Disclosure of Certain Credit Card Complaint Data, 76628-76633 [2011-31153]

Download as PDF mstockstill on DSK4VPTVN1PROD with PROPOSALS 76628 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules compliance with the reporting requirements of 10 CFR 32.52 and equivalent Agreement State provisions. The NRC initiated this contact with the goal of assisting distributors in their efforts to consistently provide the NRC with information that satisfies the reporting requirements in 10 CFR 32.52. This information reported under 10 CFR 32.52 pertains to the general licensees to whom distributors have transferred signs. The petitioner asserted that ‘‘the majority’’ of unaccounted for tritium exit signs are disposed of in solid waste landfills where they may become potential sources of groundwater and surface water contamination. The NRC concludes that the petitioner did not demonstrate that the excess tritium being found in landfill leachate, even if resulting from improper disposal of tritium exit signs, could result in hazardous levels of tritium in drinking water. Published reports such as ‘‘Radiological Investigation Results for Pennsylvania Landfill Leachate: 2009 Tritium Update,’’ Safety and Ecology Corporation, Knoxville, TN, March 31, 2010, support this conclusion. The study incorporated the use of sitespecific dilution factors based on factors such as discharge rates and known distances between leachate effluent release points and downstream water supply intakes to convert observed leachate tritium concentrations into diluted tritium concentrations assumed to be available for human consumption. The report concluded not only that the resulting concentrations of tritium were well below the U.S. Environmental Protection Agency (EPA) maximum contaminant level (MCL) of 20,000 pCi/ L for tritium in drinking water, but that ‘‘average drinking water intake tritium concentrations * * * were more than 200 times less than the EPA 20,000 pCi/ L MCL, ranging from 0–99 pCi/L.’’ The petitioner also expressed concern that samples collected from leachate collection systems exceeded 20,000 pCi/ L. It should be noted that 20,000 pCi/ L is the EPA’s MCL for tritium in drinking water and not leachate. Landfill monitoring reports show that despite high tritium concentrations in leachate, drinking water samples collected downstream of landfills maintain tritium concentrations well below the EPA’s MCL. For example, the ‘‘Radiological Investigation Results for Pennsylvania Landfill Leachate: 2009 Tritium Update’’ report, referenced above, shows that ‘‘maximum drinking water [tritium] intake concentrations were over 100 times less than the EPA 20,000 pCi/L MCL ranging from 0 to 146 pCi/L.’’ VerDate Mar<15>2010 15:57 Dec 07, 2011 Jkt 226001 While the NRC does not regulate solid waste landfills, the NRC staff also concluded that current landfill practices would mitigate the impacts from tritium released from any exit signs that may be disposed in landfills. These include: Cover systems that minimize rainfall penetration and limit the migration of tritium due to erosion or interaction with animals; cell liners that prevent leachate from leaking into the groundwater; gaseous extraction wells that remove gases building up within the landfill; and leachate collection systems that collect, process, and treat leachate. In addition to reviewing these previously published reports and comparing tritium concentrations measured in leachate and drinking water to regulatory standards, the NRC reviewed the possible risks to landfill workers and the general public from exposure to tritium associated with landfill disposals. The NRC determined that tritium contamination involves such low levels of tritium that it would not pose a health and safety threat to the landfill worker or the general public. Conclusion The NRC is denying the petition for rulemaking because the NRC’s current regulations in this area are adequate to protect public health and safety. In conclusion, the petitioner has not submitted any new information that indicates a health and safety issue that warrants rulemaking or calls into question the existing regulatory requirements. Existing NRC regulations provide reasonable assurance that public health and safety are adequately protected. For the reasons cited in this document, the NRC denies the petition. Dated at Rockville, Maryland this 2nd day of December, 2011. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. 2011–31523 Filed 12–7–11; 8:45 am] BILLING CODE 7590–01–P BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Chapter X [Docket No. CFPB–2011–0040] Disclosure of Certain Credit Card Complaint Data Bureau of Consumer Financial Protection. ACTION: Notice of proposed policy statement with request for comment. AGENCY: PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 The Bureau of Consumer Financial Protection (the ‘‘CFPB’’) is requesting comment on a proposed policy statement (the ‘‘Policy Statement’’) that addresses the CFPB’s proactive disclosure of credit card complaint data. The CFPB receives credit card complaints from consumers under the terms of the Consumer Financial Protection Act of 2010. The proposed Policy Statement sets forth the CFPB’s proposed initial disclosure of credit card complaint data. It also identifies additional ways that the CFPB may disclose credit card complaint data but as to which the CFPB will conduct further study before finalizing its position. The proposed Policy Statement does not address complaint data about any other consumer financial product or service. The CFPB invites comment on all aspects of the proposed Policy Statement. DATES: Comments must be submitted on or before January 30, 2012. ADDRESSES: You may submit comments, identified by Docket No. CFPB–2011– 0040, by any of the following methods: • Electronic: https:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Monica Jackson, Consumer Financial Protection Bureau, 1500 Pennsylvania Avenue NW., (Attn: 1801 L Street), Washington, DC 20220. • Hand Delivery/Courier in Lieu of Mail: Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20006. All submissions must include the agency name and docket number of this proposed Policy Statement. In general, all comments received will be posted without change to https:// www.regulations.gov. In addition, comments will be available for public inspection and copying at 1700 G Street NW., Washington, DC 20006, on official business days between the hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment to inspect the documents by telephoning (202) 435– 7275. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments will not be edited to remove any identifying or contact information. FOR FURTHER INFORMATION CONTACT: Monica Jackson, Office of the Executive Secretary, Consumer Financial Protection Bureau, at (202) 435–7275; Scott Pluta, Office of Consumer SUMMARY: E:\FR\FM\08DEP1.SGM 08DEP1 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules Response, Consumer Financial Protection Bureau, at (202) 435–7306; or Will Wade-Gery, Division of Research, Markets and Regulations, Consumer Financial Protection Bureau, at (202) 435–7700. Authority: 12 U.S.C. 5492(a), 5493(b)(3)(C), 5496(c)(4), 5511(b)(1), (5), 5512(c)(3)(B). SUPPLEMENTARY INFORMATION: mstockstill on DSK4VPTVN1PROD with PROPOSALS I. Background On July 21, 2011, the CFPB launched a system for accepting credit card complaints. The CFPB developed this system pursuant to several provisions of the Consumer Financial Protection Act of 2010 (the ‘‘Consumer Financial Protection Act’’ or the ‘‘Act’’), including sections 1013(b)(3), 1025, 1034(a), and 1034(b), 12 U.S.C. 5493(b)(3), 5515 & 5534(a)–(b). Under this new system, consumers submit credit card complaints to the CFPB in several ways including via the CFPB’s Web site, https://www.consumerfinance.gov. The system is presently limited to accepting credit card complaints from consumers.1 The CFPB is developing plans to roll out parallel systems for other consumer financial products and services. As the system is presently configured, a consumer who submits a credit card complaint completes several nonnarrative data fields. These include the consumer’s name and address, the name of the issuing bank, and fields relating to the type of the complaint and claimed loss.2 Credit card consumers can also populate two narrative fields. These cover the consumer’s description of ‘‘what happened’’ and the consumer’s assessment of a ‘‘fair resolution.’’ If the resulting complaint concerns a credit card issuer subject to the CFPB’s supervision and primary enforcement under section 1025 of the Consumer Financial Protection Act, 12 U.S.C. 5515, the CFPB’s Office of Consumer Response (‘‘Consumer Response’’) forwards the complaint to that identified issuer.3 If the receiving issuer indicates that it did not issue the relevant credit card, Consumer Response will attempt to forward the complaint to the correct issuer. Once the 1 ‘‘Whistleblower’’ complaints are not within the scope of the present Policy Statement. See 12 U.S.C. 5567(a)(1). 2 The consumer must affirm that the submitted information is true to the best of his or her knowledge and belief. The system will accept complaints submitted on behalf of a consumer. These complaints may be subject to proof of signed, written permission from the consumer. 3 The CFPB forwards to the relevant prudential regulator any credit card complaint involving an issuer that is not subject to supervision and primary enforcement by the CFPB under section 1025. VerDate Mar<15>2010 15:57 Dec 07, 2011 Jkt 226001 correct issuer has the complaint, the issuer investigates the complaint, communicates with the consumer as the issuer deems appropriate, and determines what action, if any, to take with respect to the complaint. At the end of this process, the issuer reports to Consumer Response how it has addressed the complaint.4 Once Consumer Response receives a response from the issuer, Consumer Response invites the consumer to review the response. The CFPB prioritizes for further action complaints where the consumer expresses dissatisfaction with the issuer’s response or where the issuer fails to respond. II. Disclosure Authority The Act requires the CFPB to provide certain information to Congress about complaints and responses. In particular, section 1013(b)(3)(C) requires the CFPB to report annually to Congress information and analysis about complaint numbers, types, and, when applicable, resolution.5 See 12 U.S.C. 5493(b)(3)(C). Additionally, the Act permits the CFPB to exercise its authority for purposes of ensuring that ‘‘consumers are provided with timely and understandable information to make responsible decisions about financial transactions’’ and that ‘‘markets for consumer financial products operate transparently and efficiently.’’ 12 U.S.C. 5511(b)(1), (5). The CFPB has broad authority to make public information that is not required to be given confidential treatment. See, e.g., 12 U.S.C. 5492(a); 12 U.S.C. 5512(c)(3)(B), (c)(8). On July 22, 2011, the CFPB issued an interim final rule governing disclosure of records and information, including treatment of confidential information. See 76 FR 45372 (July 28, 2011) (to be codified at 12 CFR Part 1070). The rule defines ‘‘confidential consumer complaint information’’ as ‘‘information received or generated by the CFPB, pursuant to 12 U.S.C. 5493 and 5534, that comprises or documents consumer complaints or inquiries concerning 4 Initially, Consumer Response requested an issuer to categorize its response as ‘‘full resolution,’’ ‘‘partial resolution’’ or ‘‘no resolution,’’ but experience showed that issuers were not using these terms consistently. Under the current approach, in addition to any narrative material that the issuer provides the consumer, the issuer is asked to categorize its response as closing the complaint with relief or without relief. 5 Section 1016 also requires that the CFPB submit semi-annual reports to congressional oversight committees covering a range of topics, including ‘‘an analysis of complaints about consumer financial products or services that the Bureau has received and collected in its central database on complaints during the preceding year.’’ 12 U.S.C. 5496(c)(4). PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 76629 financial institutions or consumer financial products and services and responses thereto, to the extent that such information is exempt from disclosure pursuant to [the Freedom of Information Act (‘‘FOIA’’),] 5 U.S.C. 552(b).’’ 6 The rule generally prohibits the disclosure of confidential consumer complaint information, except in certain limited circumstances.7 However, the rule does not limit the CFPB’s discretion to disclose materials that it derives from confidential information, including confidential consumer complaint information, to the extent that such materials do not identify, either directly or indirectly, any particular individual to whom the confidential information pertains. See 12 CFR 1070.41(c). The proposed Policy Statement does not contemplate the disclosure of confidential consumer complaint information. Under the proposed Policy Statement, the CFPB would not disclose information contained in consumer credit card complaints (and responses to such complaints) that is exempt from disclosure under the FOIA, 5 U.S.C. 552(b). The CFPB will not publish the name, full address, or credit card account number associated with any given credit card complaint. In addition, as discussed further below, our policy will be not to publish credit card complaint information that could enable the consumer to be identified by any party other than the issuer of the credit card in question. Further, the CFPB will not disclose confidential and proprietary business information that issuers provide in response to complaints. Because of these limitations, the CFPB’s proposed publication of consumer complaint information pursuant to the Policy Statement does not rely upon any of the exceptions to the general prohibition on disclosure of confidential consumer complaint information. 6 12 CFR 1070.2(f). 12 CFR 1070.41 (general prohibition on disclosure of confidential information except as required by law or pursuant to the CFPB’s rules); 12 CFR 1070.43 (permitting the CFPB to disclose confidential consumer complaint information to certain Federal and state agencies, provided the agencies protect the confidentiality of the information); 12 CFR 1070.44 (permitting the CFPB to ‘‘disclose confidential consumer complaint information as it deems necessary to investigate, resolve, or otherwise respond to consumer complaints or inquiries concerning financial institutions or consumer financial products and services’’); 12 CFR 1070.45 (permitting the CFPB to disclose confidential consumer complaint information in certain circumstances in the course of law enforcement investigations and proceedings); 12 CFR 1070.46 (permitting the Director to personally authorize the disclosure of confidential consumer complaint information, provided such disclosure is consistent with applicable law, including the Privacy Act of 1974). 7 See E:\FR\FM\08DEP1.SGM 08DEP1 76630 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules FOIA requires general public disclosure of records that have been disclosed in response to a FOIA request and which the CFPB ‘‘determines have become or are likely to become the subject of subsequent requests for substantially the same records.’’ 5 U.S.C. 552(a)(2)(D). The CFPB’s interim final rule regarding this provision of FOIA states that: Subject to the application of the FOIA exemptions and exclusions * * * the CFPB shall make publicly available * * * all records * * * which have been released previously to any person under [FOIA and 12 CFR part 1070], and which the CFPB determines have become or are likely to become the subject of subsequent requests for substantially the same records because they are clearly of interest to the public at large. When the CFPB receives three (3) or more requests for substantially the same records, then the CFPB shall also make the released records publicly available.8 The CFPB has received and is reviewing comments on its interim FOIA rules, including the provision concerning section 552(a)(2)(D) of FOIA. The CFPB’s credit card complaint process has been widely publicized, and there is a high level of public interest in information regarding these complaints. As a result, the CFPB believes that its credit card complaint records may become subject to multiple, overlapping FOIA requests. The CFPB seeks comment on the interplay between the proposed Policy Statement and the possible application of the requirements of section 552(a)(2)(D) of FOIA. mstockstill on DSK4VPTVN1PROD with PROPOSALS III. Rationale for Disclosing Certain Credit Card Complaint Data The CFPB has developed the proposed Policy Statement in light of its statutory purposes of helping to provide consumers with ‘‘timely and understandable information to make responsible decisions about financial transactions’’ and helping the credit card market to ‘‘operate transparently and efficiently.’’ 12 U.S.C. 5511(b)(1) & (5). We have separated the issue of disclosure of the narrative fields of complaint data from disclosure of the non-narrative fields. These issues implicate discrete considerations. We have reviewed disclosure practices at other Federal and state agencies, the complaint-handling 8 See 12 CFR 1070.11(c). United States Department of Justice (‘‘DOJ’’) guidance provides that three requests for the same records are generally enough to trigger an agency’s disclosure obligation under 5 U.S.C. 552(a)(2)(D). Department of Justice, Office of Information Policy, Guide to the Freedom of Information Act, pp. 17–18 (2009 ed.); FOIA Post, ‘‘FOIA Counselor Q&A: ‘Frequently Requested’ Records’’ (7/25/03) available at https:// www.justice.gov/oip/foiapost/2003foiapost28.htm. VerDate Mar<15>2010 15:57 Dec 07, 2011 Jkt 226001 experience of other financial regulators, and the positions of different stakeholders as they have been voiced to the CFPB to date. As noted, the proposed Policy Statement only covers the disclosure of certain credit card complaint data. Disclosing data on other types of complaints may raise different considerations that are not addressed by the proposed Policy Statement. Furthermore, the proposed Policy Statement does not concern the CFPB’s internal uses of complaint data nor is it intended to limit the CFPB’s discretion to share complaint data as otherwise permitted by law. The CFPB will carefully consider comments it receives in response to this notice and its continued experience with the operation of the CFPB’s credit card complaint system before finalizing the Policy Statement. Once the CFPB finalizes this Policy Statement, we will study its effectiveness on an ongoing basis. In addition to seeking comments on the proposed Policy Statement, the CFPB also invites comment on the appropriate ways to study the effectiveness of credit card complaint data disclosure. Although the present Policy Statement is limited to credit card complaints, what the CFPB learns about disclosure in this context may serve to inform disclosure of complaint data about other financial products and services. A. Disclosing Non-Narrative Field Data Will Let Outside Parties Identify Trends and Patterns That They Believe May Help Inform Consumer Decisions About Credit Card There is considerable controversy over the extent to which credit card consumer complaint data can provide consumers with useful or reliable information for making decisions about credit card use. Credit card complaints, of course, are not necessarily representative of the experience of all consumers with a particular credit card product or issuer. Rather, the credit card complaints submitted to the CFPB represent the experience of a nonrandom subset of credit card consumers: Those who view themselves as aggrieved by an action or inaction of an issuer, who were unable to obtain satisfactory relief from the issuer (or who elected not to seek such relief), and who have chosen to appeal to the CFPB for assistance. Some argue, therefore, that making information about these complaints publicly available has the potential to provide information to consumers that is not reliable or probative. Others argue that by examining trends and patterns in consumer credit card PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 complaints over time, or by examining differences in credit card complaint patterns across issuers, careful researchers may be able to discern information that would be useful and relevant to consumers in making betterinformed decisions among payment devices or between credit card issuers. In this view, even though the experience of complainants is not necessarily representative of the experience of all consumers, changes in the volume or mix of complaints, or differences across issuers and complaint types, can illuminate important patterns or trends in the marketplace. The CFPB anticipates that if it disclosed credit card complaint data, those who would be most likely to mine the data for trends and patterns and to publish their conclusions would be academics and groups dedicated to empowering consumers in making wellinformed decisions.9 Of course, there may be differences of opinion as to the inferences or conclusions reached by these individuals and groups based upon their review of complaint data. To the extent that there are differences in opinion, the CFPB expects that those differences will be publicly aired in a way that will enable consumers who are interested in this data to evaluate the alternative interpretations and reach their own conclusions. Our expectation gains support from the experience of other agencies that have made consumer complaint data publicly available. Outside groups have already used complaint field data published by another Federal agency— the National Highway Traffic Safety Commission (‘‘NHTSA’’)—to assemble trend and pattern data for consumers. Beginning with 2005 data, one private provider of automotive information has recompiled all the individual consumer complaints lodged with safercar.gov, the vehicle safety complaint database that NHTSA maintains.10 Outside groups also make regular use of airline passenger complaint data that the Department of Transportation’s Office of Aviation Enforcement and Proceedings (‘‘OAEP’’) discloses every month in its Air Travel Consumer Report.11 Unlike NHTSA, OAEP does not make field data available at the individual complaint level, but instead publishes its own aggregations of field 9 In addition, issuers would likely mine the data and might publicize to consumers how their complaint performance measures up against competitors. 10 The data is available at https:// www.edmunds.com/car-news/nhtsa-complaintsreport.html. 11 The reports are available at https:// airconsumer.ost.dot.gov/reports/index.htm. E:\FR\FM\08DEP1.SGM 08DEP1 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS data.12 The use to which outside groups have put this data show how organizations might use the nonnarrative field data that CFPB proposes to disclose. Providers that have scored well in the OAEP data have publicized that fact to consumers. One airline notes that it has ‘‘consistently received the lowest ratio of complaints per passengers boarded of all major U.S. carriers’’ since the OEAP began publishing the Air Travel Consumer Report.13 Outside reviewers have also publicized poor or worsening airline performance.14 The annual Airline Quality Rating reports rate U.S. and other airlines using numerous data sources including the OAEP’s complaint data. These findings reportedly reach millions of consumers every year.15 In all these respects, OAEP provides the critical field data. The marketplace of ideas then does the rest. The Consumer Product Safety Commission (‘‘CPSC’’) began making consumer reports of harm publicly available in March, 2011. It is too early to assess how researchers will use the data in the CPSC’s public database, saferproducts.gov.16 As described in a recent report prepared by the General Accounting Office, product manufacturers or their representatives have expressed concern that reports in the database may misidentify products or manufacturers and that reports can be submitted by individuals who did not experience the reported incident of harm.17 Neither concern applies to the CFPB’s credit card complaint data. Credit card complaints are filed by cardholders (or by an authorized representative). The issuer of the applicable credit card can be reliably identified from the submitted credit card number. In light of the potential for credit card complaint data to be analyzed for 12 The OAEP reports complaints by complaint type and by airline, expressed as incidence rates per 100,000 enplanements. See, e.g., Air Travel Consumer Report (Sept. 2011) at pp. 39 & 43, available at https://airconsumer.ost.dot.gov/reports/ 2011/September/2011SeptATCR.PDF. 13 See https://www.southwest.com/html/aboutsouthwest/history/fact-sheet.html. 14 See, e.g., H. Shami, America’s Meanest Airlines: 2011, U.S. News, available at https:// www.travel.usnews.com/features. 15 Dr. Brent Bowen and Dr. Dean E. Hadley prepare these reports. The latest report is available at https://www.airlineinfo.com/public/2011aqr.pdf. 16 One consumer group has analyzed the first four months of data and identified certain trends, including the percentage of reports about products subject to a pre-report recall. See https:// www.kidsindanger.org/docs/reports/ Straight_From_The_Source_Report.pdf. 17 General Accounting Office, Consumer Product Safety Commission: Action Needed to Strengthen Identification of Potentially Unsafe Products (Oct. 2011) at pp. 9, 13. VerDate Mar<15>2010 15:57 Dec 07, 2011 Jkt 226001 information that would be useful to consumers, and the experience of other agencies, the proposed Policy Statement calls for two forms of public disclosure with respect to the non-narrative fields of consumer credit card complaint data. These two forms of public disclosure are discussed below. 1. Data Made Publicly Available by the CFPB The CFPB proposes to make certain fields of the non-narrative complaint data available to the public in fully searchable and downloadable format. To protect consumers’ privacy, the database will not include non-narrative fields that expressly call for personally identifying information (‘‘PII’’) (i.e., the name and address fields). The database will include data fields that cover the type of complaint, the issuer involved, the date of the complaint, and the zip code of the consumer.18 The disclosed field data for each complete complaint will be linked by a unique identifier, enabling outside reviewers to aggregate and correlate the data as they wish. The CFPB intends to provide, with each data release, information about the limitations of the data disclosed, including appropriate disclaimers as to accuracy and representativeness.19 2. Reports Published by the CFPB In addition to making certain credit card complaint data available for research and analysis, the CFPB proposes to publish periodic reports about trends and patterns in complaint data that will give consumers meaningful information about credit card use. These reports also will explain how we use credit card complaint data to work towards other goals that Congress has set for us. On November 30, 2011 the CFPB published an interim report that addressed Consumer Response’s handling of credit card complaints received during the first three months of the complaint system’s operation. Going forward, our reports may contain additional data aggregations, as explained further below. The precise data aggregations that CFPB publishes will depend on our 18 A zip code may be seen as PII because it can function with other data elements to enable reidentification. In light of the other non-narrative fields that we propose to disclose, however, the CFPB does not anticipate that consumer zip codes will lead to such disclosure here. 19 For example, how CFPB categorizes credit card complaint types will impact the potential uses of the data. To minimize any distortive impact from this categorization, the CFPB will work to ensure that the categories reflect complaints as accurately as possible. As a result, complaint categories may change over time. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 76631 assessment of what conclusions can fairly be drawn from the data for a given reporting period. It is possible, for example, that we will not receive enough credit card complaints in any given time period to generate useful information with respect to some potential aggregations. If sample sizes are too small, variations across issuer, time, and subject matter may not reflect statistically significant patterns and trends. We will be mindful of these statistical significance issues in determining what types of trend and pattern data to report and on what schedule. We have also identified a number of questions that will need to be answered in deciding whether to publish certain specific data aggregations. We invite comment on how these questions may be answered. First, some trend and pattern data may need context to make the data informative to consumers. Complaint counts by issuer are one apparent example. Unless weighted appropriately against the relative size of an issuer’s credit card business—a process commonly referred to as ‘‘normalization’’—their disclosure may not offer consumers any meaningful information. The CFPB invites comment on how best to address this issue, including whether there is an available and appropriate normalization metric for these purposes. Second, some products may, by their very nature, have higher complaint rates than others, even across all issuers that offer them. As a result, these products could cause issuers’ complaint incidence to vary more by product mix than by performance. The CFPB invites comment on how best to address this issue, including whether there is an available and appropriate normalization metric for these purposes. Third, data on the rate at which the CFPB procures relief for consumers in response to credit card complaints may not be meaningful if broken out by issuer. If an issuer has a relatively low rate of offering responses that consumers accept, that may reflect its failure to respond to legitimate grievances. However, it may instead reflect that the issuer has effective internal complaint processes and/or low-complaint products, causing the complaints that reach the CFPB to lack merit. The CFPB invites comment on how best to address this issue. E:\FR\FM\08DEP1.SGM 08DEP1 76632 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS B. Until Further Study Can Be Conducted, the CFPB Will Not Disclose Narrative Data Fields Because of the Privacy Risk to Individual Consumers The CFPB’s consumer credit card complaint form includes narrative fields in which the consumer is asked to describe ‘‘what happened’’ and a ‘‘fair resolution.’’ The issuer is also invited to submit a narrative response to the complaint. Some Federal agencies— most notably the CPSC, pursuant to the Consumer Product Safety Improvement Act of 2008—maintain consumer databases that include consumer and industry narratives. Disclosure of narrative fields, however, would be unlikely to facilitate statistical analyses of trends or patterns in the credit card complaint data. In addition, although disclosure of the narrative fields would allow those who review the complaint data to gain more insight into the substance of complaints than can be gleaned from the field that categorizes complaints by issue type, it might also expose issuers to reputational harm from potentially inaccurate, misleading, or incomplete narratives. For the time being, the CFPB need not resolve the tension between these competing interests, because disclosing these narrative fields would pose clear risks to privacy interests and to the functioning of the consumer complaint system. The narrative fields are populated entirely at the discretion of the consumer and the issuer. The resulting narratives may include core PII such as the name of the complainant. Moreover, there is a risk that the information contained in the narratives may contain detailed and idiosyncratic information of a type that, if made public, would enable some reviewers of that information to identify the consumer who submitted the complaint. Publishing narratives could also discourage consumers from providing information in the narrative fields that might carry some risk of identification. Because such information might be useful to the resolution of some complaints, that result could disserve the CFPB’s primary goal with respect to complaints, which is to address each consumer’s complaint efficiently and effectively. It could also discourage consumers from submitting complaints, hindering the complaint resolution process and also restricting the supply of credit card complaint data.20 20 Publication of issuer narratives could have similar effects. To explain its practices adequately to a consumer, an issuer may have to disclose elements of the consumer’s private financial information, including details that might enable reidentification. Again, there is a risk that some VerDate Mar<15>2010 15:57 Dec 07, 2011 Jkt 226001 Publishing narratives only if a consumer affirmatively opts in to—or fails to opt out of—publication might alleviate this problem.21 The CFPB invites comment on the impact of a consumer opt-in (or, in the alternative, a consumer opt-out) on the merits of disclosing narrative data. The CFPB also seeks comment on whether issuers should have a parallel ability to opt into or out of publication of narrative responses, or the ability to provide a public and non-public response to a complaint. Ultimately, however, the privacy risks cannot be systematically assessed other than by reviewing the complaints and issuer responses that we receive. The CFPB will conduct the necessary comprehensive study and will continue to gather data from submitted complaints as the complaint process further develops. As part of that study, the CFPB also will evaluate the CFPB resources that would be required to redact such information so as to eliminate PII and minimize the risk of identification. In the interim, the CFPB will not disclose narratives because of the potentially significant risk to consumers’ privacy interests. IV. Proposed Policy Statement The text of the proposed Policy Statement is as follows: 1. Purposes of Credit Card Complaint Data Disclosure The CFPB receives credit card complaints from consumers. The CFPB intends to disclose certain information about credit card complaints in a public database and in the CFPB’s own periodic reports. The purpose of this disclosure is to provide consumers with timely and understandable information about credit cards and to improve the functioning of the credit card market. By enabling more informed decisions about credit card use, the CFPB intends for its complaint data disclosures to improve the transparency and efficiency of the credit card market. 2. Public Access to Data Fields After the effective date of this Policy Statement, the CFPB will provide public access to a database containing nonnarrative fields for each complete consumer credit card complaint and response within the scope of the CFPB’s authority under section 1025 of the Consumer Financial Protection Act. The consumer defines the inputs to some of consumers will opt against submitting a complaint in the event that the issuer’s response will be published. 21 The complaint system currently has no disclosure opt-in (or opt-out) provisions. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 the fields when he or she (or an authorized representative) inputs a credit card complaint into the CFPB’s system. These fields, therefore, represent the consumer’s own characterization of his or her credit card complaint. The issuer’s response will define other non-narrative fields. The database will cover non-narrative fields that do not contain confidential personal information, including but not limited to: The subject area or areas covered by the credit card complaint; the name of the card issuer; the zip code in which the consumer lives; the date of the complaint; and whether and how an issuer responded. In cases where an issuer represents to the CFPB that it has been wrongly identified as the issuer of a card, that issuer’s name will not be disclosed pending a determination of the correct issuer. Once the CFPB identifies the correct issuer, the name of that issuer will be included.22 The public will have online access to the database. The database will enable user-defined searches. The fields for each complaint will be linked with a unique identifier, enabling reviewers to aggregate the data as they choose, including by complaint type, issuer, location, date, or any combination of these variables. Users also will be able to download the data so that they can carry out additional review. The CFPB will update the database on a regular basis. To provide an issuer sufficient time to establish that it did not issue the credit card listed in a particular complaint, the update will not take place until at least one month after submission. The public database will not include a consumer’s name, credit card number, or address details. At least until the CFPB can conduct further study, it will exclude the consumer’s narrative description of ‘‘what happened’’ and of ‘‘fair resolution.’’ It also will exclude an issuer’s narrative response. These narrative fields may contain personally identifiable information or other information that could enable identification. The threat of such disclosure might also suppress complaints or reduce the specificity of complaint narratives, thereby undermining the effectiveness of the complaint process. 3. Regular CFPB Reporting on Complaints At periodic intervals, the CFPB will publish reports about the consumer credit card complaints that it handles. 22 The consumer’s card number generally will enable verification of the correct issuer. E:\FR\FM\08DEP1.SGM 08DEP1 Federal Register / Vol. 76, No. 236 / Thursday, December 8, 2011 / Proposed Rules The reports may contain our analysis of patterns or trends that we identify in the complaint data. The CFPB intends for its reporting to provide information that will be valuable to consumers and other market participants. Before determining what reports to issue beyond those relating to the CFPB’s handling of the complaints, the CFPB will study the volume and content of credit card complaints that it has received in a given reporting period for patterns or trends that it is able to discern from the data. If the data will support it, the CFPB intends for its reports to include some standardized metrics that would provide comparisons across reporting periods. The reports will also describe our use of credit card complaint data across the range of our statutory authorities during a reporting period. 4. Matters for Further Study Going forward, the CFPB intends to study the effectiveness of its credit card complaint disclosure policy in realizing its stated purposes. In addition, the CFPB will carry out a study of the narrative fields submitted by consumers and issuers. The study will assess whether there are practical ways to disclose narrative data in a manner that will improve consumer understanding without undermining privacy interests or the effectiveness of the credit card complaint process and without creating unwarranted reputational injury to issuers. Dated: November 30, 2011. Meredith Fuchs, Chief of Staff. [FR Doc. 2011–31153 Filed 12–7–11; 8:45 am] BILLING CODE 4810–AM–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG–157714–06] RIN 1545–BG43 Determination of Governmental Plan Status; Correction Internal Revenue Service (IRS), Treasury. ACTION: Correction to advance notice of proposed rulemaking. mstockstill on DSK4VPTVN1PROD with PROPOSALS AGENCY: This document contains corrections to advance notice of proposed rulemaking (REG–157714–06) that describes the rules that the Treasury Department and IRS are considering proposing relating to the determination of whether a plan is a SUMMARY: VerDate Mar<15>2010 16:39 Dec 07, 2011 Jkt 226001 governmental planwithin the meaning of section 414(d) and contains an appendix that includes a draft notice of proposed rulemaking on which the Treasury Department and IRS invite comments from the public. The document was published in the Federal Register on Tuesday, November 8, 2011(76 FR 69172). 76633 the new language ‘‘Louis, 420 F. Supp.2d at 1024, citing Lee Const. Co.,’’. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, Procedure and Administration. [FR Doc. 2011–31464 Filed 12–7–11; 8:45 am] BILLING CODE 4830–01–P FOR FURTHER INFORMATION CONTACT: Concerning the ANPRM, Pamela R. Kinard at (202) 622–6060 (not a toll-free number). DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: 26 CFR Part 1 Background [REG–133223–08] The correction notice that is the subject of this document is under section 414(d) of the Internal Revenue Code. Need for Correction Correction of Publication Accordingly, the publication of this advance notice of proposed rulemaking (REG–157714–06), which was the subject of FR Doc. 2011–28853, is corrected as follows: 1. On page 69173, column 3, in the preamble, under the paragraph heading ‘‘Explanation of Provisions’’, second paragraph, third line, the language ‘‘States or an agency of instrumentality of’’ is removed and is replaced with the new language ‘‘States or an agency or instrumentality of’’. 2. On page 69175, column 1, in the Appendix, under the paragraph heading ‘‘Application of Section 414(d)’’, fifth paragraph, the language ‘‘Section 503(a)(1) (applying the prohibited transactions rules in section 503 to governmental plans as defined in section 4975(g)(2))’’ is removed and is replaced with the new language ‘‘Section 503(a)(1) (applying the prohibited transaction rules in section 503 to governmental plans as defined in section 4975(g)(2));’’. 3. On page 69177, column 2, footnote 17, fourth line, the language ‘‘401(k) plan. See section 401(K)(4)(B)(ii). There is an’’ is removed and is replaced with the new language ‘‘401(k) plan. See section 401(k)(4)(B)(ii). There is an’’. 4. On page 69179, column 3, footnote 27, eleventh line, the language ‘‘Louis, 420 F. Supp.2 at 1024, citing Lee Const. Co.,’’ is removed and is replaced with Frm 00009 Fmt 4702 RIN 1545–BI19 Indian Tribal Governmental Plans; Correction Internal Revenue Service (IRS), Treasury. ACTION: Correction to advance notice of proposed rulemaking. AGENCY: As published, this advance notice of proposed rulemaking (REG–157714–06) contains errors that may prove to be misleading and are in need of clarification. PO 00000 Internal Revenue Service Sfmt 4702 This document contains corrections to advance notice of proposed rulemaking (REG–133223–08) that describes the rules the Treasury Department and IRS are considering proposing relating to the determination of whether a plan of an Indian Tribal government is a governmental plan within the meaning of section 414(d) and contains an appendix that includes a draft notice of proposed rulemaking on which the Treasury Department and IRS invite comments from the public. The document was published in the Federal Register on Tuesday, November 8, 2011 (76 FR 69188). FOR FURTHER INFORMATION CONTACT: Concerning the ANPRM, Pamela R. Kinard at (202) 622–6060 (not a toll-free number). SUPPLEMENTARY INFORMATION: SUMMARY: Background The correction notice that is the subject of this document is under section 414(d) of the Internal Revenue Code. Need for Correction As published, this advance notice of proposed rulemaking (REG–133223–08) contains errors that may prove to be misleading and are in need of clarification. Correction of Publication Accordingly, the publication of this advance notice of proposed rulemaking (REG–133223–08), which was the subject of FR Doc. 2011–28858, is corrected as follows: E:\FR\FM\08DEP1.SGM 08DEP1

Agencies

BUREAU OF CONSUMER FINANCIAL PROTECTION

[Federal Register Volume 76, Number 236 (Thursday, December 8, 2011)]
[Proposed Rules]
[Pages 76628-76633]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31153]

=======================================================================
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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Chapter X

[Docket No. CFPB-2011-0040]

Disclosure of Certain Credit Card Complaint Data

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Notice of proposed policy statement with request for comment.

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SUMMARY: The Bureau of Consumer Financial Protection (the ``CFPB'') is
requesting comment on a proposed policy statement (the ``Policy
Statement'') that addresses the CFPB's proactive disclosure of credit
card complaint data. The CFPB receives credit card complaints from
consumers under the terms of the Consumer Financial Protection Act of
2010. The proposed Policy Statement sets forth the CFPB's proposed
initial disclosure of credit card complaint data. It also identifies
additional ways that the CFPB may disclose credit card complaint data
but as to which the CFPB will conduct further study before finalizing
its position. The proposed Policy Statement does not address complaint
data about any other consumer financial product or service. The CFPB
invites comment on all aspects of the proposed Policy Statement.

DATES: Comments must be submitted on or before January 30, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CFPB-2011-
0040, by any of the following methods:
Electronic: https://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Monica Jackson, Consumer Financial Protection
Bureau, 1500 Pennsylvania Avenue NW., (Attn: 1801 L Street),
Washington, DC 20220.
Hand Delivery/Courier in Lieu of Mail: Monica Jackson,
Office of the Executive Secretary, Consumer Financial Protection
Bureau, 1700 G Street NW., Washington, DC 20006.
All submissions must include the agency name and docket number of
this proposed Policy Statement. In general, all comments received will
be posted without change to https://www.regulations.gov. In addition,
comments will be available for public inspection and copying at 1700 G
Street NW., Washington, DC 20006, on official business days between the
hours of 10 a.m. and 5 p.m. Eastern Time. You can make an appointment
to inspect the documents by telephoning (202) 435-7275.
All comments, including attachments and other supporting materials,
will become part of the public record and subject to public disclosure.
Sensitive personal information, such as account numbers or social
security numbers, should not be included. Comments will not be edited
to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Monica Jackson, Office of the
Executive Secretary, Consumer Financial Protection Bureau, at (202)
435-7275; Scott Pluta, Office of Consumer

[[Page 76629]]

Response, Consumer Financial Protection Bureau, at (202) 435-7306; or
Will Wade-Gery, Division of Research, Markets and Regulations, Consumer
Financial Protection Bureau, at (202) 435-7700.

Authority: 12 U.S.C. 5492(a), 5493(b)(3)(C), 5496(c)(4),
5511(b)(1), (5), 5512(c)(3)(B).

SUPPLEMENTARY INFORMATION:

I. Background

On July 21, 2011, the CFPB launched a system for accepting credit
card complaints. The CFPB developed this system pursuant to several
provisions of the Consumer Financial Protection Act of 2010 (the
``Consumer Financial Protection Act'' or the ``Act''), including
sections 1013(b)(3), 1025, 1034(a), and 1034(b), 12 U.S.C. 5493(b)(3),
5515 & 5534(a)-(b). Under this new system, consumers submit credit card
complaints to the CFPB in several ways including via the CFPB's Web
site, https://www.consumerfinance.gov. The system is presently limited
to accepting credit card complaints from consumers.\1\ The CFPB is
developing plans to roll out parallel systems for other consumer
financial products and services.
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\1\ ``Whistleblower'' complaints are not within the scope of the
present Policy Statement. See 12 U.S.C. 5567(a)(1).
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As the system is presently configured, a consumer who submits a
credit card complaint completes several non-narrative data fields.
These include the consumer's name and address, the name of the issuing
bank, and fields relating to the type of the complaint and claimed
loss.\2\ Credit card consumers can also populate two narrative fields.
These cover the consumer's description of ``what happened'' and the
consumer's assessment of a ``fair resolution.''
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\2\ The consumer must affirm that the submitted information is
true to the best of his or her knowledge and belief. The system will
accept complaints submitted on behalf of a consumer. These
complaints may be subject to proof of signed, written permission
from the consumer.
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If the resulting complaint concerns a credit card issuer subject to
the CFPB's supervision and primary enforcement under section 1025 of
the Consumer Financial Protection Act, 12 U.S.C. 5515, the CFPB's
Office of Consumer Response (``Consumer Response'') forwards the
complaint to that identified issuer.\3\ If the receiving issuer
indicates that it did not issue the relevant credit card, Consumer
Response will attempt to forward the complaint to the correct issuer.
Once the correct issuer has the complaint, the issuer investigates the
complaint, communicates with the consumer as the issuer deems
appropriate, and determines what action, if any, to take with respect
to the complaint. At the end of this process, the issuer reports to
Consumer Response how it has addressed the complaint.\4\ Once Consumer
Response receives a response from the issuer, Consumer Response invites
the consumer to review the response. The CFPB prioritizes for further
action complaints where the consumer expresses dissatisfaction with the
issuer's response or where the issuer fails to respond.
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\3\ The CFPB forwards to the relevant prudential regulator any
credit card complaint involving an issuer that is not subject to
supervision and primary enforcement by the CFPB under section 1025.
\4\ Initially, Consumer Response requested an issuer to
categorize its response as ``full resolution,'' ``partial
resolution'' or ``no resolution,'' but experience showed that
issuers were not using these terms consistently. Under the current
approach, in addition to any narrative material that the issuer
provides the consumer, the issuer is asked to categorize its
response as closing the complaint with relief or without relief.
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II. Disclosure Authority

The Act requires the CFPB to provide certain information to
Congress about complaints and responses. In particular, section
1013(b)(3)(C) requires the CFPB to report annually to Congress
information and analysis about complaint numbers, types, and, when
applicable, resolution.\5\ See 12 U.S.C. 5493(b)(3)(C). Additionally,
the Act permits the CFPB to exercise its authority for purposes of
ensuring that ``consumers are provided with timely and understandable
information to make responsible decisions about financial
transactions'' and that ``markets for consumer financial products
operate transparently and efficiently.'' 12 U.S.C. 5511(b)(1), (5).
---------------------------------------------------------------------------

\5\ Section 1016 also requires that the CFPB submit semi-annual
reports to congressional oversight committees covering a range of
topics, including ``an analysis of complaints about consumer
financial products or services that the Bureau has received and
collected in its central database on complaints during the preceding
year.'' 12 U.S.C. 5496(c)(4).
---------------------------------------------------------------------------

The CFPB has broad authority to make public information that is not
required to be given confidential treatment. See, e.g., 12 U.S.C.
5492(a); 12 U.S.C. 5512(c)(3)(B), (c)(8). On July 22, 2011, the CFPB
issued an interim final rule governing disclosure of records and
information, including treatment of confidential information. See 76 FR
45372 (July 28, 2011) (to be codified at 12 CFR Part 1070). The rule
defines ``confidential consumer complaint information'' as
``information received or generated by the CFPB, pursuant to 12 U.S.C.
5493 and 5534, that comprises or documents consumer complaints or
inquiries concerning financial institutions or consumer financial
products and services and responses thereto, to the extent that such
information is exempt from disclosure pursuant to [the Freedom of
Information Act (``FOIA''),] 5 U.S.C. 552(b).'' \6\ The rule generally
prohibits the disclosure of confidential consumer complaint
information, except in certain limited circumstances.\7\ However, the
rule does not limit the CFPB's discretion to disclose materials that it
derives from confidential information, including confidential consumer
complaint information, to the extent that such materials do not
identify, either directly or indirectly, any particular individual to
whom the confidential information pertains. See 12 CFR 1070.41(c).
---------------------------------------------------------------------------

\6\ 12 CFR 1070.2(f).
\7\ See 12 CFR 1070.41 (general prohibition on disclosure of
confidential information except as required by law or pursuant to
the CFPB's rules); 12 CFR 1070.43 (permitting the CFPB to disclose
confidential consumer complaint information to certain Federal and
state agencies, provided the agencies protect the confidentiality of
the information); 12 CFR 1070.44 (permitting the CFPB to ``disclose
confidential consumer complaint information as it deems necessary to
investigate, resolve, or otherwise respond to consumer complaints or
inquiries concerning financial institutions or consumer financial
products and services''); 12 CFR 1070.45 (permitting the CFPB to
disclose confidential consumer complaint information in certain
circumstances in the course of law enforcement investigations and
proceedings); 12 CFR 1070.46 (permitting the Director to personally
authorize the disclosure of confidential consumer complaint
information, provided such disclosure is consistent with applicable
law, including the Privacy Act of 1974).
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The proposed Policy Statement does not contemplate the disclosure
of confidential consumer complaint information. Under the proposed
Policy Statement, the CFPB would not disclose information contained in
consumer credit card complaints (and responses to such complaints) that
is exempt from disclosure under the FOIA, 5 U.S.C. 552(b). The CFPB
will not publish the name, full address, or credit card account number
associated with any given credit card complaint. In addition, as
discussed further below, our policy will be not to publish credit card
complaint information that could enable the consumer to be identified
by any party other than the issuer of the credit card in question.
Further, the CFPB will not disclose confidential and proprietary
business information that issuers provide in response to complaints.
Because of these limitations, the CFPB's proposed publication of
consumer complaint information pursuant to the Policy Statement does
not rely upon any of the exceptions to the general prohibition on
disclosure of confidential consumer complaint information.

[[Page 76630]]

FOIA requires general public disclosure of records that have been
disclosed in response to a FOIA request and which the CFPB ``determines
have become or are likely to become the subject of subsequent requests
for substantially the same records.'' 5 U.S.C. 552(a)(2)(D). The CFPB's
interim final rule regarding this provision of FOIA states that:

Subject to the application of the FOIA exemptions and exclusions
* * * the CFPB shall make publicly available * * * all records * * *
which have been released previously to any person under [FOIA and 12
CFR part 1070], and which the CFPB determines have become or are
likely to become the subject of subsequent requests for
substantially the same records because they are clearly of interest
to the public at large. When the CFPB receives three (3) or more
requests for substantially the same records, then the CFPB shall
also make the released records publicly available.\8\

\8\ See 12 CFR 1070.11(c). United States Department of Justice
(``DOJ'') guidance provides that three requests for the same records
are generally enough to trigger an agency's disclosure obligation
under 5 U.S.C. 552(a)(2)(D). Department of Justice, Office of
Information Policy, Guide to the Freedom of Information Act, pp. 17-
18 (2009 ed.); FOIA Post, ``FOIA Counselor Q&A: `Frequently
Requested' Records'' (7/25/03) available at https://www.justice.gov/oip/foiapost/2003foiapost28.htm.

The CFPB has received and is reviewing comments on its interim FOIA
rules, including the provision concerning section 552(a)(2)(D) of FOIA.
The CFPB's credit card complaint process has been widely
publicized, and there is a high level of public interest in information
regarding these complaints. As a result, the CFPB believes that its
credit card complaint records may become subject to multiple,
overlapping FOIA requests. The CFPB seeks comment on the interplay
between the proposed Policy Statement and the possible application of
the requirements of section 552(a)(2)(D) of FOIA.

III. Rationale for Disclosing Certain Credit Card Complaint Data

The CFPB has developed the proposed Policy Statement in light of
its statutory purposes of helping to provide consumers with ``timely
and understandable information to make responsible decisions about
financial transactions'' and helping the credit card market to
``operate transparently and efficiently.'' 12 U.S.C. 5511(b)(1) & (5).
We have separated the issue of disclosure of the narrative fields of
complaint data from disclosure of the non-narrative fields. These
issues implicate discrete considerations.
We have reviewed disclosure practices at other Federal and state
agencies, the complaint-handling experience of other financial
regulators, and the positions of different stakeholders as they have
been voiced to the CFPB to date. As noted, the proposed Policy
Statement only covers the disclosure of certain credit card complaint
data. Disclosing data on other types of complaints may raise different
considerations that are not addressed by the proposed Policy Statement.
Furthermore, the proposed Policy Statement does not concern the CFPB's
internal uses of complaint data nor is it intended to limit the CFPB's
discretion to share complaint data as otherwise permitted by law.
The CFPB will carefully consider comments it receives in response
to this notice and its continued experience with the operation of the
CFPB's credit card complaint system before finalizing the Policy
Statement. Once the CFPB finalizes this Policy Statement, we will study
its effectiveness on an ongoing basis. In addition to seeking comments
on the proposed Policy Statement, the CFPB also invites comment on the
appropriate ways to study the effectiveness of credit card complaint
data disclosure. Although the present Policy Statement is limited to
credit card complaints, what the CFPB learns about disclosure in this
context may serve to inform disclosure of complaint data about other
financial products and services.

A. Disclosing Non-Narrative Field Data Will Let Outside Parties
Identify Trends and Patterns That They Believe May Help Inform Consumer
Decisions About Credit Card

There is considerable controversy over the extent to which credit
card consumer complaint data can provide consumers with useful or
reliable information for making decisions about credit card use. Credit
card complaints, of course, are not necessarily representative of the
experience of all consumers with a particular credit card product or
issuer. Rather, the credit card complaints submitted to the CFPB
represent the experience of a non-random subset of credit card
consumers: Those who view themselves as aggrieved by an action or
inaction of an issuer, who were unable to obtain satisfactory relief
from the issuer (or who elected not to seek such relief), and who have
chosen to appeal to the CFPB for assistance. Some argue, therefore,
that making information about these complaints publicly available has
the potential to provide information to consumers that is not reliable
or probative.
Others argue that by examining trends and patterns in consumer
credit card complaints over time, or by examining differences in credit
card complaint patterns across issuers, careful researchers may be able
to discern information that would be useful and relevant to consumers
in making better-informed decisions among payment devices or between
credit card issuers. In this view, even though the experience of
complainants is not necessarily representative of the experience of all
consumers, changes in the volume or mix of complaints, or differences
across issuers and complaint types, can illuminate important patterns
or trends in the marketplace.
The CFPB anticipates that if it disclosed credit card complaint
data, those who would be most likely to mine the data for trends and
patterns and to publish their conclusions would be academics and groups
dedicated to empowering consumers in making well-informed decisions.\9\
Of course, there may be differences of opinion as to the inferences or
conclusions reached by these individuals and groups based upon their
review of complaint data. To the extent that there are differences in
opinion, the CFPB expects that those differences will be publicly aired
in a way that will enable consumers who are interested in this data to
evaluate the alternative interpretations and reach their own
conclusions.
---------------------------------------------------------------------------

\9\ In addition, issuers would likely mine the data and might
publicize to consumers how their complaint performance measures up
against competitors.
---------------------------------------------------------------------------

Our expectation gains support from the experience of other agencies
that have made consumer complaint data publicly available. Outside
groups have already used complaint field data published by another
Federal agency--the National Highway Traffic Safety Commission
(``NHTSA'')--to assemble trend and pattern data for consumers.
Beginning with 2005 data, one private provider of automotive
information has recompiled all the individual consumer complaints
lodged with safercar.gov, the vehicle safety complaint database that
NHTSA maintains.\10\
---------------------------------------------------------------------------

\10\ The data is available at https://www.edmunds.com/car-news/nhtsa-complaints-report.html.
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Outside groups also make regular use of airline passenger complaint
data that the Department of Transportation's Office of Aviation
Enforcement and Proceedings (``OAEP'') discloses every month in its Air
Travel Consumer Report.\11\ Unlike NHTSA, OAEP does not make field data
available at the individual complaint level, but instead publishes its
own aggregations of field

[[Page 76631]]

data.\12\ The use to which outside groups have put this data show how
organizations might use the non-narrative field data that CFPB proposes
to disclose. Providers that have scored well in the OAEP data have
publicized that fact to consumers. One airline notes that it has
``consistently received the lowest ratio of complaints per passengers
boarded of all major U.S. carriers'' since the OEAP began publishing
the Air Travel Consumer Report.\13\ Outside reviewers have also
publicized poor or worsening airline performance.\14\ The annual
Airline Quality Rating reports rate U.S. and other airlines using
numerous data sources including the OAEP's complaint data. These
findings reportedly reach millions of consumers every year.\15\ In all
these respects, OAEP provides the critical field data. The marketplace
of ideas then does the rest.
---------------------------------------------------------------------------

\11\ The reports are available at https://airconsumer.ost.dot.gov/reports/index.htm.
\12\ The OAEP reports complaints by complaint type and by
airline, expressed as incidence rates per 100,000 enplanements. See,
e.g., Air Travel Consumer Report (Sept. 2011) at pp. 39 & 43,
available at https://airconsumer.ost.dot.gov/reports/2011/September/2011SeptATCR.PDF.
\13\ See https://www.southwest.com/html/about-southwest/history/fact-sheet.html.
\14\ See, e.g., H. Shami, America's Meanest Airlines: 2011, U.S.
News, available at https://www.travel.usnews.com/features.
\15\ Dr. Brent Bowen and Dr. Dean E. Hadley prepare these
reports. The latest report is available at https://www.airlineinfo.com/public/2011aqr.pdf.
---------------------------------------------------------------------------

The Consumer Product Safety Commission (``CPSC'') began making
consumer reports of harm publicly available in March, 2011. It is too
early to assess how researchers will use the data in the CPSC's public
database, saferproducts.gov.\16\ As described in a recent report
prepared by the General Accounting Office, product manufacturers or
their representatives have expressed concern that reports in the
database may misidentify products or manufacturers and that reports can
be submitted by individuals who did not experience the reported
incident of harm.\17\ Neither concern applies to the CFPB's credit card
complaint data. Credit card complaints are filed by cardholders (or by
an authorized representative). The issuer of the applicable credit card
can be reliably identified from the submitted credit card number.
---------------------------------------------------------------------------

\16\ One consumer group has analyzed the first four months of
data and identified certain trends, including the percentage of
reports about products subject to a pre-report recall. See https://www.kidsindanger.org/docs/reports/Straight_From_The_Source_Report.pdf.
\17\ General Accounting Office, Consumer Product Safety
Commission: Action Needed to Strengthen Identification of
Potentially Unsafe Products (Oct. 2011) at pp. 9, 13.
---------------------------------------------------------------------------

In light of the potential for credit card complaint data to be
analyzed for information that would be useful to consumers, and the
experience of other agencies, the proposed Policy Statement calls for
two forms of public disclosure with respect to the non-narrative fields
of consumer credit card complaint data. These two forms of public
disclosure are discussed below.
1. Data Made Publicly Available by the CFPB
The CFPB proposes to make certain fields of the non-narrative
complaint data available to the public in fully searchable and
downloadable format. To protect consumers' privacy, the database will
not include non-narrative fields that expressly call for personally
identifying information (``PII'') (i.e., the name and address fields).
The database will include data fields that cover the type of complaint,
the issuer involved, the date of the complaint, and the zip code of the
consumer.\18\ The disclosed field data for each complete complaint will
be linked by a unique identifier, enabling outside reviewers to
aggregate and correlate the data as they wish. The CFPB intends to
provide, with each data release, information about the limitations of
the data disclosed, including appropriate disclaimers as to accuracy
and representativeness.\19\
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\18\ A zip code may be seen as PII because it can function with
other data elements to enable re-identification. In light of the
other non-narrative fields that we propose to disclose, however, the
CFPB does not anticipate that consumer zip codes will lead to such
disclosure here.
\19\ For example, how CFPB categorizes credit card complaint
types will impact the potential uses of the data. To minimize any
distortive impact from this categorization, the CFPB will work to
ensure that the categories reflect complaints as accurately as
possible. As a result, complaint categories may change over time.
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2. Reports Published by the CFPB
In addition to making certain credit card complaint data available
for research and analysis, the CFPB proposes to publish periodic
reports about trends and patterns in complaint data that will give
consumers meaningful information about credit card use. These reports
also will explain how we use credit card complaint data to work towards
other goals that Congress has set for us. On November 30, 2011 the CFPB
published an interim report that addressed Consumer Response's handling
of credit card complaints received during the first three months of the
complaint system's operation. Going forward, our reports may contain
additional data aggregations, as explained further below.
The precise data aggregations that CFPB publishes will depend on
our assessment of what conclusions can fairly be drawn from the data
for a given reporting period. It is possible, for example, that we will
not receive enough credit card complaints in any given time period to
generate useful information with respect to some potential
aggregations. If sample sizes are too small, variations across issuer,
time, and subject matter may not reflect statistically significant
patterns and trends. We will be mindful of these statistical
significance issues in determining what types of trend and pattern data
to report and on what schedule.
We have also identified a number of questions that will need to be
answered in deciding whether to publish certain specific data
aggregations. We invite comment on how these questions may be answered.
First, some trend and pattern data may need context to make the
data informative to consumers. Complaint counts by issuer are one
apparent example. Unless weighted appropriately against the relative
size of an issuer's credit card business--a process commonly referred
to as ``normalization''--their disclosure may not offer consumers any
meaningful information. The CFPB invites comment on how best to address
this issue, including whether there is an available and appropriate
normalization metric for these purposes.
Second, some products may, by their very nature, have higher
complaint rates than others, even across all issuers that offer them.
As a result, these products could cause issuers' complaint incidence to
vary more by product mix than by performance. The CFPB invites comment
on how best to address this issue, including whether there is an
available and appropriate normalization metric for these purposes.
Third, data on the rate at which the CFPB procures relief for
consumers in response to credit card complaints may not be meaningful
if broken out by issuer. If an issuer has a relatively low rate of
offering responses that consumers accept, that may reflect its failure
to respond to legitimate grievances. However, it may instead reflect
that the issuer has effective internal complaint processes and/or low-
complaint products, causing the complaints that reach the CFPB to lack
merit. The CFPB invites comment on how best to address this issue.

[[Page 76632]]

B. Until Further Study Can Be Conducted, the CFPB Will Not Disclose
Narrative Data Fields Because of the Privacy Risk to Individual
Consumers

The CFPB's consumer credit card complaint form includes narrative
fields in which the consumer is asked to describe ``what happened'' and
a ``fair resolution.'' The issuer is also invited to submit a narrative
response to the complaint. Some Federal agencies--most notably the
CPSC, pursuant to the Consumer Product Safety Improvement Act of 2008--
maintain consumer databases that include consumer and industry
narratives. Disclosure of narrative fields, however, would be unlikely
to facilitate statistical analyses of trends or patterns in the credit
card complaint data. In addition, although disclosure of the narrative
fields would allow those who review the complaint data to gain more
insight into the substance of complaints than can be gleaned from the
field that categorizes complaints by issue type, it might also expose
issuers to reputational harm from potentially inaccurate, misleading,
or incomplete narratives.
For the time being, the CFPB need not resolve the tension between
these competing interests, because disclosing these narrative fields
would pose clear risks to privacy interests and to the functioning of
the consumer complaint system. The narrative fields are populated
entirely at the discretion of the consumer and the issuer. The
resulting narratives may include core PII such as the name of the
complainant. Moreover, there is a risk that the information contained
in the narratives may contain detailed and idiosyncratic information of
a type that, if made public, would enable some reviewers of that
information to identify the consumer who submitted the complaint.
Publishing narratives could also discourage consumers from
providing information in the narrative fields that might carry some
risk of identification. Because such information might be useful to the
resolution of some complaints, that result could disserve the CFPB's
primary goal with respect to complaints, which is to address each
consumer's complaint efficiently and effectively. It could also
discourage consumers from submitting complaints, hindering the
complaint resolution process and also restricting the supply of credit
card complaint data.\20\ Publishing narratives only if a consumer
affirmatively opts in to--or fails to opt out of--publication might
alleviate this problem.\21\ The CFPB invites comment on the impact of a
consumer opt-in (or, in the alternative, a consumer opt-out) on the
merits of disclosing narrative data. The CFPB also seeks comment on
whether issuers should have a parallel ability to opt into or out of
publication of narrative responses, or the ability to provide a public
and non-public response to a complaint.
---------------------------------------------------------------------------

\20\ Publication of issuer narratives could have similar
effects. To explain its practices adequately to a consumer, an
issuer may have to disclose elements of the consumer's private
financial information, including details that might enable re-
identification. Again, there is a risk that some consumers will opt
against submitting a complaint in the event that the issuer's
response will be published.
\21\ The complaint system currently has no disclosure opt-in (or
opt-out) provisions.
---------------------------------------------------------------------------

Ultimately, however, the privacy risks cannot be systematically
assessed other than by reviewing the complaints and issuer responses
that we receive. The CFPB will conduct the necessary comprehensive
study and will continue to gather data from submitted complaints as the
complaint process further develops. As part of that study, the CFPB
also will evaluate the CFPB resources that would be required to redact
such information so as to eliminate PII and minimize the risk of
identification. In the interim, the CFPB will not disclose narratives
because of the potentially significant risk to consumers' privacy
interests.

IV. Proposed Policy Statement

The text of the proposed Policy Statement is as follows:

1. Purposes of Credit Card Complaint Data Disclosure

The CFPB receives credit card complaints from consumers. The CFPB
intends to disclose certain information about credit card complaints in
a public database and in the CFPB's own periodic reports.
The purpose of this disclosure is to provide consumers with timely
and understandable information about credit cards and to improve the
functioning of the credit card market. By enabling more informed
decisions about credit card use, the CFPB intends for its complaint
data disclosures to improve the transparency and efficiency of the
credit card market.

2. Public Access to Data Fields

After the effective date of this Policy Statement, the CFPB will
provide public access to a database containing non-narrative fields for
each complete consumer credit card complaint and response within the
scope of the CFPB's authority under section 1025 of the Consumer
Financial Protection Act. The consumer defines the inputs to some of
the fields when he or she (or an authorized representative) inputs a
credit card complaint into the CFPB's system. These fields, therefore,
represent the consumer's own characterization of his or her credit card
complaint. The issuer's response will define other non-narrative
fields.
The database will cover non-narrative fields that do not contain
confidential personal information, including but not limited to: The
subject area or areas covered by the credit card complaint; the name of
the card issuer; the zip code in which the consumer lives; the date of
the complaint; and whether and how an issuer responded.
In cases where an issuer represents to the CFPB that it has been
wrongly identified as the issuer of a card, that issuer's name will not
be disclosed pending a determination of the correct issuer. Once the
CFPB identifies the correct issuer, the name of that issuer will be
included.\22\
---------------------------------------------------------------------------

\22\ The consumer's card number generally will enable
verification of the correct issuer.
---------------------------------------------------------------------------

The public will have online access to the database. The database
will enable user-defined searches. The fields for each complaint will
be linked with a unique identifier, enabling reviewers to aggregate the
data as they choose, including by complaint type, issuer, location,
date, or any combination of these variables. Users also will be able to
download the data so that they can carry out additional review.
The CFPB will update the database on a regular basis. To provide an
issuer sufficient time to establish that it did not issue the credit
card listed in a particular complaint, the update will not take place
until at least one month after submission.
The public database will not include a consumer's name, credit card
number, or address details. At least until the CFPB can conduct further
study, it will exclude the consumer's narrative description of ``what
happened'' and of ``fair resolution.'' It also will exclude an issuer's
narrative response. These narrative fields may contain personally
identifiable information or other information that could enable
identification. The threat of such disclosure might also suppress
complaints or reduce the specificity of complaint narratives, thereby
undermining the effectiveness of the complaint process.

3. Regular CFPB Reporting on Complaints

At periodic intervals, the CFPB will publish reports about the
consumer credit card complaints that it handles.

[[Page 76633]]

The reports may contain our analysis of patterns or trends that we
identify in the complaint data. The CFPB intends for its reporting to
provide information that will be valuable to consumers and other market
participants. Before determining what reports to issue beyond those
relating to the CFPB's handling of the complaints, the CFPB will study
the volume and content of credit card complaints that it has received
in a given reporting period for patterns or trends that it is able to
discern from the data. If the data will support it, the CFPB intends
for its reports to include some standardized metrics that would provide
comparisons across reporting periods. The reports will also describe
our use of credit card complaint data across the range of our statutory
authorities during a reporting period.

4. Matters for Further Study

Going forward, the CFPB intends to study the effectiveness of its
credit card complaint disclosure policy in realizing its stated
purposes. In addition, the CFPB will carry out a study of the narrative
fields submitted by consumers and issuers. The study will assess
whether there are practical ways to disclose narrative data in a manner
that will improve consumer understanding without undermining privacy
interests or the effectiveness of the credit card complaint process and
without creating unwarranted reputational injury to issuers.

Dated: November 30, 2011.
Meredith Fuchs,
Chief of Staff.
[FR Doc. 2011-31153 Filed 12-7-11; 8:45 am]
BILLING CODE 4810-AM-P

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