Duties of Creditors Regarding Risk-Based Pricing Rule, 63462-63473 [2020-19529]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 85, Number 196 (Thursday, October 8, 2020)]
[Proposed Rules]
[Pages 63462-63473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19529]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / 
Proposed Rules

[[Page 63462]]



FEDERAL TRADE COMMISSION

16 CFR Part 640

RIN 3084-AB63


Duties of Creditors Regarding Risk-Based Pricing Rule

AGENCY: Federal Trade Commission.

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

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
requests public comment on its Duties of Creditors Regarding Risk-Based 
Pricing Rule (``Risk-Based Pricing Rule'') as part of the FTC's 
systematic review of all current Commission regulations and guides. In 
addition, the FTC is proposing to amend the Rule to correspond to 
changes made to the Fair Credit Reporting Act (``FCRA'') by the Dodd-
Frank Act.

DATES: Written comments must be received on or before December 22, 
2020.

ADDRESSES: Interested parties may file a comment online or on paper by 
following the Request for Comment part of the SUPPLEMENTARY INFORMATION 
section below. Write ``Amendment to the Risk-Based Pricing Rule, 16 CFR 
part 640, Project No. P205408'' on your comment and file your comment 
online at https://www.regulations.gov by following the instructions on 
the web-based form. If you prefer to file your comment on paper, mail 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex B), Washington, DC 
20024.

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

SUPPLEMENTARY INFORMATION:

I. Background

A. The Risk-Based Pricing Rule

    The Fair and Accurate Credit Transactions Act of 2003 (``FACT 
Act'') was signed into law on December 4, 2003. Public Law 108-159, 117 
Stat. 1952. Section 311 of the FACT Act added section 615(h), 15 U.S.C. 
1681m(h), to the FCRA to address risk-based pricing. Risk-based pricing 
refers to the practice of setting or adjusting the price and other 
terms of credit offered or extended to a particular consumer to reflect 
the risk of nonpayment by that consumer. Information from a consumer 
report is often used in evaluating the risk posed by the consumer. 
Creditors that engage in risk-based pricing generally offer more 
favorable terms to consumers with good credit histories and less 
favorable terms to consumers with poor credit histories.
    Under section 615(h) of the FCRA, a person generally must provide a 
risk-based pricing notice to a consumer when the person uses a consumer 
report in connection with an extension of credit and, based in whole or 
in part on the consumer report, extends credit to the consumer on terms 
that are materially less favorable than the most favorable terms 
available to a substantial proportion of consumers. The risk-based 
pricing notice is designed primarily to improve the accuracy of 
consumer reports by alerting consumers to the existence of negative 
information in their consumer reports, so that consumers can, if they 
choose, check their consumer reports for accuracy and correct any 
inaccurate information. The Federal Reserve Board and the Commission 
jointly published regulations implementing these risk-based pricing 
provisions on January 15, 2010.\1\ The Rule was amended in July 2011 to 
include a requirement that, if a credit score is used in making the 
credit decision, the creditor must disclose that score and certain 
information relating to the credit score.\2\
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    \1\ 75 FR 2723 (January 15, 2010).
    \2\ 76 FR 41602 (July 15, 2011).
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B. Dodd-Frank Act

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'') was signed into law in 2010.\3\ The Dodd-Frank Act 
substantially changed the federal legal framework for financial 
services providers. Among the changes, the Dodd-Frank Act transferred 
to the Consumer Financial Protection Bureau (``CFPB'') the Commission's 
rulemaking authority under portions of the FCRA.\4\ Accordingly, in 
2012, the Commission rescinded several of its FCRA rules that had been 
replaced by rules issued by the CFPB.\5\ The FTC retained rulemaking 
authority for other rules promulgated under the Acts to the extent the 
rules apply to motor vehicle dealers described in section 1029(a) of 
the Dodd-Frank Act \6\ that are predominantly engaged in the sale and 
servicing of motor vehicles, the leasing and servicing of motor 
vehicles, or both.\7\ The retained rules include the Risk-Based Pricing 
Rule, which now applies only to motor vehicle dealers.\8\ Consumer 
report users that are not motor vehicle dealers are covered by the 
CFPB's rule.\9\
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    \3\ Public Law 111-203 (2010).
    \4\ 15 U.S.C. 1681 et seq. The Dodd-Frank Act does not transfer 
to the CFPB rulemaking authority for section 615(e) of the FCRA 
(``Red Flag Guidelines and Regulations Required'') and section 628 
of the FCRA (``Disposal of Records''). See 15 U.S.C. 1681s(e).
    \5\ 77 FR 22200 (April 13, 2012); 12 U.S.C. 5519.
    \6\ 15 U.S.C. 5519.
    \7\ 77 FR 22200 (April 13, 2012).
    \8\ Id.
    \9\ 12 CFR 1022.70-75.
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II. Technical Changes To Correspond to Statutory Changes Resulting From 
the Dodd-Frank Act

A. Scope

    The Commission promulgated the Risk-Based Pricing Rule at a time 
when it had rulemaking authority for a broader group of consumer report 
users. While the Dodd-Frank Act did not change the Commission's 
enforcement authority for the Risk-Based Pricing Rule, it did narrow 
the Commission's rulemaking authority with respect to the Rule. It now 
covers only motor vehicle dealers.\10\ The amendments in the Dodd-Frank 
Act necessitate technical revisions to the Risk-Based Pricing Rule to 
ensure that it is consistent with the text of the amended FCRA. 
Accordingly, the Commission proposes to modify the Risk-Based Pricing 
Rule to reflect the Rule's scope.
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    \10\ 15 U.S.C. 1681s(e)(1); 12 U.S.C. 5519.

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[[Page 63463]]

    The proposed amendment to Sec.  640.1(a) narrows the description of 
the scope of the Risk-Based Pricing Rule to those entities set forth in 
the Dodd-Frank Act that are predominantly engaged in the sale and 
servicing of motor vehicles, excluding those dealers that directly 
extend credit to consumers and do not routinely assign the extensions 
of credit to an unaffiliated third party.\11\ It does so by replacing 
the broad term ``person'' with ``motor vehicle dealer,'' as defined in 
amended Sec.  640.2. The proposed amendment replaces ``person'' with 
``motor vehicle dealer'' throughout the Rule, whenever ``person'' is 
used to describe the entity covered by the Rule. In provisions where 
``person'' does not refer to a motor vehicle dealer covered by the 
Rule, such as Sec. Sec.  640.4(c)(2) and 640.6(b)(2), the term 
``person'' is retained.\12\
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    \11\ 12 U.S.C. 5519.
    \12\ For consistency, the proposed amendments also change any 
use of the term ``auto dealer'' to ``motor vehicle dealer.'' See, 
e.g., 16 CFR 640.4(c)(2)(ii).
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    The proposed amendment also removes Sec.  640.1(b), which describes 
the process by which the Commission worked with the Federal Reserve 
Board to issue the Risk-Based Pricing Rule, and states that the 
Commission's and the Board's rules are substantively identical. The 
Commission proposes to remove this section because the Dodd-Frank Act 
transferred the Board's rulemaking authority for the Risk-Based Pricing 
Rule to the CFPB.
    The proposed amendment to Sec.  640.2 adds a definition of ``motor 
vehicle dealer'' that defines motor vehicle dealers as those entities 
excluded from the CFPB's jurisdiction under the Dodd-Frank Act.\13\ The 
proposed amendment also updates the definition of ``open-end credit'' 
by replacing the statutory reference to 15 U.S.C. 1602(i) with a 
citation to 15 U.S.C. 1602(j). It also changes references to the 
Federal Reserve Board's regulation to the CFPB's regulation.
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    \13\ 12 U.S.C. 5519.
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    In addition, the proposed amendments update references to the risk-
based pricing notices in Sec. Sec.  640.4(a)(1)(viii), 
640.4(a)(2)(viii), 640.5(d)(1)(ii)(I), 640.5(e)(1)(ii)(L), and 
640.5(f)(iii)(I) from the Board's website to the CFPB's website to 
reflect the CFPB's authority under the Dodd-Frank Act.

B. Examples

    The Rule contains examples that apply to entities no longer within 
the scope of the Rule because of the Dodd-Frank Act. Retaining these 
examples may lead to confusion about the actual scope of the Risk-Based 
Pricing Rule. Accordingly, in addition to changing the term ``person'' 
to ``motor vehicle dealers'' in some examples as discussed above, the 
Commission proposes to modify some of the examples to provide clearer 
guidance to financial institutions that are covered motor vehicle 
dealers. For example, the proposal removes references to utility 
companies and charge cards (Sec.  640.2(n)(3)); student loans, secured 
and unsecured credit cards, and fixed and variable rate mortgages 
(Sec.  640.3(b)); and replaces references to ``credit card issuers'' 
with ``motor vehicle dealers'' (Sec. Sec.  640.4(d)(2); 640.5(a)(2); 
640.5(c)(3)). These modifications to the cited examples are not 
intended to modify the substantive requirements of the Rule, as the 
examples simply illustrate the Rule's application in a particular 
context.\14\
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    \14\ The Commission recognizes that there are substantive 
provisions of the Risk-Based Pricing Rule that typically would not 
apply to motor vehicle dealers. For example, motor vehicle dealers 
rarely issue credit cards, even though that term is defined broadly 
as ``any card, plate, coupon book or other credit device existing 
for the purpose of obtaining money, property, labor, or services on 
credit.'' The Commission has chosen, however, not to remove these 
provisions from the Rule for two reasons. First, the current Rule is 
substantively identical to the CFPB's risk-based pricing rule. The 
Commission believes that it is beneficial to maintain this 
conformity and has opted to make no substantive changes to the rule, 
including for situations where motor vehicle dealers covered by the 
Rule interact with banks or other entities covered by the CFPB's 
rule. Second, to the extent that motor vehicle dealers do not engage 
in particular conduct, e.g., issuing credit cards, then those 
requirements would not apply.
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III. Regulatory Review of the Risk-Based Pricing Rule

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

IV. Issues for Comment

    The Commission requests written comment on any or all of the 
following questions. These questions are designed to assist the public 
and should not be construed as a limitation on the issues about which 
public comments may be submitted. The Commission requests that 
responses to its questions be as specific as possible, including a 
reference to the question being answered, and refer to empirical data 
or other evidence upon which the comment is based whenever available 
and appropriate.
    1. Is there a continuing need for specific provisions of the Risk-
Based Pricing Rule? Why or why not?
    2. What benefits has the Risk-Based Pricing Rule provided to 
consumers? What evidence supports the asserted benefits?
    3. What modifications, if any, should be made to the Risk-Based 
Pricing Rule to increase the benefits to consumers?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs imposed by the 
Risk-Based Pricing Rule?
    4. What significant costs, if any, has the Risk-Based Pricing Rule 
imposed on consumers? What evidence supports the asserted costs?
    5. What modifications, if any, should be made to the Risk-Based 
Pricing Rule to reduce any costs imposed on consumers?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Risk-Based Pricing Rule?
    6. What benefits, if any, has the Risk-Based Pricing Rule provided 
to businesses, including small businesses? What evidence supports the 
asserted benefits?
    7. What modifications, if any, should be made to the Risk-Based 
Pricing Rule to increase its benefits to businesses, including small 
businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the costs the Risk-Based 
Pricing Rule imposes on businesses, including small businesses?
    c. How would these modifications affect the benefits to consumers?
    8. What significant costs, if any, including costs of compliance, 
has the Risk-Based Pricing Rule imposed on businesses, including small 
businesses? What evidence supports the asserted costs?
    9. What modifications, if any, should be made to the Risk-Based 
Pricing Rule

[[Page 63464]]

to reduce the costs imposed on businesses, including small businesses?
    a. What evidence supports the proposed modifications?
    b. How would these modifications affect the benefits provided by 
the Risk-Based Pricing Rule?
    10. What evidence is available concerning the degree of industry 
compliance with the Risk-Based Pricing Rule?
    11. What modifications, if any, should be made to the Risk-Based 
Pricing Rule to account for changes in relevant technology or economic 
conditions? What evidence supports the proposed modifications?
    12. Does the Risk-Based Pricing Rule overlap or conflict with other 
federal, state, or local laws or regulations? If so, how?
    a. What evidence supports the asserted conflicts?
    b. With reference to the asserted conflicts, should the Rule be 
modified? If so, why, and how? If not, why not?
    13. Should the Risk-Based Pricing Rule be amended to remove 
provisions addressing circumstances that do not apply, or typically do 
not apply, to motor vehicle dealers?
    14. Can the examples set forth in the Rule be amended further to 
make them more helpful and informative to motor vehicle dealers? Would 
additional examples be helpful, and if so, what examples? Should 
examples that relate to types of transactions that are not typical in 
the motor vehicle context be removed?
    15. The Commission proposes to amend the Rule now that it applies 
exclusively to motor vehicle dealers. Are the proposed modifications 
appropriate? Should additional amendments be made? Would these 
amendments create conflicts with any other federal, state, or local 
regulations or laws?

V. Request for Comment

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 22, 
2020. Write ``Risk-Based Pricing Rule, 16 CFR part 640, Project No. 
P205408'' on the comment. Your comment, including your name and your 
state, will be placed on the public record of this proceeding, 
including the https://www.regulations.gov website.
    Because of the public health emergency in response to the COVID-19 
outbreak and the agency's heightened security screening, postal mail 
addressed to the Commission will be subject to delay. We strongly 
encourage you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your 
online comment, please follow the instructions on the web-based form.
    If you file your comment on paper, write ``Risk-Based Pricing Rule, 
16 CFR part 640, Project No. P205408'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex B), Washington, DC 20580; or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
B), Washington, DC 20024. If possible, please submit your paper comment 
to the Commission by courier or overnight service.
    Because your comment will be placed on https://www.regulations.gov, 
you are solely responsible for making sure that your comment does not 
include any sensitive or confidential information. In particular, your 
comment should not include any sensitive personal information, such as 
your or anyone else's Social Security number, date of birth, driver's 
license number or other state identification number or foreign country 
equivalent, passport number, financial account number, or credit or 
debit card number. You are also solely responsible for making sure that 
your comment does not include sensitive health information, such as 
medical records or other individually identifiable health information. 
In addition, your comment should not include any ``trade secret or any 
commercial or financial information which . . . is privileged or 
confidential,'' as provided by section 6(f) of the FTC Act, 15 U.S.C. 
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2), including in 
particular, competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. Your comment will be kept confidential only if the 
FTC General Counsel grants your request in accordance with the law and 
the public interest. Once your comment has been posted on https://www.regulations.gov, we cannot redact or remove your comment from that 
website, unless you submit a confidentiality request that meets the 
requirements for such treatment under FTC Rule 4.9(c), and the General 
Counsel grants that request.
    Visit the Commission website at https://www.ftc.gov to read this 
document and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before December 22, 2020. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

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

    Written communications and summaries or transcripts of oral 
communications respecting the merits of this proceeding, from any 
outside party to any Commissioner or Commissioner's advisor, will be 
placed on the public record.\15\
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    \15\ 16 CFR 1.26(b)(5).
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VII. Paperwork Reduction Act

    The Risk-Based Pricing Rule contains information collection 
requirements as defined by 5 CFR 1320.3(c), the definitional provision 
within the Office of Management and Budget (``OMB'') regulations that 
implement the Paperwork Reduction Act (``PRA''). 44 U.S.C. 3501 et seq. 
OMB has approved the Rule's existing information collection 
requirements through August 31, 2020 (OMB Control No. 3084-0145). Under 
the existing clearance, the FTC has attributed to itself the estimated 
burden regarding all motor vehicle dealers and then shares equally the 
remaining estimated PRA burden with the CFPB for other persons for 
which both agencies have enforcement authority regarding the Risk-Based 
Pricing Rule.
    This proposal would amend 16 CFR part 640. The collections of 
information related to the Risk-Based Pricing Rule have been previously 
reviewed and approved by OMB in accordance with the PRA.\16\
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    \16\ OMB Control No. 3084-0145.
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    The proposed amendments do not modify or add to information 
collection requirements that were previously approved by OMB. The 
amendments make no substantive changes to the

[[Page 63465]]

Rule, other than to clarify that the scope of the Rule is limited to 
motor vehicle dealers. The Rule's OMB clearance already reflects that 
scope. Therefore, the Commission does not believe the proposed 
amendments would modify substantially or materially any ``collections 
of information'' as defined by the PRA.

VIII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996, requires an 
agency to either provide an Initial Regulatory Flexibility Analysis 
(``IRFA'') with a proposed rule, or certify that the proposed rule will 
not have a significant impact on a substantial number of small 
entities.\17\ The Commission does not expect that the proposed changes 
to this Rule, if adopted, would have the threshold impact on small 
entities. The Commission does not expect the proposal to impose costs 
on small motor vehicle dealers because the amendments are primarily for 
clarification purposes and should not result in any increased burden on 
any motor vehicle dealer. Thus, a small entity that complies with 
current law need not take any different or additional action if the 
proposal is adopted.
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    \17\ 5 U.S.C. 603-605.
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    Therefore, based on available information, the Commission certifies 
that amending the Risk-Based Pricing Rule as proposed will not have a 
significant economic impact on a substantial number of small 
businesses. Although the Commission certifies under the RFA that the 
proposed amendment would not, if promulgated, have a significant impact 
on a substantial number of small entities, the Commission has 
determined, nonetheless, that it is appropriate to publish an IRFA to 
inquire into the impact of the proposed amendment on small entities. 
Therefore, the Commission has prepared the following analysis:

A. Description of the Reasons for the Proposed Rule

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

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

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

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

    Determining a precise estimate of the number of small entities \18\ 
is not readily feasible. Financial institutions covered by the Rule 
include certain motor vehicle dealers. A substantial number of these 
entities likely qualify as small businesses. The Commission estimates 
that the proposed amendment will not have a significant impact on small 
businesses because it imposes no new obligations.
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    \18\ The U.S. Small Business Administration Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes (NAICS) are generally expressed in 
either millions of dollars or number of employees. A size standard 
is the largest that a business can be and still qualify as a small 
business for Federal Government programs. For the most part, size 
standards are the annual receipts or the average employment of a 
firm. New car dealers (NAICS code 441100) are classified as small if 
they have fewer than 200 employees. Used car dealers (NAICS code 
441120) are classified as small if their annual receipts are $27 
million or less. Recreational vehicle dealers, boat dealers, 
motorcycle, ATV and all other motor vehicle dealers (NAICS codes 
441210, 441222 and 441228) are classified as small if their annual 
receipts are $35 million or less. The 2019 Table of Small Business 
Size Standards is available at https://www.sba.gov/document/support--table-size-standards.
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D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements, Including Classes of Covered Small Entities and 
Professional Skills Needed To Comply

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

E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other federal statutes, 
rules, or policies that would duplicate, overlap, or conflict with the 
proposed amendment. The Commission is requesting comment on the extent 
to which other federal standards involving consumer reports may 
duplicate, satisfy, or possibly conflict with the Rule's requirements 
for any covered financial institutions.

F. Description of Any Significant Alternatives to the Proposed Rule

    The Commission has not proposed any specific small entity exemption 
or other significant alternatives because the proposed amendment would 
not impose any new requirements or compliance costs. Nonetheless, the 
Commission welcomes comment on any significant alternative consistent 
with the FCRA that would minimize the impact of the proposed Rule on 
small entities--specifically institutions that would be newly covered 
financial institutions--if there are any.

IX. Proposed Rule Language

List of Subjects in 16 CFR Part 640

    Consumer protection, Credit, Trade practices.

0
For the reasons stated above, the Federal Trade Commission proposes to 
amend title 16 of the Code of Federal Regulations by revising part 640 
to read as follows:

PART 640--DUTIES OF CREDITORS REGARDING RISK-BASED PRICING

Sec.
640.1 Scope.
640.2 Definitions.
640.3 General requirements for risk-based pricing notices.
640.4 Content, form, and timing of risk-based pricing notices.
640.5 Exceptions.
640.6 Rules of construction.

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


Sec.  640.1  Scope.

    (a) Coverage--(1) In general. This part applies to any motor 
vehicle dealer as defined in Sec.  640.2 that both--
    (i) Uses a consumer report in connection with an application for, 
or a grant, extension, or other provision of, credit to a consumer that 
is primarily for personal, family, or household purposes; and
    (ii) Based in whole or in part on the consumer report, grants, 
extends, or otherwise provides credit to the consumer on material terms 
that are materially less favorable than the most favorable material 
terms available to a substantial proportion of consumers from or 
through that motor vehicle dealer.
    (2) Business credit excluded. This part does not apply to an 
application for, or a grant, extension, or other provision of, credit 
to a consumer or to any other applicant primarily for a business 
purpose.
    (b) Enforcement. The provisions of this part will be enforced in 
accordance with the enforcement authority set forth in sections 621(a) 
and (b) of the FCRA.


Sec.  640.2  Definitions.

    For purposes of this part, the following definitions apply:
    (a) Adverse action has the same meaning as in 15 U.S.C. 
1681a(k)(1)(A).
    (b) Annual percentage rate has the same meaning as in 12 CFR 
1026.14(b) with respect to an open-end credit plan

[[Page 63466]]

and as in 12 CFR 1026.22 with respect to closed-end credit.
    (c) Closed-end credit has the same meaning as in 12 CFR 
1026.2(a)(10).
    (d) Consumer has the same meaning as in 15 U.S.C. 1681a(c).
    (e) Consummation has the same meaning as in 12 CFR 1026.2(a)(13).
    (f) Consumer report has the same meaning as in 15 U.S.C. 1681a(d).
    (g) Consumer reporting agency has the same meaning as in 15 U.S.C. 
1681a(f).
    (h) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (i) Creditor has the same meaning as in 15 U.S.C. 1681a(r)(5).
    (j) Credit card has the same meaning as in 15 U.S.C. 1681a(r)(2).
    (k) Credit card issuer has the same meaning as in 15 U.S.C. 
1681a(r)(1)(A).
    (l) Credit score has the same meaning as in 15 U.S.C. 
1681g(f)(2)(A).
    (m) Firm offer of credit has the same meaning as in 15 U.S.C. 
1681a(l).
    (n) Material terms means--
    (1)(i) Except as otherwise provided in paragraphs (n)(1)(ii) and 
(n)(3) of this section, in the case of credit extended under an open-
end credit plan, the annual percentage rate required to be disclosed 
under 12 CFR 226.6(a)(1)(ii) or 12 CFR 226.6(b)(2)(i), excluding any 
temporary initial rate that is lower than the rate that will apply 
after the temporary rate expires, any penalty rate that will apply upon 
the occurrence of one or more specific events, such as a late payment 
or an extension of credit that exceeds the credit limit, and any fixed 
annual percentage rate option for a home equity line of credit;
    (ii) In the case of a credit card (other than a credit card that is 
used to access a home equity line of credit or a charge card), the 
annual percentage rate required to be disclosed under 12 CFR 
226.6(b)(2)(i) that applies to purchases (``purchase annual percentage 
rate'') and no other annual percentage rate, or in the case of a credit 
card that has no purchase annual percentage rate, the annual percentage 
rate that varies based on information in a consumer report and that has 
the most significant financial impact on consumers;
    (2) In the case of closed-end credit, the annual percentage rate 
required to be disclosed under 12 CFR 226.17(c) and 226.18(e); and
    (3) In the case of credit for which there is no annual percentage 
rate, the financial term that varies based on information in a consumer 
report and that has the most significant financial impact on consumers, 
such as a deposit required in connection with an extension of credit.
    (o) Materially less favorable means, when applied to material 
terms, that the terms granted, extended, or otherwise provided to a 
consumer differ from the terms granted, extended, or otherwise provided 
to another consumer from or through the same motor vehicle dealer such 
that the cost of credit to the first consumer would be significantly 
greater than the cost of credit granted, extended, or otherwise 
provided to the other consumer. For purposes of this definition, 
factors relevant to determining the significance of a difference in 
cost include the type of credit product, the term of the credit 
extension, if any, and the extent of the difference between the 
material terms granted, extended, or otherwise provided to the two 
consumers.
    (p) Motor vehicle dealer means any person excluded from Consumer 
Financial Protection Bureau jurisdiction as described in 12 U.S.C. 
5519.
    (q) Open-end credit plan has the same meaning as in 15 U.S.C. 
1602(j), as interpreted by the Board in Regulation Z and the Official 
Staff Commentary to Regulation Z.
    (r) Person has the same meaning as in 15 U.S.C. 1681a(b).


Sec.  640.3  General requirements for risk-based pricing notices.

    (a) In general. Except as otherwise provided in this part, a motor 
vehicle dealer must provide to a consumer a notice (``risk-based 
pricing notice'') in the form and manner required by this part if the 
motor vehicle dealer both--
    (1) Uses a consumer report in connection with an application for, 
or a grant, extension, or other provision of, credit to that consumer 
that is primarily for personal, family, or household purposes; and
    (2) Based in whole or in part on the consumer report, grants, 
extends, or otherwise provides credit to that consumer on material 
terms that are materially less favorable than the most favorable 
material terms available to a substantial proportion of consumers from 
or through that motor vehicle dealer.
    (b) Determining which consumers must receive a notice. A motor 
vehicle dealer may determine whether paragraph (a) of this section 
applies by directly comparing the material terms offered to each 
consumer and the material terms offered to other consumers for a 
specific type of credit product. For purposes of this section, a 
``specific type of credit product'' means one or more credit products 
with similar features that are designed for similar purposes. Examples 
of a specific type of credit product include new automobile loans and 
used automobile loans. As an alternative to making this direct 
comparison, a motor vehicle dealer may make the determination by using 
one of the following methods:
    (1) Credit score proxy method--(i) In general. A motor vehicle 
dealer that sets the material terms of credit granted, extended, or 
otherwise provided to a consumer, based in whole or in part on a credit 
score, may comply with the requirements of paragraph (a) of this 
section by--
    (A) Determining the credit score (hereafter referred to as the 
``cutoff score'') that represents the point at which approximately 40 
percent of the consumers to whom it grants, extends, or provides credit 
have higher credit scores and approximately 60 percent of the consumers 
to whom it grants, extends, or provides credit have lower credit 
scores; and
    (B) Providing a risk-based pricing notice to each consumer to whom 
it grants, extends, or provides credit whose credit score is lower than 
the cutoff score.
    (ii) Alternative to the 40/60 cutoff score determination. In the 
case of credit that has been granted, extended, or provided on the most 
favorable material terms to more than 40 percent of consumers, a motor 
vehicle dealer may, at its option, set its cutoff score at a point at 
which the approximate percentage of consumers who historically have 
been granted, extended, or provided credit on material terms other than 
the most favorable terms would receive risk-based pricing notices under 
this section.
    (iii) Determining the cutoff score--(A) Sampling approach. A motor 
vehicle dealer that currently uses risk-based pricing with respect to 
the credit products it offers must calculate the cutoff score by 
considering the credit scores of all or a representative sample of the 
consumers to whom it has granted, extended, or provided credit for a 
specific type of credit product.
    (B) Secondary source approach in limited circumstances. A motor 
vehicle dealer that is a new entrant into the credit business, 
introduces new credit products, or starts to use risk-based pricing 
with respect to the credit products it currently offers may initially 
determine the cutoff score based on information derived from 
appropriate market research or relevant third-party sources for a 
specific type of credit product, such as research or data from 
companies that develop credit scores. A motor vehicle dealer that 
acquires a credit portfolio as a result of a merger or acquisition may 
determine the cutoff score based on information from the party which it 
acquired, with which it

[[Page 63467]]

merged, or from which it acquired the portfolio.
    (C) Recalculation of cutoff scores. A motor vehicle dealer using 
the credit score proxy method must recalculate its cutoff score(s) no 
less than every two years in the manner described in paragraph 
(b)(1)(iii)(A) of this section. A motor vehicle dealer using the credit 
score proxy method using market research, third-party data, or 
information from a party which it acquired, with which it merged, or 
from which it acquired the portfolio as permitted by paragraph 
(b)(1)(iii)(B) of this section generally must calculate a cutoff 
score(s) based on the scores of its own consumers in the manner 
described in paragraph (b)(1)(iii)(A) of this section within one year 
after it begins using a cutoff score derived from market research, 
third-party data, or information from a party which it acquired, with 
which it merged, or from which it acquired the portfolio. If such a 
motor vehicle dealer does not grant, extend, or provide credit to new 
consumers during that one-year period such that it lacks sufficient 
data with which to recalculate a cutoff score based on the credit 
scores of its own consumers, the motor vehicle dealer may continue to 
use a cutoff score derived from market research, third-party data, or 
information from a party which it acquired, with which it merged, or 
from which it acquired the portfolio as provided in paragraph 
(b)(1)(iii)(B) of this section until it obtains sufficient data on 
which to base the recalculation. However, the motor vehicle dealer must 
recalculate its cutoff score(s) in the manner described in paragraph 
(b)(1)(iii)(A) of this section within two years, if it has granted, 
extended, or provided credit to some new consumers during that two-year 
period.
    (D) Use of two or more credit scores. A motor vehicle dealer that 
generally uses two or more credit scores in setting the material terms 
of credit granted, extended, or provided to a consumer must determine 
the cutoff score using the same method the motor vehicle dealer uses to 
evaluate multiple scores when making credit decisions. These evaluation 
methods may include, but are not limited to, selecting the low, median, 
high, most recent, or average credit score of each consumer to whom it 
grants, extends, or provides credit. If a motor vehicle dealer that 
uses two or more credit scores does not consistently use the same 
method for evaluating multiple credit scores (e.g., if the motor 
vehicle dealer sometimes chooses the median score and other times 
calculates the average score), the motor vehicle dealer must determine 
the cutoff score using a reasonable means. In such cases, use of any 
one of the methods that the motor vehicle dealer regularly uses or the 
average credit score of each consumer to whom it grants, extends, or 
provides credit is deemed to be a reasonable means of calculating the 
cutoff score.
    (iv) Credit score not available. For purposes of this section, a 
motor vehicle dealer using the credit score proxy method who grants, 
extends, or provides credit to a consumer for whom a credit score is 
not available must assume that the consumer receives credit on material 
terms that are materially less favorable than the most favorable credit 
terms offered to a substantial proportion of consumers from or through 
that motor vehicle dealer and must provide a risk-based pricing notice 
to the consumer.
    (v) Examples. (A) A motor vehicle dealer engages in risk-based 
pricing and the annual percentage rates it offers to consumers are 
based in whole or in part on a credit score. The motor vehicle dealer 
takes a representative sample of the credit scores of consumers to whom 
it extended loans within the preceding three months. The motor vehicle 
dealer determines that approximately 40 percent of the sampled 
consumers have a credit score at or above 720 (on a scale of 350 to 
850) and approximately 60 percent of the sampled consumers have a 
credit score below 720. Thus, the motor vehicle dealer selects 720 as 
its cutoff score. A consumer applies to the motor vehicle dealer for a 
loan. The motor vehicle dealer obtains a credit score for the consumer. 
The consumer's credit score is 700. Since the consumer's 700 credit 
score falls below the 720 cutoff score, the motor vehicle dealer must 
provide a risk-based pricing notice to the consumer.
    (B) A motor vehicle dealer engages in risk-based pricing, and the 
annual percentage rates it offers to consumers are based in whole or in 
part on a credit score. The motor vehicle dealer takes a representative 
sample of the consumers to whom it extended loans over the preceding 
six months. The motor vehicle dealer determines that approximately 80 
percent of the sampled consumers received credit at its lowest annual 
percentage rate, and 20 percent received credit at a higher annual 
percentage rate. Approximately 80 percent of the sampled consumers have 
a credit score at or above 750 (on a scale of 350 to 850), and 20 
percent have a credit score below 750. Thus, the motor vehicle dealer 
selects 750 as its cutoff score. A consumer applies to the motor 
vehicle dealer for an automobile loan. The motor vehicle dealer obtains 
a credit score for the consumer. The consumer's credit score is 740. 
Since the consumer's 740 credit score falls below the 750 cutoff score, 
the motor vehicle dealer must provide a risk-based pricing notice to 
the consumer.
    (C) A motor vehicle dealer engages in risk-based pricing, obtains 
credit scores from one of the nationwide consumer reporting agencies, 
and uses the credit score proxy method to determine which consumers 
must receive a risk-based pricing notice. A consumer applies to the 
motor vehicle dealer for credit to finance the purchase of an 
automobile. A credit score about that consumer is not available from 
the consumer reporting agency from which the lender obtains credit 
scores. The motor vehicle dealer nevertheless grants, extends, or 
provides credit to the consumer. The motor vehicle dealer must provide 
a risk-based pricing notice to the consumer.
    (2) Tiered pricing method--(i) In general. A motor vehicle dealer 
that sets the material terms of credit granted, extended, or provided 
to a consumer by placing the consumer within one of a discrete number 
of pricing tiers for a specific type of credit product, based in whole 
or in part on a consumer report, may comply with the requirements of 
paragraph (a) of this section by providing a risk-based pricing notice 
to each consumer who is not placed within the top pricing tier or 
tiers, as described in paragraphs (b)(2)(ii) and (iii) of this section.
    (ii) Four or fewer pricing tiers. If a motor vehicle dealer using 
the tiered pricing method has four or fewer pricing tiers, the motor 
vehicle dealer complies with the requirements of paragraph (a) of this 
section by providing a risk-based pricing notice to each consumer to 
whom it grants, extends, or provides credit who does not qualify for 
the top tier (that is, the lowest-priced tier). For example, a motor 
vehicle dealer that uses a tiered pricing structure with annual 
percentage rates of 8, 10, 12, and 14 percent would provide the risk-
based pricing notice to each consumer to whom it grants, extends, or 
provides credit at annual percentage rates of 10, 12, and 14 percent.
    (iii) Five or more pricing tiers. If a motor vehicle dealer using 
the tiered pricing method has five or more pricing tiers, the motor 
vehicle dealer complies with the requirements of paragraph (a) of this 
section by providing a risk-based pricing notice to each consumer to 
whom it grants, extends, or provides credit who does not qualify for 
the top two tiers (that is, the two lowest-priced tiers) and any other 
tier that, together

[[Page 63468]]

with the top tiers, comprise no less than the top 30 percent but no 
more than the top 40 percent of the total number of tiers. Each 
consumer placed within the remaining tiers must receive a risk-based 
pricing notice. For example, if a motor vehicle dealer has nine pricing 
tiers, the top three tiers (that is, the three lowest-priced tiers) 
comprise no less than the top 30 percent but no more than the top 40 
percent of the tiers. Therefore, a motor vehicle dealer using this 
method would provide a risk-based pricing notice to each consumer to 
whom it grants, extends, or provides credit who is placed within the 
bottom six tiers.
    (c) Application to credit card issuers--(1) In general. A credit 
card issuer subject to the requirements of paragraph (a) of this 
section may use one of the methods set forth in paragraph (b) of this 
section to identify consumers to whom it must provide a risk-based 
pricing notice. Alternatively, a credit card issuer may satisfy its 
obligations under paragraph (a) of this section by providing a risk-
based pricing notice to a consumer when--
    (i) A consumer applies for a credit card either in connection with 
an application program, such as a direct-mail offer or a take-one 
application, or in response to a solicitation under 12 CFR 226.5a, and 
more than a single possible purchase annual percentage rate may apply 
under the program or solicitation; and
    (ii) Based in whole or in part on a consumer report, the credit 
card issuer provides a credit card to the consumer with an annual 
percentage rate referenced in Sec.  640.2(n)(1)(ii) that is greater 
than the lowest annual percentage rate referenced in Sec.  
640.2(n)(1)(ii) available in connection with the application or 
solicitation.
    (2) No requirement to compare different offers. A credit card 
issuer is not subject to the requirements of paragraph (a) of this 
section and is not required to provide a risk-based pricing notice to a 
consumer if--
    (i) The consumer applies for a credit card for which the card 
issuer provides a single annual percentage rate referenced in Sec.  
640.2(n)(1)(ii), excluding a temporary initial rate that is lower than 
the rate that will apply after the temporary rate expires and a penalty 
rate that will apply upon the occurrence of one or more specific 
events, such as a late payment or an extension of credit that exceeds 
the credit limit; or
    (ii) The credit card issuer offers the consumer the lowest annual 
percentage rate referenced in Sec.  640.2(n)(1)(ii) available under the 
credit card offer for which the consumer applied, even if a lower 
annual percentage rate referenced in Sec.  640.2(n)(1)(ii) is available 
under a different credit card offer issued by the card issuer.
    (3) Examples. (i) A credit card issuer sends a solicitation to the 
consumer that discloses several possible purchase annual percentage 
rates that may apply, such as 10, 12, or 14 percent, or a range of 
purchase annual percentage rates from 10 to 14 percent. The consumer 
applies for a credit card in response to the solicitation. The card 
issuer provides a credit card to the consumer with a purchase annual 
percentage rate of 12 percent based in whole or in part on a consumer 
report. Unless an exception applies under Sec.  640.5, the card issuer 
may satisfy its obligations under paragraph (a) of this section by 
providing a risk-based pricing notice to the consumer because the 
consumer received credit at a purchase annual percentage rate greater 
than the lowest purchase annual percentage rate available under that 
solicitation.
    (ii) The same facts as in the example in paragraph (c)(3)(i) of 
this section, except that the card issuer provides a credit card to the 
consumer at a purchase annual percentage rate of 10 percent. The card 
issuer is not required to provide a risk-based pricing notice to the 
consumer even if, under a different credit card solicitation, that 
consumer or other consumers might qualify for a purchase annual 
percentage rate of 8 percent.
    (d) Account review--(1) In general. Except as otherwise provided in 
this part, a motor vehicle dealer is subject to the requirements of 
paragraph (a) of this section and must provide a risk-based pricing 
notice to a consumer in the form and manner required by this part if 
the motor vehicle dealer--
    (i) Uses a consumer report in connection with a review of credit 
that has been extended to the consumer; and
    (ii) Based in whole or in part on the consumer report, increases 
the annual percentage rate (the annual percentage rate referenced in 
Sec.  640.2(n)(1)(ii) in the case of a credit card).
    (2) Example. A credit card issuer periodically obtains consumer 
reports for the purpose of reviewing the terms of credit it has 
extended to consumers in connection with credit cards. As a result of 
this review, the credit card issuer increases the purchase annual 
percentage rate applicable to a consumer's credit card based in whole 
or in part on information in a consumer report. The credit card issuer 
is subject to the requirements of paragraph (a) of this section and 
must provide a risk-based pricing notice to the consumer.


Sec.  640.4  Content, form, and timing of risk-based pricing notices.

    (a) Content of the notice--(1) In general. The risk-based pricing 
notice required by Sec.  640.3(a) or (c) must include:
    (i) A statement that a consumer report (or credit report) includes 
information about the consumer's credit history and the type of 
information included in that history;
    (ii) A statement that the terms offered, such as the annual 
percentage rate, have been set based on information from a consumer 
report;
    (iii) A statement that the terms offered may be less favorable than 
the terms offered to consumers with better credit histories;
    (iv) A statement that the consumer is encouraged to verify the 
accuracy of the information contained in the consumer report and has 
the right to dispute any inaccurate information in the report;
    (v) The identity of each consumer reporting agency that furnished a 
consumer report used in the credit decision;
    (vi) A statement that federal law gives the consumer the right to 
obtain a copy of a consumer report from the consumer reporting agency 
or agencies identified in the notice without charge for 60 days after 
receipt of the notice;
    (vii) A statement informing the consumer how to obtain a consumer 
report from the consumer reporting agency or agencies identified in the 
notice and providing contact information (including a toll-free 
telephone number, where applicable) specified by the consumer reporting 
agency or agencies;
    (viii) A statement directing consumers to the websites of the 
Consumer Financial Protection Bureau and Federal Trade Commission to 
obtain more information about consumer reports; and
    (ix) If a credit score of the consumer to whom a motor vehicle 
dealer grants, extends, or otherwise provides credit is used in setting 
the material terms of credit:
    (A) A statement that a credit score is a number that takes into 
account information in a consumer report, that the consumer's credit 
score was used to set the terms of credit offered, and that a credit 
score can change over time to reflect changes in the consumer's credit 
history;
    (B) The credit score used by the motor vehicle dealer in making the 
credit decision;
    (C) The range of possible credit scores under the model used to 
generate the credit score;

[[Page 63469]]

    (D) All of the key factors that adversely affected the credit 
score, which shall not exceed four key factors, except that if one of 
the key factors is the number of enquiries made with respect to the 
consumer report, the number of key factors shall not exceed five;
    (E) The date on which the credit score was created; and
    (F) The name of the consumer reporting agency or other person that 
provided the credit score.
    (2) Account review. The risk-based pricing notice required by Sec.  
640.3(d) must include:
    (i) A statement that a consumer report (or credit report) includes 
information about the consumer's credit history and the type of 
information included in that credit history;
    (ii) A statement that the credit card issuer has conducted a review 
of the account using information from a consumer report;
    (iii) A statement that as a result of the review, the annual 
percentage rate on the account has been increased based on information 
from a consumer report;
    (iv) A statement that the consumer is encouraged to verify the 
accuracy of the information contained in the consumer report and has 
the right to dispute any inaccurate information in the report;
    (v) The identity of each consumer reporting agency that furnished a 
consumer report used in the account review;
    (vi) A statement that federal law gives the consumer the right to 
obtain a copy of a consumer report from the consumer reporting agency 
or agencies identified in the notice without charge for 60 days after 
receipt of the notice;
    (vii) A statement informing the consumer how to obtain a consumer 
report from the consumer reporting agency or agencies identified in the 
notice and providing contact information (including a toll-free 
telephone number, where applicable) specified by the consumer reporting 
agency or agencies;
    (viii) A statement directing consumers to the websites of the 
Consumer Financial Protection Bureau and Federal Trade Commission to 
obtain more information about consumer reports; and
    (ix) If a credit score of the consumer whose extension of credit is 
under review is used in increasing the annual percentage rate:
    (A) A statement that a credit score is a number that takes into 
account information in a consumer report, that the consumer's credit 
score was used to set the terms of credit offered, and that a credit 
score can change over time to reflect changes in the consumer's credit 
history;
    (B) The credit score used by the credit card issuer in making the 
credit decision;
    (C) The range of possible credit scores under the model used to 
generate the credit score;
    (D) All of the key factors that adversely affected the credit 
score, which shall not exceed four key factors, except that if one of 
the key factors is the number of enquiries made with respect to the 
consumer report, the number of key factors shall not exceed five;
    (E) The date on which the credit score was created; and
    (F) The name of the consumer reporting agency or other person that 
provided the credit score.
    (b) Form of the notice--(1) In general. The risk-based pricing 
notice required by Sec.  640.3(a), (c), or (d) must be:
    (i) Clear and conspicuous; and
    (ii) Provided to the consumer in oral, written, or electronic form.
    (2) Model forms. Model forms of the risk-based pricing notice 
required by Sec.  640.3(a) and (c) are contained in appendices A-1 and 
A-6 of part 698. Appropriate use of Model form A-1 or A-6 is deemed to 
comply with the requirements of Sec.  640.3(a) and (c). Model forms of 
the risk-based pricing notice required by Sec.  640.3(d) are contained 
in appendices A-2 and A-7 of part 698. Appropriate use of Model form A-
2 or A-7 is deemed to comply with the requirements of Sec.  640.3(d). 
Use of the model forms is optional.
    (c) Timing--(1) General. Except as provided in paragraph (c)(3) of 
this section, a risk-based pricing notice must be provided to the 
consumer--
    (i) In the case of a grant, extension, or other provision of 
closed-end credit, before consummation of the transaction, but not 
earlier than the time the decision to approve an application for, or a 
grant, extension, or other provision of, credit, is communicated to the 
consumer by the motor vehicle dealer required to provide the notice;
    (ii) In the case of credit granted, extended, or provided under an 
open-end credit plan, before the first transaction is made under the 
plan, but not earlier than the time the decision to approve an 
application for, or a grant, extension, or other provision of, credit 
is communicated to the consumer by the motor vehicle dealer required to 
provide the notice; or
    (iii) In the case of a review of credit that has been extended to 
the consumer, at the time the decision to increase the annual 
percentage rate (annual percentage rate referenced in Sec.  
640.2(n)(1)(ii) in the case of a credit card) based on a consumer 
report is communicated to the consumer by the motor vehicle dealer 
required to provide the notice, or if no notice of the increase in the 
annual percentage rate is provided to the consumer prior to the 
effective date of the change in the annual percentage rate (to the 
extent permitted by law), no later than five days after the effective 
date of the change in the annual percentage rate.
    (2) Application to certain automobile lending transactions. When a 
person to whom a credit obligation is initially payable grants, 
extends, or provides credit to a consumer for the purpose of financing 
the purchase of an automobile from an motor vehicle dealer or other 
party that is not affiliated with the person, any requirement to 
provide a risk-based pricing notice pursuant to this part is satisfied 
if the person:
    (i) Provides a notice described in Sec. Sec.  640.3(a), 640.5(e), 
or 640.5(f) to the consumer within the time periods set forth in 
paragraph (c)(1)(i) of this section, Sec.  640.5(e)(3), or Sec.  
640.5(f)(4), as applicable; or
    (ii) Arranges to have the motor vehicle dealer or other party 
provide a notice described in Sec. Sec.  640.3(a), 640.5(e), or 
640.5(f) to the consumer on its behalf within the time periods set 
forth in paragraph (c)(1)(i) of this section, Sec.  640.5(e)(3), or 
Sec.  640.5(f)(4), as applicable, and maintains reasonable policies and 
procedures to verify that the motor vehicle dealer or other party 
provides such notice to the consumer within the applicable time 
periods. If the person arranges to have the motor vehicle dealer or 
other party provide a notice described in Sec.  640.5(e), the person's 
obligation is satisfied if the consumer receives a notice containing a 
credit score obtained by the dealer or other party, even if a different 
credit score is obtained and used by the person on whose behalf the 
notice is provided.
    (3) Timing requirements for contemporaneous purchase credit. When 
credit under an open-end credit plan is granted, extended, or provided 
to a consumer in person or by telephone for the purpose of financing 
the contemporaneous purchase of goods or services, any risk-based 
pricing notice required to be provided pursuant to this part (or the 
disclosures permitted under Sec.  640.5(e) or (f)) may be provided at 
the earlier of:
    (i) The time of the first mailing by the motor vehicle dealer to 
the consumer after the decision is made to approve the grant, 
extension, or other provision of open-end credit, such as in a mailing 
containing the account agreement or a credit card; or

[[Page 63470]]

    (ii) Within 30 days after the decision to approve the grant, 
extension, or other provision of credit.
    (d) Multiple credit scores--(1) In general. When a motor vehicle 
dealer obtains or creates two or more credit scores and uses one of 
those credit scores in setting the material terms of credit, for 
example, by using the low, middle, high, or most recent score, the 
notices described in paragraphs (a)(1) and (2) of this section must 
include that credit score and information relating to that credit score 
required by paragraphs (a)(1)(ix) and (a)(2)(ix) of this section. When 
a motor vehicle dealer obtains or creates two or more credit scores and 
uses multiple credit scores in setting the material terms of credit by, 
for example, computing the average of all the credit scores obtained or 
created, the notices described in paragraphs (a)(1) and (2) of this 
section must include one of those credit scores and information 
relating to credit scores required by paragraphs (a)(1)(ix) and 
(a)(2)(ix) of this section. The notice may, at the motor vehicle 
dealer's option, include more than one credit score, along with the 
additional information specified in paragraphs (a)(1)(ix) and 
(a)(2)(ix) of this section for each credit score disclosed.
    (2) Examples. (i) A motor vehicle dealer that uses consumer reports 
to set the material terms of automobile loans granted, extended, or 
provided to consumers regularly requests credit scores from several 
consumer reporting agencies and uses the low score when determining the 
material terms it will offer to the consumer. That motor vehicle dealer 
must disclose the low score in the notices described in paragraphs 
(a)(1) and (2) of this section.
    (ii) A motor vehicle dealer that uses consumer reports to set the 
material terms of automobile loans granted, extended, or provided to 
consumers regularly requests credit scores from several consumer 
reporting agencies, each of which it uses in an underwriting program in 
order to determine the material terms it will offer to the consumer. 
That motor vehicle dealer may choose one of these scores to include in 
the notices described in paragraph (a)(1) and (2) of this section.


Sec.  640.5  Exceptions.

    (a) Application for specific terms--(1) In general. A motor vehicle 
dealer is not required to provide a risk-based pricing notice to the 
consumer under Sec.  640.3(a) or (c) if the consumer applies for 
specific material terms and is granted those terms, unless those terms 
were specified by the motor vehicle dealer using a consumer report 
after the consumer applied for or requested credit and after the motor 
vehicle dealer obtained the consumer report. For purposes of this 
section, ``specific material terms'' means a single material term, or 
set of material terms, such as an annual percentage rate of 10 percent, 
and not a range of alternatives, such as an annual percentage rate that 
may be 8, 10, or 12 percent, or between 8 and 12 percent.
    (2) Example. A consumer receives a firm offer of credit from a 
motor vehicle dealer. The terms of the firm offer are based in whole or 
in part on information from a consumer report that the motor vehicle 
dealer obtained under the FCRA's firm offer of credit provisions. The 
solicitation offers the consumer a loan with an annual percentage rate 
of 12 percent. The consumer applies for and receives a loan with an 
annual percentage rate of 12 percent. Other customers of the motor 
vehicle dealer have an annual percentage rate of 10 percent. The 
exception applies because the consumer applied for specific material 
terms and was granted those terms. Although the motor vehicle dealer 
specified the annual percentage rate in the firm offer of credit based 
in whole or in part on a consumer report, the motor vehicle dealer 
specified that material term before, not after, the consumer applied 
for or requested credit.
    (b) Adverse action notice. A motor vehicle dealer is not required 
to provide a risk-based pricing notice to the consumer under Sec.  
640.3(a), (c), or (d) if the motor vehicle dealer provides an adverse 
action notice to the consumer under section 615(a) of the FCRA.
    (c) Prescreened solicitations--(1) In general. A motor vehicle 
dealer is not required to provide a risk-based pricing notice to the 
consumer under Sec.  640.3(a) or (c) if the motor vehicle dealer:
    (i) Obtains a consumer report that is a prescreened list as 
described in section 604(c)(2) of the FCRA; and
    (ii) Uses the consumer report for the purpose of making a firm 
offer of credit to the consumer.
    (2) More favorable material terms. This exception applies to any 
firm offer of credit offered by a motor vehicle dealer to a consumer, 
even if the motor vehicle dealer makes other firm offers of credit to 
other consumers on more favorable material terms.
    (3) Example. A motor vehicle dealer obtains two prescreened lists 
from a consumer reporting agency. One list includes consumers with high 
credit scores. The other list includes consumers with low credit 
scores. The motor vehicle dealer mails a firm offer of credit to the 
high credit score consumers with an annual percentage rate of 10 
percent. The motor vehicle dealer also mails a firm offer of credit to 
the low credit score consumers with an annual percentage rate of 14 
percent. The motor vehicle dealer is not required to provide a risk-
based pricing notice to the low credit score consumers who receive the 
14 percent offer because use of a consumer report to make a firm offer 
of credit does not trigger the risk-based pricing notice requirement.
    (d) Loans secured by residential real property--credit score 
disclosure--(1) In general. A motor vehicle dealer is not required to 
provide a risk-based pricing notice to a consumer under Sec.  640.3(a) 
or (c) if:
    (i) The consumer requests from the motor vehicle dealer an 
extension of credit that is or will be secured by one to four units of 
residential real property; and
    (ii) The motor vehicle dealer provides to each consumer described 
in paragraph (d)(1)(i) of this section a notice that contains the 
following--
    (A) A statement that a consumer report (or credit report) is a 
record of the consumer's credit history and includes information about 
whether the consumer pays his or her obligations on time and how much 
the consumer owes to creditors;
    (B) A statement that a credit score is a number that takes into 
account information in a consumer report and that a credit score can 
change over time to reflect changes in the consumer's credit history;
    (C) A statement that the consumer's credit score can affect whether 
the consumer can obtain credit and what the cost of that credit will 
be;
    (D) The information required to be disclosed to the consumer 
pursuant to section 609(g) of the FCRA;
    (E) The distribution of credit scores among consumers who are 
scored under the same scoring model that is used to generate the 
consumer's credit score using the same scale as that of the credit 
score that is provided to the consumer, presented in the form of a bar 
graph containing a minimum of six bars that illustrates the percentage 
of consumers with credit scores within the range of scores reflected in 
each bar or by other clear and readily understandable graphical means, 
or a clear and readily understandable statement informing the consumer 
how his or her credit score compares to the scores of other consumers. 
Use of a graph or statement obtained from the person providing the 
credit score that meets the requirements of this paragraph 
(d)(1)(ii)(E) is deemed to comply with this requirement;
    (F) A statement that the consumer is encouraged to verify the 
accuracy of the

[[Page 63471]]

information contained in the consumer report and has the right to 
dispute any inaccurate information in the report;
    (G) A statement that federal law gives the consumer the right to 
obtain copies of his or her consumer reports directly from the consumer 
reporting agencies, including a free report from each of the nationwide 
consumer reporting agencies once during any 12-month period;
    (H) Contact information for the centralized source from which 
consumers may obtain their free annual consumer reports; and
    (I) A statement directing consumers to the websites of the Board 
and Federal Trade Commission to obtain more information about consumer 
reports.
    (2) Form of the notice. The notice described in paragraph 
(d)(1)(ii) of this section must be:
    (i) Clear and conspicuous;
    (ii) Provided on or with the notice required by section 609(g) of 
the FCRA;
    (iii) Segregated from other information provided to the consumer, 
except for the notice required by section 609(g) of the FCRA; and
    (iv) Provided to the consumer in writing and in a form that the 
consumer may keep.
    (3) Timing. The notice described in paragraph (d)(1)(ii) of this 
section must be provided to the consumer at the time the disclosure 
required by section 609(g) of the FCRA is provided to the consumer, but 
in any event at or before consummation in the case of closed-end credit 
or before the first transaction is made under an open-end credit plan.
    (4) Multiple credit scores--(i) In general. When a motor vehicle 
dealer obtains two or more credit scores from consumer reporting 
agencies and uses one of those credit scores in setting the material 
terms of credit granted, extended, or otherwise provided to a consumer, 
for example, by using the low, middle, high, or most recent score, the 
notice described in paragraph (d)(1)(ii) of this section must include 
that credit score and the other information required by that paragraph. 
When a motor vehicle dealer obtains two or more credit scores from 
consumer reporting agencies and uses multiple credit scores in setting 
the material terms of credit granted, extended, or otherwise provided 
to a consumer, for example, by computing the average of all the credit 
scores obtained, the notice described in paragraph (d)(1)(ii) of this 
section must include one of those credit scores and the other 
information required by that paragraph. The notice may, at the motor 
vehicle dealer's option, include more than one credit score, along with 
the additional information specified in paragraph (d)(1)(ii) of this 
section for each credit score disclosed.
    (ii) Examples. (A) A motor vehicle dealer that uses consumer 
reports to set the material terms of credit granted, extended, or 
provided to consumers regularly requests credit scores from several 
consumer reporting agencies and uses the low score when determining the 
material terms it will offer to the consumer. That motor vehicle dealer 
must disclose the low score in the notice described in paragraph 
(d)(1)(ii) of this section.
    (B) A motor vehicle dealer that uses consumer reports to set the 
material terms of mortgage credit granted, extended, or provided to 
consumers regularly requests credit scores from several consumer 
reporting agencies, each of which it uses in an underwriting program in 
order to determine the material terms it will offer to the consumer. 
That motor vehicle dealer may choose one of these scores to include in 
the notice described in paragraph (d)(1)(ii) of this section.
    (5) Model form. A model form of the notice described in paragraph 
(d)(1)(ii) of this section consolidated with the notice required by 
section 609(g) of the FCRA is contained in 16 CFR part 698, appendix A. 
Appropriate use of Model Form A-3 is deemed to comply with the 
requirements of Sec.  640.5(d). Use of the model form is optional.
    (e) Other extensions of credit--credit score disclosure--(1) In 
general. A motor vehicle dealer is not required to provide a risk-based 
pricing notice to a consumer under Sec.  640.3(a) or (c) if:
    (i) The consumer requests from the motor vehicle dealer an 
extension of credit other than credit that is or will be secured by one 
to four units of residential real property; and
    (ii) The motor vehicle dealer provides to each consumer described 
in paragraph (e)(1)(i) of this section a notice that contains the 
following--
    (A) A statement that a consumer report (or credit report) is a 
record of the consumer's credit history and includes information about 
whether the consumer pays his or her obligations on time and how much 
the consumer owes to creditors;
    (B) A statement that a credit score is a number that takes into 
account information in a consumer report and that a credit score can 
change over time to reflect changes in the consumer's credit history;
    (C) A statement that the consumer's credit score can affect whether 
the consumer can obtain credit and what the cost of that credit will 
be;
    (D) The current credit score of the consumer or the most recent 
credit score of the consumer that was previously calculated by the 
consumer reporting agency for a purpose related to the extension of 
credit;
    (E) The range of possible credit scores under the model used to 
generate the credit score;
    (F) The distribution of credit scores among consumers who are 
scored under the same scoring model that is used to generate the 
consumer's credit score using the same scale as that of the credit 
score that is provided to the consumer, presented in the form of a bar 
graph containing a minimum of six bars that illustrates the percentage 
of consumers with credit scores within the range of scores reflected in 
each bar, or by other clear and readily understandable graphical means, 
or a clear and readily understandable statement informing the consumer 
how his or her credit score compares to the scores of other consumers. 
Use of a graph or statement obtained from the person providing the 
credit score that meets the requirements of this paragraph 
(e)(1)(ii)(F) is deemed to comply with this requirement;
    (G) The date on which the credit score was created;
    (H) The name of the consumer reporting agency or other person that 
provided the credit score;
    (I) A statement that the consumer is encouraged to verify the 
accuracy of the information contained in the consumer report and has 
the right to dispute any inaccurate information in the report;
    (J) A statement that federal law gives the consumer the right to 
obtain copies of his or her consumer reports directly from the consumer 
reporting agencies, including a free report from each of the nationwide 
consumer reporting agencies once during any 12-month period;
    (K) Contact information for the centralized source from which 
consumers may obtain their free annual consumer reports; and
    (L) A statement directing consumers to the websites of the Federal 
Reserve Board and Federal Trade Commission to obtain more information 
about consumer reports.
    (2) Form of the notice. The notice described in paragraph 
(e)(1)(ii) of this section must be:
    (i) Clear and conspicuous;
    (ii) Segregated from other information provided to the consumer; 
and
    (iii) Provided to the consumer in writing and in a form that the 
consumer may keep.
    (3) Timing. The notice described in paragraph (e)(1)(ii) of this 
section must be provided to the consumer as soon as reasonably 
practicable after the credit score has been obtained, but in any event 
at or before consummation in the

[[Page 63472]]

case of closed-end credit or before the first transaction is made under 
an open-end credit plan.
    (4) Multiple credit scores--(i) In General. When a motor vehicle 
dealer obtains two or more credit scores from consumer reporting 
agencies and uses one of those credit scores in setting the material 
terms of credit granted, extended, or otherwise provided to a consumer, 
for example, by using the low, middle, high, or most recent score, the 
notice described in paragraph (e)(1)(ii) of this section must include 
that credit score and the other information required by that paragraph. 
When a motor vehicle dealer obtains two or more credit scores from 
consumer reporting agencies and uses multiple credit scores in setting 
the material terms of credit granted, extended, or otherwise provided 
to a consumer, for example, by computing the average of all the credit 
scores obtained, the notice described in paragraph (e)(1)(ii) of this 
section must include one of those credit scores and the other 
information required by that paragraph. The notice may, at the motor 
vehicle dealer's option, include more than one credit score, along with 
the additional information specified in paragraph (e)(1)(ii) of this 
section for each credit score disclosed.
    (ii) Examples. The manner in which multiple credit scores are to be 
disclosed under this section are substantially identical to the manner 
set forth in the examples contained in paragraph (d)(4)(ii) of this 
section.
    (5) Model form. A model form of the notice described in paragraph 
(e)(1)(ii) of this section is contained in 16 CFR part 698, appendix A. 
Appropriate use of Model Form A-4 is deemed to comply with the 
requirements of Sec.  640.5(e). Use of the model form is optional.
    (f) Credit score not available--(1) In general. A motor vehicle 
dealer is not required to provide a risk-based pricing notice to a 
consumer under Sec.  640.3(a) or (c) if the motor vehicle dealer:
    (i) Regularly obtains credit scores from a consumer reporting 
agency and provides credit score disclosures to consumers in accordance 
with paragraphs (d) or (e) of this section, but a credit score is not 
available from the consumer reporting agency from which the motor 
vehicle dealer regularly obtains credit scores for a consumer to whom 
the motor vehicle dealer grants, extends, or provides credit;
    (ii) Does not obtain a credit score from another consumer reporting 
agency in connection with granting, extending, or providing credit to 
the consumer; and
    (iii) Provides to the consumer a notice that contains the 
following--
    (A) A statement that a consumer report (or credit report) includes 
information about the consumer's credit history and the type of 
information included in that history;
    (B) A statement that a credit score is a number that takes into 
account information in a consumer report and that a credit score can 
change over time in response to changes in the consumer's credit 
history;
    (C) A statement that credit scores are important because consumers 
with higher credit scores generally obtain more favorable credit terms;
    (D) A statement that not having a credit score can affect whether 
the consumer can obtain credit and what the cost of that credit will 
be;
    (E) A statement that a credit score about the consumer was not 
available from a consumer reporting agency, which must be identified by 
name, generally due to insufficient information regarding the 
consumer's credit history;
    (F) A statement that the consumer is encouraged to verify the 
accuracy of the information contained in the consumer report and has 
the right to dispute any inaccurate information in the consumer report;
    (G) A statement that federal law gives the consumer the right to 
obtain copies of his or her consumer reports directly from the consumer 
reporting agencies, including a free consumer report from each of the 
nationwide consumer reporting agencies once during any 12-month period;
    (H) The contact information for the centralized source from which 
consumers may obtain their free annual consumer reports; and
    (I) A statement directing consumers to the websites of the Board 
and Federal Trade Commission to obtain more information about consumer 
reports.
    (2) Example. A motor vehicle dealer that uses consumer reports to 
set the material terms of credit granted, extended, or provided to 
consumers regularly requests credit scores from a particular consumer 
reporting agency and provides those credit scores and additional 
information to consumers to satisfy the requirements of paragraph (e) 
of this section. That consumer reporting agency provides to the motor 
vehicle dealer a consumer report on a particular consumer that contains 
one trade line, but does not provide the motor vehicle dealer with a 
credit score on that consumer. If the motor vehicle dealer does not 
obtain a credit score from another consumer reporting agency and, based 
in whole or in part on information in a consumer report, grants, 
extends, or provides credit to the consumer, the motor vehicle dealer 
may provide the notice described in paragraph (f)(1)(iii) of this 
section. If, however, the motor vehicle dealer obtains a credit score 
from another consumer reporting agency, the motor vehicle dealer may 
not rely upon the exception in paragraph (f) of this section, but may 
satisfy the requirements of paragraph (e) of this section.
    (3) Form of the notice. The notice described in paragraph 
(f)(1)(iii) of this section must be:
    (i) Clear and conspicuous;
    (ii) Segregated from other information provided to the consumer; 
and
    (iii) Provided to the consumer in writing and in a form that the 
consumer may keep.
    (4) Timing. The notice described in paragraph (f)(1)(iii) of this 
section must be provided to the consumer as soon as reasonably 
practicable after the motor vehicle dealer has requested the credit 
score, but in any event not later than consummation of a transaction in 
the case of closed-end credit or when the first transaction is made 
under an open-end credit plan.
    (5) Model form. A model form of the notice described in paragraph 
(f)(1)(iii) of this section is contained in 16 CFR part 698, appendix 
A. Appropriate use of Model Form A-5 is deemed to comply with the 
requirements of Sec.  640.5(f). Use of the model form is optional.


Sec.  640.6  Rules of construction.

    For purposes of this part, the following rules of construction 
apply:
    (a) One notice per credit extension. A consumer is entitled to no 
more than one risk-based pricing notice under Sec.  640.3(a) or (c), or 
one notice under Sec.  640.5(d), (e), or (f), for each grant, 
extension, or other provision of credit. Notwithstanding the foregoing, 
even if a consumer has previously received a risk-based pricing notice 
in connection with a grant, extension, or other provision of credit, 
another risk-based pricing notice is required if the conditions set 
forth in Sec.  640.3(d) have been met.
    (b) Multi-party transactions--(1) Initial creditor. The motor 
vehicle dealer to whom a credit obligation is initially payable must 
provide the risk-based pricing notice described in Sec.  640.3(a) or 
(c), or satisfy the requirements for and provide the notice required 
under one of the exceptions in Sec.  640.5(d), (e), or (f), even if 
that motor vehicle dealer immediately assigns the credit agreement to a 
third party and is not the source of funding for the credit.

[[Page 63473]]

    (2) Purchasers or assignees. A purchaser or assignee of a credit 
contract with a consumer is not subject to the requirements of this 
part and is not required to provide the risk-based pricing notice 
described in Sec.  640.3(a) or (c), or satisfy the requirements for and 
provide the notice required under one of the exceptions in Sec.  
640.5(d), (e), or (f).
    (3) Examples. (i) A consumer obtains credit to finance the purchase 
of an automobile. If the motor vehicle dealer is the person to whom the 
loan obligation is initially payable, such as where the motor vehicle 
dealer is the original creditor under a retail installment sales 
contract, the motor vehicle dealer must provide the risk-based pricing 
notice to the consumer (or satisfy the requirements for and provide the 
notice required under one of the exceptions noted in paragraph (b) of 
this section), even if the motor vehicle dealer immediately assigns the 
loan to a bank or finance company. The bank or finance company, which 
is an assignee, has no duty to provide a risk-based pricing notice to 
the consumer.
    (ii) A consumer obtains credit to finance the purchase of an 
automobile. If a bank or finance company is the person to whom the loan 
obligation is initially payable, the bank or finance company must 
provide the risk-based pricing notice to the consumer (or satisfy the 
requirements for and provide the notice required under one of the 
exceptions noted in paragraph (b) of this section) based on the terms 
offered by that bank or finance company only. The motor vehicle dealer 
has no duty to provide a risk-based pricing notice to the consumer. 
However, the bank or finance company may comply with this rule if the 
motor vehicle dealer has agreed to provide notices to consumers before 
consummation pursuant to an arrangement with the bank or finance 
company, as permitted under Sec.  640.4(c).
    (c) Multiple consumers--(1) Risk-based pricing notices. In a 
transaction involving two or more consumers who are granted, extended, 
or otherwise provided credit, a motor vehicle dealer must provide a 
notice to each consumer to satisfy the requirements of Sec.  640.3(a) 
or (c). Whether the consumers have the same address or not, the motor 
vehicle dealer must provide a separate notice to each consumer if a 
notice includes a credit score(s). Each separate notice that includes a 
credit score(s) must contain only the credit score(s) of the consumer 
to whom the notice is provided, and not the credit score(s) of the 
other consumer. If the consumers have the same address, and the notice 
does not include a credit score(s), a motor vehicle dealer may satisfy 
the requirements by providing a single notice addressed to both 
consumers.
    (2) Credit score disclosure notices. In a transaction involving two 
or more consumers who are granted, extended, or otherwise provided 
credit, a motor vehicle dealer must provide a separate notice to each 
consumer to satisfy the exceptions in Sec.  640.5(d), (e), or (f). 
Whether the consumers have the same address or not, the motor vehicle 
dealer must provide a separate notice to each consumer. Each separate 
notice must contain only the credit score(s) of the consumer to whom 
the notice is provided, and not the credit score(s) of the other 
consumer.
    (3) Examples. (i) Two consumers jointly apply for credit with a 
creditor. The creditor obtains credit scores on both consumers. Based 
in part on the credit scores, the creditor grants credit to the 
consumers on material terms that are materially less favorable than the 
most favorable terms available to other consumers from the creditor. 
The creditor provides risk-based pricing notices to satisfy its 
obligations under this subpart. The creditor must provide a separate 
risk-based pricing notice to each consumer whether the consumers have 
the same address or not. Each risk-based pricing notice must contain 
only the credit score(s) of the consumer to whom the notice is 
provided.
    (ii) Two consumers jointly apply for credit with a creditor. The 
two consumers reside at the same address. The creditor obtains credit 
scores on each of the two consumer applicants. The creditor grants 
credit to the consumers. The creditor provides credit score disclosure 
notices to satisfy its obligations under this part. Even though the two 
consumers reside at the same address, the creditor must provide a 
separate credit score disclosure notice to each of the consumers. Each 
notice must contain only the credit score of the consumer to whom the 
notice is provided.

    By direction of the Commission, Commissioner Slaughter and 
Commissioner Wilson not participating.
April J. Tabor,
Acting Secretary.
[FR Doc. 2020-19529 Filed 10-7-20; 8:45 am]
BILLING CODE 6750-01-P