Consultation · CFTC · 6 Mar 2012 · 2012-5157
The Commodity Futures Trading Commission and the Securities and Exchange Commission jointly proposed rules to implement Dodd-Frank Act amendments requiring financial institutions and creditors under their jurisdiction to develop written identity theft prevention programs. These programs must detect, prevent, and mitigate identity theft risks associated with covered accounts, supported by guidelines to assist in formulation and maintenance. Additionally, the proposal establishes special requirements for credit and debit card issuers to assess the validity of notifications of changes of address under specific circumstances.
COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 162 RIN 3038–AD14 SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 248 [Release No. IC–29969; File No. S7–02–12] RIN 3235–AL26 Identity Theft Red Flags Rules AGENCY: Commodity Futures Trading Commission and Securities and Exchange Commission. ACTION: Joint proposed rules and guidelines. SUMMARY: The Commodity Futures Trading Commission (‘‘CFTC’’) and the Securities and Exchange Commission (‘‘SEC,’’ together with the CFTC, the ‘‘Commissions’’) are jointly issuing proposed rules and guidelines to implement new statutory provisions enacted by Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act. These provisions amend
section 615(e) of the Fair Credit
Reporting Act and direct the Commissions to prescribe rules requiring entities that are subject to the Commissions’ jurisdiction to address identity theft in two ways. First, the proposed rules and guidelines would require financial institutions and creditors to develop and implement a written identity theft prevention program that is designed to detect, prevent, and mitigate identity theft in connection with certain existing accounts or the opening of new accounts. The Commissions also are proposing guidelines to assist entities in the formulation and maintenance of a program that would satisfy the requirements of the proposed rules. Second, the proposed rules would establish special requirements for any credit and debit card issuers that are subject to the Commissions’ jurisdiction, to assess the validity of notifications of changes of address under certain circumstances. DATES: Comments must be received on or before May 7, 2012. ADDRESSES: Comments may be submitted by any of the following methods:
CFTC:
1See, e.g., U.S. Government Accountability Office, Information Security: Federal Guidance Needed to Address Control Issues with Implementing Cloud Computing (May 2010) (available at http://www.gao.gov/new.items/ d10513.pdf) (discussing information security implications of cloud computing); Department of Commerce, Internet Policy Task Force, Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework, at Section I (2010) (available at http://www.ntia.doc.gov/ reports/2010/ iptf_privacy_greenpaper_12162010.pdf) (reviewing recent technological changes that necessitate a new approach to commercial data protection). See also Fred H. Cate, Privacy in the Information Age, at 13– 16 (1997) (discussing the privacy and data security issues that arose during early increases in the use of digital data). 2See, e.g., Report of President’s Identity Theft Task Force (Sept. 2008) (available at http:// www.ftc.gov/os/2008/10/081021taskforcereport.pdf) (documenting governmental efforts to reduce identity theft); Testimony of Edith Ramirez, Commissioner of Federal Trade Commission, on Data Security, before House Subcommittee on Commerce, Manufacturing, and Trade, June 15, 2011 (available at http://www.ftc.gov/os/testimony/ 110615datasecurityhouse.pdf) (describing efforts of the Federal Trade Commission to promote data security). 3Public Law 91–508, 84 Stat. 1114 (1970), codified at 15 U.S.C. 1681 et seq. 4The FCRA states that its purpose is ‘‘to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information * * *.’’ Id. 5See Public Law 108–159, 117 Stat. 1952 (2003). 6The Federal Trade Commission has defined ‘‘identity theft’’ as ‘‘a fraud committed or attempted using the identifying information of another person without authority.’’ See 16 CFR 603.2(a). 7Section 114 of the FACT Act. 8See sections 615(e)(1)(A)–(B) of the FCRA, 15 U.S.C. 1681m(e)(1)(A)—(B). Section 615(e)(1)(A) of the FCRA provides that the Agencies shall jointly ‘‘establish and maintain guidelines for use by each financial institution and each creditor regarding identity theft with respect to account holders at, or customers of, such entities, and update such guidelines as often as necessary.’’ Section 615(e)(1)(B) provides that the Agencies shall jointly ‘‘prescribe regulations requiring each financial institution and each creditor to establish reasonable policies and procedures for implementing the guidelines established pursuant to [section 615(e)(1)(A)], to identify possible risks to account holders or customers or to the safety and soundness of the institution or customers.’’ 9Section 615(e)(1)(C) of the FCRA provides that the Agencies shall jointly ‘‘prescribe regulations applicable to card issuers to
ensure that, if a card issuer receives notification of a change of address for an existing account, and within a short period of time (during at least the first 30 days after such notification is received) receives a request for an additional or replacement card for the same account, the card issuer may not issue the additional or replacement card, unless the card issuer’’ follows certain procedures (including notifying the cardholder at the former address) to assess the validity of the change of address. 15 U.S.C. 1681m(e)(1)(C). 10See Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003, 72 FR 63718 (Nov. 9,
2007) (‘‘2007 Adopting Release’’). The Agencies’
final rules also implemented section 315 of the FACT Act, which required the Agencies to adopt joint rules providing guidance regarding reasonable policies and procedures that a user of consumer reports must employ when a consumer reporting agency sends the user a notice of address discrepancy. See 15 U.S.C. 1681c(h). The DoddFrank Act does not authorize the Commissions to propose rules under section 315 of the FACT Act, and therefore entities under the authority of the Commissions, for purposes of the identity theft red flags rules and guidelines, will be subject to other agencies’ rules on address discrepancies. See, e.g., 16 CFR 641.1 (FTC). 11Public Law 111–203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act is available at http:// www.cftc.gov/LawRegulation/OTCDERIVATIVES/ index.htm. 12See section 615(e)(1) of the FCRA, 15 U.S.C. 1681m(e)(1). In addition, section 1088(a)(10) of the Dodd-Frank Act added the Commissions to the list of federal administrative agencies responsible for enforcement of rules pursuant to section 621(b) of the FCRA. See infra note 19. Section 1100H of the Dodd-Frank Act provides that the Commissions’ new enforcement authority (as well as other changes in various agencies’ authority under other provisions) becomes effective as of the ‘‘designated transfer date’’ to be established by the Secretary of Continued
2. Section II of the Proposed Guidelines—
Identifying Relevant Red Flags
3. Section III of the Proposed Guidelines—
Detecting Red Flags
4. Section IV of the Proposed Guidelines—
Preventing and Mitigating Identity Theft
5. Section V of the Proposed Guidelines—
Updating the Identity Theft Prevention Program
6. Section VI of the Proposed Guidelines—
Methods for Administering the Identity Theft Prevention Program
7. Section VII of the Proposed Guidelines—
Other Applicable Legal Requirements
8. Proposed Supplement A to the
Guidelines
C. Proposed Card Issuer Rules
the Treasury, as described in section 1062 of that Act. On September 20, 2010, the Secretary of the Treasury designated July 21, 2011 as the transfer date. See Designated Transfer Date, 75 FR 57252 (Sept. 20, 2010). 13The CFTC is proposing to add the proposed rules and guidelines in this release as a new subpart C to part 162 of the CFTC’s regulations, 17 CFR 162. See Business Affiliate Marketing and Disposal of Consumer Information Rules, 76 FR 43879 (July 22, 2011). As a result, the purpose, scope, and definitions in part 162 would apply to the proposed identity theft red flags rules and guidelines, as well as to the proposed card issuer rules. The new subpart C would be titled ‘‘Identity Theft Red Flags.’’ The SEC is proposing to add the proposed rules and guidelines in this release as a new subpart C to part 248 of the SEC’s regulations. 17 CFR part
248. The new subpart C is titled ‘‘Regulation S–ID:
Identity Theft Red Flags.’’ 14For ease of reference, unless the context indicates otherwise, our general use of the term ‘‘rules and guidelines’’ in this preamble will refer to both the identity theft red flags rules and guidelines and the card issuer rules. 15See 15 U.S.C. 1681m(e)(1). 16The CFTC notes that the Dodd-Frank Act creates two new entities that must comply with these proposed rules and guidelines: Swap dealers and major swap participants. The CFTC anticipates that to the extent that these new entities currently maintain or offer covered accounts (as discussed below), they also may be in compliance with the Agencies’ final rules. 17 15 U.S.C. 1681m(e)(1)(A) and (B). Key terms such as financial institution and creditor are defined in the proposed rules and discussed later in this Section. 18Proposed § 162.30(a) (CFTC); § 248.201(a) (SEC). 19Section 1088(a)(10)(A) of the Dodd-Frank Act amended section 621(b) of the FCRA to add the Commissions to the list of federal agencies responsible for enforcement of the FCRA. As amended, section 621(b) of the FCRA specifically provides that enforcement of the requirements imposed under the FCRA ‘‘with respect to consumer reporting agencies, persons who use consumer reports from such agencies, persons who furnish information to such agencies, and users of [certain information] shall be enforced under * * *. the Commodity Exchange Act, with respect to a person subject to the jurisdiction of the [CFTC]; [and under] the Federal securities laws, and any other laws that are subject to the jurisdiction of the [SEC], with respect to a person that is subject to the jurisdiction of the [SEC] * * *’’ 15 U.S.C. 1681s(b)(1)(F)–(G). See also 15 U.S.C. 1681a(f) (defining ‘‘consumer reporting agency’’). 20See, e.g., 12 CFR 717.90 (stating that the National Credit Union Administration red flags rule ‘‘applies to a financial institution or creditor that is a federal credit union’’). The Commissions do not have general regulatory jurisdiction over banks, savings and loan associations, or credit unions that hold a transaction account, although the Commissions may have supervisory authority over specific activities of those persons. For example, the CFTC may have jurisdiction over those persons to the extent that they engage in the trading of, or the provision of advice related to, futures or swaps. Similarly, the SEC may have jurisdiction over these persons to the extent that they engage in the trading of, or the provision of advice related to, securities or security-based swaps. 21Proposed § 162.30(a). 22The CFTC has determined that the proposed identity theft red flags rules and guidelines would apply to these entities because of the increased likelihood that these entities open or maintain covered accounts, or pose a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft. This approach is consistent with the scope of
part 162. See 76 FR at 43884.
23Proposed § 248.201(a).
Thus, the Dodd-Frank Act provides for the transfer of rulemaking responsibility and enforcement authority to the CFTC and SEC with respect to the entities under their respective jurisdiction. Accordingly, the Commissions are now jointly proposing for public notice and comment identity theft rules and guidelines and card issuer rules.13 The proposed rules and guidelines 14 are substantially similar to those adopted by the Agencies in 2007.15 As discussed further below, the Commissions recognize that most of the entities over which they have jurisdiction are likely to be already in compliance with the final rules and guidelines that the Agencies adopted in 2007, to the extent that these entities’ activities fall within the scope of the Agencies’ final rules and guidelines. The proposed rules and guidelines, if adopted, would not contain new requirements not already in the Agencies’ final rules, nor would they expand the scope of those rules to include new entities that were not already previously covered by the Agencies’ rules.16 The proposed rules and guidelines do contain examples and minor language changes designed to help guide entities under the Commissions’ jurisdiction in complying with the rules. The Commissions anticipate that the proposed rules, if adopted, may help some entities discern whether and how the identity theft rules and guidelines apply to their circumstances.
II. Explanation of the Proposed Rules
and Guidelines
A. Proposed Identity Theft Red Flags Rules Sections 615(e)(1)(A) and (B) of the FCRA, as amended by the Dodd-Frank Act, require that the Commissions jointly establish and maintain guidelines for ‘‘financial institutions’’ and ‘‘creditors’’ regarding identity theft, and prescribe rules requiring such institutions and creditors to establish reasonable policies and procedures for the implementation of those guidelines.17 The Commissions have sought to propose identity theft red flags rules and guidelines that are substantially similar to the Agencies’ final identity theft red flags rules and guidelines, and that would provide flexibility and guidance to the entities subject to the Commissions’ jurisdiction. To that end, the proposed rules discussed below would specify: (1) Which financial institutions and creditors would be required to develop and implement a written identity theft prevention program (‘‘Program’’); (2) the objectives of the Program; (3) the elements that the Program would be required to contain; and (4) the steps financial institutions and creditors would need to take to administer the Program.
24The SEC’s proposed rules would define the scope of the proposed identity theft red flags rules and guidelines, proposed § 248.201(a), differently than Regulation S–AM, the affiliate marketing rule the SEC adopted under FCRA, defines its scope. See 17 CFR 248.101(b) (providing that Regulation S–AM applies to any brokers or dealers (other than noticeregistered brokers or dealers), any investment companies, and any investment advisers or transfer agents registered with the Commission). Section 214(b) of the FACT Act, pursuant to which the SEC adopted Regulation S–AM, did not specify the types of entities that would be subject to the SEC’s rules, and did not state that the affiliate marketing rules should apply to all persons over which the SEC has jurisdiction. By contrast, the Dodd-Frank Act specifies that the SEC’s identity theft red flags rules and guidelines should apply to a ‘‘person that is subject to the jurisdiction’’ of the SEC. See DoddFrank Act section 1088(a)(8), (10). The scope of the SEC’s proposed rules also would differ from that of Regulation S–P, 17 CFR part 248, subpart A, the privacy rule the SEC adopted in 2000 pursuant to the Gramm-Leach-Bliley Act. Public Law 106–102 (1999). Regulation S–P was adopted under Title V of that Act, which, unlike the FCRA, limited the SEC’s regulatory authority to (i) brokers and dealers, (ii) investment companies, and (iii) investment advisers registered under the Investment Advisers Act of 1940. See 15 U.S.C. 6805(a)(3)-(5). 25Although the Commission preliminarily believes that municipal advisors and municipal securities dealers are unlikely to qualify as ‘‘financial institutions’’ because they are unlikely to maintain transaction accounts for consumers, we welcome comment on this point specifically, as well as on the general issue of whether the list of entities in the proposed scope section should include any other entities. 26The Dodd-Frank Act defines a ‘‘person regulated by the [SEC],’’ for other purposes of that Act, as certain entities that are registered or required to be registered with the SEC, and certain employees, agents and contractors of those entities. See section 1002(21) of the Dodd-Frank Act. 27See Exemptions for Advisers to Venture Capital Funds, Private Fund Advisers With Less Than $150 Million in Assets Under Management, and Foreign Private Advisers, Investment Advisers Act Release No. 3222 (June 22, 2011) [76 FR 39646 (July 6, 2011)] (adopting rules related to investment advisers exempt from registration with the SEC, including ‘‘exempt reporting advisers’’). 28 15 U.S.C. 1681a(t). See proposed § 162.30(b)(7) (CFTC); proposed § 248.201(b)(7) (SEC). The Agencies also defined ‘‘financial institution,’’ in their identity theft red flags rules and guidelines, by reference to the FCRA. See, e.g., 16 CFR 681.1(b)(7) (FTC) (‘‘Financial institution has the same meaning as in 15 U.S.C. 1681a(t).’’). 29 15 U.S.C. 1681a(t). 30 12 U.S.C. 461(b)(1)(C). Section 19(b) further states
that a transaction account ‘‘includes demand deposits, negotiable order of withdrawal accounts, savings deposits subject to automatic transfers, and share draft accounts.’’ 31See proposed § 162.30(b)(7). 32See proposed § 248.201(a). 33Red Flag Program Clarification Act of 2010, Public Law 111–319 (2010) (inserting new section 4 at the end of section 615(e) of the FCRA), codified at 15 U.S.C. 1681m(e)(4). companies and investment advisers.24 The proposed scope section also would include other entities that are registered or are required to register under the Exchange Act. The section would not specifically identify those entities, such as nationally recognized statistical ratings organizations, self-regulatory organizations, and municipal advisors and municipal securities dealers, because, as discussed below, they are unlikely to qualify as ‘‘financial institutions’’ or ‘‘creditors’’ under the FCRA.25 The proposed scope section also would not include entities that are not themselves registered with the Commission,26 even if they register securities under the Securities Act of 1933 or the Exchange Act, or report information under the Investment Advisers Act of 1940.27
34See proposed § 162.30(b)(5) (CFTC); proposed § 248.201(b)(5) (SEC). The Commissions understand that the Agencies are likely to amend their red flags rules and guidelines to reflect the new definition of ‘‘creditor’’ in the FCRA enacted by the Red Flag Program Clarification Act. 35Section 702(e) of the ECOA defines ‘‘creditor’’ to mean ‘‘any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.’’ 15 U.S.C. 1691a(e). 36The Commissions are proposing to define ‘‘credit’’ by reference to its definition in the FCRA. See proposed § 162.30(b)(4) (CFTC); proposed § 248.201(b)(4) (SEC). That definition refers to the definition of credit in the ECOA, which means ‘‘the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment therefor.’’ The Agencies defined ‘‘credit’’ in the same manner in their identity theft red flags rules. See, e.g., 16 CFR 681.1(b)(4) (FTC) (defining ‘‘credit’’ as having the same meaning as in 15 U.S.C. 1681a(r)(5), which defines ‘‘credit’’ as having the same meaning as in section 702 of the ECOA). 37 15 U.S.C. 1681m(e)(4)(A)(iii). The FCRA defines a ‘‘creditor’’ also to include a creditor (as defined in the ECOA) that ‘‘regularly and in the ordinary course of business (i) obtains or uses consumer reports, directly or indirectly, in connection with a credit transaction; (ii) furnishes information to consumer reporting agencies * * * in connection with a credit transaction * * *.’’ 15 U.S.C. 1681m(e)(4)(A)(i)–(ii). 38Section 615(e)(4)(B) of the FCRA, 15 U.S.C. 1681m(e)(4)(B). The definition of ‘‘creditor’’ also authorizes the Agencies and the Commissions to include other entities in the definition of ‘‘creditor’’ if those entities are determined to offer or maintain accounts that are subject to a reasonably foreseeable risk of identity theft. 15 U.S.C. 1681m(e)(4)(C). The Commissions are not at this time proposing to include other types of entities in the definition of ‘‘creditor’’ that are not included in the statutory definition. 39See 156 Cong. Rec. S8288–9 (daily ed. Nov. 30,
2010) (statements of Senators Thune and Dodd).
40See proposed § 162.30(b)(5); proposed § 248.201(b)(5). 41See proposed § 162.30(b)(5). 42See proposed § 248.201(b)(5). 43 Investment advisers that bill for their services on a quarterly or other deferred basis might have qualified as ‘‘creditors’’ if the term were defined as under section 702 of the Equal Credit Opportunity Act, but they would not qualify as creditors under the definition the Commissions are proposing because they are not ‘‘advanc[ing] funds.’’ 44See 15 U.S.C. 1681m(e)(4)(C). 45Proposed § 162.30(b)(6) (CFTC) and proposed § 248.201(b)(6) (SEC) would define a ‘‘customer’’ to mean a person who has a covered account with a financial institution or creditor. The Commissions propose this definition for two reasons. First, this definition is the same as the definition of ‘‘customer’’ in the Agencies’ final rules and guidelines. Second, because the definition uses the term ‘‘person,’’ it would cover various types of business entities (e.g., small businesses) that could be victims of identity theft. 15 U.S.C. 1681a(b). Although the definition of ‘‘customer’’ is broad, a financial institution or creditor would be required to determine which type of accounts its Program will cover, because the proposed identity theft red flags rules and guidelines are risk-based. 46Proposed § 162.30(b)(3) (CFTC); proposed § 248.201(b)(3) (SEC). 47See proposed § 162.30(b)(3)(i). 48See proposed § 248.201(b)(3)(i). 49Proposed § 162.30(b)(1) (CFTC) and proposed § 248.201(b)(1) (SEC). 50Proposed § 162.30(b)(1). refer to the definition in the FCRA as amended by the Clarification Act.34 The FCRA now defines a ‘‘creditor,’’ for purposes of the red flags rules and guidelines, as a creditor as defined in the Equal Credit Opportunity Act 35 (‘‘ECOA’’) (i.e., a person that regularly extends, renews or continues credit,36 or makes those arrangements) that ‘‘regularly and in the course of business … advances funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person.’’ 37 The FCRA excludes from this definition a creditor that ‘‘advances funds on behalf of a person for expenses incidental to a service provided by the creditor to that person * * *.’’ 38 The Clarification Act does not define the extent to which the advancement of funds for expenses would be considered ‘‘incidental’’ to services rendered by the creditor. The legislative history does indicate that the Clarification Act was intended to ensure that lawyers, doctors, and other small businesses that may advance funds to pay for services such as expert witnesses, or that may bill in arrears for services provided, should not be considered creditors under the red flags rules and guidelines.39 As discussed above, the Commissions propose to define ‘‘creditor’’ by reference to its definition in section 615(e)(4) of the FCRA as added by the Clarification Act.40 The CFTC’s proposed definition also would include
certain entities (such as FCMs and CTAs) that regularly extend, renew or continue credit or make those credit arrangements.41 The SEC’s proposed definition also would include ‘‘lenders such as brokers or dealers offering margin accounts, securities lending services, and short selling services.’’ 42 These entities are likely to qualify as ‘‘creditors’’ under the proposed definition because the funds that are advanced in these accounts do not appear to be for ‘‘expenses incidental to a service provided.’’ The proposed definition of ‘‘creditor’’ would not include, however, CTAs or investment advisers because they bill in arrears, i.e., on a deferred basis, if they do not ‘‘advance’’ funds to investors and clients.43
51Proposed § 248.201(b)(1).
52See, e.g., Uniform Commercial Code § 9– 102(a)(29) (‘‘ ‘Deposit account’ means a demand, time, savings, passbook, or similar account maintained with a bank.’’). 53See, e.g., proposed § 162.30(b)(10) (CFTC); proposed § 248.201(b)(10) (SEC) (definition of ‘‘Red Flag’’). 54See proposed § 248.201(b)(12)(vi) (SEC). The Agencies defined ‘‘identity theft’’ in their identity theft red flags rules and guidelines by referring to a definition previously adopted by the FTC. See, e.g., 12 CFR 334.90(b)(8) (FDIC). The FTC defined ‘‘identity theft’’ as ‘‘a fraud committed or attempted using the identifying information of another person without authority.’’ See 16 CFR 603.2(a) The FTC also has defined ‘‘identifying information,’’ a term used in its definition of ‘‘identity theft.’’ See 16 CFR 603.2(b). The Commissions are proposing to define the terms ‘‘identifying information’’ and ‘‘identity theft’’ by including the same definition of the terms as they appear in 16 CFR 603.2. See proposed § 162.30(b)(8) and (9) (CFTC); proposed § 248.201(b)(8) and (9) (SEC). 55Proposed § 162.30(c) (CFTC) and proposed § 248.201(c) (SEC). As discussed above, the proposed rules would define a ‘‘covered account’’ as (i) an account that a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, that involves or is designed to permit multiple payments or transactions, such as a brokerage account with a broker-dealer or an account maintained by a mutual fund (or its agent) that permits wire transfers or other payments to third parties; and (ii) any other account that the financial institution or creditor offers or maintains for which there is a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft, including financial, operational, compliance, reputation, or litigation risks. Proposed § 162.30(b)(3) (CFTC); proposed § 248.201(b)(3) (SEC). 56Proposed § 162.30(c) (CFTC) and proposed § 248.201(c) (SEC). 57See, e.g., Frequently Asked Questions: Identity Theft Red Flags and Address Discrepancies at I.1, available at http://www.ftc.gov/os/2009/06/ 090611redflagsfaq.pdf. 58For example, an FCM that would otherwise be subject to the proposed identity theft red flags rules and guidelines and that handles accounts only for large, institutional investors might make a riskbased determination that because it is subject to a low risk of identity theft, it does not need to develop and implement a Program. Similarly, a money market fund that would otherwise be subject to the proposed red flags rules but that permits investments only by other institutions and separately verifies and authenticates transaction requests might make such a risk-based determination that it need not develop a Program. 59Even a Program limited in scale, however, would need to comply with all of the provisions of the proposed rules and guidelines. See, e.g., proposed § 162.30(d)–(f) (CFTC) and
proposed § 248.201(d)–(f) (SEC) (Program requirements). 60See proposed § 162.30(d)(1) (CFTC) and proposed § 248.201(d)(1) (SEC). include ‘‘a brokerage account, a ‘mutual fund’ account (i.e., an account with an open-end investment company, which may be maintained by a transfer agent or other service provider), and an investment advisory account.’’ 51 Both the CFTC’s and SEC’s proposed definitions would differ from the definitions in the Agencies’ final rules and guidelines by not including a ‘‘deposit account.’’ Deposit accounts typically are offered by banks in connection with their banking activities, and not by the entities regulated by the Commissions.52 The proposed identity theft red flags rules and guidelines would define several other terms as the Agencies defined them in their final rules and guidelines, where appropriate, to avoid needless conflicts among regulations.53 In addition, terms that are not defined in Regulation S–ID would have the same meaning as in the FCRA.54
61See proposed § 162.30(d)(2) (CFTC) and proposed § 248.201(d)(2) (SEC). 62See 2007 Adopting Release, supra note 10, at 63726–63730. 63Proposed § 162.30(b)(10) (CFTC) and proposed § 248.201(b)(10) (SEC) define ‘‘red flags’’ to mean a pattern, practice, or specific activity that indicates the possible existence of identity theft. 64See proposed § 162.30(d)(2)(i) (CFTC) and proposed § 248.201(d)(2)(i) (SEC). The board of directors, appropriate committee thereof, or designated employee may determine that a Program designed by a parent, subsidiary, or affiliated entity is also appropriate for use by the financial institution or creditor. However, the board (or designated employee) must conduct an independent review to ensure that the Program is suitable and complies with the requirements of the red flags rules and guidelines. See 2007 Adopting Release, supra note 10. 65The factors and examples are discussed below in Section II.B.2. 66See proposed § 162.30(d)(2)(ii) (CFTC) and proposed § 248.201(d)(2)(ii) (SEC). 67These examples are discussed below in Section II.B.3. 68See proposed § 162.30(d)(2)(iii) (CFTC) and proposed § 248.201(d)(2)(iii) (SEC). 69The aggravating factors and examples are discussed below in Section II.B.4. 70See proposed § 162.30(d)(2)(iv) (CFTC) and proposed § 248.201(d)(2)(iv) (SEC). 71These factors are discussed below in Section II.B.5. 72See rule 38a–1 under the Investment Company Act, 17 CFR 270.38a–1; rule 206(4)–7 under the Investment Advisers Act, 17 CFR 275.206(4)–7. 73Regulation S–P, 17 CFR 248.30 (applicable to broker-dealers, investment companies, and investment advisers). 74See proposed § 162.30(e) (CFTC) and proposed § 248.201(e) (SEC). 75See proposed § 162.30(e)(1) (CFTC) and proposed § 248.201(e)(1) (SEC). Proposed § 162.30(b)(2) (CFTC) and proposed § 248.201(b)(2) (SEC) define the term ‘‘board of directors’’ to include: (i) in the case of a branch or agency of a non-U.S-based financial institution or creditor, the managing official in charge of that branch or agency; and (ii) in the case of a financial institution or creditor that does not have a board of directors, a designated senior management employee. 76See proposed § 162.30(e)(2) (CFTC) and proposed § 248.201(e)(2) (SEC). Section VI of the proposed guidelines elaborates on the proposed provision. in their Programs.61 These elements are identical to the elements required under the Agencies’ final identity theft red flag rules.62 First, the proposed rule would require financial institutions and creditors to develop Programs that include reasonable policies and procedures to identify relevant red flags 63 for the covered accounts that the financial institution or creditor offers or maintains, and incorporate those red flags into its Program.64 Rather than singling out specific red flags as mandatory or requiring specific policies and procedures to identify possible red flags, this first element would provide financial institutions and creditors with flexibility
in determining which red flags are relevant to their businesses and the covered accounts they manage over time. The list of factors that a financial institution or creditor should consider (as well as examples) are included in
section II of the proposed guidelines,
which are appended to the proposed rules.65 Given the changing nature of identity theft, the Commissions believe that this element would allow financial institutions or creditors to respond and adapt to new forms of identity theft and the attendant risks as they arise. Second, the proposed rule would require financial institutions and creditors to have reasonable policies and procedures to detect red flags that have been incorporated into the Program of the financial institution or creditor.66 This element would not provide a specific method of detection. Instead, section III of the proposed guidelines provides examples of various means to detect red flags.67 Third, the proposed rule would require financial institutions and creditors to have reasonable policies and procedures to respond appropriately to any red flags that are detected.68 This element would incorporate the requirement that a financial institution or creditor assess whether the red flags detected evidence a risk of identity theft and, if so, determine how to respond appropriately based on the degree of risk. Section IV of the proposed guidelines sets out a list of aggravating factors and examples that a financial institution or creditor should consider in determining the appropriate response.69 Finally, the proposed rule would require financial institutions and creditors to have reasonable policies and procedures to ensure that the Program (including the red flags determined to be relevant) is updated periodically, to reflect changes in risks to customers and to the safety and soundness of the financial institution or creditor from identity theft.70 As discussed above, financial institutions and creditors would be required to determine which red flags are relevant to their businesses and the covered accounts they manage. The Commissions are proposing a periodic update, rather than immediate or continuous updates, to be parallel with the final identity theft red flags rules of the Agencies and to avoid unnecessary regulatory burdens. Section V of the proposed guidelines provides a set of factors that should cause a financial institution or creditor to update its Program.71
77See, e.g., rule 38a–1(a)(4) under the Investment Company Act (description of chief compliance officer), 17 CFR 270.38a–1(a)(4); rule 206(4)–7(c) under the Investment Advisers Act, 17 CFR 275.206(4)–7 (same). 78See proposed § 162.30(e)(3) (CFTC) and proposed § 248.201(e)(3) (SEC). 79See proposed § 162.30(e)(4) (CFTC) and proposed § 248.201(e)(4) (SEC). Proposed § 162.30(b)(11) (CFTC) and proposed § 248.201(b)(11) (SEC) would define the term ‘‘service provider’’ to mean a person that provides a service directly to the financial institution or creditor. 80For example, a financial institution or creditor that uses a service provider to open accounts on its behalf, could reserve for itself the responsibility to verify the identity of a person opening a new account, may direct the service provider to do so, or may use another service provider to verify identity. Ultimately, however, the financial institution or creditor would remain responsible for ensuring that the activity is being conducted in compliance with a Program that meets the requirements of the proposed identity theft red flags rules and guidelines. 81These legal compliance obligations would include the maintenance of records in connection with any service provider arrangements. 82Section VI(c) of the proposed guidelines is discussed below in Section II.B.6. 83 15 U.S.C. 1681m(e)(1)(A). 84See proposed § 162.30(f) (CFTC) and proposed § 248.201(f) (SEC). 85See H.R. Rep. No. 108–263 at 43, Sept. 4, 2003 (accompanying H.R. 2622); S. Rep. No. 108–166 at 13, Oct. 17, 2003 (accompanying S. 1753). allowing the board of directors to delegate these functions. The Commissions appreciate that boards of directors have many responsibilities and that it generally is not feasible for a board to involve itself in these functions on a daily basis. A designated management official who is responsible for the oversight of a broker-dealer’s, investment company’s or investment adviser’s Program may also be the entity’s chief compliance officer.77 Third, the proposed rules would provide that financial institutions and creditors must train staff, as necessary, to effectively implement their Programs.78 The Commissions believe that proper training would enable relevant staff to address the risk of identity theft. For example, staff would be trained to detect red flags with regard to new and existing accounts, such as discrepancies in identification presented by a person opening an account. Staff also would need to be trained to mitigate identity theft, for example, by recognizing when an account should not be opened. Finally, the proposed rules would provide that financial institutions and creditors must exercise appropriate and effective oversight of service provider arrangements.79 The Commissions believe that it is important that the proposed rules address service provider arrangements so that financial institutions and creditors would remain legally responsible for compliance with the proposed rules,
irrespective of whether such institutions and creditors outsource their identity theft red flags detection, prevention, and mitigation operations to a third-party service provider.80 The proposed rules do not prescribe a specific manner in which appropriate and effective oversight of service provider arrangements must occur. Instead, the proposed requirement would provide flexibility to financial institutions and creditors in maintaining their service provider arrangements, while making clear that such institutions and creditors would still be required to fulfill their legal compliance obligations.81 Section VI(c) of the proposed guidelines specifies what a financial institution or creditor could do so that the activity of the service provider is conducted in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft.82
86See proposed § 162.30(d) (CFTC) and § 248.201(d) (SEC). 87These examples are discussed below in Section II.B.8. 88See proposed § 162.30(d)(2)(ii) (CFTC) and proposed § 248.201(d)(2)(ii) (SEC). 89See 2007 Adopting Release, supra note 10. 90See, e.g., 31 CFR 1023.220 (broker-dealers),
1024.220 (mutual funds), and 1026.220 (futures
commission merchants and introducing brokers). The CIP regulations implement section 326 of the USA PATRIOT Act, codified at 31 U.S.C. 5318(l). 91See, e.g., 31 CFR 103.130 (anti-money laundering programs for mutual funds). 92See ‘‘Authentication in an Internet Banking Environment,’’ Oct. 12, 2005, available at: http:// www.ffiec.gov/press/pr101205.htm. 93The Federal Information Processing Standards are issued by the National Institute of Standards and Technology (‘‘NIST’’) after approval by the Secretary of Commerce pursuant to section 5131 of the Information Technology Management Reform Act of 1996, Public Law 104–106, 110 Stat. 702, Feb. 10, 1996, and the Federal Information Security Management Act of 2002, 44 U.S.C. 3541, et seq. NIST manages and publishes the most current Federal Information Processing Standards at:
http://csrc.nist.gov/publications/PubsFIPS.html. 94 31 U.S.C. 5318(l). 95Public Law 107–56 (2001). new policies, procedures, and arrangements by leveraging existing policies, procedures, and arrangements and avoiding unnecessary duplication.
96See proposed § 162.30(d)(2)(iii) (CFTC) and proposed § 248.201(d)(2)(iii) (SEC). 97A financial institution or creditor, in order to respond appropriately, would have to assess whether the red flags indicate risk of identity theft, and must have a reasonable basis for concluding that a red flag does not demonstrate a risk of identity theft. 98Other examples of appropriate responses provided in the proposed guidelines are: Reopening a covered account with a new account number; not opening a new covered account; closing an existing covered account; not attempting to collect on a covered account or not selling a covered account to a debt collector; notifying law enforcement; and determining that no response is warranted under the particular circumstances. The final proposed example—no response—might be appropriate, for example, when a financial institution or creditor has a reasonable basis for concluding that the red flags do not evidence a risk of identity theft. 99See proposed § 162.30(d)(2)(iv) (CFTC) and proposed § 248.201(d)(2)(iv) (SEC). 100See proposed § 162.30(e) (CFTC) and proposed § 248.201(e) (SEC) (administration of Programs). 101See supra note 93 (brief explanation of the Federal Information Processing Standards). products are exempted or treated specially in the CIP rules because they pose a lower risk of money laundering or terrorist financing. Such special treatment may not be appropriate to accomplish the broader objective of detecting, preventing, and mitigating identity theft. Accordingly, the Commissions would expect that, if the proposed rules are adopted, all financial institutions and creditors would evaluate the adequacy of existing policies and procedures, and develop and implement risk-based policies and procedures that detect red flags in an effective and comprehensive manner.
102 31 U.S.C. 5318(g).
103Section 603(q)(2) of the FCRA defines the terms ‘‘fraud alert’’ and ‘‘active duty alert’’ as ‘‘a statement in the file of a consumer that—(A) notifies all prospective users of a consumer report relating to the consumer that the consumer may be a victim of fraud, including identity theft, or is an active duty military consumer, as applicable; and (B) is presented in a manner that facilitates a clear and conspicuous view of the statement described in subparagraph (A) by any person requesting such consumer report.’’ 15 U.S.C. 1681a(q)(2). 104See supra Section II.B.2. 105The Federal Bureau of Investigation (‘‘FBI’’) and other organizations recently issued alerts that warned of thefts of customer money through emails from compromised customer email accounts. See FBI and Internet Crime Complaint Center, Fraud Alert Involving Email Intrusions to Facilitate Wire Transfers Overseas, available at http:// www.ic3.gov/media/2012/ EmailFraudWireTransferAlert.pdf; FINRA, Regulatory Notice 12–05, Customer Account Protection, Verification of Emailed Instructions to Transmit or Withdraw Assets from Customer Accounts, available at http://www.finra.org/web/ groups/industry/@ip/@reg/@notice/documents/ notices/p125462.pdf (January, 2012); FINRA Investor Alert, Email Hack Attack? Be Sure to Notify Brokerage Firms and Other Financial Institutions, available at http://www.finra.org/ Investors/ProtectYourself/InvestorAlerts/ FraudsAndScams/P125460. a financial institution or creditor engages a service provider to perform an activity in connection with one or more covered accounts, the financial institution or creditor should take steps to ensure that the activity of the service provider is conducted in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft. The Commissions believe that these guidelines would make clear that a service provider that provides services to multiple financial institutions and creditors may do so in accordance with its own program to prevent identity theft, as long as the service provider’s program meets the requirements of the proposed identity theft red flags rules.
Section VI(c) of the proposed
guidelines would also include, as an example of how a financial institution or creditor may comply with this provision, that a financial institution or creditor could require the service provider by contract to have policies and procedures to detect relevant red flags that may arise in the performance of the service provider’s activities, and either report the red flags to the financial institution or creditor, or to take appropriate steps to prevent or mitigate identity theft. In those circumstances, the Commissions would expect that the contractual arrangements would include the provision of sufficient documentation by the service provider to the financial institution or creditor to enable it to assess compliance with the identity theft red flags rules.
106 15 U.S.C. 1681m(e)(1)(C).
107See § 162.32 (CFTC) and § 248.202 (SEC). 108See supra Section II.A.1. 109See 7 U.S.C. 1(a)(31) (An IB is defined as any person that ‘‘is engaged in soliciting or in accepting orders for the purchase or sale of any commodity for future delivery, security futures product, [* * *] swap,’’ any foreign exchange transaction, any retail commodity transaction, any authorized commodity option, or any authorized leverage transaction, ‘‘and does not accept money securities, or property (or extend credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result or may result therefrom.’’); see also 17 CFR 1.57(c) (prohibiting IBs from, among other things, extending credit in lieu of accepting money, securities or property to margin, guarantee or secure any trades or contracts of customers) and 17 CFR 1.56(b) (prohibiting IBs from representing that they will guarantee any person against loss with respect to any commodity interest in any account carried by an FCM for or on behalf of any person). 110See 17 CFR 1.56(b) (prohibiting FCMs from representing that they will guarantee any person against loss with respect to any commodity interest in any account carried by an FCM for or on behalf of any person). 111See NFA Rule 2–45, available at http:// www.nfa.futures.org/nfamanual/ NFAManual.aspx?RuleID=RULE%202– 45&Section=4, which provides that ‘‘[n]o Member CPO may permit a commodity pool to use any means to make a direct or indirect loan or advance of pool assets to the CPO or any other affiliated person or entity.’’ 112 149 Cong. Rec. E2513 (daily ed. Dec. 8, 2003) (statement of Rep. Oxley). 113A ‘‘consumer’’ means an individual person, as defined in section 603(c) of the FCRA and § 162.2(f) of the CFTC’s regulations. See 15 U.S.C. 1681a(c) and 76 FR at 43885. As mentioned above, the rules proposed by the CFTC in this release would be a
part of part 162 of the CFTC’s regulations, and
therefore, all definitions in part 162 would apply to these rules. See 76 FR at 43884–6. The SEC is proposing to define all terms that are not defined in subpart C (including the term ‘‘consumer’’) to have the same meaning as defined in the FCRA. See proposed § 248.202(b)(3). 114See proposed § 162.32(b) (CFTC) and proposed § 248.202(b) (SEC). 115 15 U.S.C. 1681. 116 15 U.S.C. 1601. 117 15 U.S.C. 1681a(r)(3). 118See 2007 Adopting Release, supra note 10, at 63733. 119See proposed § 162.32(c) (CFTC) and proposed § 248.202(c) (SEC). replacement card,’’ unless the card issuer applies certain address validation procedures discussed below.106 Congress singled out this scenario involving card issuers as being a possible indicator of identity theft. Accordingly, the Commissions are proposing the card issuer rules in conjunction with the identity theft red flags rules. The Commissions are proposing rules that would set out the duties of card issuers regarding changes of address, which would be similar to the final card issuer rules adopted by the Agencies.107 The proposed rules would provide that the card issuer rules apply only to a person that issues a debit or credit card (‘‘card issuer’’) and that is subject to the jurisdiction of either Commission.108 The CFTC is not aware of any entities subject to its jurisdiction that issue debit or credit cards. The CFTC notes that several of the CFTC regulated-entities that are identified as falling within the scope of the proposed card issuer rules (e.g., FCMs, IBs, CPOs, CTAs, etc.) do not typically engage in the type of activities that are the subject of such rules and guidelines. As a matter of practice, it is highly unlikely that these CFTC regulated-entities would issue debit or credit cards. In fact, there are statutory provisions, regulations, or other laws that expressly prohibit some of these entities from engaging in many of these activities. For example, the Commodity Exchange Act (‘‘CEA’’) and the CFTC’s regulations expressly prohibit an IB from extending credit in connection with their primary business activities.109 With respect to FCMs, while the CEA permits an FCM to extend credit to customers in lieu of accepting money, securities, or property for the purposes of collecting margin on a commodity interest, the CFTC’s regulations prohibit an FCM from doing so.110 Lastly, the National Futures Association’s (‘‘NFA’’) rules prohibit its members registered as CPOs from making loans to limited partners using interests in the partnerships as collateral.111
120See 15 U.S.C. 1681m(e)(1)(C)(i).
121See 15 U.S.C. 1681m(e)(1)(C)(ii). 122See proposed § 162.32(c) (CFTC) and proposed § 248.202(c) (SEC). 123See proposed § 162.32(d) (CFTC) and proposed § 248.202(d) (SEC). 124See proposed § 162.32(e) (CFTC) and proposed § 248.202(e) (SEC). As noted above, ‘‘clear and conspicuous’’ would mean reasonably understandable and designed to call attention to the nature and significance of the information presented in the notice. See supra Section II.C.1. See also § 162.2(b) (CFTC) and proposed § 248.202(b)(2) (SEC). 125 7 U.S.C. 19(a) 126As stated above, section 1088(a)(10) of the Dodd-Frank Act amended section 621(b) of the FCRA to add the Commissions to the list of federal agencies responsible for administrative enforcement of the FCRA. See Public Law 111–203 (2010). and procedures to assess the validity of a change of address if it (1) receives notification of a change of address for a consumer’s debit or credit card account and (2) within a short period of time afterwards (during at least the first 30 days after it receives such notification), receives a request for an additional or replacement card for the same account. Under these circumstances, the proposed rules would prohibit the card issuer from issuing an additional or replacement card until, in accordance with its reasonable policies and procedures, it uses one of two methods to assess the validity of the change of address. Under the first method, the card issuer must notify the cardholder of the request either at the cardholder’s former address,120 or by any other means of communication that the card issuer and the cardholder have previously agreed to use.121 In addition, the card issuer must provide the cardholder with a reasonable means of promptly reporting incorrect address changes. Under the second method, the card issuer would be required to otherwise assess the validity of the change of address in accordance with the policies and procedures the card issuer has established pursuant to the proposed rules.122 The proposed rules would provide card issuers with an alternative time period in which to assess the validation of a cardholder’s address.123 Specifically, this section provides that the card issuer would be able to satisfy the requirements of proposed § 162.32(c) (CFTC) and proposed § 248.202(c) (SEC) if it validates an address pursuant to the methods in proposed § 162.32(c)(1) or (c)(2) (CFTC) and proposed § 248.202(c)(1) or (c)(2) (SEC) when it receives an address change notification, before it receives a request for an additional or replacement card. The proposed rules would not require a card issuer that issues an additional or replacement card to validate an address whenever it receives a request for such a card; section 615(e)(1)(C) of the FCRA (and proposed § 162.32(c) (CFTC) and proposed § 248.202(c) (SEC)) would require the validation of an address only when the card issuer also has received a notification of a change in address. The Commissions believe, however, that a
card issuer that does not validate an address when it receives an address change notification may find it prudent to validate the address before issuing an additional or replacement card, even when it receives a request for such a card more than 30 days after the notification of address change. Ultimately, the Commissions expect card issuers to exercise diligence commensurate with (i.e., augmented by) their own experiences with identity theft.
127CFTC staff estimates that the one-time burden of compliance would include 2 hours to conduct initial assessments of covered accounts, 25 hours to develop and obtain board approval of a Program, and 4 hours to train staff. CFTC staff estimates that, of the 31 hours incurred, 12 hours would be spent by internal counsel at an hourly rate of $354, 17 hours would be spent by administrative assistants at an hourly rate of $66, and 2 hours would be spent by the board of directors as a whole, at an hourly rate of $4000, for a total cost of $13,370 per entity for entities that need to come into compliance with proposed subpart C to Part 162. This estimate is based on the following calculations: $354 × 12 hours = $4,248; $66 × 17 = $1,122; $4,000 × 2 = $8,000; $4,248 + $1,122 + $8,000 = $13,370. As discussed in the PRA analysis, CFTC staff estimates that there are 702 CFTC-regulated entities that newly form each year and that would fall within the definitions of financial institution or creditor. Of these 702 entities, 54 entities would maintain covered accounts. See infra note 153 and text following note 153. CFTC staff estimates that 2 hours of internal counsel’s time would be spent conducting an initial assessment to determine whether they have covered accounts and whether they are subject to the proposed rule (or 702 entities). The cost associated with this determination is $497,016 based on the following calculation: $354 × 2 = $708; $708 × 702 = $497,016. CFTC staff estimates that 54 entities would bear the remaining specified costs for a total cost of $683,748 (54 × $12,662 = $683,748). See SIFMA ‘‘Office Salaries in the Securities Industry 2011. Staff also estimates that in response to DoddFrank, there will be approximately 125 newly registered SDs and MSPs. Staff believes that each of these SDs and MSPs will be a financial institution or creditor with covered accounts. The additional cost of these SDs and MSPs is $1,596,250 (125 × $12,770 = $1,596,250). 128CFTC staff estimates that the ongoing burden of compliance would include 2 hours to conduct periodic assessments of covered accounts, 2 hours to periodically review and update the Program, and 4 hours to prepare and present an annual report to the board, for a total of 8 hours. CFTC staff estimates that, of the 8 hours incurred, 7 hours would be spent by internal counsel at an hourly rate of $354 and 1 hour would be spent by the board of directors as a whole, at an hourly rate of $4,000, for a total hourly cost of $6,500. This estimate is based on the following calculations rounded to two significant digits: $354 × 7 hours = $2,478; $4,000 × 1 hour = $4,000; $2,478 + $4,000 = $6,478 ≈ $6,500. As discussed in the PRA analysis, CFTC staff estimates that 3,124 existing CFTC-regulated entities would be financial institutions or creditors, of which 268 maintain covered accounts. CFTC staff estimates that 2 hours of internal counsel’s time would be spent conducting periodic assessments of covered
accounts and that all financial institutions or creditors subject to the proposed rule (or 3,124 entities) would bear this cost for a total cost of $2,200,000 based on the following calculations rounded to two significant digits: $354 × 2 = $708; $708 × 3,124 = $2,211,792 ≈ $2,200,000. CFTC staff estimates that 268 entities would bear the remaining specified ongoing costs for a total cost of $1,500,000 (268 × $5,770 = $1,546,360 ≈ $1,500,000). 129According to the Javelin 2011 Identity Fraud Survey Report, consumer costs (the average out-of-pocket dollar amount victims pay) increased in 2010. See Javelin 2011 Identity Fraud Survey Report (2011). The report attributed this increase to new account fraud, which showed longer periods of misuse and detection and therefore more dollar Continued the nature and scope of its activities. There are various steps that a financial institution or creditor must take in order to comply with the requirements under the proposed identity theft red flags rules, including training staff, providing annual reports to board of directors, and when applicable, monitoring the use of third-party service providers. As discussed above, the Dodd-Frank Act shifted enforcement authority over CFTC-regulated entities that are subject to section 615(e) of the FCRA from the FTC to the CFTC. Section 615(e) of the FCRA, as amended by the Dodd-Frank Act, requires that the CFTC, jointly with the Agencies and the SEC, adopt identity theft red flags rules and guidelines. To carry out this requirement, the CFTC is proposing § 162.30, which is substantially similar to the identity theft red flags rules and guidelines adopted by the Agencies in 2007. Proposed § 162.30 would shift oversight of identity theft rules and guidelines of CFTC-regulated entities from the FTC to the CFTC. These entities should already be in compliance with the FTC’s existing rules and guidelines, which the FTC began enforcing on December 31, 2010. Because proposed § 162.30 is substantially similar to those existing rules and guidelines, these entities should not bear any new costs in coming into compliance with proposed § 162.30. The new regulation does not contain new requirements, nor does it expand the scope of the rules to include new entities that were not already previously covered by the Agencies’ rules. The new regulation does contain examples and minor language changes designed to help guide entities under the CFTC’s jurisdiction in complying with the rules. In the analysis for the Paperwork Reduction Act of 1995 (‘‘PRA’’) below, the staff identified certain initial and ongoing hour burdens and associated time costs related to compliance with proposed § 162.30. However, these costs are not new costs, but are current costs associated with compliance with the Agencies’ existing rules. CFTC-regulated entities will incur these hours and costs regardless of whether the CFTC adopts proposed § 162.30. These hours and costs would be transferred from the Agencies’
PRA allotment to the CFTC. No new costs should result from the adoption of proposed § 160.30. These existing costs related to proposed § 162.30 would include, for newly formed CFTC-regulated entities, the one-time cost for financial institutions and creditors to conduct initial assessments of covered accounts, create a Program, obtain board approval of the Program, and train staff.127 The existing costs would also include the ongoing cost to periodically review and update the program, report periodically on the Program, and conduct periodic assessments of covered accounts.128 The benefits related to adoption of proposed § 160.30, which already exist in connection with the Agencies’ red flags rules and guidelines, would include a reduction in the risk of identity theft for investors (consumers) and cardholders, and a reduction in the risk of losses due to fraud for financial institutions and creditors. It is not practicable for the CFTC to determine with precision the dollar value associated with the benefits that will inure to the public from this proposed rules and guidelines, as the quantity or value of identity theft deterred or prevented is not knowable. The Commission, however, recognizes that the cost of any given instance of identity theft may be substantial to the individual involved. Joint adoption of identity theft red flags rules in a form that is substantially similar to the Agencies’ identity theft red flags rules and guidelines might also benefit financial institutions and creditors because entities regulated by multiple federal agencies could comply with a single set of standards, which would reduce potential compliance costs. As is true of the Agencies’ rules and guidelines, the CFTC has designed proposed § 162.30 to provide financial institutions and creditors significant flexibility in developing and maintaining a Program that is tailored to the size and complexity of their business and the nature of their operations, as well as in satisfying the address verification procedures. Accordingly, as previously discussed, proposed § 162.30 should not result in any significant new costs or benefits, because it generally reflects a statutory transfer of enforcement authority from the FTC to the CFTC, does not include any significant new requirements, and does not include new entities that were not previously covered by the Agencies’ rules.
Section 15(a) Analysis. As stated
above, the CFTC is required to consider costs and benefits of proposed CFTC action in light of (1) protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. These rules protect market participants and the public by preventing identity theft, an illegal act that may be costly to them in both time and money.129 Because,
losses associated with it than any other type of fraud. Notwithstanding the increase in cost, the report stated that the number of identity theft victims has decreased in recent years. Id. 130See id. 131See supra note 19. however, these proposed rules and guidelines create no new requirements—rather, as explained above, the CFTC is adopting rules that reflect requirements already in place— their cost and benefits have no incremental impact on the five section 15(a) factors. Customers of CFTCregistrants will continue to benefit from these proposed rules and guidelines in the same way they have benefited from the rules as they were administered by the Agencies.
2. Cost Benefit Considerations of Card
Issuer Rules
With respect to specific types of identity theft, section 615(e) of the FCRA identified the scenario involving debit and credit card issuers as being a possible indicator of identity theft. Accordingly, the proposed card issuer rules in this release set out the duties of card issuers regarding changes of address. The proposed card issuer rules will apply only to a person that issues a debit or credit card and that is subject to the CFTC’s jurisdiction. The proposed card issuer rules require a card issuer to comply with certain address validation procedures in the event that such issuer receives a notification of a change of address for an existing account from a cardholder, and within a short period of time (during at least the first 30 days after such notification is received) receives a request for an additional or replacement card for the same account. The card issuer may not issue the additional or replacement card unless it complies with those procedures. The procedures include: (1) Notifying the cardholder of the request in writing or electronically either at the cardholder’s former address, or by any other means of communication that the card issuer and the cardholder have previously agreed to use; or (2) assessing the validity of the change of address in accordance with established policies and procedures. Proposed § 162.32 would shift oversight of card issuer rules of CFTCregulated entities from the FTC to the CFTC. These entities should already be in compliance with the FTC’s existing card issuer rules, which the FTC began enforcing on December 31, 2010. Because proposed § 162.32 is substantially similar to those existing card issuer rules, these entities should not bear any new costs in coming into compliance. The new regulation does not contain new requirements, nor does it expand the scope of the rules to include new entities that were not already previously covered by the Agencies’ card issuer rules. The existing costs related to proposed § 162.32 would include the cost for card issuers to establish policies and procedures that assess the validity of a change of address notification submitted shortly before a request for an additional card and, before issuing an additional or replacement card, either notify the cardholder at the previous address or through another previously agreed-upon form of communication, or alternatively assess the validity of the address change through existing policies and procedures. As discussed in the PRA analysis, CFTC staff does not expect that any CFTC-regulated entities would be subject to the requirements of proposed § 162.32. The benefits related to adoption of proposed § 162.32, which already exist in connection with the Agencies’ card issuer rules, would include a reduction in the risk of identity theft for cardholders, and a reduction in the risk of losses due to fraud for card issuers. However, it is not practicable for the CFTC to determine with precision the dollar value associated with the
benefits that will inure to the public from these proposed card issuer rules. As is true of the Agencies’ card issuer rules, the CFTC has designed proposed § 162.32 to provide card issuers significant flexibility in developing and maintaining a Program that is tailored to the size and complexity of their business and the nature of their operations. Accordingly, as previously discussed, the proposed card issuer rules should not result in any significant new costs or benefits, because they generally reflect a statutory transfer of enforcement authority from the FTC to the CFTC, do not include any significant new requirements, and do not include new entities that were not previously covered by the Agencies’ rules.
Section 15(a) Analysis. As stated
above, the CFTC is required to consider costs and benefits of proposed CFTC action in light of (1) protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. These proposed rules and guidelines protect market participants and the public by preventing identity theft, an illegal act that may be costly to them in both time and money.130 Because, however, these rules create no new requirements— rather, as explained above, the CFTC is adopting rules that reflect requirements already in place—their cost and benefits have no incremental impact on the five
section 15(a) factors. Customers of
CFTC-registrants will continue to benefit from these proposed rules and guidelines in the same way they have benefited from the rules as they were administered by the Agencies.
3. Questions
132See proposed § 248.202(a) (defining scope of proposed rule). 133Unless otherwise stated, all cost estimates for personnel time are derived from SIFMA’s Management & Professional Earnings in the Securities Industry 2010, modified to account for an 1800-hour work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead. 134SEC staff estimates that the incremental onetime burden of compliance would include 2 hours to conduct initial assessments of covered accounts, 25 hours to develop and obtain board approval of a Program, and 4 hours to train staff. SEC staff estimates that, of the 31 hours incurred, 12 hours would be spent by internal counsel at an hourly rate of $354, 17 hours would be spent by administrative assistants at an hourly rate of $66, and 2 hours would be spent by the board of directors as a whole, at an hourly rate of $4000, for a total cost of $13,370 per entity for entities that need to come into compliance with proposed Regulation S–ID. This estimate is based on the following calculations:
$354 × 12 hours = $4248; $66 × 17 = $1,122; $4000 × 2 = $8000; $4248 + $1,122 + $8000 = $13,370. As discussed in the PRA analysis, SEC staff estimates that there are 1327 SEC-regulated entities that newly form each year and would be financial institutions or creditors, of which 465 would maintain covered accounts. See infra note 153 and following text. SEC staff estimates that 2 hours of internal counsel’s time would be spent conducting an initial assessment of covered accounts and that all newly formed financial institutions or creditors subject to the proposed rule (or 1327 entities) would bear this cost for a total cost of $939,516 based on the following calculation: $354 × 2 = $708; $708 × 1327 = $939,516. SEC staff estimates that 465 entities would bear the remaining specified costs for a total cost of $5,887,830 (465 × $12,662 = $5,887,830). 135SEC staff estimates that the incremental ongoing burden of compliance would include 2 hours to conduct periodic assessments of covered accounts, 2 hours to periodically review and update the Program, and 4 hours to prepare and present an annual report to the board, for a total of 8 hours. SEC staff estimates that, of the 8 hours incurred, 7 hours would be spent by internal counsel at an hourly rate of $354 and 1 hour would be spent by the board of directors as a whole, at an hourly rate of $4000, for a total hourly cost of $6478. This estimate is based on the following calculations:
$354 × 7 hours = $2478; $4000 × 1 hour = $4000; $2478 + $4000 = $6478. As discussed in the PRA analysis, SEC staff estimates that 7978 existing SEC-regulated entities would be financial institutions or creditors under the proposal and 7180 of these entities maintain covered accounts. See infra note 156 and following text. SEC staff estimates that 2 hours of internal counsel’s time would be spent conducting periodic assessments of covered accounts and that all financial institutions or creditors subject to the proposed rule (or 7978 entities) would bear this cost for a total cost of $5,648,424 based on the following calculations: $354 × 2 = $708; $708 × 7978 = $5,648,424. SEC staff estimates that 7180 entities would bear the remaining specified ongoing costs for a total cost of $41,428,600 (7180 × $5770 = $41,428,600). notifications sent to credit and debit card issuers as a possible indicator of identity theft, and requires the SEC to prescribe regulations concerning such notifications. Accordingly, the proposed card issuer rules in this release set out the duties of card issuers regarding changes of address. The proposed card issuer rules would apply only to SECregulated entities that issue credit or debit cards.132 The proposed card issuer rules would require a card issuer to comply with certain address validation procedures in the event that such issuer receives a notification of a change of address for an existing account from a cardholder, and within a short period of time (during at least the first 30 days after it receives such notification) receives a request for an additional or replacement card for the same account. The card issuer may not issue the additional or replacement card unless it complies with those procedures. The procedures include: (1) Notifying the cardholder of the request either at the cardholder’s former address, or by any other means of communication that the card issuer and the cardholder have previously agreed to use; or (2) assessing the validity of the change of address in accordance with established policies and procedures. As discussed above, the Dodd-Frank Act shifted enforcement authority over SEC-regulated entities that are subject to
section 615(e) of the FCRA from the FTC
to the SEC. Section 615(e) of the FCRA, as amended by the Dodd-Frank Act, requires that the SEC, jointly with the Agencies and the CFTC, adopt identity theft red flags rules and guidelines. To carry out this requirement, the SEC is proposing Regulation S–ID, which is substantially similar to the identity theft red flags rules and guidelines adopted by the Agencies in 2007. Proposed Regulation S–ID would shift oversight of identity theft rules and guidelines of SEC-regulated entities from the FTC to the SEC. These entities should already be in compliance with the FTC’s existing rules and guidelines, which the FTC began enforcing on December 31, 2010. Because proposed Regulation S–ID is substantially similar to those existing rules and guidelines, these entities should not bear any new costs in coming into compliance with proposed Regulation S–ID. The new regulation does not contain new requirements, nor does it expand the scope of the rules to include new entities that were not already previously covered by the Agencies’ rules. The new regulation does contain examples and minor language changes designed to help guide entities under the SEC’s jurisdiction in complying with the rules. In the analysis for the Paperwork Reduction Act of 1995 (‘‘PRA’’) below, the staff identified certain initial and ongoing hour burdens and associated time costs related to compliance with proposed Regulation S–ID.133 However, these costs are not new costs, but are current costs associated with compliance with the Agencies’ existing rules. SEC-regulated entities will incur these hours and costs regardless of whether the SEC adopts proposed Regulation S–ID. These hours and costs would be transferred from the Agencies’ PRA allotment to the SEC. No new costs should result from the adoption of proposed Regulation S–ID. These existing costs related to § 248.201 of proposed Regulation S–ID would include, for newly formed SECregulated entities, the incremental onetime cost for financial institutions and creditors to conduct initial assessments of covered accounts, create a Program, obtain board approval of the Program, and train staff.134 The existing costs would also include the incremental ongoing cost to periodically review and update the program, report periodically on the Program, and conduct periodic assessments of covered accounts.135 The existing costs related to § 248.202 of proposed Regulation S–ID would include the incremental cost for card issuers to establish policies and procedures that assess the validity of a change of address notification submitted shortly before a request for an additional card and, before issuing an additional or replacement card, either notify the cardholder at the previous address or through another previously agreed-upon form of communication, or alternatively assess the validity of the address change through existing policies and procedures. As discussed in the PRA analysis, SEC staff does not expect that any SEC-regulated entities
would be subject to the requirements of § 248.202 of proposed Regulation S–ID. The benefits related to adoption of Regulation S–ID, which already exist in connection with the Agencies’ red flags rules and guidelines, would include a reduction in the risk of identity theft for investors (consumers) and cardholders, and a reduction in the risk of losses due to fraud for financial institutions and creditors. Joint adoption by the Commissions of identity theft red flags rules in a form that is substantially similar to the Agencies’ identity theft red flags rules and guidelines might also benefit financial institutions and creditors because entities regulated by multiple federal agencies could comply with a single set of standards, which would reduce potential compliance costs. As is true of the Agencies’ rules and guidelines, the SEC has designed proposed Regulation S–ID to provide financial institutions, creditors, and card issuers significant flexibility in developing and maintaining a Program that is tailored to the size and complexity of their business and the
136See infra Section IV (setting forth statutory authority under, among other things, the Exchange Act and Investment Company Act for proposed rules). 137See the NFA’s Internet Web site at: http:// www.nfa.futures.org/NFA-registration/NFAmembership-and-dues.HTML for the most up-todate number of CFTC regulated entities. For the purposes of the PRA calculation, CFTC staff used the number of registered FCMs, CTAs, CPOs IBs and RFEDs on the NFA’s Internet Web site as of October 31, 2011. The NFA’s site states that there are 3,663 CFTC registrants as of September 30,
2011. Of this total, there are 111 FCMs, 1,441 IBs,
1,054 CTAs, 1,035 CPOs, and 14 RFEDs. CFTC staff has observed that approximately 50 percent of all CPOs are dually registered as CTAs. Based on this observation, CFTC has determined that the total number of entities is 3,124 (518 CPOs that are also registered as CTAs). With respect to RFEDs, CFTC staff also has observed that all entities registering as RFEDs also register as FCMs. Of the total 3,124 entities, all of the FCMs are likely to qualify as financial institutions or creditors carrying covered accounts, 10 percent of CTAs and CPOs are likely to qualify as financial institutions or creditors carrying covered accounts and none of the IBs are likely to qualify as a financial institution or creditor carrying covered accounts, for a total of 268 financial institutions or creditors that would bear the initial one-time burden of compliance with the CFTC’s proposed identity theft rules and guidelines and proposed card issuer rules. 138CFTC staff estimates that 125 swap dealers and major swap participants will register with the CFTC following the issuance of final rules under the Dodd-Frank Act further defining the terms ‘‘swap dealers’’ and ‘‘major swap participants’’ and setting forth a registration regime for these entities. The CFTC estimates the number of MSPs to be quite small, at six or fewer. nature of their operations, as well as in satisfying the address verification procedures. Accordingly, as previously discussed, proposed Regulation S–ID should not result in any significant new costs or benefits, because it generally reflects a statutory transfer of enforcement authority from the FTC to the SEC, does not include any significant new requirements, and does not include new entities that were not previously covered by the Agencies’ rules.
139Based on a review of new registrations typically filed with the CFTC each year, CFTC staff estimates that approximately, 7 FCMs, 225 IBs, 400 CTAs, and 140 CPOs are newly formed each year, for a total of 772 entities. CFTC staff also has observed that approximately 50 percent of all CPOs are duly registered as CTAs. Based on this observation, CFTC has determined that the total number of newly formed financial institutions and creditors is 702 (772—70 CPOs that are also registered as CTAs). With respect to RFEDs, CFTC staff has observed that all entities registering as RFEDs also register as FCMs. Each of these 702 financial institutions or creditors would bear the initial one-time burden of compliance with the proposed identity theft rules and guidelines and proposed card issuer rules. Of the total 702 newly formed entities, staff estimates that all of the FCMs are likely to carry covered accounts, 10 percent of CTAs and CPOs are likely to carry covered accounts, and none of the IBs are likely to carry covered accounts, for a total of 54 newly formed financial institutions or creditors carrying covered accounts that would be required to conduct an initial one-time burden of compliance with subpart C or Part 162. 140This estimate is based on the following calculation: 827 entities × 2 hours = 1,654 hours. 141This estimate is based on the following calculation: 179 entities × 31 hours = 5,549 hours. 142This estimate is based on the following calculation: 1,654 hours for all newly registered CFTC registrants + 7,203 hours for the one-time burden of newly registered entities with covered accounts. 143This estimate is based on the following calculation: 3,249 entities × hours = 6,498 hours. 144This estimate is based on the following calculation: 393 entities × 6 hours = 2,358 hours. 145This estimate is based on the following calculation: 6,498 hours + 2,358 hours = 8,856 hours. 162 would apply only to newly formed entities, and the ongoing burden to all CFTC-regulated entities.
i. Initial Burden
The CFTC estimates that the one-time burden of compliance with proposed
part 162 for its regulated entities with
covered accounts would be: (i) 25 hours to develop and obtain board approval of a Program, (ii) 4 hours for staff training, and (iii) 2 hours to conduct an initial assessment of covered accounts, totaling 31 hours. Of the 31 hours, the CFTC estimates that 15 hours would involve internal counsel, 14 hours expended by administrative assistants, and 2 hours by the board of directors in total, for those newly-regulated entities. The CFTC estimates that approximately 702 FCMs, CTAs and CPOs 139 would need to conduct an initial assessment of covered accounts. As noted above, the CFTC estimates that approximately 125 newly registered SDs and MSPs would need to conduct an initial assessment of covered accounts. The total number of newly registered CFTC registrants would be 827 entities. Each of these 827 entities would need to conduct an initial assessment of covered accounts, for a total of 1,654 hours.140 Of these 827 entities, CFTC staff estimates that approximately 179 of these entities may maintain covered accounts. Accordingly, the CFTC estimates the one-time burden for these 179 entities to be 5,549 hours,141 for a total burden among newly registered entities of 7,203 hours.142 The CFTC requests comments on these estimates of numbers of persons affected and the total hours involved.
ii. Ongoing Burden
The CFTC staff estimates that the ongoing compliance burden associated with proposed part 162 would include:
(i) 2 hours to periodically review and update the Program, review and preserve contracts with service providers, and review and preserve any documentation received from such providers (ii) 4 hours to prepare and present an annual report to the board, and (iii) 2 hours to conduct periodic assessments to determine if the entity offers or maintains covered accounts, for a total of 8 hours. The CFTC staff estimates that of the 8 hours expended, 7 hours would be spent by internal counsel and 1 hour would be spent by the board of directors as a whole. The CFTC estimates that approximately 3,249 persons may maintain covered accounts, and that they would be required to periodically review their accounts to determine if they comply with these proposed rules, for a total of 76,498 hours for these entities.143 Of these 3,249 persons, the CFTC estimates that approximately 393 maintain covered accounts, and thus would need to incur the additional burdens related to complying with the rule, for a total of 2,358.144 The total ongoing burden for all CFTC registrants is 11,256.145
2. Information Collection Comments
The CFTC invites the public and other federal agencies to comment on any aspect of the burdens discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the CFTC solicits comments in order to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the CFTC, including whether the information will have practical utility; (ii) evaluate the accuracy of the CFTC’s estimate of the burden of the proposed collection of information; (iii) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology. Comments may be submitted directly to the Office of Information and Regulatory Affairs, by fax at (202) 395– 6566 or by email at OIRAsubmissions@omb.eop.gov. Please provide the CFTC with a copy of submitted comments so that all comments can be summarized and addressed in the final rule preamble. Refer to the Addresses section of this notice of proposed rules and guidelines for comment submission instructions to the CFTC. A copy of the supporting statements for the collections of information discussed above may be obtained by visiting RegInfo.gov. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this release. Consequently, a comment to OMB is most assured of being fully effective if received by OMB (and the CFTC) within 30 days after publication of this notice of proposed rulemaking. SEC:
Provisions of proposed §§ 248.201 and 248.202 would result in new collection of information requirements within the meaning of the PRA. The SEC therefore is submitting this proposal to the Office of Management and Budget (‘‘OMB’’) for review in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. OMB has not yet assigned a control number to the new collection. The title for this collection of information is ‘‘Part 248, Subpart C— Regulation S–ID.’’ An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. If the rules are adopted, responses to the new collection of information provisions would be mandatory, and the information, when provided to the Commission in connection with staff examinations or investigations, would be kept confidential to the extent permitted by law.
146See 2007 Adopting Release, supra note 10; ‘‘FTC Extends Enforcement Deadline for Identity Theft Red Flags Rule’’ at http://www.ftc.gov/opa/ 2010/05/redflags.shtm. 147 31 U.S.C. 5318(l) (requiring verification of the identity of persons opening new accounts). 148 15 U.S.C. 6801. 149 15 U.S.C. 1681w. 150See 2007 Adopting Release, supra note 10, at nn. 55–57 (describing applicable regulations and guidance). 151Based on discussions with industry representatives and a review of applicable law, SEC staff expects that, of the SEC-regulated entities that fall within the scope of proposed Regulation S–ID, most broker-dealers, many investment companies (including almost all open-end investment companies and employees’ securities companies (‘‘ESCs’’)), and some registered investment advisers would likely qualify as financial institutions or creditors. SEC staff expects that most other SECregulated entities described in the scope section of proposed Regulation S–ID, such as transfer agents, NRSROs, SROs, and clearing agencies are unlikely to be financial institutions or creditors as defined in the proposed rule, and therefore we do not include these entities in our estimates. 152Proposed § 248.201(a). 153Based on a review of new registrations typically filed with the SEC each year, SEC staff estimates that approximately 900 investment advisers, 300 broker dealers, 117 open-end investment companies and 10 employees’ securities companies typically apply for registration with the SEC or otherwise are newly formed each year, for a total of 1327 entities that would be financial institutions or creditors. The staff estimate of 900 investment advisers is made in light of the recently adopted amendments to rules under the Investment Advisers Act that carry out requirements of the Dodd-Frank Act to transfer oversight of certain investment advisers from the SEC to state regulators and to require certain investment advisers to private funds to register with the SEC. See Rules Implementing Amendments to the Investment Advisers Act of 1940, Investment Advisers Act Release No. 3221 (June 22, 2011) [76 FR 42950 (July 19, 2011)]. Of these, SEC staff estimates that all of the investment companies and broker-dealers are likely to qualify as financial institutions or creditors, and 10% (or 90) of investment advisers are likely to also qualify, for a total of 517 total newly formed financial institutions or creditors that would bear the initial one-time burden of compliance with proposed Regulation S–ID. 154This estimate is based on the following calculation: 517 entities × 2 hours = 1034 hours. Program that is approved by the board of directors; (2) periodic staff reporting on compliance with the identify theft red flags rules and guidelines, as required to be considered by section VI of the proposed guidelines; and (3) training of staff to implement the Program. Proposed § 248.202 of Regulation S–ID would include the following ‘‘collections of information’’ by any
SEC-regulated entities that are credit or debit card issuers: (1) Establishment of policies and procedures that assess the validity of a change of address notification if a request for an additional card on the account follows soon after the address change, (2) notification of a cardholder, before issuance of an additional or replacement card, at the previous address or through some other previously agreed-upon form of communication, or alternatively, assessment of the validity of the address change request through the entity’s established policies and procedures. SEC staff expects that SEC-regulated entities that would comply with the collections of information required by proposed Regulation S–ID should already be fully in compliance with the identity theft red flags rules and guidelines that the FTC jointly adopted with the Agencies and began enforcing on December 31, 2010. The requirements of those rules and guidelines are substantially similar and comparable to the requirements of proposed Regulation S–ID.146 In addition, SEC staff understands that most SEC-regulated entities that are financial institutions or creditors would likely already have in place many of the protections regarding identity theft and changes of address that the proposed regulations would require because they are usual and customary business practices that they engage in to minimize losses from fraud. Furthermore, SEC staff believes that many of them are likely to have already effectively implemented most of the proposed requirements as a result of having to comply (or an affiliate having to comply) with other, existing regulations and guidance, such as the Customer Identification Program regulations implementing section 326 of the USA PATRIOT Act,147 the Federal Information Processing Standards that implement section 501(b) of the GrammLeach-Bliley Act (GLBA),148 section 216 of the FACT Act,149 and guidance issued by the Agencies or the Federal Financial Institutions Examination Council regarding information security, authentication, identity theft, and response programs.150 As a result, SEC staff estimates of time and cost burdens here represent the incremental one-time burden of complying with proposed Regulation S– ID for newly formed SEC-regulated entities, and the incremental ongoing costs of compliance for all SECregulated entities.151 SEC staff estimates also attribute all burdens to covered entities, which are entities directly subject to the requirements of the proposed rulemaking. A covered entity that outsources activities to an affiliate or a third-party service provider is, in effect, reallocating to that affiliate or service provider the burden that it would otherwise have carried itself. Under these circumstances, the burden is, by contract, shifted from the covered entity to the service provider, but the total amount of burden is not increased. Thus, affiliate and third-party service provider burdens are already included in the burden estimates
provided for covered entities. The time and cost estimates made here are based on conversations with industry representatives and on a review of the estimates made in the regulatory analyses of the identity theft red flags rules and guidelines previously issued by the Agencies.
2. Proposed § 248.201 (Duties Regarding
the Detection, Prevention, and Mitigation of Identity Theft) The collections of information required by proposed § 248.201 would apply to SEC-regulated entities that are financial institutions or creditors.152 As stated above, SEC staff expects that all existing SEC-regulated entities would already have incurred one-time burdens associated with compliance with proposed Regulation S–ID because they should already be in compliance with the substantially identical requirements of the Agencies’ red flags rules and guidelines. Therefore, any initial or onetime burdens associated with compliance with § 248.201 of proposed Regulation S–ID would apply only to newly formed entities. The ongoing burden would apply to all SECregulated entities that are financial institutions or creditors.
i. Initial Burden
SEC staff estimates that the incremental one-time burden of compliance with proposed § 248.201 for SEC-regulated financial institutions and creditors with covered accounts would be: (i) 25 hours to develop and obtain board approval of a Program, (ii) 4 hours to train staff, and (iii) 2 hours to conduct an initial assessment of covered accounts, for a total of 31 hours. SEC staff estimates that, of the 31 hours incurred, 12 hours would be spent by internal counsel, 17 hours would be spent by administrative assistants, and 2 hours would be spent by the board of directors as a whole for entities that need to come into compliance with proposed Regulation S–ID. SEC staff estimates that approximately 517 SEC-regulated financial institutions and creditors are newly formed each year.153 Each of these 517 entities would need to conduct an initial assessment of covered accounts, for a total of 1034 hours.154 Of these, SEC staff estimates that approximately 90% (or 465) maintain covered accounts. Accordingly, SEC staff estimates that the total one-time burden for the 465 entities would be 14,415 hours, and the total one-time burden for all SEC
155These estimates are based on the following calculations: 465 entities × 31 hours = 14,415 hours; 14,415 hours + 1034 hours = 15,449 hours. 156Based on a review of entities that the SEC regulates, SEC staff estimates that, as of the end of December 2010, there are approximately 5063 broker-dealers, 1790 active open-end investment companies and 150 employees’ securities companies. In light of recently adopted amendments to rules under the Investment Advisers Act that carry out requirements of the Dodd-Frank Act to transfer oversight of certain investment advisers from the SEC to state regulators and to require certain investment advisers to private funds to register with the SEC, SEC staff estimates that, when these amendments become effective, there will be approximately 9750 investment advisers registered with the SEC. See supra note
153. Of these, SEC staff estimates that all of the
broker-dealers, open-end investment companies and employees’ securities companies are likely to qualify as financial institutions or creditors, and 10% (or 975) of investment advisers are likely to qualify, for a total of 7978 total financial institutions or creditors that would bear the ongoing burden of compliance with proposed Regulation S– ID. The SEC staff estimates that the other types of entities that are covered by the scope of the SEC’s proposed rule would not be financial institutions or creditors that maintain covered accounts. See proposed § 248.201(a). This estimate is based on the following calculation: (7978 entities × 2 hours = 15,956 hours). 157 If a financial institution or creditor does not maintain covered accounts, there would be no ongoing annual burden for purposes of the PRA. 158These estimates are based on the following calculations: (7180 entities × 6 hours = 43,080 hours; 43,080 hours + 15,956 hours = 59,036 hours). 159Proposed § 248.202(a). 160When the Agencies adopted their red flags rules, they estimated that it would require approximately 4 hours to develop policies and procedures to assess the validity of changes of address, and that there would be no burden associated with notifying cardholders because all entities already have such a process in place. See 2007 Adopting Release, supra note 10, at text following n.57. SEC staff estimates that if any SECregulated entities do issue cards, the burden for complying with proposed § 248.202 would be comparable to the Agencies’ estimates. 161See 5 U.S.C. 601 et seq. 162See 5 U.S.C. 601 et seq. regulated entities would be 15,449 hours.155
163See the CFTC’s previous determinations for FCMs and CPOs at 47 FR 18618, 18619 (Apr. 30, 1982). 164See Confirmation, Portfolio Reconciliation, and Portfolio Compression Requirements for Swap Dealers and Major Swap Participants, 75 FR 81519 (Dec. 28, 2010), in which the CFTC reasoned that swap dealers will be subject to minimum capital and margin requirements and are expected to comprise the largest global financial firms. As a result, swap dealers are not likely to be small entities for the purposes of the RFA. In addition, the CFTC reasoned that major swap participants, by statutory definition, maintain substantial positions in swaps or maintain outstanding swap positions that create substantial counterparty exposure that could have serious adverse effects on the financial stability of the U.S. banking system or financial markets. Based on this analysis, the CFTC concluded that major swap participants are not likely to be small entities for the purposes of the RFA. 165 15 U.S.C. 1681m(e). 166This information is based on staff analysis of information from filings on Form N–SAR and from databases compiled by third-party information providers, including Lipper Inc. 167Rule 0–7(a). 168This information is based on data from the Investment Adviser Registration Depository. 169 17 CFR 240.0–10. 170This estimate is based on information provided in FOCUS Reports filed with the Commission. There are approximately 5063 brokerdealers registered with the Commission. that the requirements on financial institutions and creditors, and card issuers set forth in the proposed identity theft red flags rules and guidelines and the proposed card issuer rules, respectively, will not have a significant economic impact on a substantial number of small entities because many of these entities are already complying with the final rules and guidelines of the Agencies. Moreover, the CFTC believes that the proposed rules and guidelines include a great deal of flexibility to assist its regulated entities in complying with such rules and guidelines. Notwithstanding this determination, the CFTC previously determined that FCMs and CPOs are not small entities for the purposes of the RFA.163 Similarly, in another proposed rulemaking promulgated under the Dodd-Frank Act, the CFTC determined that swap dealers and major swap participants are not, in fact, ‘‘small entities’’ for the purposes of the RFA.164 Accordingly, the Chairman, on behalf of the CFTC, hereby certifies pursuant to 5 U.S.C. 605(b) that the proposed rules and guidelines will not have a significant impact on a substantial number of small entities.
171Public Law 111–203, Section 1088(a)(8), 124 Stat. 1376 (2010). 172 15 U.S.C. 1681m(e). 173 15 U.S.C. 78q and 78mm. 174 15 U.S.C. 80a–30 and 80a–37. 175 15 U.S.C. 80b-4 and 80b-11. request for an additional or replacement card for the same account. Because all SEC-regulated entities, including small entities, should already be in compliance with the substantially similar red flags rules and guidelines that the FTC began enforcing on December 31, 2010, proposed Regulation S–ID should not impose new compliance, recordkeeping, or reporting burdens. If for any reason an SECregulated small entity is not already in compliance with the existing red flags rules and guidelines issued by the Agencies, the burden of compliance with proposed Regulation S–ID should be minimal because entities already engage in various activities to minimize losses due to fraud as part of their usual and customary business practices. In particular, the rule will direct many of these entities to consolidate their existing policies and procedures into a written Program and may require some additional staff training. Accordingly, the impact of the proposed requirements would be merely incremental and not significant. The SEC has estimated the costs of proposed Regulation S–ID for all entities (including small entities) in the PRA and cost benefit analyses included in this release. No new classes of skills would be required to comply with proposed Regulation S–ID. SEC staff does not anticipate that small entities would face unique or special burdens when complying with proposed Regulation S–ID.
5. Duplicative, Overlapping, or
Conflicting Federal Rules SEC staff has not identified any federal rules that duplicate, overlap, or conflict with the proposed rule or rule or form amendments.
6. Significant Alternatives
The Regulatory Flexibility Act directs the SEC to consider significant alternatives that would accomplish our stated objective, while minimizing any significant economic impact on small issuers. In connection with proposed Regulation S–ID, the SEC considered the following alternatives: (i) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (ii) the clarification, consolidation, or simplification of compliance requirements under the proposal for small entities; (iii) the use of performance rather than design standards; and (iv) an exemption from coverage of the proposal, or any part thereof, for small entities. The proposed rules would require financial institutions and creditors to create an identity theft prevention Program and report to the board of directors, a committee of the board, or senior management at least annually on compliance with the regulations. Credit and debit card issuers would be required to respond to a change of address request by notifying the cardholder or using other means to assess the validity of a change of address. The standards in proposed Regulation S–ID are flexible, and take into account a covered entity’s size and sophistication, as well as the costs and benefits of alternative compliance methods. An identity theft prevention Program under proposed Regulation S– ID would be tailored to the risk of identity theft in a financial institution or creditor’s covered accounts, thereby permitting small entities whose accounts pose a low risk of identity theft to avoid much of the costs of compliance. Because small entities maintain covered accounts that pose a risk of identity theft for consumers just as larger entities do, we do not believe that providing an exemption from proposed Regulation S–ID for small entities would comply with the intent of
section 615(e), and could subject
consumers with covered accounts at small entities to a higher risk of identity theft. Pursuant to the mandate of section 615(e) of the FCRA, as amended by
section 1088 of the Dodd-Frank Act, the
SEC and the CFTC are proposing identity theft red flags rules and guidelines jointly, and they would be substantially similar and comparable to the identity theft red flags rules and guidelines previously adopted by the Agencies. Providing a new exemption for small entities, or further consolidating or simplifying the regulations for small entities could result in significant differences between the identity theft red flags rules proposed by the Commissions and the rules adopted by the Agencies. Because all SEC-regulated entities, including small entities, should already be in compliance with the substantially similar red flags rules and guidelines that the FTC began enforcing on December 31, 2010, SEC staff does not expect that small entities would need a delayed effective or compliance date.
business information, Consumer reports, Credit, Creditors, Dealers, Fair and Accurate Credit Transactions Act, Fair Credit Reporting Act, Financial institutions, Gramm-Leach-Bliley Act, Identity theft, Investment advisers, Investment companies, Privacy, Reporting and recordkeeping requirements, Securities, Security measures, Self-regulatory organizations, Transfer agents. Text of Proposed Rules Commodity Futures Trading Commission For the reasons stated above in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 162 as follows:
PART 162—PROTECTION OF
CONSUMER INFORMATION UNDER THE FAIR CREDIT REPORTING ACT
and soundness of the financial institution or creditor from identity theft. (e) Administration of the Identity Theft Prevention Program. Each financial institution or creditor that is required to implement an Identity Theft Prevention Program must provide for the continued administration of the Identity Theft Prevention Program and must:
(1) Obtain approval of the initial written Identity Theft Prevention Program from either its board of directors or an appropriate committee of the board of directors; (2) Involve the board of directors, an appropriate committee thereof, or a designated employee at the level of senior management in the oversight, development, implementation and administration of the Identity Theft Prevention Program; (3) Train staff, as necessary, to effectively implement the Identity Theft Prevention Program; and (4) Exercise appropriate and effective oversight of service provider arrangements. (f) Guidelines. Each financial institution or creditor that is required to implement an Identity Theft Prevention Program must consider the guidelines in
appendix B of this part and include in
its Identity Theft Prevention Program those guidelines that are appropriate. § 162.31 [Reserved] § 162.32 Duties of card issuers regarding changes of address. (a) Scope. This section applies to a person described in § 162.30(a) of this
part that issues a debit or credit card
(card issuer).
(b) Definition of cardholder. For purposes of this section, a cardholder means a consumer who has been issued a credit or debit card. (c) Address validation requirements. A card issuer must establish and implement reasonable policies and procedures to assess the validity of a change of address if it receives notification of a change of address for a consumer’s debit or credit card account and, within a short period of time afterwards (during at least the first 30 days after it receives such notification), the card issuer receives a request for an additional or replacement card for the same account. Under these circumstances, the card issuer may not issue an additional or replacement card, until, in accordance with its reasonable policies and procedures and for the purpose of assessing the validity of the change of address, the card issuer:
(1)(i) Notifies the cardholder of the request:
(A) At the cardholder’s former address; or (B) By any other means of communication that the card issuer and the cardholder have previously agreed to use; and (ii) Provides to the cardholder a reasonable means of promptly reporting incorrect address changes; or (2) Otherwise assesses the validity of the change of address in accordance with the policies and procedures the card issuer has established pursuant to § 162.30 of this part. (d) Alternative timing of address validation. A card issuer may satisfy the requirements of paragraph (c) of this
section if it validates an address
pursuant to the methods in paragraph (c)(1) or (2) of this section when it receives an address change notification, before it receives a request for an additional or replacement card. (e) Form of notice. Any written or electronic notice that the card issuer provides under this paragraph must be clear and conspicuous and provided separately from its regular correspondence with the cardholder.
3. Add Appendix B to part 162 to read
as follows:
Appendix B to Part 162—Interagency
Guidelines on Identity Theft Detection, Prevention, and Mitigation
Section 162.30 of this part requires each
financial institution or creditor that offers or maintains one or more covered accounts, as defined in § 162.30(b)(3) of this part, to develop and provide for the continued administration of a written Identity Theft Prevention Program to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account. These guidelines are intended to assist financial institutions and creditors in the formulation and maintenance of an Identity Theft Prevention Program that satisfies the requirements of § 162.30 of this
part.
I. The Identity Theft Prevention Program
In designing its Identity Theft Prevention Program, a financial institution or creditor may incorporate, as appropriate, its existing policies, procedures, and other arrangements that control reasonably foreseeable risks to customers or to the safety and soundness of the financial institution or creditor from identity theft.
II. Identifying Relevant Red Flags
(a) Risk factors. A financial institution or creditor should consider the following factors in identifying relevant Red Flags for covered accounts, as appropriate:
(1) The types of covered accounts it offers or maintains; (2) The methods it provides to open its covered accounts; (3) The methods it provides to access its covered accounts; and (4) Its previous experiences with identity theft. (b) Sources of Red Flags. Financial institutions and creditors should incorporate relevant Red Flags from sources such as:
(1) Incidents of identity theft that the financial institution or creditor has experienced; (2) Methods of identity theft that the financial institution or creditor has identified that reflect changes in identity theft risks; and (3) Applicable supervisory guidance. (c) Categories of Red Flags. The Identity Theft Prevention Program should include relevant Red Flags from the following categories, as appropriate. Examples of Red Flags from each of these categories are appended as Supplement A to this Appendix B. (1) Alerts, notifications, or other warnings received from consumer reporting agencies or service providers, such as fraud detection services; (2) The presentation of suspicious documents; (3) The presentation of suspicious personal identifying information, such as a suspicious address change; (4) The unusual use of, or other suspicious activity related to, a covered account; and (5) Notice from customers, victims of identity theft, law enforcement authorities, or other persons regarding possible identity theft in connection with covered accounts held by the financial institution or creditor.
III. Detecting Red Flags
The Identity Theft Prevention Program’s policies and procedures should address the detection of Red Flags in connection with the opening of covered accounts and existing covered accounts, such as by:
(a) Obtaining identifying information about, and verifying the identity of, a person opening a covered account; and (b) Authenticating customers, monitoring transactions, and verifying the validity of change of address requests, in the case of existing covered accounts.
IV. Preventing and Mitigating Identity Theft
The Identity Theft Prevention Program’s policies and procedures should provide for appropriate responses to the Red Flags the financial institution or creditor has detected that are commensurate with the degree of risk posed. In determining an appropriate response, a financial institution or creditor should consider aggravating factors that may heighten the risk of identity theft, such as a data security incident that results in unauthorized access to a customer’s account records held by the financial institution or creditor, or third party, or notice that a customer has provided information related to a covered account held by the financial institution or creditor to someone fraudulently claiming to represent the financial institution or creditor or to a fraudulent Internet Web site. Appropriate responses may include the following:
(a) Monitoring a covered account for evidence of identity theft; (b) Contacting the customer; (c) Changing any passwords, security codes, or other security devices that permit access to a covered account; (d) Reopening a covered account with a new account number;
(e) Not opening a new covered account; (f) Closing an existing covered account; (g) Not attempting to collect on a covered account or not selling a covered account to a debt collector; (h) Notifying law enforcement; or (i) Determining that no response is warranted under the particular circumstances.
V. Updating the Identity Theft Prevention
Program
Financial institutions and creditors should update the Identity Theft Prevention Program (including the Red Flags determined to be relevant) periodically, to reflect changes in risks to customers or to the safety and soundness of the financial institution or creditor from identity theft, based on factors such as:
(a) The experiences of the financial institution or creditor with identity theft; (b) Changes in methods of identity theft; (c) Changes in methods to detect, prevent, and mitigate identity theft; (d) Changes in the types of accounts that the financial institution or creditor offers or maintains; and (e) Changes in the business arrangements of the financial institution or creditor, including mergers, acquisitions, alliances, joint ventures, and service provider arrangements.
VI. Methods for Administering the Identity
Theft Prevention Program (a) Oversight of Identity Theft Prevention Program. Oversight by the board of directors, an appropriate committee of the board, or a designated senior management employee should include:
(1) Assigning specific responsibility for the Identity Theft Prevention Program’s implementation; (2) Reviewing reports prepared by staff regarding compliance by the financial institution or creditor with § 162.30 of this
part; and
(3) Approving material changes to the Identity Theft Prevention Program as necessary to address changing identity theft risks. (b) Reports—(1) In general. Staff of the financial institution or creditor responsible for development, implementation, and administration of its Identity Theft Prevention Program should report to the board of directors, an appropriate committee of the board, or a designated senior management employee, at least annually, on compliance by the financial institution or creditor with § 162.30 of this part. (2) Contents of report. The report should address material matters related to the Identity Theft Prevention Program and evaluate issues such as: The effectiveness of the policies and procedures of the financial institution or creditor in addressing the risk of identity theft in connection with the opening of covered accounts and with respect to existing covered accounts; service provider arrangements; significant incidents involving identity theft and management’s response; and recommendations for material changes to the Identity Theft Prevention Program. (c) Oversight of service provider arrangements. Whenever a financial institution or creditor engages a service provider to perform an activity in connection with one or more covered accounts the financial institution or creditor should take steps to ensure that the activity of the service provider is conducted in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft. For example, a financial institution or creditor could require the service provider by contract to have policies and procedures to detect relevant Red Flags that may arise in the performance of the service provider’s activities, and either report the Red Flags to the financial institution or creditor, or to take appropriate steps to prevent or mitigate identity theft.
VII. Other Applicable Legal Requirements
Financial institutions and creditors should be mindful of other related legal requirements that may be applicable, such as:
(a) For financial institutions and creditors that are subject to 31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance with applicable law and regulation; (b) Implementing any requirements under 15 U.S.C. 1681c–1(h) regarding the circumstances under which credit may be extended when the financial institution or creditor detects a fraud or active duty alert; (c) Implementing any requirements for furnishers of information to consumer reporting agencies under 15 U.S.C. 1681s–2, for example, to correct or update inaccurate or incomplete information, and to not report information that the furnisher has reasonable cause to believe is inaccurate; and (d) Complying with the prohibitions in 15 U.S.C. 1681m on the sale, transfer, and placement for collection of certain debts resulting from identity theft. Supplement A to Appendix B In addition to incorporating Red Flags from the sources recommended in Section II(b) of the Guidelines in Appendix B of this part, each financial institution or creditor may consider incorporating into its Identity Theft Prevention Program, whether singly or in combination, Red Flags from the following illustrative examples in connection with covered accounts:
Alerts, Notifications or Warnings From a Consumer Reporting Agency
1. A fraud or active duty alert is included
with a consumer report.
2. A consumer reporting agency provides a
notice of credit freeze in response to a request for a consumer report.
3. A consumer reporting agency provides a
notice of address discrepancy, as defined in Sec. 603(f) of the Fair Credit Reporting Act (15 U.S.C. 1681a(f)).
4. A consumer report indicates a pattern of
activity that is inconsistent with the history and usual pattern of activity of an applicant or customer, such as:
a. A recent and significant increase in the volume of inquiries; b. An unusual number of recently established credit relationships;
c. A material change in the use of credit,
especially with respect to recently established credit relationships; or d. An account that was closed for cause or identified for abuse of account privileges by a financial institution or creditor. Suspicious Documents
5. Documents provided for identification
appear to have been altered or forged.
6. The photograph or physical description
on the identification is not consistent with the appearance of the applicant or customer presenting the identification.
7. Other information on the identification
is not consistent with information provided by the person opening a new covered account or customer presenting the identification.
8. Other information on the identification
is not consistent with readily accessible information that is on file with the financial institution or creditor, such as a signature card or a recent check.
9. An application appears to have been
altered or forged, or gives the appearance of having been destroyed and reassembled. Suspicious Personal Identifying Information
10. Personal identifying information
provided is inconsistent when compared against external information sources used by the financial institution or creditor. For example:
a. The address does not match any address in the consumer report; or b. The Social Security Number (SSN) has not been issued, or is listed on the Social Security Administration’s Death Master File.
11. Personal identifying information
provided by the customer is not consistent with other personal identifying information provided by the customer. For example, there is a lack of correlation between the SSN range and date of birth.
12. Personal identifying information
provided is associated with known fraudulent activity as indicated by internal or third-party sources used by the financial institution or creditor. For example:
a. The address on an application is the same as the address provided on a fraudulent application; or b. The phone number on an application is the same as the number provided on a fraudulent application.
13. Personal identifying information
provided is of a type commonly associated with fraudulent activity as indicated by internal or third-party sources used by the financial institution or creditor. For example:
a. The address on an application is fictitious, a mail drop, or a prison; or b. The phone number is invalid, or is associated with a pager or answering service.
14. The SSN provided is the same as that
submitted by other persons opening an account or other customers.
15. The address or telephone number
provided is the same as or similar to the address or telephone number submitted by an unusually large number of other persons opening accounts or by other customers.
16. The person opening the covered
account or the customer fails to provide all required personal identifying information on an application or in response to notification that the application is incomplete.
17. Personal identifying information
provided is not consistent with personal identifying information that is on file with the financial institution or creditor.
18. For financial institutions or creditors
that use challenge questions, the person opening the covered account or the customer cannot provide authenticating information beyond that which generally would be available from a wallet or consumer report. Unusual Use of, or Suspicious Activity Related to, the Covered Account
19. Shortly following the notice of a change
of address for a covered account, the institution or creditor receives a request for a new, additional, or replacement means of accessing the account or for the addition of an authorized user on the account.
20. A new revolving credit account is used
in a manner commonly associated with known patterns of fraud. For example:
a. The majority of available credit is used for cash advances or merchandise that is easily convertible to cash (e.g., electronics equipment or jewelry); or b. The customer fails to make the first payment or makes an initial payment but no subsequent payments.
21. A covered account is used in a manner
that is not consistent with established patterns of activity on the account. There is, for example:
a. Nonpayment when there is no history of late or missed payments; b. A material increase in the use of available credit;
c. A material change in purchasing or
spending patterns; d. A material change in electronic fund transfer patterns in connection with a deposit account; or e. A material change in telephone call patterns in connection with a cellular phone account.
22. A covered account that has been
inactive for a reasonably lengthy period of time is used (taking into consideration the type of account, the expected pattern of usage and other relevant factors).
23. Mail sent to the customer is returned
repeatedly as undeliverable although transactions continue to be conducted in connection with the customer’s covered account.
24. The financial institution or creditor is
notified that the customer is not receiving paper account statements.
25. The financial institution or creditor is
notified of unauthorized charges or transactions in connection with a customer’s covered account. Notice From Customers, Victims of Identity Theft, Law Enforcement Authorities, or Other Persons Regarding Possible Identity Theft in Connection With Covered Accounts Held by the Financial Institution or Creditor
26. The financial institution or creditor is
notified by a customer, a victim of identity theft, a law enforcement authority, or any other person that it has opened a fraudulent account for a person engaged in identity theft. Securities and Exchange Commission For the reasons stated above in the preamble, the Securities and Exchange Commission proposes to amend 17 CFR
part 248 as follows:
PART 248—REGULATIONS S–P, S–
AM, AND S–ID
4. The authority citation for part 248
is revised to read as follows:
Authority: 15 U.S.C. 78q, 78q–1, 78o–4, 78o–5, 78w, 80a–30, 80a-37, 80b–4, 80b–11, 1681m(e), 1681s(b), 1681s–3 and note, 1681w(a)(1), 6801–6809, and 6825; Pub. L. 111–203, sec. 1088(a)(8), (a)(10), and sec. 1088(b).
5. Revise the heading for part 248 to
read as set forth above.
6. Add subpart C to part 248 to read
as follows:
Subpart C—Regulation S–ID: Identity Theft Red Flags Sec.
248.201 Duties regarding the detection,
prevention, and mitigation of identity theft.
248.202 Duties of card issuers regarding
changes of address.
Appendix A to Subpart C of Part 248—
Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation Subpart C—Regulation S–ID: Identity Theft Red Flags § 248.201 Duties regarding the detection, prevention, and mitigation of identity theft. (a) Scope. This section applies to a financial institution or creditor, as defined in the Fair Credit Reporting Act (15 U.S.C. 1681), that is:
(1) A broker, dealer or any other person that is registered or required to be registered under the Securities Exchange Act of 1934; (2) An investment company that is registered or required to be registered under the Investment Company Act of 1940, that has elected to be regulated as a business development company under that Act, or that operates as an employees’ securities company under that Act; or (3) An investment adviser that is registered or required to be registered under the Investment Advisers Act of 1940. (b) Definitions. For purposes of this subpart, and Appendix A of this subpart, the following definitions apply:
(1) Account means a continuing relationship established by a person with a financial institution or creditor to obtain a product or service for personal, family, household or business purposes. Account includes a brokerage account, a mutual fund account (i.e., an account with an open-end investment company), and an investment advisory account. (2) The term board of directors includes:
(i) In the case of a branch or agency of a non U.S. based financial institution or creditor, the managing official of that branch or agency; and (ii) In the case of a financial institution or creditor that does not have a board of directors, a designated employee at the level of senior management. (3) Covered account means:
(i) An account that a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, that involves or is designed to permit multiple payments or transactions, such as a brokerage account with a brokerdealer or an account maintained by a mutual fund (or its agent) that permits wire transfers or other payments to third parties; and (ii) Any other account that the financial institution or creditor offers or maintains for which there is a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft, including financial, operational, compliance, reputation, or litigation risks. (4) Credit has the same meaning as in 15 U.S.C. 1681a(r)(5). (5) Creditor has the same meaning as in 15 U.S.C. 1681m(e)(4), and includes lenders such as brokers or dealers offering margin accounts, securities lending services, and short selling services. (6) Customer means a person that has a covered account with a financial institution or creditor. (7) Financial institution has the same meaning as in 15 U.S.C. 1681a(t). (8) Identifying information means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person, including any— (i) Name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number; (ii) Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (iii) Unique electronic identification number, address, or routing code; or (iv) Telecommunication identifying information or access device (as defined in 18 U.S.C. 1029(e)). (9) Identity theft means a fraud committed or attempted using the identifying information of another person without authority. (10) Red Flag means a pattern, practice, or specific activity that indicates the possible existence of identity theft.
(11) Service provider means a person that provides a service directly to the financial institution or creditor. (12) Other definitions. (i) Broker has the same meaning as in
section 3(a)(4) of the Securities
Exchange Act of 1934 (15 U.S.C.
78c(a)(4)).
(ii) Commission means the Securities and Exchange Commission. (iii) Dealer has the same meaning as in section 3(a)(5) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(5)). (iv) Investment adviser has the same meaning as in section 202(a)(11) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–2(a)(11)). (v) Investment company has the same meaning as in section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a–3), and includes a separate series of the investment company. (vi) Other terms not defined in this subpart have the same meaning as in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.). (c) Periodic Identification of Covered Accounts. Each financial institution or creditor must periodically determine whether it offers or maintains covered accounts. As a part of this determination, a financial institution or creditor must conduct a risk assessment to determine whether it offers or maintains covered accounts described in paragraph (b)(3)(ii) of this section, taking into consideration:
(1) The methods it provides to open its accounts; (2) The methods it provides to access its accounts; and (3) Its previous experiences with identity theft. (d) Establishment of an Identity Theft Prevention Program—(1) Program requirement. Each financial institution or creditor that offers or maintains one or more covered accounts must develop and implement a written Identity Theft Prevention Program (Program) that is designed to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account. The Program must be appropriate to the size and complexity of the financial institution or creditor and the nature and scope of its activities. (2) Elements of the Program. The Program must include reasonable policies and procedures to:
(i) Identify relevant Red Flags for the covered accounts that the financial institution or creditor offers or maintains, and incorporate those Red Flags into its Program; (ii) Detect Red Flags that have been incorporated into the Program of the financial institution or creditor; (iii) Respond appropriately to any Red Flags that are detected pursuant to paragraph (d)(2)(ii) of this section to prevent and mitigate identity theft; and (iv) Ensure the Program (including the Red Flags determined to be relevant) is updated periodically, to reflect changes in risks to customers and to the safety and soundness of the financial institution or creditor from identity theft. (e) Administration of the Program. Each financial institution or creditor that is required to implement a Program must provide for the continued administration of the Program and must:
(1) Obtain approval of the initial written Program from either its board of directors or an appropriate committee of the board of directors; (2) Involve the board of directors, an appropriate committee thereof, or a designated employee at the level of senior management in the oversight, development, implementation and administration of the Program; (3) Train staff, as necessary, to effectively implement the Program; and (4) Exercise appropriate and effective oversight of service provider arrangements. (f) Guidelines. Each financial institution or creditor that is required to implement a Program must consider the guidelines in Appendix A to this subpart and include in its Program those guidelines that are appropriate. § 248.202 Duties of card issuers regarding changes of address. (a) Scope. This section applies to a person described in § 248.201(a) that issues a credit or debit card (card issuer). (b) Definitions. For purposes of this
section:
(1) Cardholder means a consumer who has been issued a credit card or debit card as defined in 15 U.S.C. 1681a(r). (2) Clear and conspicuous means reasonably understandable and designed to call attention to the nature and significance of the information presented. (3) Other terms not defined in this subpart have the same meaning as in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.). (c) Address validation requirements. A card issuer must establish and implement reasonable written policies and procedures to assess the validity of a change of address if it receives notification of a change of address for a consumer’s debit or credit card account and, within a short period of time afterwards (during at least the first 30 days after it receives such notification), the card issuer receives a request for an additional or replacement card for the same account. Under these circumstances, the card issuer may not issue an additional or replacement card, until, in accordance with its reasonable policies and procedures and for the purpose of assessing the validity of the change of address, the card issuer:
(1) (i) Notifies the cardholder of the request:
(A) At the cardholder’s former address; or (B) By any other means of communication that the card issuer and the cardholder have previously agreed to use; and (ii) Provides to the cardholder a reasonable means of promptly reporting incorrect address changes; or (2) Otherwise assesses the validity of the change of address in accordance with the policies and procedures the card issuer has established pursuant to § 248.201 of this part. (d) Alternative timing of address validation. A card issuer may satisfy the requirements of paragraph (c) of this
section if it validates an address
pursuant to the methods in paragraph (c)(1) or (c)(2) of this section when it receives an address change notification, before it receives a request for an additional or replacement card. (e) Form of notice. Any written or electronic notice that the card issuer provides under this paragraph must be clear and conspicuous and be provided separately from its regular correspondence with the cardholder.
Appendix A to Subpart C of Part 248—
Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation
Section 248.201 of this part requires each
financial institution and creditor that offers or maintains one or more covered accounts, as defined in § 248.201(b)(3) of this part, to develop and provide for the continued administration of a written Program to detect, prevent, and mitigate identity theft in connection with the opening of a covered account or any existing covered account. These guidelines are intended to assist financial institutions and creditors in the formulation and maintenance of a Program that satisfies the requirements of § 248.201 of this part.
I. The Program
In designing its Program, a financial institution or creditor may incorporate, as appropriate, its existing policies, procedures, and other arrangements that control reasonably foreseeable risks to customers or to the safety and soundness of the financial institution or creditor from identity theft.
II. Identifying Relevant Red Flags
(a) Risk Factors. A financial institution or creditor should consider the following factors in identifying relevant Red Flags for covered accounts, as appropriate:
(1) The types of covered accounts it offers or maintains; (2) The methods it provides to open its covered accounts; (3) The methods it provides to access its covered accounts; and (4) Its previous experiences with identity theft. (b) Sources of Red Flags. Financial institutions and creditors should incorporate relevant Red Flags from sources such as:
(1) Incidents of identity theft that the financial institution or creditor has experienced; (2) Methods of identity theft that the financial institution or creditor has identified that reflect changes in identity theft risks; and (3) Applicable regulatory guidance. (c) Categories of Red Flags. The Program should include relevant Red Flags from the following categories, as appropriate. Examples of Red Flags from each of these categories are appended as Supplement A to this Appendix A. (1) Alerts, notifications, or other warnings received from consumer reporting agencies or service providers, such as fraud detection services; (2) The presentation of suspicious documents; (3) The presentation of suspicious personal identifying information, such as a suspicious address change; (4) The unusual use of, or other suspicious activity related to, a covered account; and (5) Notice from customers, victims of identity theft, law enforcement authorities, or other persons regarding possible identity theft in connection with covered accounts held by the financial institution or creditor.
III. Detecting Red Flags
The Program’s policies and procedures should address the detection of Red Flags in connection with the opening of covered accounts and existing covered accounts, such as by:
(a) Obtaining identifying information about, and verifying the identity of, a person opening a covered account, for example, using the policies and procedures regarding identification and verification set forth in the Customer Identification Program rules implementing 31 U.S.C. 5318(l) (31 CFR
1023.220 (broker-dealers) and 1024.220
(mutual funds)); and
(b) Authenticating customers, monitoring transactions, and verifying the validity of change of address requests, in the case of existing covered accounts.
IV. Preventing and Mitigating Identity Theft
The Program’s policies and procedures should provide for appropriate responses to the Red Flags the financial institution or creditor has detected that are commensurate with the degree of risk posed. In determining an appropriate response, a financial institution or creditor should consider aggravating factors that may heighten the risk of identity theft, such as a data security incident that results in unauthorized access to a customer’s account records held by the financial institution, creditor, or third party, or notice that a customer has provided information related to a covered account held by the financial institution or creditor to someone fraudulently claiming to represent the financial institution or creditor or to a fraudulent Web site. Appropriate responses may include the following:
(a) Monitoring a covered account for evidence of identity theft; (b) Contacting the customer; (c) Changing any passwords, security codes, or other security devices that permit access to a covered account; (d) Reopening a covered account with a new account number; (e) Not opening a new covered account; (f) Closing an existing covered account; (g) Not attempting to collect on a covered account or not selling a covered account to a debt collector; (h) Notifying law enforcement; or (i) Determining that no response is warranted under the particular circumstances.
V. Updating the Program
Financial institutions and creditors should update the Program (including the Red Flags determined to be relevant) periodically, to reflect changes in risks to customers or to the safety and soundness of the financial institution or creditor from identity theft, based on factors such as:
(a) The experiences of the financial institution or creditor with identity theft; (b) Changes in methods of identity theft; (c) Changes in methods to detect, prevent, and mitigate identity theft; (d) Changes in the types of accounts that the financial institution or creditor offers or maintains; and (e) Changes in the business arrangements of the financial institution or creditor, including mergers, acquisitions, alliances, joint ventures, and service provider arrangements.
VI. Methods for Administering the Program
(a) Oversight of Program. Oversight by the board of directors, an appropriate committee of the board, or a designated employee at the level of senior management should include:
(1) Assigning specific responsibility for the Program’s implementation; (2) Reviewing reports prepared by staff regarding compliance by the financial institution or creditor with § 248.201 of this
part; and
(3) Approving material changes to the Program as necessary to address changing identity theft risks. (b) Reports—(1) In general. Staff of the financial institution or creditor responsible for development, implementation, and administration of its Program should report to the board of directors, an appropriate committee of the board, or a designated employee at the level of senior management, at least annually, on compliance by the financial institution or creditor with § 248.201 of this part. (2) Contents of report. The report should address material matters related to the Program and evaluate issues such as: The effectiveness of the policies and procedures of the financial institution or creditor in addressing the risk of identity theft in connection with the opening of covered accounts and with respect to existing covered accounts; service provider arrangements; significant incidents involving identity theft and management’s response; and recommendations for material changes to the Program. (c) Oversight of service provider arrangements. Whenever a financial institution or creditor engages a service provider to perform an activity in connection with one or more covered accounts the financial institution or creditor should take steps to ensure that the activity of the service provider is conducted in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft. For example, a financial institution or creditor could require the service provider by contract to have policies and procedures to detect relevant Red Flags that may arise in the performance of the service provider’s activities, and either report the Red Flags to the financial institution or creditor, or to take appropriate steps to prevent or mitigate identity theft.
VII. Other Applicable Legal Requirements
Financial institutions and creditors should be mindful of other related legal requirements that may be applicable, such as:
(a) For financial institutions and creditors that are subject to 31 U.S.C. 5318(g), filing a Suspicious Activity Report in accordance with applicable law and regulation; (b) Implementing any requirements under 15 U.S.C. 1681c–1(h) regarding the circumstances under which credit may be extended when the financial institution or creditor detects a fraud or active duty alert; (c) Implementing any requirements for furnishers of information to consumer reporting agencies under 15 U.S.C. 1681s–2, for example, to correct or update inaccurate or incomplete information, and to not report information that the furnisher has reasonable cause to believe is inaccurate; and (d) Complying with the prohibitions in 15 U.S.C. 1681m on the sale, transfer, and placement for collection of certain debts resulting from identity theft. Supplement A to Appendix A In addition to incorporating Red Flags from the sources recommended in section II.b. of the Guidelines in Appendix A to this subpart, each financial institution or creditor may consider incorporating into its Program, whether singly or in combination, Red Flags from the following illustrative examples in connection with covered accounts:
Alerts, Notifications or Warnings From a Consumer Reporting Agency
and usual pattern of activity of an applicant or customer, such as:
a. A recent and significant increase in the volume of inquiries; b. An unusual number of recently established credit relationships;
c. A material change in the use of credit,
especially with respect to recently established credit relationships; or d. An account that was closed for cause or identified for abuse of account privileges by a financial institution or creditor. Suspicious Documents
5. Documents provided for identification
appear to have been altered or forged.
6. The photograph or physical description
on the identification is not consistent with the appearance of the applicant or customer presenting the identification.
7. Other information on the identification
is not consistent with information provided by the person opening a new covered account or customer presenting the identification.
8. Other information on the identification
is not consistent with readily accessible information that is on file with the financial institution or creditor, such as a signature card or a recent check.
9. An application appears to have been
altered or forged, or gives the appearance of having been destroyed and reassembled. Suspicious Personal Identifying Information
10. Personal identifying information
provided is inconsistent when compared against external information sources used by the financial institution or creditor. For example:
a. The address does not match any address in the consumer report; or b. The Social Security Number (SSN) has not been issued, or is listed on the Social Security Administration’s Death Master File.
11. Personal identifying information
provided by the customer is not consistent with other personal identifying information provided by the customer. For example, there is a lack of correlation between the SSN range and date of birth.
12. Personal identifying information
provided is associated with known fraudulent activity as indicated by internal or third-party sources used by the financial institution or creditor. For example:
a. The address on an application is the same as the address provided on a fraudulent application; or b. The phone number on an application is the same as the number provided on a fraudulent application.
13. Personal identifying information
provided is of a type commonly associated with fraudulent activity as indicated by internal or third-party sources used by the financial institution or creditor. For example:
a. The address on an application is fictitious, a mail drop, or a prison; or b. The phone number is invalid, or is associated with a pager or answering service.
14. The SSN provided is the same as that
submitted by other persons opening an account or other customers.
15. The address or telephone number
provided is the same as or similar to the address or telephone number submitted by an unusually large number of other persons opening accounts or by other customers.
16. The person opening the covered
account or the customer fails to provide all required personal identifying information on an application or in response to notification that the application is incomplete.
17. Personal identifying information
provided is not consistent with personal identifying information that is on file with the financial institution or creditor.
18. For financial institutions and creditors
that use challenge questions, the person opening the covered account or the customer cannot provide authenticating information beyond that which generally would be available from a wallet or consumer report. Unusual Use of, or Suspicious Activity Related to, the Covered Account
19. Shortly following the notice of a change
of address for a covered account, the institution or creditor receives a request for a new, additional, or replacement means of accessing the account or for the addition of an authorized user on the account.
20. A covered account is used in a manner
that is not consistent with established patterns of activity on the account. There is, for example:
a. Nonpayment when there is no history of late or missed payments; b. A material increase in the use of available credit;
c. A material change in purchasing or
spending patterns; or d. A material change in electronic fund transfer patterns in connection with a deposit account.
21. A covered account that has been
inactive for a reasonably lengthy period of time is used (taking into consideration the type of account, the expected pattern of usage and other relevant factors).
22. Mail sent to the customer is returned
repeatedly as undeliverable although transactions continue to be conducted in connection with the customer’s covered account.
23. The financial institution or creditor is
notified that the customer is not receiving paper account statements.
24. The financial institution or creditor is
notified of unauthorized charges or transactions in connection with a customer’s covered account. Notice From Customers, Victims of Identity Theft, Law Enforcement Authorities, or Other Persons Regarding Possible Identity Theft in Connection With Covered Accounts Held by the Financial Institution or Creditor
25. The financial institution or creditor is
notified by a customer, a victim of identity theft, a law enforcement authority, or any other person that it has opened a fraudulent account for a person engaged in identity theft. Dated: February 28, 2012. By the Commodity Futures Trading Commission. David A. Stawick, Secretary of the Commodity Futures Trading Commission. Dated: February 28, 2012. By the Securities and Exchange Commission. Elizabeth M. Murphy, Secretary of the Securities and Exchange Commission. [FR Doc. 2012–5157 Filed 3–5–12; 8:45 am] BILLING CODE 6351–01–P; 8011–01–P
Note from RegAlert. AI assistants can read this document in full, and search 70,000+ more, through the RegAlert MCP connector (https://mcp.regalert.today/mcp). Free with an account. How to connect ChatGPT, Claude or Cursor.
The documents this one cites, and the documents that cite it.
“On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (‘‘Dodd-Frank Act’’).11”
“For example, the Fair and Accurate Credit Transactions Act of 2003 (‘‘FACT Act’’) 5 amended the FCRA to enhance the ability of consumers to combat identity theft.6”
“The Fair Credit Reporting Act of 1970 3 (‘‘FCRA’’) sets standards for the collection, communication, and use of information about consumers by consumer reporting agencies.4”
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Source: Commodity Futures Trading Commission — original document · Summary generated with machine assistance and reviewed before publication; the authoritative text is the regulator's original document. How RegAlert works
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