It is unlikely that you will be able to fulfill your notice requirements by posting updated terms and conditions on your website if your updated deposit account terms affect any of the notice requirements under Regulation CC, Regulation E, Regulation DD, or Regulation P.

These regulations do allow electronic disclosure if certain requirements are met, in most (but not all) cases with the requirement to meet the affirmative consent requirements of the Electronic Signatures in Global and National Commerce (E-Sign) Act for consumer accounts.

Regulation CC’s Disclosure Requirements

If you change your funds availability policy, Regulation CC requires you to notify your consumer account customers at least thirty days before implementing the change (unless the change expedites the availability of funds, in which case you can notify customers within thirty days after the implementation).

The Official Staff Commentary to Regulation CC expressly states that these disclosures can be made electronically if you comply with the E-Sign Act’s requirements for obtaining the consumer’s affirmative consent (including clear and conspicuous notice of certain information as outlined in the law, among other conditions). Additionally, disclosures regarding your funds availability policy may not contain other, unrelated account information.

Regulation E’s Disclosure Requirements

Regulation E requires a change-in-terms notice at least twenty-one days before any changes to a customer’s electronic funds transfer service that result in: (i) increased fees for the consumer, (ii) increased liability for the consumer, (iii) fewer types of available electronic fund transfers, or (iv) stricter limitations on the frequency or dollar amount of transfers.

Regulation E expressly states that disclosures may be made electronically if you comply with the E-Sign Act’s requirements, and you may include the notice in a customer’s periodic statement. Regulation E’s disclosures may include additional information and be combined with other disclosures required by law. 

Regulation DD’s Disclosure Requirements

Regulation DD requires a change-in-terms notice at least thirty calendar days before a change that “may reduce the annual percentage yield or adversely affect the consumer.” However, no notices are required for the following: (i) variable-rate changes (changes in the interest rate and corresponding changes in the annual percentage yield in variable-rate accounts, (ii) check printing fees (changes in fees assessed for check printing), and (iii) short-term time accounts (changes in any term for time accounts with maturities of one month or less).

Regulation DD expressly provides that its required disclosures may be made electronically if you comply with the E-Sign Act’s requirements. The notice also may be included on or with a periodic statement or in another mailing.

Regulation P’s Disclosure Requirements

Regulation P requires a new privacy notice and opt-out form if there are changes to your privacy notice that would allow you to “disclose any nonpublic personal information about a consumer to a nonaffiliated third party other than as described in the initial notice.”

Regulation P provides that such disclosures may be provided electronically if the consumer agrees, without regard to the E-Sign Act’s consumer consent requirements.

For resources related to our guidance, please see:

• Regulation CC, 12 CFR 229.18(e) (“A bank shall send a notice to holders of consumer accounts at least 30 days before implementing a change to the bank’s availability policy regarding such accounts, except that a change that expedites the availability of funds may be disclosed not later than 30 days after implementation.”)

• E-Sign Act, 15 USC 7001(c)(1) (“ . . . if a statute, regulation, or other rule of law requires that information . . . be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if [among several other requirements] . . . (A) the consumer has affirmatively consented to such use and has not withdrawn such consent; . . .”)

• Regulation CC, Official Interpretations, Paragraph 229.15(a), Comment 1 (“This paragraph sets forth the general requirements for the disclosures required under Subpart B. All of the disclosures must be given in a clear and conspicuous manner, must be in writing, and, in most cases, must be in a form the customer may keep. A disclosure is in a form that the customer may keep if, for example, it can be downloaded or printed. For a customer that is not a consumer, a depositary bank satisfies the written-disclosure requirement by sending an electronic disclosure that displays the text and is in a form that the customer may keep, if the customer agrees to such means of disclosure. For a customer who is a consumer, a depositary bank satisfies the written-notice requirement by sending an electronic notice in compliance with the requirements of the Electronic Signatures in Global and National Commerce Act (12 U.S.C. 7001 et seq.), which include obtaining the consumer’s affirmative consent to such means of notice. Disclosures posted at locations where employees accept consumer deposits, at ATMs, and on preprinted deposit slips need not be in a form that the customer may keep. Appendix C of the regulation contains model forms, clauses, and notices to assist banks in preparing disclosures.”)

• Regulation CC, Official Interpretations, Paragraph 229.15(a), Comment 2 (“Disclosures concerning availability must be grouped together and may not contain any information that is not related to the disclosures required by this subpart. Therefore, banks may not intersperse the required disclosures with other account disclosures, and may not include other account information that is not related to their availability policy within the text of the required disclosures. Banks may, however, include information that is related to their availability policies. For example, a bank may inform its customers that, even when the bank has already made funds available for withdrawal, the customer is responsible for any problem with the deposit, such as the return of a deposited check.”)

• Regulation E, 12 CFR 1005.8(a)(1) (“A financial institution shall mail or deliver a written notice to the consumer, at least 21 days before the effective date, of any change in a term or condition required to be disclosed under § 1005.7(b) of this part if the change would result in:

(i) Increased fees for the consumer;

(ii) Increased liability for the consumer;

(iii) Fewer types of available electronic fund transfers; or

(iv) Stricter limitations on the frequency or dollar amount of transfers.”)

• Regulation E, 12 CFR 1005.4(a)(1) (“Disclosures required under this part shall be clear and readily understandable, in writing, and in a form the consumer may keep, except as otherwise provided in this part. The disclosures required by this part may be provided to the consumer in electronic form, subject to compliance with the consumer-consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.). A financial institution may use commonly accepted or readily understandable abbreviations in complying with the disclosure requirements of this part.”)

• Regulation E, Official Interpretations, Paragraph 8(a), Comment 1 (“No specific form or wording is required for a change-in-terms notice. The notice may appear on a periodic statement, or may be given by sending a copy of a revised disclosure statement, provided attention is directed to the change (for example, in a cover letter referencing the changed term).”)

• Regulation E, 12 CFR 1005.4(b) (“A financial institution may include additional information and may combine disclosures required by other laws (such as the Truth in Lending Act (15 U.S.C. 1601 et seq.) or the Truth in Savings Act (12 U.S.C. 4301 et seq.) with the disclosures required by this part.”)

• Regulation DD, 12 CFR 1030.5(a)(1) (“A depository institution shall give advance notice to affected consumers of any change in a term required to be disclosed under § 1030.4(b) of this part if the change may reduce the annual percentage yield or adversely affect the consumer. The notice shall include the effective date of the change. The notice shall be mailed or delivered at least 30 calendar days before the effective date of the change.”)

• Regulation DD, 12 CFR 1030.5(a)(2) (“No notice under this section is required for:

(i) Variable-rate changes. Changes in the interest rate and corresponding changes in the annual percentage yield in variable-rate accounts.

(ii) Check printing fees. Changes in fees assessed for check printing.

(iii) Short-term time accounts. Changes in any term for time accounts with maturities of one month or less.”)

• Regulation DD, 12 CFR 1030.3(a) (“Depository institutions shall make the disclosures required by §§ 1030.4 through 1030.6 of this part, as applicable, clearly and conspicuously, in writing, and in a form the consumer may keep. The disclosures required by this part may be provided to the consumer in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.) The disclosures required by §§ 1030.4(a)(2) and 1030.8 may be provided to the consumer in electronic form without regard to the consumer consent or other provisions of the E-Sign Act in the circumstances set forth in those sections. Disclosures for each account offered by an institution may be presented separately or combined with disclosures for the institution's other accounts, as long as it is clear which disclosures are applicable to the consumer’s account.”)

• Regulation DD, Official Interpretations, Paragraph 5(a)(1), Comment 1 (“Institutions may provide a change-in-term notice on or with a periodic statement or in another mailing. If an institution provides notice through revised account disclosures, the changed term must be highlighted in some manner. For example, institutions may note that a particular fee has been changed (also specifying the new amount) or use an accompanying letter that refers to the changed term.”)

• Regulation P, 12 CFR 1016.8(a) (“Except as otherwise authorized in this part, you must not, directly or through any affiliate, disclose any nonpublic personal information about a consumer to a nonaffiliated third party other than as described in the initial notice that you provided to that consumer under § 1016.4 of this part, unless:

(1) You have provided to the consumer a clear and conspicuous revised notice that accurately describes your policies and practices;

(2) You have provided to the consumer a new opt out notice;

(3) You have given the consumer a reasonable opportunity, before you disclose the information to the nonaffiliated third party, to opt out of the disclosure; and

(4) The consumer does not opt out.”)

• Regulation P, 12 CFR 1016.9(a) (“You must provide any privacy notices and opt out notices, including short-form initial notices, that this part requires so that each consumer can reasonably be expected to receive actual notice in writing or, if the consumer agrees, electronically.”)