Q: What if the replacement index selected does not have historical fluctuations to compare to LIBOR for Condition 2 of the Margin and Index Change Conditions?
A: As discussed above in LIBOR Credit Card FAQ 3, a card issuer may only replace the index on a credit card account if certain conditions are met. If using the Unavailable Provision or the LIBOR-Specific Provision, under the second condition, Historical Fluctuation Comparison, the card issuer must determine that the replacement index has historical fluctuations that are substantially similar to those of the LIBOR index being replaced, so long as the index is not newly established. 12 CFR § 1026.55(b)(7)(i) and 55(b)(7)(ii).
For purposes of the LIBOR Transition, if a card issuer selects a replacement index that is newly established, and therefore does not have historical fluctuations for comparison, the Historical Fluctuation Comparison condition does not apply. The newly established index may still be used as a replacement if it meets the third condition (APR Comparison), i.e., that it produces an APR substantially similar to the APR in effect when LIBOR becomes unavailable under the Unavailable Provision or, if using the LIBOR-Specific Provision, the APR calculated using the LIBOR index values generally on October 18, 2021. 12 CFR § 1026.55(b)(7)(i) and 55(b)(7)(ii). For more information on the APR Comparison condition, see LIBOR Credit Card FAQ 9, below.
“Newly established” is not defined in Regulation Z and is a fact-specific determination. For example, the Bureau does not consider the SOFR-Based Spread-Adjusted Indices to be newly established, as used in Regulation Z. Although the SOFR-Based Spread-Adjusted Indices have not yet been published, these indices will be based on an underlying SOFR rate, which has been published and therefore the indices have rate history that can be used to determine the historical fluctuations.