing. Consistent
with comment 16(c)–1, a catalog or multiplepage advertisement is considered one
document for purposes of § 226.16(h)(4).
6. Additional information. Consistent with
comment 5(a)–2, the information required
under § 226.16(h)(4) need not be segregated
from other information regarding the deferred
or waived interest offer. Advertisements may
also be required to provide additional
information pursuant to § 226.16(b) though
such information need not be integrated with
the information required under
§ 226.16(h)(4).
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7. Examples. Examples of disclosures that
could be used to comply with the
requirements of § 226.16(h)(3) include: ‘‘no
interest if paid in full within 6 months’’ and
‘‘no interest if paid in full by December 31,
2010.’’fi
*
*
*
*
*
Appendix G—Open-End Model Forms and
Clauses
*
*
*
*
*
5. * * *
v. * * *
C. Adequate spacing between paragraphs
when several pieces of information were
included in the same row of the table, as
appropriate. [For example, in the samples in
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22:33 May 04, 2009
Jkt 217001
the row of the tables with the heading ‘‘APR
for Balance Transfers,’’ the forms disclose
two components: the applicable balance
transfer rate and a cross reference to the
balance transfer fee. The samples show these
two components on separate lines with
adequate space between each component. On
the other hand, in the samples, in the
disclosure of the late-payment fee, the forms
disclose two components: the late-payment
fee, and the cross reference to the penalty
rate. Because the disclosure of both these
components is short, these components are
disclosed on the same line in the tables.]
*
*
*
*
*
fl12. Sample G–22. Sample G–22 includes
two model clauses for use in complying with
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§ 226.16(h)(4). Model clause (a) is for use by
credit card issuers subject to 12 CFR 227.24
or similar law. Model clause (b) is for use in
connection with open-end credit plans that
are not subject to 12 CFR 227.24 or similar
law, such as open-end credit plans with no
credit card.fi
*
*
*
*
*
By order of the Board of Governors of the
Federal Reserve System, April 28, 2009.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. E9–10081 Filed 5–4–09; 8:45 am]
BILLING CODE 6210–01–P
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Agencies
[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Proposed Rules]
[Pages 20784-20801]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10081]
[[Page 20783]]
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Part II
Federal Reserve System
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12 CFR Part 226
Truth in Lending; Proposed Rule
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed
Rules
[[Page 20784]]
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FEDERAL RESERVE SYSTEM
12 CFR Part 226
[Regulation Z; Docket No. R-1286]
Truth in Lending
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Proposed rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: On December 18, 2008, the Board adopted a final rule amending
Regulation Z's provisions that apply to open-end (not home-secured)
credit plans. The Board believes that clarification is needed regarding
compliance with certain aspects of the final rule. Accordingly, in
order to facilitate compliance, the Board proposes to amend specific
portions of the regulations and official staff commentary.
DATES: Comments on the proposed amendments must be received on or
before June 4, 2009. Comments on the Paperwork Reduction Act analysis
set forth in Section V of this Federal Register notice must be received
on or before July 6, 2009.
ADDRESSES: You may submit comments, identified by Docket No. R-1286, by
any of the following methods:
Agency Web Site: https://www.federalreserve.gov. Follow the
instructions for submitting comments at https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: regs.comments@federalreserve.gov. Include the
docket number in the subject line of the message.
Facsimile: (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
https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as
submitted, unless modified for technical reasons. Accordingly, your
comments will not be edited to remove any identifying or contact
information. Public comments may also be viewed electronically or in
paper form in Room MP-500 of the Board's Martin Building (20th and C
Streets, NW.) between 9 a.m. and 5 p.m. on weekdays.
FOR FURTHER INFORMATION CONTACT: Benjamin K. Olson, Attorney, Amy Burke
or Vivian Wong, Senior Attorneys, or Ky Tran-Trong or John Wood,
Counsels, Division of Consumer and Community Affairs, Board of
Governors of the Federal Reserve System, at (202) 452-3667 or 452-2412;
for users of Telecommunications Device for the Deaf (TDD) only, contact
(202) 263-4869.
SUPPLEMENTARY INFORMATION:
I. Background
On December 18, 2008, the Federal Reserve Board (Board) adopted a
final rule amending Regulation Z's provisions that apply to open-end
(not home-secured) credit. This rule was published in the Federal
Register on January 29, 2009. See 74 FR 5244 (January 2009 Regulation Z
Rule). On the same date, the Board, the Office of Thrift Supervision
(OTS), and the National Credit Union Administration (NCUA)
(collectively, the Agencies) adopted a final rule under the Federal
Trade Commission Act (FTC Act) to protect consumers from unfair acts or
practices with respect to consumer credit card accounts. This rule also
was published in the Federal Register on January 29, 2009. See 74 FR
5498 (January 2009 FTC Act Rule). The effective date for both rules is
July 1, 2010. See 74 FR 5388-5390; 74 FR 5548.
Since publication of the two rules, the Board has become aware that
clarification is needed to resolve confusion regarding how institutions
will comply with particular aspects of those rules. Accordingly, in
order to provide guidance and facilitate compliance with the January
2009 Regulation Z Rule by the effective date, the Board proposes to
amend portions of the regulations and the accompanying staff
commentary. These proposed amendments are discussed in detail in
Section III of this supplementary information. Similarly, elsewhere in
today's Federal Register, the Agencies have proposed to amend certain
aspects of the January 2009 FTC Act Rule (FTC Act Proposed
Clarifications).
Although comment is requested on the proposed amendments, the Board
emphasizes that the purpose of this rulemaking is to clarify and
facilitate compliance with the consumer protections contained in the
final rules, not to reconsider the need for--or the extent of--those
protections. Thus, commenters are encouraged to limit their submissions
accordingly. Finally, in order to ensure that any amendments can be
adopted in final form with sufficient time for implementation prior to
the effective date, comments regarding those amendments must be
submitted within 30 days of publication in the Federal Register.\1\
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\1\ As discussed elsewhere in the supplementary information to
this proposed rule, commenters have 60 days to submit comments
regarding the Paperwork Reduction Act analysis for the Board's
proposed amendments to the January 2009 Regulation Z Rule.
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II. Statutory Authority
In the supplementary information for the January 2009 Regulation Z
Rule, the Board set forth the sources of its statutory authority under
the Truth in Lending Act. See 74 FR 5249. For purposes of these
proposed rules, the Board continues to rely on this legal authority.
III. Section-by-Section Analysis
Section 226.5a Credit and Charge Card Applications and Solicitations
5a(b) Required Disclosures
5a(b)(1) Annual Percentage Rate
To complement the proposed disclosure requirements for deferred or
waived interest plans described in the supplementary information to
Sec. Sec. 226.7 and 226.16, the Board also proposes a new comment
5a(b)(1)-9 to clarify that an issuer offering a deferred or waived
interest plan may not disclose a rate as 0% due to the possibility that
the consumer may not be obligated for interest regarding the deferred
or waived interest transaction. Given the contingent nature of deferred
or waived interest programs, and the fact that interest is accruing at
a non-zero rate on the account, the Board believes that a disclosure of
a 0% rate could be misleading to consumers.
Section 226.6 Account-Opening Disclosures
6(b) Rules Affecting Open-End (Not Home-Secured) Plans
In addition to the specific proposed amendments to Sec. 226.6
described below, the Board also is considering whether additional
transition guidance is needed for creditors offering open-end credit
secured by real property that may not be subject to Sec. 226.5b
because the real property is not the consumer's dwelling. The January
2009 Regulation Z Rule preserved certain existing rules, for example
the rules under Sec. Sec. 226.6, 226.7, and 226.9, for home-equity
plans subject to Sec. 226.5b pending the completion of the Board's
separate review of the rules applicable to home-secured credit. Since
publication of the January 2009 Regulation Z Rule, the Board
understands that there is uncertainty regarding how creditors that
offer open-end credit secured by real property, that
[[Page 20785]]
may be unaware whether that property is, or remains, the consumer's
dwelling, should comply with the January 2009 Regulation Z Rule. In
particular, creditors offering such plans have asked whether they may
comply with the existing disclosure requirements that were preserved
for home-equity plans subject to Sec. 226.5b or whether they need to
comply with the new disclosure requirements set forth in the final rule
for plans that are not subject to Sec. 226.5b.
Pursuant to the January 2009 Regulation Z Rule, the new disclosure
requirements apply to open-end credit that is not subject to Sec.
226.5b. However, the Board believes that it may be appropriate to
permit creditors offering open-end credit secured by real property that
is not the consumer's dwelling to continue to comply with the existing
rules (consistent with treatment of plans covered under Sec. 226.5b)
until the Board's review of the rules applicable to home-secured open-
end credit is completed. At that time, the Board would determine the
appropriate treatment for these plans. The Board solicits comment on
the prevalence of such open-end credit plans and the burden that would
be associated with determining whether such plans must comply with the
new disclosure requirements contained in the January 2009 Regulation Z
Rule or the existing rules (as applicable to plans subject to Sec.
226.5b). The Board also solicits comment on whether it would be
appropriate to subject these plans to the same disclosure requirements
that apply to home-secured plans or whether they should be treated the
same as other open-end (not home-secured) credit.
6(b)(1) Form of Disclosures; Tabular Format for Open-End (Not Home-
Secured) Plans
The Board proposes to make two technical corrections to Sec.
226.6(b)(1) and (b)(1)(ii) to delete parentheses that were
inadvertently included in the rule due to a scrivener's error, without
intended substantive change.
6(b)(2) Required Disclosures for Account-Opening Table for Open-End
(Not Home-Secured) Plans
6(b)(2)(i) Annual Percentage Rate
Section 226.6(b)(2)(i) sets forth disclosure requirements for rates
that apply to open-end (not home-secured) accounts. Under the January
2009 Regulation Z Rule, creditors generally must disclose the specific
APRs that will apply to the account in the table provided at account
opening. The Board, however, provided a limited exception to this rule
where the APRs that creditors may charge vary by state for accounts
opened at the point of sale. See Sec. 226.6(b)(2)(i)(E). Pursuant to
that exception, creditors imposing APRs that vary by state and
providing the disclosures required by Sec. 226.6(b) in person at the
time an open-end (not home-secured) plan is established in connection
with financing the purchase of goods or services may, at the creditor's
option, disclose in the account-opening table either (1) the specific
APR applicable to the consumer's account, or (2) the range of the APRs,
if the disclosure includes a statement that the APR varies by state and
refers the consumer to the account agreement or other disclosure
provided with the account-opening summary table where the APR
applicable to the consumer's account is disclosed, for example in a
list of APRs for all states.
The Board is proposing to provide similar flexibility to the
disclosure of APRs at the point of sale when rates vary based on the
consumer's creditworthiness. Thus, the Board proposes to amend Sec.
226.6(b)(2)(i)(E) to state that creditors providing the disclosures
required by Sec. 226.6(b) in person at the time an open-end (not home-
secured) plan is established in connection with financing the purchase
of goods or services may, at the creditor's option, disclose in the
account-opening table either (1) the specific APR applicable to the
consumer's account, or (2) the range of the APRs, if the disclosure
includes a statement that the APR varies by state or depends on the
consumer's creditworthiness, as applicable, and refers the consumer to
an account agreement or other disclosure provided with the account-
opening summary table where the APR applicable to the consumer's
account is disclosed, for example in a separate document provided with
the account-opening table.
The Board understands that if creditors are not given additional
flexibility, some consumers could be disadvantaged because creditors
may provide a single rate for all consumers rather than varying the
rate, with some consumers receiving lower rates than would be offered
under a single-rate plan. Thus, without the proposed change, some
consumers may be harmed by receiving higher rates. Moreover, the Board
believes the operational changes necessary to provide the specific APR
applicable to the consumer's account in the table at point of sale when
that rate depends on the consumer's creditworthiness may be too
burdensome and increase creditors' risk of inadvertent noncompliance.
Currently, creditors that establish open-end plans at point of sale
provide account-opening disclosures at point of sale before the first
transaction, with a reference to the APR in a separate document
provided with the account agreement, and commonly provide an additional
set of disclosures which reflect the actual APR for the account when,
for example, a credit card is sent to the consumer. The Board believes
that permitting creditors to provide the specific APR information
outside of the table at point of sale, with the expectation that
consumers will receive disclosures with the specific APR applicable to
the consumer properly formatted in the account-opening table at a later
time, would strike an appropriate balance between the burden on
creditors and the need to disclose to consumers the specific APR
applicable to the consumer's account in the account-opening table
provided at point of sale. The consumer would receive a disclosure of
the actual APR that applies to the account at the point of sale, but
that rate could be provided in a separate document.
6(b)(4) Disclosure of Rates for Open-End (Not Home-Secured) Plans
6(b)(4)(ii) Variable-Rate Accounts
Section 226.6(b)(4)(ii) as adopted in the January 2009 Regulation Z
Rule sets forth the rules for variable-rate disclosures at account-
opening, including accuracy requirements for the disclosed rate. The
accuracy standard as adopted provides that a disclosed rate is accurate
if it is in effect as of a ``specified date'' within 30 days before the
disclosures are provided. See Sec. 226.6(b)(4)(ii)(G).
Currently, creditors generally update rate disclosures provided at
point of sale only when the rates have changed. The Board understands
that some confusion has arisen as to whether the new rule as adopted
literally requires that the account-opening disclosure specify a date
as of which the rate was accurate, and that this date must be within 30
days of when the disclosures are given. Such a requirement could pose
operational challenges for disclosures provided at point of sale as it
would require creditors to reprint disclosures periodically, even if
the variable rate has not changed since the last time the disclosures
were printed.
The Board did not intend such a result. Requiring creditors to
update rate disclosures to specify a date within the past 30 days would
impose a burden on creditors with no corresponding benefit to
consumers, where the disclosed rate is still accurate within the last
30 days
[[Page 20786]]
before the disclosures are provided. Accordingly, the Board proposes to
revise the rule to clarify that a variable rate is accurate if it is a
rate as of a specified date and this rate was in effect within the last
30 days before the disclosures are provided.
Section 226.7 Periodic Statement
7(b) Rules Affecting Open-End (Not Home-Secured) Plans
Deferred or waived interest plans. Comment 7(b)-1, as adopted in
the January 2009 Regulation Z Rule, provides guidance on periodic
statement disclosures for deferred interest transactions for open-end
(not home-secured) plans, such as plans that permit a consumer to avoid
interest charges if a purchase balance is paid in full by a certain
date. The comment permits, but does not generally require, creditors to
disclose during the promotional period information about accruing
interest, balances subject to interest rates, and the date by which the
balance must be paid in full to avoid interest. Comment 7(b)-1 as
adopted indicated that guidance in the comment does not apply to card
issuers that are subject to 12 CFR 227.24 or similar law, because in
the January 2009 FTC Act Rule, the Agencies had concluded that deferred
interest programs, as currently designed and marketed, were
inconsistent with the general prohibition on the application of
increased rates to existing balances.
As discussed in the supplementary information to the FTC Act
Proposed Clarifications, the Board and other Agencies are proposing to
clarify that creditors may continue to offer deferred or waived
interest programs where the consumer will not be obligated to pay
interest that accrues on a balance if that balance is paid in full by a
specified date or within a specified period of time. Any such programs,
however, would be fully subject to the protections set forth in the
January 2009 FTC Act Rule as amended by the FTC Act Proposed
Clarifications, as well as to disclosure requirements under Regulation
Z discussed in this Federal Register. These protections would apply to
all deferred or waived interest plans and not solely those covered by
the January 2009 FTC Act Rule.
The Board believes that it is important that consumers receive
clear disclosures regarding deferred or waived interest balances and
interest accruing during the term of a deferred or waived interest
program, in order to ensure that consumers understand the terms of the
promotion and can tailor their account usage and payment patterns
accordingly. As a result, the Board is proposing several revisions to
comment 7(b)-1 to require creditors to provide consumers with pertinent
information throughout the life of a deferred or waived interest
promotion.
First, the Board believes that it is important for a consumer to be
informed of the amount of interest charges that are accruing and for
which the consumer will be obligated if the consumer does not repay a
deferred or waived interest balance in full by the relevant due date.
Comment 7(b)-1 would therefore be amended to require creditors offering
deferred or waived interest programs to disclose information about
accruing interest balances for such programs. The Board also proposes
that each periodic statement be required to disclose the amount of the
deferred or waived interest balance on which interest may be imposed,
so that consumers will be aware of the amount that they are required to
pay to avoid being obligated for the deferred or waived interest
amount.
The Board also is proposing to add a new Sec. 226.7(b)(14) to
require creditors to include on a consumer's periodic statement, for
two billing cycles immediately preceding the date on which deferred or
waived interest transactions must be paid in full in order to avoid the
imposition of interest charges, a disclosure that the consumer must pay
such transactions in full by that date in order to avoid being
obligated for the accrued interest. The Board also proposes several
complementary changes to comment 7(b)-1 to provide additional guidance
on compliance with this disclosure requirement. The Board believes that
it is important for consumers to receive this notice in the last two
billing cycles prior to the deferred or waived interest due date. This
would ensure that consumers are reminded of the terms of the deferred
or waived interest promotion close to the date on which full payment is
due, in order to give consumers an opportunity to pay off any deferred
or waived interest balance and take advantage of the terms of the
promotion.
In particular, proposed Sec. 226.7(b)(14) would require creditors
offering deferred or waived interest programs to disclose on the front
of the periodic statement the date in a future cycle by which the
balance on the deferred or waived interest transaction must be paid in
full to avoid interest charges. This disclosure would be required to be
provided on each periodic statement for the last two billing cycles
immediately preceding such date. Creditors may, but would not be
required to, include this disclosure on prior statements. If the
deferred or waived interest period's duration is such that the reminder
cannot be given for the last two billing cycles immediately preceding
the deferred or waived interest due date, for example if the deferred
interest period is less than two months, proposed comment 7(b)-1.iv
clarifies that the disclosure must be included on every periodic
statement during the deferred or waived interest period. Proposed
comment 7(b)-1.iv sets forth examples of how this timing requirement
would operate.
Proposed Sample G-18(H) sets forth model language for making the
disclosure required by proposed Sec. 226.7(b)(14). The language used
to make the disclosure under Sec. 226.7(b)(14) would be required to be
substantially similar to Sample G-18(H).
Finally, in a technical amendment, the Board proposes to amend the
terminology of comment 7(b)-1 to refer to both deferred and waived
interest programs. The provisions in proposed Sec. 226.7(b)(14) and
comment 7(b)-1 would apply to all types of deferred or waived interest
programs, regardless of the particular nomenclature used to describe a
specific plan. In a conforming technical change, the Board proposes to
amend comment 5(b)(2)(ii)-1, which cross-references comment 7(b)-1, to
refer to deferred and waived interest transactions.
Interest and Fees for Acquired or Modified Accounts. To highlight
the overall cost of a credit account to consumers, the January 2009
Regulation Z Rule requires creditors to disclose the total amount of
interest charges and fees for the statement period and calendar year to
date. See Sec. 226.7(b)(6). New comments 7(b)(6)-6 and -7 would
clarify a creditor's obligations under Sec. 227.7(b)(6) when it
acquires a plan or account from another creditor or when the underlying
account relationship with the creditor is changed in some way, for
example, if a retail credit card account is upgraded to a cobranded
general purpose credit card account or if a credit card account is
replaced with another credit card product with different or additional
features. The proposed comments would generally provide that the
creditor must include the interest charges and fees incurred by the
consumer prior to the account acquisition or change in the aggregate
totals provided for the statement period and calendar year to date
after the change. At the creditor's option, it may add the prior
charges and fees to the disclosed totals following the change, or it
may provide separate totals for each
[[Page 20787]]
time period. The proposed comments would not apply when the consumer
opens a new plan or account with another creditor and transfers
balances from the old plan or account. Comment is requested regarding
the operational issues associated with carrying over cost totals in the
circumstances described in the proposed commentary.
Section 226.9 Subsequent Disclosure Requirements
226.9(c) Change in Terms
9(c)(2) Rules Affecting Open-end (Not Home-secured) Plans
Relationship between Sec. 226.9(b) and (c). Section 226.9(c)(2)
generally requires creditors to provide 45 days' advance notice prior
to a change in any term that must be disclosed in the account-opening
summary table. For changed terms that must be disclosed in the account-
opening summary table, creditors must similarly provide a summary of
that change in a tabular format. Notice is not required in certain
specified circumstances, including if the change involves a reduction
of any component of a finance or other charge or where future credit
privileges have been suspended or an account or plan has been
terminated. The Board proposes to amend Sec. 226.9(c)(2)(iv) to
provide that notice is also not required when the change in terms is
applicable only to a check or checks that access a credit card account
and the changed terms are disclosed on or with the checks in accordance
with Sec. 226.9(b)(3).
Under Sec. 226.9(b)(3), if a creditor mails or delivers a check
that accesses a credit card account, it must disclose certain key terms
applicable to the check, including any discounted promotional rate and
when that rate will expire; the type of rate that will apply to the
checks after expiration of the discounted promotional rate and the
applicable APR; the date by which the consumer must use the checks in
order to qualify for any discounted promotional rate; and any
transaction fees applicable to the checks. These key terms must be
disclosed in a tabular format on the front of the page containing the
checks.
The format and location requirements were informed through consumer
testing conducted on behalf of the Board, which indicated that
consumers were more likely to notice and understand the terms
applicable to the checks when these terms were presented in this
manner. In light of these requirements, requiring an additional tabular
disclosure for a change in terms about the access check terms could
create consumer confusion and would likely provide little consumer
benefit. The Board also believes that given the enhanced disclosure
requirements, a 45-day notice period before consumers may use a check
would be unnecessary.
The proposed exception in Sec. 226.9(c)(2)(iv) is limited to
circumstances where the consumer has been provided disclosures pursuant
to Sec. 226.9(b)(3) in connection with a check that accesses a credit
card account. Thus, the exception would not permit a creditor to make a
balance transfer offer by other means, such as by telephone or written
solicitation, on finance charge terms higher than those previously
disclosed for a balance transfer, unless the creditor also complies
with the notice and advance timing requirements of Sec. 226.9(c)
before the new fee or rate can be applied to the offer.
The exception also would extend only to a check accompanied by the
Sec. 226.9(b)(3) disclosures and not to terms applicable to other
features of the consumer's account. A creditor would not be permitted
to use a set of checks and Sec. 226.9(b)(3) disclosures, for example,
to change the rate applicable when a consumer uses his or her credit
card to take a cash advance at an ATM machine. For example, assume the
rate that typically applies to the checks is the issuer's cash advance
rate, currently 20%, and the issuer intends to prospectively increase
the cash advance rate to 25%. Under the proposal, the issuer could send
a set of checks disclosing the 25% rate in the table required by Sec.
226.9(b)(3), and would not be required to provide an additional 45
days' advance notice indicating that the 25% rate applies to those
checks. The issuer would, however, be required to send 45 days' advance
notice pursuant to Sec. 226.9(c)(2) prior to changing the cash advance
rate applicable to the consumer's account to 25% (for access other than
by a check accompanied with the Sec. 226.9(b)(3) disclosure).
Proposed comment 9(c)(2)-4 would clarify the relationship between
the change-in-terms requirements in Sec. 226.9(c) and the notice
provisions of Sec. 226.9(b) that apply when a creditor adds a credit
feature or delivers a credit access device for an existing open-end
plan. The proposed comment would provide that notwithstanding any
notice provided under Sec. 226.9(b) (except for a notice provided
under Sec. 226.9(b)(3) as discussed above), a creditor must also
satisfy the change-in-terms notice requirements under Sec. 226.9(c),
where applicable, including any advance notice requirement. For
example, if a creditor adds a balance transfer feature to an account
more than 30 days after account-opening disclosures are provided, it
must give the finance charge disclosures for the balance transfer
feature under Sec. 226.9(b) as well as provide a change in terms
notice under Sec. 226.9(c). This notice must be provided at least 45
days prior to the effective date of the change.\2\ Similarly, if a
creditor makes a balance transfer offer on finance charge terms that
are higher than those previously disclosed for balance transfers, it
would also generally be required to provide a change-in-terms notice 45
days in advance of the effective date of the change. The proposed
comment also provides that a creditor may provide a single notice under
Sec. 226.9(c) to satisfy the notice requirements of both Sec.
226.9(b) and (c).
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\2\ If the creditor changes a term required to be disclosed in
the account-opening table, the creditor must also provide a summary
of the change in a tabular format under Sec. 226.9(c)(2)(iii)(B).
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Change-in-terms requirements for temporary rate reductions. The
Board believes that clarification is needed as to the relationship
between the guidance in comment 9(c)(2)(iv)-2 regarding how to disclose
skip payment features and the general timing, format, and content
requirements of Sec. 226.9(c)(2), for temporary rate reductions
offered on an existing account. In general, under Sec.
226.9(c)(2)(iv), no advance notice need be given prior to the reduction
of any component of a finance charge. However, under Sec.
226.9(c)(2)(i), 45 days' advance written notice is required prior to a
rate increase. Comment 9(c)(2)(iv)-2 provides guidance as to how a
creditor that is offering a skip payment feature or interest waiver may
comply with the requirements of Sec. 226.9(c)(2)(iv). This guidance
was intended to address only the limited circumstances where a creditor
offers a feature that permits a consumer to skip a payment or payments
or where a creditor intends to waive interest charges due on the
account, without changing the contractual rate of interest applicable
to the consumer's balances. This comment was not intended to alter the
notice requirements of Sec. 226.9(c)(2) for promotional rate offers,
where the creditor lowers the rate applicable to the consumer's account
and subsequently increases the rate. However, as drafted the comment
may create confusion because it refers to any temporary reductions in
finance charges.
To clarify that advance notice in accordance with the requirements
of Sec. 226.9(c)(2) is required prior to increasing a consumer's rate
following a rate reduction, the Board proposes to amend comment
9(c)(2)(iv)-2 by including language indicating that
[[Page 20788]]
creditors offering a temporary reduction in an interest rate must
provide a notice in accordance with the timing requirements of Sec.
226.9(c)(2)(i) and the content and format requirements of Sec.
226.9(c)(2)(ii)(A) and (B) prior to resuming the original rate.
Specific consumer agreement exception. Section 226.9(c)(2)(i)
provides that the 45-day advance notice timing requirement does not
apply if the consumer has agreed to a particular change. In this case,
notice must be given before the effective date of the change. Comment
9(c)(2)(i)-3 states that the provision is intended for use in ``unusual
instances,'' such as when a consumer substitutes collateral or when the
creditor may advance additional credit only if a change relatively
unique to that consumer is made. The comment further provides examples
of actions that do not constitute specific consumer agreement,
including the consumer's acceptance of an account agreement that
contains a general reservation of the right to change terms or the
consumer's use of the account. Thus, the comment recognizes that the
change in terms notice requirements generally cannot be waived or
forfeited by the consumer.
The Board is proposing to amend the comment to emphasize the
limited scope of the exception and provide that the exception applies
``solely'' to the unique circumstances specifically identified in the
comment. The proposed comment would also add an example of an
occurrence that would not be considered an ``agreement'' for purposes
of relieving the creditor of its responsibility to provide an advance
change-in-terms notice. This example would state that an ``agreement''
does not include a consumer's request to reopen a closed account or to
upgrade an existing account to another account offered by the creditor
with different credit or other features. Thus, a creditor would be
required to provide the consumer 45 days' advance notice before
increasing the rate for new transactions or increasing the amount of
any applicable fees to the account in those circumstances.
226.9(g) Increase in Rates Due to Delinquency or Default or as a
Penalty
Section 226.9(g)(4) sets forth exceptions to the general
requirement to provide 45 days' advance notice before increasing a rate
due to the consumer's delinquency or default or as a penalty. Section
226.9(g)(4)(i) as adopted in the January 2009 Regulation Z Rule
provides a specific exception to the notice requirement when the
consumer's rate is increased due to the consumer's failure to comply
with the terms of a workout arrangement, provided that the annual
percentage rate applicable to a category of transactions following any
such increase does not exceed the rate that applied to that category of
transactions prior to commencement of the workout arrangement. This
exception is intended to encourage institutions to continue offering
workout arrangements that reduce rates to consumers in serious default,
while also ensuring that a consumer who enters into such an arrangement
but is unable to comply with its terms is not charged a rate that
exceeds the rate that applied prior to the arrangement without first
receiving advance notice of that rate increase.
The Board understands that there is some confusion as to whether
this exception also applies to temporary hardship arrangements that
assist consumers in overcoming financial difficulties by lowering the
annual percentage rate for a period of time. For example, if an account
becomes seriously delinquent, the institution may reduce the rate that
applies to the outstanding balance from the penalty rate to a rate of
zero on the condition that the consumer make payments that will cure
the delinquency within a specified period of time. If the consumer
successfully cures the delinquency in accordance with the terms of the
temporary hardship arrangement, the institution may choose to raise the
annual percentage rate to the rate that applied prior to commencement
of the temporary hardship arrangement. Because such arrangements can
provide important benefits to consumers, the Board proposes to amend
Sec. 226.9(g)(4)(i) to clarify that the exception also applies to
temporary hardship arrangements.
The Board also proposes to revise Sec. 226.9(g)(4)(iii) for
consistency with the terminology used in 12 CFR 227.24 and similar
regulation, without intended substantive change, by deleting references
to ``outstanding balances.''
In a technical amendment, the Board proposes to designate as
comment 9(g)(4)(ii)-1 commentary that was placed with commentary to
Sec. 226.9(g)(4)(ii) but was not numbered due to a scrivener's error.
The Board also proposes several amendments to comment 9(g)-1 for
consistency and conformity with substantively similar amendments
published elsewhere in today's Federal Register as part of the FTC Act
Proposed Clarifications. For example, the Board proposes to correct a
typographical error in comment 9(g)-1.iii.C, and to clarify the fact
patterns presented in comments 9(g)-1.i and 9(g)-1.iii.
Section 226.12 Special Credit Card Provisions
Section 226.13 Billing Error Resolution
Comment 12(b)-3 states that a card issuer must investigate claims
in a reasonable manner before imposing liability for an unauthorized
use, and sets forth guidance on conducting an investigation of a claim.
Comment 13(f)-3 contains similar guidance for a creditor investigating
a billing error claim. The January 2009 Regulation Z Rule amended both
comments to specifically provide that a card issuer (or creditor) may
not require a consumer to submit an affidavit or to file a police
report as a condition of investigating a claim. These additions
reflected the Board's concerns that such requests could cause a
chilling effect on a consumer's ability to assert his or her error
resolution rights.
In the supplementary information discussing the amended comments,
the Board recognized that in some cases, a card issuer may need to
provide some form of certification indicating that the cardholder's
claim is legitimate, for example, to obtain documentation from a
merchant relevant to a claim or to pursue chargeback rights.
Accordingly, the Board stated that a card issuer could ``require'' the
cardholder to provide a signed statement supporting the asserted claim,
provided that the act of providing the signed statement would not
subject the cardholder to potential criminal penalty. See 74 FR at
5363. The final comments, however, did not reflect the ability of the
card issuer (or creditor) to require a consumer signed statement for
these types of circumstances. Instead, the text of the final comments
stated that a card issuer (or creditor) could ``request'' a signed
statement. Accordingly, comments 12(b)-3 and 13(f)-3 would be amended
to conform to the Board's intent as stated in the supplementary
information to the January 2009 Regulation Z Rule.
Section 226.16 Advertising
TILA Section 143, implemented by the Board in Sec. 226.16, governs
advertisements of open-end credit plans. 15 U.S.C. 1663. In May 2008,
the Board proposed requirements regarding the advertising of deferred
interest offers in order to improve consumer awareness of the terms of
such offers. However, the Board and other Agencies concluded in the
January 2009 FTC Act Rule that deferred interest programs, as currently
designed, are inconsistent with the general prohibition on the
application of increased rates to existing balances and prohibited
issuers subject to the January 2009 FTC Act Rule from
[[Page 20789]]
establishing such programs. Consequently, the Board withdrew the
proposed advertising requirements related to deferred interest offers
from the January 2009 Regulation Z Rule.
Although the January 2009 FTC Act Rule prohibited deferred interest
programs, the Agencies noted that institutions were not prohibited from
offering promotional programs that provide similar benefits to
consumers, such as programs where interest is assessed on purchases at
a disclosed rate for a period of time but the interest charged is
waived or refunded if the principal is paid in full by the end of that
period. Recognizing that the distinction between deferred interest and
waived or refunded interest programs has caused confusion, the Agencies
are proposing in the FTC Act Proposed Clarifications to clarify that
creditors may offer promotional programs where the consumer will not be
obligated to pay interest that accrues on a balance if that balance is
paid in full by a specified date or within a specified period of time.
However, such programs remain fully subject to the consumer protections
set forth in the January 2009 FTC Act Rule as amended by the FTC Act
Proposed Clarifications.
In light of the FTC Act Proposed Clarifications, the Board also is
proposing new advertising requirements in Sec. 226.16(h), similar to
those proposed in May 2008, for deferred, waived, or refunded interest
programs in order to better inform consumers of the terms of these
offers. The Board believes that these advertising requirements will
complement the new periodic statement disclosures for such programs
that are discussed in the supplementary information to Sec. 226.7(b).
16(h) Deferred or Waived Interest Offers
The Board is proposing to use its authority under TILA Section
143(3) to add a new Sec. 226.16(h) to require additional disclosures
in advertisements in order to improve information consumers receive
about the terms of deferred or waived interest offers. 15 U.S.C.
1663(3). The new disclosure requirements would apply to advertisements
that use terms such as ``no interest,'' ``no payments,'' ``deferred
interest,'' ``same as cash,'' or similar terms in describing these
offers.\3\ In summary, the proposed rules would require that the
deferred or waived interest period be disclosed in immediate proximity
to each deferred interest triggering term. For advertisements stating
``no interest'' or a similar term, the fact that the balance must be
paid in full by the end of the deferred or waived interest period also
would need to be disclosed in immediate proximity to that term. The
proposal also would require that certain additional information about
the terms of the deferred or waived interest offer be disclosed in
close proximity to the first statement of a deferred interest
triggering term. Each of these proposals is discussed in more detail
below.
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\3\ For ease of reference, the supplementary information to
proposed Sec. 226.16(h) refers generically to these terms as
``deferred interest triggering terms.''
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16(h)(1) Scope
The new requirements for deferred or waived interest offers under
proposed Sec. 226.16(h) would apply to any advertisement of such
offers for open-end (not home-secured) plans, and would not be limited
to credit card plans. In addition, the rules would apply to promotional
materials accompanying applications or solicitations made available by
direct mail or electronically, as well as applications or solicitations
that are publicly available. The Board believes that the proposed
disclosures under this section would be beneficial to consumers whether
the offer is applicable to a consumer credit card account or any other
open-end (not home-secured) plan.
16(h)(2) Definitions
The Board proposes to define ``deferred or waived interest'' in new
Sec. 226.16(h)(2) as finance charges on balances or transactions that
a consumer is not obligated to pay if those balances or transactions
are paid in full by a specified date. The term would not, however,
include finance charges the creditor allows a consumer to avoid in
connection with a recurring grace period. Therefore, an advertisement
including information on a recurring grace period that could
potentially apply each billing period, would not be subject to the
additional disclosure requirements under Sec. 226.16(h). Proposed
comment 16(h)-1 clarifies that deferred or waived interest offers also
do not include offers that allow a consumer to defer payments during a
specified time period, and under which the consumer is not obligated
under any circumstances for any interest or other finance charges that
could be attributable to that period. The comment also clarifies that
skip payment programs that allow a consumer to avoid making a minimum
payment for one or more billing cycles but where interest continues to
accrue and be imposed during that period are not deferred or waived
interest offers. Furthermore, proposed comment 16(h)-2 specifies that
deferred or waived interest offers do not include zero percent APR
offers where a consumer is not obligated under any circumstances for
interest attributable to the time period the zero percent APR was in
effect, although such offers may be considered promotional rates under
Sec. 226.16(g)(2)(i).
Furthermore, the Board proposes to define the ``deferred or waived
interest period'' for purposes of proposed Sec. 226.16(h) as the
maximum period from the date the consumer becomes obligated for the
balance or transaction until the specified date that the consumer must
pay the balance or transaction in full in order to avoid finance
charges on such balance or transaction. To clarify the meaning of
deferred or waived interest period, the Board is proposing to include a
new comment 16(h)-3 to state that the advertisement need not include
the end of an informal ``courtesy period'' in disclosing the deferred
or waived interest period. For example, an advertisement may state that
the deferred interest period is six months, even if the creditor in
practice extends that period by several days, for example, to coincide
with the payment due date for other transactions that are not subject
to a deferred interest plan.
16(h)(3) Stating the Deferred or Waived Interest Period
General rule. The Board is proposing a new Sec. 226.16(h)(3) to
require that advertisements of deferred or waived interest plans
disclose the deferred or waived interest period clearly and
conspicuously in immediate proximity to each statement of a deferred
interest triggering term. New Sec. 226.16(h)(3) also would require
such advertisements that use the phrase ``no interest'' or similar term
to describe the possible avoidance of interest obligations under the
deferred or waived interest program to state ``if paid in full'' in a
clear and conspicuous manner preceding the disclosure of the deferred
or waived interest period. For example, as described in proposed
comment 16(h)-7, an advertisement might state ``no interest if paid in
full within 6 months'' or ``no interest if paid in full by December 31,
2010.'' The Board is proposing to require these disclosures because of
concerns that the statement ``no interest,'' in the absence of
additional details about the applicable conditions of the offer may
confuse consumers who might not understand that they need to pay their
balances in
[[Page 20790]]
full by a certain date in order to avoid the obligation to pay
interest.
Immediate proximity. Proposed comment 16(h)-4 provides guidance on
the meaning of ``immediate proximity'' by establishing a safe harbor
for disclosures made in the same phrase. Therefore, if the deferred or
waived interest period is disclosed in the same phrase as each
statement of a deferred interest triggering term (for example, ``no
interest if paid in full within 12 months'' or ``no interest if paid in
full by December 1, 2010'' the deferred or waived interest period would
be deemed to be in immediate proximity to the statement.
Clear and conspicuous standard. The Board proposes to amend comment
16-2.ii to provide that advertisements clearly and conspicuously
disclose the deferred or waived interest period only if the information
is equally prominent to each statement of a deferred interest
triggering term. Proposed comment 16-2.ii states that if the disclosure
of the deferred or waived interest period is the same type size as the
statement of the deferred interest triggering term, it will be deemed
to be equally prominent. The Board believes that requiring equal
prominence for the disclosure of the deferred or waived interest period
will call attention to the nature and significance of that information
by ensuring that the information is at least as significant as the
terms to which it relates. Furthermore, applying an equally prominent
standard would be consistent with the treatment of certain disclosures
related to promotional rates.
The Board also proposes to clarify in comment 16-2.ii that the
equally prominent standard applies only to written and electronic
advertisements. This approach is consistent with the treatment of
written and electronic advertisements of promotional rates. Because
equal prominence is a difficult standard to measure outside the context
of written and electronic advertisements, the Board believes that the
guidance on clear and conspicuous disclosures set forth in proposed
comment 16-2.ii, should apply solely to written and electronic
advertisements. Disclosure of the deferred or waived interest period
under Sec. 226.16(h)(3) for non-written, non-electronic
advertisements, while not required to meet the specific clear and
conspicuous standard in comment 16-2.ii would nonetheless be subject to
the general clear and conspicuous standard set forth in comment 16-1.
16(h)(4) Stating the Terms of the Deferred or Waived Interest Offer
In order to ensure that consumers are informed of the terms
applicable to a deferred or waived interest offer, the proposal would
require disclosure of key terms of such an offer in a prominent
location closely proximate to the first listing of a statement of a
deferred interest triggering term. First, the Board proposes to require
a statement that if the balance or transaction is not paid within the
deferred or waived interest period, interest will be charged from the
date the consumer became obligated for the balance or transaction.
Second, the Board also proposes to require a statement, if applicable,
that interest can also be charged from the date the consumer became
obligated for the balance or transaction if the consumer's account is
in default prior to the end of the deferred or waived interest period.
To facilitate compliance with this provision, the Board proposes
model language in Sample G-22 in Appendix G. Proposed Sec.
226.16(h)(4) would require that advertisements of deferred or waived
interest offers use language similar to Sample G-22. The Board is
proposing that language be ``similar,'' rather than ``substantially
similar,'' in recognition of the fact that creditors may need to modify
or supplement the model language to accurately describe the terms of a
particular promotion. For issuers subject to the January 2009 FTC Act
Rule or similar law, the proposed language would reflect that interest
can be charged from the date the consumer became obligated for the
balance or transaction only if the consumer fails to pay the balance
subject to the deferred or waived interest program in full or makes a
payment that is more than 30 days late.\4\ For creditors that are not
subject to the January 2009 FTC Act Rule or similar law, such as a
creditor that offers a deferred or waived interest program in
connection with a line of credit, the Board proposes separate model
language.
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\4\ This statement is intended to be consistent with substantive
restrictions in the January 2009 FTC Act Rule and FTC Act Proposed
Clarifications which would not permit an issuer to revoke a deferred
or waived interest program unless the consumer's payment is more
than 30 days late.
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While most advertisements of deferred or waived interest offers
describe the conditions required to take advantage of the offer, the
conditions may be placed in a location that is not easily noticed or
stated in terms that are not easily understood. Thus, as discussed
below, the proposal would require this information to be in a prominent
location closely proximate to the first listing of a statement of ``no
interest,'' ``no payments,'' ``deferred interest'' or similar term
regarding interest and payments under the deferred interest period.
Prominent location closely proximate. The Board is proposing
guidance on the meaning of ``prominent location closely proximate to
the first listing'' in comments 16(h)-5 and 16(h)-6. This guidance is
similar to, and intended to be consistent with, the provisions in Sec.
226.16(g) that apply to advertisements of promotional rates. Proposed
comment 16(h)-5 would provide that if the additional disclosures
required under proposed Sec. 226.16(h)(4) are in the same paragraph as
the first listing of a deferred interest triggering term, they would be
deemed to be in a prominent location closely proximate to the
statement. Information appearing in a footnote would not be deemed to
be in a prominent location closely proximate to the statement. The
Board believes that the safe harbor under proposed comment 16(h)-5 is,
and should be, more flexible than the safe harbor for ``immediate
proximity'' under proposed comment 16(h)-4 above.
First listing. Proposed comment 16(h)-6 provides that the first
listing of a statement of a deferred interest triggering term is the
most prominent listing of one of these statements (on the front side of
the first page of the principal promotional document). Consistent with
the rules for promotional rates in Sec. 226.16(g), the proposed
comment borrows the concept of ``principal promotional document'' from
the FTC's definition of the term under its regulations promulgated
under the FCRA. 16 CFR Sec. 642.2(b). Under the proposal, if none of
these statements is listed on the principal promotional document or
there is no principal promotional document, the first listing of one of
these statements would be deemed to be the most prominent listing of
the statement on the front side of the first page of each document
containing one of these statements. The Board also proposes that the
listing with the largest type size be a safe harbor for determining
which listing is the most prominent. The proposed comment notes that a
catalog or other multiple-page advertisement would be considered one
document for these purposes, consistent with comment 16(c)-1.
Because both the rules for advertising of promotional rates in
Sec. 226.16(g) and proposed Sec. 226.16(h)(4) require disclosures
closely proximate to the ``first listing'' of a rate or a statement,
respectively, the Board believes that the
[[Page 20791]]
guidance on what constitutes the ``first listing'' should be consistent
for both rules.
Segregation. The Board also proposes comment 16(h)-7 to clarify
that the information required under proposed Sec. 226.16(h)(4) need
not be segregated from other information the advertisement discloses
about the deferred or waived interest offer. This may include triggered
terms that the advertisement is required to disclose under Sec.
226.16(b). The comment is consistent with the Board's approach on many
other required disclosures under Regulation Z. See comment 5(a)-2.
Moreover, the Board believes flexibility is warranted to allow
advertisers to provide other information that may be essential for the
consumer to evaluate the offer, such as a minimum purchase amount to
qualify for the deferred or waived interest offer.
Clear and conspicuous disclosure. The Board is proposing to amend
comment 16-2.ii to require equal prominence only for the disclosure of
the information required under Sec. 226.16(h)(3). Therefore,
disclosures under proposed Sec. 226.16(h)(4) would not be required to
be equally prominent to the first listing of the deferred interest
triggering statement. Because of the amount of information the Board is
proposing to require under Sec. 226.16(h)(4)(i) and (ii), the Board
believes that requiring equal prominence to the triggering statement
for this information would render the advertisement difficult to read
and confusing to consumers.
Non-written, non-electronic advertisements. The Board believes
providing flexibility in how advertisers may present information to
consumers in a non-written, non-electronic context is appropriate due
to the time and space constraints of such media. Therefore, consistent
with the approach adopted for advertisements of promotional rate offers
in the January 2009 Regulation Z Rule and the approach in proposed
Sec. 226.16(h)(3) discussed above, the Board is proposing that only
written or electronic advertisements be subject to the requirement to
provide the disclosures required by proposed Sec. 226.16(h)(4) in a
prominent location closely proximate to the first listing of a deferred
interest triggering term. For non-written, non-electronic
advertisements, the information required under Sec. 226.16(h)(4)(i),
and (ii) would be included in the advertisement, but would not be
subject to any proximity or formatting requirements other than the
general requirement that information be clear and conspicuous, as
contemplated under comment 16-1.
16(h)(5) Envelope Excluded
The Board proposes to exclude envelopes or other enclosures in
which an application or solicitation is mailed, or banner
advertisements or pop-up advertisements linked to an electronic
application or solicitation from the requirements of proposed Sec.
226.16(h)(4). This proposed exception is consistent with the approach
adopted for promotional rate advertisements in the January 2009
Regulation Z Rule. Interested consumers generally look at the contents
of an envelope or click on the link in a banner advertisement or pop-up
advertisement in order to learn more about an offer instead of relying
solely on the information on an envelope, banner advertisement, or pop-
up advertisement. Given the limited space that envelopes, banner
advertisements, and pop-up advertisements have to convey information,
the Board believes the burden of providing the information proposed
under Sec. 226.16(h)(4) on these types of communications would likely
exceed any benefit to consumers.
Appendix G--Open-End Model Forms and Clauses
The Board proposes to revise Model Form G-10(A) to insert a row
disclosing any grace period on purchases applicable to the account, in
accordance with the requirements set forth in Sec. 226.5a(b)(5). This
row was inadvertently omitted from Model Form G-10(A) as published in
the Federal Register on January 29, 2009.
The Board also proposes to revise the minimum payment warning set
forth on Sample Form G-18(G) for conformity with Sample Clause G-18(C),
without any intended substantive change to the requirements of the
final rule.
As discussed in the supplementary information to Sec. Sec.
226.7(b)(14) and 226.16(h), the Board proposes to adopt model language
for the disclosures required to be given in connection with deferred or
waived interest programs as Samples G-18(H) and G-22. The Board notes
that proposed Sample G-22 contains two model clauses, one for use by
credit card issuers subject to 12 CFR 227.24 or similar law and one for
other creditors. The model clause for issuers subject to 12 CFR 227.24
reflects the fact that, under those rules, an issuer may only revoke a
deferred or waived interest program if the consumer's payment is more
than 30 days late. The Board proposes to add a new comment App. G-12 to
clarify which creditors should use each of the model clauses in
proposed Sample G-22.
The Board also proposes a technical correction to comment App. G-
5.v.C. As adopted in the January 2009 Regulation Z Rule, comment App.
G-5.v.C refers to cross-references in the samples of the table provided
on or with applications and solicitations and the table provided at
account opening. However, cross-references were not included in those
samples because they are not a disclosure required by the January 2009
Regulation Z Rule. Accordingly, the Board proposes to delete the
examples mentioning cross-references from comment App. G-5.v.C.
IV. Regulatory Flexibility Analysis
Section VIII of the supplementary information to the January 2009
Regulation Z Rule sets forth the Board's analysis under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). The Board notes that the
amendments in this proposed rulemaking would require small entities
that offer deferred or waived interest programs to comply with new
disclosure requirements for periodic statements and advertisements, as
discussed in the supplementary information to the amendments to
Sec. Sec. 226.7 and 226.16. Because the proposed amendments are a
continuation of the January 2009 Regulation Z Rule and would not, if
adopted, alter the analysis and determination accompanying the January
2009 Regulation Z Rule, the Board continues to rely on that analysis
and determination for purposes of this rulemaking.
V. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44
U.S.C. 3506; 5 CFR Part 1320 Appendix A.1), the Board reviewed the
proposed rule under the authority delegated to the Board by the Office
of Management and Budget (OMB). The collection of information that is
required by this proposed rule is found in 12 CFR part 226. The Federal
Reserve may not conduct or sponsor, and an organization is not required
to respond to, this information collection unless the information
collection displays a currently valid OMB control number. The OMB
control number is 7100-0199.
This information collection is required to provide benefits for
consumers and is mandatory (15 U.S.C. 1601 et seq.). Since the Federal
Reserve does not collect any information, no issue of confidentiality
arises. The respondents/recordkeepers are creditors and other entities
subject to Regulation Z, including for-profit financial institutions
and small businesses.
[[Page 20792]]
TILA and Regulation Z are intended to ensure effective disclosure
of the costs and terms of credit to consumers. For open-end credit,
creditors are required to, among other things, disclose information
about the initial costs and terms and to provide periodic statements of
account activity, notice of changes in terms, and statements of rights
concerning billing error procedures. Regulation Z requires specific
types of disclosures for credit and charge card accounts and home
equity plans. For closed-end loans, such as mortgage and installment
loans, cost disclosures are required to be provided prior to
consummation. Special disclosures are required in connection with
certain products, such as reverse mortgages, certain variable-rate
loans, and certain mortgages with rates and fees above specified
thresholds. TILA and Regulation Z also contain rules concerning credit
advertising. Creditors are required to retain evidence of compliance
for twenty-four months (Sec. 226.25), but Regulation Z does not
specify the types of records that must be retained.
Under the PRA, the Federal Reserve accounts for the paperwork
burden associated with Regulation Z for the state member banks and
other creditors supervised by the Federal Reserve that engage in
lending covered by Regulation Z and, therefore, are respondents under
the PRA. Appendix I of Regulation Z defines the Federal Reserve-
regulated institutions as: 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, and organizations operating under
section 25 or 25A of the Federal Reserve Act. Other federal agencies
account for the paperwork burden imposed on the entities for which they
have administrative enforcement authority. The current total annual
burden to comply with the provisions of Regulation Z is estimated to be
688,607 hours for the 1,138 Federal Reserve-regulated institutions that
are deemed to be respondents for the purposes of the PRA. To ease the
burden and cost of complying with Regulation Z (particularly for small
entities), the Federal Reserve provides model forms, which are appended
to the regulation.
The proposed rule would impose a one-time increase in the total
annual burden under Regulation Z for all respondents regulated by the
Federal Reserve by 27,312 hours, from 688,607 hours to 715,919 hours.
The total estimated burden increase, as well as the estimates of
the burden increase associated with each major section of the proposed
rule as set forth below, represents averages for all respondents
regulated by the Federal Reserve. The Federal Reserve expects that the
amount of time required to implement each of the proposed changes for a
given institution may vary based on the size and complexity of the
respondent. Furthermore, the burden estimate for this rulemaking does
not include the burden addressing provisions from the Mortgage
Disclosure Improvement Act of 2008 (Docket No. R-1340) or Higher
Education Opportunity Act (Docket No. R-1353) announced in separate
proposed rulemakings.
The Federal Reserve estimates that 1,138 respondents regulated by
the Federal Reserve would take, on average, 16 hours (two business
days) to update their systems for periodic statements to comply with
the proposed disclosure requi