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Do FACT Act Red Flag Rules apply to my business?

Consider these two questions:

1. Do you invoice your customers or accept payments over time on debts or purchases?

By answering “yes” to this question, you may be defined as a creditor and have to comply with the Red Flag Rules.

The Red Flag Rules apply to financial institutions and creditors. The term financial institution is defined more in a traditional sense to include organizations involved in banking, investing, and insurance. The definitions of credit and creditor are broader and derived from Title VII, Section 702 of the Equal Credit Opportunity Act. Based upon the definitions cited below, you are a creditor when you create and maintain an ongoing relationship with an individual, group, or entity to allow the deferment of payment on a debt, property, or service.

Title VII, Section 702 (d). The term ‘credit’ means the right granted by a creditor to a debtor to defer payment of debt or to incur debts and defer its payment or to purchase property or services and defer payment thereof.

Title VII, Section 702 (e). The term ‘creditor’ means any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit.

Title VII, Section 702 (f). The term ‘person’ means a natural person, a corporation, government or governmental subdivision agency, trust, estate, partnership, cooperative, or association.

If you find that you are a financial institution or creditor then read on.

2. Do you collect and keep information on your customers for ongoing business?

By answering “yes” to this question, you may offer and maintain “covered accounts” and have to comply with the Red Flag Rules.

The Red Flag Rules state that only financial institutions and creditors who offer or maintain “covered accounts” must develop and implement a written identity theft prevention program. Both new and existing accounts where a continuing relationship exists between the company and an individual, group, or entity must be considered. A covered account is:

  1. An account that a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, which involves or is designated to permit multiple payments or transactions. Examples include a credit card account, mortgage loan, automobile loan, margin account, cell phone account, utility account, checking account, or savings account.
  2. Any other account that the financial institution or creditor offers or maintains for which there is a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft, including financial, operational, compliance, reputation or mitigation risks.