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FEDERAL RESERVE SYSTEM 12 CFR 230 [Regulation DD; Docket No. R-1044] Truth in Savings AGENCY: Board of Governors of the Federal Reserve System. ACTION: Interim Rule; Request for Comments. ________________________________________________________________________ SUMMARY: The Board is adopting an interim final rule amending Regulation DD, which implements the Truth in Savings Act, to establish uniform standards for the electronic delivery of disclosures required by the act and regulation. The rule provides guidance on the timing and delivery of electronic disclosures to ensure consumers have adequate opportunity to access and retain the information. (Similar rules are being adopted under other consumer financial services and fair lending regulations administered by the Board.) Under the rule, depository institutions may deliver disclosures electronically if they obtain consumers’ affirmative consent in accordance with the Electronic Signatures in Global and National Commerce Act (E-Sign Act). Amendments are also adopted that address electronic advertisements. The rule is being adopted as an interim rule to obtain additional public comment. An interim rule published in 1999, before enactment of the E-Sign Act, is withdrawn. DATES: The interim rule is effective March 30, 2001; however, to allow time for any necessary operational changes, the mandatory compliance date is October 1, 2001. Comments must be received by June 1, 2001. ADDRESSES: Comments, which should refer to Docket No. R-1044, may be mailed to Ms. Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, D.C. 20551 or mailed electronically to regs.comments@federalreserve.gov. Comments addressed to Ms. Johnson may also be delivered to the Board’s mail room between 8:45 a.m. and 5:15 p.m. weekdays, and to the security control room at all other times. The mail room and the security control room, both in the Board’s Eccles Building, are accessible from the courtyard entrance on 20th Street between Constitution Avenue and C Street, N.W. Comments may be inspected in room MP-500 in the Board’s Martin Building between 9:00 a.m. and 5:00 p.m., pursuant to the Board’s Rules Regarding the Availability of Information, 12 CFR part 261. FOR FURTHER INFORMATION CONTACT: Jane E. Ahrens, Senior Counsel, and Deborah J. Stipick, Attorney, Division of Consumer and Community Affairs, at (202) 452-2412 or (202) 452-3667. 2 SUPPLEMENTARY INFORMATION: I. Background The Truth in Savings Act (TISA), 12 U.S.C. 4301 et seq., requires depository institutions to disclose yields, fees, and other terms concerning deposit accounts to consumers at account opening, upon request, when changes in terms occur, and in periodic statements. It also includes rules about advertising for deposit accounts. The Board’s Regulation DD (12 CFR part 230) implements the act. Credit unions are governed by a substantially similar regulation issued by the National Credit Union Administration. TISA and Regulation DD require a number of disclosures to be provided in writing, presuming that depository institutions provide paper documents. Under the Electronic Signatures in Global and National Commerce Act (E-Sign Act)(15 U.S.C. § 7001 et seq.), however, electronic documents and signatures have the same validity as paper documents and handwritten signatures. Board Proposals Regarding Electronic Disclosures Over the past few years, the Board has published several interim rules and proposals regarding the electronic delivery of disclosures. In 1996, after a comprehensive review of Regulation E (Electronic Fund Transfers), the Board proposed to amend the regulation to permit financial institutions to provide disclosures by sending them electronically. (61 FR 19696, May 2, 1996.) Based on comments received on the 1996 proposal, on March 25,1998, the Board published an interim rule permitting the electronic delivery of disclosures under Regulation E (63 FR 14528) and similar proposals under Regulation DD (63 FR 14533), and other financial services and fair lending regulations administered by the Board. The 1998 interim rule and proposed rules were similar to the 1996 proposed rule under Regulation E. The 1998 proposals and interim rule allowed creditors, depository institutions, lessors, and others to provide disclosures electronically if the consumer agreed, with few other requirements. For ease of reference, this background section uses the terms “institutions” and “consumers.” Industry commenters generally supported the Board’s 1998 proposals and interim rule, but many of them sought specific revisions and additional guidance on how to comply with the disclosure requirements in certain transactions and circumstances. In particular, they expressed concern that the rule did not specify a uniform method for establishing that an “agreement” was reached for sending disclosures electronically. Consumer advocates, on the other hand, generally opposed the 1998 proposals and the interim rule. They believed that consumer protections in the proposals were inadequate, especially in connection with transactions that are typically consummated in person (such as automobile loans and leases, home-secured loans, and door-to-door credit sales). 3 September 1999 Proposals In response to comments received on the 1998 proposals, the Board published revised regulatory proposals in September 1999 under Regulations B, E, M, Z, and DD, (64 FR 49688, 49699, 49713, 49722 and 49740, respectively, September 14, 1999) (collectively, the "1999 proposals"), and an interim rule under Regulation DD (64 FR 49846). The interim rule under Regulation DD allowed depository institutions to deliver disclosures on periodic statements electronically if the consumer agrees. Generally, the 1999 proposals required institutions to use a standardized form containing specific information about the electronic delivery of disclosures so that consumers could make informed decisions about whether to receive disclosures electronically. If the consumer affirmatively consented, most disclosures could be provided electronically. To address concerns about potential abuses, the 1999 proposals generally would have required disclosures to be given in paper form when consumers transacted business in person. The proposals contained rules for disclosures that are made available to consumers at an institution’s Internet web site (governing, for example, how long disclosures must remain posted at a web site). Comments on the September 1999 Proposals ― The Board received letters representing 115 commenters expressing views on the revised proposals. Industry commenters generally supported the Board’s approach establishing federal rules for a uniform method of obtaining consumers’ consents to the receipt of electronic disclosures instead of deferring to state law. Still, many sought specific additional guidance and in some cases wanted more flexibility. They were concerned about the length of time the proposals would have required electronic disclosures to remain available to a consumer at an institution’s Internet web site or upon request. In addition, they believed the proposed rule requiring paper disclosures for transactions conducted in person was not sufficiently flexible. Consumer advocates believed the 1999 proposals addressed many of their concerns about the 1998 proposals. Nevertheless, they urged the Board to incorporate greater protections for consumers, such as restricting the delivery of electronic disclosures to only those consumers who initiate transactions electronically. The Board also obtained views through four focus groups with individual consumers, conducted in the Washington-Baltimore metropolitan area. Participants reviewed and commented on the format and content of the proposed sample consent forms, as well as on alternative revised forms. Federal Legislation Addressing Electronic Commerce On June 30, 2000, the President signed the E-Sign Act, which was enacted to encourage the continued expansion of electronic commerce. The E-Sign Act generally provides that electronic documents and signatures have the same validity as paper documents and handwritten signatures. The act contains special rules for the use of electronic disclosures in consumer transactions. Consumer disclosures may be provided in electronic form only if the consumer affirmatively consents after receiving certain information specified in the statute. 4 The Board and other government agencies are permitted to interpret the E-Sign Act’s consumer consent requirements within prescribed limits, but may not impose additional requirements for consumer consent. In addition, agencies generally may not re-impose a requirement for using paper disclosures in particular transactions, such as those conducted in person. The consumer consent provisions in the E-Sign Act became effective October 1, 2000, and did not require implementing regulations. Thus, financial institutions are currently permitted to use electronic disclosures under Regulations B, E, M, Z and DD if the consumer affirmatively consents in the manner required by the E-Sign Act. Under section 101(c)(5) of the E-Sign Act, consumers who consented prior to the effective date of the act to receive electronic disclosures as permitted by any law or regulation, are not subject to the consent requirements. II. The Interim Rule The Board is adopting an interim final rule to establish uniform standards for the electronic delivery of disclosures required under Regulation DD. Consistent with the requirements of the E-Sign Act, depository institutions generally must obtain consumers’ affirmative consent to provide disclosures electronically. The interim rule published in 1999, before enactment of the E-Sign Act, is withdrawn. The interim rules also establish uniform requirements for the timing and delivery of electronic disclosures. Disclosures may be sent by electronic mail (e-mail) to an electronic address designated by the consumer, or they may be made available at another location, such as an Internet web site. If the disclosures are not sent by e-mail, consumers must receive a notice alerting them to the availability of the disclosures. Disclosures posted on a web site must be available for at least 90 days, to allow consumers adequate time to access and retain the information. With regard to the timing of electronic disclosures, for disclosures that must be provided before the consumer opens an account, consumers are required to access the electronic disclosures before the account is opened. Under the interim rule, institutions must make a good faith attempt to redeliver electronic disclosures that are returned undelivered, using the address information available in their files. Similar rules are being adopted under Regulations B, E, M and Z. III. Request for Comment Interim Rules The interim rules include most of the revisions that were part of the 1999 proposals and were not affected by the E-Sign Act. The Board is adopting these rules with some minor changes discussed below. The rules are adopted as interim rules, to allow commenters to present new information or views not previously considered in the context of the 1998 and 1999 proposals. Since the Board’s 1999 proposals were issued, more institutions have gained experience in offering financial services electronically. The Board believes that additional comments, beyond those previously considered in 5 connection with the Board’s earlier proposals, might inform the Board whether any developments in technology or industry practices have occurred that warrant further changes in the rules. The comment period ends on June 1, 2001. The Board expects to adopt final rules on a permanent basis prior to October 1, 2001. Interpreting E-Sign Provisions Under section 104(b) of the E-Sign Act, the Board and other government agencies are permitted to interpret the act, within prescribed limits. The Board may issue rules that interpret how the E-Sign Act’s consumer consent requirements apply for purposes of the laws administered by the Board. Also, the Board may, by regulation, exempt a particular category of disclosures from the E-Sign Act’s consumer consent requirements if it will eliminate a substantial burden on electronic commerce without creating material risk for consumers. The Board requests comment on whether the Board should exercise its authority under the E-Sign Act in future rulemakings to interpret the consumer consent provisions or other provisions of the act, as they affect the Board’s consumer protection regulations. Comment is requested on whether the statutory provisions relating to consumer consent are sufficient, or whether additional guidance is needed. For example, is interpretative guidance needed concerning the statutory requirement that consumers confirm their consent electronically in a manner that reasonably demonstrates they can access information in the form to be used by the depository institution? Is clarification needed on the effect of consumers’ withdrawing their consent, or on requesting paper copies of electronic disclosures? Institutions must also inform consumers of changes in hardware or software requirements if the change creates a material risk that the consumer will not be able to access or retain the disclosure. The Board solicits comment on whether regulatory standards are needed for determining a “material risk” for purposes of Regulation DD and other financial services and fair lending laws administered by the Board, and if so what standards should apply. Under section 104(d) of the E-Sign Act, the Board is authorized to exempt specific disclosures from the consumer consent requirements of section 101(c) of the ESign Act, if the exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers. The Board requests comment on whether it should consider exercising this exemption authority. Study on Adapting Requirements to Online Banking and Lending The E-Sign Act eliminated legal impediments to the use of electronic records and signatures, the Board requests comment on whether other legislative or regulatory changes are needed to adapt current requirements to online banking and lending and facilitate electronic delivery of consumer financial services. As an example, under Regulations Z and DD, periodic statements inform consumers about their account activity over a period of time, typically monthly. The beginning and ending dates of the cycle determine costs and other information that must be disclosed. In addition, transmittal of the periodic statement triggers important 6 consumer protections such as billing error resolution procedures. Online banking, however, can provide consumers with up-to-date information about their accounts on a continuing basis. Such information is a helpful supplement to―but does not comply as a substitute for―periodic statements. Should the rules for periodic statements be modified for online banking, and if so, how could the rules be crafted to maintain for consumers 1) a perspective of the cost and activity of an account over time, and 2) protections for resolving errors or liability for unauthorized transactions. The comments may assist the Board in future efforts to update the regulations. The comments may also be used in connection with a study required under the GrammLeach-Bliley Act of 1999. That act requires the federal bank supervisory agencies to conduct a study of banking regulations that affect the electronic delivery of financial services and to submit to the Congress a report recommending any legislative changes that are needed to facilitate online banking and lending. IV. Section-by-Section Analysis Pursuant to its authority under section 269 of TISA, the Board amends Regulation DD to establish uniform standards for the use of electronic communication to provide disclosures required by this regulation. Electronic disclosures can effectively reduce compliance costs without adversely affecting consumer protections. The purpose of Regulation DD disclosures is to ensure that consumers have meaningful information about account terms so that consumers can compare savings and investment products. The use of electronic communication may allow institutions to provide Regulation DD disclosures to the consumer more efficiently. To the extent that a depository institution may make electronic disclosures available at its web site instead of providing the disclosures directly to the consumer, the Board finds that such an exception is warranted pursuant to its authority under section 269(a)(3) of TISA. Below is a section-by-section analysis of the rules for providing disclosures by electronic communication, including references to changes in the official staff commentary. Section 230.3 General disclosure requirements 3(a) Form Section 230.3(a) has been revised to reflect that the disclosures provided under § 230.10 for electronic communications are subject to the same requirements as other disclosures provided under Regulation DD. 3(g) Electronic Communication Section 230.3(g) is added to provide a cross reference to rules governing the electronic delivery of disclosures in § 230.10. 7 Section 230.4 Account Disclosures 4(a) Delivery of Account Disclosures Depository institutions generally must provide account-opening disclosures to consumers before an account is opened or a service is provided. Currently, depository institutions may delay delivering TISA disclosures if the consumer is not present at the institution when the account is opened (or service is provided). The rationale underlying the ten-day delay is that the institution cannot provide written disclosures is such cases, for example, when an account is opened by telephone. Section 230.4(a) provides that in such cases, account-opening disclosures must be mailed or delivered within ten business days. Under the 1999 proposal, the delayed timing rule under § 230.4(a) did not apply to depository institutions opening accounts by “electronic communication” (for example, those offered on the Internet). Some commenters agreed that the ten-day delay should not apply in such cases. Others expressed concern about providing accurate disclosures if a consumer “opens” an account electronically after normal business hours, and account terms change when the institution next opens for business. The interim final rule, as in the 1999 proposal, provides that depository institutions opening accounts by “electronic communication” (for example, those offered on the Internet) may not delay providing disclosures under § 230.4(a). This rule is adopted pursuant to the Board’s exception authority under Section 269(a)(3) of TISA, to carry out the purposes of the statute. The difficulties in providing disclosures for accounts opened by mail or telephone are not present for requests to open accounts received by electronic communication using visual text. Thus, specific disclosures must be provided before accounts are opened using electronic communication. TISA and Regulation DD do not define when an account is deemed to be opened; thus, institutions may establish policies and procedures to address after-hours requests to open accounts, to ensure that accurate disclosures are provided before the account is deemed by the institution to be “opened.” Depository institutions must also provide account disclosures to a consumer upon request. Section 230.4(a)(2)(i) provides that if a consumer is not present at the institution when a request for account disclosures is made, the institution must mail or deliver the disclosures within a reasonable time after the institution receives the request; ten days is deemed to be a reasonable time. The 1999 proposal extended the rule to requests for disclosures made by electronic communication. Most commenters agreed that a ten-day period was reasonable for responding to electronic requests for disclosures. Some stated that having one uniform time period would aid compliance. The interim final rule provides that ten days is a reasonable time for responding to request for account disclosures made by electronic communication. Comment 4(a)(2)(i)-3 has been revised to include this guidance. Section 230.4(a)(2)(i) is revised to require institutions to mail or deliver disclosures in paper form or electronically to consumers who are not present at the 8 institution when a request is made. To provide disclosures electronically, the institution must send the disclosures to the consumer’s e-mail address, or send a notice alerting the consumer to the location of the disclosures, such as on the institution’s Internet web site. Posting disclosures on a depository institution’s web site does not relieve the institution’s duty to provide the disclosures upon request. Comment 4(a)(2)(i)-4 is added to contain this advice. Section 230.6 Periodic Statement Disclosures 6(c) Electronic Communication Section 230.6(c) was adopted by the Board in 1999 as an interim rule allowing the electronic delivery of periodic statements, if the consumer agreed. (64 FR 49846, September 14, 1999.) The electronic delivery of periodic statements for consumer asset accounts was already permissible under an interim rule to Regulation E issued in March 1998. The 1999 interim rule allowed institutions to delivery electronically a single statement that complied with Regulation E and Regulation DD. The interim rule did not specify the manner or form of consumers’ consent to electronic statements. Effective October 1, 2000, the E-Sign Act permits depository institutions to provide disclosures to consumers using electronic communication, if the depository institution complies with Section 101(c) of that act. Section 101(c) of the E-Sign Act requires depository institutions to provide specific information about the electronic delivery of disclosures and obtain the consumer’s affirmative consent to receive electronic disclosures. As discussed below, § 226.10(b) is being adopted to set forth the general rule that depository institutions subject to Regulation DD may provide disclosures electronically only if the institution complies with Section 101(c) of the ESign Act. This requirement applies to disclosures on periodic statements that are provided electronically, and § 230.6(c) is withdrawn accordingly. Section 230.8 Advertising 8(a) Misleading or Inaccurate Advertisements Stating certain account terms in an advertisement for a deposit account triggers the disclosure of additional terms. Although Regulation DD does not currently address multiple-page advertisements, Regulations Z (Truth in Lending) and M (Consumer Leasing) permit creditors and lessors to provide required advertising disclosures on more than one page, if certain conditions are met. In September 1999, the Board proposed consistent approaches under Regulations Z, M, and DD for complying with the regulations’ advertising requirements in the context of electronic advertising. Under the proposal, a depository institution that advertises using electronic communication can comply with the regulation’s advertising requirements if the required terms are disclosed in more than one location, under certain conditions. Most commenters addressing the issue agreed with the proposed approach. Comment 8(a)-9 is adopted as proposed, with technical amendments for clarity. If an advertisement using electronic communication displays a triggering term (such as a 9 bonus or annual percentage yield) the advertisement must clearly refer the consumer to the location where the additional required information begins. For example, an advertisement that includes a bonus or annual percentage yield may be accompanied by a link in close proximity, that directly takes the consumer to the additional information. 8(b) Permissible Rates Section 230.8(b) permits depository institutions to state an interest rate in addition to the APY, as long as the rate is stated in conjunction with, but not more conspicuously than, the APY. As proposed, both rates must appear at the same location so the consumer can view both rates simultaneously. An advertised interest rate with a link to another location that contains the related APY would not comply with the requirements of § 230.8(b); the interest rate would be the only rate readily visible to consumers, and therefore would be more conspicuous. Commenters generally agreed with this requirement. Comment 8(b)-4 is adopted as proposed. 8(e) Exemption for Certain Advertisements 8(e)(1) Certain Media Section 230.8(e) exempts from some requirements advertisements made through broadcast or electronic media, such as television and radio or outdoor billboards. Proposed comment 8(e)(1)(i)-1 provided that this exemption would not apply to electronic advertisements using electronic communication, such as Internet advertisements, which do not have the same time and space constraints as radio or television advertisements. Views were mixed on whether advertisements using electronic communication should be subject to the broadcast or media exception. Many commenters noted that a frequent form of advertisement on the Internet is the “banner” advertisement and these are often priced based on size. Similarly, they noted that space limitations may exist, especially on third-party web sites. Accordingly, these commenters requested that the Board consider extending a similar exception to Internet advertisements that currently exists for television and billboards. However, other commenters agreed with the Board’s position that these types of advertisements (for example Internet advertisements with link capability) do not possess the same time and space limitations as those that are currently exempted. The Board believes that space constraints for advertisements on Internet web sites are not significantly different than those for a print advertisement (a newspaper, for example). Thus, requiring advertisements provided by electronic communication to comply with the regulation’s advertising requirements is not overly burdensome. Accordingly, advertisements made via electronic communication, such as advertisements posted on the Internet, are subject to Regulation DD’s general advertising rules. Comment 8(e)(1)(i)-1 is adopted as proposed. 10 Section 230.10 Electronic Communication 10(a) Definition As adopted, the definition of the term “electronic communication” remains substantially unchanged from the 1999 proposals. Section 230.10(a) limits the term to a message transmitted electronically that can be displayed on equipment as visual text; an example is a message displayed on a personal computer monitor screen. Thus, audio and voice response telephone systems are not included. Because the rule permits the use of electronic communication to satisfy the statutory requirement for written disclosures that must be clear and conspicuous, the Board believes visual text is an essential element of the definition. Institutions that accommodate vision-impaired consumers by providing disclosures that do not use visual text must also provide disclosures using visual text. Some commenters asked for clarification that the definition was not intended to preclude the use of devices other than personal computers, which also can display visual text. The equipment on which the text message is received is not limited to a personal computer, provided the visual display used to deliver the disclosures meets the “clear and conspicuous” format requirement, discussed below. 10(b) General Rule Effective October 1, 2000, the E-Sign Act permits depository institutions to provide disclosures using electronic communication, if the depository institution complies with the consumer consent requirements in Section 101(c). Under section 101(c) of the E-Sign Act, depository institutions must provide specific information about the electronic delivery of disclosures before obtaining the consumer’s affirmative consent to receive electronic disclosures. The consent requirements in the E-Sign Act are similar but not identical to the Board’s 1999 proposal. Accordingly, § 230.10(b) sets forth the general rule that depository institutions subject to Regulation DD may provide disclosures electronically if the institution complies with section 101(c) of the E-Sign Act. The E-Sign Act authorizes the use of electronic disclosures. The act does not affect any requirement imposed under TISA other than a provision that requires disclosures to be in paper form, and the act does not affect the content or timing of disclosures. Electronic disclosures are subject to the regulation’s format, timing and retainability rules and the clear and conspicuous standard. Comment 10(b)-1 contains this guidance. Presenting Disclosures in a Clear and Conspicuous Format Electronic disclosures must be clear and conspicuous, as is the case for all written disclosures under TISA and the Regulation DD. See §§ 230.3(a). An institution must provide electronic disclosures using a clear and conspicuous format. Also, in accordance with the E-Sign Act: (1) the institution must disclose the requirements for accessing and retaining disclosures in that format; (2) the consumer must demonstrate the ability to access the information electronically and affirmatively consent to electronic delivery; and 11 (3) the institution must provide the disclosures in accordance with the specified requirements. Comment 10(b)-2 contains this guidance Comments posed a few questions about the applicability of the clear and conspicuous standard to particular situations. Some asked whether electronic advertisements or other unrelated promotional information may appear on the same screen as mandatory disclosures that are posted on an Internet web site. Except to the extent required by the regulation, disclosures do not have to be provided separately from other information. Advertisements should not be integrated into the text of the disclosure in a manner that violates the clear and conspicuous standard. Commenters also had questions about the use of navigational tools with electronic disclosures. For example, some believed that such tools might be helpful in directing consumers to related information that explains the terminology used in the disclosures. Many Internet web sites use navigational tools that are conspicuous through the use of bold text, larger fonts, different colors, underlining, or other methods of highlighting. Such tools are not per se prohibited so long as they are not used in a manner that would violate the clear and conspicuous standard. Providing Timely Disclosures Disclosures delivered electronically must comply with existing timing requirements under TISA and Regulation DD. See §230.4(a). Commenters on the Board’s 1999 proposals requested specific guidance that an electronic disclosure would be considered timely based on the time it is sent by e-mail or posted on an Internet web site, regardless of when the consumer receives or reads the disclosure. Under the final rule, consistent with rules for disclosures that are sent by postal mail, disclosures provided by e-mail are timely when they are sent by the required time. Disclosures posted periodically at an Internet web site are timely if, by the required time, the depository institution both makes the disclosures available at that location and, in accordance with §230.10(d)(2), sends a notice alerting the consumer that the disclosures have been posted. For example, under §230.5, institutions must give advance notice to affected customers at least 30 calendar days in advance of certain changes. For a change in terms notice posted on the Internet, an institution must both post the notice and notify consumers of its availability at least 30 days in advance of the change. Comment 10(b)3(ii) contains this guidance. Certain disclosures must be provided before the consumer opens an account or a service is provided. When a depository institution permits the consumer to open an account on-line, the consumer must be required to access the disclosures required under 230.4 before the account is opened. A link to the disclosures satisfies the timing rule if the consumer cannot bypass the disclosure before opening the account. Or, the disclosures in this example must automatically appear on the screen, even if multiple screens are required to view the entire disclosure. Comment 10(b)-3(i) contains this guidance, as proposed. 12 Some industry commenters believed that requiring disclosures to automatically appear or be accessed by the consumer is cumbersome and unnecessary. Some commenters suggested that the Board allow the required disclosures to be accessible via a clearly marked navigational tool; they believe that once the tool is provided, the disclosure should be deemed to have been provided to the consumer. TISA and Regulation DD require that depository institutions provide or send disclosures to consumers. It is not sufficient for institutions to provide a bypassable navigational tool that merely gives consumers the option of receiving disclosures. Such an approach reduces the likelihood that consumers actually receive the disclosures. The interim final rule ensures that consumers actually see the disclosures provided electronically so that they have the opportunity to read them before opening an account. Commenters on the various proposals requested guidance on the depository institution’s duty in cases where an automated teller machine (ATM) or other automated equipment controlled by the depository institution malfunctions or otherwise fails to operate properly and cannot provide timely disclosures. Where the depository institution controls the equipment and disclosures are required at that time, an institution might not be liable for failing to provide timely disclosures if the defense in section 271(c) of TISA is available. Providing Disclosures in a Form the Consumer May Keep Under TISA and Regulation DD, disclosures required to be in writing also must be in a form the consumer can retain. (See § 230.3(a)) Electronic disclosures are subject to this requirement. Comment 10(b)-4 contains guidance on this requirement. Consumers may communicate electronically with depository institutions through a variety of means and from various locations. Depending on the location (at home, at work, in a public place such as a library), a consumer may not have the ability at a given time to preserve TISA disclosures presented on-screen. To ensure that consumers have an adequate opportunity to access and retain the disclosures, the depository institution also must send them to the consumer’s designated e-mail address or make them available at another location, for example, on the depository institution’s Internet web site, where the information may be retrieved at a later date. Where the depository institution controls the equipment providing the electronic disclosures (for example, an ATM or computer terminal located in the depository institution’s lobby), the depository institution must ensure that the consumer has the opportunity to retain the required information. Comment 10(b)-5 contains this guidance. 10(c) When Consent is Required Under the E-Sign Act, consumers must affirmatively consent before they receive electronic disclosures “relating to a transaction” if the disclosures are required by law or regulation to be in writing. Section 230.10(c) is added to provide that certain disclosures are not deemed to be related to a transaction for purposes of the E-Sign Act’s consumer consent provision. These include disclosures in connection with advertisements (§ 230.8) 13 and disclosures about deposit accounts that provided upon request (§230.4(a)(2)). Advertising disclosures are available to the general public. Consumers receiving disclosures on request may not open an account; those that do open an account will ultimately receive account opening disclosures subject to the consent requirements. 10(d) Address or Location to Receive Electronic Communication Consistent with the 1999 proposals, the interim rule provides that depository institutions may deliver electronic disclosures by sending them to a consumer’s e-mail address. Alternatively, the rule provides that depository institutions may make the disclosures available at another location such as an Internet web site. If the depository institution makes a disclosure available at such a location, the depository institution effectively delivers the disclosure by sending a notice alerting the consumer when the disclosure can be accessed and making the disclosure available for at least 90 days. The time period for keeping disclosures available at a location such as a depository institution’s Internet web site under the interim rule differs from the 1999 proposals, based on commenters’ concerns as discussed below. 10(d)(1) For purposes of § 226.10(d), a consumer’s electronic address is an e-mail address that is not limited to receiving communications transmitted solely by the depository institution, as proposed. This guidance is contained in comment 10(d)(1)-1. An electronic address would not include systems that permit communication only between the consumer and the depository institution, for example, home-banking programs that allow consumers to communicate directly with a depository institution online with the use of a computer and modem. These systems, like a depository institution’s web site accessed via the Internet, give consumers access to information about their accounts at a location controlled by the depository institution. In both cases, the depository institution determines how long disclosures will be available to the consumer. Consumers who receive disclosures at their e-mail address may choose when to review, and for how long to retain, account information. Consumers who receive disclosures by contacting a depository institution’s site, however, need to be alerted when the information is first available in order to ensure that they have the opportunity to access the information before it is removed. Thus, disclosures provided using systems such as home-banking programs are treated in the same manner as disclosures made available at an Internet web site, and a notice alerting the consumer when disclosures are posted must be sent, by e-mail or to a postal address, at the depository institution’s option. 10(d)(2) Under § 230.10(d)(2)(i) of the interim rule, for disclosures made available at an Internet web site, a notice alerting the consumer when disclosures are posted must be sent, by e-mail (or to a postal address, at the depository institution’s option). Section 230.10(d)(2)(i) requires that the alert notice identify the account involved and the address or other location where the disclosure is available. Comment 10(d)(2)-1 provides guidance on the level of detail required in identifying the account. 14 As proposed, under § 230.10(d)(2)(ii) the interim rule, disclosures provided at an Internet web site must remain available for at least 90 days. The requirement seeks to ensure that consumers have adequate time to access and retain a disclosure under a variety of circumstances, such as when a consumer may not be able for an extended period of time to access the information due to computer malfunctions, travel, or illness. The 90-day period is uniform for all disclosures, for ease of compliance. Comment 10(d)(2)-2 is added to provide that during this period, the actual disclosures must be available to the consumer, but the institution has discretion to determine whether they should be available at the same location for the entire period. Some industry commenters believed the 90-day time period is reasonable and feasible. About an equal number of commenters believed it was too burdensome and costly; some of these commenters suggested periods that ranged from 30 to 60 days. The 1999 proposals provided that after the 90-day time period, disclosures would be available upon consumers’ request, generally for 24 months, in the same format as initially provided to the consumer. The 24-month period is consistent with a depository institution’s duty to retain records that evidence their compliance. Consumer advocates supported the proposed retention period; some recommended that disclosures should be available upon request for the length of the contractual relationship with the consumer. Industry commenters strongly opposed the 24-month period. Many believed that keeping copies of electronic disclosures actually provided to consumers for that period of time would be costly and burdensome. Moreover, industry commenters believed that once a consumer has accessed the disclosures, the consumer rather than the depository institution should have the duty to retain them for future reference. They also noted that under existing record retention requirements applicable to paper disclosures, a depository institution need only demonstrate compliance with the rules, but need not retain copies of the actual disclosures provided to consumers. The requirement for depository institutions to retain the disclosures in the format provided duplicate disclosures upon request for 24 months has not been adopted. A depository institution’s duty to retain evidence of compliance for 24 months remains unchanged. 10(d)(3) Exceptions Section 230.10(d)(3) is added to make clear that the requirements of paragraphs (i) and (ii) of § 230.10(d)(2) do not apply to disclosures in certain advertisements (§ 230.8), and that paragraph (ii) of § 230.10(d)(2) does not apply to disclosures made available upon a consumer’s request (§ 230.4(a)). 10(e) Redelivery Industry commenters on the 1998 proposal asked for clarification that sending the electronic disclosures complies with the regulation, and that institutions are not required to confirm that the consumer actually received them. Consumer advocates asked that institutions be required to verify the delivery of disclosures by return receipt, in the case 15 of e-mail. In the 1999 proposals, the Board solicited comment on the need for and the feasibility of such a requirement. Consumer advocates believe that e-mail systems are not yet sufficiently reliable and that safeguards are necessary to ensure that consumers actually receive disclosures. Industry commenters stated that a return receipt requirement would be costly and burdensome, and would require depository institutions to monitor return receipts in every case to determine that individual consumers received the disclosures. Section 101(c) of the E-Sign Act requires that consumers consent electronically, or confirm their consents electronically, in a manner that reasonably demonstrates that the consumer can access the information that the institution will be providing. This requirement seeks to verify at the outset that the consumer is actually capable of receiving the information in the electronic format being used by the institution. After the consumer consents, the E-Sign Act also requires the institution to notify consumers of changes that materially affect consumers’ ability to access electronic disclosures. The interim rule does not impose a verification requirement because the cost and burden associated with verifying delivery of all disclosures would not be warranted. When electronic disclosures are returned undelivered, however, § 230.10(e) imposes a duty to attempt redelivery (either electronically or to a postal address) based on information in the institution’s own files. Unlike paper disclosures delivered by the postal service, there generally is no commonly-accepted mechanism for reporting a change in electronic address or for forwarding e-mail. Where a depository institution actually knows that the delivery of an electronic disclosure did not take place, the institution should take reasonable steps to effectuate delivery in some way. For example, if an e-mail message to the consumer (containing an alert notice or other disclosure) is returned as undeliverable, the redelivery requirement is satisfied if the institution sends the disclosure to a different e-mail address or postal address that the institution has on file. Sending the disclosures a second time to the same electronic address would not be sufficient if the institution has a different address for the consumer on file. Comment 10(e)-1 provides this guidance. This redelivery requirement is limited to situations where the electronic communication cannot be delivered and does not apply to situations where the disclosure is delivered but, for example, cannot be read by the consumer due to technical problems with the consumer’s software. A depository institution’s duty to redeliver a disclosure under § 230.10(e) does not affect the timeliness of the disclosure. Depository institutions comply with the timing requirements of the regulation when a disclosure is initially sent in a timely manner, even though the disclosure is returned undelivered and the depository institution is required under § 230.10(e) to take reasonable steps to attempt redelivery. 10(f) Entities Other Than a Depository Institution The requirements of § 230.8 apply to advertisements by deposit brokers. Section 230.10(f) is added to clarify that deposit brokers who are required to comply with 16 Regulation DD may use electronic communication to do so, provided the requirements of § 230.10 are satisfied. Additional Issues Document Integrity The interim rule does not impose document integrity standards. Consumer advocates and others have expressed concerns that electronic documents can be altered more easily than paper documents. They say that consumers’ ability to enforce rights under the consumer protection laws could be impaired, in some cases, if the authenticity of disclosures they retain cannot be demonstrated. Institutions are generally required to retain evidence of compliance with the Board’s consumer regulations. Accordingly, the Board requested comment on the feasibility of requiring institutions to have systems in place capable of detecting whether or not information has been altered, or to use independent certification authorities to verify disclosure documents. Consumer advocates strongly supported document integrity requirements (including the use of certification authorities) that would apply to all-electronic disclosures. Signatures, notary seals, and verification procedures such as recordation are used to protect against alterations for transactions memorialized in paper form. Consumer advocates believe that comparable verification procedures are needed for electronic disclosures as well. Industry commenters opposed mandatory document integrity standards for electronic disclosures. Because the technology in this area is still evolving, they believed that mandatory standards would be premature. Others believed that imposing document integrity standards or requiring the use of certification authorities would be costly to implement. The Board recognizes the concerns about document integrity, but believes it is not practicable at this time to impose document integrity standards for consumer disclosures or mandate the use of independent certification authorities. Effective methods may be too costly. Other less costly methods may deter alterations in some cases, but would not necessarily ensure document integrity. Moreover, the issue of document integrity affects electronic commerce generally and is not unique to the written disclosures required under the consumer protection laws administered by the Board. Section 104(b)(3) of the E-Sign Act authorizes federal or state regulatory agencies to specify performance standards to assure the accuracy, record integrity, and accessibility of records that are required to be retained, but prohibits the agencies from requiring the use of a particular type of software or hardware in order to comply with record retention requirements. Technology is likely to develop to protect electronic contracts and other legal documents. Thus, it seems premature for the Board to specify any particular standards or methods for consumer disclosure at this time. 17 V. Form of Comment Letters Comment letters should refer to Docket No. R-1044, and, when possible, should use a standard typeface with a font size of 10 or 12. This will enable the Board to convert the text to machine-readable form through electronic scanning, and will facilitate automated retrieval of comments for review. Also, if accompanied by an original document in paper form, comments may be submitted on 3 1/2 inch computer diskettes in any IBM-compatible DOS- or Windows-based format. VI. Regulatory Flexibility Analysis The Board has reviewed these interim amendments to Regulation DD in accordance with section 3(a) of the Regulatory Flexibility Act (5 U.SC. § 604), the Board has reviewed these interim amendments to Regulation DD. Two of the three requirements of a final regulatory flexibility analysis under the Act are (1) a succinct statement of the need for and the objectives of the rule and (2) a summary of the issues raised by the public comments, the agency’s assessment of those issues, and a statement of the changes made in the final rule in response to the comments. These two areas are discussed above. The third requirement of the analysis is a description of significant alternatives to the rule that would minimize the rule’s economic impact on small entities and reasons why the alternatives were rejected. This interim final rule is designed to provide depository institutions with an alternative method of providing disclosures; the rule will relieve compliance burden by giving depository institutions flexibility in providing disclosures required by the regulation. Overall, the costs of providing electronic disclosures are not expected to have significant impact on small entities. The expectation is that providing electronic disclosures may ultimately reduce the costs associated with providing disclosures. VII. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget. The Federal Reserve may not conduct or sponsor, and an organization is not required to respond to, this information collection unless it displays a currently valid OMB control number. The OMB control number is 7100-0271. The collection of information that is revised by this rulemaking is found in 12 CFR Part 230 and in Appendix B. This information is mandatory (15 U.S.C. 4301 et seq.) to evidence compliance with the requirements of the Regulation DD and the Truth in Savings Act (TISA). The respondents/recordkeepers are for-profit financial institutions, including small businesses. Institutions are required to retain records for twenty-four months. This regulation applies to all types of depository institutions, not just state member banks. However, under Paperwork Reduction Act regulations, the 18 Federal Reserve accounts for the burden of the paperwork associated with the regulation only for state member banks. Other agencies account for the paperwork burden on their respective constituencies under this regulation. The revisions provide that depository institutions may deliver disclosures electronically upon obtaining consumers affirmative consent in accordance with the ESign Act. The revisions provide guidance to institutions on the timing and delivery of electronic disclosures, to ensure that consumers have adequate opportunity to access and retain the information. With respect to state member banks, it is estimated that there are 1,000 respondent/recordkeepers and an average frequency of 87,071 responses per respondent each year. Current annual burden is estimated to be 1,482,000 hours. No comments specifically addressing the burden estimate were received, therefore, the numbers remain unchanged. There is estimated to be no additional cost burden and no capital or start up cost associated with the interim rule. Because the records would be maintained at state member banks and the notices are not provided to the Federal Reserve, no issue of confidentiality arises under the Freedom of Information Act. The Board has a continuing interest in the public's opinions of the Federal Reserve’s collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100-0271), Washington, DC 20503. VIII. Solicitation of Comments Regarding the Use of “Plain Language” Section 722 of the Gramm-Leach-Bliley Act of 1999 requires the Board to use “plain language” in all proposed and final rules published after January 1, 2000. The Board invites comments on whether the interim rule is clearly stated and effectively organized, and how the Board might make the rule easier to understand. List of Subjects in 12 CFR Part 230 Advertising, Banks, banking, Consumer protection, Federal Reserve System, Reporting and record keeping requirements, Truth in Savings. For the reasons set forth in the preamble, the Board amends Regulation DD, 12 CFR part 230, as set forth below: PART 230 ― TRUTH IN SAVINGS (REGULATION DD) 1. The authority citation for part 230 continues to read as follows: 19 Authority: 12 U.S.C. 4301 et seq. 2. Section 230.3 is amended by revising paragraph (a) and adding a new paragraph (g) as follows: § 230.3 General disclosure requirements. (a) Form. Depository institutions shall make the disclosures required by §§ 230.4 through 230.6 and § 230.10 of this part, as applicable, clearly and conspicuously, in writing, and in a form the consumer may keep. Disclosures for each account offered by an institution may be presented separately or combined with disclosures for the institution’s other accounts, as long as it is clear which disclosures are applicable to the consumer’s account. ***** (g) Electronic communication. For rules governing the electronic delivery of disclosures, including the definition of electronic communication, see § 230.10. ***** 3. Section 230.4 is amended by revising paragraph (a)(1) and paragraph (a)(2)(i) to read as follows: § 230.4 Account disclosures. (a) Delivery of account disclosures. (1) Account opening. (i) General. A depository institution shall provide account disclosures to a consumer before an account is opened or a service is provided, whichever is earlier. An institution is deemed to have provided a service when a fee required to be disclosed is assessed. Except as provided in paragraph (a)(1)(ii) of this section, if the consumer is not present at the institution when the account is opened or the service is provided and has not already received the disclosures, the institution shall mail or deliver the disclosures no later than 10 business days after the account is opened or the service is provided, whichever is earlier. (ii) Electronic communication. If a consumer who is not present at the institution uses electronic communication (as defined in § 230.10) to open an account or request a service, the disclosures required under paragraph (a)(1) of this section must be provided before an account is opened or a service is provided. (2) Requests. (i) A depository institution shall provide account disclosures to a consumer upon request. If a consumer who is not present at the institution makes a request, the institution shall mail or deliver the disclosures within a reasonable time after it receives the request and may provide the disclosures in paper form, or electronically if the consumer provides an electronic mail address. ***** 4. Section 230.6 is amended by removing paragraph (c). 20 5. Part 230 is amended by adding a new § 230.10 to read as follows: § 230.10 Electronic communication. (a) Definition. “Electronic communication” means a message transmitted electronically between a depository institution and a consumer in a format that allows visual text to be displayed on equipment, for example, a personal computer monitor. (b) General rule. In accordance with the Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. § 7001 et seq.) and the rules of this part, a depository institution may provide by electronic communication any disclosure required by this part to be in writing. (c) When consent is required. Under the E-Sign Act, a depository institution is required to obtain a consumer’s affirmative consent when providing disclosures related to a transaction. For purposes of this requirement, the disclosures required under §§ 230.4(a)(2) and 230.8 are deemed not to be related to a transaction. (d) Address or location to receive electronic communication. A depository institution that uses electronic communication to provide disclosures required by this part shall: (1) Send the disclosure to the consumer’s electronic address; or (2) Make the disclosure available at another location such as an Internet web site; and (i) Alert the consumer of the disclosure’s availability by sending a notice to the consumer’s electronic address (or to a postal address, at the depository institution’s option). The notice shall identify the account involved (if applicable) and the address of the Internet web site or other location where the disclosure is available; and (ii) Make the disclosure available for at least 90 days from the date the disclosure first becomes available or from the date of the notice alerting the consumer of the disclosure, whichever comes later. (3) Exceptions. A depository institution need not comply with paragraph (d)(2)(ii) of this section for disclosures required under § 230.4(a)(2), and need not comply with paragraphs (d)(2)(i) and (ii) of this section for disclosures required under § 230.8. (e) Redelivery. When a disclosure provided by electronic communication is returned to a depository institution undelivered, the depository institution shall take reasonable steps to attempt redelivery using information in its files. 21 (f) Entities other than a depository institution. A person other than a depository institution that is required to comply with this part may use electronic communication in accordance with the requirements of this section, as applicable. 6. In Supplement I to Part 230, the following amendments are made: a. Under Section 230.2 Definitions, under (q) Periodic statement, paragraph ii. is removed and paragraph iii. is redesignated as paragraph ii. b. Under Section 230.4 Account disclosures, under (a)(2) Requests, paragraph 3. is revised and a new paragraph 4. is added. c. Under Section 230.8 Advertising, under (a) Misleading or inaccurate advertisements, a new paragraph 9. is added. d. Under Section 230.8 Advertising, under (b) Permissible rates, a new paragraph 4. is added. e. Under Section 230.8 Advertising, under (e)(1) Certain media, a new heading (e)(1)(i), and a new paragraph 1. are added. f. A new Section 230.10 Requirements for electronic communication is added at the end of Supplement I. The amendments read as follows: ***** SUPPLEMENT I TO PART 230―OFFICIAL STAFF INTERPRETATIONS Section 230.4 Account disclosures (a) Delivery of account disclosures ***** (a)(2) Requests (a)(2)(i) ***** 3. Timing for response. Ten business days is a reasonable time for responding to requests for account information that consumers do not make in person, including requests made by electronic communication. 4. Requests by electronic communication. Posting disclosures on a depository institution’s web site generally does not relieve the institution’s duty to provide disclosures upon request. If the consumer provides an e-mail address, the institution may provide the disclosures electronically, but the institution must either send the disclosures by e-mail or send a notice to the consumer’s e-mail address pursuant to § 230.10(d)(2)(i) to inform the consumer where the disclosures are posted. ***** 22 Section 230.8 Advertising (a) Misleading or inaccurate advertisements ***** 9. Electronic advertising. If an advertisement using electronic communication displays a triggering term (such as a bonus or annual percentage yield) the advertisement must clearly refer the consumer to the location where the additional required information begins. For example, an advertisement that includes a bonus or annual percentage yield may be accompanied by a link that directly takes the consumer to the additional information. (b) Permissible rates 4. Electronic communication. An interest rate may be stated only if it is provided in conjunction with, but not more conspicuously than, the annual percentage yield to which it relates. In an advertisement using electronic communication, the consumer must be able to view both rates simultaneously. This requirement is not satisfied if the consumer can view the annual percentage yield only by use of a link that connects the consumer to information appearing at another location. ***** (e)(1) Certain media (e)(1)(i) 1. Internet advertisements. The exemption for advertisements made through broadcast or electronic media does not extend to advertisements made by electronic communication, such as advertisements posted on the Internet or sent by e-mail. ***** Section 230.10 Electronic communication (b) General rule 1. Relationship to the E-Sign Act. The E-Sign Act authorizes the use of electronic disclosures. It does not affect any requirement imposed under this part other than a provision that requires disclosures to be in paper form, and it does not affect the content or timing of disclosures. Electronic disclosures are subject to the regulation’s format, timing, and retainability rules and the clear and conspicuous standard. For example, to satisfy the clear and conspicuous standard for disclosures, electronic disclosures must use visual text. 2. Clear and conspicuous standard. An institution must provide electronic disclosures using a clear and conspicuous format. Also, in accordance with the E-Sign Act: 23 i. The institution must disclose the requirements for accessing and retaining disclosures in that format; ii. The consumer must demonstrate the ability to access the information electronically and affirmatively consent to electronic delivery; and iii. The institution must provide the disclosures in accordance with the specified requirements. 3. Timing and effective delivery. i. When a consumer opens an account on-line. When a consumer opens an account on-line, the consumer must be required to access the disclosures required under §230.4 before the account is opened or a service is provided, whichever is earlier. A link to the disclosures satisfies the timing rule if the consumer cannot bypass the disclosures before opening the account. Or the disclosures in this example must automatically appear on the screen, even if multiple screens are required to view the entire disclosure. The institution is not required to confirm that the consumer has read the disclosure. ii. For disclosures provided periodically. Disclosures provided by mail are timely based on when the disclosures are sent. Disclosures posted at an Internet web site, such as periodic statements or change-in-terms and other notices, are timely when the institution has both made the disclosures available and sent a notice alerting consumer that the disclosures have been posted. For example, under §230.5, institutions must give advance notice to affected customers at least 30 calendar days in advance of certain changes. For a change in terms notice posted on the Internet, an institution must both post the notice and notify consumers of its availability at least 30 days in advance of the change. 4. Retainability of disclosures. Depository institutions satisfy the requirement that disclosures be in a form that the consumer may keep if electronic disclosures are delivered in a format that is capable of being retained (such as by printing or storing electronically). The format must also be consistent with the information required to be provided under 101(c)(1)(C)(i) of the E-Sign Act about the hardware and software requirements for accessing and retaining electronic disclosures. 5. Disclosures provided on depository institution’s equipment. A depository institution that controls the equipment providing electronic disclosures to consumers (for example, a computer terminal located in a depository institution’s lobby or at a public kiosk) must ensure that the equipment satisfies the regulation’s requirements to provide timely disclosures in a clear and conspicuous format and in a form that the consumer may keep. For example, if disclosures are required at the time of an on-line transaction, the disclosures must be sent to the consumer’s e-mail address or must be posted at another location such as the institution’s Internet web site, unless the institution provides a printer that automatically prints the disclosures. 24 (d) Address or location to receive electronic communication (d)(1) 1. Electronic address. A consumer’s electronic address is an e-mail address that is not limited to receiving communications transmitted solely by the depository institution. (d)(2) 1. Identifying account involved. A depository institution may identify a specific account in a variety of ways and is not required to identify an account by reference to the account number. For example, where the consumer has only one deposit account, and no confusion would result, the depository institution may refer to “your deposit account.” If the consumer has two accounts, the depository institution may, for example, differentiate accounts by using terms such as “primary account” and “secondary account” or by using a truncated account number. 2. 90-day rule. The actual disclosures provided to consumer must be available for at least 90 days, but the institution has discretion to determine whether they should be available at the same location for the entire period. (e) Redelivery 1. E-mail returned as undeliverable. If an e-mail to the consumer (containing an alert notice or other disclosure) is returned as undeliverable, the redelivery requirement is satisfied if, for example, the depository institution sends the disclosure to a different e-mail address or postal address that the depository institution has on file for the consumer. Sending the disclosures a second time to the same electronic is not sufficient if the depository institution has a different address for the consumer on file. By order of the Board of Governors of the Federal Reserve System, March 27, 2001. (signed) Robert deV. Frierson Robert deV. Frierson Associate Secretary of the Board