Amendments Relating to Disclosure of Records and Information, 58309-58340 [2016-19594]
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Vol. 81
Wednesday,
No. 164
August 24, 2016
Part V
Bureau of Consumer Financial Protection
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12 CFR Parts 1070 and 1091
Amendments Relating to Disclosure of Records and Information; Proposed
Rule
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Federal Register / Vol. 81, No. 164 / Wednesday, August 24, 2016 / Proposed Rules
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Parts 1070 and 1091
[Docket No. CFPB–2016–0039]
RIN 3170–AA63
Amendments Relating to Disclosure of
Records and Information
Bureau of Consumer Financial
Protection.
ACTION: Proposed rule with request for
public comment.
AGENCY:
The Bureau of Consumer
Financial Protection (Bureau) proposes
amendments to the procedures used by
the public to obtain information from
the Bureau under the Freedom of
Information Act, the Privacy Act of
1974, and in legal proceedings. The
Bureau also proposes amendments to its
rule regarding the confidential treatment
of information obtained from persons in
connection with the exercise of its
authorities under Federal consumer
financial law.
DATES: Comments must be received on
or before October 24, 2016.
ADDRESSES: You may submit comments,
identified by Docket No. CFPB–2016–
0039 or RIN 3170–AA63, by any of the
following methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: FederalRegisterComments@
cfpb.gov. Include Docket No. CFPB–
2016–0039 and/or RIN 3170–AA63 in
the subject line of the email.
• Mail: Monica Jackson, Office of the
Executive Secretary, Consumer
Financial Protection Bureau, 1700 G
Street NW., Washington, DC 20552.
• Hand Delivery/Courier: Monica
Jackson, Office of the Executive
Secretary, Consumer Financial
Protection Bureau, 1275 First Street NE.,
Washington, DC 20002.
• Instructions: All submissions
should include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. Because paper mail in the
Washington, DC area and at the Bureau
is subject to delay, commenters are
encouraged to submit comments
electronically. 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 1275
First Street NE., Washington, DC 20002,
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
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SUMMARY:
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(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 generally will
not be edited to remove any identifying
or contact information.
FOR FURTHER INFORMATION CONTACT:
David Snyder, Senior Counsel, Legal
Division, 202–435–7758.
SUPPLEMENTARY INFORMATION:
I. Background
On July 21, 2010, the President signed
into law the Dodd–Frank Wall Street
Reform and Consumer Protection Act
(Pub. L. 111–203, codified at 12 U.S.C.
5301 et seq.) (Dodd-Frank Act). Title X
of the Dodd-Frank Act created the
Bureau. Pursuant to the provisions of
the Dodd-Frank Act, the Bureau began
to exercise its authority to regulate the
offering and provision of consumer
financial products and services under
Federal consumer financial law on July
21, 2011.1
In order to establish safeguards for
protecting the confidentiality of
information, as well as procedures for
disclosing information as appropriate,
the Bureau published an interim final
rule on July 28, 2011, 76 FR 45371 (Jul.
28, 2011), followed by a final rule on
February 15, 2013, 78 FR 11483 (Feb.
15, 2013). The Bureau now proposes to
amend the rule to clarify, correct, and
amend certain provisions based on its
experience over the last several years.
The Bureau solicits comments on all
aspects of its proposal.
II. Summary of the Proposed Rule
The Bureau proposes revising all five
subparts of part 1070. It seeks comment
on all aspects of its proposed rule.
Subpart A of the rule consists largely
of definitions of terms that are used
throughout the remainder of the part.
The Bureau proposes revising several of
these definitions to clarify their
intended meanings as well as Bureau
practices.
Subpart B of the rule implements the
Freedom of Information Act, 5 U.S.C.
552 (the FOIA). The Bureau proposes
revising this subpart to clarify its
practices, provide additional flexibility
for requesters, and reflect recent
changes made to the FOIA by the FOIA
Improvement Act of 2016 (Pub. L. 114–
1 Pursuant to section 1062 of the Dodd-Frank Act,
12 U.S.C. 5582, the Secretary of the Treasury
designated July 21, 2011 as the ‘‘transfer date’’ on
which various provisions of Title X of the DoddFrank Act became effective. 75 FR 57252.
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185). Additionally, these changes
streamline the Bureau’s process for
assessing FOIA fees and notifying
requesters of such fees. These changes
will allow the Bureau to process FOIA
requests more efficiently and provide
records to requesters more quickly.
Subpart C of the rule (sometimes
referred to as Touhy regulations) sets
forth procedures for requests for
information from the Bureau in
connection with legal proceedings
between others, and describes the
Bureau’s procedures for considering
such requests or demands for official
information. The Bureau proposes
organizational and clarifying revisions
to the provisions currently set forth in
this subpart.
Subpart D of the rule pertains to the
protection and disclosure of
confidential information that the Bureau
generates and receives during the course
of its work. Various provisions of the
Dodd-Frank Act require the Bureau to
promulgate regulations providing for the
confidentiality of certain types of
information and protecting such
information from public disclosure. The
Bureau has sought to provide the
maximum protection for confidential
information, while ensuring its ability to
share or disclose information to the
extent necessary to achieve its mission.
The Bureau has included detailed
procedures in its rule in order to
promote transparency regarding its
practices and anticipated uses of
confidential information.
The Bureau has sought to balance
concerns regarding the need to protect
confidential information, including
sensitive personal information, business
information, and confidential
supervisory information, against the
need to use and disclose certain
information in the course of its work or,
as appropriate, the work of other
agencies with overlapping statutory or
regulatory authority. The Bureau
proposes amending subpart D to clarify,
correct, and amend certain aspects of
the rule based on its experience over the
last several years.
In addition, in amending this subpart,
the Bureau intends to codify its revised
interpretation of 12 U.S.C. 5512(c)(6).
The Bureau has previously interpreted
12 U.S.C. 5512(c)(6)(C)(ii), which
discusses discretionary disclosure of
confidential supervisory information to
certain agencies with ‘‘jurisdiction,’’ to
set forth a positive grant of authority
that limits the Bureau’s discretion to
disclose confidential supervisory
information under the rules authorized
by 12 U.S.C. 5512(c)(6)(A). The Bureau
now believes that the better
interpretation of 12 U.S.C.
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5512(c)(6)(C)(ii), when read in context
with 12 U.S.C. 5512(c)(6)(B) and 12
U.S.C. 5512(c)(6)(C)(i), is that it
establishes part of an informationsharing regime with a limited set of
other agencies. Aside from mandatory
disclosure requirements in 12 U.S.C.
5512(c)(6)(C)(i), the regime does not
limit the Bureau’s discretion to draft
rules related to the disclosure of
confidential supervisory information.
The Bureau proposes accounting for its
revised interpretation in 12 CFR
1070.43(b)(1), which addresses the
Bureau’s discretionary disclosure of
confidential information to other
agencies. The Bureau’s revised
interpretation and proposed revision to
§ 1070.43 do not alter the Bureau’s
policy on disclosing confidential
supervisory information to law
enforcement agencies, as previously
articulated in CFPB Bulletin 12–01 (Jan.
4, 2012).
Subpart E contains the Bureau’s rule
implementing the Privacy Act of 1974,
5 U.S.C. 552a. The Bureau proposes
revising the subpart to clarify the Chief
Privacy Officer’s authority, to provide
additional flexibility for requestors, and
to make technical corrections.
III. Legal Authority
The Bureau is proposing this rule
pursuant to its authority under the
following statutory provisions: (1) Title
X of the Dodd-Frank Act, 12 U.S.C. 5481
et seq., including (a) Section 1022(b)(1),
12 U.S.C. 5512(b)(1), which allows the
Bureau to ‘‘prescribe rules . . . as may
be necessary and appropriate to enable
the Bureau to administer and carry out
the purposes and objectives of the
Federal consumer financial laws’’; (b)
Section 1022(c)(6)(A), 12 U.S.C.
5512(c)(6)(A), which states that the
Bureau ‘‘shall prescribe rules regarding
the confidential treatment of
information obtained from persons in
connection with the exercise of its
authorities under Federal consumer
financial law’’; and (c) Section 1052(d),
12 U.S.C. 5562(d), which instructs that
‘‘[d]ocumentary materials and tangible
things received as a result of a civil
investigative demand shall be subject to
requirements and procedures regarding
confidentiality, in accordance with rules
established by the Bureau,’’ and
addresses the disclosure of confidential
information to Congress; (2) the
Freedom of Information Act, 5 U.S.C.
552, which grants the public an
enforceable right to obtain access to or
copies of federal agency records unless
disclosure of those records, or
information contained within them, is
exempt from disclosure due to one or
more statutory exemptions and
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exclusions; (3) the Privacy Act of 1974,
5 U.S.C. 552a, which provides
individuals with certain privacy
protections related to federal agencies’
collection, maintenance, use, and
disclosure of information about them;
(4) the Right to Financial Privacy Act,
12 U.S.C. 3401 et seq., which provides
individuals with certain privacy
protections related to the disclosure of
financial records by financial
institutions to federal agencies; (5) the
Trade Secrets Act, 18 U.S.C. 1905,
which provides certain protections
related to proprietary information
disclosed to federal agencies; (6) 18
U.S.C. 641, which prohibits the
embezzlement, theft, purloining,
knowing conversion, or unauthorized
sale, conveyance, or disposal of a
federal agency’s record, voucher,
money, or thing of value; (7) the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq., which generally addresses
information collections by federal
agencies; and (8) the Federal Records
Act, 44 U.S.C. 3101, which addresses
the creation, maintenance, use, and
disposition of federal records by federal
agencies;
IV. Section-by-Section Analysis of the
Proposed Rule
Part 1070—Disclosure of Records and
Information
Subpart A—General Provisions and
Definitions
Section 1070.2
General Definitions
Section 1070.2(a) Agency
The Bureau proposes adding a new
definition, ‘‘agency,’’ which it will
define to include ‘‘a Federal, State, or
foreign governmental authority or an
entity exercising governmental
authority.’’ As currently drafted,
§ 1070.43 provides the Bureau with
discretion to share confidential
information with Federal or State
agencies in certain circumstances. The
proposed definition, combined with
proposed revisions to §§ 1070.43 and
1070.45, will clarify the Bureau’s ability
to share confidential information with
foreign regulators and certain entities
that exercise governmental authority,
such as registration and disciplinary
organizations like state bar associations,
and the procedures that should be used
to do so. The Bureau may at times
collaborate with such entities in the
course of carrying out its authorities
under Federal consumer financial laws.
Proposed revisions to § 1070.47 would
expand protections for confidential
information disclosed under subpart D
to include information shared with
these additional entities. The Bureau
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58311
proposes additional technical
corrections throughout the rule to
account for use of this new term.2
Section 1070.2(b) Associate Director
for Supervision, Enforcement and Fair
Lending
The Bureau proposes adding a new
definition for ‘‘Associate Director for
Supervision, Enforcement and Fair
Lending’’ in order to clarify the meaning
of a term used in the current rule, as
well as several times in the proposed
revisions to the rule.
Section 1070.2(e) Civil Investigative
Demand Material
Section 1070.2(e) defines the term
‘‘civil investigative demand material.’’
For purposes of clarity and efficiency,
the Bureau proposes incorporating this
definition into the definition of
‘‘confidential investigative information’’
in § 1070.2(j). Because the term ‘‘civil
investigative demand material’’ only
arises in the rule in § 1070.2(j), the
separate definition is unnecessary.
Section 1070.2(g) Confidential
Information
Section 1070.2(g) defines the term
‘‘confidential information.’’ Confidential
information refers to three defined
categories of non-public information—
confidential consumer complaint
information, confidential investigative
information, and confidential
supervisory information—as well as
other Bureau information that is exempt
from disclosure pursuant to one or more
of the statutory exemptions to the FOIA.
Confidential information does not
include information contained in
records that have been made publicly
available or otherwise publicly
disclosed by the Bureau. The Bureau
proposes revising the definition to
clarify that such appropriate disclosures
may be made by either Bureau
employees or other authorized agents of
the Bureau. An unauthorized disclosure
of information would not affect the
information’s confidentiality.
In addition, the Bureau proposes
revising the definition to clarify that
confidential information disclosed to a
third party in accordance with subpart
D shall remain the Bureau’s confidential
information.
Section 1070.2(h) Confidential
Consumer Complaint Information
Section 1070.2(h) defines the term
‘‘confidential consumer complaint
information.’’ The Bureau proposes
expanding the definition to include any
2 The Bureau also proposes renumbering the
definitions in § 1070.2 to account for the addition
and subtraction of various definitions.
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information received or generated by the
Bureau through processes or procedures
established under 12 U.S.C. 5493(b)(3).
The Bureau has found that its Consumer
Response system at times receives
misdirected complaints for which it
lacks authority to act, or complaints
filed by companies rather than
consumers. This revision will clarify
that any complaints submitted to the
Bureau through its Consumer Response
system, and any information generated
therein, are similarly classified under its
confidentiality rules and subject to the
same confidentiality protections. The
revision does not alter the current text
which limits confidential consumer
complaint information to only include
information that is exempt from
disclosure pursuant to 5 U.S.C. 552(b).
Section 1070.2(i) Confidential
Investigative Information
Section 1070.2(i) defines the term
‘‘confidential investigative
information.’’ As discussed above with
respect to § 1070.2(e), the Bureau
proposes incorporating the definition of
‘‘civil investigative demand material’’
into § 1070.2(i). In addition, we propose
revising the term to clarify that
confidential investigative information
includes any information obtained or
generated in the course of Bureau
enforcement activities, including
general investigative activities that may
not pertain to a specific institution. The
Bureau also proposes replacing
§ 1070.2(i)(2)’s reference to ‘‘materials’’
with ‘‘documents, materials, or records’’
in order to parallel similar language in
the definition of ‘‘confidential
supervisory information’’ at
§ 1070.2(j)(2).
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Section 1070.2(j) Confidential
Supervisory Information
Section 1070.2(j) defines the term
‘‘confidential supervisory information.’’
The Bureau proposes revising
§ 1070.2(j)(1)(i) to clarify that the term
includes supervisory letters and similar
documents. Since adopting the current
definition of ‘‘confidential supervisory
information,’’ the Bureau has refined the
formats it uses for summarizing and
memorializing the results of an
examination or other supervisory review
of a supervised financial institution.
The Bureau currently issues different
types of documents, including
examination reports and supervisory
letters, to convey the results of its
examinations and other supervisory
reviews. These documents are the
property of the Bureau and are provided
to the supervised financial institution
for its confidential use only.
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In addition, the Bureau proposes
revising § 1070.2(j)(1)(ii) to state that, in
addition to ‘‘documents’’ prepared by,
or on behalf of, or for the use of the
Bureau or any other Federal, State, or
foreign government agency in the
exercise of its supervisory authority
over a financial institution, confidential
supervisory information also includes
‘‘materials[] or records’’ prepared by, or
on behalf of, or for the use of the Bureau
or any other Federal, State, or foreign
government agency in the exercise of its
supervisory authority over a financial
institution. This revision is intended to
clarify that any such physical materials
can include confidential supervisory
information, regardless of the format.
Likewise, the Bureau proposes revising
the definition to include information
derived from such ‘‘materials[] or
records.’’ We note that information
‘‘derived’’ from such documents,
materials, or records could include
either physical materials (such as other
documents, materials, or records) or
information known to individuals (such
as oral testimony or interviews based on
knowledge gleaned from the documents,
materials, or records).
In addition, the Bureau proposes
revising § 1070.2(j)(1)(iv) to delete the
reference to information collected using
the Bureau’s authority to monitor for
risks to consumers in the offering or
provision of consumer financial
products or services under 12 U.S.C.
5512(c)(4) (sometimes referred to as the
Bureau’s ‘‘market monitoring’’
authority). The Bureau believes that it is
not necessary to classify such
information as ‘‘confidential
supervisory information’’ if it is not
used for supervisory purposes. In
accordance with the definition of
‘‘confidential information’’ in
§ 1070.2(g), market monitoring
information will continue to be
classified and protected as ‘‘confidential
information’’ to the extent that it is
exempt from disclosure pursuant to one
or more of the statutory exemptions to
the FOIA. For example, market
monitoring information that contains
confidential business information or
personal information would generally
be classified as confidential information
because that information generally is
exempt from disclosure under the FOIA
exemptions (b)(4) or (b)(6), respectively.
See 5 U.S.C. 552(b)(4) & (6). Such
information would be subject to the
same protections currently accorded to
it, including the limitations on public
disclosure and disclosures to other
regulators.
In contrast, information collected for
market monitoring purposes that is
already publicly available generally
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would not be classified as confidential
information because such information
generally would not be exempt from
disclosure under the FOIA. Under the
proposed revision, the Bureau would
have more flexibility to use and disclose
less-sensitive, non-confidential
information as appropriate.
The Bureau proposes replacing the
‘‘market monitoring’’ reference in
§ 1070.2(j)(1)(iv) with new language
stating that confidential supervisory
information includes information
obtained by the Bureau ‘‘for purposes of
detecting and assessing risks to
consumers and to markets for consumer
financial products or services pursuant
to 12 U.S.C. 5514(b)(1)(C), 5515(b)(1)(C),
and 5516(b).’’ The purpose of this
revision is to clarify that confidential
supervisory information continues to
include information obtained by the
Bureau under its supervisory authorities
at 12 U.S.C. 5514(b)(1)(C), 5515(b)(1)(C),
and 5516(b). The Bureau has previously
interpreted § 1070.2(j)(1)(iv) to address
information obtained using these
authorities as well as information
obtained using its market monitoring
authority. The revision is intended to
retain the former, but exclude the latter.
Finally, the Bureau proposes deleting
§ 1070.2(i)(2), which currently states
that confidential information does not
include documents prepared by a
supervised financial institution for its
own business purposes and that the
Bureau does not possess. This provision
was intended to prevent any implication
that a supervised financial institution’s
copies of internal documents would be
deemed to be confidential supervisory
information on the grounds that those
documents had been submitted to the
Bureau in the course of a Bureau
supervisory process. However, the
Bureau believes that this interpretation
already follows from the other
provisions of the rule, including the
definition of ‘‘confidential supervisory
information,’’ and therefore this
exception is unnecessary. Should a
supervised financial institution submit
copies of such documents to the Bureau
in the course of a Bureau supervisory
process, the copies of the documents in
the Bureau’s possession would be
Bureau confidential supervisory
information. However, submission of
those documents to the Bureau does not
convert the copies of those documents
that are in the possession of the
financial institution into Bureau
confidential information. The Bureau
proposes renumbering § 1070.2(j) in
light of this revision.
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Section 1070.2(l) Employee
Section 1070.2(l) defines the term
‘‘employee’’. The Bureau proposes
revising the definition to clarify that, for
purposes of this rule, Bureau
‘‘employees’’ include certain contract
personnel and employees of the
Bureau’s Inspector General.
Section 1070.3 Custodian of Records;
Certification; Alternative Authority
Section 1070.3(b) Certification of
Record
Section 1070.3(b) authorizes the
Bureau’s Chief Operating Officer to
certify the authenticity of any Bureau
record or any copy of such record. The
Bureau proposes revising the rule to
clarify that the Chief Operating Officer
can also certify the absence of a record.
Such certification is contemplated in
Rule 44 of the Federal Rules of Civil
Procedure and Rule 902 of the Federal
Rules of Evidence. See also Federal Rule
of Evidence 803(10).
Section 1070.5 Service of Summonses
and Complaints
Currently, § 1070.31 provides the
process for serving the Bureau with
summonses or complaints. The Bureau
proposes moving the provision to a new
section in subpart A for clarity in order
to separate the rule governing service
when the Bureau is a party from the
remaining provisions in subpart C,
which deal with requests for
information for other proceedings. In
addition, the Bureau proposes revising
paragraph (d)’s requirement that
documents be ‘‘stamped’’ ‘‘Service
Accepted for Official Capacity Only’’ by
replacing the word ‘‘stamped’’ with the
word ‘‘marked.’’ This proposal would
clarify that the documents may be
labeled using a variety of methods.
Subpart B—Freedom of Information Act
Section 1070.11 Information Made
Available; Discretionary Disclosures
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Section 1070.11(a)
In General
Section 1070.11(a)(2)
The Bureau proposes to remove the
phrase ‘‘and copying’’ and replace it
with ‘‘in an electronic format.’’ The
Bureau proposes similar revisions to
section 1070.13. These changes are
required by the FOIA Improvement Act
of 2016.
Section 1070.14
Records
Requests for CFPB
Section 1070.14(b) Form of Request
Section 1070.14(b) specifies the form
of FOIA requests. The current text
distinguishes between requests made in
writing and by electronic means. The
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Bureau proposes a technical change to
this provision. It proposes to remove the
phrase ‘‘or by electronic means’’ and
add ‘‘as follows:’’ in its place. The
Bureau also proposes changes to
sections 1070.14(b)(1) and (2) to clarify
how requesters must submit FOIA
requests to the Bureau. The Bureau
proposes similar changes to the
following sections: 1070.17(b)(1);
1070.21(c); and 1070.22(e)(1)(i).
Section 1070.14(c)
Content of Request
Section 1070.14(c)(4)
Section 1070.14(c)(4) provides that a
FOIA requester should indicate in the
request whether the requester is a
commercial user, an educational
institution, non-commercial scientific
institution, representative of the news
media, governmental entity, or ‘‘other’’
requester, as those terms are defined in
§ 1070.22(b). The section also informs
requesters that they may contact the
Bureau’s FOIA Public Liaison to seek
assistance in determining the
appropriate fee category. The current
language only permits the Bureau to use
information provided to the FOIA
Public Liaison by a requester for the
purpose of determining the requester’s
fee category. The Bureau proposes to
remove this limitation so that it can use
this information for other purposes,
such as aiding a requester in clarifying
the scope of a request, assisting in
identifying records sought by a
requester, and helping to resolve
disputes related to a request.
Section 1070.14(c)(5)
Section 1070.14(c)(5) provides that if
a requester seeks a waiver or reduction
of fees associated with processing a
request, then the request shall include a
statement to that effect. The current
language also includes a statement that
any request that does not seek a waiver
or reduction of fees constitutes an
agreement of the requester to pay all
fees up to $25. The Bureau proposes to
remove this language in light of other
proposed fee related revisions. Under
the Bureau’s proposed revisions to
§ 1070.22(d) and (f), FOIA requesters
may still specify an upper limit on the
fees that they are willing to pay to
process a request and the Bureau will
notify a requester of any potential fees
beyond that limit before processing the
request.
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Section 1070.18 Responses To
Requests for CFPB Records
Section 1070.18(a)
of Requests
Acknowledgement
Section 1070.18(a)(4)
Section 1070.18(a)(4) specifies what
fee related information the Bureau will
include in acknowledgement letters it
sends to requesters. The Bureau
proposes to make a technical change to
this provision, removing the phrase ‘‘(of
not less than $25)’’ to account for the
proposed revisions to fee-related
provisions in § 1070.22(d) and (f).
Section 1070.18(b) Initial
Determination To Grant or Deny a
Request
Section 1070.18(b)(4)
The Bureau proposes to add a new
provision at section 1070.18(b)(4)(iv)
requiring it to inform requesters of the
right to seek dispute resolution services
from the Bureau’s FOIA Public Liaison
or the Office of Government Information
Services. The Bureau also proposes to
renumber the existing provisions under
section 1070.18(b)(4) to accommodate
this change. This change is required by
the FOIA Improvement Act of 2016.
Section 1070.18(c)
Disputes
Resolution of
The Bureau proposes a new paragraph
to inform requesters about the resources
available to resolve any disputes that
may arise during the request process.
These resources are the Bureau’s FOIA
Public Liaison and mediation services
provided by the National Archives and
Records Administration (NARA), Office
of Government Information Services
(OGIS).
Section 1070.18(d)
Disclosed
Format of Records
The Bureau proposes a new paragraph
to inform requesters that they may
request records in a particular format.
The Bureau will provide records in a
requested format when the requested
format can readily be reproduced from
the original file.
Section 1070.20 Requests for Business
Information Provided to the CFPB
Section 1070.20(f) Opportunity To
Object to Disclosure
Section 1070.20(f) provides a
submitter of business information with
ten business days to object to the
Bureau’s disclosure of the submitter’s
business information. The Bureau
proposes to make two technical changes
to this provision clarifying that the
Bureau will delay any release of
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information to afford the submitter ten
business days to object to the disclosure.
Section 1070.22 Fees for Processing
Requests for CFPB Records
Section 1070.21
Appeals
Section 1070.22(b)
Requesters
Administrative
Section 1070.21(b) Time Limits for
Filing Administrative Appeals
Section 1070.21(b) provides the time
limits for filing administrative appeals.
The Bureau proposes to revise this
provision to clarify that the time period
for filing an appeal begins on the day
after the date the initial determination is
sent to the requester or the date of the
letter transmitting the last records
released, whichever is later. The Bureau
also proposes to change the time limit
for filing an administrative appeal from
45 days to 90 days. This change is
required by the FOIA Improvement Act
of 2016.
Section 1070.21(d) Processing of
Administrative Appeals
Section 1070.21(d) specifies how the
Bureau will process administrative
appeals. The Bureau proposes to remove
the requirement that appeals be stamped
with the date of their receipt by the
FOIA Office. The FOIA Office does not
stamp an appeal with the date the
Bureau received it, but the date is
recorded in Bureau’s system for tracking
FOIA requests. This requirement is
outmoded and the Bureau proposes to
remove it to account for its current
practice.
Section 1070.21(d) also currently
provides that appeals will be processed
in the order in which they are received.
Since adopting this provision in 2011,
the Bureau has found that it is not
always practicable to complete action
on appeals in the order in which they
are received, and sometimes has chosen
to act on a simple later-received appeal
rather than delay action pending
completion of a more complex earlierreceived appeal. In order to better align
the regulation with current practice, the
Bureau is proposing to delete the
provision calling for first-in-first-out
processing of appeals.
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Section 1070.21(e) Determinations To
Grant or Deny Administrative Appeals
Section 1070.21(e) authorizes the
General Counsel to decide
administrative appeals, and
§ 1070.21(e)(3) currently allows for
remand of a FOIA determination as one
option for the General Counsel’s
disposition of an appeal. The Bureau
proposes to amend the first sentence of
§ 1070.21(e) to add a reference to
remands so that all options for
disposition of appeals are listed in that
sentence.
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Categories of
Section 1070.22(b)(1)
Section 1070.22(b)(1)(i) defines the
‘‘Commercial user’’ category of
requester. The Bureau proposes to
amend this provision to clarify that the
Bureau’s decision to place a requester in
the commercial user category will be
made on a case-by-case basis based on
how the requester will use the
information. The Bureau proposes this
change to clarify how it will make
decisions whether to place a requester
in the commercial user category.
Section 1070.22(b)(2)
Section 1070.22(b)(2) provides that
the Bureau will notify a requester of its
determination as to the proper fee
category to apply to the requester. The
current language of the provision
provides that the Bureau will make its
determination based on a review of the
requester’s submission and the Bureau’s
own records. The Bureau proposes to
delete this limitation to clarify that it
may base its determination on other
appropriate information, including
phone conversations with the requester
and publicly available information.
Section 1070.22(d) Other
Circumstances When Fees Are Not
Charged
Section 1070.22(d)(2)
The Bureau proposes to insert a new
paragraph at § 1070.22(d)(2); existing
paragraphs in § 1070.22(d) will be
renumbered to accommodate the new
paragraph. Section 1070.22(d) provides
certain circumstances where the Bureau
may not charge a requester a fee for
processing a FOIA request. The
proposed new paragraph would provide
that the Bureau will not charge a
requester any fees when the fee,
excluding duplication costs, is less than
$250. The Bureau proposes this change
as part of its larger goal of revising the
process for how it assesses FOIA
processing fees and how the Bureau
notifies requesters of such fees. This
new provision would streamline the
Bureau’s process for assessing FOIA
fees. This change would allow the
Bureau to process FOIA requests more
quickly and efficiently because the
Bureau will no longer need to contact a
FOIA requester concerning processing
fees when the cost to process the request
is less than $250. As such, this
provision would provide information to
these requesters more quickly and at a
reduced cost to the requesters.
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Section 1070.22(d)(4)
The Bureau proposes to revise this
provision to prohibit it from charging
search fees, or in certain cases
duplication fees, when the Bureau has
failed to comply with time limits under
§ 1070.15 or § 1070.21, unless (1)
unusual circumstances apply to the
processing of the request; (2) the Bureau
has provided timely written notice of
the unusual circumstances to the
requester; (3) more than 5,000 pages are
necessary to respond to the request; and
(4) the Bureau has discussed with the
requester (or made three good-faith
attempts to do so) how the requester
could effectively limit the scope of the
request. These changes are required by
the FOIA Improvement Act of 2016.
Section 1070.22(e)
Reduction of Fees
Waiver or
Section 1070.22(e)(5)
Section 1070.22(e)(5) provides that
the Bureau will decide whether to grant
or deny a request to reduce or waive
fees prior to processing the FOIA
request and that the Bureau will notify
the requester of such a determination in
writing. The Bureau proposes to delete
this requirement because it is
unnecessary in light of other proposed
fee related revisions. In many cases
involving requests for fee waivers, the
Bureau will be able to process the FOIA
request without deciding the merits of
the fee waiver request because the
processing fees will be less than $250.
Furthermore, removing this requirement
will allow the Bureau to process FOIA
requests more efficiently and provide
information to requesters more quickly.
Under the Bureau’s proposed revisions,
the Bureau will notify a requester when
it has denied a fee waiver request and
processing the request would incur fees.
Section 1070.22(e)(6)
Section 1070.22(e)(6) specifies what
information the Bureau will include in
the letter it sends notifying the requester
that the Bureau has denied a request for
a waiver or reduction of fees. The
Bureau proposes to make a technical
change to this provision, removing the
phrase ‘‘(of not less than $25)’’ to
account for other newly proposed fee
related provisions.
Section 1070.22(f) Advance Notice and
Prepayment of Fees
Section 1070.22(f) describes the
Bureau’s process for notifying a
requester of any processing fees
associated with a FOIA request. The
Bureau proposes several changes to this
provision to clarify and streamline its
process for assessing FOIA processing
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fees and for notifying requesters of such
fees. First, the Bureau proposes to revise
§ 1070.22(f)(1) to provide that the
Bureau will notify a requester of the
estimated fees to process a FOIA request
when the estimated fees are $250 or
more and the estimated fees exceed the
limit set by the requester, the requester
has not specified a limit, or the Bureau
has denied a request for a reduction or
waiver of fees. Next, the Bureau
proposes to revise § 1070.22(f)(2) to
raise the fee threshold above which a
requester must pre-pay estimated
processing fees from $250 to $1000.
This change is necessary because of the
Bureau’s proposed change to
§ 1070.22(d): The Bureau proposes
raising its current pre-payment
threshold of $250 because it will no
longer charge fees for processing a
request when the fees are $250 or less.
The Bureau’s proposed revisions to
§ 1070.22(f) will require a requester to
agree to pay processing fees before the
Bureau begins processing the request.
The Bureau believes that such an
agreement will provide sufficient
assurance of payment for fees less than
$1000. This change is in accordance
with the Bureau’s current practice for
requiring pre-payment of fees.
Furthermore, this change will allow the
Bureau to process FOIA requests more
efficiently and provide records to
requesters more quickly.
Section 1070.23 Authority and
Responsibilities of the Chief FOIA
Officer
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Section 1070.22(a)
Chief FOIA Officer
Paragraph 1070.22(a) discusses the
role of the Bureau’s Chief FOIA Officer.
The Bureau proposes insert two new
subparagraphs to this paragraph. The
first concerns the Chief FOIA Officer’s
responsibility to offer training to Bureau
staff regarding their responsibilities
under the FOIA and the second
concerns the Chief FOIA Officer’s role
as the primary Bureau liaison with the
Office of Government Information
Services and the Department of Justice’s
Office of Information Policy. The
Bureau also proposes to renumber the
provisions in this section to
accommodate these changes. These
changes are required by the FOIA
Improvement Act of 2016.
Subpart C—Disclosure of CFPB
Information in Connection With Legal
Proceedings
Subpart C addresses the disclosure of
Bureau information in connection with
legal proceedings. The Bureau proposes
several technical corrections throughout
the subpart.
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Section 1070.30
Definitions
Purpose and Scope;
Section 1070.30(a)
Section 1070.30(a) defines the
circumstances for which the procedures
outlined in subpart C apply. The Bureau
proposes to delete paragraph (a)(1) from
this provision and to renumber the
section accordingly. The Bureau
proposes this revision as a technical
change to account for moving § 1070.31
to subpart A.
Section 1070.30(e)
Section 1070.30(e)(2) defines the term
‘‘legal proceeding’’ for subpart C. The
Bureau proposes to add the phrase
‘‘their agents’’ to the last sentence of this
provision to clarify that this definition
applies to formal and informal requests
made by both attorneys and their agents.
Section 1070.31 Service of
Summonses and Complaints
Section 1070.31 provides the process
for serving the Bureau with summonses
or complaints. As discussed above, the
Bureau proposes to delete § 1070.31
from subpart C and move it to a new
section in subpart A, § 1070.5. The
Bureau also proposes to renumber
sections and cross-references in subpart
C to account for this change. For
additional information, see the
discussion of § 1070.5.
Section 1070.31 Service of Subpoenas,
Court Orders, and Other Demands for
CFPB Information or Action
Section 1070.31(d)
Section 1070.31(d) provides that the
Bureau is not authorized to accept on
behalf of its employees any subpoenas,
orders, or other demands or requests,
which are not related to the employees’
official duties. In addition, the current
text of the provision implies that it is
the Bureau’s practice to accept such
demands or requests ‘‘upon the express,
written authorization of the individual
CFPB employee to whom such demand
or request is directed.’’ The Bureau
proposes to delete this part of the
provision because it is not the general
practice of the Bureau to accept service
on behalf of individual employees. The
Bureau further proposes deleting the
paragraph’s introductory caveat,
‘‘[e]xcept as otherwise provided in this
subpart,’’ because the subpart does not
otherwise provide for the Bureau to act
as an agent for service for subpoenas,
orders, or other demands or requests
that do not relate to employees’ official
conduct.
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Section 1070.33 Procedure When
Testimony or Production of Documents
is Sought; General
Section 1070.33(b)
Section 1070.33(b) provides that the
General Counsel may require a party
seeking official information through
testimony, CFPB records, or other
material, to describe all reasonably
foreseeable demands for such
information. The Bureau proposes to
make several technical changes to
clarify this provision.
Subpart D—Confidential Information
Section 1070.30(e)(2)
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Section 1070.41 Non-Disclosure of
Confidential Information
Section 1070.41(b) Disclosures to
Contractors and Consultants
Section 1070.41(b) provides that
contractors and consultants in
possession of confidential information
must treat it in accordance with these
rules, Federal laws and regulations that
apply to Federal agencies for the
protection of the confidentiality of
personally identifiable information and
for data security and integrity, as well
as any additional conditions or
limitations that the Bureau may impose.
The current language includes a
requirement that contractors and
consultants certify in writing that they
will follow this provision. The Bureau
proposes replacing the certification
requirement with an affirmative
statement that contractors and
consultants must follow this provision.
The revision is intended to clarify that
contractors and consultants are subject
to § 1070.41(b)’s requirements
irrespective of any affirmative
certification. We note that this revision
will in no way alter the Bureau’s current
practices related to requiring contractors
and consultants to sign non-disclosure
agreements, agree to protections in
contracts, or take other appropriate
steps to protect confidential
information.
Section 1070.41(c) Disclosures of
Materials Derived From Confidential
Information
Section 1070.41(c) addresses the
disclosure of materials derived from
confidential information. It requires
that, when the Bureau discloses such
materials, they may not directly or
indirectly identify any particular person
to whom the confidential information
pertains. The Bureau proposes replacing
the phrase ‘‘[n]othing in this subpart
shall limit the discretion of the CFPB’’
with ‘‘[t]he CFPB may . . .’’ in order to
clarify that § 1070.41(c) authorizes such
disclosure by the Bureau.
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Section 1070.41(d) Disclosures of
Confidential Information With Consent
The Bureau proposes a new paragraph
that, where practicable, authorizes the
Bureau to, upon receipt of prior consent,
disclose confidential information that
directly or indirectly identifies
particular persons. The provision would
require consent from all such persons to
the extent that the identification
constitutes confidential information,
and any such disclosure would have to
comply with applicable law. The
Bureau believes that it may at times be
useful to disclose such information in
order to achieve its mission objectives.
By conditioning disclosure on consent,
affected persons’ interests would be
appropriately protected. This new
provision is intended to serve as a
distinct authority for disclosure, and it
in no way impacts other methods of
disclosure currently addressed in the
Rule, such as in § 1070.43. The Bureau
proposes renumbering the section to
account for the new paragraph.
Section 1070.41(e) Nondisclosure of
Confidential Information Provided to
the CFPB by Other Agencies
Section 1070.41(e) provides that
nothing in subpart D requires or
authorizes the Bureau to disclose
confidential information that it has
received from other agencies where
such disclosure would contravene
applicable law or conflict with any
agreement between the CFPB and the
provider agency. The Bureau proposes
replacing the word ‘‘disclosability’’ in
the paragraph’s title with
‘‘nondisclosure’’ in order to clarify that
this provision protects the
confidentiality of other agencies’
confidential information. This revision
would not make any substantive change
to the provision.
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Section 1070.42 Disclosure of
Confidential Supervisory Information
and Confidential Investigative
Information to and by Financial
Institutions and Their Affiliates
Section 1070.42 provides that the
Bureau may, in its discretion, disclose
confidential supervisory information
concerning a supervised financial
institution or its service providers to
that supervised financial institution or
its affiliates. In addition, § 1070.42
provides that, unless directed otherwise
by the Bureau’s Associate Director for
Supervision, Enforcement, and Fair
Lending or by his or her delegee, any
supervised financial institution in
possession of confidential supervisory
information pursuant to this section
may further disclose the information to
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certain recipients and subject to certain
conditions.
The Bureau proposes expanding the
scope of § 1070.42 to address its
enforcement activities in addition to its
supervisory activities. This revision will
lend clarity to the Bureau’s disclosures
in the enforcement context, and to the
extent of financial institutions’
discretion to further disclose
confidential investigative information
(such as civil investigative demands
(‘‘CIDs’’) or notice and opportunity to
respond and advise (‘‘NORA’’) letters).
The resulting rule will provide that
recipients of confidential investigative
information have the same discretion
with respect to disclosing confidential
investigative information that they
currently have with respect to
confidential supervisory information. In
addition, the proposal will establish a
single process for such recipients to
follow if they wish to further disclose
confidential information obtained in the
course of the Bureau’s supervisory or
enforcement activities. The proposed
revisions will result in no substantive
change to the Bureau’s supervisory
activities or supervised financial
institutions’ discretion to disclose
confidential supervisory information, as
currently articulated in the rule.
To achieve these ends, the Bureau
proposes revising the section’s title to
read ‘‘Disclosure of confidential
supervisory information and
confidential investigative information.’’
In addition, all references in the section
to ‘‘confidential supervisory
information’’ will be accompanied by
the phrase ‘‘or confidential investigative
information.’’ Furthermore, references
to any ‘‘supervised financial institution’’
will be replaced by a broader reference
to any ‘‘person.’’ ‘‘Supervised financial
institutions’’ are a kind of ‘‘person,’’
which is defined at § 1070.2. The
Bureau proposes using this broader term
because the recipients of confidential
investigative information may not be
supervised financial institutions, and at
times some recipients, such as thirdparty recipients of civil investigative
demands, may not be financial
institutions. Finally, the Bureau
proposes several non-substantive
technical revisions for purposes of
clarity.
The Bureau also proposes revising
§ 1070.42(a) to provide that, in addition
to disclosing information concerning a
person, its affiliates, or its service
providers to that person or its affiliates,
the Bureau may also disclose such
information to its service providers. The
Bureau proposes this change because
such information may at times be
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relevant to supervision or enforcement
activities related to service providers.
In addition, the Bureau proposes
revising § 1070.42(b)(2) to clarify that a
person in possession of confidential
supervisory information or confidential
investigative information relating to that
person may disclose such information to
an insurance provider pursuant to a
claim for coverage made by that person
under an existing policy. Such
disclosures may only be made if the
Bureau has not precluded
indemnification or reimbursement for
the claim.
We note that this revised language
only authorizes disclosure to the extent
necessary for the insurance provider to
process and administer the claim for
coverage. Further distribution or use of
the information is prohibited. These
limitations do not foreclose an
insurance provider from using
information that has been publicly
disclosed by the Bureau in making
future underwriting determinations
regarding the person or for other
purposes—even if that information was
originally submitted to the insurance
provider as confidential information
under this provision.
Finally, the Bureau proposes to
remove references to the Associate
Director for Supervision, Enforcement,
and Fair Lending’s delegee. Such
reference is no longer necessary because
the new definition of Associate Director
for Supervision, Enforcement, and Fair
Lending, located at § 1070.2(b), includes
delegees.
Section 1070.43 Disclosure of
Confidential Information to Agencies
Section 1070.43 sets forth the
circumstances in which the Bureau may
disclose confidential information to
other government agencies. The Bureau
proposes revising the section’s title and
subtitles to delete the references to ‘‘law
enforcement agencies’’ and
‘‘government’’ agencies because the
references are superfluous. Instead, the
title and subtitles will reference
‘‘Agencies.’’ Likewise, as discussed
above with respect to § 1070.2(a), the
Bureau proposes revisions throughout
the section to account for the newly
proposed defined term ‘‘Agency.’’ The
Bureau proposes various other nonsubstantive technical corrections.
Section 1070.43(b) Discretionary
Disclosure of Confidential Information
to Agencies
Section 1070.43(b)(1)
Section 1070.43(b)(1) sets forth the
standard under which the Bureau may
disclose confidential information to
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other agencies in its discretion. The
current rule establishes two distinct
standards for disclosing confidential
supervisory information and other
confidential information. It states that
the Bureau may disclose confidential
information to an agency ‘‘to the extent
that the disclosure of the information is
relevant to the exercise of the [Agency’s]
statutory or regulatory authority.’’
However, the Bureau may only share
confidential supervisory information
with agencies ‘‘having jurisdiction over
a supervised financial institution.’’ The
Bureau proposes removing the separate
standard for confidential supervisory
information. This proposed change
would align the two standards and
provide the Bureau with discretion to
disclose confidential supervisory
information to another agency ‘‘to the
extent that the disclosure of the
information is relevant to the exercise of
the [agency’s] statutory or regulatory
authority,’’ as it may currently do with
respect to other categories of
confidential information.
This change is intended to facilitate
communication and information-sharing
among the Bureau and other
governmental authorities. The Bureau
has determined that sharing confidential
supervisory information in situations
where the disclosure of the information
is relevant to the exercise of the
receiving agency’s statutory or
regulatory authority will facilitate the
Bureau’s purposes and objectives.
Multiple agencies engage in operations
that have the potential to affect the
offering and provision of consumer
financial products and services, as well
as the markets, industries, companies,
and other persons relevant to the
Bureau’s work. In addition, multiple
agencies have interests and obligations
relating to implementation,
interpretation, and enforcement of the
Dodd-Frank Act and the other Federal
consumer financial law administered by
the Bureau. The proposed change will
assist the Bureau in implementing and
administering Federal consumer
financial law in a more consistent and
effective fashion, and enable the Bureau
to work together with other agencies
having responsibilities related to
consumer financial matters. The Bureau
also believes that the proposed change
would comport with the intent of the
Dodd-Frank Act, since effective
coordination and communication
among agencies is essential in order for
the regulatory framework established by
that Act to work as Congress intended.
In the Bureau’s judgment, the current
rule’s restrictions have proven overly
cumbersome in application, pose
unnecessary impediments to
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cooperating with other agencies, and
otherwise risk impairing the Bureau’s
ability to fulfill its statutory duties.
Unnecessary impediments to
information-sharing in such
circumstances impede supervisory and
enforcement coordination and create
opportunities for potential conflict,
inefficiency, and duplication of efforts
across agencies. The Bureau believes
that retaining discretion to share
confidential supervisory information in
such situations would better promote
the Bureau’s mission and overall
effectiveness.
This proposal would codify the
Bureau’s revised interpretation of 12
U.S.C. 5512(c)(6). 12 U.S.C. 5512(c)(6)
has three subparagraphs. 12 U.S.C.
5512(c)(6)(A) directs the Bureau to
‘‘prescribe rules regarding the
confidential treatment of information
obtained from persons in connection
with the exercise of its authorities under
Federal consumer financial law.’’ 12
U.S.C. 5512(c)(6)(B) addresses
disclosure of confidential supervisory
information to the Bureau by certain
agencies: Subparagraph (B)(i) requires
that the Bureau ‘‘shall have access’’ to
reports of examination or financial
condition by ‘‘a prudential regulator or
other Federal agency having jurisdiction
over a covered person or service
provider,’’ and subparagraph (B)(ii)
provides that the same agencies ‘‘may,
in [their] discretion, furnish to the
Bureau any other report or other
confidential supervisory information
concerning any [entity] examined by
such agency . . . .’’ Meanwhile, 12
U.S.C. 5512(c)(6)(C) addresses
disclosure of confidential supervisory
information by the Bureau to certain
agencies: Subparagraph (C)(i) requires
that ‘‘a prudential regulator, a State
regulator, or any other Federal agency
having jurisdiction over a covered
person or service provider shall have
access to any report of examination
made by the Bureau with respect to
such person . . . ,’’ and subparagraph
(C)(ii) provides that the Bureau ‘‘may, in
its discretion, furnish to a prudential
regulator or other agency having
jurisdiction over a covered person or
service provider any other report or
other confidential supervisory
information concerning such person
examined by the Bureau . . . .’’
The Bureau had previously
interpreted 12 U.S.C. 5512(c)(6)(C)(ii) to
set forth a positive grant of authority
that limits the Bureau’s discretion to
disclose confidential supervisory
information under the rules authorized
by 12 U.S.C. 5512(c)(6)(A). By only
providing for the discretion to disclose
confidential supervisory information to
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‘‘prudential regulator[s] or other
agenc[ies] having jurisdiction,’’ it was
assumed that the provision prohibited
disclosure by the Bureau to agencies
that lack ‘‘jurisdiction.’’ The Bureau
articulated this interpretation in the
interim final rule and the final rule that
established this subpart. See 76 FR
45372, 45373–75 (Jul. 28, 2011); 78 FR
11484, 11496 (Feb. 15, 2013).
12 U.S.C. 5512(c)(6)’s framework—
providing the Bureau with broad
discretion to draft confidentiality rules,
followed by instructions related to the
exchange of confidential supervisory
information with certain agencies—is
ambiguous. See generally Adirondack
Medical Center et al. v. Sebelius, 740
F.3d 692 (D.C. Cir. 2014). The
juxtaposition implies that the provisions
relate to each other, but their terms
leave the precise relationship unclear,
resulting in more than one plausible
interpretation. The Bureau’s previous
interpretation was reasonable, but the
Bureau believes that an alternative
interpretation is more reasonable.
12 U.S.C. 5512(c)(6)(A) provides the
Bureau with broad discretion to draft
rules regarding the confidential
treatment of information. We think the
better view is that Congress did not
intend 12 U.S.C. 5512(c)(6)(C)(ii) to
restrict that discretion. The language in
subparagraph (C)(ii) is permissive—it
says ‘‘the Bureau may, in its discretion’’
disclose confidential supervisory
information to certain agencies. Notably,
Congress did not include any restrictive
language, such as ‘‘the Bureau may
only’’ make certain disclosures.
Understanding subparagraph (C)(ii) as a
limit to the Bureau’s discretion requires,
essentially, reading the word ‘‘only’’
into text where it does not exist. We
find this interpretation strained, as
‘‘Congress generally knows how to use
the word ‘only’ when drafting laws.’’
Adirondack Medical Center, 740 F.3d at
697.
Furthermore, 12 U.S.C.
5512(c)(6)(C)(ii) contrasts with 12 U.S.C.
5562(d)(2), where Congress clearly and
unambiguously restricted the Bureau’s
discretion in drafting these same
confidentiality rules by stating that
‘‘[n]o rule . . . shall be intended to
prevent disclosure [to Congress].’’ The
difference between the permissive
language used in 12 U.S.C.
5512(c)(6)(C)(ii) and the restrictive
language used in 12 U.S.C. 5562(d)(2)
indicates that Congress intended the
two provisions to act in different ways.
We also think that the presence of
subparagraphs (B)(i), (B)(ii), and (C)(i) in
12 U.S.C. 5512(c)(6) demonstrate that
subparagraph (C)(ii) could serve a
purpose other than limiting
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subparagraph (A). Although
subparagraph (C)(ii), in isolation, could
perhaps be read as a limiting principle,
statutory provisions should be read in
context. See, e.g., Food & Drug Admin.
v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 132–33 (2000) (‘‘The
meaning—or ambiguity—of certain
words or phrases may only become
evident when placed in context.’’). That
subparagraph (B) closely tracks the
word-choice and structure of
subparagraph (C) shows that they could
and should be read in relation to each
other. But by addressing the receipt, and
not the disclosure, of confidential
supervisory information, subparagraph
(B) is substantively irrelevant to the
Bureau’s confidentiality rules; its
inclusion indicates that the provisions
can serve a purpose other than to
restrict the Bureau’s discretion in
drafting its rule.
The Bureau believes that
subparagraphs (B) and (C) can
reasonably be read to establish an
information-sharing regime with a
limited set of agencies. The purpose of
subparagraphs (B)(ii) and (C)(ii) is to
contrast and limit the mandatory
disclosures in subparagraphs (B)(i) and
(C)(i), respectively. Whereas
subparagraph (B)(i) requires a set of
agencies (prudential regulators and
Federal agencies having jurisdiction) to
provide reports of examination or
financial condition to the Bureau,
subparagraph (B)(ii) clarifies that those
same agencies have discretion with
respect to disclosing other reports or
other confidential supervisory
information. Likewise, whereas
subparagraph (C)(i) requires the Bureau
to disclose reports of examination to
prudential regulators, state regulators,
and Federal regulators having
jurisdiction, subparagraph (C)(ii)
clarifies that disclosure of other reports
and other confidential supervisory
information to prudential regulators and
other agencies is discretionary. The
phrase ‘‘other report and other
confidential supervisory information’’
clarifies, contrasts and narrows the
reference to ‘‘report of examination’’ in
subparagraph (C)(i).
The Bureau has already addressed
subparagraph (C)(i)’s mandatory
disclosures in the confidentiality rules
at § 1070.43(a), and this paragraph
remains unchanged. The Bureau’s
proposed revision to § 1070.43(b)(1) will
include 12 U.S.C. 5512(c)(6)(C)(ii)’s
discretionary disclosures of confidential
supervisory information, and it will
allow for additional disclosures to
agencies that do not ‘‘hav[e]
jurisdiction,’’ so long as such disclosure
is ‘‘relevant to the exercise of the
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[agency’s] statutory or regulatory
authority.’’ 12 U.S.C. 5512(c)(6)(A)’s
broad grant of authority to draft
confidentiality rules provides the
Bureau sufficient discretion to make this
change.
Please note that the Bureau’s policy
regarding the disclosure of confidential
supervisory information to law
enforcement agencies, which we
previously articulated in CFPB Bulletin
12–01 (Jan. 4, 2012), remains in place.
The Bureau’s revised interpretation of
12 U.S.C. 5512(c)(6) and its proposed
revision to § 1070.43(b)(1) do not alter
CFPB Bulletin 12–01.
Section 1070.43(b)(2)
Section 1070.43(b)(2) sets forth a
process for agencies to submit written
requests (sometimes referred to as
‘‘access requests’’) to the Bureau in
order to obtain access to its confidential
information pursuant to § 1070.43(b).
Whereas the section currently requires
submission of access requests to the
General Counsel, the Bureau proposes to
instead require submission to the
Associate Director for Supervision,
Enforcement, and Fair Lending. The
Bureau believes that this change would
lead to increased efficiency because the
vast majority of access requests
submitted to the Bureau pertain to work
conducted by its Division of
Supervision, Enforcement, and Fair
Lending. The Associate Director for
Supervision, Enforcement, and Fair
Lending will continue to consult with
other Bureau stakeholders, including
the Legal Division, as necessary. The
Bureau also proposes that access
requests be emailed to a single email
address, accessrequests@cfpb.gov, or to
the Bureau’s mailing address at 1700 G
Street NW., Washington, DC 20552, in
order to facilitate processing. In making
these changes, the authority to act upon
access requests would shift from the
Legal Division to other Bureau staff with
expertise more directly related to
processing these requests.
In addition, for purposes of clarity,
the Bureau proposes revising
§ 1070.43(b)(2)(iii) to state that, among
other things, access requests must
include a statement certifying and
identifying the agency’s ‘‘statutory or
regulatory authority that is relevant to
the requested information, as required
by paragraph (b)(1).’’ We have found in
our experience that the current
formulation (the agency must certify or
identify its ‘‘authority for requesting the
documents’’) can lead to confusion.
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Section 1070.43(c) State Requests for
Information Other Than Confidential
Information
Section 1070.43(c) states that state
agency requests for information other
than confidential information are not to
be made and considered under
§ 1070.43. The Bureau proposes deleting
this paragraph because it is unnecessary
and can lead to confusion. Because, by
its own terms, § 1070.43 only applies to
confidential information, there is no
need to state that it does not apply to
information that is not confidential.
Section 1070.44 Disclosure of
Confidential Consumer Complaint
Information
Section 1070.44 addresses the
Bureau’s disclosure of confidential
consumer complaint information in the
course of investigating, resolving, or
otherwise responding to consumer
complaints. The Bureau proposes
replacing the phrase ‘‘[n]othing in this
subpart shall limit the discretion of the
CFPB’’ with ‘‘[t]he CFPB may . . . .’’
This revision is intended to clarify that
§ 1070.44 authorizes such disclosure by
the Bureau. The Bureau also proposes
replacing the phrase ‘‘concerning
financial institutions or consumer
financial products and services’’ with
‘‘concerning consumer financial
products and services or a violation of
Federal consumer financial law’’ in
order to clarify that the section broadly
addresses any information received or
generated by the Bureau through
processes or procedures established
under 12 U.S.C. 5493(b)(3), including
where complaints do not concern
financial institutions, or where the
Bureau lacks authority to act on them.
Section 1070.45 Affirmative
Disclosure of Confidential Information
Section 1070.45 addresses various
instances where the Bureau may make
disclosures of confidential information
on its own initiative. The Bureau
proposes several revisions to clarify,
supplement, or amend the disclosures
currently addressed in the section. Any
disclosures made pursuant to this
section must be made in accordance
with applicable law.
The Bureau proposes deleting the
reference in § 1070.45(a) to
‘‘confidential investigative information’’
in the phrase ‘‘confidential investigative
information or other confidential
information.’’ Because confidential
investigative information is a subcategory of confidential information,
and § 1070.45(a) already addresses
confidential information generally, the
separate reference to confidential
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investigative information is
unnecessary. Nevertheless, while the
Bureau may disclose any category of
confidential information under
§ 1070.45(a), disclosures made under
this section—particularly paragraphs
(a)(3), (a)(4), and (a)(5)—are more likely
to involve confidential investigative
information, rather than other categories
of confidential information, such as
confidential supervisory information.
Subparagraph (a)(2) addresses
disclosure of confidential information to
either House of the Congress, or to an
appropriate committee or subcommittee
of the Congress, as set forth in 12 U.S.C.
5562(d)(2). The current text states that,
upon receipt of a request from the
Congress for confidential information
that a financial institution submitted to
the Bureau along with a claim that such
information consists of trade secret or
privileged or confidential commercial or
financial information, or confidential
supervisory information, the Bureau
‘‘shall notify’’ the financial institution
in writing of its receipt of the request
and provide the institution with a copy
of the request. The Bureau proposes
revising the text to state that it ‘‘may
notify’’ the financial institution in such
circumstances. This revision will
provide greater flexibility and more
closely align with 12 U.S.C. 5562(d)(2),
which states that the Bureau ‘‘is
permitted to adopt rules allowing prior
notice to any party that owns or
otherwise provided the material to the
Bureau and had designated such
material as confidential.’’
Subparagraph (a)(3) pertains to the
disclosure of confidential information in
‘‘investigational hearings and witness
interviews, as is reasonably necessary,
at the discretion of the CFPB.’’ This
paragraph was initially intended to
address disclosure in the course of
investigations and enforcement actions.
See 76 FR 45372, 45375 (Jul. 28, 2011).
The Bureau proposes revising the
paragraph to state that it may disclose
confidential information in
‘‘investigational hearings and witness
interviews, or otherwise in the
investigation and administration of
enforcement actions, as is reasonably
necessary, at the discretion of the
CFPB.’’ This revision clarifies that the
Bureau may disclose confidential
information in its discretion to conduct
its investigations or perform
administrative tasks to further its own
enforcement actions. This includes, for
example, disclosures to expert
witnesses, service process servers, or
other federal and state agencies that may
provide assistance with space for
investigational hearings or advise the
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Bureau on local rules regarding a court
filing.
Subparagraph (a)(4) authorizes the
disclosure of confidential information
‘‘[i]n an administrative or court
proceeding to which the CFPB is a
party.’’ The Bureau proposes revising
this paragraph to state that it may
disclose confidential information ‘‘[i]n
or related to an administrative or court
proceeding to which the Bureau is a
party.’’ This revision clarifies that the
Bureau may disclose confidential
information not only during an
administrative or court proceeding to
which the Bureau is a party, such as in
complaints and consent orders, but also
when related to the Bureau’s
implementation of ongoing
administrative or court orders. Such
disclosures may be made in furtherance
of the Bureau’s reporting requirements
and include, for example, updates on
required consumer remuneration and
the payment of civil money penalties.
Subparagraph (a)(4) also enables the
submitter of such information to seek a
protective or other order prior to such
disclosure. For clarity, the Bureau
proposes replacing the phrase
‘‘confidential investigatory materials’’
with ‘‘confidential investigative
information,’’ a defined term used
throughout the rule. Likewise, the
Bureau proposes replacing the reference
to ‘‘appropriate protective or in camera
order’’ with ‘‘appropriate order,’’ which
would encompass both examples in the
current version. Finally, the Bureau
proposes revising the rule to also allow
the Bureau to seek an appropriate order
in its discretion. Whereas the current
text only discusses the submitter
seeking such an order, there may be
times where it would be more efficient
or appropriate for the Bureau itself to
make such a request.
Subparagraph (a)(5) addresses
disclosure to other agencies of
confidential information in summary
form to notify them about potential
violations of law subject to their
jurisdiction. The purpose of this
provision is to allow the Bureau to
inform agencies about potential legal
violations in which they may have an
interest, including situations in which
they may wish to submit a request for
information under § 1070.43. The
Bureau proposes revising this paragraph
to authorize disclosure to ‘‘Agencies in
summary form to the extent necessary to
confer with such Agencies about matters
relevant to the exercise of the Agencies’
statutory or regulatory authority.’’ This
revision would clarify the paragraph’s
intended purpose and more closely
align with the standard used for
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disclosing confidential information to
agencies under § 1070.43.
Finally, the Bureau proposes a new
subparagraph that states that the Bureau
may disclose confidential information
in ‘‘CFPB personnel matters, as
necessary and subject to appropriate
protections.’’ This revision is intended
to clarify that confidential information
may at times be disclosed in the course
of equal employment opportunity
matters, grievance proceedings, and
other personnel matters. Any such
disclosures would only be made as
necessary, in accordance with
applicable law, and subject to
appropriate protections. The Bureau
proposes re-numbering § 1070.45 to
account for this new paragraph.
Section 1070.47 Other Rules Regarding
the Disclosure of Confidential
Information
The Bureau proposes reorganizing
§ 1070.47 for clarity. Specifically, it
proposes moving subparagraph
1070.47(a)(5) to immediately after
subparagraph 1070.47(a)(2). The Bureau
proposes this change because the two
subparagraphs both address further
disclosure by the recipient of
confidential information. The Bureau
further proposes making subparagraph
1070.47(a)(3), which addresses thirdparty requests for information, a new
paragraph titled ‘‘Third party requests
for information.’’ This revision will
highlight the provision and lead to
better ease of use. Finally, the Bureau
proposes re-numbering the section to
account for these changes.
Section 1070.47(a) Further Disclosure
Prohibited
Section 1070.47(a) describes certain
steps that recipients of confidential
information under subpart D must take
to protect the information. It notes that
confidential information disclosed
under this subpart remains Bureau
property, it prohibits further disclosure
of confidential information without the
Bureau’s prior written permission, and
it sets forth procedures to follow in the
event that a recipient of confidential
information receives from a third party
a legally enforceable demand for the
information.
Consistent with proposed revisions to
§ 1070.43(b), the Bureau proposes
shifting from its General Counsel to the
Associate Director for Supervision,
Enforcement, and Fair Lending the
authority in subparagraph (a)(1) to
provide in writing that confidential
information is no longer Bureau
property, and the authority in
subparagraph (a)(2) to provide written
permission to further disclose
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confidential information. The Bureau
believes that this change would lead to
increased efficiency because the vast
majority of access requests submitted to
the Bureau pertain to work conducted
by its Division of Supervision,
Enforcement, and Fair Lending. The
General Counsel’s authority with
respect to legally enforceable demands
or requests for confidential information,
described in subparagraph (a)(3), will
remain with the General Counsel.
Finally, as discussed above with respect
to § 1070.2(a), the Bureau proposes
revisions to account for the newly
proposed defined term ‘‘agency.’’
Section 1070.47(d) Return or
Destruction of Records
The Bureau proposes adding a new
paragraph (d) to clarify that the Bureau
may require any person in possession of
confidential information to return the
records to the Bureau or destroy them.
Section 1070.47(e)
CFPB Rights
Non-Waiver of
The Bureau proposes adding a new
paragraph (e) to clarify that the Bureau’s
disclosure of confidential information
under subpart D does not waive the
Bureau’s right to control, or impose
limitations on, the subsequent use and
dissemination of its confidential
information.
Section 1070.47(f)
Privilege
Non-Waiver of
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The Bureau proposes moving the
former paragraph (c), Non-waiver, to a
new paragraph (f), and making
corresponding technical corrections to
subparagraph (f)(2), in order to account
for the two newly proposed paragraphs
described above. In addition, the Bureau
proposes replacing the title ‘‘Nonwaiver’’ with a new title ‘‘Non-waiver of
privilege’’ so as to clarify the distinction
between this paragraph and the newly
proposed paragraph (e), Non-waiver of
CFPB rights. As discussed previously in
the preamble to the Bureau’s final rule,
Confidential Treatment of Privileged
Information, 77 FR 39671 (Jul 5, 2012),
this provision applies to situations
where the Bureau transfers information
to, or permits information to be used by,
agencies.
Section 1070.47(g) Reports of
Unauthorized Disclosure
The Bureau proposes adding a new
paragraph (g) to require any persons in
possession of confidential information
to immediately notify the Bureau upon
discovery of any disclosures of
confidential information made in
violation of subpart D.
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Section 1070.48 Privileges Not
Affected by Disclosure to the CFPB
Section 1070.48 provides that the
submission by any person of any
information to the Bureau in the course
of the Bureau’s supervisory or
regulatory processes will not waive or
otherwise affect any privilege such
person may claim with respect to such
information under Federal or State law
as to any other person or entity. This
section was promulgated separately
from the rest of this rule in a final rule,
Confidential Treatment of Privileged
Information, 77 FR 39617 (Jul. 5, 2012).
Congress subsequently enacted Public
Law 112–215, 126 Stat. 1589, Dec. 20,
2012, which amended 12 U.S.C. 1828(x)
to provide these same protections to
privileged information submitted to the
Bureau. Because 12 U.S.C. 1828(x), as
revised, provides the exact same
protections as § 1070.48, it renders
§ 1070.48 superfluous and unnecessary
going forward. To avoid confusion, the
Bureau proposes deleting the current
text of § 1070.48.
Section 1070.48 Disclosure of
Confidential Information by the
Inspector General
The Bureau proposes adding a new
section to clarify that part 1070 does not
limit the discretion of its Inspector
General’s office to disclose confidential
information as needed in fulfilling its
responsibilities under the Inspector
General Act of 1978, 5 U.S.C. App. 3.
Because the Bureau proposes deleting
the current text of § 1070.48, this new
section would replace that text.
Subpart E—The Privacy Act
Section 1070.51 Authority and
Responsibilities of the Chief Privacy
Officer
Section 1070.51 specifies the
authority and responsibilities of the
Bureau’s Chief Privacy Officer. The
Bureau proposes to add a new
paragraph at § 1070.51(a) authorizing
the Chief Privacy Officer to ‘‘[d]evelop,
implement, and maintain an
organization-wide privacy program’’
and to renumber the other paragraphs in
§ 1070.51 to reflect this change. This
change is in accordance with National
Institute of Standards and Technology
(NIST) Special Publication 800–53
Revision 4, which provides that
agencies should ‘‘[appoint] a Senior
Agency Official for Privacy (SAOP)/
Chief Privacy Officer (CPO) accountable
for developing, implementing, and
maintaining an organization-wide
governance and privacy program to
ensure compliance with all applicable
laws and regulations regarding the
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collection, use, maintenance, sharing,
and disposal of personally identifiable
information (PII) by programs and
information systems . . . .’’ The Bureau
proposes this change to clarify the
authority of its Chief Privacy Officer.
Section 1070.53
Records
Request for Access to
Section 1070.53(a) Procedures for
Making a Request for Access to records
Section 1070.53(a) specifies the
procedures for making Privacy Act
requests for records. The current text
distinguishes between requests made in
writing and by electronic means. The
Bureau proposes a technical change to
this provision. It proposes to remove the
phrase ‘‘or by electronic means’’ and
add ‘‘as follows:’’ in its place. The
Bureau also proposes changes to section
1070.53(a)(1) to clarify how requesters
must submit Privacy Act requests to the
Bureau. The Bureau proposes similar
changes to sections 1070.56(a) and
1070.58(b).
Section 1070.56 Request for
Amendment of Records
Section 1070.56(a)
Making Request
Procedures for
Section 1070.56(a)(2)(i)
Section 1070.56(a)(2)(i) provides that
an individual requesting an amendment
of a record must identify the system of
records containing the record. The
Bureau proposes to revise this provision
to allow an individual to provide a
description of the record in sufficient
detail to allow Bureau personnel to
locate the system of records containing
the record. This revision would provide
a requester with more flexibility in the
event that the requester does not know
the precise name of the applicable
system of records. Furthermore, this
change is consistent with
§ 1070.53(b)(2), which specifies
requirements for requests for access to
records.
Section 1070.61 Training; Rules of
Conduct; Penalties for Non-Compliance
Section 1070.61 addresses, among
other things, the CFPB’s obligations to
conduct privacy-related training and
establish rules of conduct related to
privacy. The Bureau proposes to replace
references to ‘‘employees of Government
contractors’’ with the term ‘‘contract
personnel’’ to avoid confusion with
respect to § 1070.2(l), which defines the
term ‘‘employee.’’
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Part 1091—Procedural Rule To
Establish Supervisory Authority Over
Certain Nonbank Covered Persons
Based on Risk Determination
Section 1091.103
Contents of Notice
The Bureau proposes to revise
subparagraph 1091.103(a)(2)(vii) to
remove the cross-reference to
§ 1070.2(i)(1) and replace it with the
appropriate cross-reference to
§ 1070.2(j).
Section 1091.115 Change of Time
Limits and Confidentiality of
Proceedings
The Bureau proposes to revise
paragraph 1091.115(c) to remove the
cross-reference to § 1070.2(i)(1) and
replace it with the appropriate crossreference to § 1070.2(j).
V. Section 1022(b)(2)(A) of the DoddFrank Act
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In developing this proposed rule, the
Bureau has considered the potential
benefits, costs, and impacts required by
section 1022(b)(2)(A) of the Dodd-Frank
Act. The Bureau has consulted, or
offered to consult with, the prudential
regulators and the Federal Trade
Commission including consultation
regarding consistency with any
prudential, market, or systemic
objectives administered by such
agencies.3
The Bureau has chosen to consider
the benefits, costs, and impacts of the
proposed provisions as compared to the
status quo: The current statutory
provisions and the regulations as set
forth by the Bureau on February 15,
2013, 78 FR 11483 (Feb. 15, 2013)
(which includes the protections for
privileged information which Congress
enacted in Public Law 112–215, 126
Stat. 1589, Dec. 20, 2012, which
amended 12 U.S.C. 1828(x)).4 At this
time, the Bureau does not have data
with which to quantify the benefits or
costs of the proposed rule.
In this analysis, the Bureau focuses on
the benefits, costs, and impacts of the
3 Section 1022(b)(2)(A) of the Dodd-Frank Act
addresses the consideration of the potential benefits
and costs of regulation to consumers and covered
persons, including the potential reduction of access
by consumers to consumer financial products or
services; the impact on depository institutions and
credit unions with $10 billion or less in total assets
as described in section 1026 of the Dodd-Frank Act;
and the impact on consumers in rural areas. Section
1022(b)(2)(B) directs the Bureau to consult, before
and during the rulemaking, with appropriate
prudential regulators or other Federal agencies,
regarding consistency with objectives those
agencies administer.
4 The Bureau has discretion in any rulemaking to
choose an appropriate scope of analysis with
respect to potential benefits and costs and an
appropriate baseline.
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main aspects of the proposed rule. The
proposed changes to the definitions in
subpart A would alter the treatment of
certain information submitted to the
Bureau. The revised definition of
confidential consumer complaint
information would now include any
information received or generated by the
CFPB through processes or procedures
established under 12 U.S.C. 5493(b)(3),
clarifying that any complaints submitted
to the CFPB through its Consumer
Response system, and any information
generated therein, are similarly
classified under its confidentiality rules
and subject to the same confidentiality
protections. The revised definition of
confidential supervisory information
will no longer include reference to
information collected using the Bureau’s
market monitoring authority.
The proposed changes in subpart D
would alter the rules concerning the
disclosure of confidential investigative
information to and by financial
institutions and their affiliates by
lending clarity to the Bureau’s
disclosures of confidential investigative
information in the enforcement context;
providing that recipients of confidential
investigative information have the same
discretion with respect to disclosing
confidential investigative information
that they currently have with respect to
confidential supervisory information;
providing that, in addition to disclosing
information concerning a person, its
affiliates, or its service providers to that
person or its affiliates, the Bureau may
also disclose such information to its
service providers; and providing that a
person lawfully in possession of
confidential supervisory information or
confidential investigative information
provided directly to it by the Bureau
pursuant to § 1070.42 may disclose the
information to an insurance provider to
the extent necessary for the insurance
provider to process and administer any
claims for coverage.
The proposed changes also alter the
rules concerning the sharing of
confidential supervisory information
between the Bureau and other agencies
by providing the Bureau with discretion
to disclose confidential supervisory
information to another agency ‘‘to the
extent that the disclosure of the
information is relevant to the exercise of
the [agency’s] statutory or regulatory
authority,’’ rather than to another
agency ‘‘having jurisdiction over a
supervised financial institution.’’
Lastly, the proposed rule would
authorize the Bureau, upon receipt of
prior consent, to disclose confidential
information that directly or indirectly
identifies particular persons. The
proposed rule also includes
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clarifications that the Bureau may
disclose confidential information in its
discretion as needed to conduct its
investigations or perform administrative
tasks to further its own enforcement
actions; and, that the Bureau may
disclose confidential information not
only during an administrative or court
proceeding to which the Bureau is a
party, such as in complaints and
consent orders, but also when related to
the Bureau’s implementation of ongoing
administrative or court orders.
The Bureau views the remainder to
the proposed rule to mainly include
clarifications, corrections and technical
changes.
The proposed revisions to the
definition of confidential consumer
complaint information would provide
benefits for consumers and covered
persons. Specifically, the expansion of
the definition of confidential consumer
complaint information should afford
greater protections to consumers
submitting, and covered persons
referenced by, any misdirected
complaints that the Bureau receives and
that are now covered under the
definition.
The change to the definition of
confidential supervisory information
and the proposed changes regarding
information sharing would also benefit
consumer and covered persons.
Removing market monitoring
information that contains confidential
business information or personal
information from the definition would
have limited effect since such
information would be subject to the
same protections currently accorded to
it, including the limitations on public
disclosures and disclosures to other
regulators. In contrast, the Bureau
would have more flexibility to use and
disclose less sensitive, non-confidential
information collected for market
monitoring purposes such as data that
are already publicly available. The
lesser burden should allow the Bureau
to implement and administer Federal
consumer financial law more efficiently.
Regarding the proposed provisions
related to sharing information,
consumers would benefit, to the extent
that each of these changes allows more
efficient sharing of confidential
information between the CFPB and
various parties and thus also results in
more efficient administration of
consumer financial laws. Covered
persons would benefit, to the extent that
the efficiencies embodied in these
changes reduce costs either by altering
and simplifying the covered person’s
obligations or by allowing for more
efficient sharing among regulators that
interact with the covered person. For
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example, the creation of one standard
for how covered persons can share
confidential supervisory information
and confidential investigative
information would lower the internal
costs at these firms.
The changes in the sharing provisions
of the rule may entail certain costs to
covered persons. The broader sharing of
information provided for in the
proposed rule has an increased risk for
a loss of confidentiality. However, as
noted above, the Bureau has sought to
provide the maximum protection for
confidential information, while
ensuring its ability to share or disclose
information to the extent necessary to
achieve its mission. The Bureau will
continue to appropriately protect
sensitive information. Further, as noted
in the original 2013 rule, increased
sharing of information under the
proposed the rule may increase the
volume and costs of litigation or
regulatory action for covered persons
whose information the Bureau will
share with other agencies, and which
such agencies may use as bases for
administrative or judicial actions
against covered persons. To the extent
that such costs occur, the Bureau
believes that in most cases these costs
would be associated with concomitant
benefits to consumers from the
prevention or remedy of harms
associated with violations of law by
covered persons.
The CFPB does not expect that the
proposed rule would have an
appreciable impact on consumers’
access to consumer financial products
or services. The scope of the rulemaking
is limited to matters related to access to
and disclosure of certain types of
information, and does not relate to
credit access.
The Bureau does not believe that this
proposed rule would have a unique
impact on insured depository
institutions or insured credit unions
with less than $10 billion in assets as
described in section 1026(a) of the
Dodd-Frank Act. Since such institutions
are not supervised by the Bureau, they
are generally less likely to share
information with the Bureau and
therefore any impacts of the rule from
the provisions on supervisory
information may indeed be less
compared to other institutions.
The Bureau also does not believe that
this proposed rule would have a unique
impact on consumers in rural areas. To
the extent that these consumers may use
smaller financial service providers not
supervised by the Bureau, and therefore
less likely to share information with the
Bureau, the impacts of the rule from the
provisions on supervisory information
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for these consumers may indeed be less
than for other consumers.
VI. Procedural Requirements
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996 (the RFA), requires
each agency to consider the potential
impact of its regulations on small
entities, including small businesses,
small governmental units, and small
not-for-profit organizations, unless the
head of the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. The undersigned so certifies.
The rule does not impose any
obligations or standards of conduct for
purposes of analysis under the RFA, and
it therefore does not give rise to a
regulatory compliance burden for small
entities.
Finally, the Bureau has determined
that this proposed rule does not impose
any new recordkeeping, reporting, or
disclosure requirements on members of
the public that would be collections of
information requiring approval under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq.
List of Subjects
12 CFR Part 1070
Confidential business information,
Consumer protection, Freedom of
information, Privacy.
12 CFR Part 1091
Administrative practice and
procedure, Consumer protection, Credit,
Trade practices.
Authority and Issuance
For the reasons set forth in the
preamble, the Bureau proposes to
amend chapter X of title 12 of the CFR
to read as follows:
PART 1070—DISCLOSURE OF
RECORDS AND INFORMATION
■
1. Revise part 1070 to read as follows.
Subpart A—General Provisions and
Definitions
Sec.
1070.1 Authority, purpose and scope.
1070.2 General definitions.
1070.3 Custodian of records; certification;
alternative authority.
1070.4 Records of the CFPB not to be
otherwise disclosed.
1070.5 Service of summonses and
complaints
Subpart B—Freedom of Information Act
1070.10 General.
1070.11 Information made available;
discretionary disclosures.
1070.12 Publication in the Federal Register.
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1070.13 Public inspection in an electronic
format.
1070.14 Requests for CFPB records.
1070.15 Responsibility for responding to
requests for CFPB records.
1070.16 Timing of responses to requests for
CFPB records.
1070.17 Requests for expedited processing.
1070.18 Responses to requests for CFPB
records.
1070.19 Classified information.
1070.20 Requests for business information
provided to the CFPB.
1070.21 Administrative appeals.
1070.22 Fees for processing requests for
CFPB records.
1070.23 Authority and responsibilities of
the Chief FOIA Officer.
Subpart C—Disclosure of CFPB Information
in Connection With Legal Proceedings
1070.30 Purpose and scope; definitions.
1070.31 Service of subpoenas, court orders,
and other demands for CFPB information
or action.
1070.32 Testimony and production of
documents prohibited unless approved
by the General Counsel.
1070.33 Procedure when testimony or
production of documents is sought;
general.
1070.34 Procedure when response to
demand is required prior to receiving
instructions.
1070.35 Procedure in the event of an
adverse ruling.
1070.36 Considerations in determining
whether the CFPB will comply with a
demand or request.
1070.37 Prohibition on providing expert or
opinion testimony.
Subpart D—Confidential Information
1070.40 Purpose and scope.
1070.41 Non-disclosure of confidential
information.
1070.42 Disclosure of confidential
supervisory information and confidential
investigative information.
1070.43 Disclosure of confidential
information to agencies.
1070.44 Disclosure of confidential
consumer complaint information.
1070.45 Affirmative disclosure of
confidential information.
1070.46 Other disclosures of confidential
information.
1070.47 Other rules regarding the
disclosure of confidential information.
1070.48 Disclosure of confidential
information by the Inspector General.
Subpart E—Privacy Act
1070.50 Purpose and scope; definitions.
1070.51 Authority and responsibilities of
the Chief Privacy Officer.
1070.52 Fees.
1070.53 Request for access to records.
1070.54 CFPB procedures for responding to
a request for access.
1070.55 Special procedures for medical
records.
1070.56 Request for amendment of records.
1070.57 CFPB review of a request for
amendment of records.
1070.58 Appeal of adverse determination of
request for access or amendment.
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1070.59 Restrictions on disclosure.
1070.60 Exempt records.
1070.61 Training; rules of conduct;
penalties for non-compliance.
1070.62 Preservation of records.
1070.63 Use and collection of Social
Security numbers.
institutions, government agencies, and
others in certain circumstances.
(5) Subpart E implements the Privacy
Act of 1974, 5 U.S.C. 552a.
Authority: 12 U.S.C. 5481 et seq.; 5 U.S.C.
552; 5 U.S.C. 552a; 18 U.S.C. 1905; 18 U.S.C.
641; 44 U.S.C. ch. 31; 44 U.S.C. ch. 35; 12
U.S.C. 3401 et seq.
Subpart A—General Provisions and
Definitions
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§ 1070.1
Authority, purpose, and scope.
(a) Authority. (1) This part is issued
by the Bureau of Consumer Financial
Protection, an independent Bureau
within the Federal Reserve System,
pursuant to the Consumer Financial
Protection Act of 2010, 12 U.S.C. 5481
et seq.; the Freedom of Information Act,
5 U.S.C. 552; the Privacy Act of 1974,
5 U.S.C. 552a; the Federal Records Act,
44 U.S.C. 3101; the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.;
the Right to Financial Privacy Act of
1978, 12 U.S.C. 3401; the Trade Secrets
Act, 18 U.S.C. 1905; 18 U.S.C. 641; and
any other applicable law that establishes
a basis for the exercise of governmental
authority by the CFPB.
(2) This part establishes mechanisms
for carrying out the CFPB’s statutory
responsibilities under the statutes in
paragraph (a)(1) of this section to the
extent those responsibilities require the
disclosure, production, or withholding
of information. In this regard, the CFPB
has determined that the CFPB, and its
delegates, may disclose information of
the CFPB, in accordance with the
procedures set forth in this part,
whenever it is necessary or appropriate
to do so in the exercise of any of the
CFPB’s authority. The CFPB has
determined that all such disclosures,
made in accordance with the rules and
procedures specified in this part, are
authorized by law.
(b) Purpose and scope. This part
contains the CFPB’s rules relating to the
disclosure of records and information
generated by and obtained by the CFPB.
(1) Subpart A contains general
provisions and definitions used in this
part.
(2) Subpart B implements the
Freedom of Information Act, 5 U.S.C.
552.
(3) Subpart C sets forth the procedures
with respect to subpoenas, orders, or
other requests for CFPB information in
connection with legal proceedings.
(4) Subpart D provides for the
protection of confidential information
and procedures for sharing confidential
information with supervised
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any form or format pursuant to a civil
investigative demand, as those terms are
set forth in 12 U.S.C. 5562, or received
by the CFPB voluntarily in lieu of a civil
investigative demand; and
§ 1070.2 General definitions.
(2) Any other documents, materials,
For purposes of this part:
or records prepared by, on behalf of,
(a) Agency means a Federal, State, or
received by, or for the use by the CFPB
foreign governmental authority, or an
or any other Agency in the conduct of
entity exercising governmental
enforcement activities, and any
authority.
information derived from such
(b) Associate Director for Supervision, materials.
Enforcement and Fair Lending means
(j) Confidential supervisory
the Associate Director for Supervision,
information means:
Enforcement and Fair Lending of the
(1) Reports of examination, inspection
CFPB or any CFPB employee to whom
and visitation, non-public operating,
the Associate Director for Supervision,
condition, and compliance reports,
Enforcement and Fair Lending has
supervisory letter, or similar document,
delegated authority to act under this
and any information contained in,
part.
derived from, or related to such
(c) Business day means any day
documents;
except Saturday, Sunday or a legal
(2) Any documents, materials, or
Federal holiday.
records, including reports of
(d) CFPB means the Bureau of
examination, prepared by, or on behalf
Consumer Financial Protection.
(e) Chief FOIA Officer means the Chief of, or for the use of the CFPB or any
other Agency in the exercise of
Operating Officer of the CFPB, or any
supervisory authority over a financial
CFPB employee to whom the Chief
institution, and any information derived
Operating Officer has delegated
from such documents, materials, or
authority to act under this part.
records;
(f) Chief Operating Officer means the
(3) Any communications between the
Chief Operating Officer of the CFPB, or
CFPB and a supervised financial
any CFPB employee to whom the Chief
institution or a Federal, State, or foreign
Operating Officer has delegated
government agency related to the
authority to act under this part.
CFPB’s supervision of the institution;
(g) Confidential information means
(4) Any information provided to the
confidential consumer complaint
CFPB by a financial institution for
information, confidential investigative
purposes of detecting and assessing
information, and confidential
risks to consumers and to markets for
supervisory information, as well as any
consumer financial products or services
other CFPB information that may be
pursuant to 12 U.S.C. 5414(b)(1)(C),
exempt from disclosure under the
Freedom of Information Act pursuant to 5515(b)(1)(C), or 5516(b), or to assess
whether an institution should be
5 U.S.C. 552(b). Confidential
considered a covered person, as that
information does not include
term is defined by 12 U.S.C. 5481, or is
information contained in records that
subject to the CFPB’s supervisory
have been made publicly available by
authority; and/or
the CFPB or information that has
(5) Information that is exempt from
otherwise been publicly disclosed by an
disclosure pursuant to 5 U.S.C.
employee, or agent of the CFPB, with
552(b)(8).
the authority to do so. Confidential
(k) Director means the Director of the
information obtained by a third party or
otherwise incorporated in the records of CFPB or his or her designee, or a person
a third party, including another Agency, authorized to perform the functions of
the Director in accordance with law.
shall remain confidential information
(l) Employee means all current
subject to this Part.
employees or officials of the CFPB,
(h) Confidential consumer complaint
information means information received including contract personnel, the
employees of the Office of the Inspector
or generated by the CFPB through
General of the Board of Governors of the
processes or procedures established
under 12 U.S.C. 5493(b)(3), to the extent Federal Reserve System and the
Consumer Financial Protection Bureau,
that such information is exempt from
and any other individuals who have
disclosure pursuant to 5 U.S.C. 552(b).
been appointed by, or are subject to the
(i) Confidential investigative
supervision, jurisdiction, or control of
information means:
the Director, as well as the Director. The
(1) Any documentary material,
procedures established within this part
written report, or written answers to
questions, tangible thing, or transcript of also apply to former employees where
specifically noted.
oral testimony received by the CFPB in
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(m) Financial institution means any
person involved in the offering or
provision of a ‘‘financial product or
service,’’ including a ‘‘covered person’’
or ‘‘service provider,’’ as those terms are
defined by 12 U.S.C. 5481.
(n) General Counsel means the
General Counsel of the CFPB or any
CFPB employee to whom the General
Counsel has delegated authority to act
under this part.
(o) Person means an individual,
partnership, company, corporation,
association (incorporated or
unincorporated), trust, estate,
cooperative organization, or other
entity.
(p) Report of examination means the
report prepared by the CFPB concerning
the examination or inspection of a
supervised financial institution.
(q) State means any State, territory, or
possession of the United States, the
District of Columbia, the
Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana
Islands, Guam, American Samoa, or the
United States Virgin Islands or any
Federally recognized Indian tribe, as
defined by the Secretary of the Interior
under section 104(a) of the Federally
Recognized Indian Tribe List Act of
1994 (25 U.S.C. 479a–1(a)), and includes
any political subdivision thereof.
(r) Supervised financial institution
means a financial institution that is or
that may become subject to the CFPB’s
supervisory authority.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
§ 1070.3 Custodian of records;
certification; alternative authority.
(a) Custodian of records. The Chief
Operating Officer is the official
custodian of all records of the CFPB,
including records that are in the
possession or control of the CFPB or any
CFPB employee.
(b) Certification of record. The Chief
Operating Officer may certify the
authenticity of any CFPB record or any
copy of such record, or the absence
thereof, for any purpose, and for or
before any duly constituted Federal or
State court, tribunal, or agency.
(c) Alternative authority. Any action
or determination required or permitted
to be done by the Chief Operating
Officer may be done by any employee
who has been duly designated for this
purpose by the Chief Operating Officer.
§ 1070.4 Records of the CFPB not to be
otherwise disclosed.
Except as provided by this part,
employees or former employees of the
CFPB, or others in possession of a
record of the CFPB that the CFPB has
not already made public, are prohibited
from disclosing such records, without
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authorization, to any person who is not
an employee of the CFPB.
§ 1070.5 Service of summonses and
complaints.
(a) Only the General Counsel is
authorized to receive and accept
summonses or complaints sought to be
served upon the CFPB or CFPB
employees sued in their official
capacity. Such documents should be
served upon the General Counsel,
Consumer Financial Protection Bureau,
1700 G Street NW., Washington, DC
20552. This authorization for receipt
shall in no way affect the requirements
of service elsewhere provided in
applicable rules and regulations.
(b) If, notwithstanding paragraph (a)
of this section, any summons or
complaint described in that paragraph is
delivered to an employee of the CFPB,
the employee shall decline to accept the
proffered service and may notify the
person attempting to make service of the
regulations set forth herein. If,
notwithstanding this instruction, an
employee accepts service of a document
described in paragraph (a) of this
section, the employee shall immediately
notify and deliver a copy of the
summons and complaint to the General
Counsel.
(c) When a CFPB employee is sued in
an individual capacity for an act or
omission occurring in connection with
duties performed on behalf of the CFPB
(whether or not the officer or employee
is also sued in an official capacity), the
employee by law is to be served
personally with process. See Fed. R.
Civ. P. 4(i)(3). An employee sued in an
individual capacity for an act or
omission occurring in connection with
duties performed on behalf of the CFPB
shall immediately notify, and deliver a
copy of the summons and complaint to,
the General Counsel.
(d) The CFPB will only accept service
of process for an employee sued in his
or her official capacity. Documents for
which the General Counsel accepts
service in official capacity shall be
marked ‘‘Service Accepted in Official
Capacity Only.’’ Acceptance of service
shall not constitute an admission or
waiver with respect to jurisdiction,
propriety of service, improper venue, or
any other defense in law or equity
available under applicable laws or rules.
Subpart B—Freedom of Information
Act
§ 1070.10
General.
This subpart contains the regulations
of the CFPB implementing the Freedom
of Information Act (the FOIA), 5 U.S.C.
552, as amended. These regulations set
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forth procedures for requesting access to
records maintained by the CFPB. These
regulations should be read together with
the FOIA, the 1987 Office of
Management and Budget Guidelines for
FOIA Fees, the CFPB’s Privacy Act
regulations set forth in subpart E, and
the FOIA Web page on the CFPB’s Web
site, https://www.consumerfinance.gov,
which provide additional information
about this topic.
§ 1070.11 Information made available;
discretionary disclosures.
(a) In general. The FOIA provides for
public access to information and records
developed or maintained by Federal
agencies. Generally, the FOIA divides
agency information into three major
categories and provides methods by
which each category of information is to
be made available to the public. The
three major categories of information are
as follows:
(1) Information required to be
published in the Federal Register (see
§ 1070.12);
(2) Information required to be made
available for public inspection and in an
electronic format or, in the alternative,
to be published and offered for sale (see
§ 1070.13); and
(3) Information required to be made
available to any member of the public
upon specific request (see §§ 1070.14
through 1070.22).
(b) Discretionary disclosures. Even
though a FOIA exemption may apply to
the information or records requested,
the CFPB may, if not precluded by law,
elect under the circumstances not to
apply the exemption. The fact that the
exemption is not applied by the CFPB
in response to a particular request shall
have no precedential significance in
processing other requests, but is merely
an indication that, in the processing of
the particular request, the CFPB finds
no necessity for applying the
exemption.
(c) Disclosures of records frequently
requested. Subject to the application of
the FOIA exemptions and exclusions (5
U.S.C. 552(b) and (c)), the CFPB shall
make publicly available, as provided by
§ 1070.13, all records regardless of form
or format, which have been released
previously to any person under 5 U.S.C.
552(a)(3) and §§ 1070.14 through
1070.22, and which the CFPB
determines have become or are likely to
become the subject of subsequent
requests for substantially the same
records. 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.
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§ 1070.12
Register.
Publication in the Federal
(a) Requirement. The CFPB shall
separately state, publish and maintain
current in the Federal Register for the
guidance of the public the following
information:
(1) Descriptions of its central and field
organization and the established place
at which, the persons from whom, and
the methods whereby, the public may
obtain information, make submissions
or requests, or obtain decisions;
(2) Statements of the general course
and method by which its functions are
channeled and determined, including
the nature and requirements of all
formal and informal procedures
available;
(3) Rules of procedure, descriptions of
forms available or the places at which
forms may be obtained, and instructions
as to the scope and contents of all
papers, reports, or examinations;
(4) Substantive rules of general
applicability adopted as authorized by
law, and statements of general policy or
interpretations of general applicability
formulated and adopted by the CFPB;
and
(5) Each amendment, revision, or
repeal of matters referred to in
paragraphs (a)(1) through (4) of this
section.
(b) Exceptions. Publication of the
information under paragraph (a) of this
section shall be subject to the
application of the FOIA exemptions and
exclusions (5 U.S.C. 552(b) and (c)) and
the limitations provided in 5 U.S.C.
552(a)(1).
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS
§ 1070.13 Public inspection in an
electronic format.
(a) In general. Subject to the
application of the FOIA exemptions and
exclusions (5 U.S.C. 552(b) and (c)), the
CFPB shall, in conformance with 5
U.S.C. 552(a)(2), make available for
public inspection in an electronic
format, including by posting on the
CFPB’s Web site, https://
www.consumerfinance.gov, or, in the
alternative, promptly publish and offer
for sale the following information:
(1) Final opinions, including
concurring and dissenting opinions, and
orders made in the adjudication of
cases;
(2) Those statements of policy and
interpretations which have been
adopted by the CFPB but are not
published in the Federal Register;
(3) Its administrative staff manuals
and instructions to staff that affect a
member of the public;
(4) Copies of all records made
publicly available pursuant to § 1070.11;
and
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(5) A general index of the records
referred to in paragraph (a)(4) of this
section.
(b) Information made available
online. For records required to be made
available for public inspection in an
electronic format pursuant to 5 U.S.C.
552(a)(2) (paragraphs (a)(1) through (4)
of this section), as soon as practicable,
the CFPB shall make such records
available on its e-FOIA Library, located
at https://www.consumerfinance.gov.
(c) Record availability at the on-site eFOIA Library. Any member of the public
may, upon request, access the CFPB’s eFOIA Library via a computer terminal at
1700 G Street NW., Washington, DC
20552. Such a request may be made by
electronic means as set forth on the
CFPB’s Web site, https://
www.consumerfinance.gov, or in
writing, to the Chief FOIA Officer,
Consumer Financial Protection Bureau,
1700 G Street NW., Washington, DC
20552. The request must indicate a
preferred date and time for the
requested access. The CFPB reserves the
right to arrange a different date and time
with the requester, if necessary.
(d) Redaction of identifying details.
To prevent a clearly unwarranted
invasion of personal privacy, the CFPB
may redact identifying details contained
in any matter described in paragraphs
(a)(1) through (4) of this section before
making such matters available for
inspection or publication. The
justification for the redaction shall be
explained fully in writing, and the
extent of such redaction shall be
indicated on the portion of the record
which is made available or published,
unless including that indication would
harm an interest protected by the
exemption in 5 U.S.C. 552(b) under
which the redaction is made. If
technically feasible, the extent of the
redaction shall be indicated at the place
in the record where the redaction is
made.
§ 1070.14
Requests for CFPB records.
(a) In general. Subject to the
application of the FOIA exemptions and
exclusions (5 U.S.C. 552(b) and (c)), the
CFPB shall promptly make its records
available to any person pursuant to a
request that conforms to the rules and
procedures of this section.
(b) Form of request. A request for
records of the CFPB shall be made in
writing as follows:
(1) If a request is submitted by mail
or delivery service, it shall be addressed
to the Chief FOIA Officer, Consumer
Financial Protection Bureau, 1700 G
Street NW., Washington, DC 20552. The
request shall be labeled ‘‘Freedom of
Information Act Request.’’
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58325
(2) If a request is submitted by
electronic means, it shall be submitted
as set forth on the CFPB’s Web site,
https://www.consumerfinance.gov. The
request shall be labeled ‘‘Freedom of
Information Act Request.’’
(c) Content of request. (1) In order to
ensure the CFPB’s ability to respond in
a timely manner, a FOIA request should
describe the records that the requester
seeks in sufficient detail to enable CFPB
personnel to locate them with a
reasonable amount of effort. Whenever
possible, the request should include
specific information about each record
sought, such as the date, title or name,
author, recipient, and subject matter of
the record. If known, the requester
should include any file designations or
descriptions for the records requested.
As a general rule, the more specific the
requester is about the records or type of
records requested, the more likely the
CFPB will be able to locate those
records in response to the request;
(2) In order to ensure the CFPB’s
ability to communicate effectively with
the requester, a request should include
contact information for the requester,
including the name of the requester and,
to the extent available, a mailing
address, telephone number, and email
address at which the CFPB may contact
the requester regarding the request;
(3) The request should state whether
the requester wishes to inspect the
records or desires to receive an
electronic copy or have a copy made
and furnished without first inspecting
the records;
(4) For the purpose of determining
any fees that may apply to processing a
request, a requester should indicate in
the request whether the requester is a
commercial user, an educational
institution, non-commercial scientific
institution, representative of the news
media, governmental entity, or ‘‘other’’
requester, as those terms are defined in
§ 1070.22(b), and the basis for claiming
that fee category. Requesters may seek
assistance in determining the
appropriate fee category by contacting
the CFPB’s FOIA Public Liaison at the
telephone number listed on the CFPB’s
Web site, https://
www.consumerfinance.gov.
(5) If a requester seeks a waiver or
reduction of fees associated with
processing a request, then the request
shall include a statement to that effect
as is required by § 1070.22(e); and
(6) If a requester seeks expedited
processing of a request, then the request
must include a statement to that effect
as is required by § 1070.17.
(d) Perfected requests; effect of
request deficiencies. For purposes of
computing its deadline to respond to a
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request, the CFPB will deem itself to
have received a request only if, and on
the date that, it receives a request that
contains substantially all of the
information required by and that
otherwise conforms with paragraphs (b)
and (c) of this section. The CFPB need
not accept a request, process a request,
or be bound by any deadlines in this
subpart for processing a request that
fails to conform, in any material respect,
to the requirements of paragraphs (b)
and (c) of this section. If a request is
deficient in any material respect, then
the CFPB may return it to the requester
and if it does so, it shall advise the
requester in what respect the request is
deficient, and what additional
information is needed to respond to the
request. The requester may then amend
or resubmit the request. A
determination by the CFPB that a
request is deficient in any respect is not
a denial of a request for records and
such determinations are not subject to
appeal. If a requester fails to respond to
a CFPB notification that a request is
deficient within thirty (30) days of the
CFPB’s notification, the CFPB will deem
the request withdrawn.
(e) Requests by an individual for
CFPB records pertaining to that
individual. An individual who wishes
to inspect or obtain copies of records of
the Bureau that pertain to that
individual shall file a request in
accordance with subpart E of these
rules.
(f) Requests for CFPB records
pertaining to another individual. Where
a request for records pertains to a third
party, a requester may receive greater
access by submitting either a notarized
authorization signed by that individual
or a declaration by that individual made
in compliance with the requirements set
forth in 28 U.S.C. 1746 authorizing
disclosure of the records to the
requester, or submits proof that the
individual is deceased (e.g., a copy of a
death certificate or an obituary). The
CFPB may require a requester to supply
additional information if necessary in
order to verify that a particular
individual has consented to disclosure.
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§ 1070.15 Responsibility for responding to
requests for CFPB records.
(a) In general. In determining which
records are responsive to a request, the
CFPB ordinarily will include only
records in its possession as of the date
the CFPB begins its search for them. If
any other date is used, the CFPB shall
inform the requester of that date.
(b) Authority to grant or deny
requests. The Chief FOIA Officer shall
be authorized to grant or deny any
request for a record of the CFPB.
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(c) Consultations and referrals. (1)
When a requested record has been
created by an agency other than the
CFPB, the CFPB shall refer the record to
the originating agency for a direct
response to the requester.
(2) When a FOIA request is received
for a record created by the CFPB that
includes information originated by
another agency, the CFPB shall consult
the originating agency for review and
recommendation on disclosure. The
CFPB shall not release any such records
without prior consultation with the
originating agency.
(d) Notice of referral. Whenever the
CFPB refers all or any part of the
responsibility for responding to a
request to another agency, it will notify
the requester of the referral and inform
the requester of the name of each agency
to which the request has been referred,
in whole or in part.
§ 1070.16 Timing of responses to requests
for CFPB records.
(a) In general. Except as set forth in
paragraphs (b) through (d) of this
section, and § 1070.17, the CFPB shall
respond to requests according to their
order of receipt.
(b) Multitrack processing. (1) The
CFPB may establish separate tracks to
process simple and complex requests.
The CFPB may assign a request to the
simple or complex track(s) based on the
amount of work and/or time needed to
process the request. The CFPB shall
process requests in each track based on
the date the request was perfected in
accordance with § 1070.14(d).
(2) The CFPB may provide a requester
in its complex track with an opportunity
to limit the scope of the request to
qualify for faster processing within the
specified limits of the simple track(s).
(c) Time period for responding to
requests for records. Ordinarily, the
CFPB shall have twenty (20) business
days from when a request is received by
the CFPB to determine whether to grant
or deny a request for records. The
twenty (20) business day time period set
forth in this paragraph shall not be
tolled by the CFPB except that the CFPB
may:
(1) Make one reasonable demand to
the requester for clarifying information
about the request and toll the twenty
(20) business day time period while it
awaits the clarifying information; or
(2) Toll the twenty (20) business day
time period while it awaits clarification
from or addresses any dispute with the
requester regarding the assessment of
fees.
(d) Unusual circumstances. (1) Where
the CFPB determines that due to
unusual circumstances it cannot
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respond either to a request within the
time period set forth in paragraph (c) of
this section or to an appeal within the
time period set forth in § 1070.21, the
CFPB may extend the applicable time
periods by informing the requester in
writing of the unusual circumstances
and of the date by which the CFPB
expects to complete its processing of the
request or appeal. Any extension or
extensions of time with respect to a
request or an appeal shall not
cumulatively total more than ten (10)
business days. However, if the CFPB
determines that it needs additional time
beyond a ten (10) business day
extension to process the request or
appeal, then the CFPB shall notify the
requester and provide the requester with
an opportunity to limit the scope of the
request or appeal or to arrange for an
alternative time frame for processing the
request or appeal or a modified request
or appeal. The requester shall retain the
right to define the desired scope of the
request or appeal, as long as it meets the
requirements contained in this subpart.
(2) As used in this paragraph,
‘‘unusual circumstances’’ means:
(i) The need to search for and collect
the requested records from field
facilities or other establishments that are
separate from the office processing the
request;
(ii) The need to search for, collect,
and appropriately examine a
voluminous amount of separate and
distinct records which are demanded in
a single request; or
(iii) The need for consultation, which
shall be conducted with all practicable
speed, with another Agency having a
substantial interest in the determination
of the request, or among two or more
CFPB offices having substantial subject
matter interest therein.
§ 1070.17 Requests for expedited
processing.
(a) In general. The CFPB shall process
a request on an expedited basis
whenever a requester demonstrates a
compelling need for expedited
processing in accordance with the
requirements of this paragraph or in
other cases that the CFPB deems
appropriate.
(b) Form and content of a request for
expedited processing. A request for
expedited processing shall be made as
follows:
(1) A request for expedited processing
shall be made in writing and submitted
as part of a request for records in
accordance with § 1070.14(b). When a
request for records includes a request
for expedited processing, the request
shall be labeled ‘‘Expedited Processing
Requested.’’
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(2) A request for expedited processing
shall contain a statement that
demonstrates a compelling need for the
requester to obtain expedited processing
of the requested records. A ‘‘compelling
need’’ is defined as follows:
(i) Failure to obtain the requested
records on an expedited basis could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual. The requester
shall fully explain the circumstances
warranting such an expected threat so
that the CFPB may make a reasoned
determination that a delay in obtaining
the requested records could pose such a
threat; or
(ii) With respect to a request made by
a person primarily engaged in
disseminating information, urgency to
inform the public concerning actual or
alleged Federal government activity. A
person ‘‘primarily engaged in
disseminating information’’ does not
include individuals who are engaged
only incidentally in the dissemination
of information. The standard of
‘‘urgency to inform’’ requires that the
records requested pertain to a matter of
current exigency to the American public
and that delaying a response to a request
for records would compromise a
significant recognized interest to and
throughout the American general
public. The requester must adequately
explain the matter or activity and why
the records sought are necessary to be
provided on an expedited basis.
(3) The requester shall certify the
written statement that purports to
demonstrate a compelling need for
expedited processing to be true and
correct to the best of the requester’s
knowledge and belief. The certification
must be in the form prescribed by 28
U.S.C. 1746: ‘‘I declare under penalty of
perjury that the foregoing is true and
correct to the best of my knowledge and
belief. Executed on [date].’’ The
requester shall mail or submit
electronically a copy of such written
certification to the Chief FOIA Officer as
set forth in § 1070.14(b). The CFPB may
waive this certification requirement in
appropriate circumstances.
(c) Determinations of requests for
expedited processing. Within ten (10)
calendar days of its receipt of a request
for expedited processing, the CFPB shall
decide whether to grant it and shall
notify the requester of the determination
in writing.
(d) Effect of granting requests for
expedited processing. If the CFPB grants
a request for expedited processing, then
the CFPB shall give the expedited
request priority over non-expedited
requests and shall process the expedited
request as soon as practicable. The
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CFPB may assign expedited requests to
their own simple and complex
processing tracks based upon the
amount of work and/or time needed to
process them. Within each such track,
an expedited request shall be processed
in the order of its receipt.
(e) Appeals of denials of requests for
expedited processing. If the CFPB
denies a request for expedited
processing, then the requester shall have
the right to submit an appeal of the
denial determination in accordance
with § 1070.21. The CFPB shall
communicate this appeal right as part of
its written notification to the requester
denying expedited processing. The
requester shall label its appeal request
‘‘Appeal for Expedited Processing.’’ The
CFPB shall act expeditiously upon an
appeal of a denial of a request for
expedited processing.
§ 1070.18
records.
Responses to requests for CFPB
(a) Acknowledgements of requests.
Upon receipt of a perfected request, the
CFPB will assign to the request a unique
tracking number. The CFPB will send an
acknowledgement letter to the requester
by mail or email within ten (10)
calendar days of receipt of the request.
The acknowledgment letter will contain
the following information:
(1) The applicable request tracking
number;
(2) The date of receipt of the request,
as determined in accordance with
section 1070.14(d), as well as the date
when the requester may expect a
response;
(3) A brief statement identifying the
subject matter of the request; and
(4) A confirmation, with respect to
any fees that may apply to the request
pursuant to § 1070.22, that the requester
has sought a waiver or reduction in such
fees, has agreed to pay any and all
applicable fees, or has specified an
upper limit that the requester is willing
to pay in fees to process the request.
(b) Initial determination to grant or
deny a request. (1) The officer
designated in § 1070.15(b) to this
subpart, or his or her delegate, shall
make initial determinations either to
grant or to deny in whole or in part
requests for records.
(2) If the request is granted in full or
in part, and if the requester requests a
copy of the records requested, then a
copy of the records shall be mailed or
emailed to the requester in the
requested format, to the extent the
records are readily producible in the
requested format. The CFPB shall also
send the requester a statement of the
applicable fees, either at the time of the
determination or shortly thereafter.
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(3) In the case of a request for
inspection, the requester shall be
notified in writing of the determination,
when and where the requested records
may be inspected, and of the fees
incurred in complying with the request.
The CFPB shall then promptly make the
records available for inspection at the
time and place stated, in a manner that
will not interfere with CFPB’s
operations and will not exclude other
persons from making inspections. The
requester shall not be permitted to
remove the records from the room
where inspection is made. If, after
making inspection, the requester desires
copies of all or a portion of the
requested records, copies shall be
furnished upon payment of the
established fees prescribed by § 1070.22.
Fees may be charged for search and
review time as stated in § 1070.22.
(4) If it is determined that the request
for records should be denied in whole
or in part, the requester shall be notified
by mail or by email. The letter of
notification shall:
(i) State the exemptions relied upon
in denying the request;
(ii) If technically feasible, indicate the
amount of information deleted and the
exemptions under which the deletion is
made at the place in the record where
such deletion is made (unless providing
such indication would harm an interest
protected by the exemption relied upon
to deny such material);
(iii) Set forth the name and title or
position of the responsible official;
(iv) Advise the requester of the right
to seek dispute resolution services from
the Bureau’s FOIA Public Liaison or the
Office of Governmental Information
Services;
(v) Advise the requester of the right to
administrative appeal in accordance
with § 1070.21; and
(vi) Specify the official or office to
which such appeal shall be submitted.
(5) If it is determined, after a
reasonable search for records, that no
responsive records have been found to
exist, the requester shall be notified in
writing or by email. The notification
shall also advise the requester of the
right to administratively appeal the
CFPB’s determination that no
responsive records exist (i.e., to
challenge the adequacy of the CFPB’s
search for responsive records) in
accordance with § 1070.21. The
response shall specify the official or
office to which the appeal shall be
submitted for review.
(c) Resolution of disputes. The CFPB
is committed to efficiently resolving
disputes during the request process. The
following resources are available to
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requesters to resolve any disputes that
may arise during the request process:
(1) FOIA Public Liaison. Any request
related questions or concerns should be
directed to the FOIA Public Liaison,
who is responsible for reducing delays,
increasing transparency and
understanding of the status of requests,
and assisting in the resolution of
disputes.
(2) Mediation. The National Archives
and Records Administration (NARA),
Office of Government Information
Services (OGIS) offers non-compulsory,
non-binding mediation services to help
resolve FOIA disputes. A requester may
contact OGIS directly at Office of
Government Information Services,
National Archives and Records
Administration, Room 2510, 8601
Adelphi Road, College Park, MD 20740–
6001, Email: ogis@nara.gov, Phone:
(301) 837–1996, Fax: (301) 837–0348.
This information is provided as a public
service only. By providing this
information, the CFPB does not commit
to refer disputes to OGIS, or to defer to
OGIS mediation decisions in particular
cases.
(d) Format of records disclosed. (1)
The CFPB will provide records in the
requested format if the records can
readily be reproduced from the original
file to that specific format.
(2) The CFPB may charge fees
associated with converting records or
files into the requested format in
accordance with § 1070.22.
§ 1070.19
Classified information.
Whenever a request is made for a
record containing information that
another agency has classified, or which
may be appropriate for classification by
another agency under Executive Order
13526 or any other executive order
concerning the classification of
information, the CFPB shall refer the
responsibility for responding to the
request to the classifying or originating
agency, as appropriate.
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§ 1070.20 Requests for business
information provided to the CFPB.
(a) In general. Business information
provided to the CFPB by a business
submitter shall not be disclosed
pursuant to a FOIA request except in
accordance with this section.
(b) Definitions. For purposes of this
section:
(1) Business information means
commercial or financial information
obtained by the CFPB from a submitter
that may be protected from disclosure
under Exemption 4 of the FOIA, 5
U.S.C. 552(b)(4).
(2) Submitter means any person from
whom the CFPB obtains business
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information, directly or indirectly. The
term includes, without limitation,
corporations, State, local, and tribal
governments, and foreign governments.
(c) Designation of business
information. A submitter of business
information will use good-faith efforts to
designate, by appropriate markings,
either at the time of submission or at a
reasonable time thereafter, any portions
of its submission that it considers to be
protected from disclosure under
Exemption 4 of the FOIA. These
designations will expire ten (10) years
after the date of the submission unless
the submitter requests otherwise and
provides justification for, a longer
designation period.
(d) Notice to submitters. The CFPB
shall provide a submitter with prompt
written notice of receipt of a request or
appeal encompassing its business
information whenever required in
accordance with paragraph (e) of this
section. Such written notice shall either
describe the exact nature of the business
information requested or provide copies
of the records or portions of records
containing the business information.
When notification of a voluminous
number of submitters is required,
notification may be made by posting or
publishing the notice in a place
reasonably likely to accomplish it.
(e) When notice is required. (1) The
CFPB shall provide a submitter with
notice of receipt of a request or appeal
whenever:
(i) The information has been
designated in good faith by the
submitter as information considered
protected from disclosure under
Exemption 4; or
(ii) The CFPB has reason to believe
that the information may be protected
from disclosure under Exemption 4.
(2) The notice requirements of this
paragraph shall not apply if:
(i) The CFPB determines that the
information is exempt under the FOIA;
(ii) The information lawfully has been
published or otherwise made available
to the public;
(iii) Disclosure of the information is
required by statute (other than the
FOIA) or by a regulation issued in
accordance with the requirements of
Executive Order 12600 (3 CFR, 1988
Comp., p. 235); or
(iv) The designation made by the
submitter under paragraph (e)(1)(i) of
this section appears obviously frivolous,
except that, in such a case, the CFPB
shall, within a reasonable time prior to
a specified disclosure date, give the
submitter written notice of any final
decision to disclose the information.
(f) Opportunity to object to disclosure
before release. (1) Through the notice
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described in paragraph (d) of this
section, the CFPB shall delay any
release in order to afford a submitter ten
(10) business days from the date of the
notice to provide the CFPB with a
detailed statement of any objection to
disclosure. Such statement shall specify
all grounds for withholding any of the
information under any exemption of the
FOIA and, in the case of Exemption 4,
shall demonstrate why the information
is considered to be a trade secret or
commercial or financial information
that is privileged or confidential. In the
event that a submitter fails to respond
to the notice within the time specified
in it, the submitter shall be considered
to have no objection to disclosure of the
information. Information provided by a
submitter pursuant to this paragraph
may itself be subject to disclosure under
the FOIA.
(2) When notice is given to a
submitter under this section, the
requester shall be advised that such
notice has been given to the submitter.
The requester shall be further advised
that a delay in responding to the request
may be considered a denial of access to
records and that the requester may
proceed with an administrative appeal
or seek judicial review, if appropriate.
However, the requester will be invited
to agree to a voluntary extension of time
so that the CFPB may review the
submitter’s objection to disclose, if any.
(g) Notice of intent to disclose. The
CFPB shall consider a submitter’s
objections and specific grounds for
nondisclosure prior to determining
whether to disclose business
information. Whenever the CFPB
decides to disclose business information
over the objection of a submitter, the
CFPB shall forward to the submitter a
written notice which shall include:
(1) A statement of the reasons for
which the submitter’s disclosure
objections were not sustained;
(2) A description of the business
information to be disclosed; and
(3) A specified disclosure date which
is not less than ten (10) business days
after the notice of the final decision to
release the requested information has
been mailed to the submitter. Except as
otherwise prohibited by law, a copy of
the disclosure notice shall be forwarded
to the requester at the same time.
(h) Notice to submitter of FOIA
lawsuit. Whenever a requester brings
suit seeking to compel disclosure of
business information, the CFPB shall
promptly notify the submitter of that
business information of the existence of
the suit.
(i) Notice to requester of business
information. The CFPB shall notify a
requester whenever it provides the
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submitter with notice and an
opportunity to object to disclosure;
whenever it notifies the submitter of its
intent to disclose the requested
information; and whenever a submitter
files a lawsuit to prevent the disclosure
of the information.
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§ 1070.21
Administrative appeals.
(a) Grounds for administrative
appeals. A requester may appeal an
initial determination of the CFPB,
including for the following reasons:
(1) To deny access to records in whole
or in part (as provided in § 1070.18(b));
(2) To assign a particular fee category
to the requestor (as provided in
§ 1070.22(b));
(3) To deny a request for a reduction
or waiver of fees (as provided in
§ 1070.22(e));
(4) That no records exist that are
responsive to the request (as provided in
§ 1070.18(b)); or
(5) To deny a request for expedited
processing (as provided in § 1070.17(e)).
(b) Time limits for filing
administrative appeals. An appeal,
other than an appeal of a denial of
expedited processing, must be
postmarked or submitted electronically
on a date that is within ninety (90)
calendar days after the date the initial
determination is sent to the requester or
the date of the letter transmitting the
last records released, whichever is later.
An appeal of a denial of expedited
processing must be made within ten (10)
days of the date of the initial
determination letter to deny expedited
processing (see § 1070.17).
(c) Form and content of
administrative appeals. In order to
ensure a timely response to an appeal,
the appeal shall be made in writing as
follows:
(1) If appeal is submitted by mail or
delivery service, it shall be addressed to
and submitted to the officer specified in
paragraph (e) of this section at the
address set forth in 1070.14(b). The
appeal shall be labeled ‘‘Freedom of
Information Act Appeal.’’
(2) If an appeal is submitted by
electronic means, it shall be addressed
to the officer specified in paragraph (e)
of this section and submitted as set forth
on the CFPB’s Web site, https://
www.consumerfinance.gov. The appeal
shall be labeled ‘‘Freedom of
Information Act Appeal.’’
(3) The appeal shall set forth contact
information for the requester, including,
to the extent available, a mailing
address, telephone number, or email
address at which the CFPB may contact
the requester regarding the appeal; and
(4) The appeal shall specify the
applicable request tracking number, the
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date of the initial request, and the date
of the letter of initial determination,
and, where possible, enclose a copy of
the initial request and the initial
determination being appealed.
(d) Processing of administrative
appeals. The FOIA office will record the
date that appeals are received. The
receipt of the appeal will be
acknowledged by the CFPB and the
requester will be advised of the date the
appeal was received, the appeal tracking
number, and the expected date of
response.
(e) Determinations to grant or deny
administrative appeals. The General
Counsel is authorized to and shall
decide whether to affirm the initial
determination (in whole or in part), to
reverse the initial determination (in
whole or in part) or to remand the initial
determination to the Chief FOIA Officer
for further action and shall notify the
requester of this decision in writing
within twenty (20) business days after
the date of receipt of the appeal, unless
extended pursuant to § 1070.16(d).
(1) If it is decided that the appeal is
to be denied (in whole or in part) the
requester shall be:
(i) Notified in writing of the denial;
(ii) Notified of the reasons for the
denial, including which of the FOIA
exemptions were relied upon;
(iii) Notified of the name and title or
position of the official responsible for
the determination on appeal;
(iv) Provided with a statement that
judicial review of the denial is available
in the United States District Court for
the judicial district in which the
requester resides or has a principal
place of business, the judicial district in
which the requested records are located,
or the District of Columbia in
accordance with 5 U.S.C. 552(a)(4)(B);
and
(v) Provided with notification that
mediation services are available to the
requester as a non-exclusive alternative
to litigation through the Office of
Government Information Services in
accordance with 5 U.S.C. 552(h)(3).
(2) If the initial determination is
reversed on appeal, the requester shall
be so notified and the request shall be
processed promptly in accordance with
the decision on appeal.
(3) If the initial determination is
remanded on appeal to the Chief FOIA
Officer for further action, the requester
shall be so notified and the request shall
be processed in accordance with the
decision on appeal. The remanded
request shall be treated as a new request
received by the CFPB as of the date
when the General Counsel transmits the
remand notification to the requester.
The procedures and deadlines set forth
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in this subpart for processing, deciding,
responding to, and filing administrative
appeals of new FOIA requests shall
apply to the remanded request.
(f) Adjudication of administrative
appeals of requests in litigation. An
appeal ordinarily will not be
adjudicated if the request becomes a
matter of FOIA litigation.
§ 1070.22 Fees for processing requests for
CFPB records.
(a) In general. The CFPB shall
determine whether and to what extent
to charge a requester fees for processing
a FOIA request, for the services and in
the amounts set forth in this paragraph,
by determining an appropriate fee
category for the requester (as set forth in
paragraph (b) of this section) and then
by charging the requester those fees
applicable to the assigned category (as
set forth in paragraph (c) of this section),
unless circumstances exist (as described
in paragraph (d) of this section) that
render fees inapplicable or inadvisable
or unless the requester has requested
and the CFPB has granted a reduction in
or waiver of fees (as set forth in
paragraph (e) of this section).
(1) The CFPB shall charge a requester
fees for the cost of copying or printing
records at the rate of $0.10 per page.
(2) The CFPB shall charge a requester
for all time spent by its employees
searching for records that are responsive
to a request. The CFPB shall charge the
requester fees for search time as follows:
(i) The CFPB shall charge for search
time at the salary rate(s) (basic pay plus
sixteen (16) percent) of the employee(s)
who conduct the search. However, the
CFPB shall charge search fees at the rate
of $9.00 per fifteen (15) minutes of
search time whenever only
administrative/clerical employees
conduct a search and at the rate of
$23.00 per fifteen (15) minutes of search
time whenever only professional/
executive employees conduct a search.
Search charges shall also include
transportation of employees and records
necessary to the search at actual cost.
Fees may be charged for search time
even if the search does not yield any
responsive records, or if records are
exempt from disclosure.
(ii) The CFPB shall charge the
requester for the actual direct costs of
conducting an electronic records search,
including computer search time, runs,
and output. The CFPB shall also charge
for time spent by computer operators or
programmers (at the rates set forth in
paragraph (a)(2)(i) of this section) who
conduct or assist in the conduct of an
electronic records search.
(3) The CFPB shall charge a requester
for time spent by its employees
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examining responsive records to
determine whether any portions of such
record are exempt from disclosure,
pursuant to the FOIA exemptions of 5
U.S.C. 552(b). The CFPB shall also
charge a requester for time spent by its
employees redacting any such exempt
information from a record and preparing
a record for release to the requester. The
CFPB shall charge a requester for time
spent reviewing records at the salary
rate(s) (i.e., basic pay plus sixteen (16)
percent) of the employees who conduct
the review. However, the CFPB shall
charge review fees at the rate of $9.00
per fifteen (15) minutes of search time
whenever only administrative/clerical
employees review records and at the
rate of $23.00 per fifteen (15) minutes of
search time whenever only professional/
executive employees review records.
Fees shall be charged for review time
even if records ultimately are not
disclosed.
(4) Fees for all services provided shall
be charged whether or not copies are
made available to the requester for
inspection. However, no fee shall be
charged for monitoring a requester’s
inspection of records.
(5) Other services and materials
requested which are not covered by this
part nor required by the FOIA are
chargeable at the actual cost to the
CFPB. This includes, but is not limited
to:
(i) Certifying that records are true
copies; or
(ii) Sending records by special
methods such as express mail, etc.
(b) Categories of requesters. (1) For
purposes of assessing fees as set forth in
this section, each requester shall be
assigned to one of the following
categories:
(i) Commercial user refers to one who
seeks information for a use or purpose
that furthers the commercial, trade, or
profit interests of the requester or the
person on whose behalf the request is
made, which can include furthering
those interests through litigation. The
CFPB’s decision to place a requester in
the commercial use category will be
made on a case-by-case basis based on
how the requester will use the
information.
(ii) Educational institution refers to a
preschool, a public or private
elementary or secondary school, an
institution of graduate higher education,
an institution of undergraduate higher
education, an institution of professional
education, and an institution of
vocational education, which operates a
program or programs of scholarly
research.
(iii) Non-commercial scientific
institution refers to an institution that is
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not operated on a ‘‘commercial user’’
basis as that term is defined in
paragraph (b)(2)(i) of this section, and
which is operated solely for the purpose
of conducting scientific research, the
results of which are not intended to
promote any particular product or
industry.
(iv) Representative of the news media
refers to any person or entity that
gathers information of potential interest
to a segment of the public, uses its
editorial skills to turn the raw materials
into a distinct work, and distributes that
work to an audience. In this paragraph,
the term ‘news’ means information that
is about current events or that would be
of current interest to the public.
Examples of news-media entities are
television or radio stations broadcasting
to the public at large and publishers of
periodicals (but only if such entities
qualify as disseminators of ‘news’) who
make their products available for
purchase by or subscription by or free
distribution to the general public. Other
examples of news media entities
include online publications and Web
sites that regularly deliver news content
to the public. These examples are not
all-inclusive. Moreover, as methods of
news delivery evolve (for example, the
adoption of the electronic dissemination
of newspapers through
telecommunications services), such
alternative media shall be considered to
be news-media entities. A freelance
journalist shall be regarded as working
for a news-media entity if the journalist
can demonstrate a solid basis for
expecting publication through that
entity, whether or not the journalist is
actually employed by the entity. A
publication contract would present a
solid basis for such an expectation; the
CFPB may also consider the past
publication record of the requester in
making such a determination.
(v) ‘‘Other’’ requester refers to a
requester who does not fall within any
of the previously described categories.
(2) Within twenty (20) calendar days
of its receipt of a request, the CFPB shall
make a determination as to the proper
fee category to apply to a requester. The
CFPB shall inform the requester of the
determination in the request
acknowledgment letter, or if no such
letter is required, in another writing.
Where the CFPB has reasonable cause to
doubt the use to which a requester will
put the records sought, or where that
use is not clear from the request itself,
the CFPB should seek additional
clarification before assigning the request
to a specific category.
(3) If the CFPB assigns to a requester
a fee category, then the requester shall
have the right to submit an appeal of the
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CFPB’s determination in accordance
with § 1070.21. The CFPB shall
communicate this appeal right as part of
its written notification to the requester
of an adverse fee category
determination. The requester shall label
its appeal request ‘‘Appeal of Fee
Category Determination.’’
(c) Fees applicable to each category of
requester. The following fee schedule
applies uniformly throughout the CFPB
to requests processed under the FOIA.
Specific levels of fees are prescribed for
each category of requester defined in
paragraph (b) of this section.
(1) Commercial users shall be charged
the full direct costs of searching for,
reviewing, and duplicating the records
they request. Moreover, when a request
is received for disclosure that is
primarily in the commercial interest of
the requester, the CFPB is not required
to consider a request for a waiver or
reduction of fees based upon the
assertion that disclosure would be in the
public interest. The CFPB may recover
the cost of searching for and reviewing
records even if there is ultimately no
disclosure of records or no records are
located.
(2) Educational and non-commercial
scientific institution requesters shall be
charged only for the cost of duplicating
the records they request, except that the
CFPB shall provide the first one
hundred (100) pages of duplication free
of charge. To be eligible, requesters
must show that the request is made
under the auspices of a qualifying
institution and that the records are not
sought for a commercial use, but are
sought in furtherance of scholarly (if the
request is from an educational
institution) or scientific (if the request is
from a non-commercial scientific
institution) research. These categories
do not include requesters who want
records for use in meeting individual
academic research or study
requirements.
(3) Representatives of the news media
shall be charged only for the cost of
duplicating the records they request,
except that the CFPB shall provide them
with the first one hundred (100) pages
of duplication free of charge.
(4) Other requesters who do not fit
any of the categories described above
shall be charged the full direct cost of
searching for and duplicating records
that are responsive to the request,
except that the CFPB shall provide the
first one hundred (100) pages of
duplication and the first two hours of
search time free of charge. The CFPB
may recover the cost of searching for
records even if there is ultimately no
disclosure of records, or no records are
located. Requests from persons for
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records about themselves filed in the
CFPB’s systems of records shall
continue to be treated under the fee
provisions of the Privacy Act of 1974, 5
U.S.C. 552a, which permit fees only for
duplication, after the first one hundred
(100) pages are furnished free of charge.
(d) Other circumstances when fees are
not charged. Notwithstanding
paragraphs (b) and (c) of this section,
the CFPB may not charge a requester a
fee for processing a FOIA request if any
of the following applies:
(1) The cost of collecting a fee would
be equal to or greater than the fee itself;
(2) The fee is less than $250,
excluding duplication costs;
(3) The fees were waived or reduced
in accordance with paragraph (e) of this
section;
(4) If the CFPB fails to comply with
any time limit under § 1070.15 or
§ 1070.21, then the CFPB shall not
assess search fees, or if the requester is
a representative of the news media or an
educational or noncommercial scientific
institution, then the CFPB shall not
assess duplication fees, unless the CFPB
has:
(i) Determined that unusual
circumstances apply to the processing of
the request;
(ii) Provided timely written notice to
the requester of the unusual
circumstances in accordance with
§ 1070.16(d);
(iii) Determined that more than 5,000
pages are necessary to respond to the
request; and
(iv) Discussed with the requester via
mail, email, or telephone (or made not
less than three good-faith attempts to do
so) how the requester could effectively
limit the scope of the request.
(5) If the CFPB determines, as a matter
of administrative discretion, that
waiving or reducing the fees would
serve the interest of the United States
Government.
(e) Waiver or reduction of fees. (1) A
requester shall be entitled to receive
from the CFPB a waiver or reduction in
the fees otherwise applicable to a FOIA
request whenever the requester:
(i) Requests such waiver or reduction
of fees in writing as part of the FOIA
request;
(ii) Labels the request for waiver or
reduction of fees ‘‘Fee Waiver or
Reduction Requested’’ on the FOIA
request; and
(iii) Demonstrates that the fee
reduction or waiver request that a
waiver or reduction of the fees is in the
public interest because:
(A) Furnishing the information is
likely to contribute significantly to
public understanding of the operations
or activities of the government; and
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(B) Furnishing the information is not
primarily in the commercial interest of
the requester.
(2) To determine whether the
requester has satisfied the requirements
of paragraph (e)(1)(iii)(A), the CFPB
shall consider the following factors:
(i) The subject of the requested
records must concern identifiable
operations or activities of the Federal
government, with a connection that is
direct and clear, and not remote or
attenuated.
(ii) The disclosable portions of the
requested records must be meaningfully
informative about government
operations or activities in order to be
‘‘likely to contribute’’ to an increased
public understanding of those
operations or activities. The disclosure
of information that already is in the
public domain, in either a duplicative or
a substantially similar form, is not as
likely to contribute to the public’s
understanding.
(iii) The disclosure must contribute to
the understanding of a reasonably broad
audience of persons interested in the
subject, as opposed to the individual
understanding of the requester. A
requester’s expertise in the subject area
and ability and intention to effectively
convey information to the public shall
be considered. It shall be presumed that
a representative of the news media will
satisfy this consideration.
(iv) The public’s understanding of the
subject in question, as compared to the
level of public understanding existing
prior to the disclosure, must be
enhanced by the disclosure to a
significant extent.
(3) To determine whether the
requester has satisfied the requirements
of paragraph (e)(1)(iii)(B), the CFPB
shall consider the following factors:
(i) The CFPB shall consider any
commercial interest of the requester
(with reference to the definition of
‘‘commercial user’’ in (b)(1)(i) of this
section), or of any person on whose
behalf the requester may be acting, that
would be furthered by the requested
disclosure. Requesters shall be given an
opportunity in the administrative
process to provide explanatory
information regarding this
consideration.
(ii) A fee waiver or reduction is
justified where the public interest
standard is satisfied and that public
interest is greater in magnitude than that
of any identified commercial interest in
disclosure. The CFPB ordinarily shall
presume that where a news media
requester has satisfied the public
interest standard, the public interest
will be the interest primarily served by
disclosure to that requester. Disclosure
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58331
to data brokers or others who merely
compile and market government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(4) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those records.
(5) If the CFPB denies a request to
reduce or waive fees, then the CFPB
shall advise the requester, in the denial
notification letter, that the requester
may incur fees if the CFPB proceeds to
process the request. The notification
letter shall also advise the requester that
the CFPB will not proceed to process
the request further unless the requester,
in writing, directs the CFPB to do so and
either agrees to pay any fees that may
apply to processing the request or
specifies an upper limit that the
requester is willing to pay to process the
request. If the CFPB does not receive
this written direction and agreement/
specification within thirty (30) calendar
days of the date of the denial
notification letter, then the CFPB shall
deem the request to be withdrawn.
(6) If the CFPB denies a request to
reduce or waive fees, then the requester
shall have the right to submit an appeal
of the denial determination in
accordance with § 1070.21. The CFPB
shall communicate this appeal right as
part of its written notification to the
requester denying the fee reduction or
waiver request. The requester should
label its appeal request ‘‘Appeal for Fee
Reduction/Waiver.’’
(f) Advance notice and prepayment of
fees. (1) The CFPB shall notify a
requester of the estimated fees for
processing a request and provide a
breakdown of the fees attributable to
search, review, and duplication, when
the estimated fees are $250 or more and:
(i) The fees exceed the limit set by the
requester;
(ii) The requester did not specify a
limit; or
(iii) The CFPB has denied a request
for a reduction or waiver of fees.
The requester must provide an
agreement to pay the estimated fees;
however, the requester shall also be
given an opportunity to reformulate the
request in an attempt to reduce fees.
(2) If the fees are estimated to exceed
$1000, the requester must pre-pay such
amount prior to the processing of the
request, or provide satisfactory
assurance of full payment if the
requester has a history of prompt
payment of FOIA fees. The requester
shall also be given an opportunity to
reformulate the request in such a way as
to lower the applicable fees.
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(3) The CFPB reserves the right to
request prepayment after a request is
processed and before documents are
released.
(4) If a requester has previously failed
to pay a fee within thirty (30) calendar
days of the date of the billing, the
requester shall be required to pay the
full amount owed plus any applicable
interest and to make an advance
payment of the full amount of the
estimated fee before the CFPB begins to
process a new request or the pending
request.
(5) When the CFPB acts under
paragraphs (f)(1) through (4) of this
section, the statutory time limits of
twenty (20) days (excluding Saturdays,
Sundays, and legal public holidays)
from receipt of initial requests or
appeals, plus extensions of these time
limits, shall begin only after fees have
been paid, a written agreement to pay
fees has been provided, or a request has
been reformulated.
(g) Form of payment. Payment may be
tendered as set forth on the CFPB’s Web
site, https://www.consumerfinance.gov.
(h) Charging interest. The CFPB may
charge interest on any unpaid bill
starting on the 31st day following the
date of billing the requester. Interest
charges will be assessed at the rate
provided in 31 U.S.C. 3717 and will
accrue from the date of the billing until
payment is received by the CFPB. The
CFPB will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97–
365, 96 Stat. 1749), as amended, and its
administrative procedures, including
the use of consumer reporting agencies,
collection agencies, and offset.
(i) Aggregating requests. Where the
CFPB reasonably believes that a
requester or a group of requesters acting
together is attempting to divide a
request into a series of requests for the
purpose of avoiding fees, the CFPB may
aggregate those requests and charge
accordingly. The CFPB may presume
that multiple requests of this type made
within a thirty (30) day period have
been made in order to avoid fees. Where
requests are separated by a longer
period, the CFPB will aggregate them
only where there exists a solid basis for
determining that aggregation is
warranted under all the circumstances
involved. Multiple requests involving
unrelated matters will not be aggregated.
decided by the General Counsel. The
Chief FOIA officer shall, subject to the
authority of the Director:
(1) Have CFPB-wide responsibility for
efficient and appropriate compliance
with the FOIA;
(2) Monitor implementation of the
FOIA throughout the CFPB and keep the
Director, the General Counsel, and the
Attorney General appropriately
informed of the CFPB’s performance in
implementing the FOIA;
(3) Recommend to the Director such
adjustments to agency practices,
policies, personnel and funding as may
be necessary to improve the Chief FOIA
Officer’s implementation of the FOIA;
(4) Review and report to the Attorney
General, through the Director, at such
times and in such formats as the
Attorney General may direct, on the
CFPB’s performance in implementing
the FOIA;
(5) Facilitate public understanding of
the purposes of the statutory
exemptions of the FOIA by including
concise descriptions of the exemptions
in both the CFPB’s handbook and the
CFPB’s annual report on the FOIA, and
by providing an overview, where
appropriate, of certain general categories
of CFPB records to which those
exemptions apply;
(6) Designate one or more FOIA
Public Liaisons;
(7) Offer Training to Bureau staff
regarding their responsibilities under
the FOIA;
(8) Serve as the primary Bureau
liaison with the Office of Government
Information Services and the Office of
Information Policy; and
(9) Maintain and update, as necessary
and in accordance with the
requirements of this subpart, the CFPB’s
FOIA Web site, including its e-FOIA
Library.
(b) FOIA Public Liaisons. FOIA Public
Liaisons shall report to the Chief FOIA
Officer and shall serve as supervisory
officials to whom a requester can raise
concerns about the service the requester
has received from the CFPB’s FOIA
office, following an initial response
from the FOIA office staff. FOIA Public
Liaisons shall be responsible for
assisting in reducing delays, increasing
transparency and understanding of the
status of requests, and assisting in the
resolution of disputes.
§ 1070.23 Authority and responsibilities of
the Chief FOIA Officer.
Subpart C—Disclosure of CFPB
Information in Connection with Legal
Proceedings
(a) Chief FOIA Officer. The Director
authorizes the Chief FOIA Officer to act
upon all requests for agency records,
with the exception of determining
appeals from the initial determinations
of the Chief FOIA Officer, which will be
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§ 1070.30
Purpose and scope; definitions.
(a) This subpart sets forth the
procedures to be followed with respect
to subpoenas, court orders, or other
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requests or demands for any CFPB
information, whether contained in the
files of the CFPB or acquired by a CFPB
employee as part of the performance of
that employee’s duties or by virtue of
employee’s official status.
(b) This subpart does not apply to
requests for official information made
pursuant to subparts B, D, and E of this
part.
(c) This subpart does not apply to
requests for information made in the
course of adjudicating claims against the
CFPB by CFPB employees (present or
former) or applicants for CFPB
employment for which jurisdiction
resides with the U.S. Equal Employment
Opportunity Commission, the U.S.
Merit Systems Protection Board, the
Office of Special Counsel, the Federal
Labor Relations Authority, or their
successor agencies, or a labor arbitrator
operating under a collective bargaining
agreement between the CFPB and a
labor organization representing CFPB
employees.
(d) This subpart is intended only to
inform the public about CFPB
procedures concerning the service of
process and responses to subpoenas,
summons, or other demands or requests
for official information or action and is
not intended to and does not create, and
may not be relied upon to create any
right or benefit, substantive or
procedural, enforceable at law by a
party against the CFPB or the United
States.
(e) For purposes of this subpart:
(1) Demand means a subpoena or
order for official information, whether
contained in CFPB records or through
testimony, related to or for possible use
in a legal proceeding.
(2) Legal proceeding encompasses all
pre-trial, trial, and post-trial stages of all
judicial or administrative actions,
hearings, investigations, or similar
proceedings before courts, commissions,
boards, grand juries, arbitrators, or other
judicial or quasi-judicial bodies or
tribunals, whether criminal, civil, or
administrative in nature, and whether
foreign or domestic. This phrase
includes all stages of discovery as well
as formal or informal requests by
attorneys, their agents, or others
involved in legal proceedings.
(3) Official Information means all
information of any kind, however
stored, that is in the custody and control
of the CFPB or was acquired by CFPB
employees, or former employees as part
of their official duties or because of their
official status while such individuals
were employed by or served on behalf
of the CFPB. Official information also
includes any information acquired by
CFPB employees or former employees
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while such individuals were engaged in
matters related to consumer financial
protection functions prior to the
employees’ transfer to the CFPB
pursuant to Subtitle F of the Consumer
Financial Protection Act of 2010.
(4) Request means any request for
official information in the form of
testimony, affidavits, declarations,
admissions, responses to interrogatories,
document production, inspections, or
formal or informal interviews, during
the course of a legal proceeding,
including pursuant to the Federal Rules
of Civil Procedure, the Federal Rules of
Criminal Procedure, or other applicable
rules of procedure.
(5) Testimony means a statement in
any form, including personal
appearances before a court or other legal
tribunal, interviews, depositions,
telephonic, televised, or videographed
statements or any responses given
during discovery or similar proceeding
in the course of litigation.
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§ 1070.31 Service of subpoenas, court
orders, and other demands for CFPB
information or action.
(a) Except in cases in which the CFPB
is represented by legal counsel who
have entered an appearance or
otherwise given notice of their
representation, only the General
Counsel is authorized to receive and
accept subpoenas or other demands or
requests directed to the CFPB or its
employees, whether civil or criminal in
nature, for:
(1) Records of the CFPB;
(2) Official information including, but
not limited to, testimony, affidavits,
declarations, admissions, responses to
interrogatories, or informal statements,
relating to material contained in the
files of the CFPB or which any CFPB
employee acquired in the course and
scope of the performance of his or her
official duties;
(3) Garnishment or attachment of
compensation of current or former
employees; or
(4) The performance or nonperformance of any official CFPB duty.
(b) Documents described in paragraph
(a) of this section should be served upon
the General Counsel, Consumer
Financial Protection Bureau, 1700 G
Street NW., Washington, DC 20552.
Service must be effected as provided in
applicable rules and regulations
governing service in Federal judicial
and administrative proceedings.
Acceptance of such documents by the
General Counsel does not constitute a
waiver of any defense that might
otherwise exist with respect to service
under the Federal Rules of Civil or
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Criminal Procedure or other applicable
laws or regulations.
(c) In the event that any demand or
request described in paragraph (a) of
this section is sought to be delivered to
a CFPB employee other than in the
manner prescribed in paragraph (b) of
this section, such employee shall
decline service and direct the server of
process to these regulations. If the
demand or request is nonetheless
delivered to the employee, the employee
shall immediately notify, and deliver a
copy of that document to, the General
Counsel.
(d) The CFPB is not an agent for
service for, or otherwise authorized to
accept on behalf of its employees, any
subpoenas, orders, or other demands or
requests, which are not related to the
employees’ official duties.
(e) Copies of any subpoenas, orders,
or other demands or requests that are
directed to former employees of the
CFPB in connection with the
performance of official CFPB duties
shall also be served upon the General
Counsel. The CFPB shall not, however,
serve as an agent for service for the
former employee, nor is the CFPB
otherwise authorized to accept service
on behalf of its former employees. If the
demand involves their official duties as
CFPB employees, former employees
who receive subpoenas, orders, or
similar compulsory process should also
notify, and deliver a copy of the
document to, the General Counsel.
§ 1070.32 Testimony and production of
documents prohibited unless approved by
the General Counsel.
(a) Unless authorized by the General
Counsel, no employee or former
employee of the CFPB shall, in response
to a demand or a request provide oral
or written testimony by deposition,
declaration, affidavit, or otherwise
concerning any official information.
(b) Unless authorized by the General
Counsel, no employee or former
employee shall, in response to a
demand or request, produce any
document or any material acquired as
part of the performance of that
employee’s duties or by virtue of that
employee’s official status.
§ 1070.33 Procedure when testimony or
production of documents is sought;
general.
(a) If, as part of a proceeding in which
the United States or the CFPB is not a
party, official information is sought
through a demand for testimony, CFPB
records, or other material, the party
seeking such information must (except
as otherwise required by Federal law or
authorized by the General Counsel) set
forth in writing:
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(1) The title and forum of the
proceeding, if applicable;
(2) A detailed description of the
nature and relevance of the official
information sought;
(3) A showing that other evidence
reasonably suited to the requester’s
needs is not available from any other
source; and
(4) If testimony is requested, the
intended use of the testimony, a general
summary of the desired testimony, and
a showing that no document could be
provided and used in lieu of testimony.
(b) To the extent he or she deems
necessary or appropriate, the General
Counsel may also require from the party
seeking such information a plan of all
reasonably foreseeable demands,
including but not limited to the names
of all employees and former employees
from whom testimony or discovery will
be sought, areas of inquiry, expected
duration of proceedings requiring oral
testimony, identification of potentially
relevant documents, or any other
information deemed necessary to make
a determination. The purpose of this
requirement is to assist the General
Counsel in making an informed decision
regarding whether testimony, the
production of documents, or the
provision of other information should
be authorized.
(c) The General Counsel may consult
or negotiate with an attorney for a party,
or the party if not represented by an
attorney, to refine or limit a request or
demand so that compliance is less
burdensome.
(d) The General Counsel will notify
the CFPB employee and such other
persons as circumstances may warrant
of his or her decision regarding
compliance with the request or demand.
§ 1070.34 Procedure when response to
demand is required prior to receiving
instructions.
(a) If a response to a demand
described in § 1070.34 is required before
the General Counsel renders a decision,
the CFPB will request that the
appropriate CFPB attorney or an
attorney of the Department of Justice, as
appropriate, take steps to stay,
postpone, or obtain relief from the
demand pending decision. If necessary,
the attorney will:
(1) Appear with the employee upon
whom the demand has been made;
(2) Furnish the court or other
authority with a copy of the regulations
contained in this subpart;
(3) Inform the court or other authority
that the demand has been, or is being,
as the case may be, referred for the
prompt consideration of the appropriate
CFPB official; and
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(4) Request the court or authority to
stay the demand pending receipt of the
requested instructions.
(b) In the event that an immediate
demand for production or disclosure is
made in circumstances which would
preclude the proper designation or
appearance of an attorney of the CFPB
or the Department of Justice on the
employee’s behalf, the employee, if
necessary, shall request from the
demanding court or authority a
reasonable stay of proceedings for the
purpose of obtaining instructions from
the General Counsel.
§ 1070.35 Procedure in the event of an
adverse ruling.
If a stay of, or other relief from, the
effect of a demand made pursuant to
§§ 1070.33 and 1070.34 is declined or
not obtained, or if the court or other
judicial or quasi-judicial authority
declines to stay the effect of the demand
made pursuant to §§ 1070.33 and
1070.34, or if the court or other
authority rules that the demand must be
complied with irrespective of the
General Counsel’s instructions not to
produce the material or disclose the
information sought, the employee upon
whom the demand has been made shall
decline to comply with the demand
citing this subpart and United States ex
rel. Touhy v. Ragen, 340 U.S. 462
(1951).
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§ 1070.36 Considerations in determining
whether the CFPB will comply with a
demand or request.
(a) In deciding whether to comply
with a demand or request, CFPB
officials and attorneys shall consider,
among other pertinent considerations:
(1) Whether such compliance would
be unduly burdensome or otherwise
inappropriate under the applicable rules
of discovery or the rules of procedure
governing the case or matter in which
the demand arose;
(2) Whether the number of similar
requests would have a cumulative effect
on the expenditure of CFPB resources;
(3) Whether compliance is
appropriate under the relevant
substantive law concerning privilege or
disclosure of information;
(4) The public interest;
(5) The need to conserve the time of
CFPB employees for the conduct of
official business;
(6) The need to avoid spending time
and money of the United States for
private purposes;
(7) The need to maintain impartiality
between private litigants in cases where
a substantial government interest is not
implicated;
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(8) Whether compliance would have
an adverse effect on performance by the
CFPB of its mission and duties;
(9) The need to avoid involving the
CFPB in controversial issues not related
to its mission;
(10) Whether compliance would
interfere with supervisory examinations,
compromise the CFPB’s supervisory
functions or programs, or undermine
public confidence in supervised
financial institutions; and
(11) Whether compliance would
interfere with the CFPB’s ability to
monitor for risks to consumers in the
offering or provision of consumer
financial products and services.
(b) Among those demands and
requests in response to which
compliance will not ordinarily be
authorized are those with respect to
which any of the following factors, inter
alia, exist:
(1) Compliance would violate a
statute or applicable rule of procedure;
(2) Compliance would violate a
specific regulation or Executive order;
(3) Compliance would reveal
information properly classified in the
interest of national security;
(4) Compliance would reveal
confidential or privileged commercial or
financial information or trade secrets
without the owner’s consent;
(5) Compliance would compromise
the integrity of the deliberative
processes of the CFPB;
(6) Compliance would not be
appropriate or necessary under the
relevant substantive law governing
privilege;
(7) Compliance would reveal
confidential information; or
(8) Compliance would interfere with
ongoing investigations or enforcement
proceedings, compromise constitutional
rights, or reveal the identity of a
confidential informant.
(c) The CFPB may condition
disclosure of official information
pursuant to a request or demand on the
entry of an appropriate protective order.
§ 1070.37 Prohibition on providing expert
or opinion testimony.
(a) Except as provided in this section,
and subject to 5 CFR 2635.805, CFPB
employees or former employees shall
not provide opinion or expert testimony
based upon information which they
acquired in the scope and performance
of their official CFPB duties, except on
behalf of the CFPB or the United States
or a party represented by the CFPB, or
the Department of Justice, as
appropriate.
(b) Any expert or opinion testimony
by a former employee of the CFPB shall
be excepted from paragraph (a) of this
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section where the testimony involves
only general expertise gained while
employed at the CFPB.
(c) Upon a showing by the requestor
of exceptional need or unique
circumstances and that the anticipated
testimony will not be adverse to the
interests of the United States, the
General Counsel may, consistent with 5
CFR 2635.805, exercise his or her
discretion to grant special, written
authorization for CFPB employees, or
former employees, to appear and testify
as expert witnesses at no expense to the
United States.
(d) If, despite the final determination
of the General Counsel, a court of
competent jurisdiction or other
appropriate authority orders the
appearance and expert or opinion
testimony of a current or former CFPB
employee, that person shall
immediately inform the General
Counsel of such order. If the General
Counsel determines that no further legal
review of or challenge to the court’s
order will be made, the CFPB employee,
or former employee, shall comply with
the order. If so directed by the General
Counsel, however, the employee, or
former employee, shall decline to
testify.
Subpart D—Confidential Information
§ 1070.40
Purpose and scope.
This subpart does not apply to
requests for official information made
pursuant to subparts B, C, or E of this
part.
§ 1070.41 Non-disclosure of confidential
information.
(a) Non-disclosure. Except as required
by law or as provided in this part, no
current or former employee or
contractor or consultant of the CFPB, or
any other person in possession of
confidential information, shall disclose
such confidential information by any
means (including written or oral
communications) or in any format
(including paper and electronic
formats), to:
(1) Any person who is not an
employee, contractor, or consultant of
the CFPB; or
(2) Any CFPB employee, contractor,
or consultant when the disclosure of
such confidential information to that
employee, contractor, or consultant is
not relevant to the performance of the
employee’s, contractor’s, or consultant’s
assigned duties.
(b) Disclosures to contractors and
consultants. CFPB contractors or
consultants must treat confidential
information in accordance with this
part, other Federal laws and regulations
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that apply to Federal agencies for the
protection of the confidentiality of
personally identifiable information and
for data security and integrity, as well
as any additional conditions or
limitations that the CFPB may impose.
(c) Disclosure of materials derived
from confidential information. The
CFPB may, in its discretion, disclose
materials that it derives from or creates
using confidential information to the
extent that such materials do not
identify, either directly or indirectly,
any particular person to whom the
confidential information pertains.
(d) Disclosure of confidential
information with consent. Where
practicable, the CFPB may, in its
discretion and in accordance with
applicable law, disclose confidential
information that directly or indirectly
identifies particular persons if the CFPB
obtains prior consent from such persons
to make the disclosure.
(e) Nondisclosure of confidential
information provided to the CFPB by
other agencies. Nothing in this subpart
requires or authorizes the CFPB to
disclose confidential information that
another agency has provided to the
CFPB to the extent that such disclosure
contravenes applicable law or the terms
of any agreement that exists between the
CFPB and the agency to govern the
CFPB’s treatment of information that the
agency provides to the CFPB.
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§ 1070.42 Disclosure of confidential
supervisory information and confidential
investigative information.
(a) Discretionary disclosure of
confidential supervisory information or
confidential investigative information
by the CFPB. The CFPB may, in its
discretion, and to the extent consistent
with applicable law, disclose
confidential supervisory information or
confidential investigative information
concerning a person, its affiliates, or its
service providers to that person, its
affiliates, or its service providers.
(b) Disclosure of confidential
supervisory information or confidential
investigative information by the
recipients of the information. Unless
directed otherwise by the Associate
Director for Supervision, Enforcement,
and Fair Lending:
(1) Any person lawfully in possession
of confidential supervisory information
or confidential investigative information
provided directly to it by the CFPB
pursuant to this section may disclose
such information, or portions thereof, to
its affiliates and to the following
individuals to the extent that the
disclosure of such confidential
supervisory information or confidential
investigative information is relevant to
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the performance of such individuals’
assigned duties:
(i) Its directors, officers, trustees,
members, general partners, or
employees; and
(ii) The directors, officers, trustees,
members, general partners, or
employees of its affiliates.
(2) Any person lawfully in possession
of confidential supervisory information
or confidential investigative information
provided directly to it by the CFPB
pursuant to this section may disclose
such information, or portions thereof,
to:
(i) Its certified public accountant,
legal counsel, contractor, consultant, or
service provider;
(ii) Its insurance provider pursuant to
a claim made under an existing policy,
provided that the Bureau has not
precluded indemnification or
reimbursement for the claim;
information disclosed pursuant to this
subparagraph may be used by the
insurance provider solely for purposes
of administering such a claim; or
(iii) Another person, with the prior
written approval of the Associate
Director for Supervision, Enforcement,
and Fair Lending.
(3) Where a person discloses
confidential supervisory information or
confidential investigative information
pursuant to paragraph (b) of this section:
(i) The recipient of such confidential
supervisory information or confidential
investigative information shall not,
without the prior written approval of
the Associate Director for Supervision,
Enforcement, and Fair Lending, utilize,
make, or retain copies of, or disclose
confidential supervisory information or
confidential investigative information
for any purpose, except as is necessary
to provide advice or services to the
person or its affiliate; and
(ii) The person disclosing the
confidential supervisory information or
confidential investigative information
shall take reasonable steps to ensure
that the recipient complies with
paragraph (b)(3)(i) of this section.
§ 1070.43 Disclosure of confidential
information to agencies.
(a) Required disclosure of confidential
information to agencies. The CFPB
shall:
(1) Disclose a draft of a report of
examination of a supervised financial
institution prior to its finalization, in
accordance with 12 U.S.C. 5515(e)(1)(C),
and disclose a final report of
examination, including any and all
revisions made to such a report, to a
Federal or State agency with jurisdiction
over that supervised financial
institution, provided that the CFPB
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58335
receives from the agency reasonable
assurances as to the confidentiality of
the information disclosed; and
(2) Disclose confidential consumer
complaint information to a Federal or
State agency to facilitate preparation of
reports to Congress required by 12
U.S.C. 5493(b)(3)(C) and to facilitate the
CFPB’s supervision and enforcement
activities and its monitoring of the
market for consumer financial products
and services, provided that the agency
shall first give written assurance to the
CFPB that it will maintain such
information in confidence, including in
a manner that conforms to the standards
that apply to Federal agencies for the
protection of the confidentiality of
personally identifiable information and
for data security and integrity.
(b) Discretionary disclosure of
confidential information to agencies. (1)
Upon receipt of a written request that
contains the information required by
paragraph (b)(2) of this section, the
CFPB may, in its discretion, disclose
confidential information to an Agency
to the extent that the disclosure of the
information is relevant to the exercise of
the Agency’s statutory or regulatory
authority.
(2) To obtain access to confidential
information pursuant to paragraph (b)(1)
of this section, an authorized officer or
employee of the agency shall submit a
written request to the CFPB’s Associate
Director for Supervision, Enforcement,
and Fair Lending at accessrequests@
cfpb.gov or at 1700 G Street NW.,
Washington, DC 20552. The request
shall include the following:
(i) A description of the particular
information, kinds of information, and
where possible, the particular
documents to which access is sought;
(ii) A statement of the purpose for
which the information will be used;
(iii) A statement certifying and
identifying the Agency’s statutory or
regulatory authority that is relevant to
the requested information, as required
by paragraph (b)(1) of this section;
(iv) A statement certifying and
identifying the agency’s legal authority
for protecting the requested information
from public disclosure; and
(v) A certification that the agency will
maintain the requested confidential
information in confidence, including in
a manner that conforms to the standards
that apply to Federal agencies for the
protection of the confidentiality of
personally identifiable information and
for data security and integrity, as well
as any additional conditions or
limitations that the CFPB may impose.
(c) Negotiation of standing requests.
The CFPB may negotiate terms
governing the exchange of confidential
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§ 1070.46 Other disclosures of confidential
information.
information with Agencies on a
standing basis, as appropriate.
§ 1070.44 Disclosure of confidential
consumer complaint information.
The CFPB may, to the extent
permitted by law, disclose confidential
consumer complaint information as it
deems necessary to investigate, resolve,
or otherwise respond to consumer
complaints or inquiries concerning
consumer financial products and
services or a violation of Federal
consumer financial law.
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§ 1070.45 Affirmative disclosure of
confidential information.
(a) The CFPB may disclose
confidential information, in accordance
with applicable law, as follows:
(1) To a CFPB employee, as that term
is defined in § 1070.2 and in accordance
with § 1070.41;
(2) To either House of the Congress or
to an appropriate committee or
subcommittee of the Congress, as set
forth in 12 U.S.C. 5562(d)(2), provided
that, upon the receipt by the CFPB of a
request from the Congress for
confidential information that a financial
institution submitted to the CFPB along
with a claim that such information
consists of a trade secret or privileged or
confidential commercial or financial
information, or confidential supervisory
information, the CFPB may notify the
financial institution in writing of its
receipt of the request and provide the
institution with a copy of the request;
(3) In investigational hearings and
witness interviews, or otherwise in the
investigation and administration of
enforcement actions, as is reasonably
necessary, at the discretion of the CFPB;
(4) In or related to an administrative
or court proceeding to which the CFPB
is a party. In the case of confidential
investigative information that contains
any trade secret or privileged or
confidential commercial or financial
information, as claimed by designation
by the submitter of such material, or
confidential supervisory information,
the submitter, or the CFPB, in its
discretion, may seek an appropriate
order prior to disclosure of such
material in a proceeding;
(5) In CFPB personnel matters, as
necessary and subject to appropriate
protections;
(6) To Agencies in summary form to
the extent necessary to confer with such
Agencies about matters relevant to the
exercise of the Agencies’ statutory or
regulatory authority; or
(7) As required under any other
applicable law.
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(a) To the extent permitted by law and
as authorized by the Director in writing,
the CFPB may disclose confidential
information other than as set forth in
this subpart.
(b) Prior to disclosing confidential
information pursuant to paragraph (a) of
this section, the CFPB may, as it deems
appropriate under the circumstances,
provide written notice to the person to
whom the confidential information
pertains that the CFPB intends to
disclose its confidential information in
accordance with this section.
(c) The authority of the Director to
disclose confidential information
pursuant to paragraph (a) of this section
shall not be delegated. However, a
person authorized to perform the
functions of the Director in accordance
with law may exercise the authority of
the Director as set forth in this section.
§ 1070.47 Other rules regarding the
disclosure of confidential information.
(a) Further disclosure prohibited. (1)
All confidential information made
available under this subpart shall
remain the property of the CFPB, unless
the Associate Director for Supervision,
Enforcement, and Fair Lending provides
otherwise in writing.
(2) Except as set forth in this subpart,
no supervised financial institution,
Agency, any officer, director, employee
or agent thereof, or any other person to
whom the confidential information is
made available under this subpart, may
further disclose such confidential
information without the prior written
permission of the Associate Director for
Supervision, Enforcement, and Fair
Lending.
(3) No person obtaining access to
confidential information pursuant to
this subpart may make a personal copy
of any such information, and no person
may remove confidential information
from the premises of the institution or
agency in possession of such
information except as permitted under
this subpart or by the CFPB.
(b) Third party requests for
information. (1) A supervised financial
institution, agency, any officer, director,
employee or agent thereof, or any other
person to whom the CFPB’s confidential
information is made available under this
subpart, that receives from a third party
a legally enforceable demand or request
for such confidential information
(including but not limited to, a
subpoena or discovery request or a
request made pursuant to the Freedom
of Information Act, 5 U.S.C. 552, the
Privacy Act of 1974, 5 U.S.C. 552a, or
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any State analogue to such statutes)
should:
(i) Inform the General Counsel of such
request or demand in writing and
provide the General Counsel with a
copy of such request or demand as soon
as practicable after receiving it;
(ii) To the extent permitted by
applicable law, advise the requester
that:
(A) The confidential information
sought may not be disclosed insofar as
it is the property of the CFPB; and
(B) Any request for the disclosure of
such confidential information is
properly directed to the CFPB pursuant
to its regulations set forth in this part.
(iii) Consult with the General Counsel
before complying with the request or
demand, and to the extent applicable:
(A) Give the CFPB a reasonable
opportunity to respond to the demand
or request;
(B) Assert all reasonable and
appropriate legal exemptions or
privileges that the CFPB may request be
asserted on its behalf; and
(C) Consent to a motion by the CFPB
to intervene in any action for the
purpose of asserting and preserving any
claims of confidentiality with respect to
any confidential information.
(2) Nothing in this section shall
prevent a supervised financial
institution, agency, any officer, director,
employee or agent thereof, or any other
person to whom the information is
made available under this subpart from
complying with a legally valid and
enforceable order of a court of
competent jurisdiction compelling
production of the CFPB’s confidential
information, or, if compliance is
deemed compulsory, with a request or
demand from either House of the
Congress or a duly authorized
committee of the Congress. To the
extent that compulsory disclosure of
confidential information occurs as set
forth in this paragraph, the producing
party shall use its best efforts to ensure
that the requestor secures an
appropriate protective order or, if the
requestor is a legislative body, use its
best efforts to obtain the commitment or
agreement of the legislative body that it
will maintain the confidentiality of the
confidential information.
(c) Additional conditions and
limitations. The CFPB may impose any
additional conditions or limitations on
disclosure or use under this subpart that
it determines are necessary.
(d) Return or destruction of records.
The CFPB may require any person in
possession of CFPB confidential
information to return the records to the
CFPB or destroy them.
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(e) Non-waiver of CFPB rights. The
disclosure of confidential information to
any person in accordance with this
subpart does not constitute a waiver by
the CFPB of its right to control, or
impose limitations on, the subsequent
use and dissemination of the
information.
(f) Non-waiver of privilege—(1) In
general. The CFPB shall not be deemed
to have waived any privilege applicable
to any information by transferring that
information to, or permitting that
information to be used by, any Federal
or State Agency.
(2) Rule of Construction. Paragraph
(f)(1) of this section shall not be
construed as implying that any person
waives any privilege applicable to any
information because paragraph (f)(1) of
this section does not apply to the
transfer or use of that information.
(g) Reports of unauthorized
disclosure. Any person in possession of
confidential information shall
immediately notify the CFPB upon the
discovery of any disclosures made in
violation of this subpart.
§ 1070.48 Disclosure of confidential
information by the Inspector General.
(a) Nothing in this subpart shall limit
the discretion of the Office of the
Inspector General of the Board of
Governors of the Federal Reserve
System and the Consumer Financial
Protection Bureau to disclose
confidential information as needed in
accordance with the Inspector General
Act of 1978, 5 U.S.C. App. 3.
Subpart E—Privacy Act
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§ 1070.50
Purpose and scope; definitions.
(a) This subpart implements the
provisions of the Privacy Act of 1974, 5
U.S.C. 552a (the Privacy Act). The
regulations apply to all records
maintained by the CFPB and which are
retrieved by an individual’s name or
personal identifier. The regulations set
forth the procedures for requests for
access to, or amendment of, records
concerning individuals that are
contained in systems of records
maintained by the CFPB. These
regulations should be read in
conjunction with the Privacy Act, which
provides additional information about
this topic.
(b) For purposes of this subpart, the
following definitions apply:
(1) The term Chief Privacy Officer
means the Chief Information Officer of
the CFPB or any CFPB employee to
whom the Chief Information Officer has
delegated authority to act under this
part;
(2) The term guardian means the
parent of a minor, or the legal guardian
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of any individual who has been
declared to be incompetent due to
physical or mental incapacity or age by
a court of competent jurisdiction;
(3) Individual means a citizen of the
United States or an alien lawfully
admitted for permanent residence;
(4) Maintain includes maintain,
collect, use, or disseminate;
(5) Record means any item, collection,
or grouping of information about an
individual that is maintained by an
agency, including, but not limited to,
his education, financial transactions,
medical history, and criminal or
employment history and that contains
his name or the identifying number,
symbol, or other identifying particular
assigned to the individual, such as a
finger or voiceprint or a photograph;
(6) Routine use means the disclosure
of a record that is compatible with the
purpose for which it was collected;
(7) System of records means a group
of any records under the control of an
agency from which information is
retrieved by the name of the individual
or by some identifying number, symbol,
or other identifying particular assigned
to the individual; and
(8) Statistical record means a record
in a system of records maintained for
statistical research or reporting purposes
only and not used in whole or in part
in making any determination about an
identifiable individual, except as
provided by 13 U.S.C. 8.
§ 1070.51 Authority and responsibilities of
the Chief Privacy Officer.
The Chief Privacy Officer is
authorized to:
(a) Develop, implement, and maintain
an organization-wide privacy program;
(b) Respond to requests for access to,
accounting of, or amendment of records
contained in a system of records
maintained by the CFPB;
(c) Approve the publication of new
systems of records and amend existing
systems of record; and
(d) File any necessary reports related
to the Privacy Act.
§ 1070.52
Fees.
(a) Copies of records. The CFPB shall
provide the requester with copies of
records requested pursuant to § 1070.53
at the same cost charged for duplication
of records under § 1070.22.
(b) No fee. The CFPB will not charge
a fee if:
(1) Total charges associated with a
request are less than $5, or
(2) The requester is a CFPB employee
or former employee, or an applicant for
employment with the CFPB, and the
request pertains to that employee,
former employee, or applicant.
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§ 1070.53
58337
Request for access to records.
(a) Procedures for making a request
for access to records. An individual’s
requests for access to records that
pertain to that individual (or to the
individual for whom the requester
serves as guardian) may be submitted to
the CFPB in writing as follows:
(1) If submitted by mail or delivery
service, the request shall be labeled
‘‘Privacy Act Request’’ and shall be
addressed to the Chief Privacy Officer,
Consumer Financial Protection Bureau,
1700 G Street NW., Washington, DC
20552.
(2) If submitted by electronic means,
the request shall be labeled ‘‘Privacy Act
Request’’ and the request shall be
submitted as set forth at the CFPB’s Web
site, https://www.consumerfinance.gov.
(b) Content of a request for access to
records. A request for access to records
shall include:
(1) A statement that the request is
made pursuant to the Privacy Act;
(2) The name of the system of records
that the requester believes contains the
record requested, or a description of the
nature of the record sought in detail
sufficient to enable CFPB personnel to
locate the system of records containing
the record with a reasonable amount of
effort;
(3) Whenever possible, a description
of the nature of the record sought, the
date of the record or the period in which
the requester believes that the record
was created, and any other information
that might assist the CFPB in identifying
the record sought (e.g., maiden name,
dates of employment, account
information, etc.).
(4) Information necessary to verify the
requester’s identity pursuant to
paragraph (c) of this section;
(5) The mailing or email address
where the CFPB’s response or further
correspondence should be sent.
(c) Verification of identity. To obtain
access to the CFPB’s records pertaining
to a requester, the requester shall
provide proof to the CFPB of the
requester’s identity as provided below.
(1) In general, the following will be
considered adequate proof of a
requester’s identity:
(i) A photocopy of two forms of
identification, including one form of
identification that bears the requester’s
photograph, and one form of
identification that bears the requester’s
signature;
(ii) A photocopy of a single form of
identification that bears both the
requester’s photograph and signature; or
(iii) A statement swearing or affirming
the requester’s identity and to the fact
that the requester understands the
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penalties provided in 5 U.S.C.
552a(i)(3).
(2) Notwithstanding paragraph (c)(1)
of this section, a designated official may
require additional proof of the
requester’s identity before action will be
taken on any request, if such official
determines that it is necessary to protect
against unauthorized disclosure of
information in a particular case. In
addition, if a requester seeks records
pertaining to an individual in the
requester’s capacity as that individual’s
guardian, the requester shall be required
to provide adequate proof of the
requester’s legal relationship before
action will be taken on any request.
(d) Request for accounting of previous
disclosures. An individual may request
an accounting of previous disclosures of
records pertaining to that individual in
a system of records as provided in 5
U.S.C. 552a(c). Such requests should
conform to the procedures and form for
requests for access to records set forth
in paragraphs (a) and (b) of this section.
§ 1070.54 CFPB procedures for
responding to a request for access.
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(a) Acknowledgment and response.
The CFPB will provide written
acknowledgement of the receipt of a
request within twenty (20) business
days from the receipt of the request and
will, where practicable, respond to each
request within that twenty (20) day
period. When a full response is not
practicable within the twenty (20) day
period, the CFPB will respond as
promptly as possible.
(b) Disclosure. (1) When the CFPB
discloses information in response to a
request, the CFPB will make the
information available for inspection and
copying during regular business hours
as provided in § 1070.13, or the CFPB
will mail it or email it to the requester,
if feasible, upon request.
(2) The requester may bring with him
or her anyone whom the requester
chooses to see the requested material.
All visitors to the CFPB’s buildings
must comply with the applicable
security procedures.
(c) Denial of a request. If the CFPB
denies a request made pursuant to
§ 1070.53, it will inform the requester in
writing of the reason(s) for denial and
the procedures for appealing the denial.
§ 1070.55
records.
Special procedures for medical
If an individual requests medical or
psychological records pursuant to
§ 1070.53, the CFPB will disclose them
directly to the requester unless the
CFPB determines that such disclosure
could have an adverse effect on the
requester. If the CFPB makes that
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determination, the CFPB shall provide
the information to a licensed physician
or other appropriate representative that
the requester designates, who shall
disclose those records to the requester
in a manner he or she deems
appropriate.
§ 1070.56
records.
Request for amendment of
(a) Procedures for making request. (1)
If an individual wishes to amend a
record that pertains to that individual in
a system of records, that individual may
submit a request in writing to the Chief
Privacy Officer, as set forth in
§ 1070.53(a). The request shall be
labeled ‘‘Privacy Act Amendment
Request.’’
(2) A request for amendment of a
record must:
(i) Identify the name of the system of
records that the requester believes
contains the record for which the
amendment is requested, or a
description of the nature of the record
in detail sufficient to enable CFPB
personnel to locate the system of
records containing the record with a
reasonable amount of effort;
(ii) Specify the portion of that record
requested to be amended; and
(iii) Describe the nature and reasons
for each requested amendment.
(3) When making a request for
amendment of a record, the CFPB will
require a requester to verify his or her
identity under the procedures set forth
in § 1070.53(c), unless the requester has
already done so in a related request for
access or amendment.
(b) Burden of proof. In a request for
amendment of a record, the requester
bears the burden of proving by a
preponderance of the evidence that the
record is not accurate, relevant, timely,
or complete.
§ 1070.57 CFPB review of a request for
amendment of records.
(a) Time limits. The CFPB will
acknowledge a request for amendment
of records within ten (10) business days
after it receives the request. In the
acknowledgment, the CFPB may request
additional information necessary for a
determination on the request for
amendment. The CFPB will make a
determination on a request to amend a
record promptly.
(b) Contents of response to a request
for amendment. When the CFPB
responds to a request for amendment,
the CFPB will inform the requester in
writing whether the request is granted
or denied, in whole or in part. If the
CFPB grants the request, it will take the
necessary steps to amend the record
and, when appropriate and possible,
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notify prior recipients of the record of
its action. If the CFPB denies the
request, in whole or in part, it will
inform the requester in writing:
(1) Why the request (or portion of the
request) was denied;
(2) That the requester has a right to
appeal; and
(3) How to file an appeal.
§ 1070.58 Appeal of adverse determination
of request for access or amendment.
(a) Appeal. A requester may appeal a
denial of a request made pursuant to
§ 1070.53 or § 1070.56 within ten (10)
business days after the CFPB notifies the
requester that it has denied the request.
(b) Content of appeal. A requester
may submit an appeal in writing as set
forth in § 1070.53(a). The appeal shall
be addressed to the General Counsel and
labeled ‘‘Privacy Act Appeal.’’ The
appeal must also:
(1) Specify the background of the
request; and
(2) Provide reasons why the requester
believes the denial is in error.
(c) Determination. The General
Counsel will make a determination as to
whether to grant or deny an appeal
within thirty (30) business days from
the date it is received, unless the
General Counsel extends the time for
good cause.
(1) If the General Counsel grants an
appeal regarding a request for
amendment, he or she will take the
necessary steps to amend the record
and, when appropriate and possible,
notify prior recipients of the record of
its action.
(2) If the General Counsel denies an
appeal, he or she will inform the
requester of such determination in
writing, including the reasons for the
denial, and the requester’s right to file
a statement of disagreement and to have
a court review its decision.
(d) Statement of disagreement. (1) If
the General Counsel denies an appeal
regarding a request for amendment, a
requester may file a concise statement of
disagreement with the denial. The CFPB
will maintain the requester’s statement
with the record that the requester sought
to amend and any disclosure of the
record will include a copy of the
requester’s statement of disagreement.
(2) When practicable and appropriate,
the CFPB will provide a copy of the
statement of disagreement to any prior
recipients of the record.
§ 1070.59
Restrictions on disclosure.
The CFPB will not disclose any record
about an individual contained in a
system of records to any person or
agency without the prior written
consent of that individual unless the
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disclosure is authorized by 5 U.S.C.
552a(b). Disclosures authorized by 5
U.S.C. 552a(b) include disclosures that
are compatible with one or more routine
uses that are contained within the
CFPB’s Systems of Records Notices,
which are available on the CFPB’s Web
site, at https://
www.consumerfinance.gov.
§ 1070.60
Exempt records.
(a) Exempt systems of records.
Pursuant to 5 U.S.C. 552a(k)(2), the
CFPB exempts the systems of records
listed below from 5 U.S.C. 552a(c)(3),
(d), (e)(1), (e)(4)(G)–(H), and (f), and
§§ 1070.53 through 1070.59, to the
extent that such systems of records
contain investigatory materials
compiled for law enforcement purposes,
provided, however, that if any
individual is denied any right, privilege,
or benefit to which he or she would
otherwise be entitled under Federal law,
or for which he or she would otherwise
be eligible as a result of the maintenance
of such material, such material shall be
disclosed to such individual, except to
the extent that the disclosure of such
material would reveal the identity of a
source who furnished information to the
CFPB under an express promise that the
identity of the source would be held in
confidence:
(1) CFPB.002 Depository Institution
Supervision Database.
(2) CFPB.003 Non-Depository
Institution Supervision Database.
(3) CFPB.004 Enforcement Database.
(4) CFPB.005 Consumer Response
System.
(b) Information compiled for civil
actions or proceedings. This subpart
does not permit an individual to have
access to any information compiled in
reasonable anticipation of a civil action
or proceeding.
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§ 1070.61 Training; rules of conduct;
penalties for non-compliance.
(a) Training. The Chief Privacy Officer
shall institute a training program to
instruct CFPB employees and contractor
personnel covered by 5 U.S.C. 552a(m),
who are involved in the design,
development, operation, or maintenance
of any CFPB system of records, on a
continuing basis with respect to the
duties and responsibilities imposed on
them and the rights conferred on
individuals by the Privacy Act, the
regulations in this subpart, and any
other related regulations. Such training
shall provide suitable emphasis on the
civil and criminal penalties imposed on
the CFPB and the individual employees
by the Privacy Act for non-compliance
with specified requirements of the Act
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Jkt 238001
as implemented by the regulations in
this subpart.
(b) Rules of conduct. The following
rules of conduct are applicable to
employees of the CFPB (including, to
the extent required by the contract or 5
U.S.C. 552a(m), Government contractors
and employees of such contractors),
who are involved in the design,
development, operation or maintenance
of any system of records, or in maintain
any records, for or on behalf of the
CFPB.
(1) The head of each office of the
CFPB shall be responsible for assuring
that employees subject to such official’s
supervision are advised of the
provisions of the Privacy Act, including
the criminal penalties and civil
liabilities provided therein, and the
regulations in this subpart, and that
such employees are made aware of their
individual and collective
responsibilities to protect the security of
personal information, to assure its
accuracy, relevance, timeliness and
completeness, to avoid unauthorized
disclosure either orally or in writing,
and to ensure that no system of records
is maintained without public notice.
(2) Employees of the CFPB involved
in the design, development, operation,
or maintenance of any system of
records, or in maintaining any record
shall:
(i) Collect no information of a
personal nature from individuals unless
authorized to collect it to achieve a
function or carry out a responsibility of
the CFPB;
(ii) Collect information, to the extent
practicable, directly from the individual
to whom it relates;
(iii) Inform each individual asked to
supply information, on the form used to
collect the information or on a separate
form that can be retained by the
individual of—
(A) The authority (whether granted by
statute, or by executive order of the
President) which authorizes the
solicitation of the information and
whether disclosure of such information
is mandatory or voluntary;
(B) The principal purpose or purposes
for which the information is intended to
be used;
(C) The routine uses which may be
made of the information, as published
pursuant to 5 U.S.C. 552a(e)(4)(D); and
(D) The effects on the individual, if
any, of not providing all or any part of
the requested information.
(iv) Not collect, maintain, use or
disseminate information concerning an
individual’s religious or political beliefs
or activities or membership in
associations or organizations, unless
expressly authorized by statute or by the
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58339
individual about whom the record is
maintained or unless pertinent to and
within the scope of an authorized law
enforcement activity;
(v) Advise their supervisors of the
existence or contemplated development
of any record system which is capable
of retrieving information about
individuals by individual identifier;
(vi) Assure that no records maintained
in a CFPB system of records are
disseminated without the permission of
the individual about whom the record
pertains, except when authorized by 5
U.S.C. 552a(b);
(vii) Maintain and process
information concerning individuals
with care in order to ensure that no
inadvertent disclosure of the
information is made either within or
without the CFPB;
(viii) Prior to disseminating any
record about an individual to any
person other than an agency, unless the
dissemination is made pursuant to 5
U.S.C. 552a(b)(2) of this section, make
reasonable efforts to assure that such
records are accurate, complete, timely,
and relevant for agency purposes; and
(ix) Assure that an accounting is kept
in the prescribed form, of all
dissemination of personal information
outside the CFPB, whether made orally
or in writing, unless disclosed under 5
U.S.C. 552 or subpart B of this part.
(3) The head of each office of the
CFPB shall, at least annually, review the
record systems subject to their
supervision to ensure compliance with
the provisions of the Privacy Act of
1974 and the regulations in this subpart.
§ 1070.62
Preservation of records.
The CFPB will preserve all
correspondence pertaining to the
requests that it receives under this part,
as well as copies of all requested
records, until disposition or destruction
is authorized by title 44 of the United
States Code or the National Archives
and Records Administration’s General
Records Schedule 14. Records will not
be disposed of or destroyed while they
are the subject of a pending request,
appeal, proceeding, or lawsuit.
§ 1070.63 Use and collection of Social
Security numbers.
The CFPB will ensure that employees
authorized to collect information are
aware:
(a) That individuals may not be
denied any right, benefit, or privilege as
a result of refusing to provide their
Social Security numbers, unless the
collection is authorized either by a
statute or by a regulation issued prior to
1975; and
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(b) That individuals requested to
provide their Social Security numbers
must be informed of:
(1) Whether providing Social Security
numbers is mandatory or voluntary;
(2) Any statutory or regulatory
authority that authorizes the collection
of Social Security numbers; and
(3) The uses that will be made of the
numbers.
PART 1091—PROCEDURAL RULE TO
ESTABLISH SUPERVISORY
AUTHORITY OVER CERTAIN
NONBANK COVERED PERSONS
BASED ON RISK DETERMINATION
2. The authority citation for part 1091
continues to read as follows:
■
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Authority: 12 U.S.C. 5512(b)(1),
5514(a)(1)(C), 5514(b)(7).
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Subpart B—Determination and
Voluntary Consent Procedures
Subpart D—Time Limits and Deadlines
4. Section 1091.115 is amended by
revising paragraph (c) to read as follows:
■
3. Section 1091.103 is amended by
revising paragraph (a)(2)(vii) to read as
follows:
§ 1091.115 Change of time limits and
confidentiality of proceedings.
§ 1091.103
*
■
Contents of notice.
*
*
*
*
*
(a) * * *
(2) * * *
(vii) In connection with a proceeding
under this part, including a petition for
termination under § 1091.113, all
documents, records or other items
submitted by a respondent to the
Bureau, all documents prepared by, or
on behalf of, or for the use of the
Bureau, and any communications
between the Bureau and a person, shall
be deemed confidential supervisory
information under 12 CFR 1070.2(j).
*
*
*
*
*
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*
*
*
*
(c) In connection with a proceeding
under this part, including a petition for
termination under § 1091.113, all
documents, records or other items
submitted by a respondent to the
Bureau, all documents prepared by, or
on behalf of, or for the use of the
Bureau, and any communications
between the Bureau and a person, shall
be deemed confidential supervisory
information under 12 CFR 1070.2(j).
Dated: July 13, 2016.
Richard Cordray,
Director, Bureau of Consumer Financial
Protection.
[FR Doc. 2016–19594 Filed 8–23–16; 8:45 am]
BILLING CODE 4810–AM–P
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Agencies
[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Proposed Rules]
[Pages 58309-58340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19594]
[[Page 58309]]
Vol. 81
Wednesday,
No. 164
August 24, 2016
Part V
Bureau of Consumer Financial Protection
-----------------------------------------------------------------------
12 CFR Parts 1070 and 1091
Amendments Relating to Disclosure of Records and Information; Proposed
Rule
Federal Register / Vol. 81 , No. 164 / Wednesday, August 24, 2016 /
Proposed Rules
[[Page 58310]]
-----------------------------------------------------------------------
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Parts 1070 and 1091
[Docket No. CFPB-2016-0039]
RIN 3170-AA63
Amendments Relating to Disclosure of Records and Information
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Proposed rule with request for public comment.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Consumer Financial Protection (Bureau) proposes
amendments to the procedures used by the public to obtain information
from the Bureau under the Freedom of Information Act, the Privacy Act
of 1974, and in legal proceedings. The Bureau also proposes amendments
to its rule regarding the confidential treatment of information
obtained from persons in connection with the exercise of its
authorities under Federal consumer financial law.
DATES: Comments must be received on or before October 24, 2016.
ADDRESSES: You may submit comments, identified by Docket No. CFPB-2016-
0039 or RIN 3170-AA63, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
Email: FederalRegisterComments@cfpb.gov. Include Docket
No. CFPB-2016-0039 and/or RIN 3170-AA63 in the subject line of the
email.
Mail: Monica Jackson, Office of the Executive Secretary,
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC
20552.
Hand Delivery/Courier: Monica Jackson, Office of the
Executive Secretary, Consumer Financial Protection Bureau, 1275 First
Street NE., Washington, DC 20002.
Instructions: All submissions should include the agency
name and docket number or Regulatory Information Number (RIN) for this
rulemaking. Because paper mail in the Washington, DC area and at the
Bureau is subject to delay, commenters are encouraged to submit
comments electronically. 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 1275
First Street NE., Washington, DC 20002, 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 generally will not
be edited to remove any identifying or contact information.
FOR FURTHER INFORMATION CONTACT: David Snyder, Senior Counsel, Legal
Division, 202-435-7758.
SUPPLEMENTARY INFORMATION:
I. Background
On July 21, 2010, the President signed into law the Dodd-Frank Wall
Street Reform and Consumer Protection Act (Pub. L. 111-203, codified at
12 U.S.C. 5301 et seq.) (Dodd-Frank Act). Title X of the Dodd-Frank Act
created the Bureau. Pursuant to the provisions of the Dodd-Frank Act,
the Bureau began to exercise its authority to regulate the offering and
provision of consumer financial products and services under Federal
consumer financial law on July 21, 2011.\1\
---------------------------------------------------------------------------
\1\ Pursuant to section 1062 of the Dodd-Frank Act, 12 U.S.C.
5582, the Secretary of the Treasury designated July 21, 2011 as the
``transfer date'' on which various provisions of Title X of the
Dodd-Frank Act became effective. 75 FR 57252.
---------------------------------------------------------------------------
In order to establish safeguards for protecting the confidentiality
of information, as well as procedures for disclosing information as
appropriate, the Bureau published an interim final rule on July 28,
2011, 76 FR 45371 (Jul. 28, 2011), followed by a final rule on February
15, 2013, 78 FR 11483 (Feb. 15, 2013). The Bureau now proposes to amend
the rule to clarify, correct, and amend certain provisions based on its
experience over the last several years. The Bureau solicits comments on
all aspects of its proposal.
II. Summary of the Proposed Rule
The Bureau proposes revising all five subparts of part 1070. It
seeks comment on all aspects of its proposed rule.
Subpart A of the rule consists largely of definitions of terms that
are used throughout the remainder of the part. The Bureau proposes
revising several of these definitions to clarify their intended
meanings as well as Bureau practices.
Subpart B of the rule implements the Freedom of Information Act, 5
U.S.C. 552 (the FOIA). The Bureau proposes revising this subpart to
clarify its practices, provide additional flexibility for requesters,
and reflect recent changes made to the FOIA by the FOIA Improvement Act
of 2016 (Pub. L. 114-185). Additionally, these changes streamline the
Bureau's process for assessing FOIA fees and notifying requesters of
such fees. These changes will allow the Bureau to process FOIA requests
more efficiently and provide records to requesters more quickly.
Subpart C of the rule (sometimes referred to as Touhy regulations)
sets forth procedures for requests for information from the Bureau in
connection with legal proceedings between others, and describes the
Bureau's procedures for considering such requests or demands for
official information. The Bureau proposes organizational and clarifying
revisions to the provisions currently set forth in this subpart.
Subpart D of the rule pertains to the protection and disclosure of
confidential information that the Bureau generates and receives during
the course of its work. Various provisions of the Dodd-Frank Act
require the Bureau to promulgate regulations providing for the
confidentiality of certain types of information and protecting such
information from public disclosure. The Bureau has sought to provide
the maximum protection for confidential information, while ensuring its
ability to share or disclose information to the extent necessary to
achieve its mission. The Bureau has included detailed procedures in its
rule in order to promote transparency regarding its practices and
anticipated uses of confidential information.
The Bureau has sought to balance concerns regarding the need to
protect confidential information, including sensitive personal
information, business information, and confidential supervisory
information, against the need to use and disclose certain information
in the course of its work or, as appropriate, the work of other
agencies with overlapping statutory or regulatory authority. The Bureau
proposes amending subpart D to clarify, correct, and amend certain
aspects of the rule based on its experience over the last several
years.
In addition, in amending this subpart, the Bureau intends to codify
its revised interpretation of 12 U.S.C. 5512(c)(6). The Bureau has
previously interpreted 12 U.S.C. 5512(c)(6)(C)(ii), which discusses
discretionary disclosure of confidential supervisory information to
certain agencies with ``jurisdiction,'' to set forth a positive grant
of authority that limits the Bureau's discretion to disclose
confidential supervisory information under the rules authorized by 12
U.S.C. 5512(c)(6)(A). The Bureau now believes that the better
interpretation of 12 U.S.C.
[[Page 58311]]
5512(c)(6)(C)(ii), when read in context with 12 U.S.C. 5512(c)(6)(B)
and 12 U.S.C. 5512(c)(6)(C)(i), is that it establishes part of an
information-sharing regime with a limited set of other agencies. Aside
from mandatory disclosure requirements in 12 U.S.C. 5512(c)(6)(C)(i),
the regime does not limit the Bureau's discretion to draft rules
related to the disclosure of confidential supervisory information. The
Bureau proposes accounting for its revised interpretation in 12 CFR
1070.43(b)(1), which addresses the Bureau's discretionary disclosure of
confidential information to other agencies. The Bureau's revised
interpretation and proposed revision to Sec. 1070.43 do not alter the
Bureau's policy on disclosing confidential supervisory information to
law enforcement agencies, as previously articulated in CFPB Bulletin
12-01 (Jan. 4, 2012).
Subpart E contains the Bureau's rule implementing the Privacy Act
of 1974, 5 U.S.C. 552a. The Bureau proposes revising the subpart to
clarify the Chief Privacy Officer's authority, to provide additional
flexibility for requestors, and to make technical corrections.
III. Legal Authority
The Bureau is proposing this rule pursuant to its authority under
the following statutory provisions: (1) Title X of the Dodd-Frank Act,
12 U.S.C. 5481 et seq., including (a) Section 1022(b)(1), 12 U.S.C.
5512(b)(1), which allows the Bureau to ``prescribe rules . . . as may
be necessary and appropriate to enable the Bureau to administer and
carry out the purposes and objectives of the Federal consumer financial
laws''; (b) Section 1022(c)(6)(A), 12 U.S.C. 5512(c)(6)(A), which
states that the Bureau ``shall prescribe rules regarding the
confidential treatment of information obtained from persons in
connection with the exercise of its authorities under Federal consumer
financial law''; and (c) Section 1052(d), 12 U.S.C. 5562(d), which
instructs that ``[d]ocumentary materials and tangible things received
as a result of a civil investigative demand shall be subject to
requirements and procedures regarding confidentiality, in accordance
with rules established by the Bureau,'' and addresses the disclosure of
confidential information to Congress; (2) the Freedom of Information
Act, 5 U.S.C. 552, which grants the public an enforceable right to
obtain access to or copies of federal agency records unless disclosure
of those records, or information contained within them, is exempt from
disclosure due to one or more statutory exemptions and exclusions; (3)
the Privacy Act of 1974, 5 U.S.C. 552a, which provides individuals with
certain privacy protections related to federal agencies' collection,
maintenance, use, and disclosure of information about them; (4) the
Right to Financial Privacy Act, 12 U.S.C. 3401 et seq., which provides
individuals with certain privacy protections related to the disclosure
of financial records by financial institutions to federal agencies; (5)
the Trade Secrets Act, 18 U.S.C. 1905, which provides certain
protections related to proprietary information disclosed to federal
agencies; (6) 18 U.S.C. 641, which prohibits the embezzlement, theft,
purloining, knowing conversion, or unauthorized sale, conveyance, or
disposal of a federal agency's record, voucher, money, or thing of
value; (7) the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., which
generally addresses information collections by federal agencies; and
(8) the Federal Records Act, 44 U.S.C. 3101, which addresses the
creation, maintenance, use, and disposition of federal records by
federal agencies;
IV. Section-by-Section Analysis of the Proposed Rule
Part 1070--Disclosure of Records and Information
Subpart A--General Provisions and Definitions
Section 1070.2 General Definitions
Section 1070.2(a) Agency
The Bureau proposes adding a new definition, ``agency,'' which it
will define to include ``a Federal, State, or foreign governmental
authority or an entity exercising governmental authority.'' As
currently drafted, Sec. 1070.43 provides the Bureau with discretion to
share confidential information with Federal or State agencies in
certain circumstances. The proposed definition, combined with proposed
revisions to Sec. Sec. 1070.43 and 1070.45, will clarify the Bureau's
ability to share confidential information with foreign regulators and
certain entities that exercise governmental authority, such as
registration and disciplinary organizations like state bar
associations, and the procedures that should be used to do so. The
Bureau may at times collaborate with such entities in the course of
carrying out its authorities under Federal consumer financial laws.
Proposed revisions to Sec. 1070.47 would expand protections for
confidential information disclosed under subpart D to include
information shared with these additional entities. The Bureau proposes
additional technical corrections throughout the rule to account for use
of this new term.\2\
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\2\ The Bureau also proposes renumbering the definitions in
Sec. 1070.2 to account for the addition and subtraction of various
definitions.
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Section 1070.2(b) Associate Director for Supervision, Enforcement and
Fair Lending
The Bureau proposes adding a new definition for ``Associate
Director for Supervision, Enforcement and Fair Lending'' in order to
clarify the meaning of a term used in the current rule, as well as
several times in the proposed revisions to the rule.
Section 1070.2(e) Civil Investigative Demand Material
Section 1070.2(e) defines the term ``civil investigative demand
material.'' For purposes of clarity and efficiency, the Bureau proposes
incorporating this definition into the definition of ``confidential
investigative information'' in Sec. 1070.2(j). Because the term
``civil investigative demand material'' only arises in the rule in
Sec. 1070.2(j), the separate definition is unnecessary.
Section 1070.2(g) Confidential Information
Section 1070.2(g) defines the term ``confidential information.''
Confidential information refers to three defined categories of non-
public information--confidential consumer complaint information,
confidential investigative information, and confidential supervisory
information--as well as other Bureau information that is exempt from
disclosure pursuant to one or more of the statutory exemptions to the
FOIA.
Confidential information does not include information contained in
records that have been made publicly available or otherwise publicly
disclosed by the Bureau. The Bureau proposes revising the definition to
clarify that such appropriate disclosures may be made by either Bureau
employees or other authorized agents of the Bureau. An unauthorized
disclosure of information would not affect the information's
confidentiality.
In addition, the Bureau proposes revising the definition to clarify
that confidential information disclosed to a third party in accordance
with subpart D shall remain the Bureau's confidential information.
Section 1070.2(h) Confidential Consumer Complaint Information
Section 1070.2(h) defines the term ``confidential consumer
complaint information.'' The Bureau proposes expanding the definition
to include any
[[Page 58312]]
information received or generated by the Bureau through processes or
procedures established under 12 U.S.C. 5493(b)(3). The Bureau has found
that its Consumer Response system at times receives misdirected
complaints for which it lacks authority to act, or complaints filed by
companies rather than consumers. This revision will clarify that any
complaints submitted to the Bureau through its Consumer Response
system, and any information generated therein, are similarly classified
under its confidentiality rules and subject to the same confidentiality
protections. The revision does not alter the current text which limits
confidential consumer complaint information to only include information
that is exempt from disclosure pursuant to 5 U.S.C. 552(b).
Section 1070.2(i) Confidential Investigative Information
Section 1070.2(i) defines the term ``confidential investigative
information.'' As discussed above with respect to Sec. 1070.2(e), the
Bureau proposes incorporating the definition of ``civil investigative
demand material'' into Sec. 1070.2(i). In addition, we propose
revising the term to clarify that confidential investigative
information includes any information obtained or generated in the
course of Bureau enforcement activities, including general
investigative activities that may not pertain to a specific
institution. The Bureau also proposes replacing Sec. 1070.2(i)(2)'s
reference to ``materials'' with ``documents, materials, or records'' in
order to parallel similar language in the definition of ``confidential
supervisory information'' at Sec. 1070.2(j)(2).
Section 1070.2(j) Confidential Supervisory Information
Section 1070.2(j) defines the term ``confidential supervisory
information.'' The Bureau proposes revising Sec. 1070.2(j)(1)(i) to
clarify that the term includes supervisory letters and similar
documents. Since adopting the current definition of ``confidential
supervisory information,'' the Bureau has refined the formats it uses
for summarizing and memorializing the results of an examination or
other supervisory review of a supervised financial institution. The
Bureau currently issues different types of documents, including
examination reports and supervisory letters, to convey the results of
its examinations and other supervisory reviews. These documents are the
property of the Bureau and are provided to the supervised financial
institution for its confidential use only.
In addition, the Bureau proposes revising Sec. 1070.2(j)(1)(ii) to
state that, in addition to ``documents'' prepared by, or on behalf of,
or for the use of the Bureau or any other Federal, State, or foreign
government agency in the exercise of its supervisory authority over a
financial institution, confidential supervisory information also
includes ``materials[] or records'' prepared by, or on behalf of, or
for the use of the Bureau or any other Federal, State, or foreign
government agency in the exercise of its supervisory authority over a
financial institution. This revision is intended to clarify that any
such physical materials can include confidential supervisory
information, regardless of the format. Likewise, the Bureau proposes
revising the definition to include information derived from such
``materials[] or records.'' We note that information ``derived'' from
such documents, materials, or records could include either physical
materials (such as other documents, materials, or records) or
information known to individuals (such as oral testimony or interviews
based on knowledge gleaned from the documents, materials, or records).
In addition, the Bureau proposes revising Sec. 1070.2(j)(1)(iv) to
delete the reference to information collected using the Bureau's
authority to monitor for risks to consumers in the offering or
provision of consumer financial products or services under 12 U.S.C.
5512(c)(4) (sometimes referred to as the Bureau's ``market monitoring''
authority). The Bureau believes that it is not necessary to classify
such information as ``confidential supervisory information'' if it is
not used for supervisory purposes. In accordance with the definition of
``confidential information'' in Sec. 1070.2(g), market monitoring
information will continue to be classified and protected as
``confidential information'' to the extent that it is exempt from
disclosure pursuant to one or more of the statutory exemptions to the
FOIA. For example, market monitoring information that contains
confidential business information or personal information would
generally be classified as confidential information because that
information generally is exempt from disclosure under the FOIA
exemptions (b)(4) or (b)(6), respectively. See 5 U.S.C. 552(b)(4) &
(6). Such information would be subject to the same protections
currently accorded to it, including the limitations on public
disclosure and disclosures to other regulators.
In contrast, information collected for market monitoring purposes
that is already publicly available generally would not be classified as
confidential information because such information generally would not
be exempt from disclosure under the FOIA. Under the proposed revision,
the Bureau would have more flexibility to use and disclose less-
sensitive, non-confidential information as appropriate.
The Bureau proposes replacing the ``market monitoring'' reference
in Sec. 1070.2(j)(1)(iv) with new language stating that confidential
supervisory information includes information obtained by the Bureau
``for purposes of detecting and assessing risks to consumers and to
markets for consumer financial products or services pursuant to 12
U.S.C. 5514(b)(1)(C), 5515(b)(1)(C), and 5516(b).'' The purpose of this
revision is to clarify that confidential supervisory information
continues to include information obtained by the Bureau under its
supervisory authorities at 12 U.S.C. 5514(b)(1)(C), 5515(b)(1)(C), and
5516(b). The Bureau has previously interpreted Sec. 1070.2(j)(1)(iv)
to address information obtained using these authorities as well as
information obtained using its market monitoring authority. The
revision is intended to retain the former, but exclude the latter.
Finally, the Bureau proposes deleting Sec. 1070.2(i)(2), which
currently states that confidential information does not include
documents prepared by a supervised financial institution for its own
business purposes and that the Bureau does not possess. This provision
was intended to prevent any implication that a supervised financial
institution's copies of internal documents would be deemed to be
confidential supervisory information on the grounds that those
documents had been submitted to the Bureau in the course of a Bureau
supervisory process. However, the Bureau believes that this
interpretation already follows from the other provisions of the rule,
including the definition of ``confidential supervisory information,''
and therefore this exception is unnecessary. Should a supervised
financial institution submit copies of such documents to the Bureau in
the course of a Bureau supervisory process, the copies of the documents
in the Bureau's possession would be Bureau confidential supervisory
information. However, submission of those documents to the Bureau does
not convert the copies of those documents that are in the possession of
the financial institution into Bureau confidential information. The
Bureau proposes renumbering Sec. 1070.2(j) in light of this revision.
[[Page 58313]]
Section 1070.2(l) Employee
Section 1070.2(l) defines the term ``employee''. The Bureau
proposes revising the definition to clarify that, for purposes of this
rule, Bureau ``employees'' include certain contract personnel and
employees of the Bureau's Inspector General.
Section 1070.3 Custodian of Records; Certification; Alternative
Authority
Section 1070.3(b) Certification of Record
Section 1070.3(b) authorizes the Bureau's Chief Operating Officer
to certify the authenticity of any Bureau record or any copy of such
record. The Bureau proposes revising the rule to clarify that the Chief
Operating Officer can also certify the absence of a record. Such
certification is contemplated in Rule 44 of the Federal Rules of Civil
Procedure and Rule 902 of the Federal Rules of Evidence. See also
Federal Rule of Evidence 803(10).
Section 1070.5 Service of Summonses and Complaints
Currently, Sec. 1070.31 provides the process for serving the
Bureau with summonses or complaints. The Bureau proposes moving the
provision to a new section in subpart A for clarity in order to
separate the rule governing service when the Bureau is a party from the
remaining provisions in subpart C, which deal with requests for
information for other proceedings. In addition, the Bureau proposes
revising paragraph (d)'s requirement that documents be ``stamped''
``Service Accepted for Official Capacity Only'' by replacing the word
``stamped'' with the word ``marked.'' This proposal would clarify that
the documents may be labeled using a variety of methods.
Subpart B--Freedom of Information Act
Section 1070.11 Information Made Available; Discretionary Disclosures
Section 1070.11(a) In General
Section 1070.11(a)(2)
The Bureau proposes to remove the phrase ``and copying'' and
replace it with ``in an electronic format.'' The Bureau proposes
similar revisions to section 1070.13. These changes are required by the
FOIA Improvement Act of 2016.
Section 1070.14 Requests for CFPB Records
Section 1070.14(b) Form of Request
Section 1070.14(b) specifies the form of FOIA requests. The current
text distinguishes between requests made in writing and by electronic
means. The Bureau proposes a technical change to this provision. It
proposes to remove the phrase ``or by electronic means'' and add ``as
follows:'' in its place. The Bureau also proposes changes to sections
1070.14(b)(1) and (2) to clarify how requesters must submit FOIA
requests to the Bureau. The Bureau proposes similar changes to the
following sections: 1070.17(b)(1); 1070.21(c); and 1070.22(e)(1)(i).
Section 1070.14(c) Content of Request
Section 1070.14(c)(4)
Section 1070.14(c)(4) provides that a FOIA requester should
indicate in the request whether the requester is a commercial user, an
educational institution, non-commercial scientific institution,
representative of the news media, governmental entity, or ``other''
requester, as those terms are defined in Sec. 1070.22(b). The section
also informs requesters that they may contact the Bureau's FOIA Public
Liaison to seek assistance in determining the appropriate fee category.
The current language only permits the Bureau to use information
provided to the FOIA Public Liaison by a requester for the purpose of
determining the requester's fee category. The Bureau proposes to remove
this limitation so that it can use this information for other purposes,
such as aiding a requester in clarifying the scope of a request,
assisting in identifying records sought by a requester, and helping to
resolve disputes related to a request.
Section 1070.14(c)(5)
Section 1070.14(c)(5) provides that if a requester seeks a waiver
or reduction of fees associated with processing a request, then the
request shall include a statement to that effect. The current language
also includes a statement that any request that does not seek a waiver
or reduction of fees constitutes an agreement of the requester to pay
all fees up to $25. The Bureau proposes to remove this language in
light of other proposed fee related revisions. Under the Bureau's
proposed revisions to Sec. 1070.22(d) and (f), FOIA requesters may
still specify an upper limit on the fees that they are willing to pay
to process a request and the Bureau will notify a requester of any
potential fees beyond that limit before processing the request.
Section 1070.18 Responses To Requests for CFPB Records
Section 1070.18(a) Acknowledgement of Requests
Section 1070.18(a)(4)
Section 1070.18(a)(4) specifies what fee related information the
Bureau will include in acknowledgement letters it sends to requesters.
The Bureau proposes to make a technical change to this provision,
removing the phrase ``(of not less than $25)'' to account for the
proposed revisions to fee-related provisions in Sec. 1070.22(d) and
(f).
Section 1070.18(b) Initial Determination To Grant or Deny a Request
Section 1070.18(b)(4)
The Bureau proposes to add a new provision at section
1070.18(b)(4)(iv) requiring it to inform requesters of the right to
seek dispute resolution services from the Bureau's FOIA Public Liaison
or the Office of Government Information Services. The Bureau also
proposes to renumber the existing provisions under section
1070.18(b)(4) to accommodate this change. This change is required by
the FOIA Improvement Act of 2016.
Section 1070.18(c) Resolution of Disputes
The Bureau proposes a new paragraph to inform requesters about the
resources available to resolve any disputes that may arise during the
request process. These resources are the Bureau's FOIA Public Liaison
and mediation services provided by the National Archives and Records
Administration (NARA), Office of Government Information Services
(OGIS).
Section 1070.18(d) Format of Records Disclosed
The Bureau proposes a new paragraph to inform requesters that they
may request records in a particular format. The Bureau will provide
records in a requested format when the requested format can readily be
reproduced from the original file.
Section 1070.20 Requests for Business Information Provided to the CFPB
Section 1070.20(f) Opportunity To Object to Disclosure
Section 1070.20(f) provides a submitter of business information
with ten business days to object to the Bureau's disclosure of the
submitter's business information. The Bureau proposes to make two
technical changes to this provision clarifying that the Bureau will
delay any release of
[[Page 58314]]
information to afford the submitter ten business days to object to the
disclosure.
Section 1070.21 Administrative Appeals
Section 1070.21(b) Time Limits for Filing Administrative Appeals
Section 1070.21(b) provides the time limits for filing
administrative appeals. The Bureau proposes to revise this provision to
clarify that the time period for filing an appeal begins on the day
after the date the initial determination is sent to the requester or
the date of the letter transmitting the last records released,
whichever is later. The Bureau also proposes to change the time limit
for filing an administrative appeal from 45 days to 90 days. This
change is required by the FOIA Improvement Act of 2016.
Section 1070.21(d) Processing of Administrative Appeals
Section 1070.21(d) specifies how the Bureau will process
administrative appeals. The Bureau proposes to remove the requirement
that appeals be stamped with the date of their receipt by the FOIA
Office. The FOIA Office does not stamp an appeal with the date the
Bureau received it, but the date is recorded in Bureau's system for
tracking FOIA requests. This requirement is outmoded and the Bureau
proposes to remove it to account for its current practice.
Section 1070.21(d) also currently provides that appeals will be
processed in the order in which they are received. Since adopting this
provision in 2011, the Bureau has found that it is not always
practicable to complete action on appeals in the order in which they
are received, and sometimes has chosen to act on a simple later-
received appeal rather than delay action pending completion of a more
complex earlier-received appeal. In order to better align the
regulation with current practice, the Bureau is proposing to delete the
provision calling for first-in-first-out processing of appeals.
Section 1070.21(e) Determinations To Grant or Deny Administrative
Appeals
Section 1070.21(e) authorizes the General Counsel to decide
administrative appeals, and Sec. 1070.21(e)(3) currently allows for
remand of a FOIA determination as one option for the General Counsel's
disposition of an appeal. The Bureau proposes to amend the first
sentence of Sec. 1070.21(e) to add a reference to remands so that all
options for disposition of appeals are listed in that sentence.
Section 1070.22 Fees for Processing Requests for CFPB Records
Section 1070.22(b) Categories of Requesters
Section 1070.22(b)(1)
Section 1070.22(b)(1)(i) defines the ``Commercial user'' category
of requester. The Bureau proposes to amend this provision to clarify
that the Bureau's decision to place a requester in the commercial user
category will be made on a case-by-case basis based on how the
requester will use the information. The Bureau proposes this change to
clarify how it will make decisions whether to place a requester in the
commercial user category.
Section 1070.22(b)(2)
Section 1070.22(b)(2) provides that the Bureau will notify a
requester of its determination as to the proper fee category to apply
to the requester. The current language of the provision provides that
the Bureau will make its determination based on a review of the
requester's submission and the Bureau's own records. The Bureau
proposes to delete this limitation to clarify that it may base its
determination on other appropriate information, including phone
conversations with the requester and publicly available information.
Section 1070.22(d) Other Circumstances When Fees Are Not Charged
Section 1070.22(d)(2)
The Bureau proposes to insert a new paragraph at Sec.
1070.22(d)(2); existing paragraphs in Sec. 1070.22(d) will be
renumbered to accommodate the new paragraph. Section 1070.22(d)
provides certain circumstances where the Bureau may not charge a
requester a fee for processing a FOIA request. The proposed new
paragraph would provide that the Bureau will not charge a requester any
fees when the fee, excluding duplication costs, is less than $250. The
Bureau proposes this change as part of its larger goal of revising the
process for how it assesses FOIA processing fees and how the Bureau
notifies requesters of such fees. This new provision would streamline
the Bureau's process for assessing FOIA fees. This change would allow
the Bureau to process FOIA requests more quickly and efficiently
because the Bureau will no longer need to contact a FOIA requester
concerning processing fees when the cost to process the request is less
than $250. As such, this provision would provide information to these
requesters more quickly and at a reduced cost to the requesters.
Section 1070.22(d)(4)
The Bureau proposes to revise this provision to prohibit it from
charging search fees, or in certain cases duplication fees, when the
Bureau has failed to comply with time limits under Sec. 1070.15 or
Sec. 1070.21, unless (1) unusual circumstances apply to the processing
of the request; (2) the Bureau has provided timely written notice of
the unusual circumstances to the requester; (3) more than 5,000 pages
are necessary to respond to the request; and (4) the Bureau has
discussed with the requester (or made three good-faith attempts to do
so) how the requester could effectively limit the scope of the request.
These changes are required by the FOIA Improvement Act of 2016.
Section 1070.22(e) Waiver or Reduction of Fees
Section 1070.22(e)(5)
Section 1070.22(e)(5) provides that the Bureau will decide whether
to grant or deny a request to reduce or waive fees prior to processing
the FOIA request and that the Bureau will notify the requester of such
a determination in writing. The Bureau proposes to delete this
requirement because it is unnecessary in light of other proposed fee
related revisions. In many cases involving requests for fee waivers,
the Bureau will be able to process the FOIA request without deciding
the merits of the fee waiver request because the processing fees will
be less than $250. Furthermore, removing this requirement will allow
the Bureau to process FOIA requests more efficiently and provide
information to requesters more quickly. Under the Bureau's proposed
revisions, the Bureau will notify a requester when it has denied a fee
waiver request and processing the request would incur fees.
Section 1070.22(e)(6)
Section 1070.22(e)(6) specifies what information the Bureau will
include in the letter it sends notifying the requester that the Bureau
has denied a request for a waiver or reduction of fees. The Bureau
proposes to make a technical change to this provision, removing the
phrase ``(of not less than $25)'' to account for other newly proposed
fee related provisions.
Section 1070.22(f) Advance Notice and Prepayment of Fees
Section 1070.22(f) describes the Bureau's process for notifying a
requester of any processing fees associated with a FOIA request. The
Bureau proposes several changes to this provision to clarify and
streamline its process for assessing FOIA processing
[[Page 58315]]
fees and for notifying requesters of such fees. First, the Bureau
proposes to revise Sec. 1070.22(f)(1) to provide that the Bureau will
notify a requester of the estimated fees to process a FOIA request when
the estimated fees are $250 or more and the estimated fees exceed the
limit set by the requester, the requester has not specified a limit, or
the Bureau has denied a request for a reduction or waiver of fees.
Next, the Bureau proposes to revise Sec. 1070.22(f)(2) to raise the
fee threshold above which a requester must pre-pay estimated processing
fees from $250 to $1000. This change is necessary because of the
Bureau's proposed change to Sec. 1070.22(d): The Bureau proposes
raising its current pre-payment threshold of $250 because it will no
longer charge fees for processing a request when the fees are $250 or
less. The Bureau's proposed revisions to Sec. 1070.22(f) will require
a requester to agree to pay processing fees before the Bureau begins
processing the request. The Bureau believes that such an agreement will
provide sufficient assurance of payment for fees less than $1000. This
change is in accordance with the Bureau's current practice for
requiring pre-payment of fees. Furthermore, this change will allow the
Bureau to process FOIA requests more efficiently and provide records to
requesters more quickly.
Section 1070.23 Authority and Responsibilities of the Chief FOIA
Officer
Section 1070.22(a) Chief FOIA Officer
Paragraph 1070.22(a) discusses the role of the Bureau's Chief FOIA
Officer. The Bureau proposes insert two new subparagraphs to this
paragraph. The first concerns the Chief FOIA Officer's responsibility
to offer training to Bureau staff regarding their responsibilities
under the FOIA and the second concerns the Chief FOIA Officer's role as
the primary Bureau liaison with the Office of Government Information
Services and the Department of Justice's Office of Information Policy.
The Bureau also proposes to renumber the provisions in this section to
accommodate these changes. These changes are required by the FOIA
Improvement Act of 2016.
Subpart C--Disclosure of CFPB Information in Connection With Legal
Proceedings
Subpart C addresses the disclosure of Bureau information in
connection with legal proceedings. The Bureau proposes several
technical corrections throughout the subpart.
Section 1070.30 Purpose and Scope; Definitions
Section 1070.30(a)
Section 1070.30(a) defines the circumstances for which the
procedures outlined in subpart C apply. The Bureau proposes to delete
paragraph (a)(1) from this provision and to renumber the section
accordingly. The Bureau proposes this revision as a technical change to
account for moving Sec. 1070.31 to subpart A.
Section 1070.30(e)
Section 1070.30(e)(2)
Section 1070.30(e)(2) defines the term ``legal proceeding'' for
subpart C. The Bureau proposes to add the phrase ``their agents'' to
the last sentence of this provision to clarify that this definition
applies to formal and informal requests made by both attorneys and
their agents.
Section 1070.31 Service of Summonses and Complaints
Section 1070.31 provides the process for serving the Bureau with
summonses or complaints. As discussed above, the Bureau proposes to
delete Sec. 1070.31 from subpart C and move it to a new section in
subpart A, Sec. 1070.5. The Bureau also proposes to renumber sections
and cross-references in subpart C to account for this change. For
additional information, see the discussion of Sec. 1070.5.
Section 1070.31 Service of Subpoenas, Court Orders, and Other Demands
for CFPB Information or Action
Section 1070.31(d)
Section 1070.31(d) provides that the Bureau is not authorized to
accept on behalf of its employees any subpoenas, orders, or other
demands or requests, which are not related to the employees' official
duties. In addition, the current text of the provision implies that it
is the Bureau's practice to accept such demands or requests ``upon the
express, written authorization of the individual CFPB employee to whom
such demand or request is directed.'' The Bureau proposes to delete
this part of the provision because it is not the general practice of
the Bureau to accept service on behalf of individual employees. The
Bureau further proposes deleting the paragraph's introductory caveat,
``[e]xcept as otherwise provided in this subpart,'' because the subpart
does not otherwise provide for the Bureau to act as an agent for
service for subpoenas, orders, or other demands or requests that do not
relate to employees' official conduct.
Section 1070.33 Procedure When Testimony or Production of Documents is
Sought; General
Section 1070.33(b)
Section 1070.33(b) provides that the General Counsel may require a
party seeking official information through testimony, CFPB records, or
other material, to describe all reasonably foreseeable demands for such
information. The Bureau proposes to make several technical changes to
clarify this provision.
Subpart D--Confidential Information
Section 1070.41 Non-Disclosure of Confidential Information
Section 1070.41(b) Disclosures to Contractors and Consultants
Section 1070.41(b) provides that contractors and consultants in
possession of confidential information must treat it in accordance with
these rules, Federal laws and regulations that apply to Federal
agencies for the protection of the confidentiality of personally
identifiable information and for data security and integrity, as well
as any additional conditions or limitations that the Bureau may impose.
The current language includes a requirement that contractors and
consultants certify in writing that they will follow this provision.
The Bureau proposes replacing the certification requirement with an
affirmative statement that contractors and consultants must follow this
provision. The revision is intended to clarify that contractors and
consultants are subject to Sec. 1070.41(b)'s requirements irrespective
of any affirmative certification. We note that this revision will in no
way alter the Bureau's current practices related to requiring
contractors and consultants to sign non-disclosure agreements, agree to
protections in contracts, or take other appropriate steps to protect
confidential information.
Section 1070.41(c) Disclosures of Materials Derived From Confidential
Information
Section 1070.41(c) addresses the disclosure of materials derived
from confidential information. It requires that, when the Bureau
discloses such materials, they may not directly or indirectly identify
any particular person to whom the confidential information pertains.
The Bureau proposes replacing the phrase ``[n]othing in this subpart
shall limit the discretion of the CFPB'' with ``[t]he CFPB may . . .''
in order to clarify that Sec. 1070.41(c) authorizes such disclosure by
the Bureau.
[[Page 58316]]
Section 1070.41(d) Disclosures of Confidential Information With Consent
The Bureau proposes a new paragraph that, where practicable,
authorizes the Bureau to, upon receipt of prior consent, disclose
confidential information that directly or indirectly identifies
particular persons. The provision would require consent from all such
persons to the extent that the identification constitutes confidential
information, and any such disclosure would have to comply with
applicable law. The Bureau believes that it may at times be useful to
disclose such information in order to achieve its mission objectives.
By conditioning disclosure on consent, affected persons' interests
would be appropriately protected. This new provision is intended to
serve as a distinct authority for disclosure, and it in no way impacts
other methods of disclosure currently addressed in the Rule, such as in
Sec. 1070.43. The Bureau proposes renumbering the section to account
for the new paragraph.
Section 1070.41(e) Nondisclosure of Confidential Information Provided
to the CFPB by Other Agencies
Section 1070.41(e) provides that nothing in subpart D requires or
authorizes the Bureau to disclose confidential information that it has
received from other agencies where such disclosure would contravene
applicable law or conflict with any agreement between the CFPB and the
provider agency. The Bureau proposes replacing the word
``disclosability'' in the paragraph's title with ``nondisclosure'' in
order to clarify that this provision protects the confidentiality of
other agencies' confidential information. This revision would not make
any substantive change to the provision.
Section 1070.42 Disclosure of Confidential Supervisory Information and
Confidential Investigative Information to and by Financial Institutions
and Their Affiliates
Section 1070.42 provides that the Bureau may, in its discretion,
disclose confidential supervisory information concerning a supervised
financial institution or its service providers to that supervised
financial institution or its affiliates. In addition, Sec. 1070.42
provides that, unless directed otherwise by the Bureau's Associate
Director for Supervision, Enforcement, and Fair Lending or by his or
her delegee, any supervised financial institution in possession of
confidential supervisory information pursuant to this section may
further disclose the information to certain recipients and subject to
certain conditions.
The Bureau proposes expanding the scope of Sec. 1070.42 to address
its enforcement activities in addition to its supervisory activities.
This revision will lend clarity to the Bureau's disclosures in the
enforcement context, and to the extent of financial institutions'
discretion to further disclose confidential investigative information
(such as civil investigative demands (``CIDs'') or notice and
opportunity to respond and advise (``NORA'') letters). The resulting
rule will provide that recipients of confidential investigative
information have the same discretion with respect to disclosing
confidential investigative information that they currently have with
respect to confidential supervisory information. In addition, the
proposal will establish a single process for such recipients to follow
if they wish to further disclose confidential information obtained in
the course of the Bureau's supervisory or enforcement activities. The
proposed revisions will result in no substantive change to the Bureau's
supervisory activities or supervised financial institutions' discretion
to disclose confidential supervisory information, as currently
articulated in the rule.
To achieve these ends, the Bureau proposes revising the section's
title to read ``Disclosure of confidential supervisory information and
confidential investigative information.'' In addition, all references
in the section to ``confidential supervisory information'' will be
accompanied by the phrase ``or confidential investigative
information.'' Furthermore, references to any ``supervised financial
institution'' will be replaced by a broader reference to any
``person.'' ``Supervised financial institutions'' are a kind of
``person,'' which is defined at Sec. 1070.2. The Bureau proposes using
this broader term because the recipients of confidential investigative
information may not be supervised financial institutions, and at times
some recipients, such as third-party recipients of civil investigative
demands, may not be financial institutions. Finally, the Bureau
proposes several non-substantive technical revisions for purposes of
clarity.
The Bureau also proposes revising Sec. 1070.42(a) to provide that,
in addition to disclosing information concerning a person, its
affiliates, or its service providers to that person or its affiliates,
the Bureau may also disclose such information to its service providers.
The Bureau proposes this change because such information may at times
be relevant to supervision or enforcement activities related to service
providers.
In addition, the Bureau proposes revising Sec. 1070.42(b)(2) to
clarify that a person in possession of confidential supervisory
information or confidential investigative information relating to that
person may disclose such information to an insurance provider pursuant
to a claim for coverage made by that person under an existing policy.
Such disclosures may only be made if the Bureau has not precluded
indemnification or reimbursement for the claim.
We note that this revised language only authorizes disclosure to
the extent necessary for the insurance provider to process and
administer the claim for coverage. Further distribution or use of the
information is prohibited. These limitations do not foreclose an
insurance provider from using information that has been publicly
disclosed by the Bureau in making future underwriting determinations
regarding the person or for other purposes--even if that information
was originally submitted to the insurance provider as confidential
information under this provision.
Finally, the Bureau proposes to remove references to the Associate
Director for Supervision, Enforcement, and Fair Lending's delegee. Such
reference is no longer necessary because the new definition of
Associate Director for Supervision, Enforcement, and Fair Lending,
located at Sec. 1070.2(b), includes delegees.
Section 1070.43 Disclosure of Confidential Information to Agencies
Section 1070.43 sets forth the circumstances in which the Bureau
may disclose confidential information to other government agencies. The
Bureau proposes revising the section's title and subtitles to delete
the references to ``law enforcement agencies'' and ``government''
agencies because the references are superfluous. Instead, the title and
subtitles will reference ``Agencies.'' Likewise, as discussed above
with respect to Sec. 1070.2(a), the Bureau proposes revisions
throughout the section to account for the newly proposed defined term
``Agency.'' The Bureau proposes various other non-substantive technical
corrections.
Section 1070.43(b) Discretionary Disclosure of Confidential Information
to Agencies
Section 1070.43(b)(1)
Section 1070.43(b)(1) sets forth the standard under which the
Bureau may disclose confidential information to
[[Page 58317]]
other agencies in its discretion. The current rule establishes two
distinct standards for disclosing confidential supervisory information
and other confidential information. It states that the Bureau may
disclose confidential information to an agency ``to the extent that the
disclosure of the information is relevant to the exercise of the
[Agency's] statutory or regulatory authority.'' However, the Bureau may
only share confidential supervisory information with agencies ``having
jurisdiction over a supervised financial institution.'' The Bureau
proposes removing the separate standard for confidential supervisory
information. This proposed change would align the two standards and
provide the Bureau with discretion to disclose confidential supervisory
information to another agency ``to the extent that the disclosure of
the information is relevant to the exercise of the [agency's] statutory
or regulatory authority,'' as it may currently do with respect to other
categories of confidential information.
This change is intended to facilitate communication and
information-sharing among the Bureau and other governmental
authorities. The Bureau has determined that sharing confidential
supervisory information in situations where the disclosure of the
information is relevant to the exercise of the receiving agency's
statutory or regulatory authority will facilitate the Bureau's purposes
and objectives. Multiple agencies engage in operations that have the
potential to affect the offering and provision of consumer financial
products and services, as well as the markets, industries, companies,
and other persons relevant to the Bureau's work. In addition, multiple
agencies have interests and obligations relating to implementation,
interpretation, and enforcement of the Dodd-Frank Act and the other
Federal consumer financial law administered by the Bureau. The proposed
change will assist the Bureau in implementing and administering Federal
consumer financial law in a more consistent and effective fashion, and
enable the Bureau to work together with other agencies having
responsibilities related to consumer financial matters. The Bureau also
believes that the proposed change would comport with the intent of the
Dodd-Frank Act, since effective coordination and communication among
agencies is essential in order for the regulatory framework established
by that Act to work as Congress intended.
In the Bureau's judgment, the current rule's restrictions have
proven overly cumbersome in application, pose unnecessary impediments
to cooperating with other agencies, and otherwise risk impairing the
Bureau's ability to fulfill its statutory duties. Unnecessary
impediments to information-sharing in such circumstances impede
supervisory and enforcement coordination and create opportunities for
potential conflict, inefficiency, and duplication of efforts across
agencies. The Bureau believes that retaining discretion to share
confidential supervisory information in such situations would better
promote the Bureau's mission and overall effectiveness.
This proposal would codify the Bureau's revised interpretation of
12 U.S.C. 5512(c)(6). 12 U.S.C. 5512(c)(6) has three subparagraphs. 12
U.S.C. 5512(c)(6)(A) directs the Bureau to ``prescribe rules regarding
the confidential treatment of information obtained from persons in
connection with the exercise of its authorities under Federal consumer
financial law.'' 12 U.S.C. 5512(c)(6)(B) addresses disclosure of
confidential supervisory information to the Bureau by certain agencies:
Subparagraph (B)(i) requires that the Bureau ``shall have access'' to
reports of examination or financial condition by ``a prudential
regulator or other Federal agency having jurisdiction over a covered
person or service provider,'' and subparagraph (B)(ii) provides that
the same agencies ``may, in [their] discretion, furnish to the Bureau
any other report or other confidential supervisory information
concerning any [entity] examined by such agency . . . .'' Meanwhile, 12
U.S.C. 5512(c)(6)(C) addresses disclosure of confidential supervisory
information by the Bureau to certain agencies: Subparagraph (C)(i)
requires that ``a prudential regulator, a State regulator, or any other
Federal agency having jurisdiction over a covered person or service
provider shall have access to any report of examination made by the
Bureau with respect to such person . . . ,'' and subparagraph (C)(ii)
provides that the Bureau ``may, in its discretion, furnish to a
prudential regulator or other agency having jurisdiction over a covered
person or service provider any other report or other confidential
supervisory information concerning such person examined by the Bureau .
. . .''
The Bureau had previously interpreted 12 U.S.C. 5512(c)(6)(C)(ii)
to set forth a positive grant of authority that limits the Bureau's
discretion to disclose confidential supervisory information under the
rules authorized by 12 U.S.C. 5512(c)(6)(A). By only providing for the
discretion to disclose confidential supervisory information to
``prudential regulator[s] or other agenc[ies] having jurisdiction,'' it
was assumed that the provision prohibited disclosure by the Bureau to
agencies that lack ``jurisdiction.'' The Bureau articulated this
interpretation in the interim final rule and the final rule that
established this subpart. See 76 FR 45372, 45373-75 (Jul. 28, 2011); 78
FR 11484, 11496 (Feb. 15, 2013).
12 U.S.C. 5512(c)(6)'s framework--providing the Bureau with broad
discretion to draft confidentiality rules, followed by instructions
related to the exchange of confidential supervisory information with
certain agencies--is ambiguous. See generally Adirondack Medical Center
et al. v. Sebelius, 740 F.3d 692 (D.C. Cir. 2014). The juxtaposition
implies that the provisions relate to each other, but their terms leave
the precise relationship unclear, resulting in more than one plausible
interpretation. The Bureau's previous interpretation was reasonable,
but the Bureau believes that an alternative interpretation is more
reasonable.
12 U.S.C. 5512(c)(6)(A) provides the Bureau with broad discretion
to draft rules regarding the confidential treatment of information. We
think the better view is that Congress did not intend 12 U.S.C.
5512(c)(6)(C)(ii) to restrict that discretion. The language in
subparagraph (C)(ii) is permissive--it says ``the Bureau may, in its
discretion'' disclose confidential supervisory information to certain
agencies. Notably, Congress did not include any restrictive language,
such as ``the Bureau may only'' make certain disclosures. Understanding
subparagraph (C)(ii) as a limit to the Bureau's discretion requires,
essentially, reading the word ``only'' into text where it does not
exist. We find this interpretation strained, as ``Congress generally
knows how to use the word `only' when drafting laws.'' Adirondack
Medical Center, 740 F.3d at 697.
Furthermore, 12 U.S.C. 5512(c)(6)(C)(ii) contrasts with 12 U.S.C.
5562(d)(2), where Congress clearly and unambiguously restricted the
Bureau's discretion in drafting these same confidentiality rules by
stating that ``[n]o rule . . . shall be intended to prevent disclosure
[to Congress].'' The difference between the permissive language used in
12 U.S.C. 5512(c)(6)(C)(ii) and the restrictive language used in 12
U.S.C. 5562(d)(2) indicates that Congress intended the two provisions
to act in different ways.
We also think that the presence of subparagraphs (B)(i), (B)(ii),
and (C)(i) in 12 U.S.C. 5512(c)(6) demonstrate that subparagraph
(C)(ii) could serve a purpose other than limiting
[[Page 58318]]
subparagraph (A). Although subparagraph (C)(ii), in isolation, could
perhaps be read as a limiting principle, statutory provisions should be
read in context. See, e.g., Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132-33 (2000) (``The meaning--or
ambiguity--of certain words or phrases may only become evident when
placed in context.''). That subparagraph (B) closely tracks the word-
choice and structure of subparagraph (C) shows that they could and
should be read in relation to each other. But by addressing the
receipt, and not the disclosure, of confidential supervisory
information, subparagraph (B) is substantively irrelevant to the
Bureau's confidentiality rules; its inclusion indicates that the
provisions can serve a purpose other than to restrict the Bureau's
discretion in drafting its rule.
The Bureau believes that subparagraphs (B) and (C) can reasonably
be read to establish an information-sharing regime with a limited set
of agencies. The purpose of subparagraphs (B)(ii) and (C)(ii) is to
contrast and limit the mandatory disclosures in subparagraphs (B)(i)
and (C)(i), respectively. Whereas subparagraph (B)(i) requires a set of
agencies (prudential regulators and Federal agencies having
jurisdiction) to provide reports of examination or financial condition
to the Bureau, subparagraph (B)(ii) clarifies that those same agencies
have discretion with respect to disclosing other reports or other
confidential supervisory information. Likewise, whereas subparagraph
(C)(i) requires the Bureau to disclose reports of examination to
prudential regulators, state regulators, and Federal regulators having
jurisdiction, subparagraph (C)(ii) clarifies that disclosure of other
reports and other confidential supervisory information to prudential
regulators and other agencies is discretionary. The phrase ``other
report and other confidential supervisory information'' clarifies,
contrasts and narrows the reference to ``report of examination'' in
subparagraph (C)(i).
The Bureau has already addressed subparagraph (C)(i)'s mandatory
disclosures in the confidentiality rules at Sec. 1070.43(a), and this
paragraph remains unchanged. The Bureau's proposed revision to Sec.
1070.43(b)(1) will include 12 U.S.C. 5512(c)(6)(C)(ii)'s discretionary
disclosures of confidential supervisory information, and it will allow
for additional disclosures to agencies that do not ``hav[e]
jurisdiction,'' so long as such disclosure is ``relevant to the
exercise of the [agency's] statutory or regulatory authority.'' 12
U.S.C. 5512(c)(6)(A)'s broad grant of authority to draft
confidentiality rules provides the Bureau sufficient discretion to make
this change.
Please note that the Bureau's policy regarding the disclosure of
confidential supervisory information to law enforcement agencies, which
we previously articulated in CFPB Bulletin 12-01 (Jan. 4, 2012),
remains in place. The Bureau's revised interpretation of 12 U.S.C.
5512(c)(6) and its proposed revision to Sec. 1070.43(b)(1) do not
alter CFPB Bulletin 12-01.
Section 1070.43(b)(2)
Section 1070.43(b)(2) sets forth a process for agencies to submit
written requests (sometimes referred to as ``access requests'') to the
Bureau in order to obtain access to its confidential information
pursuant to Sec. 1070.43(b). Whereas the section currently requires
submission of access requests to the General Counsel, the Bureau
proposes to instead require submission to the Associate Director for
Supervision, Enforcement, and Fair Lending. The Bureau believes that
this change would lead to increased efficiency because the vast
majority of access requests submitted to the Bureau pertain to work
conducted by its Division of Supervision, Enforcement, and Fair
Lending. The Associate Director for Supervision, Enforcement, and Fair
Lending will continue to consult with other Bureau stakeholders,
including the Legal Division, as necessary. The Bureau also proposes
that access requests be emailed to a single email address,
accessrequests@cfpb.gov, or to the Bureau's mailing address at 1700 G
Street NW., Washington, DC 20552, in order to facilitate processing. In
making these changes, the authority to act upon access requests would
shift from the Legal Division to other Bureau staff with expertise more
directly related to processing these requests.
In addition, for purposes of clarity, the Bureau proposes revising
Sec. 1070.43(b)(2)(iii) to state that, among other things, access
requests must include a statement certifying and identifying the
agency's ``statutory or regulatory authority that is relevant to the
requested information, as required by paragraph (b)(1).'' We have found
in our experience that the current formulation (the agency must certify
or identify its ``authority for requesting the documents'') can lead to
confusion.
Section 1070.43(c) State Requests for Information Other Than
Confidential Information
Section 1070.43(c) states that state agency requests for
information other than confidential information are not to be made and
considered under Sec. 1070.43. The Bureau proposes deleting this
paragraph because it is unnecessary and can lead to confusion. Because,
by its own terms, Sec. 1070.43 only applies to confidential
information, there is no need to state that it does not apply to
information that is not confidential.
Section 1070.44 Disclosure of Confidential Consumer Complaint
Information
Section 1070.44 addresses the Bureau's disclosure of confidential
consumer complaint information in the course of investigating,
resolving, or otherwise responding to consumer complaints. The Bureau
proposes replacing the phrase ``[n]othing in this subpart shall limit
the discretion of the CFPB'' with ``[t]he CFPB may . . . .'' This
revision is intended to clarify that Sec. 1070.44 authorizes such
disclosure by the Bureau. The Bureau also proposes replacing the phrase
``concerning financial institutions or consumer financial products and
services'' with ``concerning consumer financial products and services
or a violation of Federal consumer financial law'' in order to clarify
that the section broadly addresses any information received or
generated by the Bureau through processes or procedures established
under 12 U.S.C. 5493(b)(3), including where complaints do not concern
financial institutions, or where the Bureau lacks authority to act on
them.
Section 1070.45 Affirmative Disclosure of Confidential Information
Section 1070.45 addresses various instances where the Bureau may
make disclosures of confidential information on its own initiative. The
Bureau proposes several revisions to clarify, supplement, or amend the
disclosures currently addressed in the section. Any disclosures made
pursuant to this section must be made in accordance with applicable
law.
The Bureau proposes deleting the reference in Sec. 1070.45(a) to
``confidential investigative information'' in the phrase ``confidential
investigative information or other confidential information.'' Because
confidential investigative information is a sub-category of
confidential information, and Sec. 1070.45(a) already addresses
confidential information generally, the separate reference to
confidential
[[Page 58319]]
investigative information is unnecessary. Nevertheless, while the
Bureau may disclose any category of confidential information under
Sec. 1070.45(a), disclosures made under this section--particularly
paragraphs (a)(3), (a)(4), and (a)(5)--are more likely to involve
confidential investigative information, rather than other categories of
confidential information, such as confidential supervisory information.
Subparagraph (a)(2) addresses disclosure of confidential
information to either House of the Congress, or to an appropriate
committee or subcommittee of the Congress, as set forth in 12 U.S.C.
5562(d)(2). The current text states that, upon receipt of a request
from the Congress for confidential information that a financial
institution submitted to the Bureau along with a claim that such
information consists of trade secret or privileged or confidential
commercial or financial information, or confidential supervisory
information, the Bureau ``shall notify'' the financial institution in
writing of its receipt of the request and provide the institution with
a copy of the request. The Bureau proposes revising the text to state
that it ``may notify'' the financial institution in such circumstances.
This revision will provide greater flexibility and more closely align
with 12 U.S.C. 5562(d)(2), which states that the Bureau ``is permitted
to adopt rules allowing prior notice to any party that owns or
otherwise provided the material to the Bureau and had designated such
material as confidential.''
Subparagraph (a)(3) pertains to the disclosure of confidential
information in ``investigational hearings and witness interviews, as is
reasonably necessary, at the discretion of the CFPB.'' This paragraph
was initially intended to address disclosure in the course of
investigations and enforcement actions. See 76 FR 45372, 45375 (Jul.
28, 2011). The Bureau proposes revising the paragraph to state that it
may disclose confidential information in ``investigational hearings and
witness interviews, or otherwise in the investigation and
administration of enforcement actions, as is reasonably necessary, at
the discretion of the CFPB.'' This revision clarifies that the Bureau
may disclose confidential information in its discretion to conduct its
investigations or perform administrative tasks to further its own
enforcement actions. This includes, for example, disclosures to expert
witnesses, service process servers, or other federal and state agencies
that may provide assistance with space for investigational hearings or
advise the Bureau on local rules regarding a court filing.
Subparagraph (a)(4) authorizes the disclosure of confidential
information ``[i]n an administrative or court proceeding to which the
CFPB is a party.'' The Bureau proposes revising this paragraph to state
that it may disclose confidential information ``[i]n or related to an
administrative or court proceeding to which the Bureau is a party.''
This revision clarifies that the Bureau may disclose confidential
information not only during an administrative or court proceeding to
which the Bureau is a party, such as in complaints and consent orders,
but also when related to the Bureau's implementation of ongoing
administrative or court orders. Such disclosures may be made in
furtherance of the Bureau's reporting requirements and include, for
example, updates on required consumer remuneration and the payment of
civil money penalties.
Subparagraph (a)(4) also enables the submitter of such information
to seek a protective or other order prior to such disclosure. For
clarity, the Bureau proposes replacing the phrase ``confidential
investigatory materials'' with ``confidential investigative
information,'' a defined term used throughout the rule. Likewise, the
Bureau proposes replacing the reference to ``appropriate protective or
in camera order'' with ``appropriate order,'' which would encompass
both examples in the current version. Finally, the Bureau proposes
revising the rule to also allow the Bureau to seek an appropriate order
in its discretion. Whereas the current text only discusses the
submitter seeking such an order, there may be times where it would be
more efficient or appropriate for the Bureau itself to make such a
request.
Subparagraph (a)(5) addresses disclosure to other agencies of
confidential information in summary form to notify them about potential
violations of law subject to their jurisdiction. The purpose of this
provision is to allow the Bureau to inform agencies about potential
legal violations in which they may have an interest, including
situations in which they may wish to submit a request for information
under Sec. 1070.43. The Bureau proposes revising this paragraph to
authorize disclosure to ``Agencies in summary form to the extent
necessary to confer with such Agencies about matters relevant to the
exercise of the Agencies' statutory or regulatory authority.'' This
revision would clarify the paragraph's intended purpose and more
closely align with the standard used for disclosing confidential
information to agencies under Sec. 1070.43.
Finally, the Bureau proposes a new subparagraph that states that
the Bureau may disclose confidential information in ``CFPB personnel
matters, as necessary and subject to appropriate protections.'' This
revision is intended to clarify that confidential information may at
times be disclosed in the course of equal employment opportunity
matters, grievance proceedings, and other personnel matters. Any such
disclosures would only be made as necessary, in accordance with
applicable law, and subject to appropriate protections. The Bureau
proposes re-numbering Sec. 1070.45 to account for this new paragraph.
Section 1070.47 Other Rules Regarding the Disclosure of Confidential
Information
The Bureau proposes reorganizing Sec. 1070.47 for clarity.
Specifically, it proposes moving subparagraph 1070.47(a)(5) to
immediately after subparagraph 1070.47(a)(2). The Bureau proposes this
change because the two subparagraphs both address further disclosure by
the recipient of confidential information. The Bureau further proposes
making subparagraph 1070.47(a)(3), which addresses third-party requests
for information, a new paragraph titled ``Third party requests for
information.'' This revision will highlight the provision and lead to
better ease of use. Finally, the Bureau proposes re-numbering the
section to account for these changes.
Section 1070.47(a) Further Disclosure Prohibited
Section 1070.47(a) describes certain steps that recipients of
confidential information under subpart D must take to protect the
information. It notes that confidential information disclosed under
this subpart remains Bureau property, it prohibits further disclosure
of confidential information without the Bureau's prior written
permission, and it sets forth procedures to follow in the event that a
recipient of confidential information receives from a third party a
legally enforceable demand for the information.
Consistent with proposed revisions to Sec. 1070.43(b), the Bureau
proposes shifting from its General Counsel to the Associate Director
for Supervision, Enforcement, and Fair Lending the authority in
subparagraph (a)(1) to provide in writing that confidential information
is no longer Bureau property, and the authority in subparagraph (a)(2)
to provide written permission to further disclose
[[Page 58320]]
confidential information. The Bureau believes that this change would
lead to increased efficiency because the vast majority of access
requests submitted to the Bureau pertain to work conducted by its
Division of Supervision, Enforcement, and Fair Lending. The General
Counsel's authority with respect to legally enforceable demands or
requests for confidential information, described in subparagraph
(a)(3), will remain with the General Counsel. Finally, as discussed
above with respect to Sec. 1070.2(a), the Bureau proposes revisions to
account for the newly proposed defined term ``agency.''
Section 1070.47(d) Return or Destruction of Records
The Bureau proposes adding a new paragraph (d) to clarify that the
Bureau may require any person in possession of confidential information
to return the records to the Bureau or destroy them.
Section 1070.47(e) Non-Waiver of CFPB Rights
The Bureau proposes adding a new paragraph (e) to clarify that the
Bureau's disclosure of confidential information under subpart D does
not waive the Bureau's right to control, or impose limitations on, the
subsequent use and dissemination of its confidential information.
Section 1070.47(f) Non-Waiver of Privilege
The Bureau proposes moving the former paragraph (c), Non-waiver, to
a new paragraph (f), and making corresponding technical corrections to
subparagraph (f)(2), in order to account for the two newly proposed
paragraphs described above. In addition, the Bureau proposes replacing
the title ``Non-waiver'' with a new title ``Non-waiver of privilege''
so as to clarify the distinction between this paragraph and the newly
proposed paragraph (e), Non-waiver of CFPB rights. As discussed
previously in the preamble to the Bureau's final rule, Confidential
Treatment of Privileged Information, 77 FR 39671 (Jul 5, 2012), this
provision applies to situations where the Bureau transfers information
to, or permits information to be used by, agencies.
Section 1070.47(g) Reports of Unauthorized Disclosure
The Bureau proposes adding a new paragraph (g) to require any
persons in possession of confidential information to immediately notify
the Bureau upon discovery of any disclosures of confidential
information made in violation of subpart D.
Section 1070.48 Privileges Not Affected by Disclosure to the CFPB
Section 1070.48 provides that the submission by any person of any
information to the Bureau in the course of the Bureau's supervisory or
regulatory processes will not waive or otherwise affect any privilege
such person may claim with respect to such information under Federal or
State law as to any other person or entity. This section was
promulgated separately from the rest of this rule in a final rule,
Confidential Treatment of Privileged Information, 77 FR 39617 (Jul. 5,
2012). Congress subsequently enacted Public Law 112-215, 126 Stat.
1589, Dec. 20, 2012, which amended 12 U.S.C. 1828(x) to provide these
same protections to privileged information submitted to the Bureau.
Because 12 U.S.C. 1828(x), as revised, provides the exact same
protections as Sec. 1070.48, it renders Sec. 1070.48 superfluous and
unnecessary going forward. To avoid confusion, the Bureau proposes
deleting the current text of Sec. 1070.48.
Section 1070.48 Disclosure of Confidential Information by the Inspector
General
The Bureau proposes adding a new section to clarify that part 1070
does not limit the discretion of its Inspector General's office to
disclose confidential information as needed in fulfilling its
responsibilities under the Inspector General Act of 1978, 5 U.S.C. App.
3. Because the Bureau proposes deleting the current text of Sec.
1070.48, this new section would replace that text.
Subpart E--The Privacy Act
Section 1070.51 Authority and Responsibilities of the Chief Privacy
Officer
Section 1070.51 specifies the authority and responsibilities of the
Bureau's Chief Privacy Officer. The Bureau proposes to add a new
paragraph at Sec. 1070.51(a) authorizing the Chief Privacy Officer to
``[d]evelop, implement, and maintain an organization-wide privacy
program'' and to renumber the other paragraphs in Sec. 1070.51 to
reflect this change. This change is in accordance with National
Institute of Standards and Technology (NIST) Special Publication 800-53
Revision 4, which provides that agencies should ``[appoint] a Senior
Agency Official for Privacy (SAOP)/Chief Privacy Officer (CPO)
accountable for developing, implementing, and maintaining an
organization-wide governance and privacy program to ensure compliance
with all applicable laws and regulations regarding the collection, use,
maintenance, sharing, and disposal of personally identifiable
information (PII) by programs and information systems . . . .'' The
Bureau proposes this change to clarify the authority of its Chief
Privacy Officer.
Section 1070.53 Request for Access to Records
Section 1070.53(a) Procedures for Making a Request for Access to
records
Section 1070.53(a) specifies the procedures for making Privacy Act
requests for records. The current text distinguishes between requests
made in writing and by electronic means. The Bureau proposes a
technical change to this provision. It proposes to remove the phrase
``or by electronic means'' and add ``as follows:'' in its place. The
Bureau also proposes changes to section 1070.53(a)(1) to clarify how
requesters must submit Privacy Act requests to the Bureau. The Bureau
proposes similar changes to sections 1070.56(a) and 1070.58(b).
Section 1070.56 Request for Amendment of Records
Section 1070.56(a) Procedures for Making Request
Section 1070.56(a)(2)(i)
Section 1070.56(a)(2)(i) provides that an individual requesting an
amendment of a record must identify the system of records containing
the record. The Bureau proposes to revise this provision to allow an
individual to provide a description of the record in sufficient detail
to allow Bureau personnel to locate the system of records containing
the record. This revision would provide a requester with more
flexibility in the event that the requester does not know the precise
name of the applicable system of records. Furthermore, this change is
consistent with Sec. 1070.53(b)(2), which specifies requirements for
requests for access to records.
Section 1070.61 Training; Rules of Conduct; Penalties for Non-
Compliance
Section 1070.61 addresses, among other things, the CFPB's
obligations to conduct privacy-related training and establish rules of
conduct related to privacy. The Bureau proposes to replace references
to ``employees of Government contractors'' with the term ``contract
personnel'' to avoid confusion with respect to Sec. 1070.2(l), which
defines the term ``employee.''
[[Page 58321]]
Part 1091--Procedural Rule To Establish Supervisory Authority Over
Certain Nonbank Covered Persons Based on Risk Determination
Section 1091.103 Contents of Notice
The Bureau proposes to revise subparagraph 1091.103(a)(2)(vii) to
remove the cross-reference to Sec. 1070.2(i)(1) and replace it with
the appropriate cross-reference to Sec. 1070.2(j).
Section 1091.115 Change of Time Limits and Confidentiality of
Proceedings
The Bureau proposes to revise paragraph 1091.115(c) to remove the
cross-reference to Sec. 1070.2(i)(1) and replace it with the
appropriate cross-reference to Sec. 1070.2(j).
V. Section 1022(b)(2)(A) of the Dodd-Frank Act
In developing this proposed rule, the Bureau has considered the
potential benefits, costs, and impacts required by section
1022(b)(2)(A) of the Dodd-Frank Act. The Bureau has consulted, or
offered to consult with, the prudential regulators and the Federal
Trade Commission including consultation regarding consistency with any
prudential, market, or systemic objectives administered by such
agencies.\3\
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\3\ Section 1022(b)(2)(A) of the Dodd-Frank Act addresses the
consideration of the potential benefits and costs of regulation to
consumers and covered persons, including the potential reduction of
access by consumers to consumer financial products or services; the
impact on depository institutions and credit unions with $10 billion
or less in total assets as described in section 1026 of the Dodd-
Frank Act; and the impact on consumers in rural areas. Section
1022(b)(2)(B) directs the Bureau to consult, before and during the
rulemaking, with appropriate prudential regulators or other Federal
agencies, regarding consistency with objectives those agencies
administer.
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The Bureau has chosen to consider the benefits, costs, and impacts
of the proposed provisions as compared to the status quo: The current
statutory provisions and the regulations as set forth by the Bureau on
February 15, 2013, 78 FR 11483 (Feb. 15, 2013) (which includes the
protections for privileged information which Congress enacted in Public
Law 112-215, 126 Stat. 1589, Dec. 20, 2012, which amended 12 U.S.C.
1828(x)).\4\ At this time, the Bureau does not have data with which to
quantify the benefits or costs of the proposed rule.
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\4\ The Bureau has discretion in any rulemaking to choose an
appropriate scope of analysis with respect to potential benefits and
costs and an appropriate baseline.
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In this analysis, the Bureau focuses on the benefits, costs, and
impacts of the main aspects of the proposed rule. The proposed changes
to the definitions in subpart A would alter the treatment of certain
information submitted to the Bureau. The revised definition of
confidential consumer complaint information would now include any
information received or generated by the CFPB through processes or
procedures established under 12 U.S.C. 5493(b)(3), clarifying that any
complaints submitted to the CFPB through its Consumer Response system,
and any information generated therein, are similarly classified under
its confidentiality rules and subject to the same confidentiality
protections. The revised definition of confidential supervisory
information will no longer include reference to information collected
using the Bureau's market monitoring authority.
The proposed changes in subpart D would alter the rules concerning
the disclosure of confidential investigative information to and by
financial institutions and their affiliates by lending clarity to the
Bureau's disclosures of confidential investigative information in the
enforcement context; providing that recipients of confidential
investigative information have the same discretion with respect to
disclosing confidential investigative information that they currently
have with respect to confidential supervisory information; providing
that, in addition to disclosing information concerning a person, its
affiliates, or its service providers to that person or its affiliates,
the Bureau may also disclose such information to its service providers;
and providing that a person lawfully in possession of confidential
supervisory information or confidential investigative information
provided directly to it by the Bureau pursuant to Sec. 1070.42 may
disclose the information to an insurance provider to the extent
necessary for the insurance provider to process and administer any
claims for coverage.
The proposed changes also alter the rules concerning the sharing of
confidential supervisory information between the Bureau and other
agencies by providing the Bureau with discretion to disclose
confidential supervisory information to another agency ``to the extent
that the disclosure of the information is relevant to the exercise of
the [agency's] statutory or regulatory authority,'' rather than to
another agency ``having jurisdiction over a supervised financial
institution.''
Lastly, the proposed rule would authorize the Bureau, upon receipt
of prior consent, to disclose confidential information that directly or
indirectly identifies particular persons. The proposed rule also
includes clarifications that the Bureau may disclose confidential
information in its discretion as needed to conduct its investigations
or perform administrative tasks to further its own enforcement actions;
and, that the Bureau may disclose confidential information not only
during an administrative or court proceeding to which the Bureau is a
party, such as in complaints and consent orders, but also when related
to the Bureau's implementation of ongoing administrative or court
orders.
The Bureau views the remainder to the proposed rule to mainly
include clarifications, corrections and technical changes.
The proposed revisions to the definition of confidential consumer
complaint information would provide benefits for consumers and covered
persons. Specifically, the expansion of the definition of confidential
consumer complaint information should afford greater protections to
consumers submitting, and covered persons referenced by, any
misdirected complaints that the Bureau receives and that are now
covered under the definition.
The change to the definition of confidential supervisory
information and the proposed changes regarding information sharing
would also benefit consumer and covered persons. Removing market
monitoring information that contains confidential business information
or personal information from the definition would have limited effect
since such information would be subject to the same protections
currently accorded to it, including the limitations on public
disclosures and disclosures to other regulators. In contrast, the
Bureau would have more flexibility to use and disclose less sensitive,
non-confidential information collected for market monitoring purposes
such as data that are already publicly available. The lesser burden
should allow the Bureau to implement and administer Federal consumer
financial law more efficiently.
Regarding the proposed provisions related to sharing information,
consumers would benefit, to the extent that each of these changes
allows more efficient sharing of confidential information between the
CFPB and various parties and thus also results in more efficient
administration of consumer financial laws. Covered persons would
benefit, to the extent that the efficiencies embodied in these changes
reduce costs either by altering and simplifying the covered person's
obligations or by allowing for more efficient sharing among regulators
that interact with the covered person. For
[[Page 58322]]
example, the creation of one standard for how covered persons can share
confidential supervisory information and confidential investigative
information would lower the internal costs at these firms.
The changes in the sharing provisions of the rule may entail
certain costs to covered persons. The broader sharing of information
provided for in the proposed rule has an increased risk for a loss of
confidentiality. However, as noted above, the Bureau has sought to
provide the maximum protection for confidential information, while
ensuring its ability to share or disclose information to the extent
necessary to achieve its mission. The Bureau will continue to
appropriately protect sensitive information. Further, as noted in the
original 2013 rule, increased sharing of information under the proposed
the rule may increase the volume and costs of litigation or regulatory
action for covered persons whose information the Bureau will share with
other agencies, and which such agencies may use as bases for
administrative or judicial actions against covered persons. To the
extent that such costs occur, the Bureau believes that in most cases
these costs would be associated with concomitant benefits to consumers
from the prevention or remedy of harms associated with violations of
law by covered persons.
The CFPB does not expect that the proposed rule would have an
appreciable impact on consumers' access to consumer financial products
or services. The scope of the rulemaking is limited to matters related
to access to and disclosure of certain types of information, and does
not relate to credit access.
The Bureau does not believe that this proposed rule would have a
unique impact on insured depository institutions or insured credit
unions with less than $10 billion in assets as described in section
1026(a) of the Dodd-Frank Act. Since such institutions are not
supervised by the Bureau, they are generally less likely to share
information with the Bureau and therefore any impacts of the rule from
the provisions on supervisory information may indeed be less compared
to other institutions.
The Bureau also does not believe that this proposed rule would have
a unique impact on consumers in rural areas. To the extent that these
consumers may use smaller financial service providers not supervised by
the Bureau, and therefore less likely to share information with the
Bureau, the impacts of the rule from the provisions on supervisory
information for these consumers may indeed be less than for other
consumers.
VI. Procedural Requirements
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996 (the
RFA), requires each agency to consider the potential impact of its
regulations on small entities, including small businesses, small
governmental units, and small not-for-profit organizations, unless the
head of the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The
undersigned so certifies. The rule does not impose any obligations or
standards of conduct for purposes of analysis under the RFA, and it
therefore does not give rise to a regulatory compliance burden for
small entities.
Finally, the Bureau has determined that this proposed rule does not
impose any new recordkeeping, reporting, or disclosure requirements on
members of the public that would be collections of information
requiring approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq.
List of Subjects
12 CFR Part 1070
Confidential business information, Consumer protection, Freedom of
information, Privacy.
12 CFR Part 1091
Administrative practice and procedure, Consumer protection, Credit,
Trade practices.
Authority and Issuance
For the reasons set forth in the preamble, the Bureau proposes to
amend chapter X of title 12 of the CFR to read as follows:
PART 1070--DISCLOSURE OF RECORDS AND INFORMATION
0
1. Revise part 1070 to read as follows.
Subpart A--General Provisions and Definitions
Sec.
1070.1 Authority, purpose and scope.
1070.2 General definitions.
1070.3 Custodian of records; certification; alternative authority.
1070.4 Records of the CFPB not to be otherwise disclosed.
1070.5 Service of summonses and complaints
Subpart B--Freedom of Information Act
1070.10 General.
1070.11 Information made available; discretionary disclosures.
1070.12 Publication in the Federal Register.
1070.13 Public inspection in an electronic format.
1070.14 Requests for CFPB records.
1070.15 Responsibility for responding to requests for CFPB records.
1070.16 Timing of responses to requests for CFPB records.
1070.17 Requests for expedited processing.
1070.18 Responses to requests for CFPB records.
1070.19 Classified information.
1070.20 Requests for business information provided to the CFPB.
1070.21 Administrative appeals.
1070.22 Fees for processing requests for CFPB records.
1070.23 Authority and responsibilities of the Chief FOIA Officer.
Subpart C--Disclosure of CFPB Information in Connection With Legal
Proceedings
1070.30 Purpose and scope; definitions.
1070.31 Service of subpoenas, court orders, and other demands for
CFPB information or action.
1070.32 Testimony and production of documents prohibited unless
approved by the General Counsel.
1070.33 Procedure when testimony or production of documents is
sought; general.
1070.34 Procedure when response to demand is required prior to
receiving instructions.
1070.35 Procedure in the event of an adverse ruling.
1070.36 Considerations in determining whether the CFPB will comply
with a demand or request.
1070.37 Prohibition on providing expert or opinion testimony.
Subpart D--Confidential Information
1070.40 Purpose and scope.
1070.41 Non-disclosure of confidential information.
1070.42 Disclosure of confidential supervisory information and
confidential investigative information.
1070.43 Disclosure of confidential information to agencies.
1070.44 Disclosure of confidential consumer complaint information.
1070.45 Affirmative disclosure of confidential information.
1070.46 Other disclosures of confidential information.
1070.47 Other rules regarding the disclosure of confidential
information.
1070.48 Disclosure of confidential information by the Inspector
General.
Subpart E--Privacy Act
1070.50 Purpose and scope; definitions.
1070.51 Authority and responsibilities of the Chief Privacy Officer.
1070.52 Fees.
1070.53 Request for access to records.
1070.54 CFPB procedures for responding to a request for access.
1070.55 Special procedures for medical records.
1070.56 Request for amendment of records.
1070.57 CFPB review of a request for amendment of records.
1070.58 Appeal of adverse determination of request for access or
amendment.
[[Page 58323]]
1070.59 Restrictions on disclosure.
1070.60 Exempt records.
1070.61 Training; rules of conduct; penalties for non-compliance.
1070.62 Preservation of records.
1070.63 Use and collection of Social Security numbers.
Authority: 12 U.S.C. 5481 et seq.; 5 U.S.C. 552; 5 U.S.C. 552a;
18 U.S.C. 1905; 18 U.S.C. 641; 44 U.S.C. ch. 31; 44 U.S.C. ch. 35;
12 U.S.C. 3401 et seq.
Subpart A--General Provisions and Definitions
Sec. 1070.1 Authority, purpose, and scope.
(a) Authority. (1) This part is issued by the Bureau of Consumer
Financial Protection, an independent Bureau within the Federal Reserve
System, pursuant to the Consumer Financial Protection Act of 2010, 12
U.S.C. 5481 et seq.; the Freedom of Information Act, 5 U.S.C. 552; the
Privacy Act of 1974, 5 U.S.C. 552a; the Federal Records Act, 44 U.S.C.
3101; the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.; the Right to
Financial Privacy Act of 1978, 12 U.S.C. 3401; the Trade Secrets Act,
18 U.S.C. 1905; 18 U.S.C. 641; and any other applicable law that
establishes a basis for the exercise of governmental authority by the
CFPB.
(2) This part establishes mechanisms for carrying out the CFPB's
statutory responsibilities under the statutes in paragraph (a)(1) of
this section to the extent those responsibilities require the
disclosure, production, or withholding of information. In this regard,
the CFPB has determined that the CFPB, and its delegates, may disclose
information of the CFPB, in accordance with the procedures set forth in
this part, whenever it is necessary or appropriate to do so in the
exercise of any of the CFPB's authority. The CFPB has determined that
all such disclosures, made in accordance with the rules and procedures
specified in this part, are authorized by law.
(b) Purpose and scope. This part contains the CFPB's rules relating
to the disclosure of records and information generated by and obtained
by the CFPB.
(1) Subpart A contains general provisions and definitions used in
this part.
(2) Subpart B implements the Freedom of Information Act, 5 U.S.C.
552.
(3) Subpart C sets forth the procedures with respect to subpoenas,
orders, or other requests for CFPB information in connection with legal
proceedings.
(4) Subpart D provides for the protection of confidential
information and procedures for sharing confidential information with
supervised institutions, government agencies, and others in certain
circumstances.
(5) Subpart E implements the Privacy Act of 1974, 5 U.S.C. 552a.
Sec. 1070.2 General definitions.
For purposes of this part:
(a) Agency means a Federal, State, or foreign governmental
authority, or an entity exercising governmental authority.
(b) Associate Director for Supervision, Enforcement and Fair
Lending means the Associate Director for Supervision, Enforcement and
Fair Lending of the CFPB or any CFPB employee to whom the Associate
Director for Supervision, Enforcement and Fair Lending has delegated
authority to act under this part.
(c) Business day means any day except Saturday, Sunday or a legal
Federal holiday.
(d) CFPB means the Bureau of Consumer Financial Protection.
(e) Chief FOIA Officer means the Chief Operating Officer of the
CFPB, or any CFPB employee to whom the Chief Operating Officer has
delegated authority to act under this part.
(f) Chief Operating Officer means the Chief Operating Officer of
the CFPB, or any CFPB employee to whom the Chief Operating Officer has
delegated authority to act under this part.
(g) Confidential information means confidential consumer complaint
information, confidential investigative information, and confidential
supervisory information, as well as any other CFPB information that may
be exempt from disclosure under the Freedom of Information Act pursuant
to 5 U.S.C. 552(b). Confidential information does not include
information contained in records that have been made publicly available
by the CFPB or information that has otherwise been publicly disclosed
by an employee, or agent of the CFPB, with the authority to do so.
Confidential information obtained by a third party or otherwise
incorporated in the records of a third party, including another Agency,
shall remain confidential information subject to this Part.
(h) Confidential consumer complaint information means information
received or generated by the CFPB through processes or procedures
established under 12 U.S.C. 5493(b)(3), to the extent that such
information is exempt from disclosure pursuant to 5 U.S.C. 552(b).
(i) Confidential investigative information means:
(1) Any documentary material, written report, or written answers to
questions, tangible thing, or transcript of oral testimony received by
the CFPB in any form or format pursuant to a civil investigative
demand, as those terms are set forth in 12 U.S.C. 5562, or received by
the CFPB voluntarily in lieu of a civil investigative demand; and
(2) Any other documents, materials, or records prepared by, on
behalf of, received by, or for the use by the CFPB or any other Agency
in the conduct of enforcement activities, and any information derived
from such materials.
(j) Confidential supervisory information means:
(1) Reports of examination, inspection and visitation, non-public
operating, condition, and compliance reports, supervisory letter, or
similar document, and any information contained in, derived from, or
related to such documents;
(2) Any documents, materials, or records, including reports of
examination, prepared by, or on behalf of, or for the use of the CFPB
or any other Agency in the exercise of supervisory authority over a
financial institution, and any information derived from such documents,
materials, or records;
(3) Any communications between the CFPB and a supervised financial
institution or a Federal, State, or foreign government agency related
to the CFPB's supervision of the institution;
(4) Any information provided to the CFPB by a financial institution
for purposes of detecting and assessing risks to consumers and to
markets for consumer financial products or services pursuant to 12
U.S.C. 5414(b)(1)(C), 5515(b)(1)(C), or 5516(b), or to assess whether
an institution should be considered a covered person, as that term is
defined by 12 U.S.C. 5481, or is subject to the CFPB's supervisory
authority; and/or
(5) Information that is exempt from disclosure pursuant to 5 U.S.C.
552(b)(8).
(k) Director means the Director of the CFPB or his or her designee,
or a person authorized to perform the functions of the Director in
accordance with law.
(l) Employee means all current employees or officials of the CFPB,
including contract personnel, the employees of the Office of the
Inspector General of the Board of Governors of the Federal Reserve
System and the Consumer Financial Protection Bureau, and any other
individuals who have been appointed by, or are subject to the
supervision, jurisdiction, or control of the Director, as well as the
Director. The procedures established within this part also apply to
former employees where specifically noted.
[[Page 58324]]
(m) Financial institution means any person involved in the offering
or provision of a ``financial product or service,'' including a
``covered person'' or ``service provider,'' as those terms are defined
by 12 U.S.C. 5481.
(n) General Counsel means the General Counsel of the CFPB or any
CFPB employee to whom the General Counsel has delegated authority to
act under this part.
(o) Person means an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, estate,
cooperative organization, or other entity.
(p) Report of examination means the report prepared by the CFPB
concerning the examination or inspection of a supervised financial
institution.
(q) State means any State, territory, or possession of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, Guam, American Samoa, or
the United States Virgin Islands or any Federally recognized Indian
tribe, as defined by the Secretary of the Interior under section 104(a)
of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C.
479a-1(a)), and includes any political subdivision thereof.
(r) Supervised financial institution means a financial institution
that is or that may become subject to the CFPB's supervisory authority.
Sec. 1070.3 Custodian of records; certification; alternative
authority.
(a) Custodian of records. The Chief Operating Officer is the
official custodian of all records of the CFPB, including records that
are in the possession or control of the CFPB or any CFPB employee.
(b) Certification of record. The Chief Operating Officer may
certify the authenticity of any CFPB record or any copy of such record,
or the absence thereof, for any purpose, and for or before any duly
constituted Federal or State court, tribunal, or agency.
(c) Alternative authority. Any action or determination required or
permitted to be done by the Chief Operating Officer may be done by any
employee who has been duly designated for this purpose by the Chief
Operating Officer.
Sec. 1070.4 Records of the CFPB not to be otherwise disclosed.
Except as provided by this part, employees or former employees of
the CFPB, or others in possession of a record of the CFPB that the CFPB
has not already made public, are prohibited from disclosing such
records, without authorization, to any person who is not an employee of
the CFPB.
Sec. 1070.5 Service of summonses and complaints.
(a) Only the General Counsel is authorized to receive and accept
summonses or complaints sought to be served upon the CFPB or CFPB
employees sued in their official capacity. Such documents should be
served upon the General Counsel, Consumer Financial Protection Bureau,
1700 G Street NW., Washington, DC 20552. This authorization for receipt
shall in no way affect the requirements of service elsewhere provided
in applicable rules and regulations.
(b) If, notwithstanding paragraph (a) of this section, any summons
or complaint described in that paragraph is delivered to an employee of
the CFPB, the employee shall decline to accept the proffered service
and may notify the person attempting to make service of the regulations
set forth herein. If, notwithstanding this instruction, an employee
accepts service of a document described in paragraph (a) of this
section, the employee shall immediately notify and deliver a copy of
the summons and complaint to the General Counsel.
(c) When a CFPB employee is sued in an individual capacity for an
act or omission occurring in connection with duties performed on behalf
of the CFPB (whether or not the officer or employee is also sued in an
official capacity), the employee by law is to be served personally with
process. See Fed. R. Civ. P. 4(i)(3). An employee sued in an individual
capacity for an act or omission occurring in connection with duties
performed on behalf of the CFPB shall immediately notify, and deliver a
copy of the summons and complaint to, the General Counsel.
(d) The CFPB will only accept service of process for an employee
sued in his or her official capacity. Documents for which the General
Counsel accepts service in official capacity shall be marked ``Service
Accepted in Official Capacity Only.'' Acceptance of service shall not
constitute an admission or waiver with respect to jurisdiction,
propriety of service, improper venue, or any other defense in law or
equity available under applicable laws or rules.
Subpart B--Freedom of Information Act
Sec. 1070.10 General.
This subpart contains the regulations of the CFPB implementing the
Freedom of Information Act (the FOIA), 5 U.S.C. 552, as amended. These
regulations set forth procedures for requesting access to records
maintained by the CFPB. These regulations should be read together with
the FOIA, the 1987 Office of Management and Budget Guidelines for FOIA
Fees, the CFPB's Privacy Act regulations set forth in subpart E, and
the FOIA Web page on the CFPB's Web site, https://www.consumerfinance.gov, which provide additional information about
this topic.
Sec. 1070.11 Information made available; discretionary disclosures.
(a) In general. The FOIA provides for public access to information
and records developed or maintained by Federal agencies. Generally, the
FOIA divides agency information into three major categories and
provides methods by which each category of information is to be made
available to the public. The three major categories of information are
as follows:
(1) Information required to be published in the Federal Register
(see Sec. 1070.12);
(2) Information required to be made available for public inspection
and in an electronic format or, in the alternative, to be published and
offered for sale (see Sec. 1070.13); and
(3) Information required to be made available to any member of the
public upon specific request (see Sec. Sec. 1070.14 through 1070.22).
(b) Discretionary disclosures. Even though a FOIA exemption may
apply to the information or records requested, the CFPB may, if not
precluded by law, elect under the circumstances not to apply the
exemption. The fact that the exemption is not applied by the CFPB in
response to a particular request shall have no precedential
significance in processing other requests, but is merely an indication
that, in the processing of the particular request, the CFPB finds no
necessity for applying the exemption.
(c) Disclosures of records frequently requested. Subject to the
application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and
(c)), the CFPB shall make publicly available, as provided by Sec.
1070.13, all records regardless of form or format, which have been
released previously to any person under 5 U.S.C. 552(a)(3) and
Sec. Sec. 1070.14 through 1070.22, and which the CFPB determines have
become or are likely to become the subject of subsequent requests for
substantially the same records. 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.
[[Page 58325]]
Sec. 1070.12 Publication in the Federal Register.
(a) Requirement. The CFPB shall separately state, publish and
maintain current in the Federal Register for the guidance of the public
the following information:
(1) Descriptions of its central and field organization and the
established place at which, the persons from whom, and the methods
whereby, the public may obtain information, make submissions or
requests, or obtain decisions;
(2) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by the CFPB; and
(5) Each amendment, revision, or repeal of matters referred to in
paragraphs (a)(1) through (4) of this section.
(b) Exceptions. Publication of the information under paragraph (a)
of this section shall be subject to the application of the FOIA
exemptions and exclusions (5 U.S.C. 552(b) and (c)) and the limitations
provided in 5 U.S.C. 552(a)(1).
Sec. 1070.13 Public inspection in an electronic format.
(a) In general. Subject to the application of the FOIA exemptions
and exclusions (5 U.S.C. 552(b) and (c)), the CFPB shall, in
conformance with 5 U.S.C. 552(a)(2), make available for public
inspection in an electronic format, including by posting on the CFPB's
Web site, https://www.consumerfinance.gov, or, in the alternative,
promptly publish and offer for sale the following information:
(1) Final opinions, including concurring and dissenting opinions,
and orders made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the CFPB but are not published in the Federal Register;
(3) Its administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Copies of all records made publicly available pursuant to Sec.
1070.11; and
(5) A general index of the records referred to in paragraph (a)(4)
of this section.
(b) Information made available online. For records required to be
made available for public inspection in an electronic format pursuant
to 5 U.S.C. 552(a)(2) (paragraphs (a)(1) through (4) of this section),
as soon as practicable, the CFPB shall make such records available on
its e-FOIA Library, located at https://www.consumerfinance.gov.
(c) Record availability at the on-site e-FOIA Library. Any member
of the public may, upon request, access the CFPB's e-FOIA Library via a
computer terminal at 1700 G Street NW., Washington, DC 20552. Such a
request may be made by electronic means as set forth on the CFPB's Web
site, https://www.consumerfinance.gov, or in writing, to the Chief FOIA
Officer, Consumer Financial Protection Bureau, 1700 G Street NW.,
Washington, DC 20552. The request must indicate a preferred date and
time for the requested access. The CFPB reserves the right to arrange a
different date and time with the requester, if necessary.
(d) Redaction of identifying details. To prevent a clearly
unwarranted invasion of personal privacy, the CFPB may redact
identifying details contained in any matter described in paragraphs
(a)(1) through (4) of this section before making such matters available
for inspection or publication. The justification for the redaction
shall be explained fully in writing, and the extent of such redaction
shall be indicated on the portion of the record which is made available
or published, unless including that indication would harm an interest
protected by the exemption in 5 U.S.C. 552(b) under which the redaction
is made. If technically feasible, the extent of the redaction shall be
indicated at the place in the record where the redaction is made.
Sec. 1070.14 Requests for CFPB records.
(a) In general. Subject to the application of the FOIA exemptions
and exclusions (5 U.S.C. 552(b) and (c)), the CFPB shall promptly make
its records available to any person pursuant to a request that conforms
to the rules and procedures of this section.
(b) Form of request. A request for records of the CFPB shall be
made in writing as follows:
(1) If a request is submitted by mail or delivery service, it shall
be addressed to the Chief FOIA Officer, Consumer Financial Protection
Bureau, 1700 G Street NW., Washington, DC 20552. The request shall be
labeled ``Freedom of Information Act Request.''
(2) If a request is submitted by electronic means, it shall be
submitted as set forth on the CFPB's Web site, https://www.consumerfinance.gov. The request shall be labeled ``Freedom of
Information Act Request.''
(c) Content of request. (1) In order to ensure the CFPB's ability
to respond in a timely manner, a FOIA request should describe the
records that the requester seeks in sufficient detail to enable CFPB
personnel to locate them with a reasonable amount of effort. Whenever
possible, the request should include specific information about each
record sought, such as the date, title or name, author, recipient, and
subject matter of the record. If known, the requester should include
any file designations or descriptions for the records requested. As a
general rule, the more specific the requester is about the records or
type of records requested, the more likely the CFPB will be able to
locate those records in response to the request;
(2) In order to ensure the CFPB's ability to communicate
effectively with the requester, a request should include contact
information for the requester, including the name of the requester and,
to the extent available, a mailing address, telephone number, and email
address at which the CFPB may contact the requester regarding the
request;
(3) The request should state whether the requester wishes to
inspect the records or desires to receive an electronic copy or have a
copy made and furnished without first inspecting the records;
(4) For the purpose of determining any fees that may apply to
processing a request, a requester should indicate in the request
whether the requester is a commercial user, an educational institution,
non-commercial scientific institution, representative of the news
media, governmental entity, or ``other'' requester, as those terms are
defined in Sec. 1070.22(b), and the basis for claiming that fee
category. Requesters may seek assistance in determining the appropriate
fee category by contacting the CFPB's FOIA Public Liaison at the
telephone number listed on the CFPB's Web site, https://www.consumerfinance.gov.
(5) If a requester seeks a waiver or reduction of fees associated
with processing a request, then the request shall include a statement
to that effect as is required by Sec. 1070.22(e); and
(6) If a requester seeks expedited processing of a request, then
the request must include a statement to that effect as is required by
Sec. 1070.17.
(d) Perfected requests; effect of request deficiencies. For
purposes of computing its deadline to respond to a
[[Page 58326]]
request, the CFPB will deem itself to have received a request only if,
and on the date that, it receives a request that contains substantially
all of the information required by and that otherwise conforms with
paragraphs (b) and (c) of this section. The CFPB need not accept a
request, process a request, or be bound by any deadlines in this
subpart for processing a request that fails to conform, in any material
respect, to the requirements of paragraphs (b) and (c) of this section.
If a request is deficient in any material respect, then the CFPB may
return it to the requester and if it does so, it shall advise the
requester in what respect the request is deficient, and what additional
information is needed to respond to the request. The requester may then
amend or resubmit the request. A determination by the CFPB that a
request is deficient in any respect is not a denial of a request for
records and such determinations are not subject to appeal. If a
requester fails to respond to a CFPB notification that a request is
deficient within thirty (30) days of the CFPB's notification, the CFPB
will deem the request withdrawn.
(e) Requests by an individual for CFPB records pertaining to that
individual. An individual who wishes to inspect or obtain copies of
records of the Bureau that pertain to that individual shall file a
request in accordance with subpart E of these rules.
(f) Requests for CFPB records pertaining to another individual.
Where a request for records pertains to a third party, a requester may
receive greater access by submitting either a notarized authorization
signed by that individual or a declaration by that individual made in
compliance with the requirements set forth in 28 U.S.C. 1746
authorizing disclosure of the records to the requester, or submits
proof that the individual is deceased (e.g., a copy of a death
certificate or an obituary). The CFPB may require a requester to supply
additional information if necessary in order to verify that a
particular individual has consented to disclosure.
Sec. 1070.15 Responsibility for responding to requests for CFPB
records.
(a) In general. In determining which records are responsive to a
request, the CFPB ordinarily will include only records in its
possession as of the date the CFPB begins its search for them. If any
other date is used, the CFPB shall inform the requester of that date.
(b) Authority to grant or deny requests. The Chief FOIA Officer
shall be authorized to grant or deny any request for a record of the
CFPB.
(c) Consultations and referrals. (1) When a requested record has
been created by an agency other than the CFPB, the CFPB shall refer the
record to the originating agency for a direct response to the
requester.
(2) When a FOIA request is received for a record created by the
CFPB that includes information originated by another agency, the CFPB
shall consult the originating agency for review and recommendation on
disclosure. The CFPB shall not release any such records without prior
consultation with the originating agency.
(d) Notice of referral. Whenever the CFPB refers all or any part of
the responsibility for responding to a request to another agency, it
will notify the requester of the referral and inform the requester of
the name of each agency to which the request has been referred, in
whole or in part.
Sec. 1070.16 Timing of responses to requests for CFPB records.
(a) In general. Except as set forth in paragraphs (b) through (d)
of this section, and Sec. 1070.17, the CFPB shall respond to requests
according to their order of receipt.
(b) Multitrack processing. (1) The CFPB may establish separate
tracks to process simple and complex requests. The CFPB may assign a
request to the simple or complex track(s) based on the amount of work
and/or time needed to process the request. The CFPB shall process
requests in each track based on the date the request was perfected in
accordance with Sec. 1070.14(d).
(2) The CFPB may provide a requester in its complex track with an
opportunity to limit the scope of the request to qualify for faster
processing within the specified limits of the simple track(s).
(c) Time period for responding to requests for records. Ordinarily,
the CFPB shall have twenty (20) business days from when a request is
received by the CFPB to determine whether to grant or deny a request
for records. The twenty (20) business day time period set forth in this
paragraph shall not be tolled by the CFPB except that the CFPB may:
(1) Make one reasonable demand to the requester for clarifying
information about the request and toll the twenty (20) business day
time period while it awaits the clarifying information; or
(2) Toll the twenty (20) business day time period while it awaits
clarification from or addresses any dispute with the requester
regarding the assessment of fees.
(d) Unusual circumstances. (1) Where the CFPB determines that due
to unusual circumstances it cannot respond either to a request within
the time period set forth in paragraph (c) of this section or to an
appeal within the time period set forth in Sec. 1070.21, the CFPB may
extend the applicable time periods by informing the requester in
writing of the unusual circumstances and of the date by which the CFPB
expects to complete its processing of the request or appeal. Any
extension or extensions of time with respect to a request or an appeal
shall not cumulatively total more than ten (10) business days. However,
if the CFPB determines that it needs additional time beyond a ten (10)
business day extension to process the request or appeal, then the CFPB
shall notify the requester and provide the requester with an
opportunity to limit the scope of the request or appeal or to arrange
for an alternative time frame for processing the request or appeal or a
modified request or appeal. The requester shall retain the right to
define the desired scope of the request or appeal, as long as it meets
the requirements contained in this subpart.
(2) As used in this paragraph, ``unusual circumstances'' means:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another Agency having a substantial interest in
the determination of the request, or among two or more CFPB offices
having substantial subject matter interest therein.
Sec. 1070.17 Requests for expedited processing.
(a) In general. The CFPB shall process a request on an expedited
basis whenever a requester demonstrates a compelling need for expedited
processing in accordance with the requirements of this paragraph or in
other cases that the CFPB deems appropriate.
(b) Form and content of a request for expedited processing. A
request for expedited processing shall be made as follows:
(1) A request for expedited processing shall be made in writing and
submitted as part of a request for records in accordance with Sec.
1070.14(b). When a request for records includes a request for expedited
processing, the request shall be labeled ``Expedited Processing
Requested.''
[[Page 58327]]
(2) A request for expedited processing shall contain a statement
that demonstrates a compelling need for the requester to obtain
expedited processing of the requested records. A ``compelling need'' is
defined as follows:
(i) Failure to obtain the requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual. The requester shall fully explain the
circumstances warranting such an expected threat so that the CFPB may
make a reasoned determination that a delay in obtaining the requested
records could pose such a threat; or
(ii) With respect to a request made by a person primarily engaged
in disseminating information, urgency to inform the public concerning
actual or alleged Federal government activity. A person ``primarily
engaged in disseminating information'' does not include individuals who
are engaged only incidentally in the dissemination of information. The
standard of ``urgency to inform'' requires that the records requested
pertain to a matter of current exigency to the American public and that
delaying a response to a request for records would compromise a
significant recognized interest to and throughout the American general
public. The requester must adequately explain the matter or activity
and why the records sought are necessary to be provided on an expedited
basis.
(3) The requester shall certify the written statement that purports
to demonstrate a compelling need for expedited processing to be true
and correct to the best of the requester's knowledge and belief. The
certification must be in the form prescribed by 28 U.S.C. 1746: ``I
declare under penalty of perjury that the foregoing is true and correct
to the best of my knowledge and belief. Executed on [date].'' The
requester shall mail or submit electronically a copy of such written
certification to the Chief FOIA Officer as set forth in Sec.
1070.14(b). The CFPB may waive this certification requirement in
appropriate circumstances.
(c) Determinations of requests for expedited processing. Within ten
(10) calendar days of its receipt of a request for expedited
processing, the CFPB shall decide whether to grant it and shall notify
the requester of the determination in writing.
(d) Effect of granting requests for expedited processing. If the
CFPB grants a request for expedited processing, then the CFPB shall
give the expedited request priority over non-expedited requests and
shall process the expedited request as soon as practicable. The CFPB
may assign expedited requests to their own simple and complex
processing tracks based upon the amount of work and/or time needed to
process them. Within each such track, an expedited request shall be
processed in the order of its receipt.
(e) Appeals of denials of requests for expedited processing. If the
CFPB denies a request for expedited processing, then the requester
shall have the right to submit an appeal of the denial determination in
accordance with Sec. 1070.21. The CFPB shall communicate this appeal
right as part of its written notification to the requester denying
expedited processing. The requester shall label its appeal request
``Appeal for Expedited Processing.'' The CFPB shall act expeditiously
upon an appeal of a denial of a request for expedited processing.
Sec. 1070.18 Responses to requests for CFPB records.
(a) Acknowledgements of requests. Upon receipt of a perfected
request, the CFPB will assign to the request a unique tracking number.
The CFPB will send an acknowledgement letter to the requester by mail
or email within ten (10) calendar days of receipt of the request. The
acknowledgment letter will contain the following information:
(1) The applicable request tracking number;
(2) The date of receipt of the request, as determined in accordance
with section 1070.14(d), as well as the date when the requester may
expect a response;
(3) A brief statement identifying the subject matter of the
request; and
(4) A confirmation, with respect to any fees that may apply to the
request pursuant to Sec. 1070.22, that the requester has sought a
waiver or reduction in such fees, has agreed to pay any and all
applicable fees, or has specified an upper limit that the requester is
willing to pay in fees to process the request.
(b) Initial determination to grant or deny a request. (1) The
officer designated in Sec. 1070.15(b) to this subpart, or his or her
delegate, shall make initial determinations either to grant or to deny
in whole or in part requests for records.
(2) If the request is granted in full or in part, and if the
requester requests a copy of the records requested, then a copy of the
records shall be mailed or emailed to the requester in the requested
format, to the extent the records are readily producible in the
requested format. The CFPB shall also send the requester a statement of
the applicable fees, either at the time of the determination or shortly
thereafter.
(3) In the case of a request for inspection, the requester shall be
notified in writing of the determination, when and where the requested
records may be inspected, and of the fees incurred in complying with
the request. The CFPB shall then promptly make the records available
for inspection at the time and place stated, in a manner that will not
interfere with CFPB's operations and will not exclude other persons
from making inspections. The requester shall not be permitted to remove
the records from the room where inspection is made. If, after making
inspection, the requester desires copies of all or a portion of the
requested records, copies shall be furnished upon payment of the
established fees prescribed by Sec. 1070.22. Fees may be charged for
search and review time as stated in Sec. 1070.22.
(4) If it is determined that the request for records should be
denied in whole or in part, the requester shall be notified by mail or
by email. The letter of notification shall:
(i) State the exemptions relied upon in denying the request;
(ii) If technically feasible, indicate the amount of information
deleted and the exemptions under which the deletion is made at the
place in the record where such deletion is made (unless providing such
indication would harm an interest protected by the exemption relied
upon to deny such material);
(iii) Set forth the name and title or position of the responsible
official;
(iv) Advise the requester of the right to seek dispute resolution
services from the Bureau's FOIA Public Liaison or the Office of
Governmental Information Services;
(v) Advise the requester of the right to administrative appeal in
accordance with Sec. 1070.21; and
(vi) Specify the official or office to which such appeal shall be
submitted.
(5) If it is determined, after a reasonable search for records,
that no responsive records have been found to exist, the requester
shall be notified in writing or by email. The notification shall also
advise the requester of the right to administratively appeal the CFPB's
determination that no responsive records exist (i.e., to challenge the
adequacy of the CFPB's search for responsive records) in accordance
with Sec. 1070.21. The response shall specify the official or office
to which the appeal shall be submitted for review.
(c) Resolution of disputes. The CFPB is committed to efficiently
resolving disputes during the request process. The following resources
are available to
[[Page 58328]]
requesters to resolve any disputes that may arise during the request
process:
(1) FOIA Public Liaison. Any request related questions or concerns
should be directed to the FOIA Public Liaison, who is responsible for
reducing delays, increasing transparency and understanding of the
status of requests, and assisting in the resolution of disputes.
(2) Mediation. The National Archives and Records Administration
(NARA), Office of Government Information Services (OGIS) offers non-
compulsory, non-binding mediation services to help resolve FOIA
disputes. A requester may contact OGIS directly at Office of Government
Information Services, National Archives and Records Administration,
Room 2510, 8601 Adelphi Road, College Park, MD 20740-6001, Email:
ogis@nara.gov, Phone: (301) 837-1996, Fax: (301) 837-0348. This
information is provided as a public service only. By providing this
information, the CFPB does not commit to refer disputes to OGIS, or to
defer to OGIS mediation decisions in particular cases.
(d) Format of records disclosed. (1) The CFPB will provide records
in the requested format if the records can readily be reproduced from
the original file to that specific format.
(2) The CFPB may charge fees associated with converting records or
files into the requested format in accordance with Sec. 1070.22.
Sec. 1070.19 Classified information.
Whenever a request is made for a record containing information that
another agency has classified, or which may be appropriate for
classification by another agency under Executive Order 13526 or any
other executive order concerning the classification of information, the
CFPB shall refer the responsibility for responding to the request to
the classifying or originating agency, as appropriate.
Sec. 1070.20 Requests for business information provided to the CFPB.
(a) In general. Business information provided to the CFPB by a
business submitter shall not be disclosed pursuant to a FOIA request
except in accordance with this section.
(b) Definitions. For purposes of this section:
(1) Business information means commercial or financial information
obtained by the CFPB from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter means any person from whom the CFPB obtains business
information, directly or indirectly. The term includes, without
limitation, corporations, State, local, and tribal governments, and
foreign governments.
(c) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4 of the FOIA. These
designations will expire ten (10) years after the date of the
submission unless the submitter requests otherwise and provides
justification for, a longer designation period.
(d) Notice to submitters. The CFPB shall provide a submitter with
prompt written notice of receipt of a request or appeal encompassing
its business information whenever required in accordance with paragraph
(e) of this section. Such written notice shall either describe the
exact nature of the business information requested or provide copies of
the records or portions of records containing the business information.
When notification of a voluminous number of submitters is required,
notification may be made by posting or publishing the notice in a place
reasonably likely to accomplish it.
(e) When notice is required. (1) The CFPB shall provide a submitter
with notice of receipt of a request or appeal whenever:
(i) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The CFPB has reason to believe that the information may be
protected from disclosure under Exemption 4.
(2) The notice requirements of this paragraph shall not apply if:
(i) The CFPB determines that the information is exempt under the
FOIA;
(ii) The information lawfully has been published or otherwise made
available to the public;
(iii) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(iv) The designation made by the submitter under paragraph
(e)(1)(i) of this section appears obviously frivolous, except that, in
such a case, the CFPB shall, within a reasonable time prior to a
specified disclosure date, give the submitter written notice of any
final decision to disclose the information.
(f) Opportunity to object to disclosure before release. (1) Through
the notice described in paragraph (d) of this section, the CFPB shall
delay any release in order to afford a submitter ten (10) business days
from the date of the notice to provide the CFPB with a detailed
statement of any objection to disclosure. Such statement shall specify
all grounds for withholding any of the information under any exemption
of the FOIA and, in the case of Exemption 4, shall demonstrate why the
information is considered to be a trade secret or commercial or
financial information that is privileged or confidential. In the event
that a submitter fails to respond to the notice within the time
specified in it, the submitter shall be considered to have no objection
to disclosure of the information. Information provided by a submitter
pursuant to this paragraph may itself be subject to disclosure under
the FOIA.
(2) When notice is given to a submitter under this section, the
requester shall be advised that such notice has been given to the
submitter. The requester shall be further advised that a delay in
responding to the request may be considered a denial of access to
records and that the requester may proceed with an administrative
appeal or seek judicial review, if appropriate. However, the requester
will be invited to agree to a voluntary extension of time so that the
CFPB may review the submitter's objection to disclose, if any.
(g) Notice of intent to disclose. The CFPB shall consider a
submitter's objections and specific grounds for nondisclosure prior to
determining whether to disclose business information. Whenever the CFPB
decides to disclose business information over the objection of a
submitter, the CFPB shall forward to the submitter a written notice
which shall include:
(1) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date which is not less than ten (10)
business days after the notice of the final decision to release the
requested information has been mailed to the submitter. Except as
otherwise prohibited by law, a copy of the disclosure notice shall be
forwarded to the requester at the same time.
(h) Notice to submitter of FOIA lawsuit. Whenever a requester
brings suit seeking to compel disclosure of business information, the
CFPB shall promptly notify the submitter of that business information
of the existence of the suit.
(i) Notice to requester of business information. The CFPB shall
notify a requester whenever it provides the
[[Page 58329]]
submitter with notice and an opportunity to object to disclosure;
whenever it notifies the submitter of its intent to disclose the
requested information; and whenever a submitter files a lawsuit to
prevent the disclosure of the information.
Sec. 1070.21 Administrative appeals.
(a) Grounds for administrative appeals. A requester may appeal an
initial determination of the CFPB, including for the following reasons:
(1) To deny access to records in whole or in part (as provided in
Sec. 1070.18(b));
(2) To assign a particular fee category to the requestor (as
provided in Sec. 1070.22(b));
(3) To deny a request for a reduction or waiver of fees (as
provided in Sec. 1070.22(e));
(4) That no records exist that are responsive to the request (as
provided in Sec. 1070.18(b)); or
(5) To deny a request for expedited processing (as provided in
Sec. 1070.17(e)).
(b) Time limits for filing administrative appeals. An appeal, other
than an appeal of a denial of expedited processing, must be postmarked
or submitted electronically on a date that is within ninety (90)
calendar days after the date the initial determination is sent to the
requester or the date of the letter transmitting the last records
released, whichever is later. An appeal of a denial of expedited
processing must be made within ten (10) days of the date of the initial
determination letter to deny expedited processing (see Sec. 1070.17).
(c) Form and content of administrative appeals. In order to ensure
a timely response to an appeal, the appeal shall be made in writing as
follows:
(1) If appeal is submitted by mail or delivery service, it shall be
addressed to and submitted to the officer specified in paragraph (e) of
this section at the address set forth in 1070.14(b). The appeal shall
be labeled ``Freedom of Information Act Appeal.''
(2) If an appeal is submitted by electronic means, it shall be
addressed to the officer specified in paragraph (e) of this section and
submitted as set forth on the CFPB's Web site, https://www.consumerfinance.gov. The appeal shall be labeled ``Freedom of
Information Act Appeal.''
(3) The appeal shall set forth contact information for the
requester, including, to the extent available, a mailing address,
telephone number, or email address at which the CFPB may contact the
requester regarding the appeal; and
(4) The appeal shall specify the applicable request tracking
number, the date of the initial request, and the date of the letter of
initial determination, and, where possible, enclose a copy of the
initial request and the initial determination being appealed.
(d) Processing of administrative appeals. The FOIA office will
record the date that appeals are received. The receipt of the appeal
will be acknowledged by the CFPB and the requester will be advised of
the date the appeal was received, the appeal tracking number, and the
expected date of response.
(e) Determinations to grant or deny administrative appeals. The
General Counsel is authorized to and shall decide whether to affirm the
initial determination (in whole or in part), to reverse the initial
determination (in whole or in part) or to remand the initial
determination to the Chief FOIA Officer for further action and shall
notify the requester of this decision in writing within twenty (20)
business days after the date of receipt of the appeal, unless extended
pursuant to Sec. 1070.16(d).
(1) If it is decided that the appeal is to be denied (in whole or
in part) the requester shall be:
(i) Notified in writing of the denial;
(ii) Notified of the reasons for the denial, including which of the
FOIA exemptions were relied upon;
(iii) Notified of the name and title or position of the official
responsible for the determination on appeal;
(iv) Provided with a statement that judicial review of the denial
is available in the United States District Court for the judicial
district in which the requester resides or has a principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia in accordance with 5 U.S.C.
552(a)(4)(B); and
(v) Provided with notification that mediation services are
available to the requester as a non-exclusive alternative to litigation
through the Office of Government Information Services in accordance
with 5 U.S.C. 552(h)(3).
(2) If the initial determination is reversed on appeal, the
requester shall be so notified and the request shall be processed
promptly in accordance with the decision on appeal.
(3) If the initial determination is remanded on appeal to the Chief
FOIA Officer for further action, the requester shall be so notified and
the request shall be processed in accordance with the decision on
appeal. The remanded request shall be treated as a new request received
by the CFPB as of the date when the General Counsel transmits the
remand notification to the requester. The procedures and deadlines set
forth in this subpart for processing, deciding, responding to, and
filing administrative appeals of new FOIA requests shall apply to the
remanded request.
(f) Adjudication of administrative appeals of requests in
litigation. An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
Sec. 1070.22 Fees for processing requests for CFPB records.
(a) In general. The CFPB shall determine whether and to what extent
to charge a requester fees for processing a FOIA request, for the
services and in the amounts set forth in this paragraph, by determining
an appropriate fee category for the requester (as set forth in
paragraph (b) of this section) and then by charging the requester those
fees applicable to the assigned category (as set forth in paragraph (c)
of this section), unless circumstances exist (as described in paragraph
(d) of this section) that render fees inapplicable or inadvisable or
unless the requester has requested and the CFPB has granted a reduction
in or waiver of fees (as set forth in paragraph (e) of this section).
(1) The CFPB shall charge a requester fees for the cost of copying
or printing records at the rate of $0.10 per page.
(2) The CFPB shall charge a requester for all time spent by its
employees searching for records that are responsive to a request. The
CFPB shall charge the requester fees for search time as follows:
(i) The CFPB shall charge for search time at the salary rate(s)
(basic pay plus sixteen (16) percent) of the employee(s) who conduct
the search. However, the CFPB shall charge search fees at the rate of
$9.00 per fifteen (15) minutes of search time whenever only
administrative/clerical employees conduct a search and at the rate of
$23.00 per fifteen (15) minutes of search time whenever only
professional/executive employees conduct a search. Search charges shall
also include transportation of employees and records necessary to the
search at actual cost. Fees may be charged for search time even if the
search does not yield any responsive records, or if records are exempt
from disclosure.
(ii) The CFPB shall charge the requester for the actual direct
costs of conducting an electronic records search, including computer
search time, runs, and output. The CFPB shall also charge for time
spent by computer operators or programmers (at the rates set forth in
paragraph (a)(2)(i) of this section) who conduct or assist in the
conduct of an electronic records search.
(3) The CFPB shall charge a requester for time spent by its
employees
[[Page 58330]]
examining responsive records to determine whether any portions of such
record are exempt from disclosure, pursuant to the FOIA exemptions of 5
U.S.C. 552(b). The CFPB shall also charge a requester for time spent by
its employees redacting any such exempt information from a record and
preparing a record for release to the requester. The CFPB shall charge
a requester for time spent reviewing records at the salary rate(s)
(i.e., basic pay plus sixteen (16) percent) of the employees who
conduct the review. However, the CFPB shall charge review fees at the
rate of $9.00 per fifteen (15) minutes of search time whenever only
administrative/clerical employees review records and at the rate of
$23.00 per fifteen (15) minutes of search time whenever only
professional/executive employees review records. Fees shall be charged
for review time even if records ultimately are not disclosed.
(4) Fees for all services provided shall be charged whether or not
copies are made available to the requester for inspection. However, no
fee shall be charged for monitoring a requester's inspection of
records.
(5) Other services and materials requested which are not covered by
this part nor required by the FOIA are chargeable at the actual cost to
the CFPB. This includes, but is not limited to:
(i) Certifying that records are true copies; or
(ii) Sending records by special methods such as express mail, etc.
(b) Categories of requesters. (1) For purposes of assessing fees as
set forth in this section, each requester shall be assigned to one of
the following categories:
(i) Commercial user refers to one who seeks information for a use
or purpose that furthers the commercial, trade, or profit interests of
the requester or the person on whose behalf the request is made, which
can include furthering those interests through litigation. The CFPB's
decision to place a requester in the commercial use category will be
made on a case-by-case basis based on how the requester will use the
information.
(ii) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(iii) Non-commercial scientific institution refers to an
institution that is not operated on a ``commercial user'' basis as that
term is defined in paragraph (b)(2)(i) of this section, and which is
operated solely for the purpose of conducting scientific research, the
results of which are not intended to promote any particular product or
industry.
(iv) Representative of the news media refers to any person or
entity that gathers information of potential interest to a segment of
the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. In this
paragraph, the term `news' means information that is about current
events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of `news') who make their products
available for purchase by or subscription by or free distribution to
the general public. Other examples of news media entities include
online publications and Web sites that regularly deliver news content
to the public. These examples are not all-inclusive. Moreover, as
methods of news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be news-media
entities. A freelance journalist shall be regarded as working for a
news-media entity if the journalist can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the CFPB may also
consider the past publication record of the requester in making such a
determination.
(v) ``Other'' requester refers to a requester who does not fall
within any of the previously described categories.
(2) Within twenty (20) calendar days of its receipt of a request,
the CFPB shall make a determination as to the proper fee category to
apply to a requester. The CFPB shall inform the requester of the
determination in the request acknowledgment letter, or if no such
letter is required, in another writing. Where the CFPB has reasonable
cause to doubt the use to which a requester will put the records
sought, or where that use is not clear from the request itself, the
CFPB should seek additional clarification before assigning the request
to a specific category.
(3) If the CFPB assigns to a requester a fee category, then the
requester shall have the right to submit an appeal of the CFPB's
determination in accordance with Sec. 1070.21. The CFPB shall
communicate this appeal right as part of its written notification to
the requester of an adverse fee category determination. The requester
shall label its appeal request ``Appeal of Fee Category
Determination.''
(c) Fees applicable to each category of requester. The following
fee schedule applies uniformly throughout the CFPB to requests
processed under the FOIA. Specific levels of fees are prescribed for
each category of requester defined in paragraph (b) of this section.
(1) Commercial users shall be charged the full direct costs of
searching for, reviewing, and duplicating the records they request.
Moreover, when a request is received for disclosure that is primarily
in the commercial interest of the requester, the CFPB is not required
to consider a request for a waiver or reduction of fees based upon the
assertion that disclosure would be in the public interest. The CFPB may
recover the cost of searching for and reviewing records even if there
is ultimately no disclosure of records or no records are located.
(2) Educational and non-commercial scientific institution
requesters shall be charged only for the cost of duplicating the
records they request, except that the CFPB shall provide the first one
hundred (100) pages of duplication free of charge. To be eligible,
requesters must show that the request is made under the auspices of a
qualifying institution and that the records are not sought for a
commercial use, but are sought in furtherance of scholarly (if the
request is from an educational institution) or scientific (if the
request is from a non-commercial scientific institution) research.
These categories do not include requesters who want records for use in
meeting individual academic research or study requirements.
(3) Representatives of the news media shall be charged only for the
cost of duplicating the records they request, except that the CFPB
shall provide them with the first one hundred (100) pages of
duplication free of charge.
(4) Other requesters who do not fit any of the categories described
above shall be charged the full direct cost of searching for and
duplicating records that are responsive to the request, except that the
CFPB shall provide the first one hundred (100) pages of duplication and
the first two hours of search time free of charge. The CFPB may recover
the cost of searching for records even if there is ultimately no
disclosure of records, or no records are located. Requests from persons
for
[[Page 58331]]
records about themselves filed in the CFPB's systems of records shall
continue to be treated under the fee provisions of the Privacy Act of
1974, 5 U.S.C. 552a, which permit fees only for duplication, after the
first one hundred (100) pages are furnished free of charge.
(d) Other circumstances when fees are not charged. Notwithstanding
paragraphs (b) and (c) of this section, the CFPB may not charge a
requester a fee for processing a FOIA request if any of the following
applies:
(1) The cost of collecting a fee would be equal to or greater than
the fee itself;
(2) The fee is less than $250, excluding duplication costs;
(3) The fees were waived or reduced in accordance with paragraph
(e) of this section;
(4) If the CFPB fails to comply with any time limit under Sec.
1070.15 or Sec. 1070.21, then the CFPB shall not assess search fees,
or if the requester is a representative of the news media or an
educational or noncommercial scientific institution, then the CFPB
shall not assess duplication fees, unless the CFPB has:
(i) Determined that unusual circumstances apply to the processing
of the request;
(ii) Provided timely written notice to the requester of the unusual
circumstances in accordance with Sec. 1070.16(d);
(iii) Determined that more than 5,000 pages are necessary to
respond to the request; and
(iv) Discussed with the requester via mail, email, or telephone (or
made not less than three good-faith attempts to do so) how the
requester could effectively limit the scope of the request.
(5) If the CFPB determines, as a matter of administrative
discretion, that waiving or reducing the fees would serve the interest
of the United States Government.
(e) Waiver or reduction of fees. (1) A requester shall be entitled
to receive from the CFPB a waiver or reduction in the fees otherwise
applicable to a FOIA request whenever the requester:
(i) Requests such waiver or reduction of fees in writing as part of
the FOIA request;
(ii) Labels the request for waiver or reduction of fees ``Fee
Waiver or Reduction Requested'' on the FOIA request; and
(iii) Demonstrates that the fee reduction or waiver request that a
waiver or reduction of the fees is in the public interest because:
(A) Furnishing the information is likely to contribute
significantly to public understanding of the operations or activities
of the government; and
(B) Furnishing the information is not primarily in the commercial
interest of the requester.
(2) To determine whether the requester has satisfied the
requirements of paragraph (e)(1)(iii)(A), the CFPB shall consider the
following factors:
(i) The subject of the requested records must concern identifiable
operations or activities of the Federal government, with a connection
that is direct and clear, and not remote or attenuated.
(ii) The disclosable portions of the requested records must be
meaningfully informative about government operations or activities in
order to be ``likely to contribute'' to an increased public
understanding of those operations or activities. The disclosure of
information that already is in the public domain, in either a
duplicative or a substantially similar form, is not as likely to
contribute to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media will satisfy this
consideration.
(iv) The public's understanding of the subject in question, as
compared to the level of public understanding existing prior to the
disclosure, must be enhanced by the disclosure to a significant extent.
(3) To determine whether the requester has satisfied the
requirements of paragraph (e)(1)(iii)(B), the CFPB shall consider the
following factors:
(i) The CFPB shall consider any commercial interest of the
requester (with reference to the definition of ``commercial user'' in
(b)(1)(i) of this section), or of any person on whose behalf the
requester may be acting, that would be furthered by the requested
disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(ii) A fee waiver or reduction is justified where the public
interest standard is satisfied and that public interest is greater in
magnitude than that of any identified commercial interest in
disclosure. The CFPB ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) If the CFPB denies a request to reduce or waive fees, then the
CFPB shall advise the requester, in the denial notification letter,
that the requester may incur fees if the CFPB proceeds to process the
request. The notification letter shall also advise the requester that
the CFPB will not proceed to process the request further unless the
requester, in writing, directs the CFPB to do so and either agrees to
pay any fees that may apply to processing the request or specifies an
upper limit that the requester is willing to pay to process the
request. If the CFPB does not receive this written direction and
agreement/specification within thirty (30) calendar days of the date of
the denial notification letter, then the CFPB shall deem the request to
be withdrawn.
(6) If the CFPB denies a request to reduce or waive fees, then the
requester shall have the right to submit an appeal of the denial
determination in accordance with Sec. 1070.21. The CFPB shall
communicate this appeal right as part of its written notification to
the requester denying the fee reduction or waiver request. The
requester should label its appeal request ``Appeal for Fee Reduction/
Waiver.''
(f) Advance notice and prepayment of fees. (1) The CFPB shall
notify a requester of the estimated fees for processing a request and
provide a breakdown of the fees attributable to search, review, and
duplication, when the estimated fees are $250 or more and:
(i) The fees exceed the limit set by the requester;
(ii) The requester did not specify a limit; or
(iii) The CFPB has denied a request for a reduction or waiver of
fees.
The requester must provide an agreement to pay the estimated fees;
however, the requester shall also be given an opportunity to
reformulate the request in an attempt to reduce fees.
(2) If the fees are estimated to exceed $1000, the requester must
pre-pay such amount prior to the processing of the request, or provide
satisfactory assurance of full payment if the requester has a history
of prompt payment of FOIA fees. The requester shall also be given an
opportunity to reformulate the request in such a way as to lower the
applicable fees.
[[Page 58332]]
(3) The CFPB reserves the right to request prepayment after a
request is processed and before documents are released.
(4) If a requester has previously failed to pay a fee within thirty
(30) calendar days of the date of the billing, the requester shall be
required to pay the full amount owed plus any applicable interest and
to make an advance payment of the full amount of the estimated fee
before the CFPB begins to process a new request or the pending request.
(5) When the CFPB acts under paragraphs (f)(1) through (4) of this
section, the statutory time limits of twenty (20) days (excluding
Saturdays, Sundays, and legal public holidays) from receipt of initial
requests or appeals, plus extensions of these time limits, shall begin
only after fees have been paid, a written agreement to pay fees has
been provided, or a request has been reformulated.
(g) Form of payment. Payment may be tendered as set forth on the
CFPB's Web site, https://www.consumerfinance.gov.
(h) Charging interest. The CFPB may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the CFPB. The CFPB will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
(i) Aggregating requests. Where the CFPB reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the CFPB may aggregate those requests and charge accordingly. The
CFPB may presume that multiple requests of this type made within a
thirty (30) day period have been made in order to avoid fees. Where
requests are separated by a longer period, the CFPB will aggregate them
only where there exists a solid basis for determining that aggregation
is warranted under all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
Sec. 1070.23 Authority and responsibilities of the Chief FOIA
Officer.
(a) Chief FOIA Officer. The Director authorizes the Chief FOIA
Officer to act upon all requests for agency records, with the exception
of determining appeals from the initial determinations of the Chief
FOIA Officer, which will be decided by the General Counsel. The Chief
FOIA officer shall, subject to the authority of the Director:
(1) Have CFPB-wide responsibility for efficient and appropriate
compliance with the FOIA;
(2) Monitor implementation of the FOIA throughout the CFPB and keep
the Director, the General Counsel, and the Attorney General
appropriately informed of the CFPB's performance in implementing the
FOIA;
(3) Recommend to the Director such adjustments to agency practices,
policies, personnel and funding as may be necessary to improve the
Chief FOIA Officer's implementation of the FOIA;
(4) Review and report to the Attorney General, through the
Director, at such times and in such formats as the Attorney General may
direct, on the CFPB's performance in implementing the FOIA;
(5) Facilitate public understanding of the purposes of the
statutory exemptions of the FOIA by including concise descriptions of
the exemptions in both the CFPB's handbook and the CFPB's annual report
on the FOIA, and by providing an overview, where appropriate, of
certain general categories of CFPB records to which those exemptions
apply;
(6) Designate one or more FOIA Public Liaisons;
(7) Offer Training to Bureau staff regarding their responsibilities
under the FOIA;
(8) Serve as the primary Bureau liaison with the Office of
Government Information Services and the Office of Information Policy;
and
(9) Maintain and update, as necessary and in accordance with the
requirements of this subpart, the CFPB's FOIA Web site, including its
e-FOIA Library.
(b) FOIA Public Liaisons. FOIA Public Liaisons shall report to the
Chief FOIA Officer and shall serve as supervisory officials to whom a
requester can raise concerns about the service the requester has
received from the CFPB's FOIA office, following an initial response
from the FOIA office staff. FOIA Public Liaisons shall be responsible
for assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
Subpart C--Disclosure of CFPB Information in Connection with Legal
Proceedings
Sec. 1070.30 Purpose and scope; definitions.
(a) This subpart sets forth the procedures to be followed with
respect to subpoenas, court orders, or other requests or demands for
any CFPB information, whether contained in the files of the CFPB or
acquired by a CFPB employee as part of the performance of that
employee's duties or by virtue of employee's official status.
(b) This subpart does not apply to requests for official
information made pursuant to subparts B, D, and E of this part.
(c) This subpart does not apply to requests for information made in
the course of adjudicating claims against the CFPB by CFPB employees
(present or former) or applicants for CFPB employment for which
jurisdiction resides with the U.S. Equal Employment Opportunity
Commission, the U.S. Merit Systems Protection Board, the Office of
Special Counsel, the Federal Labor Relations Authority, or their
successor agencies, or a labor arbitrator operating under a collective
bargaining agreement between the CFPB and a labor organization
representing CFPB employees.
(d) This subpart is intended only to inform the public about CFPB
procedures concerning the service of process and responses to
subpoenas, summons, or other demands or requests for official
information or action and is not intended to and does not create, and
may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the CFPB or the
United States.
(e) For purposes of this subpart:
(1) Demand means a subpoena or order for official information,
whether contained in CFPB records or through testimony, related to or
for possible use in a legal proceeding.
(2) Legal proceeding encompasses all pre-trial, trial, and post-
trial stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, grand juries, arbitrators, or other judicial or quasi-judicial
bodies or tribunals, whether criminal, civil, or administrative in
nature, and whether foreign or domestic. This phrase includes all
stages of discovery as well as formal or informal requests by
attorneys, their agents, or others involved in legal proceedings.
(3) Official Information means all information of any kind, however
stored, that is in the custody and control of the CFPB or was acquired
by CFPB employees, or former employees as part of their official duties
or because of their official status while such individuals were
employed by or served on behalf of the CFPB. Official information also
includes any information acquired by CFPB employees or former employees
[[Page 58333]]
while such individuals were engaged in matters related to consumer
financial protection functions prior to the employees' transfer to the
CFPB pursuant to Subtitle F of the Consumer Financial Protection Act of
2010.
(4) Request means any request for official information in the form
of testimony, affidavits, declarations, admissions, responses to
interrogatories, document production, inspections, or formal or
informal interviews, during the course of a legal proceeding, including
pursuant to the Federal Rules of Civil Procedure, the Federal Rules of
Criminal Procedure, or other applicable rules of procedure.
(5) Testimony means a statement in any form, including personal
appearances before a court or other legal tribunal, interviews,
depositions, telephonic, televised, or videographed statements or any
responses given during discovery or similar proceeding in the course of
litigation.
Sec. 1070.31 Service of subpoenas, court orders, and other demands
for CFPB information or action.
(a) Except in cases in which the CFPB is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the General Counsel is authorized to receive
and accept subpoenas or other demands or requests directed to the CFPB
or its employees, whether civil or criminal in nature, for:
(1) Records of the CFPB;
(2) Official information including, but not limited to, testimony,
affidavits, declarations, admissions, responses to interrogatories, or
informal statements, relating to material contained in the files of the
CFPB or which any CFPB employee acquired in the course and scope of the
performance of his or her official duties;
(3) Garnishment or attachment of compensation of current or former
employees; or
(4) The performance or non-performance of any official CFPB duty.
(b) Documents described in paragraph (a) of this section should be
served upon the General Counsel, Consumer Financial Protection Bureau,
1700 G Street NW., Washington, DC 20552. Service must be effected as
provided in applicable rules and regulations governing service in
Federal judicial and administrative proceedings. Acceptance of such
documents by the General Counsel does not constitute a waiver of any
defense that might otherwise exist with respect to service under the
Federal Rules of Civil or Criminal Procedure or other applicable laws
or regulations.
(c) In the event that any demand or request described in paragraph
(a) of this section is sought to be delivered to a CFPB employee other
than in the manner prescribed in paragraph (b) of this section, such
employee shall decline service and direct the server of process to
these regulations. If the demand or request is nonetheless delivered to
the employee, the employee shall immediately notify, and deliver a copy
of that document to, the General Counsel.
(d) The CFPB is not an agent for service for, or otherwise
authorized to accept on behalf of its employees, any subpoenas, orders,
or other demands or requests, which are not related to the employees'
official duties.
(e) Copies of any subpoenas, orders, or other demands or requests
that are directed to former employees of the CFPB in connection with
the performance of official CFPB duties shall also be served upon the
General Counsel. The CFPB shall not, however, serve as an agent for
service for the former employee, nor is the CFPB otherwise authorized
to accept service on behalf of its former employees. If the demand
involves their official duties as CFPB employees, former employees who
receive subpoenas, orders, or similar compulsory process should also
notify, and deliver a copy of the document to, the General Counsel.
Sec. 1070.32 Testimony and production of documents prohibited unless
approved by the General Counsel.
(a) Unless authorized by the General Counsel, no employee or former
employee of the CFPB shall, in response to a demand or a request
provide oral or written testimony by deposition, declaration,
affidavit, or otherwise concerning any official information.
(b) Unless authorized by the General Counsel, no employee or former
employee shall, in response to a demand or request, produce any
document or any material acquired as part of the performance of that
employee's duties or by virtue of that employee's official status.
Sec. 1070.33 Procedure when testimony or production of documents is
sought; general.
(a) If, as part of a proceeding in which the United States or the
CFPB is not a party, official information is sought through a demand
for testimony, CFPB records, or other material, the party seeking such
information must (except as otherwise required by Federal law or
authorized by the General Counsel) set forth in writing:
(1) The title and forum of the proceeding, if applicable;
(2) A detailed description of the nature and relevance of the
official information sought;
(3) A showing that other evidence reasonably suited to the
requester's needs is not available from any other source; and
(4) If testimony is requested, the intended use of the testimony, a
general summary of the desired testimony, and a showing that no
document could be provided and used in lieu of testimony.
(b) To the extent he or she deems necessary or appropriate, the
General Counsel may also require from the party seeking such
information a plan of all reasonably foreseeable demands, including but
not limited to the names of all employees and former employees from
whom testimony or discovery will be sought, areas of inquiry, expected
duration of proceedings requiring oral testimony, identification of
potentially relevant documents, or any other information deemed
necessary to make a determination. The purpose of this requirement is
to assist the General Counsel in making an informed decision regarding
whether testimony, the production of documents, or the provision of
other information should be authorized.
(c) The General Counsel may consult or negotiate with an attorney
for a party, or the party if not represented by an attorney, to refine
or limit a request or demand so that compliance is less burdensome.
(d) The General Counsel will notify the CFPB employee and such
other persons as circumstances may warrant of his or her decision
regarding compliance with the request or demand.
Sec. 1070.34 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand described in Sec. 1070.34 is
required before the General Counsel renders a decision, the CFPB will
request that the appropriate CFPB attorney or an attorney of the
Department of Justice, as appropriate, take steps to stay, postpone, or
obtain relief from the demand pending decision. If necessary, the
attorney will:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this subpart;
(3) Inform the court or other authority that the demand has been,
or is being, as the case may be, referred for the prompt consideration
of the appropriate CFPB official; and
[[Page 58334]]
(4) Request the court or authority to stay the demand pending
receipt of the requested instructions.
(b) In the event that an immediate demand for production or
disclosure is made in circumstances which would preclude the proper
designation or appearance of an attorney of the CFPB or the Department
of Justice on the employee's behalf, the employee, if necessary, shall
request from the demanding court or authority a reasonable stay of
proceedings for the purpose of obtaining instructions from the General
Counsel.
Sec. 1070.35 Procedure in the event of an adverse ruling.
If a stay of, or other relief from, the effect of a demand made
pursuant to Sec. Sec. 1070.33 and 1070.34 is declined or not obtained,
or if the court or other judicial or quasi-judicial authority declines
to stay the effect of the demand made pursuant to Sec. Sec. 1070.33
and 1070.34, or if the court or other authority rules that the demand
must be complied with irrespective of the General Counsel's
instructions not to produce the material or disclose the information
sought, the employee upon whom the demand has been made shall decline
to comply with the demand citing this subpart and United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 1070.36 Considerations in determining whether the CFPB will
comply with a demand or request.
(a) In deciding whether to comply with a demand or request, CFPB
officials and attorneys shall consider, among other pertinent
considerations:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether the number of similar requests would have a cumulative
effect on the expenditure of CFPB resources;
(3) Whether compliance is appropriate under the relevant
substantive law concerning privilege or disclosure of information;
(4) The public interest;
(5) The need to conserve the time of CFPB employees for the conduct
of official business;
(6) The need to avoid spending time and money of the United States
for private purposes;
(7) The need to maintain impartiality between private litigants in
cases where a substantial government interest is not implicated;
(8) Whether compliance would have an adverse effect on performance
by the CFPB of its mission and duties;
(9) The need to avoid involving the CFPB in controversial issues
not related to its mission;
(10) Whether compliance would interfere with supervisory
examinations, compromise the CFPB's supervisory functions or programs,
or undermine public confidence in supervised financial institutions;
and
(11) Whether compliance would interfere with the CFPB's ability to
monitor for risks to consumers in the offering or provision of consumer
financial products and services.
(b) Among those demands and requests in response to which
compliance will not ordinarily be authorized are those with respect to
which any of the following factors, inter alia, exist:
(1) Compliance would violate a statute or applicable rule of
procedure;
(2) Compliance would violate a specific regulation or Executive
order;
(3) Compliance would reveal information properly classified in the
interest of national security;
(4) Compliance would reveal confidential or privileged commercial
or financial information or trade secrets without the owner's consent;
(5) Compliance would compromise the integrity of the deliberative
processes of the CFPB;
(6) Compliance would not be appropriate or necessary under the
relevant substantive law governing privilege;
(7) Compliance would reveal confidential information; or
(8) Compliance would interfere with ongoing investigations or
enforcement proceedings, compromise constitutional rights, or reveal
the identity of a confidential informant.
(c) The CFPB may condition disclosure of official information
pursuant to a request or demand on the entry of an appropriate
protective order.
Sec. 1070.37 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR
2635.805, CFPB employees or former employees shall not provide opinion
or expert testimony based upon information which they acquired in the
scope and performance of their official CFPB duties, except on behalf
of the CFPB or the United States or a party represented by the CFPB, or
the Department of Justice, as appropriate.
(b) Any expert or opinion testimony by a former employee of the
CFPB shall be excepted from paragraph (a) of this section where the
testimony involves only general expertise gained while employed at the
CFPB.
(c) Upon a showing by the requestor of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the General Counsel may, consistent
with 5 CFR 2635.805, exercise his or her discretion to grant special,
written authorization for CFPB employees, or former employees, to
appear and testify as expert witnesses at no expense to the United
States.
(d) If, despite the final determination of the General Counsel, a
court of competent jurisdiction or other appropriate authority orders
the appearance and expert or opinion testimony of a current or former
CFPB employee, that person shall immediately inform the General Counsel
of such order. If the General Counsel determines that no further legal
review of or challenge to the court's order will be made, the CFPB
employee, or former employee, shall comply with the order. If so
directed by the General Counsel, however, the employee, or former
employee, shall decline to testify.
Subpart D--Confidential Information
Sec. 1070.40 Purpose and scope.
This subpart does not apply to requests for official information
made pursuant to subparts B, C, or E of this part.
Sec. 1070.41 Non-disclosure of confidential information.
(a) Non-disclosure. Except as required by law or as provided in
this part, no current or former employee or contractor or consultant of
the CFPB, or any other person in possession of confidential
information, shall disclose such confidential information by any means
(including written or oral communications) or in any format (including
paper and electronic formats), to:
(1) Any person who is not an employee, contractor, or consultant of
the CFPB; or
(2) Any CFPB employee, contractor, or consultant when the
disclosure of such confidential information to that employee,
contractor, or consultant is not relevant to the performance of the
employee's, contractor's, or consultant's assigned duties.
(b) Disclosures to contractors and consultants. CFPB contractors or
consultants must treat confidential information in accordance with this
part, other Federal laws and regulations
[[Page 58335]]
that apply to Federal agencies for the protection of the
confidentiality of personally identifiable information and for data
security and integrity, as well as any additional conditions or
limitations that the CFPB may impose.
(c) Disclosure of materials derived from confidential information.
The CFPB may, in its discretion, disclose materials that it derives
from or creates using confidential information to the extent that such
materials do not identify, either directly or indirectly, any
particular person to whom the confidential information pertains.
(d) Disclosure of confidential information with consent. Where
practicable, the CFPB may, in its discretion and in accordance with
applicable law, disclose confidential information that directly or
indirectly identifies particular persons if the CFPB obtains prior
consent from such persons to make the disclosure.
(e) Nondisclosure of confidential information provided to the CFPB
by other agencies. Nothing in this subpart requires or authorizes the
CFPB to disclose confidential information that another agency has
provided to the CFPB to the extent that such disclosure contravenes
applicable law or the terms of any agreement that exists between the
CFPB and the agency to govern the CFPB's treatment of information that
the agency provides to the CFPB.
Sec. 1070.42 Disclosure of confidential supervisory information and
confidential investigative information.
(a) Discretionary disclosure of confidential supervisory
information or confidential investigative information by the CFPB. The
CFPB may, in its discretion, and to the extent consistent with
applicable law, disclose confidential supervisory information or
confidential investigative information concerning a person, its
affiliates, or its service providers to that person, its affiliates, or
its service providers.
(b) Disclosure of confidential supervisory information or
confidential investigative information by the recipients of the
information. Unless directed otherwise by the Associate Director for
Supervision, Enforcement, and Fair Lending:
(1) Any person lawfully in possession of confidential supervisory
information or confidential investigative information provided directly
to it by the CFPB pursuant to this section may disclose such
information, or portions thereof, to its affiliates and to the
following individuals to the extent that the disclosure of such
confidential supervisory information or confidential investigative
information is relevant to the performance of such individuals'
assigned duties:
(i) Its directors, officers, trustees, members, general partners,
or employees; and
(ii) The directors, officers, trustees, members, general partners,
or employees of its affiliates.
(2) Any person lawfully in possession of confidential supervisory
information or confidential investigative information provided directly
to it by the CFPB pursuant to this section may disclose such
information, or portions thereof, to:
(i) Its certified public accountant, legal counsel, contractor,
consultant, or service provider;
(ii) Its insurance provider pursuant to a claim made under an
existing policy, provided that the Bureau has not precluded
indemnification or reimbursement for the claim; information disclosed
pursuant to this subparagraph may be used by the insurance provider
solely for purposes of administering such a claim; or
(iii) Another person, with the prior written approval of the
Associate Director for Supervision, Enforcement, and Fair Lending.
(3) Where a person discloses confidential supervisory information
or confidential investigative information pursuant to paragraph (b) of
this section:
(i) The recipient of such confidential supervisory information or
confidential investigative information shall not, without the prior
written approval of the Associate Director for Supervision,
Enforcement, and Fair Lending, utilize, make, or retain copies of, or
disclose confidential supervisory information or confidential
investigative information for any purpose, except as is necessary to
provide advice or services to the person or its affiliate; and
(ii) The person disclosing the confidential supervisory information
or confidential investigative information shall take reasonable steps
to ensure that the recipient complies with paragraph (b)(3)(i) of this
section.
Sec. 1070.43 Disclosure of confidential information to agencies.
(a) Required disclosure of confidential information to agencies.
The CFPB shall:
(1) Disclose a draft of a report of examination of a supervised
financial institution prior to its finalization, in accordance with 12
U.S.C. 5515(e)(1)(C), and disclose a final report of examination,
including any and all revisions made to such a report, to a Federal or
State agency with jurisdiction over that supervised financial
institution, provided that the CFPB receives from the agency reasonable
assurances as to the confidentiality of the information disclosed; and
(2) Disclose confidential consumer complaint information to a
Federal or State agency to facilitate preparation of reports to
Congress required by 12 U.S.C. 5493(b)(3)(C) and to facilitate the
CFPB's supervision and enforcement activities and its monitoring of the
market for consumer financial products and services, provided that the
agency shall first give written assurance to the CFPB that it will
maintain such information in confidence, including in a manner that
conforms to the standards that apply to Federal agencies for the
protection of the confidentiality of personally identifiable
information and for data security and integrity.
(b) Discretionary disclosure of confidential information to
agencies. (1) Upon receipt of a written request that contains the
information required by paragraph (b)(2) of this section, the CFPB may,
in its discretion, disclose confidential information to an Agency to
the extent that the disclosure of the information is relevant to the
exercise of the Agency's statutory or regulatory authority.
(2) To obtain access to confidential information pursuant to
paragraph (b)(1) of this section, an authorized officer or employee of
the agency shall submit a written request to the CFPB's Associate
Director for Supervision, Enforcement, and Fair Lending at
accessrequests@cfpb.gov or at 1700 G Street NW., Washington, DC 20552.
The request shall include the following:
(i) A description of the particular information, kinds of
information, and where possible, the particular documents to which
access is sought;
(ii) A statement of the purpose for which the information will be
used;
(iii) A statement certifying and identifying the Agency's statutory
or regulatory authority that is relevant to the requested information,
as required by paragraph (b)(1) of this section;
(iv) A statement certifying and identifying the agency's legal
authority for protecting the requested information from public
disclosure; and
(v) A certification that the agency will maintain the requested
confidential information in confidence, including in a manner that
conforms to the standards that apply to Federal agencies for the
protection of the confidentiality of personally identifiable
information and for data security and integrity, as well as any
additional conditions or limitations that the CFPB may impose.
(c) Negotiation of standing requests. The CFPB may negotiate terms
governing the exchange of confidential
[[Page 58336]]
information with Agencies on a standing basis, as appropriate.
Sec. 1070.44 Disclosure of confidential consumer complaint
information.
The CFPB may, to the extent permitted by law, disclose confidential
consumer complaint information as it deems necessary to investigate,
resolve, or otherwise respond to consumer complaints or inquiries
concerning consumer financial products and services or a violation of
Federal consumer financial law.
Sec. 1070.45 Affirmative disclosure of confidential information.
(a) The CFPB may disclose confidential information, in accordance
with applicable law, as follows:
(1) To a CFPB employee, as that term is defined in Sec. 1070.2 and
in accordance with Sec. 1070.41;
(2) To either House of the Congress or to an appropriate committee
or subcommittee of the Congress, as set forth in 12 U.S.C. 5562(d)(2),
provided that, upon the receipt by the CFPB of a request from the
Congress for confidential information that a financial institution
submitted to the CFPB along with a claim that such information consists
of a trade secret or privileged or confidential commercial or financial
information, or confidential supervisory information, the CFPB may
notify the financial institution in writing of its receipt of the
request and provide the institution with a copy of the request;
(3) In investigational hearings and witness interviews, or
otherwise in the investigation and administration of enforcement
actions, as is reasonably necessary, at the discretion of the CFPB;
(4) In or related to an administrative or court proceeding to which
the CFPB is a party. In the case of confidential investigative
information that contains any trade secret or privileged or
confidential commercial or financial information, as claimed by
designation by the submitter of such material, or confidential
supervisory information, the submitter, or the CFPB, in its discretion,
may seek an appropriate order prior to disclosure of such material in a
proceeding;
(5) In CFPB personnel matters, as necessary and subject to
appropriate protections;
(6) To Agencies in summary form to the extent necessary to confer
with such Agencies about matters relevant to the exercise of the
Agencies' statutory or regulatory authority; or
(7) As required under any other applicable law.
Sec. 1070.46 Other disclosures of confidential information.
(a) To the extent permitted by law and as authorized by the
Director in writing, the CFPB may disclose confidential information
other than as set forth in this subpart.
(b) Prior to disclosing confidential information pursuant to
paragraph (a) of this section, the CFPB may, as it deems appropriate
under the circumstances, provide written notice to the person to whom
the confidential information pertains that the CFPB intends to disclose
its confidential information in accordance with this section.
(c) The authority of the Director to disclose confidential
information pursuant to paragraph (a) of this section shall not be
delegated. However, a person authorized to perform the functions of the
Director in accordance with law may exercise the authority of the
Director as set forth in this section.
Sec. 1070.47 Other rules regarding the disclosure of confidential
information.
(a) Further disclosure prohibited. (1) All confidential information
made available under this subpart shall remain the property of the
CFPB, unless the Associate Director for Supervision, Enforcement, and
Fair Lending provides otherwise in writing.
(2) Except as set forth in this subpart, no supervised financial
institution, Agency, any officer, director, employee or agent thereof,
or any other person to whom the confidential information is made
available under this subpart, may further disclose such confidential
information without the prior written permission of the Associate
Director for Supervision, Enforcement, and Fair Lending.
(3) No person obtaining access to confidential information pursuant
to this subpart may make a personal copy of any such information, and
no person may remove confidential information from the premises of the
institution or agency in possession of such information except as
permitted under this subpart or by the CFPB.
(b) Third party requests for information. (1) A supervised
financial institution, agency, any officer, director, employee or agent
thereof, or any other person to whom the CFPB's confidential
information is made available under this subpart, that receives from a
third party a legally enforceable demand or request for such
confidential information (including but not limited to, a subpoena or
discovery request or a request made pursuant to the Freedom of
Information Act, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a,
or any State analogue to such statutes) should:
(i) Inform the General Counsel of such request or demand in writing
and provide the General Counsel with a copy of such request or demand
as soon as practicable after receiving it;
(ii) To the extent permitted by applicable law, advise the
requester that:
(A) The confidential information sought may not be disclosed
insofar as it is the property of the CFPB; and
(B) Any request for the disclosure of such confidential information
is properly directed to the CFPB pursuant to its regulations set forth
in this part.
(iii) Consult with the General Counsel before complying with the
request or demand, and to the extent applicable:
(A) Give the CFPB a reasonable opportunity to respond to the demand
or request;
(B) Assert all reasonable and appropriate legal exemptions or
privileges that the CFPB may request be asserted on its behalf; and
(C) Consent to a motion by the CFPB to intervene in any action for
the purpose of asserting and preserving any claims of confidentiality
with respect to any confidential information.
(2) Nothing in this section shall prevent a supervised financial
institution, agency, any officer, director, employee or agent thereof,
or any other person to whom the information is made available under
this subpart from complying with a legally valid and enforceable order
of a court of competent jurisdiction compelling production of the
CFPB's confidential information, or, if compliance is deemed
compulsory, with a request or demand from either House of the Congress
or a duly authorized committee of the Congress. To the extent that
compulsory disclosure of confidential information occurs as set forth
in this paragraph, the producing party shall use its best efforts to
ensure that the requestor secures an appropriate protective order or,
if the requestor is a legislative body, use its best efforts to obtain
the commitment or agreement of the legislative body that it will
maintain the confidentiality of the confidential information.
(c) Additional conditions and limitations. The CFPB may impose any
additional conditions or limitations on disclosure or use under this
subpart that it determines are necessary.
(d) Return or destruction of records. The CFPB may require any
person in possession of CFPB confidential information to return the
records to the CFPB or destroy them.
[[Page 58337]]
(e) Non-waiver of CFPB rights. The disclosure of confidential
information to any person in accordance with this subpart does not
constitute a waiver by the CFPB of its right to control, or impose
limitations on, the subsequent use and dissemination of the
information.
(f) Non-waiver of privilege--(1) In general. The CFPB shall not be
deemed to have waived any privilege applicable to any information by
transferring that information to, or permitting that information to be
used by, any Federal or State Agency.
(2) Rule of Construction. Paragraph (f)(1) of this section shall
not be construed as implying that any person waives any privilege
applicable to any information because paragraph (f)(1) of this section
does not apply to the transfer or use of that information.
(g) Reports of unauthorized disclosure. Any person in possession of
confidential information shall immediately notify the CFPB upon the
discovery of any disclosures made in violation of this subpart.
Sec. 1070.48 Disclosure of confidential information by the Inspector
General.
(a) Nothing in this subpart shall limit the discretion of the
Office of the Inspector General of the Board of Governors of the
Federal Reserve System and the Consumer Financial Protection Bureau to
disclose confidential information as needed in accordance with the
Inspector General Act of 1978, 5 U.S.C. App. 3.
Subpart E--Privacy Act
Sec. 1070.50 Purpose and scope; definitions.
(a) This subpart implements the provisions of the Privacy Act of
1974, 5 U.S.C. 552a (the Privacy Act). The regulations apply to all
records maintained by the CFPB and which are retrieved by an
individual's name or personal identifier. The regulations set forth the
procedures for requests for access to, or amendment of, records
concerning individuals that are contained in systems of records
maintained by the CFPB. These regulations should be read in conjunction
with the Privacy Act, which provides additional information about this
topic.
(b) For purposes of this subpart, the following definitions apply:
(1) The term Chief Privacy Officer means the Chief Information
Officer of the CFPB or any CFPB employee to whom the Chief Information
Officer has delegated authority to act under this part;
(2) The term guardian means the parent of a minor, or the legal
guardian of any individual who has been declared to be incompetent due
to physical or mental incapacity or age by a court of competent
jurisdiction;
(3) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence;
(4) Maintain includes maintain, collect, use, or disseminate;
(5) Record means any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voiceprint or a photograph;
(6) Routine use means the disclosure of a record that is compatible
with the purpose for which it was collected;
(7) System of records means a group of any records under the
control of an agency from which information is retrieved by the name of
the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual; and
(8) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided by 13 U.S.C. 8.
Sec. 1070.51 Authority and responsibilities of the Chief Privacy
Officer.
The Chief Privacy Officer is authorized to:
(a) Develop, implement, and maintain an organization-wide privacy
program;
(b) Respond to requests for access to, accounting of, or amendment
of records contained in a system of records maintained by the CFPB;
(c) Approve the publication of new systems of records and amend
existing systems of record; and
(d) File any necessary reports related to the Privacy Act.
Sec. 1070.52 Fees.
(a) Copies of records. The CFPB shall provide the requester with
copies of records requested pursuant to Sec. 1070.53 at the same cost
charged for duplication of records under Sec. 1070.22.
(b) No fee. The CFPB will not charge a fee if:
(1) Total charges associated with a request are less than $5, or
(2) The requester is a CFPB employee or former employee, or an
applicant for employment with the CFPB, and the request pertains to
that employee, former employee, or applicant.
Sec. 1070.53 Request for access to records.
(a) Procedures for making a request for access to records. An
individual's requests for access to records that pertain to that
individual (or to the individual for whom the requester serves as
guardian) may be submitted to the CFPB in writing as follows:
(1) If submitted by mail or delivery service, the request shall be
labeled ``Privacy Act Request'' and shall be addressed to the Chief
Privacy Officer, Consumer Financial Protection Bureau, 1700 G Street
NW., Washington, DC 20552.
(2) If submitted by electronic means, the request shall be labeled
``Privacy Act Request'' and the request shall be submitted as set forth
at the CFPB's Web site, https://www.consumerfinance.gov.
(b) Content of a request for access to records. A request for
access to records shall include:
(1) A statement that the request is made pursuant to the Privacy
Act;
(2) The name of the system of records that the requester believes
contains the record requested, or a description of the nature of the
record sought in detail sufficient to enable CFPB personnel to locate
the system of records containing the record with a reasonable amount of
effort;
(3) Whenever possible, a description of the nature of the record
sought, the date of the record or the period in which the requester
believes that the record was created, and any other information that
might assist the CFPB in identifying the record sought (e.g., maiden
name, dates of employment, account information, etc.).
(4) Information necessary to verify the requester's identity
pursuant to paragraph (c) of this section;
(5) The mailing or email address where the CFPB's response or
further correspondence should be sent.
(c) Verification of identity. To obtain access to the CFPB's
records pertaining to a requester, the requester shall provide proof to
the CFPB of the requester's identity as provided below.
(1) In general, the following will be considered adequate proof of
a requester's identity:
(i) A photocopy of two forms of identification, including one form
of identification that bears the requester's photograph, and one form
of identification that bears the requester's signature;
(ii) A photocopy of a single form of identification that bears both
the requester's photograph and signature; or
(iii) A statement swearing or affirming the requester's identity
and to the fact that the requester understands the
[[Page 58338]]
penalties provided in 5 U.S.C. 552a(i)(3).
(2) Notwithstanding paragraph (c)(1) of this section, a designated
official may require additional proof of the requester's identity
before action will be taken on any request, if such official determines
that it is necessary to protect against unauthorized disclosure of
information in a particular case. In addition, if a requester seeks
records pertaining to an individual in the requester's capacity as that
individual's guardian, the requester shall be required to provide
adequate proof of the requester's legal relationship before action will
be taken on any request.
(d) Request for accounting of previous disclosures. An individual
may request an accounting of previous disclosures of records pertaining
to that individual in a system of records as provided in 5 U.S.C.
552a(c). Such requests should conform to the procedures and form for
requests for access to records set forth in paragraphs (a) and (b) of
this section.
Sec. 1070.54 CFPB procedures for responding to a request for access.
(a) Acknowledgment and response. The CFPB will provide written
acknowledgement of the receipt of a request within twenty (20) business
days from the receipt of the request and will, where practicable,
respond to each request within that twenty (20) day period. When a full
response is not practicable within the twenty (20) day period, the CFPB
will respond as promptly as possible.
(b) Disclosure. (1) When the CFPB discloses information in response
to a request, the CFPB will make the information available for
inspection and copying during regular business hours as provided in
Sec. 1070.13, or the CFPB will mail it or email it to the requester,
if feasible, upon request.
(2) The requester may bring with him or her anyone whom the
requester chooses to see the requested material. All visitors to the
CFPB's buildings must comply with the applicable security procedures.
(c) Denial of a request. If the CFPB denies a request made pursuant
to Sec. 1070.53, it will inform the requester in writing of the
reason(s) for denial and the procedures for appealing the denial.
Sec. 1070.55 Special procedures for medical records.
If an individual requests medical or psychological records pursuant
to Sec. 1070.53, the CFPB will disclose them directly to the requester
unless the CFPB determines that such disclosure could have an adverse
effect on the requester. If the CFPB makes that determination, the CFPB
shall provide the information to a licensed physician or other
appropriate representative that the requester designates, who shall
disclose those records to the requester in a manner he or she deems
appropriate.
Sec. 1070.56 Request for amendment of records.
(a) Procedures for making request. (1) If an individual wishes to
amend a record that pertains to that individual in a system of records,
that individual may submit a request in writing to the Chief Privacy
Officer, as set forth in Sec. 1070.53(a). The request shall be labeled
``Privacy Act Amendment Request.''
(2) A request for amendment of a record must:
(i) Identify the name of the system of records that the requester
believes contains the record for which the amendment is requested, or a
description of the nature of the record in detail sufficient to enable
CFPB personnel to locate the system of records containing the record
with a reasonable amount of effort;
(ii) Specify the portion of that record requested to be amended;
and
(iii) Describe the nature and reasons for each requested amendment.
(3) When making a request for amendment of a record, the CFPB will
require a requester to verify his or her identity under the procedures
set forth in Sec. 1070.53(c), unless the requester has already done so
in a related request for access or amendment.
(b) Burden of proof. In a request for amendment of a record, the
requester bears the burden of proving by a preponderance of the
evidence that the record is not accurate, relevant, timely, or
complete.
Sec. 1070.57 CFPB review of a request for amendment of records.
(a) Time limits. The CFPB will acknowledge a request for amendment
of records within ten (10) business days after it receives the request.
In the acknowledgment, the CFPB may request additional information
necessary for a determination on the request for amendment. The CFPB
will make a determination on a request to amend a record promptly.
(b) Contents of response to a request for amendment. When the CFPB
responds to a request for amendment, the CFPB will inform the requester
in writing whether the request is granted or denied, in whole or in
part. If the CFPB grants the request, it will take the necessary steps
to amend the record and, when appropriate and possible, notify prior
recipients of the record of its action. If the CFPB denies the request,
in whole or in part, it will inform the requester in writing:
(1) Why the request (or portion of the request) was denied;
(2) That the requester has a right to appeal; and
(3) How to file an appeal.
Sec. 1070.58 Appeal of adverse determination of request for access or
amendment.
(a) Appeal. A requester may appeal a denial of a request made
pursuant to Sec. 1070.53 or Sec. 1070.56 within ten (10) business
days after the CFPB notifies the requester that it has denied the
request.
(b) Content of appeal. A requester may submit an appeal in writing
as set forth in Sec. 1070.53(a). The appeal shall be addressed to the
General Counsel and labeled ``Privacy Act Appeal.'' The appeal must
also:
(1) Specify the background of the request; and
(2) Provide reasons why the requester believes the denial is in
error.
(c) Determination. The General Counsel will make a determination as
to whether to grant or deny an appeal within thirty (30) business days
from the date it is received, unless the General Counsel extends the
time for good cause.
(1) If the General Counsel grants an appeal regarding a request for
amendment, he or she will take the necessary steps to amend the record
and, when appropriate and possible, notify prior recipients of the
record of its action.
(2) If the General Counsel denies an appeal, he or she will inform
the requester of such determination in writing, including the reasons
for the denial, and the requester's right to file a statement of
disagreement and to have a court review its decision.
(d) Statement of disagreement. (1) If the General Counsel denies an
appeal regarding a request for amendment, a requester may file a
concise statement of disagreement with the denial. The CFPB will
maintain the requester's statement with the record that the requester
sought to amend and any disclosure of the record will include a copy of
the requester's statement of disagreement.
(2) When practicable and appropriate, the CFPB will provide a copy
of the statement of disagreement to any prior recipients of the record.
Sec. 1070.59 Restrictions on disclosure.
The CFPB will not disclose any record about an individual contained
in a system of records to any person or agency without the prior
written consent of that individual unless the
[[Page 58339]]
disclosure is authorized by 5 U.S.C. 552a(b). Disclosures authorized by
5 U.S.C. 552a(b) include disclosures that are compatible with one or
more routine uses that are contained within the CFPB's Systems of
Records Notices, which are available on the CFPB's Web site, at https://www.consumerfinance.gov.
Sec. 1070.60 Exempt records.
(a) Exempt systems of records. Pursuant to 5 U.S.C. 552a(k)(2), the
CFPB exempts the systems of records listed below from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G)-(H), and (f), and Sec. Sec. 1070.53
through 1070.59, to the extent that such systems of records contain
investigatory materials compiled for law enforcement purposes,
provided, however, that if any individual is denied any right,
privilege, or benefit to which he or she would otherwise be entitled
under Federal law, or for which he or she would otherwise be eligible
as a result of the maintenance of such material, such material shall be
disclosed to such individual, except to the extent that the disclosure
of such material would reveal the identity of a source who furnished
information to the CFPB under an express promise that the identity of
the source would be held in confidence:
(1) CFPB.002 Depository Institution Supervision Database.
(2) CFPB.003 Non-Depository Institution Supervision Database.
(3) CFPB.004 Enforcement Database.
(4) CFPB.005 Consumer Response System.
(b) Information compiled for civil actions or proceedings. This
subpart does not permit an individual to have access to any information
compiled in reasonable anticipation of a civil action or proceeding.
Sec. 1070.61 Training; rules of conduct; penalties for non-
compliance.
(a) Training. The Chief Privacy Officer shall institute a training
program to instruct CFPB employees and contractor personnel covered by
5 U.S.C. 552a(m), who are involved in the design, development,
operation, or maintenance of any CFPB system of records, on a
continuing basis with respect to the duties and responsibilities
imposed on them and the rights conferred on individuals by the Privacy
Act, the regulations in this subpart, and any other related
regulations. Such training shall provide suitable emphasis on the civil
and criminal penalties imposed on the CFPB and the individual employees
by the Privacy Act for non-compliance with specified requirements of
the Act as implemented by the regulations in this subpart.
(b) Rules of conduct. The following rules of conduct are applicable
to employees of the CFPB (including, to the extent required by the
contract or 5 U.S.C. 552a(m), Government contractors and employees of
such contractors), who are involved in the design, development,
operation or maintenance of any system of records, or in maintain any
records, for or on behalf of the CFPB.
(1) The head of each office of the CFPB shall be responsible for
assuring that employees subject to such official's supervision are
advised of the provisions of the Privacy Act, including the criminal
penalties and civil liabilities provided therein, and the regulations
in this subpart, and that such employees are made aware of their
individual and collective responsibilities to protect the security of
personal information, to assure its accuracy, relevance, timeliness and
completeness, to avoid unauthorized disclosure either orally or in
writing, and to ensure that no system of records is maintained without
public notice.
(2) Employees of the CFPB involved in the design, development,
operation, or maintenance of any system of records, or in maintaining
any record shall:
(i) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility of the CFPB;
(ii) Collect information, to the extent practicable, directly from
the individual to whom it relates;
(iii) Inform each individual asked to supply information, on the
form used to collect the information or on a separate form that can be
retained by the individual of--
(A) The authority (whether granted by statute, or by executive
order of the President) which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary;
(B) The principal purpose or purposes for which the information is
intended to be used;
(C) The routine uses which may be made of the information, as
published pursuant to 5 U.S.C. 552a(e)(4)(D); and
(D) The effects on the individual, if any, of not providing all or
any part of the requested information.
(iv) Not collect, maintain, use or disseminate information
concerning an individual's religious or political beliefs or activities
or membership in associations or organizations, unless expressly
authorized by statute or by the individual about whom the record is
maintained or unless pertinent to and within the scope of an authorized
law enforcement activity;
(v) Advise their supervisors of the existence or contemplated
development of any record system which is capable of retrieving
information about individuals by individual identifier;
(vi) Assure that no records maintained in a CFPB system of records
are disseminated without the permission of the individual about whom
the record pertains, except when authorized by 5 U.S.C. 552a(b);
(vii) Maintain and process information concerning individuals with
care in order to ensure that no inadvertent disclosure of the
information is made either within or without the CFPB;
(viii) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to 5 U.S.C. 552a(b)(2) of this section, make reasonable efforts to
assure that such records are accurate, complete, timely, and relevant
for agency purposes; and
(ix) Assure that an accounting is kept in the prescribed form, of
all dissemination of personal information outside the CFPB, whether
made orally or in writing, unless disclosed under 5 U.S.C. 552 or
subpart B of this part.
(3) The head of each office of the CFPB shall, at least annually,
review the record systems subject to their supervision to ensure
compliance with the provisions of the Privacy Act of 1974 and the
regulations in this subpart.
Sec. 1070.62 Preservation of records.
The CFPB will preserve all correspondence pertaining to the
requests that it receives under this part, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of or destroyed while they are the subject of a pending
request, appeal, proceeding, or lawsuit.
Sec. 1070.63 Use and collection of Social Security numbers.
The CFPB will ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their Social Security
numbers, unless the collection is authorized either by a statute or by
a regulation issued prior to 1975; and
[[Page 58340]]
(b) That individuals requested to provide their Social Security
numbers must be informed of:
(1) Whether providing Social Security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of Social Security numbers; and
(3) The uses that will be made of the numbers.
PART 1091--PROCEDURAL RULE TO ESTABLISH SUPERVISORY AUTHORITY OVER
CERTAIN NONBANK COVERED PERSONS BASED ON RISK DETERMINATION
0
2. The authority citation for part 1091 continues to read as follows:
Authority: 12 U.S.C. 5512(b)(1), 5514(a)(1)(C), 5514(b)(7).
Subpart B--Determination and Voluntary Consent Procedures
0
3. Section 1091.103 is amended by revising paragraph (a)(2)(vii) to
read as follows:
Sec. 1091.103 Contents of notice.
* * * * *
(a) * * *
(2) * * *
(vii) In connection with a proceeding under this part, including a
petition for termination under Sec. 1091.113, all documents, records
or other items submitted by a respondent to the Bureau, all documents
prepared by, or on behalf of, or for the use of the Bureau, and any
communications between the Bureau and a person, shall be deemed
confidential supervisory information under 12 CFR 1070.2(j).
* * * * *
Subpart D--Time Limits and Deadlines
0
4. Section 1091.115 is amended by revising paragraph (c) to read as
follows:
Sec. 1091.115 Change of time limits and confidentiality of
proceedings.
* * * * *
(c) In connection with a proceeding under this part, including a
petition for termination under Sec. 1091.113, all documents, records
or other items submitted by a respondent to the Bureau, all documents
prepared by, or on behalf of, or for the use of the Bureau, and any
communications between the Bureau and a person, shall be deemed
confidential supervisory information under 12 CFR 1070.2(j).
Dated: July 13, 2016.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2016-19594 Filed 8-23-16; 8:45 am]
BILLING CODE 4810-AM-P