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Financial Institution Letters

[Federal Register: February 1, 2001 (Volume 66, Number 22)]
[Rules and Regulations]               
[Page 8615-8641]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe01-9]                         


[[Page 8615]]

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Part II





Department of the Treasury





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Office of the Comptroller of the Currency



Office of Thrift Supervision



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Federal Reserve System

Federal Deposit Insurance Corporation





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12 CFR Part 30, et al.



Interagency Guidelines Establishing Standards for Safeguarding Customer 
Information and Rescission of Year 2000 Standards for Safety and 
Soundness; Final Rule


[[Page 8616]]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 30

[Docket No. 00-35]
RIN 1557-AB84

FEDERAL RESERVE SYSTEM

12 CFR Parts 208, 211, 225, and 263

[Docket No. R-1073]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 308 and 364

RIN 3064-AC39

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Parts 568 and 570

[Docket No. 2000-112]
RIN 1550-AB36

 
Interagency Guidelines Establishing Standards for Safeguarding 
Customer Information and Rescission of Year 2000 Standards for Safety 
and Soundness

AGENCIES: The Office of the Comptroller of the Currency (OCC), 
Treasury; Board of Governors of the Federal Reserve System (Board); 
Federal Deposit Insurance Corporation (FDIC); and Office of Thrift 
Supervision (OTS), Treasury.

ACTION: Joint final rule.

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SUMMARY: The Office of the Comptroller of the Currency, Board of 
Governors of the Federal Reserve System, Federal Deposit Insurance 
Corporation, and Office of Thrift Supervision (collectively, the 
Agencies) are publishing final Guidelines establishing standards for 
safeguarding customer information that implement sections 501 and 
505(b) of the Gramm-Leach-Bliley Act (the G-L-B Act or Act).
    Section 501 of the G-L-B Act requires the Agencies to establish 
appropriate standards for the financial institutions subject to their 
respective jurisdictions relating to administrative, technical, and 
physical safeguards for customer records and information. As described 
in the Act, these safeguards are to: insure the security and 
confidentiality of customer records and information; protect against 
any anticipated threats or hazards to the security or integrity of such 
records; and protect against unauthorized access to or use of such 
records or information that could result in substantial harm or 
inconvenience to any customer. The Agencies are to implement these 
standards in the same manner, to the extent practicable, as standards 
prescribed pursuant to section 39(a) of the Federal Deposit Insurance 
Act (FDI Act). These final Guidelines implement the requirements 
described above.
    The Agencies previously issued guidelines establishing Year 2000 
safety and soundness standards for insured depository institutions 
pursuant to section 39 of the FDI Act. Since the events for which these 
guidelines were issued have passed, the Agencies have concluded that 
the guidelines are no longer necessary and are rescinding these 
guidelines.

Effective Date: The joint final rule is effective July 1, 2001.
    Applicability date: The Year 2000 Standards for Safety and 
Soundness are no longer applicable as of March 5, 2001.

FOR FURTHER INFORMATION CONTACT:

OCC

    John Carlson, Deputy Director for Bank Technology, (202) 874-5013; 
or Deborah Katz, Senior Attorney, Legislative and Regulatory Activities 
Division, (202) 874-5090.

Board

    Heidi Richards, Assistant Director, Division of Banking Supervision 
and Regulation, (202) 452-2598; Stephanie Martin, Managing Senior 
Counsel, Legal Division, (202) 452-3198; or Thomas E. Scanlon, Senior 
Attorney, Legal Division, (202) 452-3594. For the hearing impaired 
only, contact Janice Simms, Telecommunication Device for the Deaf (TDD) 
(202) 452-3544, Board of Governors of the Federal Reserve System, 20th 
and C Streets, NW, Washington, DC 20551.

FDIC

    Thomas J. Tuzinski, Review Examiner, Division of Supervision, (202) 
898-6748; Jeffrey M. Kopchik, Senior Policy Analyst, Division of 
Supervision, (202) 898-3872; or Robert A. Patrick, Counsel, Legal 
Division, (202) 898-3757.

OTS

    Jennifer Dickerson, Manager, Information Technology, Examination 
Policy, (202) 906-5631; or Christine Harrington, Counsel, Banking and 
Finance, Regulations and Legislation Division, (202) 906-7957.

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. Background
II. Overview of Comments Received
III. Section-by-Section Analysis
IV. Regulatory Analysis
    A. Paperwork Reduction Act
    B. Regulatory Flexibility Act
    C. Executive Order 12866
    D. Unfunded Mandates Act of 1995

I. Background

    On November 12, 1999, President Clinton signed the G-L-B Act (Pub. 
L. 106-102) into law. Section 501, titled ``Protection of Nonpublic 
Personal Information'', requires the Agencies, the National Credit 
Union Administration, the Securities and Exchange Commission, and the 
Federal Trade Commission to establish appropriate standards for the 
financial institutions subject to their respective jurisdictions 
relating to the administrative, technical, and physical safeguards for 
customer records and information. As stated in section 501, these 
safeguards are to: (1) Insure the security and confidentiality of 
customer records and information; (2) protect against any anticipated 
threats or hazards to the security or integrity of such records; and 
(3) protect against unauthorized access to or use of such records or 
information that would result in substantial harm or inconvenience to 
any customer.
    Section 505(b) of the G-L-B Act provides that these standards are 
to be implemented by the Agencies in the same manner, to the extent 
practicable, as standards prescribed pursuant to section 39(a) of the 
FDI Act.\1\ Section 39(a) of the FDI Act authorizes the Agencies to 
establish operational and managerial standards for insured depository 
institutions relative to, among other things, internal controls, 
information systems, and internal audit systems, as well as such other 
operational and managerial standards as the Agencies determine to be 
appropriate.\2\
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    \1\ Section 39 applies only to insure depository institutions, 
including insured branches of foreign banks. The Guidelines, 
however, will also apply to certain uninsured institutions, such as 
bank holding companies, certain nonbank subsidiaries of bank holding 
companies and insured depository institutions, and uninsured 
branches and agencies of foreign banks. See sections 501 and 505(b) 
of the G-L-B Act.
    \2\ OTS has placed its information security guidelines in 
appendix B to 12 CFR part 570, with the provisions implementing 
section 39 of the FDI Act. At the same time, OTS has adopted a 
regulatory requirement that the institutions OTS regulates comply 
with the proposed Guidelines. Because information security 
guidelines are similar to physical security procedures, OTS has 
included a provision in 12 CFR part 568, which covers primarily 
physical security procedures, requiring compliance with the 
Guidelines in appendix B to part 570.

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[[Page 8617]]

II. Overview of Comments Received

    On June 26, 2000, the Agencies published for comment the proposed 
Interagency Guidelines Establishing Standards for Safeguarding Customer 
Information and Rescission of Year 2000 Standards for Safety and 
Soundness in the Federal Register (65 FR 39472). The public comment 
period closed August 25, 2000. The Agencies collectively received a 
total of 206 comments in response to the proposal, although many 
commenters sent copies of the same letter to each of the Agencies. 
Those combined comments included 49 from banks, 7 from savings 
associations, 60 from financial institution holding companies; 50 from 
financial institution trade associations; 33 from other business 
entities; and four from state regulators. The Federal Reserve also 
received comments from three Federal Reserve Banks.
    The Agencies invited comment on all aspects of the proposed 
Guidelines, including whether the rules should be issued as guidelines 
or as regulations. Commenters overwhelmingly supported the adoption of 
guidelines, with many commenters offering suggestions for ways to 
improve the proposed Guidelines as discussed below. Many commenters 
cited the benefits of flexibility and the drawbacks of prescriptive 
requirements that could become rapidly outdated as a result of changes 
in technology.
    The Agencies also requested comments on the impact of the proposal 
on community banks, recognizing that community banks operate with more 
limited resources than larger institutions and may present a different 
risk profile. In general, community banks urged the Agencies to issue 
guidelines that are not prescriptive, that do not require detailed 
policies or reporting by banks that share little or no information 
outside the bank, and that provide flexibility in the design of an 
information security program. Some community banks indicated that the 
Guidelines are unnecessary because they already have information 
security programs in place. Others requested clarification of the 
impact of the Guidelines on banks that do not share any information in 
the absence of a customer's consent.
    In light of the comments received, the Agencies have decided to 
adopt the Guidelines, with several changes as discussed below to 
respond to the commenters' suggestions. The respective texts of the 
Agencies' Guidelines are substantively identical. In directing the 
Agencies to issue standards for the protection of customer records and 
information, Congress provided that the standards apply to all 
financial institutions, regardless of the extent to which they may 
disclose information to affiliated or nonaffiliated third parties, 
electronically transfer data with customers or third parties, or record 
data electronically. Because the requirements of the Act apply to a 
broad range of financial institutions, the Agencies believe that the 
Guidelines must establish appropriate standards that allow each 
institution the discretion to design an information security program 
that suits its particular size and complexity and the nature and scope 
of its activities. In many instances, financial institutions already 
will have information security programs that are consistent with these 
Guidelines, because key components of the Guidelines were derived from 
security-related supervisory guidance previously issued by the Agencies 
and the Federal Financial Institutions Examination Council (FFIEC). In 
such situations, little or no modification to an institution's program 
will be required.
    Below is a section-by-section analysis of the final Guidelines.

III. Section-by-Section Analysis

    The discussion that follows applies to each Agency's Guidelines.

I. Introduction

    Paragraph I. of the proposal set forth the general purpose of the 
Guidelines, which is to provide guidance to each financial institution 
in establishing and implementing administrative, technical, and 
physical safeguards to protect the security, confidentiality, and 
integrity of customer information. This paragraph also set forth the 
statutory authority for the Guidelines, including section 39(a) of the 
FDI Act (12 U.S.C. 1831p-1) and sections 501 and 505(b) of the G-L-B 
Act (15 U.S.C. 6801 and 6805(b) ). The Agencies received no comments on 
this paragraph, and have adopted it as proposed.

I.A. Scope

    Paragraph I.A. of the proposal described the scope of the 
Guidelines. Each Agency defined specifically those entities within its 
particular scope of coverage in this paragraph of the Guidelines.
    The Agencies received no comments on the issue of which entities 
are covered by the Guidelines, and have adopted paragraph I.A. as 
proposed.

I.B. Preservation of Existing Authority

    Paragraph I.B. of the proposal made clear that in issuing these 
Guidelines none of the Agencies is, in any way, limiting its authority 
to address any unsafe or unsound practice, violation of law, unsafe or 
unsound condition, or other practice, including any condition or 
practice related to safeguarding customer information. As noted in the 
preamble to the proposal, any action taken by any Agency under section 
39(a) of the FDI Act and these Guidelines may be taken independently 
of, in conjunction with, or in addition to any other enforcement action 
available to the Agency. The Agencies received no comments on this 
paragraph, and have adopted paragraph I.B. as proposed.

I.C.1. Definitions

    Paragraph I.C. set forth the definitions of various terms for 
purposes of the Guidelines.\3\ It also stated that terms used in the 
Guidelines have the same meanings as set forth in sections 3 and 39 of 
the FDI Act (12 U.S.C. 1813 and 1831p-1).
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    \3\ In addition to the definitions discussed below, the Board's 
Guidelines in 12 CFR parts 208 and 225 contain a definition of 
``subsidiary'', which described the state member bank and bank 
holding company subsidiaries that are subject to the Guidelines.
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    The Agencies received several comments on the proposed definitions, 
and have made certain changes as discussed below. The Agencies also 
have reordered proposed paragraph I.C. so that the statement concerning 
the reliance on sections 3 and 39(a) of the FDI Act is now in paragraph 
I.C.1., with the definitions appearing in paragraphs I.C.2.a.-e. The 
defined terms have been placed in alphabetical order in the final 
Guidelines.

I.C.2.a. Board of Directors

    The proposal defined ``board of directors'' to mean, in the case of 
a branch or agency of a foreign bank, the managing official in charge 
of the branch or agency.\4\ The Agencies received no comments on this 
proposed definition, and have adopted it without change.
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    \4\ The OTS version of the Guidelines does not include this 
definition because OTS does not regulate foreign institutions. 
Paragraph I of the OTS Guidelines has been renumbered accordingly.
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I.C.2.b. Customer

    The proposal defined ``customer'' in the same way as that term is 
defined in section __.3(h) of the Agencies' rule captioned ``Privacy of 
Consumer Financial Information'' (Privacy Rule).\5\

[[Page 8618]]

The Agencies proposed to use this definition in the Guidelines because 
section 501(b) refers to safeguarding the security and confidentiality 
of ``customer'' information. Given that Congress used the same term for 
both the 501(b) standards and for the sections concerning financial 
privacy, the Agencies have concluded that it is appropriate to use the 
same definition in the Guidelines that was adopted in the Privacy Rule.
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    \6\ See 65 FR 35162 (June 1, 2000). Citations to the interagency 
Privacy Rule in this preamble are to sections only, leaving blank 
the citations to the part numbers used by each agency.
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    Under the Privacy Rule, a customer is a consumer who has 
established a continuing relationship with an institution under which 
the institution provides one or more financial products or services to 
the consumer to be used primarily for personal, family or household 
purposes. ``Customer'' does not include a business, nor does it include 
a consumer who has not established an ongoing relationship with a 
financial institution (e.g., an individual who merely uses an 
institution's ATM or applies for a loan). See sections__.3(h) and (i) 
of the Privacy Rule. The Agencies solicited comment on whether the 
definition of ``customer'' should be broadened to provide a common 
information security program for all types of records under the control 
of a financial institution.
    The Agencies received many comments on this definition, almost all 
of which agreed with the proposed definition. Although a few commenters 
indicated they would apply the same security program to both business 
and consumer records, the vast majority of commenters supported the use 
of the same definition of ``customer'' in the Guidelines as is used in 
the Privacy Rule. They observed that the use of the term ``customer'' 
in section 501 of the G-L-B Act, when read in the context of the 
definitions of ``consumer'' and ``customer relationship'' in section 
509, reflects the Congressional intent to distinguish between certain 
kinds of consumers for the information security standards and the other 
privacy provisions established under subtitle A of Title V.
    The Agencies have concluded that the definition of ``customer'' 
used in the Guidelines should be consistent with the definition 
established in section__.3(h) of the Privacy Rule. The Agencies 
believe, therefore, that the most reasonable interpretation of the 
applicable provisions of subtitle A of Title V of the Act is that a 
financial institution is obligated to protect the security and 
confidentiality of the nonpublic personal information of its consumers 
with whom it has a customer relationship. As a practical manner, a 
financial institution may also design or implement its information 
security program in a manner that encompasses the records and 
information of its other consumers and its business clients.\6\
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    \6\ The Agencies recognize that ``customer'' is defined more 
broadly under Subtitle B of Title V of the Act, which, in general, 
makes it unlawful for any person to obtain or attempt to obtain 
customer information of a financial institution by making false, 
fictitious, or fraudulent statements. For the purpose of that 
subtitle, the term ``customer'' means ``any person (or authorized 
representative of a person) to whom the financial institution 
provides a product or service, including that of acting as a 
fiduciary.'' (See section 527(1) of the Act.) In light of the 
statutory mandate to ``prescribe such revisions to such regulations 
and guidelines as may be necessary to ensure that such financial 
institutions have policies, procedures, and controls in place to 
prevent the unauthorized disclosure of customer financial 
information'' (section 525), the Agencies considered modifying these 
Guidelines to cover other customers, namely, business entities and 
individuals who obtain financial products and services for purposes 
other than personal, family, or household purposes. The Agencies 
have concluded, however, that defining ``customer'' to accommodate 
the range of objectives set forth in Title V of the Act is 
unnecessary. Instead, the Agencies have included a new paragraph 
III.C.1.a, described below, and plan to issue guidance and other 
revisions to the applicable regulations, as may be necessary, to 
satisfy the requirements of section 525 of the Act.
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I.C.2.c. Customer Information

    The proposal defined ``customer information'' as any records 
containing nonpublic personal information, as defined in section__.3(n) 
of the Privacy Rule, about a customer. This included records, data, 
files, or other information in paper, electronic, or other form that 
are maintained by any service provider on behalf of an institution. 
Although section 501(b) of the G-L-B Act refers to the protection of 
both customer ``records'' and ``information'', for the sake of 
simplicity, the proposed Guidelines used the term ``customer 
information'' to encompass both information and records.
    The Agencies received several comments on this definition. The 
commenters suggested that the proposed definition was too broad because 
it included files ``containing'' nonpublic personal information. The 
Agencies believe, however, that a financial institution's security 
program must apply to files that contain nonpublic personal information 
in order to adequately protect the customer's information. In deciding 
what level of protection is appropriate, a financial institution may 
consider the fact that a given file contains very little nonpublic 
personal information, but that fact would not render the file entirely 
beyond the scope of the Guidelines. Accordingly, the Agencies have 
adopted a definition of ``customer record'' that is substantively the 
same as the proposed definition. The Agencies have, however, deleted 
the reference to ``data, files, or other information'' from the final 
Guidelines, since each is included in the term ``records'' and also is 
covered by the reference to ``paper, electronic, or other form''.

I.C.2.d. Customer Information System

    The proposal defined ``customer information system'' to be 
electronic or physical methods used to access, collect, store, use, 
transmit, or protect customer information. The Agencies received a few 
comments on this definition, mostly from commenters who stated that it 
is too broad. The Agencies believe that the definition needs to be 
sufficiently broad to protect all customer information, wherever the 
information is located within a financial institution and however it is 
used. Nevertheless, the broad scope of the definition of ``customer 
information system'' should not result in an undue burden because, in 
other important respects, the Guidelines allow a high degree of 
flexibility for each institution to design a security program that 
suits its circumstances.
    For these reasons, the Agencies have adopted the definition of 
``customer information system'' largely as proposed. However, the 
phrase ``electronic or physical'' in the proposal has been deleted 
because each is included in the term ``any methods''. The Agencies also 
have added a specific reference to records disposal in the definition 
of ``customer information system.'' This is consistent with the 
proposal's inclusion of access controls in the list of items a 
financial institution is to consider when establishing security 
policies and procedures (see discussion of paragraph III.C.1.a., 
below), given that inadequate disposal of records may result in 
identity theft or other misuse of customer information. Under the final 
Guidelines, a financial institution's responsibility to safeguard 
customer information continues through the disposal process.

I.C.2.e. Service Provider

    The proposal defined a ``service provider'' as any person or entity 
that maintains or processes customer information for a financial 
institution, or is otherwise granted access to customer information 
through its provision of services to an institution. One commenter 
urged the Agencies to modify this definition so that it would not 
include a financial institution's attorneys, accountants, and 
appraisers. Others suggested deleting the phrase ``or

[[Page 8619]]

is otherwise granted access to customer information through its 
provision of services to an institution''.
    The Agencies believe that the Act requires each financial 
institution to adopt a comprehensive information security program that 
is designed to protect against unauthorized access to or use of 
customers' nonpublic personal information. Disclosing information to a 
person or entity that provides services to a financial institution 
creates additional risks to the security and confidentiality of the 
information disclosed. In order to protect against these risks, a 
financial institution must take appropriate steps to protect 
information that it provides to a service provider, regardless of who 
the service provider is or how the service provider obtains access. The 
fact that an entity obtains access to customer information through, for 
instance, providing professional services does not obviate the need for 
the financial institution to take appropriate steps to protect the 
information. Accordingly, the Agencies have determined that, in 
general, the term ``service provider'' should be broadly defined to 
encompass a variety of individuals or companies that provide services 
to the institution.
    This does not mean, however, that a financial institution's methods 
for overseeing its service provider arrangements will be the same for 
every provider. As explained in the discussion of paragraph III.D., a 
financial institution's oversight responsibilities will be shaped by 
the institution's analysis of the risks posed by a given service 
provider. If a service provider is subject to a code of conduct that 
imposes a duty to protect customer information consistent with the 
objectives of these Guidelines, a financial institution may take that 
duty into account when deciding what level of oversight it should 
provide.
    Moreover, a financial institution will be responsible under the 
final Guidelines for overseeing its service provider arrangements only 
when the service is provided directly to the financial institution. The 
Agencies clarified this point by amending the definition of ``service 
provider'' in the final Guidelines to state that it applies only to a 
person or entity that maintains, processes, or otherwise is permitted 
access to customer information through its provision of services 
directly to the financial institution. Thus, for instance, a payment 
intermediary involved in the collection of a check but that has no 
correspondent relationship with a financial institution would not be 
considered a service provider of that financial institution under this 
rule. By contrast, a financial institution's correspondent bank would 
be considered its service provider. Nevertheless, the financial 
institution may take into account the fact that the correspondent bank 
is itself a financial institution that is subject to security standards 
under section 501(b) when it determines the appropriate level of 
oversight for that service provider.\7\
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    \7\ Similarly, in the case of a service provider that is not 
subject to these Guidelines but is subject to standards adopted by 
its primary regulator under section 501(b) of the G-L-B Act, a 
financial institution may take that fact into consideration when 
deciding what level of oversight is appropriate for that service 
provider.
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    In situations where a service provider hires a subservicer,\8\ the 
subservicer would not be a ``service provider'' under the final 
Guidelines. The Agencies recognize that it would be inappropriate to 
impose obligations on a financial institution to select and monitor 
subservicers in situations where the financial institution has no 
contractual relationship with that person or entity. When conducting 
due diligence in selecting its service providers (see discussion of 
paragraph III.D., below), however, a financial institution must 
determine that the service provider has adequate controls to ensure 
that the subservicer will protect the customer information in a way 
that meets the objectives of these Guidelines.
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    \8\ The term ``subservicer'' means any person who has access to 
an institution's customer information through its provision of 
services to the service provider and is not limited to mortgage 
subservicers.
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II. Standards for Safeguarding Customer Information

II.A. Information Security Program

    The proposed Guidelines described the Agencies' expectations for 
the creation, implementation, and maintenance of a comprehensive 
information security program. As noted in the proposal, this program 
must include administrative, technical, and physical safeguards 
appropriate to the size and complexity of the institution and the 
nature and scope of its activities.
    Several commenters representing large and complex organizations 
were concerned that the term ``comprehensive information security 
program'' required a single and uniform document that must apply to all 
component parts of the organization. In response, the Agencies note 
that a program that includes administrative, technical, and physical 
safeguards will, in many instances, be composed of more than one 
document. Moreover, use of this term does not require that all parts of 
an organization implement a uniform program. However, the Agencies will 
expect an institution to coordinate all the elements of its information 
security program. Where the elements of the program are dispersed 
throughout the institution, management should be aware of these 
elements and their locations. If they are not maintained on a 
consolidated basis, management should have an ability to retrieve the 
current documents from those responsible for the overall coordination 
and ongoing evaluation of the program.
    The Board received comment on its proposal to revise the appendix 
to Regulation Y regarding the provision that would require a bank 
holding company to ensure that each of its subsidiaries is subject to a 
comprehensive information security program.\9\ This comment urged the 
Board to eliminate that provision and argued, in part, that the 
requirement assumes that a bank holding company has the power to impose 
such controls upon its subsidiary companies. These commenters 
recommended, instead, that the standards should be limited to customer 
information in the possession or control of the bank holding company.
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    \9\ The appendix provided that the proposed Guidelines would be 
applicable to customer information maintained by or on behalf of 
bank holding companies and their nonbank subsidiaries or affiliates 
(except brokers, dealers, persons providing insurance, investment 
companies, and investment advisors) for which the Board has 
supervisory authority. See 65 FR 39484 (June 26, 2000).
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    Under the Bank Holding Company Act of 1956 and the Board's 
Regulation Y, a subsidiary is presumed to be controlled directly or 
indirectly by the holding company. 12 U.S.C. 1841(d); 12 CFR 225.2(o). 
Moreover, the Board believes that a bank holding company is ultimately 
responsible for ensuring that its subsidiaries comply with the 
standards set forth under these Guidelines. The Board recognizes, 
however, that a bank holding company may satisfy its obligations under 
section 501 of the GLB Act through a variety of measures, such as by 
including a subsidiary within the scope of its information security 
program or by causing the subsidiary to implement a separate 
information security program in accordance with these Guidelines.

II.B. Objectives

    Paragraph II.B. of the proposed Guidelines described the objectives 
that each financial institution's information security program should 
be designed to achieve. These objectives tracked the objectives as 
stated in section 501(b)(1)-(3), adding only that the security

[[Page 8620]]

program is to protect against unauthorized access that could risk the 
safety and soundness of the institution. The Agencies requested comment 
on whether there are additional or alternative objectives that should 
be included in the Guidelines.
    The Agencies received several comments on this proposed paragraph, 
most of which objected to language that, in the commenters' view, 
required compliance with objectives that were impossible to meet. Many 
commenters stated, for instance, that no information security program 
can ensure that there will be no problems with the security or 
confidentiality of customer information. Others criticized the 
objective that required protection against any anticipated threat or 
hazard. A few commenters questioned the objective of protecting against 
unauthorized access that could result in inconvenience to a customer, 
while others objected to the addition of the safety and soundness 
standard noted above.
    The Agencies do not believe the statute mandates a standard of 
absolute liability for a financial institution that experiences a 
security breach. Thus, the Agencies have clarified these objectives by 
stating that each security program is to be designed to accomplish the 
objectives stated. With the one exception discussed below, the Agencies 
have otherwise left unchanged the statement of the objectives, given 
that these objectives are identical to those set out in the statute.
    In response to comments that objected to the addition of the safety 
and soundness standard, the Agencies have deleted that reference in 
order to make the statement of objectives identical to the objectives 
identified in the statute. The Agencies believe that risks to the 
safety and soundness of a financial institution may be addressed 
through other supervisory or regulatory means, making it unnecessary to 
expand the statement of objectives in this rulemaking.
    Some commenters asked for clarification of a financial 
institution's responsibilities when a customer authorizes a third party 
to access that customer's information. For purposes of the Guidelines, 
access to or use of customer information is not ``unauthorized'' access 
if it is done with the customer's consent. When a customer gives 
consent to a third party to access or use that customer's information, 
such as by providing the third party with an account number, PIN, or 
password, the Guidelines do not require the financial institution to 
prevent such access or monitor the use or redisclosure of the 
customer's information by the third party. Finally, unauthorized access 
does not mean disclosure pursuant to one of the exceptions in the 
Privacy Rule.

III. Develop and Implement Information Security Program

III.A. Involve the Board of Directors

    Paragraph III.A. of the proposal described the involvement of the 
board and management in the development and implementation of an 
information security program. As explained in the proposal, the board's 
responsibilities are to: (1) Approve the institution's written 
information security policy and program; and (2) oversee efforts to 
develop, implement, and maintain an effective information security 
program, including reviewing reports from management. The proposal also 
laid out management's responsibilities for developing, implementing, 
and maintaining the security program.
    The Agencies received a number of comments regarding the 
requirement of board approval of the information security program. Some 
commenters stated that each financial institution should be allowed to 
decide for itself whether to obtain board approval of its program. 
Others suggested that approval by either a board committee or at the 
holding company level might be appropriate. Still others suggested 
modifying the Guidelines to require only that the board approve the 
initial information security program and delegate subsequent review and 
approval of the program to either a committee or an individual.
    The Agencies believe that a financial institution's overall 
information security program is critical to the safety and soundness of 
the institution. Therefore, the final Guidelines continue to place 
responsibility on an institution's board to approve and exercise 
general oversight over the program. However, the Guidelines allow the 
entire board of a financial institution, or an appropriate committee of 
the board to approve the institution's written security program. In 
addition, the Guidelines permit the board to assign specific 
implementation responsibilities to a committee or an individual.
    One commenter suggested that the Guidelines be revised to provide 
that if a holding company develops, approves, and oversees the 
information security program that applies to its bank and nonbank 
subsidiaries, there should be no separate requirement for each 
subsidiary to do the same thing, as long as those subsidiaries agree to 
abide by the holding company's security program. The Agencies agree 
that subsidiaries within a holding company can use the security program 
developed at the holding company level. However, if subsidiary 
institutions choose to use a security program developed at the holding 
company level, the board of directors or an appropriate committee at 
each subsidiary institution must conduct an independent review to 
ensure that the program is suitable and complies with the requirements 
prescribed by the subsidiary's primary regulator. See 12 U.S.C. 505. 
Once the subsidiary institution's board, or a committee thereof, has 
approved the security program, it must oversee the institution's 
efforts to implement and maintain an effective program.
    The Agencies also received comments suggesting that use of the term 
``oversee'' conveyed the notion that a board is expected to be involved 
in day-to-day monitoring of the development, implementation, and 
maintenance of an information security program. The Agencies' use of 
the term ``oversee'' is meant to convey a board's conventional 
supervisory responsibilities. Day-to-day monitoring of any aspect of an 
information security program is a management responsibility. The final 
Guidelines reflect this by providing that the board must oversee the 
institution's information security program but may assign specific 
responsibility for its implementation.
    The Agencies invited comment on whether the Guidelines should 
require that the board designate a Corporate Information Security 
Officer or other responsible individual who would have the authority, 
subject to the board's approval, to develop and administer the 
institution's information security program. The Agencies received a 
number of comments suggesting that the Agencies should not require the 
creation of a new position for this purpose. Some financial 
institutions also stated that hiring one or more additional staff for 
this purpose would impose a significant burden. The Agencies believe 
that a financial institution will not need to create a new position 
with a specific title for this purpose, as long as the institution has 
adequate staff in light of the risks to its customer information. 
Regardless of whether new staff are added, the lines of authority and 
responsibility for development, implementation, and administration of a 
financial institution's information security program need to be well 
defined and clearly articulated.\10\
---------------------------------------------------------------------------

    \10\ The Agencies note that other regulations already require a 
financial institution to designate a security officer for different 
purposes. See 12 CFR 21.2; 12 CFR 208.61(b).

---------------------------------------------------------------------------

[[Page 8621]]

    The proposal identified three responsibilities of management in the 
development of an information security program. They were to: (1) 
Evaluate the impact on a financial institution's security program of 
changing business arrangements and changes to customer information 
systems; (2) document compliance with these Guidelines; and (3) keep 
the board informed of the overall status of the institution's 
information security program. A few commenters objected to the Agencies 
assigning specific tasks to management. These commenters did not object 
to the tasks per se, but suggested that the Agencies allow an 
institution's board and management to decide who within the institution 
is to carry out the tasks.
    The Agencies agree that a financial institution is in the best 
position to determine who should be assigned specific roles in 
implementing the institution's security program. Accordingly, the 
Agencies have deleted the separate provision assigning specific roles 
to management. The responsibilities that were contained in this 
provision are now included in other paragraphs of the Guidelines.

III.B. Assess Risk

    Paragraph III.B. of the proposal described the risk assessment 
process to be used in the development of the information security 
program. Under the proposal, a financial institution was to identify 
and assess the risks to customer information. As part of that 
assessment, the institution was to determine the sensitivity of the 
information and the threats to the institution's systems. The 
institution also was to assess the sufficiency of its policies, 
procedures, systems, and other arrangements in place to control risk. 
Finally, the institution was to monitor, evaluate, and adjust its risk 
assessment in light of changes in areas identified in the proposal.
    The Agencies received several comments on these provisions, most of 
which focused on the requirement that financial institutions do a 
sensitivity analysis. One commenter noted that ``customer information'' 
is defined to mean ``nonpublic personal information'' as defined in the 
G-L-B Act, and that the G-L-B Act provides the same level of coverage 
for all nonpublic personal information. The commenter stated that it is 
therefore unclear how the level of sensitivity would affect an 
institution's obligations with respect to the security of this 
information.
    While the Agencies agree that all customer information requires 
protection, the Agencies believe that requiring all institutions to 
afford the same degree of protection to all customer information may be 
unnecessarily burdensome in many cases. Accordingly, the final 
Guidelines continue to state that institutions should take into 
consideration the sensitivity of customer information. Disclosure of 
certain information (such as account numbers or access codes) might be 
particularly harmful to customers if the disclosure is not authorized. 
Individuals who try to breach the institution's security systems may be 
likely to target this type of information. When such information is 
housed on systems that are accessible through public telecommunications 
networks, it may require more and different protections, such as 
encryption, than if it were located in a locked file drawer. To provide 
flexibility to respond to these different security needs in the way 
most appropriate, the Guidelines confer upon institutions the 
discretion to determine the levels of protection necessary for 
different categories of information. Institutions may treat all 
customer information the same, provided that the level of protection is 
adequate for all the information.
    Other commenters suggested that the risk assessment requirement be 
tied to reasonably foreseeable risks. The Agencies agree that the 
security program should be focused on reasonably foreseeable risks and 
have amended the final Guidelines accordingly.
    The final Guidelines make several other changes to this paragraph 
to improve the order of the Guidelines and to eliminate provisions that 
were redundant in light of responsibilities outlined elsewhere. For 
instance, while the proposal stated that the risk assessment function 
included the need to monitor for relevant changes to technology, 
sensitivity of customer information, and threats to information 
security and make adjustments as needed, that function has been 
incorporated into the discussion of managing and controlling risk in 
paragraphs III.C.3. and III.E.
    Thus, under the Guidelines as adopted, a financial institution 
should identify the reasonably foreseeable internal and external 
threats that could result in unauthorized disclosure, misuse, 
alteration, or destruction of customer information or customer 
information systems. Next, the risk assessment should consider the 
potential damage that a compromise of customer information from an 
identified threat would have on the customer information, taking into 
consideration the sensitivity of the information to be protected in 
assessing the potential damage. Finally, a financial institution should 
conduct an assessment of the sufficiency of existing policies, 
procedures, customer information systems, and other arrangements 
intended to control the risks it has identified.

III.C. Manage and Control Risk

    Paragraph III.C. describes the steps an institution should take to 
manage and the control risks identified in paragraph III.B.
    Establish policies and procedures (III.C.1.). Paragraph III.C.1 of 
the proposal described the elements of a comprehensive risk management 
plan designed to control identified risks and to achieve the overall 
objective of ensuring the security and confidentiality of customer 
information. It identified eleven factors an institution should 
consider in evaluating the adequacy of its policies and procedures to 
effectively manage these risks.
    The Agencies received a large number of comments on this paragraph. 
Most of the comments were based on a perception that every institution 
would have to adopt every security measure listed in proposed 
III.C.1.a.-k. as part of the institution's policies and procedures. In 
particular, a number of commenters were concerned that the proposed 
Guidelines would require the encryption of all customer data.
    The Agencies did not intend for the security measures listed in 
paragraph III.C.1. to be seen as mandatory for all financial 
institutions and for all data. Rather, the Agencies intended only that 
an institution would consider whether the protections listed were 
appropriate for the institution's particular circumstances, and, if so, 
adopt those identified as appropriate. The Agencies continue to believe 
that these elements may be adapted by institutions of varying sizes, 
scope of operations, and risk management structures. Consistent with 
that approach, the manner of implementing a particular element may vary 
from institution to institution. For example, while a financial 
institution that offers Internet-based transaction accounts may 
conclude that encryption is appropriate, a different institution that 
processes all data internally and does not have a transactional web 
site may consider other kinds of access restrictions that are adequate 
to maintain the confidentiality of customer information. To underscore 
this point, the final Guidelines have been amended to state that each 
financial institution must consider whether the security elements 
discussed in paragraphs III.C.1.a.-h. are appropriate for the 
institution and, if so, adopt those

[[Page 8622]]

elements an institution concludes are appropriate.
    The Agencies invited comment on the degree of detail that should be 
included in the Guidelines regarding the risk management program, 
including which elements should be specified in the Guidelines, and any 
other components of a risk management program that should be listed. 
With the exception of those commenters who thought some or all of the 
elements of the risk management program were intended to be mandatory 
for all financial institutions, the comments supported the level of 
detail conveyed in the proposed Guidelines. The Agencies have adopted 
the provision regarding management and control of risks with the 
changes discussed below. Comments addressing proposed security measures 
that have been adopted without change also are discussed below.
    Access rights. The Agencies received a number of comments 
suggesting that the reference to ``access rights to customer 
information'' in paragraph III.C.1.a. of the proposal could be 
interpreted to mean providing customers with a right of access to 
financial information. The reference was intended to refer to 
limitations on employee access to customer financial information, not 
to customer access to financial information. However, this element has 
been deleted since limitations on employee access are covered 
adequately in other parts of paragraph III.C.1. (See discussion of 
``access controls'' in paragraph III.C.1.a. of the final Guidelines, 
below.)
    Access controls. Paragraph III.C.1.b. of the proposed Guidelines 
required a financial institution to consider appropriate access 
controls when establishing its information security policies and 
procedures. These controls were intended to address unauthorized access 
to an institution's customer information by anyone, whether or not 
employed by the institution.
    The Agencies believe that this element sufficiently addresses the 
concept of unauthorized access, regardless of who is attempting to 
obtain access. This would cover, for instance, attempts through pretext 
calling to gather information about a financial institution's 
customers.\11\ The Agencies have amended the final Guidelines to refer 
specifically to pretext calling in new III.C.1.a. The Agencies do not 
intend for the final Guidelines to require a financial institution to 
provide its customers with access to information the institution has 
gathered. Instead, the provision in the final Guidelines addressing 
access is limited solely to the issue of preventing unauthorized access 
to customer information.
---------------------------------------------------------------------------

    \11\ Pretext calling is a fraudulent means of obtaining an 
individual's personal information by persons posing as bank 
customers.
---------------------------------------------------------------------------

    The Agencies have deleted the reference in the proposed paragraph 
III.C.1.b. to providing access to authorized companies. This change was 
made partly in response to commenters who objected to what they 
perceived to be an inappropriate expansion of the scope of the 
Guidelines to include company records and partly in recognition of the 
fact that access to records would be obtained, in any case, only 
through requests by individuals. The final Guidelines require an 
institution to consider the need for access controls in light of the 
institution's various customer information systems and adopt such 
controls as appropriate.
    Dual control procedures. Paragraph III.C.1.f. of the proposed 
Guidelines stated that financial institutions should consider dual 
control procedures, segregation of duties, and employee background 
checks for employees with responsibility for, or access to, customer 
information. Most of the comments on this paragraph focused on dual 
control procedures, which refers to a security technique that uses two 
or more separate persons, operating together to protect sensitive 
information. Both persons are equally responsible for protecting the 
information and neither can access the information alone.
    According to one commenter, dual controls are part of normal audit 
procedures and did not need to be restated. Other commenters suggested 
that dual control procedures are not always necessary, implying that 
these procedures are not the norm. The Agencies recognize that dual-
control procedures are not necessary for all activities, but might be 
appropriate for higher-risk activities. Given that the Guidelines state 
only that dual control procedures should be considered by a financial 
institution and adopted only if appropriate for the institution, the 
Agencies have retained a reference to dual control procedures in the 
items to be considered (paragraph III.C.1.e).
    Oversight of servicers. Paragraph III.C.1.g. of the proposal was 
deleted. Instead, the final Guidelines consolidate the provisions 
related to service providers in paragraph III.D.
    Physical hazards and technical failures. The paragraphs of the 
proposed Guidelines addressing protection against destruction due to 
physical hazards and technological failures (paragraphs III.C.1.j. and 
k., respectively, of the proposal) have been consolidated in paragraph 
III.C.1.h. of the final Guidelines. The Agencies believe that this 
change improves clarity and recognizes that disaster recovery from 
environmental and technological failures often involve the same 
considerations.
    Training (III.C.2.). Paragraph III.C.2. of the proposed Guidelines 
provided that an institution's information security program should 
include a training component designed to train employees to recognize, 
respond to, and report unauthorized attempts to obtain customer 
information. The Agencies received several comments suggesting that 
this provision directed staff of financial institutions to report 
suspected attempts to obtain customer information to law enforcement 
agencies rather than to the management of the financial institution. 
The Agencies did not intend that result, and note that nothing in the 
Guidelines alters other applicable requirements and procedures for 
reporting suspicious activities. For purposes of these Guidelines, the 
Agencies believe that, as part of a training program, staff should be 
made aware both of federal reporting requirements and an institution's 
procedures for reporting suspicious activities, including attempts to 
obtain access to customer information without proper authority.
    The final Guidelines amend the provision governing training to 
state that a financial institution's information security program 
should include a training component designed to implement the 
institution's information security policies and procedures. The 
Agencies believe that the appropriate focus for the training should be 
on compliance with the institution's security program generally and not 
just on the limited aspects identified in proposed III.C.2. The 
provisions governing reporting have been moved to paragraph III.C.1.g., 
which addresses response programs in general.
    Testing (III.C.3.). Paragraph III.C.3. of the proposed Guidelines 
provided that an information security program should include regular 
testing of key controls, systems, and procedures. The proposal provided 
that the frequency and nature of the testing should be determined by 
the risk assessment and adjusted as necessary to reflect changes in 
both internal and external conditions. The proposal also provided that 
the tests are to be conducted, where appropriate, by independent third 
parties or staff independent of those that develop or maintain the 
security program. Finally, the proposal stated that test results are to 
be reviewed by independent third parties or staff independent of those 
that

[[Page 8623]]

conducted the test. The Agencies requested comment on whether specific 
types of security tests, such as penetration tests or intrusion 
detection tests, should be required.
    The most frequent comment regarding testing of key controls was 
that the Agencies should not require specific tests. Commenters noted 
that because technology changes rapidly, the tests specified in the 
Guidelines will become obsolete and other tests will become the 
standard. Consequently, according to these commenters, the Guidelines 
should identify areas where testing may be appropriate without 
requiring a financial institution to implement a specific test or 
testing procedure. Several commenters noted that periodic testing of 
information security controls is a sound idea and is an appropriate 
standard for inclusion in these Guidelines.
    The Agencies believe that a variety of tests may be used to ensure 
the controls, systems, and procedures of the information security 
program work properly and also recognize that such tests will 
progressively change over time. The Agencies believe that the 
particular tests that may be applied should be left to the discretion 
of management rather than specified in advance in these Guidelines. 
Accordingly, the final Guidelines do not require a financial 
institution to apply specific tests to evaluate the key control systems 
of its information security program.
    The Agencies also invited comment regarding the appropriate degree 
of independence that should be specified in the Guidelines in 
connection with the testing of information security systems and the 
review of test results. The proposal asked whether the tests or reviews 
of tests be conducted by persons who are not employees of the financial 
institution. The proposal also asked whether employees may conduct the 
testing or may review test results, and what measures, if any, are 
appropriate to assure their independence.
    Some commenters interpreted the proposal as requiring three 
separate teams of people to provide sufficient independence to control 
testing: one team to operate the system; a second team to test the 
system; and a third team to review test results. This approach, they 
argued, would be too burdensome and expensive to implement. The 
Agencies believe that the critical need for independence is between 
those who operate the systems and those who either test them or review 
the test results. Therefore, the final Guidelines now require that 
tests should be conducted or reviewed by persons who are independent of 
those who operate the systems, including the management of those 
systems.
    Whether a financial institution should use third parties to either 
conduct tests or review their results depends upon a number of factors. 
Some financial institutions may have the capability to thoroughly test 
certain systems in-house and review the test results but will need the 
assistance of third party testers to assess other systems. For example, 
an institution's internal audit department may be sufficiently trained 
and independent for the purposes of testing certain key controls and 
providing test results to decision makers independent of system 
managers. Some testing may be conducted by third parties in connection 
with the actual installation or modification of a particular program. 
In each instance, management needs to weigh the benefits of testing and 
test review by third parties against its own resources in this area, 
both in terms of expense and reliability.
    Ongoing adjustment of program. Paragraph III.C.4. of the proposal 
required an institution to monitor, evaluate and adjust, as 
appropriate, the information security program in light of any relevant 
changes in technology, the sensitivity of its customer information, and 
internal or external threats to information security. This provision 
was previously located in the paragraph titled ``Manage and Control 
Risk''. While there were no comments on this provision, the Agencies 
wanted to highlight this concept and clarify that this provision is 
applicable to an institutions' entire information security program. 
Therefore, this provision is now separately identified as new paragraph 
III.E. of the final Guidelines, discussed below.

III.D. Oversee Service Provider Arrangements

    The Agencies' proposal addressed service providers in two 
provisions. The Agencies provided that an institution should consider 
contract provisions and oversight mechanisms to protect the security of 
customer information maintained or processed by service providers as 
one of the proposed elements to be considered in establishing risk 
management policies and procedures (proposed paragraph III.C.1.g.). 
Additionally, proposed paragraph III.D. provided that, when an 
institution uses an outsourcing arrangement, the institution would 
continue to be responsible for safeguarding customer information that 
it gives to the service provider. That proposed paragraph also provided 
that the institution must use due diligence in managing and monitoring 
the outsourcing arrangement to confirm that its service providers would 
protect customer information consistent with the Guidelines.
    The Agencies requested comment on the appropriate treatment of 
outsourcing arrangements, such as whether industry best practices are 
available regarding effective monitoring of service provider security 
precautions, whether service providers accommodate requests for 
specific contract provisions regarding information security, and, to 
the extent that service providers do not accommodate these requests, 
whether financial institutions implement effective information security 
programs. The Agencies also requested comment on whether institutions 
would find it helpful if the Guidelines contained specific contract 
provisions requiring service provider performance standards in 
connection with the security of customer information.
    The Agencies received one example of best practices, but the 
commenter did not recommend that they be included in the Guidelines. 
While some commenters suggested that the Guidelines include best 
practices, other commenters stated that, given the various types of 
financial institutions, there could be a variety of best industry 
practices. Another commenter stated that best practices could become 
minimum requirements that result in inappropriate burdens. The Agencies 
recognize that information security practices are likely to evolve 
rapidly, and thus believe that it is inappropriate to include best 
practices in the final Guidelines.
    Commenters were mixed as to whether service providers are receptive 
to contract modifications to protect customer information. Commenters 
were uniform, however, in stating that an institution's obligation to 
monitor service providers should not include on-site audits by the 
institution or its agent. The commenters stated that, in addition to 
the expense for financial institutions, the procedure would place an 
inordinate burden on many service providers that process customer 
information for multiple institutions. Several commenters noted that 
the service providers often contract for audits of their systems and 
that institutions should be able to rely upon those testing procedures. 
Some commenters recommended that an institution's responsibility for 
information given to service providers require only that the 
institution enter into appropriate contractual arrangements. However, 
commenters also indicated that requiring specific

[[Page 8624]]

contract provisions would not be consistent with the development of 
flexible Guidelines and recommended against the inclusion of specific 
provisions.
    The Agencies believe that financial institutions should enter into 
appropriate contracts, but also believe that these contracts, alone, 
are not sufficient. Therefore, the final Guidelines, in paragraph 
III.D., include provisions relating to selecting, contracting with, and 
monitoring service providers.
    The final Guidelines require that an institution exercise 
appropriate due diligence in the selection of service providers. Due 
diligence should include a review of the measures taken by a service 
provider to protect customer information. As previously noted in the 
discussion of ``service provider'', it also should include a review of 
the controls the service provider has in place to ensure that any 
subservicer used by the service provider will be able to meet the 
objectives of these Guidelines.
    The final Guidelines also require that a financial institution have 
a contract with each of its service providers that requires each 
provider to implement appropriate measures designed to meet the 
objectives of these Guidelines (as stated in paragraph II.B.). This 
provision does not require a service provider to have a security 
program in place that complies with each paragraph of these Guidelines. 
Instead, by stating that a service provider's security measures need 
only achieve the objectives of these Guidelines, the Guidelines provide 
flexibility for a service provider's information security measures to 
differ from the program that a financial institution implements. The 
Agencies have provided a two-year transition period during which 
institutions may bring their outsourcing contracts into compliance. 
(See discussion of paragraph III.F.) The Agencies have not included 
model contract language, given our belief that the precise terms of 
service contracts are best left to the parties involved.
    Each financial institution must also exercise an appropriate level 
of oversight over each of its service providers to confirm that the 
service provider is implementing the provider's security measures. The 
Agencies have amended the Guidelines as proposed to include greater 
flexibility with regard to the monitoring of service providers. A 
financial institution need only monitor its outsourcing arrangements if 
such oversight is indicated by an institution's own risk assessment. 
The Agencies recognize that not all outsourcing arrangements will need 
to be monitored or monitored in the same fashion. Some service 
providers will be financial institutions that are directly subject to 
these Guidelines or other standards promulgated by their primary 
regulator under section 501(b). Other service providers may already be 
subject to legal and professional standards that require them to 
safeguard the institution's customer information. Therefore, the final 
Guidelines permit an institution to do a risk assessment taking these 
factors into account and determine for themselves which service 
providers will need to be monitored.
    Even where monitoring is warranted, the Guidelines do not require 
on-site inspections. Instead, the Guidelines state that this monitoring 
can be accomplished, for example, through the periodic review of the 
service provider's associated audits, summaries of test results, or 
equivalent measures of the service provider. The Agencies expect that 
institutions will arrange, when appropriate, through contracts or 
otherwise, to receive copies of audits and test result information 
sufficient to assure the institution that the service provider 
implements information security measures that are consistent with its 
contract provisions regarding the security of customer information. The 
American Institute of Certified Public Accountants Statement of 
Auditing Standards No. 70, captioned ``Reports on the Processing of 
Transactions by Service Organizations'' (SAS 70 report), is one 
commonly used external audit tool for service providers. Information 
contained in an SAS 70 report may enable an institution to assess 
whether its service provider has information security measures that are 
consistent with representations made to the institution during the 
service provider selection process.

III.E. Adjust the Program

    Paragraphs III.B.3 and III.C.4. of the proposed Guidelines both 
addressed a financial institution's obligations when circumstances 
change. Both paragraph III.B.3. (which set forth management's 
responsibilities with respect to its risk assessment) and paragraph 
III.C.4. (which focused on the adequacy of an institution's information 
security program) identified the possible need for changes to an 
institution's program in light of relevant changes to technology, the 
sensitivity of customer information, and internal or external threats 
to the information security.
    The Agencies received no comments objecting to the statements in 
these paragraphs of the need to adjust a financial institution's 
program as circumstances change. While the Agencies have not changed 
the substance of these provisions in the final Guidelines, we have, 
however, made a stylistic change to simplify the Guidelines. The final 
Guidelines combine, in paragraph III.E., the provisions previously 
stated separately. Consistent with the proposal, this paragraph 
provides that each financial institution must monitor, evaluate, and 
adjust its information security program in light of relevant changes in 
technology, the sensitivity of its customer information, internal or 
external threats to information, and the institution's own changing 
business arrangements. This would include an analysis of risks to 
customer information posed by new technology (and any needed program 
adjustments) before a financial institution adopts the technology in 
order to determine whether a security program remains adequate in light 
of the new risks presented.\12\
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    \12\ For additional information concerning how a financial 
institution should identify, measure, monitor, and control risks 
associated with the use of technology, see OCC Bulletin 98-3 
concerning technology risk management, which may be obtained on the 
Internet at http://www.occ.gov/ftp/bulletin/98-3.txt.; Federal 
Reserve SR Letter 98-9 on Assessment of Information Technology in 
the Risk-Focused Frameworks for the Supervision of Community Banks 
and Large Complex Banking Organizations, April 20, 1998, http://
www.federalreserve.gov/boarddocs/SRLETTERS/1998/SR9809.HTM; FDIC FIL 
99-68 concerning risk assessment tools and practices for information 
security systems at http://www.fdic.gov/news/news/financial/1999/
fil9968.html.; OTS's CEO Letter 70, Statement on Retail On-Line 
Personal Computer Banking, (June 23, 1997), available at http://
www.ots.treas.gov/docs/25070.pdf.
---------------------------------------------------------------------------

III.F. Report to the Board

    Paragraph III.A.2.c. of the proposal set out management's 
responsibilities for reporting to its board of directors. As previously 
discussed, the final Guidelines have removed specific requirements for 
management, but instead allow a financial institution to determine who 
within the organization should carry out a given responsibility. The 
board reporting requirement thus has been amended to require that a 
financial institution report to its board, and that this report be at 
least annual. Paragraph III.F. of the final Guidelines sets out this 
requirement.
    The Agencies invited comment regarding the appropriate frequency of 
reports to the board, including whether reports should be monthly, 
quarterly, or annually. The Agencies received a number of comments 
recommending that no specific frequency be mandated by the Guidelines 
and that each financial institution be permitted to establish its own 
reporting period.

[[Page 8625]]

Several commenters stated that if a reporting period is required, then 
it should be not less than annually unless some material event triggers 
the need for an interim report.
    The Agencies expect that in all cases, management will provide its 
board (or the appropriate board committee) a written report on the 
information security program consistent with the Guidelines at least 
annually. Management of financial institutions with more complex 
information systems may find it necessary to provide information to the 
board (or a committee) on a more frequent basis. Similarly, more 
frequent reporting will be appropriate whenever a material event 
affecting the system occurs or a material modification is made to the 
system. The Agencies expect that the content of these reports will vary 
for each financial institution, depending upon the nature and scope of 
its activities as well as the different circumstances that it will 
confront as it implements and maintains its program.

III.G. Implement the Standards

    Paragraph III.E. of the proposal described the timing requirements 
for the implementation of these standards. It provided that each 
financial institution is to take appropriate steps to fully implement 
an information security program pursuant to these Guidelines by July 1, 
2001.
    The Agencies received several comments suggesting that the proposed 
effective date be extended for a period of 12 to 18 months because 
financial institutions are currently involved in efforts to meet the 
requirements of the final Privacy Rule by the compliance deadline, July 
1, 2001. The Agencies believe that the dates for full compliance with 
these Guidelines and the Privacy Rule should coincide. Financial 
institutions are required, as part of their initial privacy notices, to 
disclose their policies and practices with respect to protecting the 
confidentiality and security of nonpublic personal information. See 
Sec. __.6(a)(8). Each Agency has provided in the appendix to its 
Privacy Rule that a financial institution may satisfy this disclosure 
requirement by advising its customers that the institution maintains 
physical, electronic, and procedural safeguards that comply with 
federal standards to guard customers' nonpublic personal information. 
See appendix A-7. The Agencies believe that this disclosure will be 
meaningful only if the final Guidelines are effective when the 
disclosure is made. If the effective date of these Guidelines is 
extended beyond July 1, 2001, then a financial institution may be 
placed in the position of providing an initial notice regarding 
confidentiality and security and thereafter amending the privacy policy 
to accurately refer to the federal standards once they became 
effective. For these reasons, the Agencies have retained July 1, 2001, 
as the effective date for these Guidelines.
    However, the Agencies have included a transition rule for contracts 
with service providers. The transition rule, which parallels a similar 
provision in the Privacy Rule, provides a two-year period for 
grandfathering existing contracts. Thus a contract entered into on or 
before the date that is 30 days after publication of the final 
Guidelines in the Federal Register satisfies the provisions of this 
part until July 1, 2003, even if the contract does not include 
provisions delineating the servicer's duties and responsibilities to 
protect customer information described in paragraph III.D.
    Location of Guidelines: These guidelines have been published as an 
appendix to each Agency's Standards for Safety and Soundness. For the 
OCC, those regulations appear at 12 CFR part 30; for the Board, at 12 
CFR part 208; for the FDIC, at 12 CFR part 364; and for the OTS, at 12 
CFR part 570. The Board also is amending 12 CFR parts 211 and 225 to 
apply the Guidelines to other institutions that it supervises.
    The Agencies will apply the rules already in place to require the 
submission of a compliance plan in appropriate circumstances. For the 
OCC, those regulations appear at 12 CFR part 30; for the Board at 12 
CFR part 263; for the FDIC at 12 CFR part 308, subpart R; and for the 
OTS at 12 CFR part 570. The final rules make conforming changes to the 
regulatory text of these parts.
    Rescission of Year 2000 Standards for Safety and Soundness: The 
Agencies previously issued guidelines establishing Year 2000 safety and 
soundness standards for insured depository institutions pursuant to 
section 39 of the FDI Act. Because the events for which these standards 
were issued have passed, the Agencies have concluded that the 
guidelines are no longer necessary and proposed to rescind the 
standards as part of this rulemaking. The Agencies requested comment on 
whether rescission of these standards is appropriate. Those commenters 
responding to this request were unanimous in recommending the 
rescission of the Year 2000 Standards, and the Agencies have rescinded 
these standards. These standards appeared for the OCC at 12 CFR part 
30, appendix B and C; for the Board at 12 CFR part 208, appendix D-2; 
for the FDIC at 12 CFR part 364, appendix B; and for the OTS at 12 CFR 
part 570, appendix B. Accordingly, the Agencies hereby rescind the Year 
2000 Standards for Safety and Soundness, effective thirty (30) days 
after the publication date of this notice of the joint final rule.

IV. Regulatory Analysis

A. Paperwork Reduction Act

    The Agencies have determined that this rule does not involve a 
collection of information pursuant to the provisions of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.).

B. Regulatory Flexibility Act

    OCC: Under the Regulatory Flexibility Act (RFA), the OCC must 
either provide a Final Regulatory Flexibility Analysis (FRFA) with 
these final Guidelines or certify that the final Guidelines ``will not, 
if promulgated'', have a significant economic impact on a substantial 
number of small entities.\13\ The OCC has evaluated the effects of 
these Guidelines on small entities and is providing the following FRFA.
---------------------------------------------------------------------------

    \13\ The RFA defines the term ``small entity'' in 5 U.S.C. 601 
by reference to a definition published by the Small Business 
Administration (SBA). The SBA has defined a ``small entity'' for 
banking purposes as a national or commercial bank, or savings 
institution with less than $100 million in assets. See 13 CFR 
121.201.
---------------------------------------------------------------------------

    Although the OCC specifically sought comment on the costs to small 
entities of establishing and operating information security programs, 
no commenters provided specific cost information. Instead, commenters 
confirmed the OCC's conclusion that most if not all institutions 
already have information security programs in place, because the 
standards reflect good business practices and existing OCC and FFIEC 
guidance. Some comments indicated, however, that institutions will have 
to formalize or enhance their information security programs. 
Accordingly, the OCC considered certifying, under section 605(b) of the 
RFA, that these Guidelines will not have a significant economic impact 
on a substantial number of small entities. However, given that the 
guidance previously issued by the OCC and the FFIEC is not completely 
identical to the Guidelines being adopted in this rulemaking, the 
Guidelines are likely to have some impact on all affected institutions. 
While the OCC believes that this impact will not be substantial in the 
case of most small entities, we nevertheless have prepared the 
following FRFA.

[[Page 8626]]

1. Reasons for Final Action
    The OCC is issuing these Guidelines under section 501(b) of the G-
L-B Act. Section 501(b) requires the OCC to publish standards for 
financial institutions subject to its jurisdiction relating to 
administrative, technical and physical standards to: (1) insure the 
security and confidentiality of customer records and information; (2) 
protect against any anticipated threats or hazards to the security or 
integrity of such records; and (3) protect against unauthorized access 
to or use of such records or information which could result in 
substantial harm or inconvenience to any customer.
2. Objectives of and Legal Basis for Final Action
    The objectives of the Guidelines are described in the Supplementary 
Information section above. The legal bases for the Guidelines are: 12 
U.S.C. 93a, 1818, 1831p-1, and 3102(b) and 15 USC 6801 and 6805(b)(1).
3. Small Entities to Which the Rule Will Apply
    The OCC's final Guidelines will apply to approximately 2300 
institutions, including national banks, federal branches and federal 
agencies of foreign banks, and certain subsidiaries of such entities. 
The OCC estimates that approximately 1125 of these institutions are 
small institutions with assets less than $100 million.
4. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements; Skills Required
    The Guidelines do not require any reports to the OCC, however, they 
require all covered institutions to develop and implement a written 
information security program comprised of several elements. 
Institutions must assess the risks to their customer information and 
adopt appropriate measures to control those risks. Institutions must 
then test these security measures and adjust their information security 
programs in light of any relevant changes. In addition, institutions 
must use appropriate due diligence in selecting service providers, and 
require service providers, by contract, to implement appropriate 
security measures. The Guidelines also require institutions to monitor 
their service providers, where appropriate, to confirm they have met 
their contractual obligations. Finally, the Guidelines require the 
board of directors or an appropriate committee of the board of each 
institution to approve the institution's information security program 
and to oversee its implementation. To facilitate board oversight, the 
institution must provide to the board or to the board committee a 
report, at least annually, describing the overall status of the 
institution's information security program and the institution's 
compliance with the Guidelines.
    Because the information security program described above reflects 
existing supervisory guidance, the OCC believes that most institutions 
already have the expertise to develop, implement, and maintain the 
program. However, if they have not already done so, institutions will 
have to retain the services of someone capable of assessing threats to 
the institution's customer information. Institutions that lack an 
adequate information security program also will have to have personnel 
capable of developing, implementing and testing security measures to 
address these threats. Institutions that use service providers may 
require legal skills to draft appropriate language for contracts with 
service providers.
5. Public Comment and Significant Alternatives
    The OCC did not receive any public comment on its initial 
regulatory flexibility analysis, although it did receive comments on 
the proposed Guidelines, and on the impact of the Guidelines on small 
entities in particular. The comments received by the OCC and the other 
Agencies are discussed at length in the supplementary information 
above. While some commenters suggested that the OCC exempt small 
institutions altogether, the OCC has no authority under the statute to 
do so. The discussion below reviews the changes adopted in the final 
Guidelines that will minimize the economic impact of the Guidelines on 
all businesses.
    The OCC carefully considered comments from small entities that 
encouraged the Agencies to issue guidelines that are not overly 
prescriptive, that provide flexibility in the design of an information 
security program, but that still provide small entities with some 
guidance. After considering these comments, the OCC determined that it 
is appropriate to issue the standards as Guidelines that allow each 
institution the discretion to design an information security program 
that suits its particular size and complexity and the nature and scope 
of its activities. The OCC considered issuing broader Guidelines that 
would only identify objectives to be achieved while leaving it up to 
each institution to decide what steps it should take to ensure that it 
meets these objectives. However, the OCC concluded that such broad 
guidance ultimately would be less helpful than would be guidelines that 
combine the flexibility sought by commenters with meaningful guidance 
on factors that an institution should consider and steps that the 
institution should take. The OCC also considered the utility of more 
prescriptive guidelines, but rejected that approach out of concern that 
it likely would be more burdensome, could interfere with innovation, 
and could impose requirements that would be inappropriate in a given 
situation. While the Guidelines are not overly detailed, they provide 
guidance by establishing the process an institution will need to follow 
in order to protect its customer information and by identifying 
security measures that are likely to have the greatest applicability to 
national banks in general.
    Most commenters supported the use of the more narrow definition of 
``customer'' in the Guidelines as is used in the Privacy Rule rather 
than a broad definition that would apply to all records under the 
control of a financial institution. Commenters maintained that two 
different definitions would be confusing and also inconsistent with the 
use of the term ``customer'' in section 501 of the G-L-B Act. The OCC 
considered using the broader definition, but determined that 
information security could be addressed more broadly through other 
vehicles. For the sake of consistency, the final Guidelines adopt the 
narrower definition and apply only to records of consumers who have 
established a continuing relationship with an institution under which 
the institution provides one or more financial products or services to 
the consumer to be used primarily for personal, family or household 
purposes, the definition used in the Privacy Rule.
    Many commenters criticized the list of proposed objectives for each 
financial institution's information security program which generally 
reflected the statutory objectives in section 501(b). According to 
these comments, the objectives were stated in a manner that made them 
absolute, unachievable, and therefore burdensome. The final Guidelines 
have been drafted to clarify these objectives by stating that each 
security program is to be ``designed'' to accomplish the objectives 
stated.
    Commenters wanted board involvement in the development and 
implementation of an information security program left to the 
discretion of the financial institution. Commenters also asked the OCC 
to clarify that the board may delegate to a committee responsibility 
for involvement in the

[[Page 8627]]

institution's security program. While the final Guidelines as drafted 
continue to place responsibility on an institution's board to approve 
and exercise general oversight over the program, they now clarify that 
a committee of the board may approve the institution's written security 
program. In addition, the Guidelines permit the board to assign 
specific implementation responsibilities to a committee or an 
individual.
    The OCC considered requiring an institution to designate a 
Corporate Security Officer. However, the agency agreed with commenters 
that a financial institution is in the best position to determine who 
should be assigned specific roles in implementing the institution's 
security program. Therefore, the Guidelines do not include this 
requirement.
    The proposal identifying various security measures that an 
institution should consider in evaluating the adequacy of its policies 
and procedures was criticized by many commenters. These commenters 
misinterpreted the list of measures and believed each measure to be 
mandatory. Small entities commented that these measures were overly 
comprehensive and burdensome. As discussed previously in the preamble, 
the OCC did not intend to suggest that every institution must adopt 
every one of the measures. To highlight the OCC's intention that an 
institution must determine for itself which measures will be 
appropriate for its own risk profile, the final Guidelines now clearly 
state that each financial institution must consider whether the 
security elements listed are appropriate for the institution and, if 
so, adopt those elements an institution concludes are appropriate.
    Commenters noted that testing could be burdensome and costly, 
especially for small entities. The OCC considered mandating specific 
tests, but determined that with changes in technology, such tests could 
become obsolete. Therefore, the final Guidelines permit management to 
exercise its discretion to determine the frequency and types of tests 
that need to be conducted. The OCC considered required testing or the 
review of tests to be conducted by outside auditors. The OCC determined 
that these duties could be performed effectively by an institution's 
own staff, if staff selected is sufficiently independent. Therefore, 
the Guidelines permit financial institutions to determine for 
themselves whether to use third parties to either conduct tests or 
review their results or to use staff independent of those that develop 
or maintain the institution's security program.
    Many commenters objected to provisions in the proposal requiring 
institutions to monitor their service providers. Commenters asserted 
that it would be burdensome to require them to monitor the activities 
of their service providers and that information security of service 
providers should be handled through contractual arrangements. The final 
Guidelines include greater flexibility with regard to the monitoring of 
service providers than was provided in the proposal. The final 
Guidelines recognize that some service providers will be financial 
institutions that are directly subject to these Guidelines or other 
standards promulgated under section 501(b) and that other service 
providers may already be subject to legal and professional standards 
that require them to safeguard the institution's customer information. 
Therefore, the final Guidelines permit an institution to do a risk 
assessment taking these factors into account and to determine for 
themselves which service providers will need to be monitored. Where 
monitoring is warranted, the Guidelines now specify that monitoring can 
be accomplished, for example, through the periodic review of the 
service provider's associated audits, summaries of test results, or 
equivalent measures of the service provider.
    In addition, after considering the comments about contracts with 
service providers and the effective date of the Guidelines, the OCC 
also adopted a transition rule, similar to a provision in the Privacy 
Rule, that grandfathers existing contracts for a two-year period.
    One commenter requested that smaller community banks be given 
additional time to comply with the Guidelines because having to comply 
with the new Privacy Rule and these Guidelines will put a strain on the 
resources of smaller banks. The OCC considered this request but did not 
change the effective date of the Guidelines given the importance of 
safeguarding customer information. In addition, most institutions 
already have information security programs in place, and the OCC has 
addressed this concern by adding flexibility to the final Guidelines in 
a variety of other areas as described above.
    Board: The Regulatory Flexibility Act (5 U.S.C. 604) requires an 
agency to publish a final regulatory flexibility analysis when 
promulgating a final rule that was subject to notice and comment.
    Need for and objectives of Guidelines: As discussed above, these 
Guidelines implement section 501 of the GLB Act. The objective of the 
Guidelines is to establish standards for financial institutions that 
are subject to the Board's jurisdiction to protect the security and 
confidentiality of their customers' information. In particular, the 
Guidelines require those financial institutions to implement a 
comprehensive written information security program that includes:
    (1) Assessing the reasonably foreseeable internal and external 
threats that could result in unauthorized disclosure, misuse, 
alteration, or destruction of customer information;
    (2) Adopting security measures that the financial institution 
concludes are appropriate for it; and
    (3) Overseeing its arrangements with its service provider(s).
    Comments on the initial regulatory flexibility analysis: Although 
few commenters addressed the initial regulatory flexibility analysis 
specifically, many commenters addressed the regulatory burdens that 
were discussed in that analysis. Several commenters noted that certain 
aspects of the proposal may tax the comparatively limited resources of 
small institutions, yet few commenters quantified the potential costs 
of compliance. The comments received by the Board and the other 
Agencies were discussed in the supplementary information above. Those 
comments that are closely related to regulatory burden are highlighted 
below:
    The Board requested comment on the scope of the term ``customer'' 
for purposes of the Guidelines. Many commenters opposed expanding the 
proposed scope of the Guidelines to apply to information about business 
customers and consumers who have not established continuing 
relationships with the financial institution. The commenters stated 
that an expanded scope would impose higher costs of developing an 
information security program and would be inconsistent with the use of 
the term ``customer'' in section 501 of the GLB Act and the Agencies' 
Privacy Rule. As explained in the supplementary information above, the 
Board has defined ``customer'' in the final Guidelines in the same way 
as that term is defined in section __.3(h) of the Agencies' Privacy 
Rule.
    Many commenters urged the Board to reduce the level of detail about 
the kinds of measures that would be required to implement an 
information security program under the proposed Guidelines. Commenters 
argued, for instance, that requiring particular testing procedures of 
security systems would make the standards too onerous for those 
institutions for which other kinds of tests and audits would be more 
suitable. In a similar vein, some commenters proposed that the Board

[[Page 8628]]

should issue examples that would illustrate the kinds of security 
measures that, if adopted, would constitute compliance with the 
Guidelines.
    The Board believes that many commenters may have misinterpreted the 
intent of the original proposal regarding the particular safeguards 
that would be expected. The provision that requires each financial 
institution to consider a variety of security measures has been 
redrafted in an effort to clarify that the institution must determine 
for itself which measures will be appropriate to its own risk profile. 
Although an institution is required to consider each of the security 
measures listed in paragraph III.C.1., it is not obligated to 
incorporate any particular security measures or particular testing 
procedures into its information security program. Rather, the 
institution may adopt those measures and use those tests that it 
concludes are appropriate. The Board is mindful that institutions' 
operations will vary in their complexity and scope of activities and 
present different risk profiles to their customer information. 
Accordingly, the Board has not established definitive security measures 
that, if adopted, would constitute compliance with the Guidelines.
    The Board asked for comments on several issues related to the 
appropriate security standards pertaining to an institution's 
arrangements with its service providers. As discussed above, many 
comments addressed these issues and, notably, objected to a provision 
that would require an institution to monitor its service providers 
through on-site audits. Several commenters noted that the service 
providers often contract for audits of their systems and argued that an 
institution should be able to rely upon those testing procedures. 
Commenters also recommended that an institution's responsibility for 
information given to service providers require only that the 
institution enter into appropriate contractual arrangements. The Board 
has modified the Guidelines to clarify an institution's 
responsibilities with respect to service providers. The Board has not 
designed a standard that would require a financial institution to 
conduct an on-site audit of its service provider's security program. 
Instead, the Board adopted a standard that requires an institution to 
monitor its service provider to confirm that it has satisfied its 
contractual obligations, depending upon the institution's risk 
assessment. In the course of conducting its risk assessment and 
determining which service providers will need to be monitored, an 
institution may take into account the fact that some of its service 
providers may be financial institutions that are directly subject to 
these Guidelines or other standards promulgated by their primary 
regulator under section 501(b). Furthermore, after considering the 
comments about contracts with service providers and the effective date 
of the Guidelines, the Board also adopted a transition rule, which 
parallels a similar provision in the Privacy Rule, that provides a two-
year period for grandfathering existing contracts.
    Many commenters addressed the burdens that would be imposed by the 
proposal due to the effective date and urged the Board to extend the 
proposed July 1, 2001, effective date for period ranging from one to 
two years. Most of these commenters argued that complying with the 
proposed Guidelines by July 1, 2001, would place a considerable burden 
on their businesses, particularly because the Guidelines would mandate 
changes to computer software, employee training, and compliance 
systems. As discussed above, the Board believes that the dates for full 
compliance with these Guidelines and the Privacy Rule should coincide. 
Financial institutions are required, as part of their initial privacy 
notices, to describe their policies and practices with respect to 
protecting the confidentiality and security of nonpublic personal 
information (12 CFR 216.6). The Board believes that if the effective 
date of these Guidelines is extended beyond July 1, 2001, then a 
financial institution may be placed in the position of providing an 
initial notice regarding confidentiality and security and thereafter 
amending the privacy policy to accurately refer to the federal 
standards once they became effective. Accordingly, the Board has 
adopted the proposed effective date of July 1, 2001.
    Institutions covered. The Board's final Guidelines will apply to 
approximately 9,500 institutions, including state member banks, bank 
holding companies and certain of their nonbank subsidiaries or 
affiliates, state uninsured branches and agencies of foreign banks, 
commercial lending companies owned or controlled by foreign banks, and 
Edge and Agreement corporations. The Board estimates that over 4,500 of 
the institutions are small institutions with assets less than $100 
million.
    New compliance requirements. The final Guidelines contain new 
compliance requirements for all covered institutions, many of which are 
contained in existing supervisory guidance and examination procedures. 
Nonetheless, each must develop and implement a written information 
security program. As part of that program, institutions will be 
required to assess the reasonably foreseeable risks, taking into 
account the sensitivity of customer information, and assess the 
sufficiency of policies and procedures in place to control those risks. 
Institutions that use third party service providers to process customer 
information must exercise appropriate due diligence in selecting them, 
require them by contract to implement appropriate measures designed to 
meet the objectives of these Guidelines, and depending upon the 
institution's risk assessment, monitor them to confirm that they have 
satisfied their contractual obligations. As part of its compliance 
measures, an institution may need to train its employees or hire 
individuals with professional skills suitable to implementing the 
policies and procedures of its information security program, such as 
those skills necessary to test or review tests of its security 
measures. Some institutions may already have programs that meet these 
requirements, but others may not.
    Minimizing impact on small institutions. The Board believes the 
requirements of the Act and these Guidelines may create additional 
burden for some small institutions. The Guidelines apply to all covered 
institutions, regardless of size. The Act does not provide the Board 
with the authority to exempt a small institution from the requirement 
of implementing administrative, technical, and physical safeguards to 
protect the security and confidentiality of customer information. 
Although the Board could develop different guidelines depending on the 
size and complexity of a financial institution, the Board believes that 
differing treatment would not be appropriate, given that one of the 
stated purposes of the Act is to protect the confidentiality and 
security of customers' nonpublic personal information.
    The Board believes that the compliance burden is minimized for 
small institutions because the Guidelines expressly allow institutions 
to develop security measures that are ``appropriate to the size and 
complexity of the [institution]''. The Guidelines do not mandate any 
particular policies, procedures, or security measures for any 
institution other than general requirements, such as to ``train staff'' 
or ``monitor its service providers to confirm that they have satisfied 
their [contractual] obligations''. The Board believes that the final 
Guidelines vest a small institution with a broad degree of discretion 
to design and implement an

[[Page 8629]]

information security program that suits its own organizational 
structure and risk profile.
    FDIC: The Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA) 
requires, subject to certain exceptions, that federal agencies prepare 
an initial regulatory flexibility analysis (IRFA) with a proposed rule 
and a final regulatory flexibility analysis (FRFA) with a final rule, 
unless the agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities.\14\ At the 
time of issuance of the proposed Guidelines, the FDIC could not make 
such a determination for certification. Therefore, the FDIC issued an 
IRFA pursuant to section 603 of the RFA. After reviewing the comments 
submitted in response to the proposed Guidelines, the FDIC believes 
that it does not have sufficient information to determine whether the 
final Guidelines would have a significant economic impact on a 
substantial number of small entities. Hence, pursuant to section 604 of 
the RFA, the FDIC provides the following FRFA.
---------------------------------------------------------------------------

    \14\ The RFA defines the term ``small entity'' in 5 U.S.C. 601 
by reference to definitions published by the Small Business 
Administration (SBA). The SBA has defined a ``small entity'' for 
banking purposes as a national or commercial bank, or savings 
institution with less than $100 million in assets. See 13 CFR 
121.201.
---------------------------------------------------------------------------

    This FRFA incorporates the FDIC's initial findings, as set forth in 
the IRFA; addresses the comments submitted in response to the IRFA; and 
describes the steps the FDIC has taken in the final rule to minimize 
the impact on small entities, consistent with the objectives of the 
Gramm-Leach-Bliley Act (G-L-B Act). Also, in accordance with section 
212 of the Small Business Regulatory Enforcement Fairness Act of 1996 
(Public Law 104-121), in the near future the FDIC will issue a 
compliance guide to assist small entities in complying with these 
Guidelines.

Small Entities to Which the Guidelines Will Apply

    The final Guidelines will apply to all FDIC-insured state-nonmember 
banks, regardless of size, including those with assets of under $100 
million. As of September 2000, there were 3,331 small banks out of a 
total of 5,130 FDIC-insured state-nonmember banks with assets of under 
$100 million. Title V, Subtitle A, of the GLBA does not provide either 
an exception for small banks or statutory authority upon which the FDIC 
could provide such an exception in the Guidelines.

Statement of the Need and Objectives of the Rule

    The final Guidelines implement the provisions of Title V, Subtitle 
A, Section 501 of the GLBA addressing standards for safeguarding 
customer information. Section 501 requires the Agencies to publish 
standards for financial institutions relating to administrative, 
technical, and physical standards to:

    Insure the security and confidentiality of customer records and 
information.
    Protect against any anticipated threats or hazards to the 
security or integrity of such records.
    Protect against unauthorized access to or use of such records or 
information, which could result in substantial harm or inconvenience 
to any customer.

    The final Guidelines do not represent any change in the policies of 
the FDIC; rather they implement the G-L-B Act requirement to provide 
appropriate standards relating to the security and confidentiality of 
customer records.
    Summary of Significant Issues Raised by the Public Comments; 
Description of Steps the Agency Has Taken in Response to the Comments 
to Minimize the Significant Economic Impact on Small Entities.
    In the IRFA, the FDIC specifically requested information on whether 
small entities would be required to amend their operations in order to 
comply with the final Guidelines and the costs for such compliance. The 
FDIC also requested comment or information on the costs of establishing 
information security programs. The FDIC also sought comment on any 
significant alternatives, consistent with the G-L-B Act that would 
minimize the impact on small entities. The FDIC received a total of 63 
comment letters. However, none of the comment letters specifically 
addressed the initial regulatory flexibility act section of the 
proposed Guidelines. Instead, many commenters, representing banks of 
various sizes, addressed the regulatory burdens in connection with 
their discussion of specific Guideline provisions.
    The FDIC has sought to minimize the burden on all businesses, 
including small entities, in promulgating this final Guidelines. The 
statute does not authorize the FDIC to create exemptions from the G-L-B 
Act based on an institution's asset size. However, the FDIC carefully 
considered comments regarding alternatives designed to minimize the 
economic and overall burden of complying with the final Guidelines. The 
discussion below reviews some of the significant changes adopted in the 
final Guidelines to accomplish this purpose.
    1. Issue the Rule as Guidelines or Regulations. The FDIC sought 
comment on whether to issue the rule as Guidelines or as regulations. 
All the comment letters stated that the rule should be issued in the 
form of Guidelines. Some community banks stated that the Guidelines 
were unnecessary because they already have information security 
programs in place but would prefer Guidelines to regulations. The 
commentary supported the use of Guidelines because guidelines typically 
provide more flexibility than regulations. Since technology changes 
rapidly, Guidelines would allow institutions to adapt to a changing 
environment more quickly than regulations, which may become outdated. 
The FDIC has issued these standards as Guidelines. The final Guidelines 
establish standards that will allow each institution the flexibility to 
design an information security program to accommodate its particular 
level of complexity and scope of activities.
    2. Definition of Customer. In the proposed Guidelines, the FDIC 
defined ``customer'' in the same manner as in the Privacy Rule. A 
``customer'' is defined as a consumer who has established a continuing 
relationship with an institution under which the institution provides 
one or more financial products or services to the consumer to be used 
primarily for personal, family, or household purposes. This definition 
does not include a business or a consumer who does not have an ongoing 
relationship with a financial institution. Almost all of the comments 
received by the FDIC agreed with the proposed definition and agreed 
that the definition should not be expanded to provide a common 
information security program for all types of records under the control 
of a financial institution. The Guidelines will apply only to consumer 
records as defined by the Privacy Rule, not business records. This will 
allow for a consistent interpretation of the term ``customer'' between 
the Guidelines and the Privacy Rule.
    3. Involvement of the Bank's Board of Directors. The FDIC sought 
comment on how frequently management should report to the board of 
directors concerning the bank's information security program. Most of 
the comment letters stated that the final Guidelines should not dictate 
how frequently the bank reports to the board of directors and that the 
bank should have discretion in this regard. The comment letters clearly 
conveyed a preference to not have a reporting requirement. However, if 
there was to be one, commenters suggested that it be annual.

[[Page 8630]]

The Agencies have amended the Guidelines to require that a bank report 
at least annually to its board of directors. However, more frequent 
reporting will be necessary if a material event affecting the 
information security system occurs or if material modifications are 
made to the system.
    4. Designation of Corporate Information Security Officer. The 
Agencies considered whether the Guidelines should require that the 
bank's board of directors designate a ``Corporate Information Security 
Officer'' with the responsibility to develop and administer the bank's 
information security program. Most of the comment letters requested 
that this requirement not be adopted because adding a new personnel 
position would be financially burdensome. The FDIC agrees that a new 
position with a specific title is not necessary. The final Guidelines 
do, however, require that the authority for the development, 
implementation, and administration of the bank's information security 
program be clearly expressed although not assigned to a particular 
individual.
    5. Managing and Controlling Risk. Many comments focused on the 
eleven factors in the proposed Guidelines that banks should consider 
when evaluating the adequacy of their information security programs. 
The Agencies did not intend to mandate the security measures listed in 
section III.C. of the proposed Guidelines for all banks and all data. 
Instead the Agencies believe the security measures should be followed 
as appropriate for each bank's particular circumstances. Some concern 
was expressed that the proposed Guidelines required encryption of all 
customer information. The FDIC believes that a bank that has Internet-
based transaction accounts or a transactional Web site may decide that 
encryption is appropriate, but a bank that processes all data 
internally may need different access restrictions. While a bank is to 
consider each element in section III.C. in the design of its 
information security program, this is less burdensome than a 
requirement to include each element listed that section.
    The proposed Guidelines provided that institutions train employees 
to recognize, respond to, and report suspicious attempts to obtain 
customer information directly to law enforcement agencies and 
regulatory agencies. Some comment letters stated that suspicious 
activity should be reported to management, not directly to law 
enforcement agencies and regulatory agencies. The FDIC believes 
employees should be made aware of federal reporting requirements and an 
institution's procedures for reporting suspicious activity. However, 
the Guidelines have been amended to allow financial institutions to 
decide who is to file a report to law enforcement agencies, consistent 
with other applicable regulations.
    A significant number of comments stated that the FDIC should not 
require specific tests to ensure the security and confidentiality of 
customer information. Some comments stated that periodic testing is 
appropriate. The final Guidelines do not specify particular tests but 
provide that management should decide on the appropriate testing. Also, 
the final Guidelines require tests to be conducted or reviewed by 
people independent of those who operate the systems. Further, banks 
must review their service provider's security program to determine that 
it is consistent with the Guidelines. However, the final Guidelines do 
not require on-site inspections.
    6. Effective Date. The effective date for the final Guidelines is 
July 1, 2001. As discussed in the section-by-section analysis, many of 
the comment letters urged the FDIC to extend the effective date of the 
Guidelines, particularly since this is the effective date for complying 
with the Privacy Rule. Several of the comments suggested the proposed 
effective date be extended for 12 to 18 months. However, the FDIC 
believes that the effective date for the Guidelines and the Privacy 
Rule should coincide. The Privacy Rule requires a financial institution 
to disclose to its customers that the bank maintains physical, 
electronic, and procedural safeguards to protect customers' nonpublic 
personal information. Appendix A of the Privacy Rule provides that this 
disclosure may refer to these federal guidelines. This is only 
meaningful if the final Guidelines for safeguarding customer 
information are effective when the disclosure is made. The Guidelines 
do provide a transition rule for contracts with service providers--
essentially allowing a two-year compliance period for service provider 
contracts. A contract entered into on or before March 5, 2001, 
satisfies the provisions of this part until July 1, 2003, even if the 
contract does not include provisions delineating the servicer's duties 
and responsibilities to protect customer information described in 
section III.D. This additional time will allow financial institutions 
to make all necessary changes to service provider contracts and to 
comply with this segment of the Guidelines.

Summary of the Agency Assessment of Issues Raised in Public 
Comments

    Most of the comment letters did not discuss actual compliance costs 
for implementing the provisions of the Guidelines. Some commenters 
stated that their bank has an established information security program 
and that information security is a customary business practice. The new 
compliance and reporting requirements will create additional costs for 
some institutions. These costs include: (1) Training staff; (2) 
monitoring outsourcing agreements; (3) performing due diligence before 
contracting with a service provider; (4) testing security systems; and 
(5) adjusting security programs due to technology changes. The comments 
did not provide data from which the FDIC could quantify the cost of 
implementing the requirements of the GLBA. The compliance costs will 
vary among institutions.

Description/Estimate of Small Entities To Which the Guidelines Will 
Apply

    The Guidelines will apply to approximately 3,300 FDIC insured State 
nonmember banks that are small entities (assets less than $100 million) 
as defined in the RFA.

Description of Projected Reporting, Record-Keeping, and Other 
Compliance Requirements

    The final Guidelines contain standards for the protection of 
customer records and information that apply to all FDIC-insured state-
nonmember banks. Institutions will be required to report annually to 
the bank's board of directors concerning the bank's information 
security program. Institutions will need to develop a training program 
that is designed to implement the institution's information security 
policies and procedures. An institution's information security system 
will be tested to ensure the controls and procedures of the program 
work properly. However, the final Guidelines do not specify what 
particular tests the bank should undertake. The final Guidelines state 
that the tests are to be conducted or reviewed by persons who are 
independent of those who operate the systems. Institutions will have to 
exercise due diligence in the selection of service providers to ensure 
that the bank's customer information will be protected consistent with 
these Guidelines. And institutions will have to monitor these service 
provider arrangements to confirm that the institution's customer 
information is protected, which may be accomplished by reviewing 
service provider audits

[[Page 8631]]

and summaries of test results. Also, institutions will need to adjust 
their security program as technology changes.
    The types of professional skills within the institution necessary 
to prepare the report to the board would include an understanding of 
the institution's information security program, a level of technical 
knowledge of the hardware and software systems to evaluate test results 
recommending substantial modifications; and the ability to evaluate and 
report on the institution's steps to oversee service provider 
arrangements.
    OTS: The Regulatory Flexibility Act (RFA),\15\ requires OTS to 
prepare a final regulatory flexibility analysis with these final 
Guidelines unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
OTS has evaluated the effects these Guidelines will have on small 
entities. In issuing proposed Guidelines, OTS specifically sought 
comment on the costs of establishing and operating information security 
programs, but no commenters provided specific cost information. 
Institutions cannot yet know how they will implement their information 
security programs and therefore have difficulty quantifying the 
associated costs. The Director of OTS considered certifying, under 
section 605(b) of the RFA, that these guidelines will not have a 
significant economic impact on a substantial number of small entities. 
However, because OTS cannot quantify the impact the Guidelines will 
have on small entities, and in the interests of thoroughness, OTS does 
not certify that the Guidelines will not have a significant economic 
impact on a substantial number of small entities. Instead, OTS has 
prepared the following final regulatory flexibility analysis.
---------------------------------------------------------------------------

    \15\ U.S.C. 604(a).
---------------------------------------------------------------------------

A. Reasons for Final Action

    OTS issues these Guidelines pursuant to section 501 of the G-L-B 
Act. As described in this preamble and in the notice of proposed 
action, section 501 requires OTS to publish standards for the thrift 
industry relating to administrative, technical, and physical safeguards 
to: (1) Insure the security and confidentiality of customer records and 
information; (2) protect against any anticipated threats or hazards to 
the security or integrity of such records, and (3) protect against 
unauthorized access to or use of such records or information which 
could result in the substantial harm or inconvenience to any customer.

B. Objectives of and Legal Basis for Final Action

    The objectives of the Guidelines are described in the Supplementary 
Information section above. The legal bases for the final action are: 
section 501 of the G-L-B Act; section 39 of the FDI Act; and sections 
2, 4, and 5 of the Home Owners' Loan Act (12 U.S.C. 1462, 1463, and 
1464).

C. Description of Entities To Which Final Action Will Apply

    These Guidelines will apply to all savings associations whose 
deposits are FDIC insured, and subsidiaries of such savings 
associations, except subsidiaries that are brokers, dealers, persons 
providing insurance, investment companies, and investment advisers.\16\

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements; Skills Required

    The Guidelines do not require any reports to OTS. As discussed more 
fully above, they do require institutions to have a written information 
security program, and to make an appropriate report to the board of 
directors, or a board committee, at least annually. The Guidelines 
require institutions to establish an information security program, if 
they do not already have one. The Guidelines require institutions to 
assess the risks to their customer security and to adopt appropriate 
measures to control those risks. Institutions must also test the key 
controls, commensurate with the risks. Institutions must use 
appropriate due diligence in selecting outside service providers, and 
require service providers, by contract, to implement appropriate 
security measures. Finally, where appropriate, the Guidelines require 
institutions to monitor their service providers.
---------------------------------------------------------------------------

    \16\ For purposes of the Regulatory Flexibility Act, a small 
savings association is one with less than $100 million in assets. 13 
CFR 121.201 (Division H). There are approximately 487 such small 
savings associations, approximately 97 of which have subsidiaries.
---------------------------------------------------------------------------

    Professional skills, such as skills of computer hardware and 
software, will be necessary to assess information security needs, and 
to design and implement an information security program. The particular 
skills needed will be commensurate with the nature of each 
institution's system, i.e. more skills will be needed in institutions 
with sophisticated and extensive computerization. As a result, small 
entities with less extensive computerization are likely to have less 
burdensome compliance needs than large entities. Institutions that use 
outside service providers may require legal skills to draft appropriate 
language for contracts with service providers.

E. Public Comment and Significant Alternatives

    OTS did not receive any public comment on its initial regulatory 
flexibility analysis, although it did receive comments on the proposal 
in general, and on the Guidelines' impact on small entities in 
particular. OTS addresses these below.
    OTS has considered publishing standards using only the broad 
language in section 501(b) of the G-L-B Act, as supported by one 
commenter. The Agencies rejected this alternative in favor of more 
comprehensive Guidelines. Using only the general statutory language 
would permit institutions maximum flexibility in implementing 
information security protections and would not put institutions at a 
competitive disadvantage with respect to institutions not subject to 
the same security standards. However, using the statutory language 
alone would not provide enough guidance to institutions about what 
risks need to be addressed or what types of protections are 
appropriate. Small institutions in particular may need guidance in this 
area. One trade association that represents community banks commented 
that institutions need guidance to determine what level of information 
security the Agencies will look for, and that community banks in 
particular need guidance in this area. OTS believes that the 
alternative it chose, more comprehensive standards, provides helpful 
guidance without sacrificing flexibility.
    OTS has also considered the alternative of defining ``service 
provider'' more narrowly than in the proposed Guidelines to reduce 
regulatory burden. The Guidelines require a financial institution to 
take appropriate steps to protect customer information provided to a 
service provider. Due to limited resources, small institutions may need 
to outsource a disproportionately larger number of functions than large 
institutions outsource, and accordingly have a greater need for service 
providers. Thus, the burdens associated with service providers may fall 
more heavily on small institutions than on large institutions. But the 
risks to information security do not necessarily vary depending on a 
service provider's identity. Rather, they vary depending on the type 
and volume of information to which a service provider has access, the 
safeguards it has in place, and what the service provider does with the

[[Page 8632]]

information. Basing the requirements as to service providers on a 
service provider's identity would not necessarily focus protections on 
areas of risk. For this reason, the final Guidelines focus the 
protections regarding service providers on the risks involved rather 
than on the service provider's identity. This approach should provide 
the necessary protections without unnecessary burden on small 
institutions.
    OTS reviewed the alternative of requiring an institution's board of 
directors to designate a Corporate Information Security Officer who 
would have authority, with approval by the board, to develop and 
administer the institution's information security program. However, 
ultimately, the agencies rejected the idea of having financial 
institutions create a new position to fulfill this purpose. Instead, 
the Guidelines allow financial institutions the flexibility to 
determine who should be assigned specific roles in implementing the 
institution's security program. As a result, small institutions will be 
relieved of a potential burden.
    The final Guidelines incorporate new provisions not in the proposed 
Guidelines designed to add flexibility to assist all institutions, 
large and small. For example, the final Guidelines, unlike the 
proposal, do not specify particular tasks for management. Instead, the 
final Guidelines allow each institution the flexibility to decide for 
itself the most efficient allocation of its personnel. Similarly, the 
final Guidelines allow institutions to delegate board duties to board 
committees. Additionally, in the final guidelines the Agencies removed 
the requirement that information security programs ``shall * * * 
ensure'' the security and confidentiality of customer information. 
Instead, the guidelines say the program ``shall be designed to * * * 
ensure'' the security and confidentiality of customer information. The 
final Guidelines further incorporate more flexibility than the proposal 
concerning testing systems. The proposal required third parties of 
staff independent of those who maintain the program to test it, and 
required third parties or staff independent of the testers to review 
test results. To add flexibility, the final Guidelines more simply 
require staff or third parties independent of those who develop or 
maintain the programs to conduct or review the tests. These changes 
should serve to reduce the burden of the Guidelines.

C. Executive Order 12866

    The Comptroller of the Currency and the Office of Thrift 
Supervision have determined that this rule does not constitute a 
``significant regulatory action'' for the purposes of Executive Order 
12866. The OCC and OTS are issuing the Guidelines in accordance with 
the requirements of Sections 501 and 505(b) of the G-L-B Act and not 
under their own authority. Even absent the requirements of the G-L-B 
Act, if the OCC and OTS had issued the rule under their own authority, 
the rule would not constitute a ``significant regulatory action'' for 
purposes of Executive Order 12866.
    The standards established by the Guidelines are very flexible and 
allow each institution the discretion to have an information security 
program that suits its particular size , complexity and the nature and 
scope of its activities. Further, the standards reflect good business 
practices and guidance previously issued by the OCC, OTS, and the 
FFIEC. Accordingly, most if not all institutions already have 
information security programs in place that are consistent with the 
Guidelines. In such cases, little or no modification to an 
institution's program will be required.

D. Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532 (Unfunded Mandates Act), requires that an agency prepare a 
budgetary impact statement before promulgating any rule likely to 
result in a federal mandate that may result in the expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any one year. If a budgetary 
impact statement is required, section 205 of the Unfunded Mandates Act 
also requires the agency to identify and consider a reasonable number 
of regulatory alternatives before promulgating the rule. However, an 
agency is not required to assess the effects of its regulatory actions 
on the private sector to the extent that such regulations incorporate 
requirements specifically set forth in law. 2 U.S.C. 1531.
    The OCC and OTS believe that most institutions already have 
established an information security program because it is a sound 
business practice that also has been addressed in existing supervisory 
guidance. Therefore, the OCC and OTS have determined that the 
Guidelines will not result in expenditures by state, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. Accordingly, the OCC and OTS have not 
prepared a budgetary impact statement or specifically addressed the 
regulatory alternatives considered.

List of Subjects

12 CFR Part 30

    Banks, banking, Consumer protection, National banks, Privacy, 
Reporting and recordkeeping requirements.

12 CFR Part 208

    Banks, banking, Consumer protection, Federal Reserve System, 
Foreign banking, Holding companies, Information, Privacy, Reporting and 
recordkeeping requirements.

12 CFR Part 211

    Exports, Federal Reserve System, Foreign banking, Holding 
companies, Investments, Privacy, Reporting and recordkeeping 
requirements.

12 CFR Part 225

    Administrative practice and procedure, Banks, banking, Federal 
Reserve System, Holding companies, Privacy, Reporting and recordkeeping 
requirements, Securities.

12 CFR Part 263

    Administrative practice and procedure, Claims, Crime, Equal access 
in justice, Federal Reserve System, Lawyers, Penalties.

12 CFR Part 308

    Administrative practice and procedure, Banks, banking, Claims, 
Crime, Equal access of justice, Lawyers, Penalties, State nonmember 
banks.

12 CFR Part 364

    Administrative practice and procedure, Bank deposit insurance, 
Banks, banking, Reporting and recordkeeping requirements, Safety and 
soundness.

12 CFR Part 568

    Reporting and recordkeeping requirements, Savings associations, 
Security measures. Consumer protection, Privacy, Savings associations.

12 CFR Part 570

    Consumer protection, Privacy, Savings associations.

Office of the Comptroller of the Currency

12 CFR Chapter I

Authority and Issuance

    For the reasons set forth in the joint preamble, part 30 of the 
chapter I of title 12 of the Code of Federal Regulations is amended as 
follows:

[[Page 8633]]

PART 30--SAFETY AND SOUNDNESS STANDARDS

    1. The authority citation for part 30 is revised to read as 
follows:

    Authority: 12 U.S.C. 93a, 1818, 1831-p, 3102(b); 15 U.S.C. 6801, 
6805(b)(1).

    2. Revise Sec. 30.1 to read as follows:


Sec. 30.1  Scope.

    (a) The rules set forth in this part and the standards set forth in 
appendices A and B to this part apply to national banks and federal 
branches of foreign banks, that are subject to the provisions of 
section 39 of the Federal Deposit Insurance Act (section 39)(12 U.S.C. 
1831p-1).
    (b) The standards set forth in appendix B to this part also apply 
to uninsured national banks, federal branches and federal agencies of 
foreign banks, and the subsidiaries of any national bank, federal 
branch or federal agency of a foreign bank (except brokers, dealers, 
persons providing insurance, investment companies and investment 
advisers). Violation of these standards may be an unsafe and unsound 
practice within the meaning of 12 U.S.C. 1818.

    3. In Sec. 30.2, revise the last sentence to read as follows:


Sec. 30.2  Purpose.

    * * * The Interagency Guidelines Establishing Standards for Safety 
and Soundness are set forth in appendix A to this part, and the 
Interagency Guidelines Establishing Standards for Safeguarding Customer 
Information are set forth in appendix B to this part.

    4. In Sec. 30.3, revise paragraph (a) to read as follows:


Sec. 30.3  Determination and notification of failure to meet safety and 
soundness standard and request for compliance plan.

    (a) Determination. The OCC may, based upon an examination, 
inspection, or any other information that becomes available to the OCC, 
determine that a bank has failed to satisfy the safety and soundness 
standards contained in the Interagency Guidelines Establishing 
Standards for Safety and Soundness set forth in appendix A to this 
part, and the Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information set forth in appendix B to this part.
* * * * *
    5. Revise appendix B to part 30 to read as follows:

Appendix B to Part 30--Interagency Guidelines Establishing 
Standards For Safeguarding Customer Information

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    The Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information (Guidelines) set forth standards 
pursuant to section 39 of the Federal Deposit Insurance Act (section 
39, codified at 12 U.S.C. 1831p-1), and sections 501 and 505(b), 
codified at 15 U.S.C. 6801 and 6805(b), of the Gramm-Leach-Bliley 
Act. These Guidelines address standards for developing and 
implementing administrative, technical, and physical safeguards to 
protect the security, confidentiality, and integrity of customer 
information.
    A. Scope. The Guidelines apply to customer information 
maintained by or on behalf of entities over which the OCC has 
authority. Such entities, referred to as ``the bank,'' are national 
banks, federal branches and federal agencies of foreign banks, and 
any subsidiaries of such entities (except brokers, dealers, persons 
providing insurance, investment companies, and investment advisers).
    B. Preservation of Existing Authority. Neither section 39 nor 
these Guidelines in any way limit the authority of the OCC to 
address unsafe or unsound practices, violations of law, unsafe or 
unsound conditions, or other practices. The OCC may take action 
under section 39 and these Guidelines independently of, in 
conjunction with, or in addition to, any other enforcement action 
available to the OCC.
    C. Definitions. 1. Except as modified in the Guidelines, or 
unless the context otherwise requires, the terms used in these 
Guidelines have the same meanings as set forth in sections 3 and 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions 
apply:
    a. Board of directors, in the case of a branch or agency of a 
foreign bank, means the managing official in charge of the branch or 
agency.
    b. Customer means any customer of the bank as defined in 
Sec. 40.3(h) of this chapter.
    c. Customer information means any record containing nonpublic 
personal information, as defined in Sec. 40.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that 
is maintained by or on behalf of the bank.
    d. Customer information systems means any methods used to 
access, collect, store, use, transmit, protect, or dispose of 
customer information.
    e. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
through its provision of services directly to the bank.

II. Standards for Safeguarding Customer Information

    A. Information Security Program. Each bank shall implement a 
comprehensive written information security program that includes 
administrative, technical, and physical safeguards appropriate to 
the size and complexity of the bank and the nature and scope of its 
activities. While all parts of the bank are not required to 
implement a uniform set of policies, all elements of the information 
security program must be coordinated.
    B. Objectives. A bank's information security program shall be 
designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. The board of directors or an 
appropriate committee of the board of each bank shall:
    1. Approve the bank's written information security program; and
    2. Oversee the development, implementation, and maintenance of 
the bank's information security program, including assigning 
specific responsibility for its implementation and reviewing reports 
from management.
    B. Assess Risk. Each bank shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.
    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control 
risks.
    C. Manage and Control Risk. Each bank shall:
    1. Design its information security program to control the 
identified risks, commensurate with the sensitivity of the 
information as well as the complexity and scope of the bank's 
activities. Each bank must consider whether the following security 
measures are appropriate for the bank and, if so, adopt those 
measures the bank concludes are appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means.

[[Page 8634]]

    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including 
while in transit or in storage on networks or systems to which 
unauthorized individuals may have access;
    d. Procedures designed to ensure that customer information 
system modifications are consistent with the bank's information 
security program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access 
to customer information;
    f. Monitoring systems and procedures to detect actual and 
attempted attacks on or intrusions into customer information 
systems;
    g. Response programs that specify actions to be taken when the 
bank suspects or detects that unauthorized individuals have gained 
access to customer information systems, including appropriate 
reports to regulatory and law enforcement agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement the bank's information security 
program.
    3. Regularly test the key controls, systems and procedures of 
the information security program. The frequency and nature of such 
tests should be determined by the bank's risk assessment. Tests 
should be conducted or reviewed by independent third parties or 
staff independent of those that develop or maintain the security 
programs.
    D. Oversee Service Provider Arrangements. Each bank shall:
    1. Exercise appropriate due diligence in selecting its service 
providers;
    2. Require its service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by the bank's risk assessment, monitor its 
service providers to confirm that they have satisfied their 
obligations as required by section D.2. As part of this monitoring, 
a bank should review audits, summaries of test results, or other 
equivalent evaluations of its service providers.
    E. Adjust the Program. Each bank shall monitor, evaluate, and 
adjust, as appropriate, the information security program in light of 
any relevant changes in technology, the sensitivity of its customer 
information, internal or external threats to information, and the 
bank's own changing business arrangements, such as mergers and 
acquisitions, alliances and joint ventures, outsourcing 
arrangements, and changes to customer information systems.
    F. Report to the Board. Each bank shall report to its board or 
an appropriate committee of the board at least annually. This report 
should describe the overall status of the information security 
program and the bank's compliance with these Guidelines. The reports 
should discuss material matters related to its program, addressing 
issues such as: risk assessment; risk management and control 
decisions; service provider arrangements; results of testing; 
security breaches or violations and management's responses; and 
recommendations for changes in the information security program.
    G. Implement the Standards. 1. Effective date. Each bank must 
implement an information security program pursuant to these 
Guidelines by July 1, 2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that a bank has entered into with a 
service provider to perform services for it or functions on its 
behalf satisfies the provisions of section III.D., even if the 
contract does not include a requirement that the servicer maintain 
the security and confidentiality of customer information, as long as 
the bank entered into the contract on or before March 5, 2001.

    6. Appendix C to part 30 is removed.

    Dated: December 21, 2000.
John D. Hawke, Jr.,
Comptroller of the Currency.

Federal Reserve System

12 CFR Chapter II

Authority and Issuance

    For the reasons set forth in the joint preamble, parts 208, 211, 
225, and 263 of chapter II of title 12 of the Code of Federal 
Regulations are amended as follows:

PART 208--MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL 
RESERVE SYSTEM (REGULATION H)

    1. The authority citation for 12 CFR part 208 is revised to read as 
follows:

    Authority: 12 U.S.C. 24, 36, 92a, 93a, 248(a), 248(c), 321-338a, 
371d, 461, 481-486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 1823(j), 
1828(o), 1831, 1831o, 1831p-1, 1831r-1, 1835a, 1882, 2901-2907, 
3105, 3310, 3331-3351, and 3906-3909; 15 U.S.C. 78b, 78l(b), 78l(g), 
78l(i), 78o-4(c)(5), 78q, 78q-1, 78w, 6801, and 6805; 31 U.S.C. 
5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106, and 4128.

    2. Amend Sec. 208.3 to revise paragraph (d)(1) to read as follows:


Sec. 208.3  Application and conditions for membership in the Federal 
Reserve System.

* * * * *
    (d) Conditions of membership. (1) Safety and soundness. Each member 
bank shall at all times conduct its business and exercise its powers 
with due regard to safety and soundness. Each member bank shall comply 
with the Interagency Guidelines Establishing Standards for Safety and 
Soundness prescribed pursuant to section 39 of the FDI Act (12 U.S.C. 
1831p-1), set forth in appendix D-1 to this part, and the Interagency 
Guidelines Establishing Standards for Safeguarding Customer Information 
prescribed pursuant to sections 501 and 505 of the Gramm-Leach-Bliley 
Act (15 U.S.C. 6801 and 6805), set forth in appendix D-2 to this part.
* * * * *

    3. Revise appendix D-2 to read as follows:

Appendix D-2 To Part 208--Interagency Guidelines Establishing 
Standards For Safeguarding Customer Information

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    These Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information (Guidelines) set forth standards 
pursuant to sections 501 and 505 of the Gramm-Leach-Bliley Act (15 
U.S.C. 6801 and 6805), in the same manner, to the extent practicable, 
as standards prescribed pursuant to section 39 of the Federal Deposit 
Insurance Act (12 U.S.C. 1831p-1). These Guidelines address standards 
for developing and implementing administrative, technical, and physical 
safeguards to protect the security, confidentiality, and integrity of 
customer information.
    A. Scope. The Guidelines apply to customer information maintained 
by or on behalf of state member banks (banks) and their nonbank 
subsidiaries, except for brokers, dealers, persons providing insurance, 
investment companies, and investment advisors. Pursuant to Secs. 211.9 
and 211.24 of this chapter, these guidelines also apply to customer 
information maintained by or on behalf of Edge corporations, agreement 
corporations, and uninsured state-licensed branches or agencies of a 
foreign bank.
    B. Preservation of Existing Authority. Neither section 39 nor these 
Guidelines in any way limit the authority of the Board to address 
unsafe or unsound practices, violations of law, unsafe or unsound 
conditions, or other practices. The Board may take action under

[[Page 8635]]

section 39 and these Guidelines independently of, in conjunction with, 
or in addition to, any other enforcement action available to the Board.
    C. Definitions.
    1. Except as modified in the Guidelines, or unless the context 
otherwise requires, the terms used in these Guidelines have the same 
meanings as set forth in sections 3 and 39 of the Federal Deposit 
Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions apply:
    a. Board of directors, in the case of a branch or agency of a 
foreign bank, means the managing official in charge of the branch or 
agency.
    b. Customer means any customer of the bank as defined in 
Sec. 216.3(h) of this chapter.
    c. Customer information means any record containing nonpublic 
personal information, as defined in Sec. 216.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that is 
maintained by or on behalf of the bank.
    d. Customer information systems means any methods used to access, 
collect, store, use, transmit, protect, or dispose of customer 
information.
    e. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
through its provision of services directly to the bank.
    f. Subsidiary means any company controlled by a bank, except a 
broker, dealer, person providing insurance, investment company, 
investment advisor, insured depository institution, or subsidiary of an 
insured depository institution.

II. Standards for Safeguarding Customer Information

    A. Information Security Program. Each bank shall implement a 
comprehensive written information security program that includes 
administrative, technical, and physical safeguards appropriate to the 
size and complexity of the bank and the nature and scope of its 
activities. While all parts of the bank are not required to implement a 
uniform set of policies, all elements of the information security 
program must be coordinated. A bank also shall ensure that each of its 
subsidiaries is subject to a comprehensive information security 
program. The bank may fulfill this requirement either by including a 
subsidiary within the scope of the bank's comprehensive information 
security program or by causing the subsidiary to implement a separate 
comprehensive information security program in accordance with the 
standards and procedures in sections II and III of this appendix that 
apply to banks.
    B. Objectives. A bank's information security program shall be 
designed to:
    1. Ensure the security and confidentiality of customer information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience to 
any customer.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. The board of directors or an 
appropriate committee of the board of each bank shall:
    1. Approve the bank's written information security program; and
    2. Oversee the development, implementation, and maintenance of the 
bank's information security program, including assigning specific 
responsibility for its implementation and reviewing reports from 
management.
    B. Assess Risk. Each bank shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.
    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control risks.
    C. Manage and Control Risk. Each bank shall:
    1. Design its information security program to control the 
identified risks, commensurate with the sensitivity of the information 
as well as the complexity and scope of the bank's activities. Each bank 
must consider whether the following security measures are appropriate 
for the bank and, if so, adopt those measures the bank concludes are 
appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing customer 
information to unauthorized individuals who may seek to obtain this 
information through fraudulent means.
    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including while 
in transit or in storage on networks or systems to which unauthorized 
individuals may have access;
    d. Procedures designed to ensure that customer information system 
modifications are consistent with the bank's information security 
program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access to 
customer information;
    f. Monitoring systems and procedures to detect actual and attempted 
attacks on or intrusions into customer information systems;
    g. Response programs that specify actions to be taken when the bank 
suspects or detects that unauthorized individuals have gained access to 
customer information systems, including appropriate reports to 
regulatory and law enforcement agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement the bank's information security 
program.
    3. Regularly test the key controls, systems and procedures of the 
information security program. The frequency and nature of such tests 
should be determined by the bank's risk assessment. Tests should be 
conducted or reviewed by independent third parties or staff independent 
of those that develop or maintain the security programs.
    D. Oversee Service Provider Arrangements. Each bank shall:
    1. Exercise appropriate due diligence in selecting its service 
providers;
    2. Require its service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by the bank's risk assessment, monitor its 
service providers to confirm that they have satisfied their obligations 
as required by paragraph D.2. As part of this monitoring, a bank should 
review audits, summaries of test results, or other equivalent 
evaluations of its service providers.
    E. Adjust the Program. Each bank shall monitor, evaluate, and 
adjust, as appropriate, the information security program in light of 
any relevant changes in technology, the sensitivity of its

[[Page 8636]]

customer information, internal or external threats to information, and 
the bank's own changing business arrangements, such as mergers and 
acquisitions, alliances and joint ventures, outsourcing arrangements, 
and changes to customer information systems.
    F. Report to the Board. Each bank shall report to its board or an 
appropriate committee of the board at least annually. This report 
should describe the overall status of the information security program 
and the bank's compliance with these Guidelines. The reports should 
discuss material matters related to its program, addressing issues such 
as: risk assessment; risk management and control decisions; service 
provider arrangements; results of testing; security breaches or 
violations and management's responses; and recommendations for changes 
in the information security program.
    G. Implement the Standards.
    1. Effective date. Each bank must implement an information security 
program pursuant to these Guidelines by July 1, 2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that a bank has entered into with a 
service provider to perform services for it or functions on its behalf 
satisfies the provisions of section III.D., even if the contract does 
not include a requirement that the servicer maintain the security and 
confidentiality of customer information, as long as the bank entered 
into the contract on or before March 5, 2001.

PART 211--INTERNATIONAL BANKING OPERATIONS (REGULATION K)

    4. The authority citation for part 211 is revised to read as 
follows:

    Authority: 12 U.S.C. 221 et seq., 1818, 1835a, 1841 et seq., 
3101 et seq., and 3901 et seq.; 15 U.S.C. 6801 and 6805.

    5. Add new Sec. 211.9 to read as follows:


Sec. 211.9  Protection of customer information.

    An Edge or agreement corporation shall comply with the Interagency 
Guidelines Establishing Standards for Safeguarding Customer Information 
prescribed pursuant to sections 501 and 505 of the Gramm-Leach-Bliley 
Act (15 U.S.C. 6801 and 6805), set forth in appendix D-2 to part 208 of 
this chapter.

    6. In Sec. 211.24, add new paragraph (i) to read as follows:


Sec. 211.24  Approval of offices of foreign banks; procedures for 
applications; standards for approval; representative-office activities 
and standards for approval; preservation of existing authority; reports 
of crimes and suspected crimes; government securities sales practices.

* * * * *
    (i) Protection of customer information. An uninsured state-licensed 
branch or agency of a foreign bank shall comply with the Interagency 
Guidelines Establishing Standards for Safeguarding Customer Information 
prescribed pursuant to sections 501 and 505 of the Gramm-Leach-Bliley 
Act (15 U.S.C. 6801 and 6805), set forth in appendix D-2 to part 208 of 
this chapter.

PART 225--BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL 
(REGULATION Y)

    7. The authority citation for part 225 is revised to read as 
follows:

    Authority: 12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 
1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3907, and 
3909; 15 U.S.C. 6801 and 6805.

    8. In Sec. 225.1, add new paragraph (c)(16) to read as follows:


Sec. 225.1  Authority, purpose, and scope.

* * * * *
    (c) * * *
    (16) Appendix F contains the Interagency Guidelines Establishing 
Standards for Safeguarding Customer Information.

    9. In Sec. 225.4, add new paragraph (h) to read as follows:


Sec. 225.4  Corporate practices.

* * * * *
    (h) Protection of nonpublic personal information. A bank holding 
company, including a bank holding company that is a financial holding 
company, shall comply with the Interagency Guidelines Establishing 
Standards for Safeguarding Customer Information, as set forth in 
appendix F of this part, prescribed pursuant to sections 501 and 505 of 
the Gramm-Leach-Bliley Act (15 U.S.C. 6801 and 6805).

    10. Add new appendix F to read as follows:

Appendix F To Part 225--Interagency Guidelines Establishing 
Standards For Safeguarding Customer Information

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    These Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information (Guidelines) set forth standards 
pursuant to sections 501 and 505 of the Gramm-Leach-Bliley Act (15 
U.S.C. 6801 and 6805) . These Guidelines address standards for 
developing and implementing administrative, technical, and physical 
safeguards to protect the security, confidentiality, and integrity 
of customer information.
    A. Scope. The Guidelines apply to customer information 
maintained by or on behalf of bank holding companies and their 
nonbank subsidiaries or affiliates (except brokers, dealers, persons 
providing insurance, investment companies, and investment advisors), 
for which the Board has supervisory authority.
    B. Preservation of Existing Authority. These Guidelines do not 
in any way limit the authority of the Board to address unsafe or 
unsound practices, violations of law, unsafe or unsound conditions, 
or other practices. The Board may take action under these Guidelines 
independently of, in conjunction with, or in addition to, any other 
enforcement action available to the Board.
    C. Definitions. 1. Except as modified in the Guidelines, or 
unless the context otherwise requires, the terms used in these 
Guidelines have the same meanings as set forth in sections 3 and 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions 
apply:
    a. Board of directors, in the case of a branch or agency of a 
foreign bank, means the managing official in charge of the branch or 
agency.
    b. Customer means any customer of the bank holding company as 
defined in Sec. 216.3(h) of this chapter.
    c. Customer information means any record containing nonpublic 
personal information, as defined in Sec. 216.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that 
is maintained by or on behalf of the bank holding company.
    d. Customer information systems means any methods used to 
access, collect, store, use, transmit, protect, or dispose of 
customer information.
    e. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
through its provision of services directly to the bank holding 
company.
    f. Subsidiary means any company controlled by a bank holding 
company, except a broker, dealer, person providing insurance, 
investment company, investment advisor, insured depository 
institution, or subsidiary of an insured depository institution.

[[Page 8637]]

II. Standards for Safeguarding Customer Information

    A. Information Security Program. Each bank holding company shall 
implement a comprehensive written information security program that 
includes administrative, technical, and physical safeguards 
appropriate to the size and complexity of the bank holding company 
and the nature and scope of its activities. While all parts of the 
bank holding company are not required to implement a uniform set of 
policies, all elements of the information security program must be 
coordinated. A bank holding company also shall ensure that each of 
its subsidiaries is subject to a comprehensive information security 
program. The bank holding company may fulfill this requirement 
either by including a subsidiary within the scope of the bank 
holding company's comprehensive information security program or by 
causing the subsidiary to implement a separate comprehensive 
information security program in accordance with the standards and 
procedures in sections II and III of this appendix that apply to 
bank holding companies.
    B. Objectives. A bank holding company's information security 
program shall be designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. The board of directors or an 
appropriate committee of the board of each bank holding company 
shall:
    1. Approve the bank holding company's written information 
security program; and
    2. Oversee the development, implementation, and maintenance of 
the bank holding company's information security program, including 
assigning specific responsibility for its implementation and 
reviewing reports from management.
    B. Assess Risk. Each bank holding company shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.
    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control 
risks.
    C. Manage and Control Risk. Each bank holding company shall:
    1. Design its information security program to control the 
identified risks, commensurate with the sensitivity of the 
information as well as the complexity and scope of the bank holding 
company's activities. Each bank holding company must consider 
whether the following security measures are appropriate for the bank 
holding company and, if so, adopt those measures the bank holding 
company concludes are appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means.
    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including 
while in transit or in storage on networks or systems to which 
unauthorized individuals may have access;
    d. Procedures designed to ensure that customer information 
system modifications are consistent with the bank holding company's 
information security program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access 
to customer information;
    f. Monitoring systems and procedures to detect actual and 
attempted attacks on or intrusions into customer information 
systems;
    g. Response programs that specify actions to be taken when the 
bank holding company suspects or detects that unauthorized 
individuals have gained access to customer information systems, 
including appropriate reports to regulatory and law enforcement 
agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement the bank holding company's 
information security program.
    3. Regularly test the key controls, systems and procedures of 
the information security program. The frequency and nature of such 
tests should be determined by the bank holding company's risk 
assessment. Tests should be conducted or reviewed by independent 
third parties or staff independent of those that develop or maintain 
the security programs.
    D. Oversee Service Provider Arrangements. Each bank holding 
company shall:
    1. Exercise appropriate due diligence in selecting its service 
providers;
    2. Require its service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by the bank holding company's risk 
assessment, monitor its service providers to confirm that they have 
satisfied their obligations as required by paragraph D.2. As part of 
this monitoring, a bank holding company should review audits, 
summaries of test results, or other equivalent evaluations of its 
service providers.
    E. Adjust the Program. Each bank holding company shall monitor, 
evaluate, and adjust, as appropriate, the information security 
program in light of any relevant changes in technology, the 
sensitivity of its customer information, internal or external 
threats to information, and the bank holding company's own changing 
business arrangements, such as mergers and acquisitions, alliances 
and joint ventures, outsourcing arrangements, and changes to 
customer information systems.
    F. Report to the Board. Each bank holding company shall report 
to its board or an appropriate committee of the board at least 
annually. This report should describe the overall status of the 
information security program and the bank holding company's 
compliance with these Guidelines. The reports should discuss 
material matters related to its program, addressing issues such as: 
risk assessment; risk management and control decisions; service 
provider arrangements; results of testing; security breaches or 
violations and management's responses; and recommendations for 
changes in the information security program.
    G. Implement the Standards.
    1. Effective date. Each bank holding company must implement an 
information security program pursuant to these Guidelines by July 1, 
2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that a bank holding company has 
entered into with a service provider to perform services for it or 
functions on its behalf satisfies the provisions of section III.D., 
even if the contract does not include a requirement that the 
servicer maintain the security and confidentiality of customer 
information, as long as the bank holding company entered into the 
contract on or before March 5, 2001.

PART 263--RULES OF PRACTICE FOR HEARINGS

    11. The authority citation for part 263 is revised to read as 
follows:

    Authority: 5 U.S.C. 504; 12 U.S.C. 248, 324, 504, 505, 1817(j), 
1818, 1828(c), 1831o, 1831p-1, 1847(b), 1847(d), 1884(b), 
1972(2)(F), 3105, 3107, 3108, 3907, 3909; 15 U.S.C. 21, 78o-4, 78o-
5, 78u-2, 6801, 6805; and 28 U.S.C. 2461 note.

    12. Amend Sec. 263.302 to revise paragraph (a) to read as follows:


Sec. 263.302  Determination and notification of failure to meet safety 
and soundness standard and request for compliance plan.

    (a) Determination. The Board may, based upon an examination, 
inspection, or any other information that becomes available to the 
Board, determine that a bank has failed to satisfy the safety and 
soundness standards contained in the Interagency Guidelines 
Establishing Standards for Safety and Soundness or the Interagency 
Guidelines Establishing Standards for Safeguarding Customer 
Information, set forth in appendices D-1 and D-2 to part 208 of this 
chapter, respectively.
* * * * *


[[Page 8638]]


    By order of the Board of Governors of the Federal Reserve 
System, January 4, 2001.
Jennifer J. Johnson,
Secretary of the Board.

Federal Deposit Insurance Corporation

12 CFR Chapter III

Authority and Issuance

    For the reasons set forth in the joint preamble, parts 308 and 364 
of chapter III of title 12 of the Code of Federal Regulations are 
amended as follows:

PART 308--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 308 is revised to read as 
follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831o, 1831p-1, 
1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 
78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3 and 
78w; 6801(b), 6805(b)(1), 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 
42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 110 Stat. 1321-358.

    1. Amend Sec. 308.302 to revise paragraph (a) to read as follows:


Sec. 308.302  Determination and notification of failure to meet a 
safety and soundness standard and request for compliance plan.

    (a) Determination. The FDIC may, based upon an examination, 
inspection or any other information that becomes available to the FDIC, 
determine that a bank has failed to satisfy the safety and soundness 
standards set out in part 364 of this chapter and in the Interagency 
Guidelines Establishing Standards for Safety and Soundness in appendix 
A and the Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information in appendix B to part 364 of this 
chapter.
* * * * *

PART 364--STANDARDS FOR SAFETY AND SOUNDNESS

    2. The authority citation for part 364 is revised to read as 
follows:

    Authority: 12 U.S.C. 1819(Tenth), 1831p-1; 15 U.S.C. 6801(b), 
6805(b)(1).

    3. Amend Sec. 364.101 to revise paragraph (b) to read as follows:


Sec. 364.101  Standards for safety and soundness.

* * * * *
    (b) Interagency Guidelines Establishing Standards for Safeguarding 
Customer Information. The Interagency Guidelines Establishing Standards 
for Safeguarding Customer Information prescribed pursuant to section 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1831p-1) and sections 
501 and 505(b) of the Gramm-Leach-Bliley Act (15 U.S.C. 6801, 6805(b)), 
as set forth in appendix B to this part, apply to all insured state 
nonmember banks, insured state licensed branches of foreign banks, and 
any subsidiaries of such entities (except brokers, dealers, persons 
providing insurance, investment companies, and investment advisers).

    4. Revise appendix B to part 364 to read as follows:

Appendix B to Part 364--Interagency Guidelines Establishing 
Standards for Safeguarding Customer Information

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    The Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information (Guidelines) set forth standards 
pursuant to section 39 of the Federal Deposit Insurance Act (section 
39, codified at 12 U.S.C. 1831p-1), and sections 501 and 505(b), 
codified at 15 U.S.C. 6801 and 6805(b), of the Gramm-Leach-Bliley 
Act. These Guidelines address standards for developing and 
implementing administrative, technical, and physical safeguards to 
protect the security, confidentiality, and integrity of customer 
information.
    A. Scope. The Guidelines apply to customer information 
maintained by or on behalf of entities over which the Federal 
Deposit Insurance Corporation (FDIC) has authority. Such entities, 
referred to as ``the bank'' are banks insured by the FDIC (other 
than members of the Federal Reserve System), insured state branches 
of foreign banks, and any subsidiaries of such entities (except 
brokers, dealers, persons providing insurance, investment companies, 
and investment advisers).
    B. Preservation of Existing Authority. Neither section 39 nor 
these Guidelines in any way limit the authority of the FDIC to 
address unsafe or unsound practices, violations of law, unsafe or 
unsound conditions, or other practices. The FDIC may take action 
under section 39 and these Guidelines independently of, in 
conjunction with, or in addition to, any other enforcement action 
available to the FDIC.
    C. Definitions. 1. Except as modified in the Guidelines, or 
unless the context otherwise requires, the terms used in these 
Guidelines have the same meanings as set forth in sections 3 and 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions 
apply:
    a. Board of directors, in the case of a branch or agency of a 
foreign bank, means the managing official in charge of the branch or 
agency.
    b. Customer means any customer of the bank as defined in 
Sec. 332.3(h) of this chapter.
    c. Customer information means any record containing nonpublic 
personal information, as defined in Sec. 332.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that 
is maintained by or on behalf of the bank.
    d. Customer information systems means any methods used to 
access, collect, store, use, transmit, protect, or dispose of 
customer information.
    e. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
through its provision of services directly to the bank.

II. Standards for Safeguarding Customer Information

    A. Information Security Program. Each bank shall implement a 
comprehensive written information security program that includes 
administrative, technical, and physical safeguards appropriate to 
the size and complexity of the bank and the nature and scope of its 
activities. While all parts of the bank are not required to 
implement a uniform set of policies, all elements of the information 
security program must be coordinated.
    B. Objectives. A bank's information security program shall be 
designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. The board of directors or an 
appropriate committee of the board of each bank shall:
    1. Approve the bank's written information security program; and
    2. Oversee the development, implementation, and maintenance of 
the bank's information security program, including assigning 
specific responsibility for its implementation and reviewing reports 
from management.
    B. Assess Risk.
    Each bank shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.

[[Page 8639]]

    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control 
risks.
    C. Manage and Control Risk. Each bank shall:
    1. Design its information security program to control the 
identified risks, commensurate with the sensitivity of the 
information as well as the complexity and scope of the bank's 
activities. Each bank must consider whether the following security 
measures are appropriate for the bank and, if so, adopt those 
measures the bank concludes are appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means.
    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including 
while in transit or in storage on networks or systems to which 
unauthorized individuals may have access;
    d. Procedures designed to ensure that customer information 
system modifications are consistent with the bank's information 
security program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access 
to customer information;
    f. Monitoring systems and procedures to detect actual and 
attempted attacks on or intrusions into customer information 
systems;
    g. Response programs that specify actions to be taken when the 
bank suspects or detects that unauthorized individuals have gained 
access to customer information systems, including appropriate 
reports to regulatory and law enforcement agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement the bank's information security 
program.
    3. Regularly test the key controls, systems and procedures of 
the information security program. The frequency and nature of such 
tests should be determined by the bank's risk assessment. Tests 
should be conducted or reviewed by independent third parties or 
staff independent of those that develop or maintain the security 
programs.
    D. Oversee Service Provider Arrangements. Each bank shall:
    1. Exercise appropriate due diligence in selecting its service 
providers;
    2. Require its service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by the bank's risk assessment, monitor its 
service providers to confirm that they have satisfied their 
obligations as required by paragraph D.2. As part of this 
monitoring, a bank should review audits, summaries of test results, 
or other equivalent evaluations of its service providers.
    E. Adjust the Program. Each bank shall monitor, evaluate, and 
adjust, as appropriate, the information security program in light of 
any relevant changes in technology, the sensitivity of its customer 
information, internal or external threats to information, and the 
bank's own changing business arrangements, such as mergers and 
acquisitions, alliances and joint ventures, outsourcing 
arrangements, and changes to customer information systems.
    F. Report to the Board. Each bank shall report to its board or 
an appropriate committee of the board at least annually. This report 
should describe the overall status of the information security 
program and the bank's compliance with these Guidelines. The report, 
which will vary depending upon the complexity of each bank's program 
should discuss material matters related to its program, addressing 
issues such as: risk assessment; risk management and control 
decisions; service provider arrangements; results of testing; 
security breaches or violations, and management's responses; and 
recommendations for changes in the information security program.
    G. Implement the Standards. 1. Effective date. Each bank must 
implement an information security program pursuant to these 
Guidelines by July 1, 2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that a bank has entered into with a 
service provider to perform services for it or functions on its 
behalf, satisfies the provisions of paragraph III.D., even if the 
contract does not include a requirement that the servicer maintain 
the security and confidentiality of customer information as long as 
the bank entered into the contract on or before March 5, 2001.

    By order of the Board of Directors.

    Dated at Washington, D.C., this 21st day of December, 2000.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.

Office of Thrift Supervision

12 CFR Chapter V

Authority and Issuance

    For the reasons set forth in the joint preamble, parts 568 and 570 
of chapter V of title 12 of the Code of Federal regulations are amended 
as follows:

PART 568--SECURITY PROCEDURES

    1. The authority citation of part 568 is revised to read as 
follows:

    Authority: Secs. 2-5, 82 Stat. 294-295 (12 U.S.C. 1881-1984); 12 
U.S.C. 1831p-1; 15 U.S.C. 6801, 6805(b)(1).

    2. Amend Sec. 568.1 by revising paragraph (a) to read as follows:


Sec. 568.1  Authority, purpose, and scope.

    (a) This part is issued by the Office of Thrift Supervision (OTS) 
pursuant to section 3 of the Bank Protection Act of 1968 (12 U.S.C. 
1882), and sections 501 and 505(b)(1) of the Gramm-Leach-Bliley Act (12 
U.S.C. 6801, 6805(b)(1)). This part is applicable to savings 
associations. It requires each savings association to adopt appropriate 
security procedures to discourage robberies, burglaries, and larcenies 
and to assist in the identification and prosecution of persons who 
commit such acts. Section 568.5 of this part is applicable to savings 
associations and their subsidiaries (except brokers, dealers, persons 
providing insurance, investment companies, and investment advisers). 
Section 568.5 of this part requires covered institutions to establish 
and implement appropriate administrative, technical, and physical 
safeguards to protect the security, confidentiality, and integrity of 
customer information.
* * * * *

    3. Add new Sec. 568.5 to read as follows:


Sec. 568.5  Protection of customer information.

    Savings associations and their subsidiaries (except brokers, 
dealers, persons providing insurance, investment companies, and 
investment advisers) must comply with the Interagency Guidelines 
Establishing Standards for Safeguarding Customer Information prescribed 
pursuant to sections 501 and 505 of the Gramm-Leach-Bliley Act (15 
U.S.C. 6801 and 6805), set forth in appendix B to part 570 of this 
chapter.

PART 570--SUBMISSION AND REVIEW OF SAFETY AND SOUNDNESS COMPLIANCE 
PLANS AND ISSUANCE OF ORDERS TO CORRECT SAFETY AND SOUNDNESS 
DEFICIENCIES

    4. Amend Sec. 570.1 by adding a sentence at the end of paragraph 
(a) and revising the last sentence of paragraph (b) to read as follows:


Sec. 570.1  Authority, purpose, scope and preservation of existing 
authority.

    (a) * * *Appendix B to this part is further issued under sections 
501(b) and 505 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 
Stat. 1338 (1999)).
    (b)* * *Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information are set forth in appendix B to this 
part.
* * * * *

    5. Amend Sec. 570.2 by revising paragraph (a) to read as follows:

[[Page 8640]]

Sec. 570.2  Determination and notification of failure to meet safety 
and soundness standards and request for compliance plan.

    (a) Determination. OTS may, based upon an examination, inspection, 
or any other information that becomes available to OTS, determine that 
a savings association has failed to satisfy the safety and soundness 
standards contained in the Interagency Guidelines Establishing 
Standards for Safety and Soundness as set forth in appendix A to this 
part or the Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information as set forth in appendix B to this 
part.
* * * * *

    6. Revise appendix B to part 570 to read as follows:

Appendix B to Part 570--Interagency Guidelines Establishing 
Standards for Safeguarding Customer Information

Table of Contents

I. Introduction
    A. Scope
    B. Preservation of Existing Authority
    C. Definitions
II. Standards for Safeguarding Customer Information
    A. Information Security Program
    B. Objectives
III. Development and Implementation of Customer Information Security 
Program
    A. Involve the Board of Directors
    B. Assess Risk
    C. Manage and Control Risk
    D. Oversee Service Provider Arrangements
    E. Adjust the Program
    F. Report to the Board
    G. Implement the Standards

I. Introduction

    The Interagency Guidelines Establishing Standards for 
Safeguarding Customer Information (Guidelines) set forth standards 
pursuant to section 39 of the Federal Deposit Insurance Act (section 
39, codified at 12 U.S.C. 1831p-1), and sections 501 and 505(b), 
codified at 15 U.S.C. 6801 and 6805(b), of the Gramm-Leach-Bliley 
Act. These Guidelines address standards for developing and 
implementing administrative, technical, and physical safeguards to 
protect the security, confidentiality, and integrity of customer 
information.
    A. Scope. The Guidelines apply to customer information 
maintained by or on behalf of entities over which OTS has authority. 
For purposes of this appendix, these entities are savings 
associations whose deposits are FDIC-insured and any subsidiaries of 
such savings associations, except brokers, dealers, persons 
providing insurance, investment companies, and investment advisers. 
This appendix refers to such entities as ``you'.
    B. Preservation of Existing Authority. Neither section 39 nor 
these Guidelines in any way limit OTS's authority to address unsafe 
or unsound practices, violations of law, unsafe or unsound 
conditions, or other practices. OTS may take action under section 39 
and these Guidelines independently of, in conjunction with, or in 
addition to, any other enforcement action available to OTS.
    C. Definitions. 1. Except as modified in the Guidelines, or 
unless the context otherwise requires, the terms used in these 
Guidelines have the same meanings as set forth in sections 3 and 39 
of the Federal Deposit Insurance Act (12 U.S.C. 1813 and 1831p-1).
    2. For purposes of the Guidelines, the following definitions 
apply:
    a. Customer means any of your customers as defined in 
Sec. 573.3(h) of this chapter.
    b. Customer information means any record containing nonpublic 
personal information, as defined in Sec. 573.3(n) of this chapter, 
about a customer, whether in paper, electronic, or other form, that 
you maintain or that is maintained on your behalf.
    c. Customer information systems means any methods used to 
access, collect, store, use, transmit, protect, or dispose of 
customer information.
    d. Service provider means any person or entity that maintains, 
processes, or otherwise is permitted access to customer information 
through its provision of services directly to you.

II. Standards for Safeguarding Customer Information

    A. Information Security Program. You shall implement a 
comprehensive written information security program that includes 
administrative, technical, and physical safeguards appropriate to 
your size and complexity and the nature and scope of your 
activities. While all parts of your organization are not required to 
implement a uniform set of policies, all elements of your 
information security program must be coordinated.
    B. Objectives. Your information security program shall be 
designed to:
    1. Ensure the security and confidentiality of customer 
information;
    2. Protect against any anticipated threats or hazards to the 
security or integrity of such information; and
    3. Protect against unauthorized access to or use of such 
information that could result in substantial harm or inconvenience 
to any customer.

III. Development and Implementation of Information Security Program

    A. Involve the Board of Directors. Your board of directors or an 
appropriate committee of the board shall:
    1. Approve your written information security program; and
    2. Oversee the development, implementation, and maintenance of 
your information security program, including assigning specific 
responsibility for its implementation and reviewing reports from 
management.
    B. Assess Risk. You shall:
    1. Identify reasonably foreseeable internal and external threats 
that could result in unauthorized disclosure, misuse, alteration, or 
destruction of customer information or customer information systems.
    2. Assess the likelihood and potential damage of these threats, 
taking into consideration the sensitivity of customer information.
    3. Assess the sufficiency of policies, procedures, customer 
information systems, and other arrangements in place to control 
risks.
    C. Manage and Control Risk. You shall:
    1. Design your information security program to control the 
identified risks, commensurate with the sensitivity of the 
information as well as the complexity and scope of your activities. 
You must consider whether the following security measures are 
appropriate for you and, if so, adopt those measures you conclude 
are appropriate:
    a. Access controls on customer information systems, including 
controls to authenticate and permit access only to authorized 
individuals and controls to prevent employees from providing 
customer information to unauthorized individuals who may seek to 
obtain this information through fraudulent means.
    b. Access restrictions at physical locations containing customer 
information, such as buildings, computer facilities, and records 
storage facilities to permit access only to authorized individuals;
    c. Encryption of electronic customer information, including 
while in transit or in storage on networks or systems to which 
unauthorized individuals may have access;
    d. Procedures designed to ensure that customer information 
system modifications are consistent with your information security 
program;
    e. Dual control procedures, segregation of duties, and employee 
background checks for employees with responsibilities for or access 
to customer information;
    f. Monitoring systems and procedures to detect actual and 
attempted attacks on or intrusions into customer information 
systems;
    g. Response programs that specify actions for you to take when 
you suspect or detect that unauthorized individuals have gained 
access to customer information systems, including appropriate 
reports to regulatory and law enforcement agencies; and
    h. Measures to protect against destruction, loss, or damage of 
customer information due to potential environmental hazards, such as 
fire and water damage or technological failures.
    2. Train staff to implement your information security program.
    3. Regularly test the key controls, systems and procedures of 
the information security program. The frequency and nature of such 
tests should be determined by your risk assessment. Tests should be 
conducted or reviewed by independent third parties or staff 
independent of those that develop or maintain the security programs.
    D. Oversee Service Provider Arrangements. You shall:
    1. Exercise appropriate due diligence in selecting your service 
providers;
    2. Require your service providers by contract to implement 
appropriate measures designed to meet the objectives of these 
Guidelines; and
    3. Where indicated by your risk assessment, monitor your service 
providers to confirm that they have satisfied their

[[Page 8641]]

obligations as required by paragraph D.2. As part of this 
monitoring, you should review audits, summaries of test results, or 
other equivalent evaluations of your service providers.
    E. Adjust the Program. You shall monitor, evaluate, and adjust, 
as appropriate, the information security program in light of any 
relevant changes in technology, the sensitivity of your customer 
information, internal or external threats to information, and your 
own changing business arrangements, such as mergers and 
acquisitions, alliances and joint ventures, outsourcing 
arrangements, and changes to customer information systems.
    F. Report to the Board. You shall report to your board or an 
appropriate committee of the board at least annually. This report 
should describe the overall status of the information security 
program and your compliance with these Guidelines. The reports 
should discuss material matters related to your program, addressing 
issues such as: risk assessment; risk management and control 
decisions; service provider arrangements; results of testing; 
security breaches or violations and management's responses; and 
recommendations for changes in the information security program.
    G. Implement the Standards. 1. Effective date. You must 
implement an information security program pursuant to these 
Guidelines by July 1, 2001.
    2. Two-year grandfathering of agreements with service providers. 
Until July 1, 2003, a contract that you have entered into with a 
service provider to perform services for you or functions on your 
behalf satisfies the provisions of paragraph III.D., even if the 
contract does not include a requirement that the servicer maintain 
the security and confidentiality of customer information, as long as 
you entered into the contract on or before March 5, 2001.

    Dated: December 19, 2000.

    By the Office of Thrift Supervision.
Ellen Seidman,
Director.
[FR Doc. 01-1114 Filed 1-31-01; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 6714-01-P; 6720-01-P


Last Updated 03/14/2001 communications@fdic.gov