X. Other — Electronic Signatures in Global and National Commerce Act
rules (Final Rules) establishing uniform standards for the
electronic delivery of federally mandated disclosures for five
consumer protection regulations: Regulation B, Equal Credit
Opportunity; Regulation E, Electronic Fund Transfers;
Regulation M, Consumer Leasing; Regulation Z, Truth in
Lending, and Regulation DD, Truth in Savings.
The Final Rules provided guidance on the timing and delivery of
electronic disclosures. Pursuant to the Final Rules, electronic
disclosures should be made using a method best suited to the
particular type of disclosure. If the consumer uses electronic
means to open an account or request a service, the disclosures
must be provided before the account is opened or the service is
requested. In response to a consumer request, disclosures should
be made available in a reasonable amount of time and may be
electronic if the consumer agrees. There are exceptions to the
consumer consent requirement for electronically providing certain
types of disclosures when the consumer is using electronic means
such as a home computer. Disclosures should be maintained on
the website for a reasonable amount of time for consumers to
access, view, and retain the disclosures. The mandatory
compliance date was October 1, 2008.
Definitions
“Consumer” – The term “consumer” means an individual who
obtains, through a transaction, products or services which are
used primarily for personal, family, or household purposes,
and also means the legal representative of such an individual.
“Electronic” – The term “electronic” means relating to
technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities.
“Electronic Agent” – The term “electronic agent” means a
computer program or an electronic or other automated means
used independently to initiate an action to respond to
electronic records or performances in whole or in part without
review or action by an individual at the time or the action or
response.
“Electronic Record” – The term “electronic record” means a
contract or other record created, generated, sent,
communicated, received, or stored by electronic means.
“Electronic Signature” – The term “electronic signature”
means an electronic sound, symbol, or process, attached to or
logically associated with a contract or other record and
executed or adopted by a person with the intent to sign the
record.
“Federal Regulatory Agency” – The term “Federal regulatory
agency” means an agency as that term is defined in section
552(f) of Title 5, United States code.
“Information” – The term “information” means data, text,
images, sounds, codes, computer programs, software,
databases, or the like.
“Person” – The term “person” means an individual,
corporation, business trust, estate, trust, partnership, limited
liability company, association, joint venture, governmental
agency, public corporation or any other legal or commercial
entity.
“Record” – The term “record” means information, that is
inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable
form.
“Requirement” – The term “requirement” includes a
prohibition.
“Self-Regulatory Organization” – The term “self-regulatory
organization” means an organization or entity that is not a
Federal regulatory agency or a State, but that is under the
supervision of a Federal regulatory agency and is authorized
under Federal law to adopt and administer rules applicable to
its members that are enforced by such organization or entity,
by a Federal regulatory agency, or by another self-regulatory
organization.
“State” – The term “State” includes the District of Columbia
and the territories and possessions of the United States.
“Transaction” – the term “transaction” means an action or set
of actions relating to the conduct of business, consumer, or
commercial affairs between two or more persons, including
any of the following types of conduct:
1. the sale, lease, exchange, licensing, or other disposition of
(i) personal property, including goods and intangibles, (ii)
services, and (iii) any combination thereof; and
2. the sale, lease, exchange, or other disposition of any
interest in real property, or any combination thereof.
Examination Procedures
1. Determine if and to what extent the financial institution
electronically delivers compliance-related notices or
disclosures subject to the consumer consent provisions of
the Act.
2. Determine if the financial institution has established
procedures to ensure compliance with the provisions of
this Act.
3. Determine that the consumer, prior to consenting, is
provided with a clear and conspicuous statement
informing the consumer of any right or option to have the
record provided or made available on paper or in non-
electronic form, and the right to withdraw the consent,
including any conditions, consequences, or fees in the
X–3.2 FDIC Consumer Compliance Examination Manual — January 2014