Bureau of Consumer Financial Protection: Vol. 78 Friday, No. 32 February 15, 2013

Vol.
78 Friday,
No. 32 February 15, 2013
Part V
Bureau of Consumer Financial Protection

12 CFR Part 1070
Disclosure of Records and Information; Final Rule
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11484 Federal Register / Vol. 78, No. 32 / Friday, February 15, 2013 / Rules and Regulations
BUREAU OF CONSUMER FINANCIAL II. Summary of the Final Rule Bureau to share information, under
PROTECTION The final rule consists of five certain circumstances, with other
subparts. Federal and State agencies to the extent
12 CFR Part 1070 Subpart A of the final rule consists that they share jurisdiction with the
largely of definitions of terms that are Bureau as to the supervision of financial
[Docket No. CFPB–2011–0003] used throughout the remainder of the institutions, the enforcement of
part. consumer financial protection laws, or
RIN 3170–AA01 Subpart B of the final rule implements the investigation and resolution of
the Freedom of Information Act, 5 consumer complaints regarding
Disclosure of Records and Information U.S.C. 552 (the FOIA). The FOIA grants financial institutions or consumer
the public an enforceable right to obtain financial products and services. In
AGENCY: Bureau of Consumer Financial
access to or copies of Federal agency implementing these provisions, the
Protection.
records unless disclosure of those Bureau has sought to provide the
ACTION: Final rule. maximum protection for confidential
records, or information contained
SUMMARY: This final rule establishes within them, is exempt from disclosure information, while ensuring its ability to
procedures for the public to obtain pursuant to one or more statutory share or disclose information to the
information from the Bureau of exemptions and exclusions. The FOIA extent necessary to achieve its mission.
Consumer Financial Protection, under also requires Federal agencies to The Bureau recognizes that much of
the Freedom of Information Act, the routinely publish in the Federal the information that it will generate and
Privacy Act of 1974, and in legal Register, or make available to the obtain during the course of its activities
proceedings. This final rule also public, certain information concerning will be commercially, competitively,
establishes the Bureau’s rule regarding their organizational structures, policies and personally sensitive in nature, and
the confidential treatment of and procedures, final opinions and generally warrants heightened
information obtained from persons in orders, and records that have or are protection. The need for greater
connection with the exercise of its likely to become the objects of frequent protection for these categories of
authorities under Federal consumer FOIA requests. The regulations in this information is reflected in the
financial law. subpart implement the FOIA as required substantive law of privilege and in
or authorized by various provisions of various statutes, including the FOIA and
DATES: This final rule is effective March
the statute. the Privacy Act of 1974, 5 U.S.C. 552a
18, 2013. (the Privacy Act), that provide for the
The Bureau modeled its FOIA rule
FOR FURTHER INFORMATION CONTACT: protection of such information from
upon regulations promulgated by the
Monica Jackson, Office of the Executive disclosure.
other Federal agencies, including the
Secretary, Consumer Financial Notwithstanding these concerns, there
U.S. Department of the Treasury. In
Protection Bureau, 1700 G Street NW., are instances in which the disclosure of
drafting the rule, the Bureau sought the
Washington, DC 20552, 202–435–7275. confidential information will be
input of the Department of Justice and
SUPPLEMENTARY INFORMATION: the National Archives and Records necessary or appropriate for the Bureau
I. Background Administration’s Office of Government to accomplish its statutory mission,
Information Services, which is such as the investigation and resolution
On July 21, 2010, the President signed responsible for promoting best practices of consumer complaints or the
into law the Dodd–Frank Wall Street among Federal agencies as to their FOIA enforcement of Federal consumer
Reform and Consumer Protection Act regulations and practices. financial laws. Disclosures may also
(Pub. L. 111–203, codified at 12 U.S.C. Subpart C of the final rule sets forth serve the public interest where Federal
5301 et seq.) (the Dodd-Frank Act). Title procedures for serving the Bureau and and State agencies share elements of the
X of the Dodd-Frank Act created the its employees with copies of documents Bureau’s mission and where, by sharing
Bureau of Consumer Financial in connection with legal proceedings, information, they can do their jobs more
Protection (the Bureau or the CFPB). such as summonses, complaints, effectively.
Pursuant to the provisions of the Dodd- subpoenas, and other litigation-related The regulations in subpart D balance
Frank Act, the Bureau began to exercise requests or demands for the Bureau’s these competing concerns by generally
its authority to regulate the offering and records or official information. Subpart prohibiting the Bureau and its
provision of consumer financial C also describes the Bureau’s employees from disclosing confidential
products and services under Federal procedures for considering such information to non-employees, and even
consumer financial law on July 21, requests or demands for official in certain cases to its employees, except
2011.1 information. These regulations (which in limited circumstances. Even where
In order to establish procedures to are sometimes referred to as Touhy the Bureau permits disclosures of
facilitate public interaction with the regulations) are modeled after similar confidential information, the Bureau
Bureau, the Bureau published an regulations of other Federal agencies. imposes strict limits upon the further
interim final rule on July 28, 2011, 76 Subpart D of the rule pertains to the use and dissemination of disclosed
FR 45371 (Jul. 28, 2011), and solicited protection and disclosure of information.
public comment on that rule. The confidential information that the Bureau Where appropriate, the Bureau has
Bureau is issuing this final rule in generates and receives during the course based the regulations in this subpart
response to these comments as well as of its work. Various provisions of the upon regulations of the other Federal
to clarify and correct certain aspects of Dodd-Frank Act require the Bureau to financial regulatory agencies that
the interim final rule. promulgate regulations providing for the provide for the confidentiality and
confidentiality of certain types of disclosure of certain information
1 Pursuant to section 1062 of the Dodd-Frank Act,
information and protecting such generated or received in the course of
12 U.S.C. 5582, the Secretary of the Treasury
designated July 21, 2011 as the ‘‘transfer date’’ on
information from public disclosure. supervising, investigating, or pursuing
which various provisions of Title X of the Dodd- Other provisions of the Dodd-Frank Act, enforcement actions against financial
Frank Act became effective. 75 FR 57252. however, require or authorize the institutions.
Federal Register / Vol. 78, No. 32 / Friday, February 15, 2013 / Rules and Regulations 11485
Subpart E contains the Bureau’s rule attorneys general. The commenters identifies the various purposes of the
implementing the Privacy Act. The propose that the Bureau adopt stricter rule. The Bureau received no comments
Privacy Act serves to balance the criteria that certain other Federal on the interim final rule. The Bureau
government’s need to maintain financial regulatory agencies apply adopts the interim final rule without
information about individuals with the when determining whether to share modification.
rights of individuals to be protected confidential information.
against unwarranted invasions of their The Bureau received no comments Section 1070.2 General Definitions
privacy stemming from Federal regarding subpart E of the interim final Section 1070.2 defines terms that are
agencies’ collection, maintenance, use, rule. utilized elsewhere in part 1070 of the
and disclosure of personal information The Bureau also received one public rule. For example, § 1070.2(e) of the
about them. comment that pertains to the Bureau’s interim final rule defines the term ‘‘civil
The regulations in this subpart general authority to promulgate the investigative demand material’’ to
establish procedures by which members interim final rule. Rather than address encompass all types of materials
of the public may request access to this comment in Section IV, it does so provided to the Bureau in response to a
information or records that the Bureau here. civil investigative demand that the
maintains about them, request The commenter argues that section Bureau issues in accordance with
amendment or correction of such 1066 of the Dodd-Frank Act did not section 1052 of the Dodd-Frank Act. The
information or records, and request an authorize the Bureau to promulgate this definition of this term also includes
accounting of disclosures of their interim final rule prior to the materials that a person provides to the
records by the Bureau. As with its FOIA appointment of a director, at a time Bureau voluntarily or in lieu of
regulations, the Bureau modeled its when, pursuant to section 1066 of the receiving a civil investigative demand.
Privacy Act regulations upon Dodd-Frank Act, the Treasury Secretary Section 1070.2(f) defines the term
regulations promulgated by the other performed functions of the Bureau ‘‘confidential information.’’ Confidential
Federal agencies, including the Treasury pending such an appointment.2 The information refers to three categories of
Department. commenter argues that even if the non-public information—confidential
Treasury Secretary had general consumer complaint information,
III. Overview of Comments Received
authority to do so, pursuant to 31 U.S.C. confidential investigative information,
In response to the interim final rule, 321(b)(1), the Secretary was bound to
the Bureau received thirteen comment and confidential supervisory
promulgate a rule that was entirely information—that the Bureau, in
letters. Seven of these comment letters consistent with corresponding rules of
were submitted on behalf of financial subpart D, protects from various types of
the other prudential regulators. disclosure in accordance with the Dodd-
institution trade associations. Three This comment is moot insofar as the
letters were submitted on behalf of Frank Act and other laws. The term also
President has appointed a director of the
individual financial institutions and includes other Bureau information that
Bureau who has authority to issue the
two letters were submitted on behalf of is exempt from disclosure pursuant to
rule pursuant to the statutes listed in
public interest groups. The Bureau also one or more of the statutory exemptions
§ 1070.1 of this rule. Moreover, prior to
received one comment letter from an to the FOIA.
this appointment, the Secretary of the
individual that did not pertain to the Treasury had ample authority to issue Section 1070.2(g) defines
interim final rule. the interim final rule under section 1066 ‘‘confidential consumer complaint
Public interest groups, along with of the Dodd-Frank Act as well as 31 information’’ to mean information that
some of the financial services trade U.S.C. 321. The Secretary was not the Bureau receives from the public or
associations, wrote comments regarding obligated, when exercising such from other agencies or organizations, or
subpart B of the Bureau’s interim final authority, to issue regulations related to which the Bureau generates through its
rule, which implements the FOIA. confidential information that were own efforts pursuant to sections 1013
Public interest group commenters identical to those issued by the and 1034 of the Dodd-Frank Act, that
propose minor modifications to the rule prudential regulators. comprises or documents consumer
to facilitate public access to Bureau In section IV below, the Bureau complaints or inquiries concerning
records. Several trade association provides a section-by-section summary financial institutions or consumer
commenters ask the Bureau to impose of the other comments it received to the financial products and services. The
limitations on a rule that permits the interim final rule and the Bureau’s term includes information, such as
Bureau to exercise its discretion to responses to these comments. personally identifiable information, that
disclose information and records that is protected from public disclosure
are otherwise subject to FOIA IV. Section-by-Section Analysis under the FOIA.
exemptions. Subpart A—General Provisions and Section 1070.2(h) defines
Most of the comments that the Bureau Definitions ‘‘confidential investigative information’’
received from both financial services to include all manner of materials
trade associations and financial Section 1070.01 Authority, Purpose, received, generated, or compiled by the
institutions concern subpart D of the and Scope Bureau in the course of its investigative
interim final rule. Commenters express Section 1070.1 of the interim final activities, including materials received
concerns as to whether and to what rule sets forth the Bureau’s authorities through the issuance of civil
extent the Dodd-Frank Act authorizes for issuing the rule in this part, investigative demands. It also includes
the Bureau to promulgate regulations including provisions of the Dodd-Frank confidential supervisory information
that permit it to disclose confidential Act that require or authorize the Bureau and confidential consumer complaint
information that it obtains from covered to disclose, share, or maintain the information to the extent that such
persons and service providers. They confidentiality of certain information materials serve as a basis for or are
also argue that subpart D is too that the Bureau obtains from others or utilized for purposes of an investigation.
permissive in its criteria for disclosing generates itself. Section 1070.1 also Lastly, the term includes materials that
such confidential information to other other Federal and State agencies provide
agencies, and in particular, to State 2 12 U.S.C. 5586. to the Bureau or create for its use in
investigating a possible violation of Officer may certify the authenticity of authorities cited, because they ‘‘provide
Federal consumer financial law. any Bureau record or any copy of such additional information on this topic.’’
Section 1070.2(i) defines record. The Chief Operating Officer may The Bureau does not intend to utilize
‘‘confidential supervisory information’’ delegate his or her responsibilities as its FOIA Web page to effect substantive
to include various materials that the record custodian to other Bureau revisions to subpart B and it does not
Bureau generates or receives that relate employees. The Bureau received no interpret § 1070.10 to be a source of
to the examination of financial comments on the interim final rule. The authority to do so. The FOIA Web page
institutions. These materials include, Bureau adopts the interim final rule exists to summarize and provide public
first, examination, inspection, visitation, without modification. guidance as to the FOIA and the
operating, condition, and compliance procedures set forth in the Bureau’s
reports, and any information contained Section 1070.4 Records of the CFPB
Not To Be Otherwise Disclosed regulations that implement the FOIA. In
in, relating to, or derived from such certain cases, such guidance may
reports. Second, the term includes Section 1070.4 of the interim final indicate how the Bureau interprets its
documentary materials, including rule states that except as provided in FOIA regulations, but it will not alter or
reports of examination, which the this part, employees or former supplant such regulations.
Bureau prepares or that are prepared by employees of the Bureau, or others in
others for use by the Bureau in possession of a record of the Bureau that Section 1070.11 Information Made
exercising its supervisory authority over the Bureau has not already made public, Available; Discretionary Disclosures
financial institutions, as well as are prohibited from disclosing such Section 1070.11(a) of the interim final
information derived from such records, without authorization, to any rule sets forth the three major categories
documentary materials. Third, the term person who is not an employee of the of information that the FOIA requires
includes the Bureau’s communications Bureau. The Bureau received no the Bureau to publish or make
with financial institutions and agencies comments on the interim final rule. The accessible to the public. Paragraph (b)
to the extent that such communications Bureau adopts the interim final rule authorizes the Bureau, in response to a
relate to the exercise of the Bureau’s without modification. FOIA request, to make discretionary
supervisory authority over financial disclosures of information or records
institutions. Fourth, confidential Subpart B—Freedom of Information Act
that are otherwise subject to non-
supervisory information includes Section 1070.10 General mandatory FOIA exemptions. Paragraph
information that financial institutions (c) requires the Bureau to make publicly
provide to the Bureau to help it to Section 1070.10 introduces subpart B
as consisting of regulations that available all records that have become
evaluate the risks associated with the subject of three or more requests or
consumer financial products and implement the FOIA by setting forth
procedures for requesting access to that are likely to become the subject of
services and whether institutions frequent requests because they are
should be deemed ‘‘covered persons,’’ Bureau records. The rule also instructs
the public to read subpart B together clearly of interest to the public at large.
as that term is defined by section
with the FOIA, the 1987 Office of Several trade associations expressed
1002(6) of the Dodd-Frank Act. Finally,
Management and Budget Guidelines for concerns that § 1070.11(b) does not
the term includes other supervision-
related information that is also exempt FOIA Fees, the Bureau’s Privacy Act specify who in the Bureau is responsible
from public disclosure under the FOIA regulations set forth in subpart E, and for making discretionary disclosures of
pursuant to 5 U.S.C. 552(b)(8). the FOIA page on the Bureau’s Web site, Bureau records and what criteria this
The Bureau received no comments on http://www.consumerfinance.gov, person will employ when doing so. One
the interim final rule. In the final rule, because such materials offer important commenter argues that this provision
the Bureau adds a definition of the term guidance on the topics that subpart B should provide for notice and a means
‘‘State’’ that incorporates the definition governs. to contest a decision of the Bureau to
of that term set forth in section 1002(27) A trade association commenter argues make discretionary disclosures of
of the Dodd-Frank Act and which that the Bureau should amend § 1070.10 information. Another commenter argues
clarifies that the term also includes all to delete the phrase ‘‘[t]hese regulations that this provision should clarify that
political subdivisions of States. should be read together with,’’ which the Bureau may not make discretionary
Furthermore, the Bureau modifies the immediately precedes ‘‘the FOIA, the disclosures of examination reports or
definition of the term ‘‘confidential 1987 Office of Management and Budget confidential commercial information.
supervisory information’’ to clarify that Guidelines for FOIA Fees, the Bureau’s Commenters differ in their reactions
it includes information provided to the Privacy Act regulations set forth in to § 1071.11(c). Several commenters
CFPB by a financial institution to assess subpart * * *’’ and the phrase ‘‘which’’ argue that the three-request publication
whether an institution is subject to the prior to ‘‘provide additional information threshold is too rigid and is easily
Bureau’s supervisory authorities. The about this topic.’’ The commenter manipulated to induce publication. One
Bureau also modifies the definition of argues that these phrases seemingly commenter argues that the Bureau
the term ‘‘supervised financial enable the Bureau to alter subpart B at should eliminate this provision in favor
institution’’ to clarify that this term will simply by specifying a contrary rule of a case-by-case approach to publishing
includes financial institutions that both on its FOIA Web page. The commenter frequently requested records. Another
are presently and may become subject to proposes that the rule simply state that commenter suggests that the Bureau
the Bureau’s supervisory authority. the FOIA, the OMB Guidelines, the should publish records only when they
Privacy Act regulations, and the are frequently and regularly requested
Section 1070.3 Custodian of Records; Bureau’s FOIA Web page, provide by a broad range of requestors. Yet
Certification; Alternative Authority additional information about this topic. another commenter argues that the
Section 1070.3 of the interim final The Bureau disagrees with the Bureau should revise the rule to allow
rule designates the Chief Operating commenter that § 1070.10 requires for publication of frequently requested
Officer of the Bureau to be the modification. As written, the rule makes records regardless of whether they are
custodians of all Bureau records. Acting clear that the public should consult the ‘‘clearly of interest to the public at
in this capacity, the Chief Operating FOIA Web site, along with the other large.’’
The Bureau adopts § 1070.11(b) of the ‘‘exempt from disclosure under exemptions, it requires the Bureau to
interim final rule without modification. Exemption 8 of the Freedom of make available for public inspection
This provision, which permits the Chief Information Act.’’ CFPB Bulletin 12–01 and copying, including by posting on
FOIA Officer to disclose FOIA exempt (Jan. 4, 2012). the Bureau’s Web page, all of the
information ‘‘if not precluded by law,’’ 3 The Bureau adopts § 1070.11(c) of the Bureau’s final opinions and orders,
is a common provision that exists in the interim final rule with minor certain statements of its policies and
FOIA regulations of many Federal modifications. Section 1070.11(c) administrative staff manuals, copies of
agencies.4 This provision merely implements the Electronic Freedom of all frequently requested records that it
permits the Chief FOIA Officer to Information Act amendments of 1996, publishes pursuant to § 1070.11(c), and
exercise the Bureau’s discretion—to the codified at 5 U.S.C. 552(a)(2)(D), which an index of such records.
extent that such discretion exists under require each agency to make ‘‘available Section 1070.12(b) requires the
law—to disclose information for public inspection and copying * * * Bureau to establish an electronic FOIA
notwithstanding the fact that the Bureau copies of all records, regardless of form reading room on its Web site to house
could withhold such information or format, which have been released to the records that section 1070.12(a)
pursuant to one or more of the FOIA any person * * * and which, because of requires it to publish. Section 1070.12(c)
exemptions. However, this provision the nature of their subject matter, the requires the Bureau to also make such
does not grant the Chief FOIA Officer agency determines have become or are records available at its headquarters in
discretion to disregard Federal laws that likely to become the subject of a physical reading room that is
require the Bureau to withhold subsequent requests for substantially the accessible to the public upon request.
information from public disclosure. same records.’’ The Department of The Bureau received no comments on
For example, § 1070.11(b) permits the Justice, in guidance it issued to Federal the interim final rule. The Bureau
Chief FOIA Officer to make public agencies in 2003, interprets section adopts the interim final rule without
information that is subject only to FOIA (a)(2)(D) of the FOIA to mean that modification, except that it updates the
Exemption 5, 5 U.S.C. 552(b)(5), as long agencies must publish records that are address of the reading room to reflect
as no other Federal law prohibits the already or are likely to become the the new address of the Bureau: 1700 G
Bureau from disclosing such subject of three or more FOIA requests. Street NW., Washington, DC 20552.
information. However, the Chief FOIA See Department of Justice, Office of
Section 1070.14 Requests for CFPB
Officer lacks discretion to disclose a Information & Privacy, FOIA Post:
Records
trade secret that is subject to FOIA ‘‘FOIA Counselor Q&A: ‘Frequently
Exemption 4, 5 U.S.C. 552(b)(4), to the Requested’ Records’’ (Jul. 25, 2003), at Section 1070.14 sets forth the basic
extent that the Trade Secrets Act, 18 http://www.justice.gov/oip/foiapost/ procedural requirements for submitting
U.S.C. 1905, prohibits the Bureau from 2003foiapost28.htm. Section 1070.11(c) a FOIA request to the Bureau.
publicly disclosing the trade secret.5 In is consistent with this guidance and Paragraph (a) implements section
certain instances, the Privacy Act also with similar provisions in other (a)(3) of the FOIA, 5 U.S.C. 552(a)(3),
precludes the Chief FOIA Officer from agencies’ FOIA regulations.6 which establishes the basic public right
disclosing information about Nevertheless, the Bureau agrees to to obtain access to Federal agency
individuals that is subject to FOIA remove from § 1070.11(c) the qualifying records, upon request, and subject to the
Exemptions 6 or 7(c), 5 U.S.C. 552(b)(6), language ‘‘clearly of interest to the FOIA exemptions and exclusions.
(7)(C). public at large.’’ Such language is not Paragraph (b) sets forth the acceptable
To the extent that the Chief FOIA part of the FOIA or the Department of formats for a Bureau FOIA request. It
Officer has discretion to disclose Justice’s FOIA guidance. The Bureau states that a FOIA request must be made
confidential supervisory information concludes that this language does not in writing, labeled as such, and
that is otherwise subject to FOIA serve the Bureau’s interest in promoting submitted to the Chief FOIA Officer in
Exemption 8, 5 U.S.C. 552(b)(8), the transparency. either paper or electronic formats.
Bureau’s ‘‘policy is to treat information Paragraph (c) describes the required
obtained in the supervisory process as Section 1070.12 Publication in the content of a Bureau FOIA request. This
confidential and privileged’’ and as Federal Register content includes a reasonably specific
Section 1070.12 implements section description of the records requested,
3 Section 1070.15(b) of these rules authorizes the
(a)(1) of the FOIA, 5 U.S.C. 552(a)(1). It contact information for the requester, a
Bureau’s Chief FOIA Officer to grant or deny all requires the Bureau to publish in the statement of whether the requester
FOIA requests for Bureau records. This authority
includes the power to make discretionary Federal Register certain details of its wants to inspect or obtain a copy of the
disclosures of information or records that are organization, policies, procedures, and records requested, an assertion of the
subject to FOIA requests, as set forth in section rules, subject to the FOIA exemptions. requester’s applicable fee category, an
1070.11(b). The Chief FOIA Officer exercises this indication of whether the requester
authority with the input and advice of the program
The Bureau received no comments on
offices that maintain the requested information. To the interim final rule. The Bureau seeks an upper limit to or a waiver or
the extent that a business submits trade secrets or adopts the interim final rule without reduction of applicable fees, and an
confidential commercial information to the Bureau modification. indication of whether the requester
that later becomes subject to a FOIA request, section seeks expedited processing of the
1070.20 of these rules requires the Chief FOIA Section 1070.13 Public Inspection and
Officer, in most cases, to obtain the input of that request.
business before the Chief FOIA Officer decides
Copying Paragraph (d) states that the Bureau
whether to disclose the information. Section 1070.12(a) implements need not accept or process a FOIA
4 See, e.g., 12 CFR 261.14(c) (Federal Reserve
section (a)(2) of the FOIA, 5 U.S.C. request, or be bound by deadlines for
Board regulation providing for discretionary release

of exempt information); 12 CFR 4.12(c) (Office of 552(a)(2). Subject to the FOIA responding to such a request, that does
Comptroller of Currency regulation providing for not conform to the requirements of
the same discretionary release of exempt 6 See, e.g., 12 CFR 261.11(4) (Federal Reserve paragraphs (b) and (c). If a request is
information). Board rule providing for the publication of materially deficient, then the Bureau
5 The Trade Secrets Act prohibits agencies from frequently requested records); 12 CFR 309.4(D)
disclosing trade secrets except where they are (Federal Deposit Insurance Corporation rule
may return it to the requester and advise
authorized by law to do so. See Chrysler Corp. v. providing for the publication of frequently the requester as to how to address the
Brown, 441 U.S. 281 (1979). requested records). deficiency. If the requester does not
respond to notification of a material that it discusses in the portion of the this section and § 1070.17 of this
deficiency within thirty (30) days, then section-by-section analysis that pertains subpart, the Bureau will respond to
the Bureau will deem the deficient to § 1070.22 of the rule. FOIA requests in the order of their
request to be withdrawn. A To address the commenter’s concern receipt.
determination that a request is that paragraph (d) authorizes the Bureau Paragraph (b) authorizes the Bureau to
materially deficient does not constitute to reject requests on the basis of establish separate tracks to process
a denial of access and is not subject to immaterial deficiencies, and does not simple and complex requests in the
appeal. require the Bureau to advise requesters order of their respective receipt. This
Paragraphs (e) and (f) set forth the as to how to correct deficiencies in their multi-track process allows the Bureau to
procedure by which a requester may requests, the Bureau modifies respond to simple requests more quickly
obtain access to Bureau records about § 1070.14(d) to state that it will deem than it could otherwise if the Bureau
him or herself or about another itself to have received a request when it processed such simple requests in a
individual when requesting records on contains ‘‘substantially’’ all of the single queue behind complex requests.
behalf of that individual. information that the Bureau requires Paragraph (c) establishes a twenty (20)
One commenter believes that the and that it need not accept or process a business day deadline for the Bureau to
Bureau should amend § 1070.14(c)(5), request that fails to conform in any respond to a FOIA request. The Bureau
which requires FOIA requesters to seek ‘‘material’’ respect to the requirements may toll this deadline once while it
fee waivers at the time when they file of § 1070.14. awaits a requester’s response to a
their FOIA requests, to allow requesters reasonable demand for clarification of a
to seek fee waivers at any time while Section 1070.15 Responsibility For
Responding to Requests for CFPB request. It may also toll the deadline
FOIA requests are open. while it is engaged in a dispute with a
Another commenter argues that the Records
requester regarding the assessment of
Bureau should eliminate the portion of Section 1070.15(a) states that the fees.
§ 1070.14(c)(5) which states that by Bureau will deem records to be
submitting a FOIA request, the requester Paragraph (d) permits the Bureau to
responsive to a FOIA request only to the unilaterally extend in writing the
agrees to pay any and all fees associated extent that it possesses them as of the
with processing the request up to $25. twenty (20) business day response
date when the Bureau commences its deadline for responding to a FOIA
The commenter argues that this records search.
requirement may deter individuals from request or appeal by up to an additional
Paragraph (b) states that the Bureau’s ten (10) business days if the Bureau
seeking information pursuant to the Chief FOIA Officer is authorized to
FOIA. Instead, the commenter argues determines that unusual circumstances
make determinations on behalf of the exist that preclude the Bureau from
that requesters should be able to specify Bureau as to whether and to what extent
that they do not want the Bureau to meeting the twenty (20) business day
to grant FOIA requests. deadline. If the Bureau determines that
process the request if doing so will Paragraph (c) sets forth the Bureau’s
exceed the two free search hours and it needs more than an additional ten
procedures for consulting with or
100 free pages of duplication to which (10) business days to respond, then it
referring to another agency a requested
the FOIA entitles them. must notify the requester and provide
record that originated with or contains
Finally, one commenter argues that the requester with an opportunity to
information that originated with that
the Bureau should revise § 1070.14(d) to either narrow the scope of the request or
agency.
state that the failure by a requester to Paragraph (d) states that the Bureau appeal in such a way that the Bureau
adhere to all of these procedural will notify a requester whenever it refers can respond by the deadline or arrange
requirements—including the all or part of a request to another for an alternative time frame beyond the
requirements that requests must be agency. deadline to respond to the request or
labeled ‘‘Freedom of Information Act One commenter urges the Bureau to appeal.
Request’’ and that requesters specify an amend § 1070.15(c), which authorizes One commenter argues that
applicable fee category—will not the Bureau to consult other agencies § 1070.16(c) impermissibly authorizes
necessarily result in the Bureau when responding to requests for Bureau the Bureau to toll the twenty (20) day
rejecting a request. The commenter also records that comprise other agencies’ deadline for responding to FOIA
argues that this provision should require information, to require the Bureau to requests while the Bureau awaits
the Bureau to inform requesters when obtain the affirmative consent of such clarification from a requester as to
they have deemed requests to be agencies, rather than merely consulting subject matter of a request or while the
deficient. them, prior to releasing the records. Bureau resolves any dispute with the
The Bureau modifies § 1070.14(b) of The Bureau adopts the interim final requester regarding fees. The commenter
the interim final rule to reflect the new rule without modification. The interim argues that the FOIA states that the
mailing address of the Bureau: 1700 G final rule reflects the standard practice request response deadline commences
Street NW., Washington, DC 20552. The among Federal agencies for once a request or appeal has been
Bureau also modifies § 1070.14(c)(2) to consultations. It represents sound received.
require that a requester include his, her, practice in that it balances the interests The Bureau adopts the interim final
or its name in addition to the other of other agencies with the right of rule without modification. The interim
contact information that the Bureau requesters to obtain requested records in final rule implements section (a)(6)(A)
requires a requester to provide. The a timely fashion. of the FOIA, 5 U.S.C. 552(a)(6)(A),
Bureau imposes this change to ensure which provides that an agency may toll
that it can make proper fee category Section 1070.16 Timing of Responses the response deadline once while
determinations, impose fees upon the to Requests for CFPB Records awaiting the requester’s response to a
requester, and properly determine Section 1070.16 sets forth the order reasonable request of the agency for
whether a request is a Privacy Act or a and timing of the Bureau’s responses to information about a FOIA request or as
FOIA request. FOIA requests. necessary while awaiting the requester’s
The Bureau adopts § 1070.14(c)(5) Paragraph (a) states that, except as set clarification of fee issues regarding the
without modification for the reasons forth in paragraphs (b) through (d) of FOIA request.
Section 1070.17 Requests for Section 1070.18 Responses to Requests commenters argue that the Bureau
Expedited Processing for CFPB Records should double or otherwise increase the
Section 1070.18 sets forth the process ten year time period applicable to
Section 1070.17 establishes a designations of trade secrets and other
procedure by which FOIA requesters by which the Bureau will acknowledge
receipt of FOIA requests and confidential supervisory information.
may seek and the criteria by which the The Bureau adopts the interim final
Bureau will grant expedited processing communicate its initial determinations
as to whether and to what extent to rule without modification. The ten-year
of FOIA requests. length of the business information
grant such requests. The rule also
Paragraph (a) states that the Bureau designation period is consistent with
delineates information that the Bureau
will grant expedited processing to similar rules adopted by other Federal
must include in notifications to
requesters that demonstrate a agencies. The Bureau notes that the rule
requesters that acknowledge receipt of
‘‘compelling need’’ for such processing grants it discretion, upon request and
or determine whether and to what
in accordance with this section. with sufficient justification, to extend
extent to grant FOIA requests. The
Paragraph (b) sets forth the form and Bureau received no comments on the the length of the designation period
content of requests for expedited interim final rule. The Bureau adopts beyond ten years. As such, the Bureau
processing and defines the term the interim final rule without sees no reason to eliminate or extend
‘‘compelling need’’ generally and with modification. the default length of the designation
respect to requests made by persons period.
primarily engaged in disseminating Section 1070.19 Classified Information
Section 1070.21 Administrative
information. Section 1070.19 sets forth a procedure Appeals
Paragraph (c) requires the Bureau to for referring requests for classified
respond to requests for expedited information to the agency that Section 1070.21 discusses
processing within ten (10) calendar originated or classified it. The Bureau administrative appeals of initial Bureau
dates of their receipt. received no comments on the interim determinations regarding FOIA requests.
final rule. The Bureau adopts the Paragraph (a) enumerates Bureau
Paragraph (d) states that if granted,
interim final rule without modification. determinations that are subject to
expedited processing entitles requesters
administrative appeal. These
to priority over non-expedited requests Section 1070.20 Requests for Business determinations include denial of access
and responses as soon as practicable. It Information Provided to the CFPB to records in whole or in part,
further states that the Bureau may
Section 1070.20 requires the Bureau, assignment to the requester of a
process expedited requests on a multi-
under certain circumstances, to notify particular fee category, denial of a
track basis and within each track, in the
persons or entities that submit business request for a reduction or waiver of fees,
order of their receipt.
information to the Bureau of its receipt a determination that no records exist
Paragraph (e) establishes the rights of of a FOIA request or appeal for such that are responsive to a request, and
requesters to appeal denials of requests information, and to provide submitters denial of a request for expedited
for expedited processing in accordance with an opportunity to object to the processing.
with § 1070.21 of this subpart. Bureau’s disclosure of such information Paragraph (b) establishes a forty-five
One commenter suggests that the on the basis of FOIA Exemption 4, 5 (45) calendar day time frame from the
Bureau should amend § 1070.17 by U.S.C. 552(b)(4). If the Bureau rejects date of initial determination to file
expanding its criteria for granting such objections, then the rule requires administrative FOIA appeals (except for
expedited processing of FOIA requests the Bureau to wait a certain period of appeals of denials of expedited
to include, in addition to instances time before it discloses the information processing, which must be filed within
where the requester demonstrates a so as to afford submitters an opportunity ten (10) days).
‘‘compelling need’’ for expedited to file suit in Federal district court to Paragraph (c) sets forth the required
process, ‘‘other cases determined by the enjoin disclosure. The rule states that form and content of administrative
agency,’’ which section (a)(6)(E)(i)(II) of the Bureau will notify submitters of the appeals.
the FOIA, 5 U.S.C. (a)(6)(E)(i)(II), receipt of FOIA requests or appeals for Paragraph (d) sets forth a procedure
authorizes. The commenter asks that their information whenever the Bureau for acknowledging the receipt of
these ‘‘other cases’’ include instances in has reason to believe that the administrative appeals.
which expedited processing is necessary information may be subject to Paragraph (e) authorizes the General
to avoid the loss of substantial due Exemption 4 or that submitters have Counsel of the Bureau to decide
process rights or where there is marked the information as such in good whether to affirm or overturn initial
widespread and exceptional media faith. Notification is not required if the determinations of the Bureau which are
interest in information that raises Bureau determines independently that subject to administrative appeals. The
concerns about the government’s the requested information is exempt rule requires the General Counsel to
integrity. from disclosure, that it is already in the respond to appeals within twenty (20)
The Bureau agrees with the public domain, that disclosure is business days after their receipt, unless
commenter that the FOIA grants required by statute or regulation, or the that time period is extended pursuant to
agencies discretion to process requests submitter’s designation of the § 1070.16(d) of this subpart. It requires
on an expedited basis for reasons other information as being subject to the General Counsel to notify requesters
than demonstration by a requester of a Exemption 4 is obviously frivolous. in writing of appellate determinations
compelling need. The Bureau modifies Several commenters argue that the and, if the appeals are denied, to inform
the interim final rule by permitting the Bureau should eliminate or amend requesters of their rights to seek redress
Bureau to process a request for § 1070.20(c), which allows submitters of in Federal district court.
expedited processing whenever a business information to designate such Paragraph (g) notes that an appeal
requester demonstrates a compelling information as being subject to FOIA ordinarily will not be adjudicated if a
need ‘‘or in other cases that the CFPB Exemption 4 for a period of ten years FOIA request becomes a matter of FOIA
deems appropriate.’’ after the date of submission. Several litigation.
One commenter suggests that the Paragraph (b) describes the various Bureau charges requesters to duplicate,
Bureau should amend § 1070.21(b), categories that the Bureau will assign to search for, and review records. The
which sets forth a 45-day time limit to each requester for the purpose of Bureau also modifies this provision to
file a FOIA appeal that runs from the determining which types of fees apply clarify the circumstances under which
later of the date of the Bureau’s decision to a request. the Bureau will charge fees when
to deny or grant the request or the date Paragraph (c) describes the types of searching for electronic records.
of the letter transmitting the last records fees that apply to each of the categories
released to the requester. The of fee requesters set forth in paragraph The Bureau modifies § 1070.22(d)(3)
commenter argues that this provision (b). of the interim final rule to provide, in
should state instead that this 45-day Paragraph (d) describes circumstances accordance with section (a)(4)(a)(viii),
time period should run from the later of where the Bureau will not charge fees to that the Bureau shall not charge FOIA
the date of the Bureau’s initial requesters. duplication fees for representatives of
determination or the date that the last Paragraph (e) sets forth the procedure the news media in the event that the
records are received by (rather than by which FOIA requesters may seek, Bureau fails to comply with time limits
mailed to) the requester. and the criteria that the Bureau will use applicable to FOIA requests.
The Bureau declines to adopt the to determine whether to grant requests The Bureau declines to adopt the
commenter’s suggestion regarding for, waivers of or reductions in suggestion that it modify § 1070.22(e) so
paragraph (b) because the Bureau would applicable fees. that requesters may seek waivers of or
have no way to know, for purposes of Paragraph (f) identifies circumstances
in which the Bureau requires FOIA reductions in applicable fees at any time
determining whether a requester has
requesters to pre-pay fees associated prior to the dates of the Bureau’s
met the appellate filing deadline, when
a requester actually receives the records with FOIA requests and in which the responses to requests. By requiring
it transmits. The Bureau believes that a Bureau shall charge interest on and requesters to state, at the time when
more reliable basis for computing the collect overdue fees. they file their FOIA requests, whether
appellate deadline is the date of the One comment argues that the they seek waivers of or reductions in
Bureau’s transmission of such records. Bureau’s FOIA fee schedule, which the fees, the Bureau seeks to address and
The Bureau modifies § 1070.21 to add Bureau references in § 1070.22(a)(1) and resolve fee disputes at the outset of the
a new paragraph (e)(3) that authorizes posts on its FOIA Web site, must go request process and before the Bureau
the General Counsel, in deciding FOIA through the Administrative Procedure expends its time, resources, and funds
appeals, to remand FOIA requests to the Act’s notice and comment process. to respond to requests. This procedure
Chief FOIA Officer for such further Another comment urges the Bureau to ensures that the Bureau does not
action as the General Counsel directs, amend § 1070.22(d)(3) to waive FOIA perform work that the requester cannot,
including but not limited to new or duplication fees for representatives of or does not wish to pay for, if the
modified record searches. Actions of the the news media in the event that the Bureau denies a fee waiver request.
Chief FOIA Officer on remand will be Bureau fails to comply with time limits
treated once again as initial applicable to FOIA requests. The Bureau also declines to modify
determinations of the Bureau that are A commenter urges the Bureau to § 1070.22(f) of the interim final rule.
subject to the regular procedures set modify § 1070.22(e) to permit requesters This provision, which sets forth
forth in this subpart for the Bureau to to seek waivers of or reductions in circumstances for requiring prepayment
process, decide, and respond to FOIA applicable fees at any time prior to the of fees, is consistent with guidance
requests. For example, the Chief FOIA Bureau’s response date. issued by the Office of Management and
Officer must respond to a remanded Finally, a comment suggests that the Budget for FOIA fees. See OMB
request in accordance with the Bureau should limit the circumstances Guidelines for FOIA Fees (1987),
deadlines set forth in § 1070.16, which under which it requires prepayment of available at http://www.whitehouse.gov/
will run from the date of the Bureau’s FOIA fees pursuant to § 1070.22(f). This sites/default/files/omb/assets/omb/
transmission of the remand notification. comment argues that requesters should inforeg/foia_fee_schedule_1987.pdf.
If a requester disagrees with the actions not have to pay outstanding fees
of the Chief FOIA Officer on remand, associated with their prior FOIA Section 1070.23 Authority and
then the requester may file an requests before the Bureau will process Responsibilities of the Chief FOIA
administrative appeal of those actions in new requests that they submit because Officer.
accordance with § 1070.21. the FOIA entitles all requesters to a
Section 1070.23 sets forth the various
certain amount of free search time and
Section 1070.22 Fees for Processing duplication of records. authorities and responsibilities of the
Requests for CFPB Records The Bureau disagrees with the Chief FOIA Officer of the Bureau. One
Section 1070.22 sets forth the criteria comment that the Bureau’s schedule of commenter argues that § 1070.23 should
that the Bureau will use to determine FOIA fees, which the Bureau has include a provision that authorizes the
whether and to what extent the Bureau published on its FOIA Web page since Chief FOIA Officer to oversee the FOIA
may assess fees in connection with it promulgated the interim final rule, section of Bureau’s Web site. The
processing and responding to FOIA requires further notice and comment. Bureau agrees with this comment and
requests and appeals. This fee schedule, like the rest of the modifies the interim final rule to add a
Paragraph (a) generally describes the interim final rule, was subject to public new paragraph (a)(7) that requires the
applicable procedure for determining comment, as the CPFB referenced the Chief FOIA Officer to ‘‘maintain and
whether and to what extent to assess schedule in the rule. The Bureau update, as necessary and in accordance
fees to a FOIA request. It also identifies received no public comments regarding with the requirements of this subpart,
a schedule of fees assessable for time this fee schedule. the CFPB’s FOIA Web site, including its
spent by Bureau employees searching The Bureau modifies § 1070.22(a) of e-FOIA Library.’’
for and reviewing requested records and the interim final rule so that it now
for duplicating such records for states expressly—rather than merely
production to a requester. referencing—the fee rates that the
Subpart C—Disclosure of CFPB Section 1070.31 Service of employee to do so. The Bureau received
Information in Connection With Legal Summonses and Complaints no comments on the interim final rule.
Proceedings Section 1070.31 of the interim final The Bureau adopts the interim final rule
rule states that only the Bureau’s without modification.
Section 1070.30 Purpose and Scope;
Definitions General Counsel is authorized to receive Section 1070.34 Procedure When
and accept service of process of Testimony or Production of Documents
Section 1070.30(a) outlines subpart C, summonses and complaints in which Is Sought; General
which sets forth procedures for serving the Bureau or its employees (in their Section 1070.34 requires parties
the Bureau and its employees with official capacities) are sued. demanding the production of the
documents in legal proceedings, such as The Bureau received no comments on Bureau’s documents or testimony, in
summonses, complaints, subpoenas, the interim final rule. The Bureau legal proceedings in which the United
and other litigation-related requests or adopts the interim final rule with the States or the Bureau are not parties, to
demands for records and information, as following modification to reflect the provide the Bureau with certain
well as procedures and criteria for the new mailing address of the Bureau: information about the demand or
Bureau to follow when responding to 1700 G Street NW., Washington, DC request, including the name and forum
such materials. These regulations 20552. of the proceeding, a detailed description
(which are sometimes referred to as Section 1070.32 Service of Subpoenas, of the nature of the information or
Touhy regulations) are modeled after Court Orders, and Other Demands for testimony sought and its intended uses
similar regulations of other Federal CFPB Information or Action and relevance, a showing that the
agencies. evidence sought through the production
Section 1070.32 of the interim final of the Bureau’s records or testimony is
Paragraph (b) clarifies that these rule states that, except where the Bureau
procedures for serving legal documents not available from other sources, and, as
is represented by legal counsel who the General Counsel deems appropriate,
on the Bureau do not apply to persons have entered an appearance or
who seek to file FOIA requests or a statement of the party’s plans to
otherwise given notice of their demand additional testimony or
Privacy Act requests with the Bureau or representation, only the Bureau’s documents in the future. Unless and
those agencies that seek access to General Counsel is authorized to receive until a party provides this required
confidential information of the Bureau. and accept service of subpoenas, court information, the Bureau will not
Paragraph (c) further clarifies that the orders, and litigation demands and respond to a demand it receives. The
procedures of subpart C do not apply to requests for the production of the Bureau received no comments on the
requests for information made in the Bureau’s records and official interim final rule. The Bureau adopts
course of adjudicating certain information that are directed to the the interim final rule without
administrative employment actions Bureau or its employees (in their official modification.
brought by Bureau employees or capacities).
applicants for employment. The Bureau received no comments on Section 1070.35 Procedure When
the interim final rule. The Bureau Response To Demand Is Required Prior
Paragraph (d) notes that subpart C is to Receiving Instructions
adopts the interim final rule with
not intended to, does not create, and
modifications that reflect the new Section 1070.35 states that, whenever
may not be relied upon to create, any mailing address of the Bureau: 1700 G a response to a demand for testimony or
right or benefit, substantive or Street NW., Washington, DC 20552. The the production of documents or
procedural, against the Bureau or the final rule also clarifies certain service materials described in § 1070.34 is due
United States. requirements. For example, paragraph before the General Counsel renders a
Paragraph (e) defines the terms (c) of the final rule eliminates the decision, then the Bureau will seek an
‘‘demand,’’ ‘‘legal proceeding,’’ ‘‘official requirement that Bureau employees extension of time to respond. If no
information,’’ ‘‘request,’’ and consult the General Counsel before extension is available or granted, then
‘‘testimony’’ ‘‘for purposes of this declining to accept service of process on the Bureau will request that the court or
[subpart C] and except as the Bureau behalf of the Bureau. This modification other applicable authority stay the
may otherwise determine in a particular simplifies the course of conduct for proceedings until such time as the
case.’’ Bureau employees who are contacted by General Counsel is able to respond. The
One commenter argues that a process server and have no Bureau received no comments on the
§ 1070.30(e) is too malleable in that its opportunity to consult with the General interim final rule. The Bureau adopts
definitions apply ‘‘except as the Bureau Counsel prior to deciding whether to the interim final rule without
may otherwise determine in a particular decline to accept service. The final rule modification.
also corrects grammatical errors.
case.’’ The commenter notes that this Section 1070.36 Procedure in the
exception provides the Bureau with Section 1070.33 Testimony and Event of an Adverse Ruling
authority to redefine key terms as it sees Production of Documents Prohibited Section 1070.36 states that, whenever
fit to authorize disclosures of Unless Approved by the General a court or other applicable authority
confidential information. The Counsel declines to stay proceedings until the
commenter suggests that the Bureau Section 1070.33 provides that no General Counsel is able to respond to a
should eliminate this exception. current or former Bureau employee shall demand for testimony or the production
To eliminate any ambiguity as to the provide oral or written testimony of documents or materials described in
meaning of the defined terms of concerning any official information of § 1070.34, or the court or other authority
§ 1070.30(e), the Bureau strikes the the Bureau or produce any document or rules that the Bureau must comply with
phrase ‘‘except as the CFPB may material acquired as part of or by virtue the demand irrespective of the General
otherwise determine in a particular of his or her employment at the Bureau Counsel’s instructions otherwise, then
case.’’ The Final Rule also addresses unless the Bureau’s General Counsel the employee upon whom the demand
several drafting errors and omissions. authorizes the employee or former has been made shall respectfully decline
to comply with the demand citing this when doing so would compromise the information, to non-employees of the
subpart and United States ex rel. Touhy Bureau’s supervisory functions or Bureau or to Bureau employees for
v. Ragen, 340 U.S. 462 (1951). The programs or would undermine public whom such information is not relevant
Bureau received no comments on the confidence in supervised institutions. to the performance of their assigned
interim final rule. The Bureau adopts The second factor states that the Bureau duties. This prohibition includes
the interim final rule without will not normally grant a response when disclosures made by any means
modification. doing so would undermine the Bureau’s (including written or oral
ability to monitor for risks to consumers communications) or in any format
Section 1070.37 Considerations in
in the offering of consumer financial (including paper and electronic
Determining Whether the CFPB Will
products or services. formats).
Comply With a Demand or Request Excluded from this general
Section 1070.37 sets forth various Section 1070.38 Prohibition on prohibition are disclosures of
factors that the General Counsel shall Providing Expert or Opinion Testimony confidential information to consultants
consider in deciding whether to comply Section 1070.38 prohibits Bureau and contractors of the Bureau who
with a demand or request for the employees or former employees from agree, in writing, to protect the
production of the Bureau’s records or providing opinion or expert testimony confidentiality of the information in
testimony. This section also lists factors based upon information (other than accordance with Federal law as well as
that will normally cause the Bureau to general expertise) which they acquired any additional conditions or limitations
refuse compliance with such a demand in the scope and performance of their that the Bureau may impose upon them.
or request. These factors pertain to official Bureau duties, except to the Section 1070.41(c) states that the
prudential considerations and discovery extent that they provide such testimony Bureau is not precluded from disclosing
privileges established by Federal on behalf of the United States or a party materials that it derives from or creates
statutes, rules, and case law. represented by the Bureau or the using confidential information,
Commenters argued generally that the Department of Justice. The General provided that such materials do not
provisions of subpart C do not do Counsel has discretion to waive this identify, either directly or indirectly,
enough to protect confidential prohibition if the requestor any particular persons to whom the
supervisory information from disclosure demonstrates an exceptional need or confidential information pertains. This
in a litigation context. Commenters note unique circumstances and that the paragraph clarifies that the Bureau may
that the regulations of other Federal anticipated testimony will neither be create and publish reports, analyses,
bank regulatory agencies contain adverse to the United States nor require and other materials derived from
provisions which state that normally, the United States to pay the employee’s confidential information so long as the
the agency will not release confidential or former employee’s travel or other reports, analyses, or other materials do
supervisory information in response to not identify the subject of such
expenses associated with providing the
a demand or request for such information or discuss the information
requested testimony.
information. in such a way that one could infer the
Section 1070.37 of the rule reflects the A commenter argues that the Bureau
should eliminate § 1070.38(c), which identity of the person it concerns. For
Bureau’s intention to protect example, the Bureau is not precluded
confidential supervisory information permits Bureau employees to testify as
expert witnesses under certain from publishing reports that contain
from disclosure in a litigation context. aggregate data derived from confidential
Paragraph (b) lists several factors that if circumstances, because ‘‘[g]iving free
expert testimony is not among the information, provided the report cannot
found to exist would normally preclude be used in conjunction with other
the Bureau from granting a demand or permissible Bureau disclosures of
publicly available information to re-
request for confidential supervisory information.’’
identify the source of the information.
information. These factors include: The Bureau adopts the interim final
Section 1070.41(d) clarifies that
(b)(4) ‘‘[c]ompliance would reveal rule without modification. Paragraph (c) nothing in subpart D requires or
confidential or privileged commercial or is consistent with the rules of other authorizes the Bureau to disclose
financial information or trade secrets Federal agencies and with Federal confidential information that another
without the owner’s consent’’; (b)(6) ethics regulations regarding the agency has provided to the Bureau to
‘‘[c]ompliance would not be appropriate provision of expert testimony by Federal the extent that such disclosure
or necessary under the relevant employees. contravenes applicable law or the terms
substantive law governing privilege’’; Subpart D—Confidential Information of any agreement that exists between the
and (b)(7) ‘‘[c]ompliance would reveal Bureau and the agency to govern the
confidential information.’’ Paragraph (c) Section 1070.40 Purpose and Scope Bureau’s treatment of information that
of this section also provides that the Section 1070.40 clarifies that subpart the agency provides to the Bureau.
Bureau may condition disclosure of D does not apply to FOIA or Privacy Act The Bureau received several
confidential supervisory information requests or requests or demands for comments on § 1070.41. One commenter
pursuant to a request or demand upon official information made within the argues that § 1070.41(a)(2), which limits
the entry of an appropriate protective context of litigation. The Bureau the internal dissemination of
order. received no comments on the interim confidential information to Bureau
Although the Bureau believes that final rule. The Bureau adopts the employees with a bona fide need to
these provisions adequately protect interim final rule without modification. know the information to perform
confidential supervisory information assigned duties, is incongruous with
from disclosure, the Bureau Section 1070.41 Non-Disclosure of § 1070.41(b), which permits disclosures
nevertheless adds two new factors to Confidential Information of confidential information to the
paragraph (b) to bolster these Section 1070.41(a) generally prohibits Bureau’s contractors without
protections further. The first new factor the disclosure of confidential qualification. The commenter argues
states that the Bureau will not normally information by the Bureau’s employees, that the Bureau should either eliminate
grant a response to a request or demand former employees, or other persons who any restriction on the internal
for confidential supervisory information possess the Bureau’s confidential dissemination in paragraph (a) or apply
it equally to contractors in § 1070.41(b). The Bureau adopts paragraph (c) of otherwise authorizes (but does not
To the extent that the Bureau chooses to the interim final rule without require) the Bureau to disclose the
do the latter, another commenter argues modification. The Bureau declines to information. These agreements would
that the Bureau should amend adopt more specific or stringent not and could not preclude the
§ 1070.41(b) to state that disclosures to standards for determining that materials disclosure of confidential information
contractors or consultants may occur it derives from confidential information where applicable law requires the
only as necessary to, and solely for do not identify any particular person to Bureau to disclose it. In this regard, the
purposes of, providing services for or whom the information pertains. The Bureau notes that § 1070.41(a) of this
rendering advice to the Bureau. interim final rule allows the Bureau to subpart authorizes the Bureau to
One commenter argues that the report on and discuss its work involving disclose confidential information ‘‘as
Bureau should delete § 1070.41(c), confidential information while required by law’’ and that § 1070.40
which authorizes the Bureau to disclose providing reasonable assurance that states that the provisions of subpart D
materials derived from confidential when it does so, it protects the persons do not govern the Bureau’s responses to
information so long as such materials do to whom confidential information FOIA requests. Finally, we note that
not identify those to whom the pertains. none of the Bureau’s confidentiality
confidential information pertains, The interim final rule protects agreements purport to preclude the
because the Trade Secrets Act may persons to whom confidential Bureau from disclosing confidential
prohibit certain of these disclosures. information pertains by allowing the information where applicable law
Another commenter also criticizes this Bureau to publish materials it derives requires it do so.
provision because it fails to specify from such confidential information only
if the materials do not identify ‘‘directly Section 1070.42 Disclosure of
criteria for determining that materials Confidential Supervisory Information to
derived from confidential information or indirectly’’ the persons to whom it
pertains. This provision precludes the and by Supervised Financial
do not identify, either directly or Institutions
indirectly, any particular person to Bureau from publishing materials that
identify such persons expressly or that Section 1070.42(a) of the interim final
whom the confidential information
a reader could combine with materials rule provides that the Bureau may, in its
pertains.
readily available from other sources to discretion, disclose confidential
A commenter objects to § 1070.41(d), supervisory information, such as reports
deduce the identity of such persons.
which states that subpart D does not The Bureau believes that the interim of examination, to supervised financial
require or authorize the disclosure of final rule strikes an appropriate balance institutions to which the reports pertain.
confidential information otherwise between the need to maintain the To the extent that the Bureau chooses to
prohibited by applicable law or by the confidentiality of proprietary or other do so, § 1070.42(b) prohibits institutions
terms of any agreements reached with sensitive information and the Bureau’s from further disseminating the
other agencies. The commenter argues obligations, under provisions of the confidential information they receive
that the Bureau should delete the phrase Dodd-Frank Act such as sections 1021 except in limited circumstances.
‘‘or the terms of any agreement that and 1022, to inform the public about the Supervised financial institutions may
exists between the CFPB and the agency functioning of the marketplace for share confidential supervisory
to govern the CFPB’s treatment of consumer financial products and information with their directors,
information that the agency provides to services. officers, and employees, and with those
the CFPB’’ because, according to the The Bureau also concludes that it is of their parent companies, to the extent
commenter, this provision allows the inappropriate to specify more detailed that the disclosure of such confidential
Bureau to withhold information, criteria for determining when materials supervisory information is relevant to
pursuant to agreement, that other laws, derived from confidential information the performance of such individuals’
such as the Freedom of Information Act, are sufficiently anonymized for assigned duties. Supervised financial
require the Bureau to disclose. disclosure. The applicable criteria will institutions may also share confidential
To address concerns that paragraphs differ significantly depending upon the supervisory information with their (or
(a) and (b) of § 1070.41 set forth type of confidential information at issue their parent companies’) outside legal
inconsistent criteria for disclosing and the context in which it exists. The counsel, certified public accountants,
confidential information to Bureau interim final rule offers appropriate and consultants, provided that the
employees on one hand and to Bureau discretion to the Bureau to make supervised financial institutions take
contractors or consultants on the other determinations based upon the facts and reasonable steps to ensure that such
hand, the Bureau modifies these circumstances of each set of materials it legal counsel, accountants, or
paragraphs to provide for consistent seeks to disclose. consultants do not utilize, make or
treatment. In making these The Bureau adopts paragraph (d) of retain copies of, or further disclose
modifications, the Bureau deems it the interim final rule without confidential information except as is
appropriate to retain restrictions in modification. This paragraph does not necessary to provide advice to the
paragraph (a) on the internal authorize the Bureau, pursuant to the supervised financial institutions, their
dissemination of confidential terms of its confidentiality agreements parent companies, or to their respective
information. By prohibiting the with other agencies, to withhold directors, officers, or employees.
disclosure of confidential information to confidential information from Furthermore, the institutions must keep
employees, contractors, and consultants disclosure when applicable laws, such written records of their disclosures of
who have no business reason to see it, as the FOIA, require its disclosure. confidential information to their legal
the Bureau reduces the risk that such Instead, this paragraph simply clarifies counsel, accountants, and consultants,
persons will misuse or inadvertently that subpart D does not permit or along with the steps they have taken to
disclose the information. Such authorize the Bureau to voluntarily ensure that these accountants, legal
restrictions also are consistent with disclose confidential information that it counsel, and consultants do not
regulations established by other Federal obtains from other agencies, in violation improperly utilize, make or retain
agencies to protect confidential of its confidentiality agreements with copies of, or disclose such information.
information. such agencies, where applicable law Supervised financial institutions shall
provide these written records to the affiliate shall take reasonable steps to upon request, to share examination
Bureau, upon request or demand. ensure that such recipients do not, reports as well as other reports and
One commenter criticizes § 1070.42(b) without the prior written approval of confidential supervisory information
of the interim final rule, which prohibits the Associate Director for Supervision, about supervised financial institutions
financial institutions in receipt of Enforcement, and Fair Lending or his or with Federal and State agencies having
confidential information from further her delegee, utilize, make or retain jurisdiction over those institutions.
disclosing such information, except to copies of, or disclose confidential Section 1070.43(b)(1) also authorizes the
its officers, directors, parents, and supervisory information for any Bureau, upon request, to share
certain of its employees, and to its purpose, except as is necessary to confidential investigatory information
outside accountants, legal counsel, and provide advice or services to the about supervised financial institutions
consultants. The commenter argues that supervised financial institution or its with Federal and State agencies having
this provision is unreasonably affiliate. jurisdiction over those institutions.
restrictive in that financial institutions In response to the comments Section 1070.43(b)(2) sets forth
may have legitimate reasons to share discussed above, the final rule deletes procedures for Federal and State
confidential information with affiliates the disclosure accounting requirements agencies to follow when requesting
and with any manner of third-party of paragraph (b)(2)(ii) of this section. access to the Bureau’s confidential
service providers acting on their behalf. The Bureau agrees with commenters information as set forth in section
Commenters also object to the that this accounting requirement is 1070.43(b)(1). The Bureau’s General
requirement of § 1070.42(b)(2)(ii) that burdensome and that the restrictions of Counsel is responsible for acting upon
financial institutions keep a written § 1070.47 of this subpart are sufficient to such requests in consultation with the
account of all of their disclosures of protect confidential supervisory Bureau’s Associate Director for
confidential information to third parties. information against further disclosures. Supervision, Enforcement, and Fair
The commenter argues that the Bureau Lending or with other appropriate
Section 1070.43 Disclosure of
has no authority to require such Bureau personnel. Requests must be
Confidential Information to Law
accounting to the extent that disclosures submitted in writing by authorized
Enforcement Agencies and Other
occur in a privileged context. officers or employees of the requesting
The Bureau modifies paragraphs (a) Government Agencies
agencies. Requests should describe the
and (b) of the interim final rule. The Section 1070.43 sets forth
circumstances under which the Bureau nature of the confidential information
final rule permits the Bureau to disclose
must or may disclose various categories and documents sought and the purposes
confidential supervisory information
of confidential information to other for which it will be used. Requests
that concerns a supervised financial
government agencies. should also identify the agency’s legal
institution or its service providers (as
Section 1070.43(a)(1) implements authority for requesting the documents
section 1002(26) of the Dodd-Frank Act
sections 1022(c)(6)(C)(i) and and any provisions that restrict the
defines that term) to that supervised
1025(e)(1)(C) of the Dodd-Frank Act, Bureau’s authority to disclose the
financial institution, to its directors,
which require the Bureau to share with information. Finally, the requests
officers, trustees, members, general
Federal and State agencies having should certify that the requesting agency
partners, or employees, as well as to its
jurisdiction over supervised financial will maintain the requested confidential
‘‘affiliates’’ (as section 1002(1) of the
Dodd-Frank Act defines that term) and institutions, the Bureau’s reports of information in accordance with this rule
the directors, officers, trustees, examination of those supervised and in a manner that conforms to the
members, general partners, or financial institutions, including drafts standards that apply to Federal agencies
employees of such affiliates. The final thereof, final reports, and revisions to for the protection of the confidentiality
rule also permits a supervised financial final reports, provided that the Bureau of personally identifiable information
institution to further disclose receives from the agencies reasonable and for data security and integrity.
confidential supervisory information assurances that they will maintain the Moreover, the requests should certify
that it lawfully receives from the Bureau confidentiality of the information that the agencies will adhere to any
to its directors, officers, trustees, provided. additional conditions or limitations that
members, general partners, and Section 1070.43(a)(2) implements the Bureau, in its discretion, decides to
employees and to its affiliates and its section 1013(b)(3)(D) of the Dodd-Frank impose.
affiliate’s directors, officers, trustees, Act, which requires the Bureau to share Section 1070.43(c) clarifies that
members, general partners, or confidential consumer complaint requests by State agencies for
employees, to the extent that such information with Federal and State information or records of the Bureau
disclosures are relevant to the agencies, provided that the agencies first that do not constitute confidential
performance of these individuals’ give written assurances to the Bureau information must be made in
assigned duties. that they will maintain such accordance with the Bureau’s FOIA
Furthermore, the final rule now information in a manner that conforms regulations set forth in subpart B.
permits a supervised financial to the standards that apply to Federal Sections 1070.43(d) permits the
institution or its affiliate to further agencies for the protection of the Bureau to enter into agreements with
disclose confidential supervisory confidentiality of personally identifiable Federal and State agencies that provide
information that it lawfully receives information and for data security and for standing access to confidential
from the Bureau to its certified public integrity. information.
accountants, outside legal counsel, Section 1070.43(b)(1) of the interim The majority of the comments that the
contractors, consultants, and service final rule authorizes the Bureau to make Bureau received in response to the
providers as well as, with the prior discretionary disclosures of confidential interim final rule pertain to § 1070.43.
written authorization of the Associate information to Federal and State Several commenters argue that the
Director for Supervision, Enforcement, agencies under certain circumstances. Bureau lacks authority under the Dodd-
and Fair Lending or his or her delegee, For example, this provision implements Frank Act to make disclosures of
to other persons, provided that the section 1022(c)(6)(C)(ii) of the Dodd- confidential information either at all or
supervised financial institution or its Frank Act, which authorizes the Bureau, to the extent provided by § 1070.43.
One commenter asserts that the Dodd- or restrict the authority of State Several commenters propose that
Frank Act does not authorize the Bureau attorneys general to enforce applicable requests for confidential information
to disclose any confidential information law against national banks or Federal should be granted only when made by
to the State attorneys general or to savings associations or to seek relief as senior officials of or the heads of
private parties. This commenter argues authorized by such law. According to requesting agencies. Others suggest that
that the Bureau promulgated the commenters, the Cuomo decision the Bureau should require requesters of
§ 1070.43(b) of the interim final rule rejects a State attorney general’s confidential information to represent
based upon a misinterpretation of authority to obtain information directly that they have implemented and
section 1022(c)(6)(C)(ii) of the Dodd- from national banks when it does so maintain comprehensive information
Frank Act. Section 1022(c)(6)(C)(ii) of outside of the context of a judicial security programs to protect the
the Dodd-Frank Act provides that, ‘‘[i]n proceeding where it is seeking to confidentiality and security of the
addition to the [examination] reports enforce applicable law. The commenters information requested. They maintain
described in clause (i), the CFPB may, argue that in codifying the Cuomo that the Bureau should take steps to
in its discretion, furnish to a prudential decision in section 1047 of the Dodd- confirm such representations and audit
regulator or other agency having Frank Act, Congress could not have requesters’ systems for maintaining the
jurisdiction over a covered person or intended for State attorneys general to confidentiality and security of
service provider any other report or be able to obtain from the Bureau information disclosed.
other confidential supervisory confidential information relating to Commenters furthermore argue that
information concerning such person national banks that these attorneys the Bureau should provide financial
examined by the CFPB under the general could not obtain directly from institutions with notice of third party
authority of any other provision of such banks. These commenters propose requests for confidential information as
Federal law.’’ The commenter argues that the Bureau limit its disclosure of well as opportunities to object to such
that this provision does not authorize confidential information to State disclosures unless the Bureau
the Bureau to disclose confidential attorneys general to circumstances determines, in its discretion, that doing
supervisory information; rather, it where the attorneys general exercise so would advantage or prejudice any of
authorizes the Bureau to withhold their authority to enforce applicable law the parties in the matter at issue.
supervisory information. That is, the within a judicial process and such Similarly, one commenter suggests that
commenter believes that section disclosure relates to the exercise of that the Bureau should refer requests for
1022(c)(6)(C)(ii) means that the Bureau authority by the State attorneys general. confidential information to prudential
may decline to disclose confidential Other commenters argue that the regulators so that they can prohibit
supervisory information to other Bureau should either prohibit outright disclosure if a rational basis exists to
agencies when a provision of Federal the disclosure of confidential conclude that disclosure would threaten
law other than section 1022(c)(6)(C)(i) information to other agencies, and to the safety and soundness of the
authorizes the disclosure. This State attorneys general in particular, or institutions concerned.
commenter also asserts that section restrict the circumstances under which Finally, one commenter asks the
1022(c)(6)(C)(ii) of the Dodd-Frank Act the Bureau may do so. Commenters Bureau to clarify that § 1070.43(a)(1),
permits discretionary disclosures only present varied proposals for applicable which requires the Bureau to disclose
to a ‘‘prudential regulatory or other disclosure standards. reports of examination to certain
agency’’ and that these terms do not One commenter proposes that the Federal and State agencies, pertains to
include State attorneys general or Bureau limit the disclosure of examination reports of both depository
private parties. confidential information to State and non-depository institutions.
Other commenters argue that the attorneys general to circumstances As a preliminary matter, the Bureau
Dodd-Frank Act does not authorize the where the attorneys general demonstrate affirms its authority under the Dodd-
Bureau to disclose confidential that they seek such information for Frank Act to promulgate a rule that
information to State attorneys general purposes of enforcing consumer provides for the disclosure of
for purposes unrelated to the financial protection laws. Other confidential information to Federal and
enforcement of consumer financial law commenters propose that disclosures of State agencies, including State attorneys
or, as stated by one commenter, for confidential supervisory information general.
purposes unrelated to the enforcement should be limited to agencies with Section 1012 of the Dodd-Frank Act
of Federal consumer financial law. financial institution supervisory grants to the Director authority to
Commenters furthermore argue that authority. establish rules for conducting the
by authorizing the Bureau to share Some commenters suggest that, general business of the Bureau, to
confidential information with State consistent with disclosure standards implement the Federal consumer
attorneys general in circumstances promulgated by some other Federal financial laws through rules, and to
where they lack authority to enforce bank regulatory agencies, the Bureau perform such other functions as may be
applicable law within the judicial should permit discretionary disclosures authorized or required by law. In
process, § 1070.43(b) expands State of confidential supervisory information addition, section 1022(b)(1) authorizes
investigative powers beyond the limits only if requesters demonstrate a the Bureau to ‘‘prescribe rules * * *, as
set forth in section 1047 of the Dodd- substantial need for the information that may be necessary or appropriate to
Frank Act and the Supreme Court’s outweighs the need to maintain enable the Bureau to administer and
decision in Cuomo v. Clearinghouse confidentiality and only when carry out the purposes and objectives of
Ass’n, LLC, 557 U.S. 519 (2009). Section requestors have no other means of the Federal consumer financial laws
1047 of the Dodd-Frank Act amends the acquiring the information directly from * * *.’’ Finally, section 1022(c)(6)(A) of
National Bank Act (NBA) and the Home the financial institutions to which it the Dodd-Frank Act authorizes the
Owners Loan Act (HOLA) to confirm the pertains or otherwise. Bureau to ‘‘prescribe rules regarding the
Supreme Court’s view in Cuomo that Commenters also propose that the confidential treatment of information
the NBA’s references to visitorial Bureau impose additional procedural obtained from persons in connection
authority of the Office of the requirements for the discretionary with the exercise of its authorities under
Comptroller of the Currency do not limit disclosure of confidential information. Federal consumer financial law.’’ These
and other provisions of the Dodd-Frank with respect to such person, and to all authority of any other provision of
Act provide the Bureau with ample revisions made to such report,’’ Federal law’’—suggests that in addition
authority to prescribe rules that govern provided that such regulators or to the examination reports that the
which of the information that it agencies give the Bureau reasonable Bureau must share with other agencies,
generates or obtains it will regard as assurances that they will maintain the the Bureau may also choose to share
‘‘confidential,’’ what confidentiality confidentiality of the information with other agencies other reports or
means, and the terms and conditions shared. Section 1070.43(a)(1) of the rule confidential supervisory information
under which the Bureau will share implements this provision of the Dodd- that it creates or obtains through its
confidential information with other Frank Act. exercise of examination powers other
Federal or State agencies. In addition to requiring the Bureau to than those that Congress describes in
Furthermore, § 1070.43 implements share examination reports with other section 1022(c)(6)(C) of the Dodd-Frank
several provisions of the Dodd-Frank regulators and Federal agencies, section Act.
Act that require or authorize the Bureau 1022(c)(6)(C)(ii) of the Dodd-Frank Act The Bureau also disagrees with
to share confidential information with permits the Bureau, ‘‘in its discretion, commenters that section 1022(c)(6)(C) of
Federal and State agencies.7 [to] furnish to a prudential regulator or the Dodd-Frank Act does not permit the
For example, section 1013 of the other agency having jurisdiction over a Bureau to share examination reports or
Dodd-Frank Act expressly requires the covered person or service provider any confidential supervisory information
Bureau to route consumer complaints to other report or other confidential with State attorneys general. In
Federal and State agencies as well as to supervisory information concerning delineating the Bureau’s responsibilities
share consumer complaint information such person examined by the Bureau and authorities to share confidential
with prudential regulators, the Federal under the authority of any other supervisory information, section
Trade Commission, other Federal provision of Federal law.’’ The Bureau 1022(c)(6)(C) of the Dodd-Frank Act
agencies, and State agencies, provided interprets this provision as permitting it discusses sharing with a ‘‘regulator’’—a
that such agencies protect the to share examination reports as well as term that, when applied to the States,
confidentiality of personally identifiable other reports and confidential may include a State attorney general in
information associated with such supervisory information with all certain circumstances—and sharing
complaints. Section 1070.43(a)(2) of the prudential regulators and all agencies— with an ‘‘agency’’—a broader term that,
rule implements this provision of the including State attorneys general—that when applied to the States,
Dodd-Frank Act. have jurisdiction over the covered encompasses State attorneys general in
Section 1022(c)(6)(C)(i) of the Dodd- persons or service providers to which all circumstances. When section
Frank Act requires the Bureau to share the shared information pertains. Section 1022(c)(6)(C)(i) provides that the Bureau
with prudential regulators, State 1070.43(b) of the rule implements this must share examination reports with a
regulators, or any other Federal agencies provision of the Dodd-Frank Act. ‘‘prudential regulator, a State regulator,
having jurisdiction over a covered The Bureau disagrees with the or any other Federal agency having
person or service provider ‘‘any report commenter who argues that section jurisdiction over a covered person or
of examination made by the Bureau 1022(c)(6)(C)(ii) of the Dodd-Frank Act service provider,’’ the Bureau interprets
should not be interpreted as a grant of the provision to require it to share such
7 Section 1070.43 of the rule comports with discretionary authority to share reports with State attorneys general to
section 1022(c)(8) of the Dodd-Frank Act. Section confidential supervisory information the extent that they regulate the covered
1022(c)(8) of the Dodd-Frank Act requires the with other agencies, and that it instead persons or service providers to which
Bureau to ‘‘take steps to ensure that proprietary,
personal, or confidential consumer information that
merely qualifies section 1022(c)(6)(C)(i) the reports pertain, but not to require
is protected from public disclosure under section of the Dodd-Frank Act by authorizing the Bureau to share these reports with
552(b) or 552a of title 5, United States Code, or any the Bureau to withhold from other State attorneys general that do not
other provision of law, is not made public under agencies reports or other confidential regulate such entities. Nevertheless,
this title.’’ The Bureau interprets this provision of supervisory information that the Bureau
the Dodd-Frank Act to require the Bureau to take
when section 1022(c)(6)(C)(ii) provides
steps to prevent ‘‘public’’ disclosures of this generates or obtains pursuant to Federal that the Bureau may share examination
information; section 1022(c)(8) does not preclude laws other than the Dodd-Frank Act. reports, as well as other reports or
the Bureau from sharing this information with other The commenter’s interpretation of confidential supervisory information,
agencies as long as the Bureau takes steps to ensure section 1022(c)(6)(C)(ii) is contrary to
that these agencies will not make the information
with ‘‘a prudential regulator or other
available to the public. If the Bureau takes such what the Bureau concludes is the better agency having jurisdiction over a
steps, then its sharing of confidential information meaning of the provision. Rather than covered person or service provider,’’ it
with other agencies is not tantamount to a public use language which states or implies permits the Bureau to share examination
disclosure. that section 1022(c)(6)(C)(ii) qualifies or reports as well as other reports and
The rule includes appropriate measures to ensure limits the information sharing
that information that the Bureau shares with other
confidential supervisory information
agencies will remain confidential once shared. requirement of section 1022(c)(6)(C)(i), with all Federal and State agencies,
Section 1070.43(a) requires the Bureau to share Congress began section 1022(c)(6)(C)(ii) including State attorneys general, that
certain confidential information with State agencies with the language ‘‘[i]n addition to the both do and do not regulate the covered
only to the extent that these agencies provide reports described in clause (i), the
assurances to the Bureau that they will maintain the
persons or service providers to which
information in confidence. Section 1070.43(b) Bureau may, in its discretion, furnish the information pertains (to the extent
authorizes the General Counsel to grant agency * * *.’’ This language suggests that that such agencies have jurisdiction
requests for access to confidential information only Congress intended for the information over such covered persons or service
to the extent that the requesting agencies first sharing authority it granted in clause (ii) providers).
commit to maintain the information in confidence.

Furthermore, section 1070.47(a) of the rule
to be a positive grant of authority that Although the Bureau has legal
prohibits agencies in receipt of confidential supplements the authority it granted in authority under the Dodd-Frank Act to
information from further disclosing such clause (i). Moreover, the last portion of promulgate § 1070.43, and to share its
information to third parties without the prior section 1022(c)(6)(C)(ii)—‘‘any other confidential information with other
written permission of the Bureau. Lastly, section
1070.47(c) preserves any applicable legal privileges
report or other confidential supervisory agencies, including with State attorneys
when the Bureau shares confidential information information concerning such person general, the Bureau has made clear that
with other agencies. examined by the Bureau under the it intends to exercise its discretion
carefully. The Bureau recently confidentiality, security, and integrity of Although the Bureau declines to
articulated the following policy for the information disclosed. supplement the procedural
sharing confidential supervisory The Bureau does not deem it requirements of § 1070.43, the final rule
information with law enforcement necessary or appropriate to impose the modifies elements of that provision for
agencies: more stringent procedural requirements purposes of clarification.
that commenters propose. First, the Bureau modifies
[T]he Bureau will not routinely share
confidential supervisory information with For example, the Bureau declines to § 1070.43(a)(2) to clarify that the Bureau
agencies that are not engaged in supervision. seek approval of prudential regulators shall share confidential consumer
Except where required by law, the Bureau’s prior to granting requests to share its complaint information with agencies to
policy is to share confidential supervisory confidential information with other the extent that they provide written
information with law enforcement agencies, agencies. There is no basis in the Dodd- certifications to the Bureau that they
including State Attorneys General, only in Frank Act for requiring such approval will maintain the information in
very limited circumstances and upon review and in any event, there are inter-agency confidence, including by maintaining it
of all of the relevant facts and considerations. in a manner that conforms to the
The significance of the law enforcement
agreements that govern the sharing of
confidential information between standards that apply to Federal agencies
interest at stake will be an important for the protection of the confidentiality
consideration in any such review. However, Federal and State regulators.
The Bureau also declines to require of personally identifiable information
even the furtherance of a significant law
enforcement interest will not always be that only senior agency officials or and for data security and integrity.
sufficient, and the Bureau may still decline agency heads may file requests for Second, the Bureau modifies
to share confidential supervisory information access to confidential information when § 1070.43(b)(2)(iv) of the interim final
based upon other considerations, including rule to clarify that the Bureau requires
it already requires that only authorized
the integrity of the supervisory process and a requesting agency to identify its legal
officials or employees may do so.
the importance of preserving the authority to protect the requested
Furthermore, the Bureau does not
confidentiality of the information. In these documents from public disclosure.
circumstances, the decision whether to deem it necessary to undertake audits of Third, the Bureau modifies
provide confidential supervisory information the security systems of requesting § 1070.43(b)(2)(v) of the interim final
to another agency will be made by the agencies to determine whether these rule to clarify that agencies seeking
General Counsel, in consultation with agencies are capable of adequately access to confidential information must
appropriate Bureau personnel. safeguarding confidential information. certify that they will keep that
Prior to disclosing confidential information confidential in addition to
CFPB Bulletin 12–01 (Jan. 4, 2012) information pursuant to § 1070.43(b),
(footnote and citation omitted). The safeguarding it ‘‘in a manner that
the Bureau will take reasonable steps to conforms to the standards that apply to
Bureau intends to employ this policy ensure that requesting agencies are
when it decides whether, and to what Federal agencies for the protection of
legally authorized to protect the the confidentiality of personally
extent, to share confidential supervisory confidentiality of the information and
information with State attorneys identifiable information and for data
that they have systems in place to security and integrity’’ and complying
general. safeguard it from theft, loss, or with such additional conditions and
The Bureau also declines to unauthorized access or disclosure. limitations as the Bureau sees fit to
incorporate into § 1070.43(b) additional The Bureau will not revise its rules to impose. For purposes of both
procedural requirements for sharing require it to notify financial institutions §§ 1070.43(a)(2) and 1070.43(b)(2)(v),
confidential information with other when it receives requests from other the Bureau interprets the phrase
agencies. Section 1070.43(b) already agencies for confidential information or ‘‘standards that apply to Federal
requires agencies that request to allow financial institutions to object agencies for the protection of the
confidential information to make formal to its determinations to grant such confidentiality of personally identifiable
written requests through authorized requests. The Bureau shares information information and for data security and
officers or employees. Such requests with other agencies typically within the integrity’’ to mean, at a minimum, that
must describe the information context of joint supervisory an agency shall store confidential
requested, the purposes for which it will examinations and law enforcement information in a secure environment
be used, the requesting agency’s legal investigations. Within this context, where access is limited only to those of
authority for requesting the information, notification could reveal prematurely its employees, contractors, and agents
and any applicable restrictions on its plans to investigate or examine financial who have a bona fide need for the
authority to protect the requested institutions and might compromise information to perform their official
information. Furthermore, the requests these joint endeavors. Similarly, duties relating to the purpose for which
must certify the requester’s commitment financial institutions could misuse a the information was shared.
to maintain the confidentiality, security, right to object to the Bureau’s Furthermore, the Bureau requires the
and integrity of the requested information sharing determinations to agency to notify the Bureau immediately
information. The General Counsel also obstruct or stymie or joint investigations of any actual or suspected security
may require the requester to certify or examinations. breach involving confidential
adherence to such additional terms and Finally, the Bureau deems it information, including any theft, loss,
conditions as she sees fit to impose. The unnecessary to modify § 1070.43(a)(1) to unauthorized disclosure, or misuse of
Bureau believes that these procedures, clarify that the Bureau must share with any confidential information that
which are largely consistent with those certain other agencies reports of consists of personally-identifiable
of other Federal bank regulatory examination of both depository and information.

agencies, adequately ensure that the non-depository financial institutions.
General Counsel shares confidential The definition of the phrase ‘‘financial Section 1070.44 Disclosure of
information only with appropriate institution’’ in § 1070.2(l) of the rule is Confidential Consumer Complaint
agencies, for appropriate purposes, and broad and includes all manner of Information.
only to the extent that such agencies are covered persons and service providers, Section 1070.44 states that nothing in
willing and able to protect the including non-depository institutions. this part limits the Bureau’s discretion
to disclose confidential consumer of its disclosures of confidential available objections to the disclosure of
complaint information, to the extent information to the Congress. confidential information and to seek an
permitted by law, to the extent that such Furthermore, the commenter suggests appropriate protective or in camera
disclosure is necessary to investigate, that the rule should state that the order prior to such disclosure.
resolve, or otherwise respond to Bureau will provide information to the The Bureau revises § 1070.45(a)(5) of
consumer complaints or inquiries Congress only to the extent that it is the interim final rule to clarify its
regarding financial institutions or stripped of identifying information. intended meaning. As revised, this
consumer financial products and Finally, the commenter argues that the provision allows the Bureau, on its own
services. rule should state that the Bureau will initiative, to alert other agencies of its
One commenter argues that the eliminate its authorization to provide discovery of evidence that may indicate
Bureau should specify, in § 1070.44, the confidential information to violations of laws that are subject to
circumstances in which it intends to subcommittees of Congress. these agencies’ jurisdiction and, to the
disclose confidential consumer One commenter also expresses extent the Bureau deems it necessary to
complaint information. The commenter concern that § 1070.45(a)(4) of the alert agencies of such evidence, to
suggests that the Bureau should keep interim final rule unfairly places the summarize evidence that constitutes
consumer complaints confidential, burden on financial institutions to seek confidential information.
especially to the extent that they are a protective or in camera order The Bureau intends for § 1070.45(a)(5)
unsubstantiated, to avoid harming the whenever the Bureau seeks to disclose to be a precursor to but not a substitute
reputations and financial performance confidential investigatory material in for the procedure set forth in
of financial institutions. Even where the course of an administrative or court § 1070.43(b) of this subpart by which
substantiated, the commenter argues proceeding to which the Bureau is a agencies submit to the General Counsel
that the Bureau should address party. The commenter argues that, in requests for access to full written copies
complaints privately or through accordance with the practice of other of the Bureau’s confidential
enforcement actions, and not through Federal bank regulatory agencies, the information. For example, a Bureau
public disclosure. Bureau should assert all applicable employee may call a counterpart in
The Bureau adopts the interim final privileges and seek a protective order another agency to advise the agency
rule without modification. On June 22, when using confidential information that, during the course of a Bureau
2012, the Bureau published in the during the course of an administrative investigation into violations of laws
Federal Register its policy for or court proceeding. subject to the Bureau’s jurisdiction, the
publishing consumer complaints online. Another commenter proposes that the Bureau uncovered evidence of conduct
This policy addresses the commenter’s Bureau delete § 1070.45(a)(5), which that may also constitute a violation of
concerns. See 77 FR 37558. states that Bureau may affirmatively laws subject to the agency’s jurisdiction.
disclose confidential information ‘‘[t]o To the extent the Bureau employee
Section 1070.45 Affirmative
law enforcement and other government deems it necessary to alert the agency of
Disclosure of Confidential Information
agencies in accordance with this the relevant conduct, the employee may
Section 1070.45(a) of the interim final subpart.’’ The commenter notes that this summarize to the agency counterpart
rule permits the Bureau to affirmatively provision seems duplicative of the Bureau’s evidence that constitutes
disclose confidential investigative § 1070.43 of the interim final rule, and confidential information. The Bureau
information, such as civil investigative to the extent it is not so, it permits the employee may not, however, share with
demand material and other confidential disclosure of confidential supervisory the agency counterpart a full written
information that becomes part of the information without restriction. copy of such confidential information.
Bureau’s investigative files, to Bureau The Bureau implements section To obtain a complete written copy of the
employees, to law enforcement and 1052(d)(2) of the Dodd-Frank Act by confidential information, the agency
other governmental agencies, in modifying section 1070.45(a)(2) of the must submit a request for it in
investigational hearings and witness interim final rule to state that upon accordance with section 1070.43(b) of
interviews, and to either House of or a receiving a request from the Congress the rule. In response to such a request,
committee or subcommittee of the for confidential information that a the Bureau’s General Counsel will
Congress, upon request. The Bureau financial institution has submitted to decide whether or not to grant access to
may also disclose confidential the Bureau, the Bureau shall provide the requested confidential information
information in administrative or court written notice to the financial as set forth in § 1070.43(b) and in
proceedings to which the Bureau is a institution of its receipt of the request, accordance with relevant Bureau
party. In the case of confidential along with a copy of the request. guidance, including CFPB Bulletin 12–
investigatory material that contains any However, the Bureau declines to 01.
trade secret or privileged or confidential modify this paragraph to exclude The Bureau also notes that an agency
commercial or financial information, as disclosures to Congress of personally that receives confidential information in
claimed by designation by the submitter identifiable information insofar as summary form pursuant to
of such material, or confidential section 1052(d)(2) of the Dodd-Frank § 1070.45(a)(5) is subject to the same
supervisory information, the submitter Act expressly states that no rule of the Bureau prohibition against further
may seek an appropriate protective or in Bureau shall prevent disclosures to the disclosing that information that applies
camera order prior to disclosure of such Congress of information obtained by the when it receives a complete written
material in a proceeding. Bureau. copy of that confidential information.
The Bureau received several The Bureau also disagrees with the See 12 CFR 1070.47.
comments regarding § 1070.45. One commenter that this paragraph should

commenter argues that the Bureau exclude disclosures of confidential Section 1070.46 Other Disclosures of
should implement section 1052(d)(2) of information to Congressional Confidential Information
the Dodd-Frank Act by amending subcommittees. Section 1070.46 provides that
§ 1070.45(a)(2) of the interim final rule The Bureau declines to modify notwithstanding the other provisions in
to state that the Bureau shall provide § 1070.45(a)(4) of the interim final rule subpart D that restrict the circumstances
financial institutions with prior notice to require the Bureau to assert all under which the CFPB may disclose
confidential information, the Director Section 1070.47 Other Rules Regarding not have authority to enforce this
may authorize other disclosures of the Disclosure of Confidential regulation to the extent that it applies to
confidential information to the extent Information confidential information provided to
permitted by law. Section 1070.47(a) declares the other agencies. To incentivize agencies
Section 1070.46(b) authorizes the Bureau’s retained ownership of any to abide by this restriction, the
CFPB to provide prior written notice to confidential information it discloses to commenter suggests that the rule should
the person to whom the confidential Federal or State agencies, to supervised state that if a party to whom the Bureau
information pertains—to the extent that financial institutions, or to other provides confidential information leaks
the CFPB deems such notice to be persons as provided in subpart D. It it intentionally or otherwise, the Bureau
appropriate under the circumstances— will stop providing confidential
prohibits further disclosures of such
that the CFPB intends to disclose information to that party.
information without the Bureau’s prior
Another commenter argues that the
confidential information, in accordance written authorization. It directs Bureau should require third party
with this section. recipients of confidential information recipients of confidential information to
Section 1070.46(c) clarifies that the who receive requests or demands for its comply with all applicable laws,
authority to disclose confidential further disclosure to refer such requests including State laws.
information pursuant to this section or demands to the Bureau, afford the To address concerns regarding the
may be exercised only by the Director or Bureau an opportunity to respond or enforceability of the interim final rule
by an individual acting in the capacity intervene, and to assert legal with respect to State agencies, the
of the Director in the absence or exemptions or privileges on the Bureau makes several modifications in
unavailability of a Director, such as the Bureau’s behalf if so requested. To the the final rule.
Deputy Director (as set forth in section extent that requests for confidential First, the final rule now requires, in
1011(b)(5)(B) of the Dodd-Frank Act). information are made pursuant to the subparagraph (a)(3)(ii), that recipients of
FOIA, the Privacy Act, or State law confidential information must re-direct
Several commenters also expressed
equivalents of those statutes, all third party requests for that
concern that § 1070.46 renders
§ 1070.47(a)(3) requires Federal or State information to the Bureau and not
meaningless the disclosure restrictions
agency recipients to refer such requests simply those requests filed under the
of subpart D by authorizing the Director
to the Bureau for its response. As FOIA, the Privacy Act, or State
to disclose confidential information
provided by § 1070.47(a)(4), nothing in analogues to such laws.
without limitation. To address this
this section precludes a recipient of Second, the Bureau modifies
concern, commenters propose either
confidential information under subpart subparagraph (a)(3)(ii) to clarify that
eliminating this provision entirely or
D from disclosing such information recipients of confidential information
imposing strict criteria on the Director’s
pursuant to a valid Federal court order must provide the aforementioned
discretion. One commenter proposes
or a request or demand from a duly instruction to third party requesters of
permitting the Director to authorize
authorized committee of the United that information only to the extent that
discretionary disclosures only where
States Congress. In such cases where applicable law permits them to do so.
such disclosures are expressly permitted Third, the Bureau modifies
disclosure is compulsory, the disclosing
under the Dodd-Frank Act and where subparagraph (a)(4) of the interim final
party shall use its best efforts to secure
there is an actual exigent need for such rule to state that nothing in this section
a protective order or agreement that
disclosure in order for the Bureau to precludes compliance with a legally
maintains the confidentiality of the
perform a statutorily required duty valid and enforceable order of a court of
confidential information disclosed.
under applicable law. Section 1070.47(b) permits the Bureau competent jurisdiction rather than, more
The Bureau declines to eliminate or to impose any additional conditions or narrowly, an order of a United States
substantially modify § 1070.46. As the limitations that it deems prudent upon Federal court. The Bureau makes this
CPFB noted when it published the the use or disclosure of confidential modification principally to clarify that if
interim final rule, the Bureau does not information by agencies or persons to a final and enforceable order of a State
intend to utilize this provision whom such information has been court requires a recipient of confidential
routinely, or as a matter of convenience, disclosed pursuant to this subpart. information to disclose that information
to circumvent applicable laws or After the publication of the interim to a third party, the rule does not
provisions of the rule that exist final rule, the Bureau published a notice preclude the recipient from complying
elsewhere in subpart D to prohibit or of proposed rulemaking that proposed with the order.
restrict its disclosure of confidential an amendment to § 1070.47(c). See 77 Fourth, the Bureau modifies
information. Instead, the Bureau intends FR 15286 (Mar. 15, 2012). The amended subparagraphs (a)(2) and (a)(5) to make
to use this provision in the same way version of this provision provides that them consistent with § 1070.42 of the
that other Federal agencies utilize the Bureau’s provision of privileged rule. Section 1070.42 allows financial
similar catch-all provisions—to account information to another Federal or State institutions that receive copies of
for rare situations in which an agency does not waive any applicable confidential supervisory information to
unforeseen and exigent need exists to privilege, whether the privilege belongs further disclose that information to
disclose confidential information for to the Bureau or any other person. certain other entities and persons.
purposes or in a manner not otherwise The Bureau published its final rule on Subparagraph (a)(2) of the interim final
provided for in the rule. To help ensure July 5, 2012. See 77 FR 39617. In its rule seemingly precludes such
that the CPFB utilizes § 1070.46 as final rule, the Bureau addressed public disclosures altogether while
described, the rule states that the comments that it received in response to subparagraph (a)(5) precludes such
Director must personally authorize in the notice of proposed rulemaking. disclosures to the extent that they
writing disclosures of confidential Please see that final rule for further involve removing confidential
information that occur pursuant to information. supervisory information from the
§ 1070.46 and that he or she may not The Bureau received several premises of financial institutions. The
delegate this responsibility to comments about this provision. One final rule eliminates this unintended
subordinates. commenter argues that the Bureau does result by stating that, except as
otherwise permitted by subpart D— required by the Privacy Act. The Bureau 1700 G Street NW., Washington, DC
rather than by § 1070.47 only— received no comments on the interim 20552.
recipients of confidential information final rule. The Bureau adopts the
Section 1070.54 CFPB Procedures for
may not further disclose confidential interim final rule without modification.
Responding to a Request for Access
information, including by making
Section 1070.52 Fees
personal copies of such information and Section 1070.54 of the interim final
by removing it from the premises of Section 1070.52 of the interim final rule sets forth procedures for the Bureau
financial institutions. rule identifies the fees that are to follow in responding to a Privacy Act
associated with processing Privacy Act request for records.
Section 1070.48 Privileges Not
requests for copies of records submitted Paragraph (a) provides that the Bureau
Affected by Disclosure to the CFPB
pursuant to this subpart. This provision will acknowledge and seek to respond
After the publication of the interim also sets for circumstances in which the to each request within twenty (20)
final rule, the Bureau published a notice Bureau will not charge fees to process business days of its receipt.
of proposed rulemaking that proposed Privacy Act requests. The Bureau Paragraph (b) identifies procedures for
to add to the interim final rule a new received no comments on the interim making requested records available for
§ 1070.48. See 77 FR 15286, 15286 (Mar. final rule. The Bureau adopts the inspection and copying in the Bureau
15, 2012). This new section provides interim final rule without modification reading room or mailing or emailing the
that the submission by any person of except to correct a typographical error. records directly to the requester.
any information to the Bureau in the Paragraph (c) requires the Bureau to
course of the Bureau’s supervisory or Section 1070.53 Requests for Access to
Records inform requesters in writing of its
regulatory processes will not waive or denials of requests. Such notification
otherwise affect any privilege such Section 1070.53(a) of the interim final must include the reasons for denial and
person may claim with respect to such rule describes how individuals may procedures for appealing the
information under Federal or State law request access to Bureau records that determination.
as to any other person or entity. pertain to them. The Bureau received no comments on
The Bureau published its final rule on Paragraph (a) states that requests that the interim final rule. The Bureau
July 5, 2012. See 77 FR 39617. In its requests may be made electronically or adopts the interim final rule without
final rule, the Bureau addressed public in paper form and submitted to modification.
comments that it received in response to designated addresses.
the notice of proposed rulemaking. Paragraph (b) identifies the required Section 1070.55 Special Procedures for
Please see that final rule for further content of Privacy Act requests. Such Medical Records
information. content must include, among other Section 1070.55 of the interim final
Subpart E—The Privacy Act things, the name of the system of rule sets forth special procedures for the
records that the requester believes Bureau to apply when responding to
Section 1070.50 Purpose and Scope; contains the records requested, or a Privacy Act requests for medical or
Definitions description of the records sought that is psychological records. The Bureau
Section 1070.50 of the interim final sufficiently specific to enable Bureau received no comments on the interim
rule sets forth the purpose of subpart E, personnel to locate the applicable final rule. The Bureau modifies the
which is to implement the requirements system of records with a reasonable interim final rule to clarify that a
of the Privacy Act of 1974, 5 U.S.C. 552a amount of effort. Wherever possible, it physician or other appropriate
(the Privacy Act). Among other things, should also contain a description of the representative whom a requester
the Privacy Act requires Federal record sought, including any designates to receive the Bureau’s
agencies to grant individuals access to information that might assist the Bureau medical or psychological records that
records that agencies maintain about in locating it. pertain to the requester shall—rather
them in systems of records as well as Paragraph (c) requires requesters to than may—disclose those records to the
the right to amend or correct such provide proof of their identity to obtain requester, but that physician or
records. Section 1070.50 also defines access to Privacy Act protected records. representative may disclose such
certain terms that are used throughout Such proof includes a photocopy of records in a manner that he or she
subpart E. The Bureau received no identification cards or forms that bear deems appropriate to prevent or
comments on the interim final rule. The the requester’s photograph and mitigate adverse effects on the requester.
Bureau adopts the interim final rule signature or a statement swearing or
affirming the requester’s identity. Section 1070.56 Request for
without modification. Amendment of Records
Additional proof may be required in
Section 1070.51 Authority and certain circumstances. For example, if a Section 1070.56(a) of the interim final
Responsibilities of the Chief Privacy requester seeks records pertaining to rule comprises procedures for
Officer another individual in the requester’s individuals to follow when making
Section 1070.51 of the interim final capacity as that individual’s guardian, requests for the amendment of Bureau
rule authorizes the Chief Privacy Officer then the requester must provide proof of records that concern them. Individuals
of the Bureau to respond to public guardianship before the Bureau will seeking amendment to a record must
requests made under the Privacy Act for process the request. submit the request in writing, along
access to, accounting of, or amendments Paragraph (d) states that an individual with proof of identity (unless such proof
to Bureau records contained in systems may request an accounting of previous was already provided in a related access
of records. It also authorizes the Chief disclosures of records pertaining to such or amendment request), and submit it,
Privacy Officer to approve the individual. either in paper or electronic form, to the
publication and amendment of systems The Bureau received no comments on Chief Privacy Officer. The request must
of record notices. Finally, the interim the interim final rule. The Bureau identify the relevant system of records
final rule authorizes the Chief Privacy modifies the interim final rule to reflect and the portion of the record to be
Officer to file any necessary reports the new mailing address of the Bureau: amended. The request also must
describe the nature and reasons for each denial of access or amendment was in investigatory systems compiled for law
requested amendment. error. enforcement purposes.
Paragraph (b) states that the requester Paragraph (c) designates the General After the publication of the interim
bears the burden of proving, through Counsel of the Bureau to decide final rule, the Bureau published a notice
relevant and convincing evidence, that appeals. The General Counsel must of proposed rulemaking that proposed
the record should be amended because make his or her determination within to add to this section of the rule a new
it is not accurate, relevant, timely or thirty (30) business days from the date exempt system of records: CFPB .005—
complete. of his or her receipt of the appeal, Consumer Response System. See 77 FR
The Bureau received no comments on unless the General Counsel extends the 64241 (Oct. 19, 2012).
the interim final rule. The Bureau time for good cause. If the General The Bureau received no comments on
modifies section 1070.56(b) of the Counsel denies the appeal, the General the interim final rule or on the notice of
interim final rule to adopt the Counsel must inform the requester in proposed rulemaking. The Bureau
‘‘preponderance of the evidence’’ writing. The denial notification must adopts the interim final rule and the
standard of proof that the Office of include the General Counsel’s reasons proposed rule without modification
Management and Budget prescribed in for denying the appeal and describe the except to correct a drafting error.
its guidance to agencies on the requester’s right to file a statement of
disagreement and to have a court review Section 1070.61 Training; Rules of
implementation of the Privacy Act. See
the appellate determination. Conduct; Penalties for Non-Compliance
Office of Management and Budget,
Privacy Act Implementation: Guidelines Paragraph (d) sets forth the Section 1070.61(a) of the interim final
and Responsibilities, 40FR 28958–28959 appellant’s right to file a concise rule requires the Chief Privacy Officer to
(Jul. 9, 1975). statement of disagreement with the institute a training program to instruct
General Counsel’s denial of an appeal. Bureau employees and contractors as to
Section 1070.57 CFPB Review of a The Bureau must maintain this their duties and responsibilities under
Request for Amendment of Records statement of disagreement with the the Privacy Act and the regulations of
Section 1070.57 of the interim final record that the requester sought to this subpart.
rule sets forth procedures for the Bureau amend and any disclosure of the record Paragraph (b) sets forth standards of
to follow in reviewing and responding must include a copy of the statement of conduct applicable to Bureau employees
to a request to amend records pertaining disagreement. The Bureau also must, and contractors regarding compliance
to an individual. where practical and appropriate, with the Privacy Act and the regulations
Paragraph (a) requires the Bureau to provide a copy of the statement of of this subpart.
acknowledge such a request within ten disagreement to prior recipients of the
(10) business days after its receipt. The record.
the interim final rule. The Bureau
Bureau must make its determination as adopts the interim final rule without
the interim final rule. The Bureau
to whether to grant an amendment modification except to correct drafting
adopts the interim final rule without
request promptly. and typographical errors.
modification.
Paragraph (b) requires the Bureau to
Section 1070.59 Restrictions on Section 1070.62 Preservation of
respond to a request for amendment in
Disclosure Records
writing by informing the requester of its
determination, and if granted, the steps Section 1070.59 of the interim final Section 1070.62 of the interim final
that it will take to amend the record. If rule states that the Bureau will not rule requires the Bureau to preserve all
denied, the Bureau must inform the disclose any record about an individual correspondence relating to requests
requester of the reasons for denial and contained in a system of records to any received under this part, as well as
of the requester’s appeal rights. person or agency without the prior records responsive to such requests,
The Bureau received no comments on written consent of that individual until Federal records laws or record
the interim final rule. The Bureau unless the Privacy Act authorizes it to retention schedules approved by the
adopts the interim final rule without do so. Authorized disclosures include National Archives and Records
modification. those that are compatible with so-called Administration authorizes the
‘‘routine uses’’ that the Bureau disposition or destruction of such
Section 1070.58 Appeal of Adverse records. The interim final rule also
Determination of Request for Access or publishes in the Federal Register as part
of its System of Records Notices. Copies instructs Bureau employees not to
Amendment dispose of such records while they are
of the Bureau’s System of Record
Section 1070.58 of the interim final Notices are available on the Bureau’s the subject of a pending request, appeal,
rule sets forth procedures for filing Web site, at http:// proceeding, or lawsuit.
appeals of Bureau denials of Privacy Act www.consumerfinance.gov. The Bureau One commenter suggests that the
requests for access to or amendment of received no comments on the interim Bureau should modify § 1070.62 of the
records. final rule. The Bureau adopts the interim final rule to provide that records
Paragraph (a) establishes a requester’s interim final rule without modification. will not be disposed of ‘‘or destroyed’’
right to file appeals of denials of while they are subject to a pending
requests for record access or amendment Section 1070.60 Exempt Records request, appeal, proceeding, or lawsuit.
within ten (10) business days after the Section 1070.60 of the interim final The Bureau agrees with the
Bureau notifies the requester that it has rule lists certain Bureau systems of commenter that Bureau employees
denied such requests. records that are exempt, pursuant to should be instructed to neither dispose
Paragraph (b) requires appellants to section (k)(2) of the Privacy Act, from of nor destroy correspondence that
file appeals in writing and to submit the record access rights and certain relates to or records that are responsive
them, in paper or electronic form, to the other rights and obligations set forth in to requests that the Bureau receives
General Counsel of the Bureau. Appeals this subpart and in the Privacy Act under this subpart while they are
must specify the background of the itself. These systems of records are subject to a pending request, appeal,
initial request and explain why the exempt insofar as they contain proceeding, or lawsuit.
Section 1070.63 Use and Collection of including consumers and covered covered persons whose information the
Social Security Numbers persons, may serve summons, Bureau will share with other agencies
Section 1070.63 of the interim final complaints, subpoenas, and other legal and which such agencies may use as
rule requires the Bureau to inform process, demands, and requests upon bases for administrative or judicial
employees that in collecting information the Bureau. The rule imposes special actions against covered persons. To the
from individuals, employees may not procedural requirements for those who extent that such costs occur, the Bureau
deny such individuals any rights, seek to serve third party subpoenas believes that in most cases, these costs
benefits, or privileges arising from such upon the Bureau in accordance with would be associated with concomitant
individuals’ refusals to disclose social United States ex rel. Touhy v. Ragen, benefits to consumers from the
security numbers to the Bureau unless 340 U.S. 462 (1951). These requirements prevention or remedy of harms
the collection of such numbers is may increase the time and burden associated with violations of law by
authorized by law. associated with obtaining records of the covered persons.10
In requesting social security numbers Bureau in response to such subpoenas. One commenter also contends that the
from individuals, the Bureau must Subpart D of the final rule, which information sharing practices that the
inform individuals whether the restricts the circumstances under which rule prescribes will result in a waiver of
provision of such numbers is mandatory the Bureau may disclose to the public or legal privileges that otherwise protect
or voluntary, the legal authority that share with other agencies certain this information from disclosure to third
authorizes the collection of such categories of confidential information, parties, thereby rendering such
numbers, and the uses that the Bureau benefits consumers and covered persons information vulnerable to subpoenas
will make of the numbers. to the extent that the confidential and discovery requests. Although the
The Bureau received no comments on information that the rule protects is Bureau believes that this concern is
the interim final rule. The Bureau derived from or pertains to consumers unwarranted, the Bureau has taken
adopts the interim final rule without or covered persons. For example, the action since it issued the interim final
modification. rule protects consumers’ privacy by rule to mitigate this potential cost. On
restricting the Bureau’s authority to July 5, 2012, the Bureau modified
V. Section 1022(b)(2)(A) of the Dodd- disclose publicly personally-identifiable § 1070.47(c) of the interim final rule and
Frank Act complaint information that consumers added a new § 1070.48 to clarify that the
In developing the final rule, the submit to the Bureau. The rule also provision by a covered person of
Bureau has considered potential protects the financial and reputational confidential information to the Bureau
benefits, costs, and impacts, and has interests of covered persons by limiting and the Bureau’s disclosure of such
consulted or offered to consult with the the extent to which the Bureau may information to another agency does not
prudential regulators, including with publicly disclose supervisory and law waive legal privileges that otherwise
regard to consistency with any enforcement information about them. protect such information from
prudential, market, or systemic To the extent that the rule requires or disclosure. See 77 FR 39617.
objectives administered by such authorizes the Bureau to share One commenter suggests that
agencies.8 confidential information, the rule also § 1070.46 of the rule imposes costs upon
The analysis considers the benefits, has benefits for consumers and covered covered persons to the extent that it
costs, and impacts of the key provisions persons. Consumers may benefit when authorizes the Director of the Bureau to
of the rule against a pre-statutory the Bureau shares complaint disclose their confidential information
baseline; that is, the analysis evaluates information to facilitate resolution of to the public notwithstanding other
the benefits, costs, and impacts of the consumer complaints. They may also disclosure restrictions set forth in
relevant statutory provisions and the benefit when the Bureau shares subpart D. To the extent that the
regulations combined.9 supervisory information with other Director exercises his authority under
Subpart C of the final rule sets forth financial regulatory agencies to promote § 1070.46 to disclose confidential
procedures by which the public, compliance by covered persons with information, costs may indeed ensue to
consumer financial laws. Similarly, affected covered persons. However, at
8 Section 1022(b)(2)(A) of the Dodd-Frank Act consumers may benefit when the most only very few covered persons
addresses the consideration of the potential benefits Bureau shares its investigatory might actually face such a cost, because
and costs of regulation to consumers and covered information with other law enforcement the circumstances are limited in which
persons, including the potential reduction of access
by consumers to consumer financial products or agencies to aid efforts to prevent and the Director can and will exercise this
services; the impact on depository institutions and remedy harms to consumers caused by authority. To ensure that the Bureau
credit unions with $10 billion or less in total assets conduct that violates consumer will resort to § 1070.46 only in limited
as described in section 1026 of the Dodd-Frank Act; financial law. circumstances, the provision’s
and the impact on consumers in rural areas. Section
1022(b)(2)(B) directs the Bureau to consult, before
There is a benefit to covered persons disclosure authority is exercisable only
and during the rulemaking, with appropriate when the Bureau shares supervisory by the Director himself. The Director
prudential regulators or other Federal agencies, information with other regulatory does not intend to exercise his authority
regarding consistency with objectives those agencies. Information exchange among
agencies administer. The manner and extent to
which these provisions apply to a rulemaking of
regulatory agencies permits the Bureau 10 The Bureau notes that it has taken steps since
and these agencies to conduct joint it issued the interim final rule to limit the
this kind that does not establish standards of circumstances in which it shares supervisory
conduct, and to regulatory provisions that are supervisory examinations of covered information with agencies that are not engaged in
compelled by statutory changes, is unclear. persons rather than separate supervisory activities, including State attorneys
Nevertheless, to inform this rulemaking more fully,
examinations, thereby reducing general. In January 2012, the Bureau issued Bulletin
the Bureau performed the described analyses and 12–01, which states that the Bureau will not share
consultations. regulatory burdens to covered persons. confidential supervisory information routinely with
9 The Bureau has discretion in any rulemaking to This rule may entail certain costs to such agencies and will only share such information
choose an appropriate scope of analysis with covered persons. As one commenter to after scrutinizing factors that include the
respect to potential benefits and costs and an the interim final rule argues, the significance of the law enforcement interest at stake
appropriate baseline. The Bureau, as a matter of and the impact on the integrity of the supervisory
discretion, has chosen to describe a broader range
information sharing provisions of process. This Bulletin should limit litigation costs
of potential effects to more fully inform the subpart D of the rule may increase the to covered persons that might otherwise arise from
rulemaking. volume and costs of litigation for the final rule.
under § 1070.46 except in unforeseen 1070.3 Custodian of records; certification; Subpart E—Privacy Act
and exigent circumstances. Moreover, alternative authority. Sec.
§ 1070.46 states that the Bureau may 1070.4 Records of the CFPB not to be 1070.50 Purpose and scope; definitions.
notify covered persons of the Director’s otherwise disclosed. 1070.51 Authority and responsibilities of
intentions to disclose confidential Subpart B—Freedom of Information Act the Chief Privacy Officer.
information pursuant to 1070.46; such 1070.52 Fees.
Sec. 1070.53 Request for access to records.
notice would enable covered persons to 1070.10 General. 1070.54 CFPB procedures for responding to
seek appropriate relief if they believe 1070.11 Information made available; a request for access.
that the Director’s disclosure of discretionary disclosures. 1070.55 Special procedures for medical
confidential information would be 1070.12 Publication in the Federal Register. records.
contrary to law. 1070.13 Public inspection and copying. 1070.56 Request for amendment of records.
The CFPB does not expect that the 1070.14 Requests for CFPB records. 1070.57 CFPB review of a request for
final rule will have an appreciable 1070.15 Responsibility for responding to amendment of records.
impact on consumers’ access to requests for CFPB records. 1070.58 Appeal of adverse determination of
consumer financial products or services. 1070.16 Timing of responses to requests for request for access or amendment.
CFPB records. 1070.59 Restrictions on disclosure.
The final rule does not have a unique 1070.17 Requests for expedited processing.
impact on rural consumers. The final 1070.60 Exempt records.
1070.18 Responses to requests for CFPB 1070.61 Training; rules of conduct;
rule also has no unique impact on records. penalties for non-compliance.
insured depository institutions or 1070.19 Classified information. 1070.62 Preservation of records.
insured credit unions with less than $10 1070.20 Requests for business information 1070.63 Use and collection of social
billion in assets as described in section provided to the CFPB. security numbers.
1026(a) of the Dodd-Frank Act. 1070.21 Administrative appeals.
1070.22 Fees for processing requests for Authority: 12 U.S.C. 5481 et seq.; 5 U.S.C.
VI. Procedural Requirements CFPB records. 552; 5 U.S.C. 552a; 18 U.S.C. 1905; 18 U.S.C.
1070.23 Authority and responsibilities of 641; 44 U.S.C. ch. 30; 5 U.S.C. 301.
The Regulatory Flexibility Act, 5
U.S.C. 601 et seq., as amended by the the Chief FOIA Officer.
Subpart A—General Provisions and
Small Business Regulatory Enforcement Subpart C—Disclosure of CFPB Information Definitions
Fairness Act of 1996 (the RFA), requires in Connection With Legal Proceedings
each agency to consider the potential Sec. § 1070.1 Authority, purpose, and scope.
impact of its regulations on small 1070.30 Purpose and scope; definitions. (a) Authority. (1) This part is issued
entities, including small businesses, 1070.31 Service of summonses and by the Bureau of Consumer Financial
small governmental units, and small complaints.
1070.32 Service of subpoenas, court orders,
Protection, an independent Bureau
not-for-profit organizations, unless the within the Federal Reserve System,
head of the agency certifies that the rule and other demands for CFPB information
or action. pursuant to the Consumer Financial
will not have a significant economic Protection Act of 2010, 12 U.S.C. 5481
1070.33 Testimony and production of
impact on a substantial number of small documents prohibited unless approved et seq.; the Freedom of Information Act,
entities. The undersigned so certifies. by the General Counsel. 5 U.S.C. 552; the Privacy Act of 1974,
The rule does not impose any 1070.34 Procedure when testimony or 5 U.S.C. 552a; the Federal Records Act,
obligations or standards of conduct for production of documents is sought; 44 U.S.C. 3101; the Paperwork
purposes of analysis under the RFA, and general. Reduction Act, 44 U.S.C. 3501 et seq.
it therefore does not give rise to a 1070.35 Procedure when response to
demand is required prior to receiving
the Right to Financial Privacy Act of
regulatory compliance burden for small 1978, 12 U.S.C. 3401; the Trade Secrets
entities. instructions.
1070.36 Procedure in the event of an Act, 18 U.S.C. 1905; 18 U.S.C. 641; and
Finally, the Bureau has determined
adverse ruling. any other applicable law that establishes
that this final rule does not impose any
1070.37 Considerations in determining a basis for the exercise of governmental
new recordkeeping, reporting, or whether the CFPB will comply with a authority by the CFPB.
disclosure requirements on members of demand or request.
the public that would be collections of (2) This part establishes mechanisms
1070.38 Prohibition on providing expert or
information requiring approval under for carrying out the CFPB’s statutory
opinion testimony.
the Paperwork Reduction Act, 44 U.S.C. responsibilities under the statutes in
Subpart D—Confidential Information paragraph (a)(1) of this section to the
3501, et seq.
Sec. extent those responsibilities require the
List of Subjects in 12 CFR Part 1070 1070.40 Purpose and scope. disclosure, production, or withholding
Confidential business information, 1070.41 Non-disclosure of confidential of information. In this regard, the CFPB
information. has determined that the CFPB, and its
Consumer protection, Freedom of
1070.42 Disclosure of confidential delegates, may disclose information of
information, Privacy. supervisory information to and by
the CFPB, in accordance with the
Authority and Issuance supervised financial institutions.
1070.43 Disclosure of confidential procedures set forth in this part,
For the reasons set forth in the information to law enforcement agencies whenever it is necessary or appropriate
preamble, the Bureau revises part 1070 and other government agencies. to do so in the exercise of any of the
to read as follows: 1070.44 Disclosure of confidential CFPB’s authority. The CFPB has
consumer complaint information. determined that all such disclosures,
PART 1070—DISCLOSURE OF 1070.45 Affirmative disclosure of made in accordance with the rules and
RECORDS AND INFORMATION confidential information. procedures specified in this part, are
1070.46 Other disclosures of confidential authorized by law.
Subpart A—General Provisions and information.
Definitions 1070.47 Other rules regarding the (b) Purpose and scope. This part
Sec. disclosure of confidential information. contains the CFPB’s rules relating to the
1070.1 Authority, purpose and scope. 1070.48 Privileges not affected by disclosure of records and information
1070.2 General definitions. disclosure to the CFPB. generated by and obtained by the CFPB.
(1) Subpart A contains general thereto, to the extent that such (l) Financial institution means any
provisions and definitions used in this information is exempt from disclosure person involved in the offering or
part. pursuant to 5 U.S.C. 552(b). provision of a ‘‘financial product or
(2) Subpart B implements the (h) Confidential investigative service,’’ including a ‘‘covered person’’
Freedom of Information Act, 5 U.S.C. information means: or ‘‘service provider,’’ as those terms are
552. (1) Civil investigative demand defined by 12 U.S.C. 5481.
(3) Subpart C sets forth the procedures material; and (m) General Counsel means the
with respect to subpoenas, orders, or (2) Any documentary material General Counsel of the CFPB or any
other requests for CFPB information in prepared by, on behalf of, received by, CFPB employee to whom the General
connection with legal proceedings. or for the use by the CFPB or any other Counsel has delegated authority to act
(4) Subpart D provides for the Federal or State agency in the conduct under this part.
protection of confidential information of an investigation of or enforcement (n) Person means an individual,
and procedures for sharing confidential action against a person, and any partnership, company, corporation,
information with supervised information derived from such association (incorporated or
institutions, government agencies, and documents. unincorporated), trust, estate,
others in certain circumstances. (i)(1) Confidential supervisory cooperative organization, or other
(5) Subpart E implements the Privacy information means: entity.
Act of 1974, 5 U.S.C. 552a. (i) Reports of examination, inspection (o) Report of examination means the
and visitation, non-public operating, report prepared by the CFPB concerning
§ 1070.2 General definitions.
condition, and compliance reports, and the examination or inspection of a
For purposes of this part: supervised financial institution.
(a) Business day means any day any information contained in, derived
from, or related to such reports; (p) State means any State, territory, or
except Saturday, Sunday or a legal possession of the United States, the
Federal holiday. (ii) Any documents, including reports
of examination, prepared by, or on District of Columbia, the
(b) CFPB means the Bureau of Commonwealth of Puerto Rico, the
Consumer Financial Protection. behalf of, or for the use of the CFPB or
Commonwealth of the Northern Mariana
(c) Chief FOIA Officer means the Chief any other Federal, State, or foreign
government agency in the exercise of Islands, Guam, American Samoa, or the
Operating Officer of the CFPB, or any
supervisory authority over a financial United States Virgin Islands or any
CFPB employee to whom the Chief
institution, and any information derived Federally recognized Indian tribe, as
Operating Officer has delegated
from such documents; defined by the Secretary of the Interior
authority to act under this part.
(iii) Any communications between the under section 104(a) of the Federally
(d) Chief Operating Officer means the
CFPB and a supervised financial Recognized Indian Tribe List Act of
Chief Operating Officer of the CFPB, or
institution or a Federal, State, or foreign 1994 (25 U.S.C. 479a–1(a)), and includes
any CFPB employee to whom the Chief
government agency related to the any political subdivision thereof.
Operating Officer has delegated
CFPB’s supervision of the institution; (q) Supervised financial institution
authority to act under this part.
(e) Civil investigative demand (iv) any information provided to the means a financial institution that is or
material means any documentary CFPB by a financial institution to enable that may become subject to the CFPB’s
material, written report, or answers to the CFPB to monitor for risks to supervisory authority.
questions, tangible thing, or transcript of consumers in the offering or provision § 1070.3 Custodian of records;
oral testimony received by the CFPB in of consumer financial products or certification; alternative authority.
any form or format pursuant to a civil services, or to assess whether an (a) Custodian of records. The Chief
investigative demand, as those terms are institution should be considered a Operating Officer is the official
set forth in 12 U.S.C. 5562, or received covered person, as that term is defined custodian of all records of the CFPB,
by the CFPB voluntarily in lieu of a civil by 12 U.S.C. 5481, or is subject to the including records that are in the
investigative demand. CFPB’s supervisory authority; and/or possession or control of the CFPB or any
(f) Confidential information means (v) Information that is exempt from CFPB employee.
confidential consumer complaint disclosure pursuant to 5 U.S.C. (b) Certification of record. The Chief
information, confidential investigative 552(b)(8). Operating Officer may certify the
information, and confidential (2) Confidential supervisory authenticity of any CFPB record or any
supervisory information, as well as any information does not include copy of such record, for any purpose,
other CFPB information that may be documents prepared by a financial and for or before any duly constituted
exempt from disclosure under the institution for its own business Federal or State court, tribunal, or
Freedom of Information Act pursuant to purposes and that the CFPB does not agency.
5 U.S.C. 552(b). Confidential possess. (c) Alternative authority. Any action
information does not include (j) Director means the Director of the or determination required or permitted
information contained in records that CFPB or his or her designee, or a person to be done by the Chief Operating
have been made publicly available by authorized to perform the functions of Officer may be done by any employee
the CFPB or information that has the Director in accordance with law. who has been duly designated for this
otherwise been publicly disclosed by an (k) Employee means all current purpose by the Chief Operating Officer.
employee with the authority to do so. employees or officials of the CFPB,
(g) Confidential consumer complaint including employees of contractors and § 1070.4 Records of the CFPB not to be
information means information received any other individuals who have been otherwise disclosed.
or generated by the CFPB, pursuant to appointed by, or are subject to the Except as provided by this part,
12 U.S.C. 5493 and 5534, that comprises supervision, jurisdiction, or control of employees or former employees of the
or documents consumer complaints or the Director, as well as the Director. The CFPB, or others in possession of a
inquiries concerning financial procedures established within this part record of the CFPB that the CFPB has
institutions or consumer financial also apply to former employees where not already made public, are prohibited
products and services and responses specifically noted. from disclosing such records, without
authorization, to any person who is not under 5 U.S.C. 552(a)(3) and §§ 1070.14 (2) Those statements of policy and
an employee of the CFPB. through 1070.22 of this subpart, and interpretations which have been
which the CFPB determines have adopted by the CFPB but are not
Subpart B—Freedom of Information become or are likely to become the published in the Federal Register;
Act subject of subsequent requests for (3) Its administrative staff manuals
substantially the same records. When and instructions to staff that affect a
§ 1070.10 General.
the CFPB receives three (3) or more member of the public;
This subpart contains the regulations requests for substantially the same (4) Copies of all records made
of the CFPB implementing the Freedom records, then the CFPB shall also make publicly available pursuant to § 1070.11
of Information Act (the FOIA), 5 U.S.C. the released records publicly available. of this subpart; and
552, as amended. These regulations set (5) A general index of the records
forth procedures for requesting access to § 1070.12 Publication in the Federal referred to in paragraph (a)(4) of this
records maintained by the CFPB. These Register. section.
regulations should be read together with (a) Requirement. The CFPB shall (b) Information made available
the FOIA, the 1987 Office of separately state, publish and maintain online. For records required to be made
Management and Budget Guidelines for current in the Federal Register for the available for public inspection and
FOIA Fees, the CFPB’s Privacy Act guidance of the public the following copying pursuant to 5 U.S.C. 552(a)(2)
regulations set forth in subpart E, and information: (paragraphs (a)(1) through (4) of this
the FOIA Web page on the CFPB’s Web (1) Descriptions of its central and field section), as soon as practicable, the
site, http://www.consumerfinance.gov, organization and the established place CFPB shall make such records available
which provide additional information at which, the persons from whom, and on its e-FOIA Library, located at
about this topic. the methods whereby, the public may http://www.consumerfinance.gov.
obtain information, make submissions (c) Record availability at the on-site
§ 1070.11 Information made available; e-FOIA Library. Any member of the
or requests, or obtain decisions;
discretionary disclosures.
(2) Statements of the general course public may, upon request, access the
(a) In general. The FOIA provides for and method by which its functions are CFPB’s e-FOIA Library via a computer
public access to information and records channeled and determined, including terminal at 1700 G Street NW.,
developed or maintained by Federal the nature and requirements of all Washington, DC 20552. Such a request
agencies. Generally, the FOIA divides formal and informal procedures may be made by electronic means as set
agency information into three major available; forth on the CFPB’s Web site, http://
categories and provides methods by (3) Rules of procedure, descriptions of www.consumerfinance.gov, or in
which each category of information is to forms available or the places at which writing, to the Chief FOIA Officer,
be made available to the public. The forms may be obtained, and instructions Consumer Financial Protection Bureau,
three major categories of information are as to the scope and contents of all 1700 G Street NW., Washington, DC
as follows: papers, reports, or examinations; 20552. The request must indicate a
(1) Information required to be (4) Substantive rules of general preferred date and time for the
published in the Federal Register (see applicability adopted as authorized by requested access. The CFPB reserves the
§ 1070.12 of this subpart); law, and statements of general policy or right to arrange a different date and time
(2) Information required to be made interpretations of general applicability with the requester, if necessary.
available for public inspection and formulated and adopted by the CFPB; (d) Redaction of identifying details.
copying or, in the alternative, to be and To prevent a clearly unwarranted
published and offered for sale (see (5) Each amendment, revision, or invasion of personal privacy, the CFPB
§ 1070.13 of this subpart); and repeal of matters referred to in may redact identifying details contained
(3) Information required to be made paragraphs (a)(1) through (4) of this in any matter described in paragraphs
available to any member of the public section. (a)(1) through (4) of this section before
upon specific request (see §§ 1070.14 (b) Exceptions. Publication of the making such matters available for
through 1070.22 of this subpart). information under clause (a) of this inspection or publication. The
(b) Discretionary disclosures. Even subpart shall be subject to the justification for the redaction shall be
though a FOIA exemption may apply to application of the FOIA exemptions and explained fully in writing, and the
the information or records requested, exclusions (5 U.S.C. 552(b) and (c)) and extent of such redaction shall be
the CFPB may, if not precluded by law, the limitations provided in 5 U.S.C. indicated on the portion of the record
elect under the circumstances not to 552(a)(1). which is made available or published,
apply the exemption. The fact that the unless including that indication would
exemption is not applied by the CFPB § 1070.13 Public inspection and copying.
harm an interest protected by the
in response to a particular request shall (a) In general. Subject to the exemption in 5 U.S.C. 552(b) under
have no precedential significance in application of the FOIA exemptions and which the redaction is made. If
processing other requests, but is merely exclusions (5 U.S.C. 552(b) and (c)), the technically feasible, the extent of the
an indication that, in the processing of CFPB shall, in conformance with 5 redaction shall be indicated at the place
the particular request, the CFPB finds U.S.C. 552(a)(2), make available for in the record where the redaction is
no necessity for applying the public inspection and copying, made.
exemption. including by posting on the CFPB’s Web
(c) Disclosures of records frequently site, http://www.consumerfinance.gov, § 1070.14 Requests for CFPB records.
requested. Subject to the application of or, in the alternative, promptly publish (a) In general. Subject to the
the FOIA exemptions and exclusions (5 and offer for sale the following application of the FOIA exemptions and
U.S.C. 552(b) and (c)), the CFPB shall information: exclusions (5 U.S.C. 552(b) and (c)), the
make publicly available, as provided by (1) Final opinions, including CFPB shall promptly make its records
§ 1070.13 of this subpart, all records concurring and dissenting opinions, and available to any person pursuant to a
regardless of form or format, which have orders made in the adjudication of request that conforms to the rules and
been released previously to any person cases; procedures of this section.
(b) Form of request. A request for fee category that applies to the or a declaration by that individual made
records of the CFPB shall be made in requester; in compliance with the requirements set
writing or by electronic means. (5) If a requester seeks a waiver or forth in 28 U.S.C. 1746 authorizing
(1) If a request is made in writing, it reduction of fees associated with disclosure of the records to the
shall be addressed to the Chief FOIA processing a request, then the request requester, or submits proof that the
Officer, Consumer Financial Protection shall include a statement to that effect individual is deceased (e.g., a copy of a
Bureau, 1700 G Street NW., Washington, as is required by § 1070.22(e) of this death certificate or an obituary). The
DC 20552. The request shall be labeled subpart. Any request that does not seek CFPB may require a requester to supply
‘‘Freedom of Information Act Request.’’ a waiver or reduction of fees constitutes additional information if necessary in
(2) If a request is made by electronic an agreement of the requester to pay any order to verify that a particular
means, it shall be submitted as set forth and all fees (of up to $25) that may individual has consented to disclosure.
on the CFPB’s Web site, http:// apply to the request, as otherwise set
www.consumerfinance.gov. The request forth in § 1070.22 of this subpart, except § 1070.15 Responsibility for responding to
shall be labeled ‘‘Freedom of that the requester may specify in the requests for CFPB records.
Information Act Request.’’ request an upper limit (of not less than (a) In general. In determining which
(c) Content of request. (1) In order to $25) that the requester is willing to pay records are responsive to a request, the
ensure the CFPB’s ability to respond in to process the request; and CFPB ordinarily will include only
a timely manner, a FOIA request should (6) If a requester seeks expedited records in its possession as of the date
describe the records that the requester processing of a request, then the request the CFPB begins its search for them. If
seeks in sufficient detail to enable CFPB must include a statement to that effect any other date is used, the CFPB shall
personnel to locate them with a as is required by § 1070.17 of this inform the requester of that date.
reasonable amount of effort. Whenever subpart. (b) Authority to grant or deny
possible, the request should include (d) Perfected requests; effect of requests. The Chief FOIA Officer shall
specific information about each record request deficiencies. For purposes of be authorized to grant or deny any
sought, such as the date, title or name, computing its deadline to respond to a request for a record of the CFPB.
author, recipient, and subject matter of request, the CFPB will deem itself to (c) Consultations and referrals. (1)
the record. If known, the requester have received a request only if, and on When a requested record has been
should include any file designations or the date that, it receives a request that created by an agency other than the
descriptions for the records requested. contains substantially all of the CFPB, the CFPB shall refer the record to
As a general rule, the more specific the information required by and that the originating agency for a direct
requester is about the records or type of otherwise conforms with paragraphs (b) response to the requester.
records requested, the more likely the and (c) of this section. The CFPB need (2) When a FOIA request is received
CFPB will be able to locate those not accept a request, process a request, for a record created by the CFPB that
records in response to the request; or be bound by any deadlines in this includes information originated by
(2) In order to ensure the CFPB’s subpart for processing a request that another agency, the CFPB shall consult
ability to communicate effectively with fails to conform, in any material respect, the originating agency for review and
the requester, a request should include to the requirements of paragraphs (b) recommendation on disclosure. The
contact information for the requester, and (c) of this section. If a request is CFPB shall not release any such records
including the name of the requester and, deficient in any material respect, then without prior consultation with the
to the extent available, a mailing the CFPB may return it to the requester originating agency.
address, telephone number, and email and if it does so, it shall advise the (d) Notice of referral. Whenever the
address at which the CFPB may contact requester in what respect the request is CFPB refers all or any part of the
the requester regarding the request; deficient, and what additional responsibility for responding to a
(3) The request should state whether information is needed to respond to the request to another agency, it will notify
the requester wishes to inspect the request. The requester may then amend the requester of the referral and inform
records or desires to receive an or resubmit the request. A the requester of the name of each agency
electronic copy or have a copy made determination by the CFPB that a to which the request has been referred,
and furnished without first inspecting request is deficient in any respect is not in whole or in part.
the records; a denial of a request for records and
(4) For the purpose of determining such determinations are not subject to § 1070.16 Timing of responses to requests
any fees that may apply to processing a appeal. If a requester fails to respond to for CFPB records.
request, a requester should indicate in a CFPB notification that a request is (a) In general. Except as set forth in
the request whether the requester is a deficient within thirty (30) days of the paragraphs (b) through (d) of this
commercial user, an educational CFPB’s notification, the CFPB will deem section, and § 1070.17 of this subpart,
institution, non-commercial scientific the request withdrawn. the CFPB shall respond to requests
institution, representative of the news (e) Requests by an individual for according to their order of receipt.
media, governmental entity, or ‘‘other’’ CFPB records pertaining to that (b) Multitrack processing. (1) The
requester, as those terms are defined in individual. An individual who wishes CFPB may establish separate tracks to
§ 1070.22(b) of this subpart, and the to inspect or obtain copies of records of process simple and complex requests.
basis for claiming that fee category. the Bureau that pertain to that The CFPB may assign a request to the
Requesters may seek assistance in individual shall file a request in simple or complex track(s) based on the
determining the appropriate fee category accordance with subpart E of these amount of work and/or time needed to
by contacting the CFPB’s FOIA Public rules. process the request. The CFPB shall
Liaison at the telephone number listed (f) Requests for CFPB records process requests in each track based on
on the CFPB’s Web site, http:// pertaining to another individual. Where the date the request was perfected in
www.consumerfinance.gov. The CFPB a request for records pertains to a third accordance with § 1070.14(d).
will use any information provided to the party, a requester may receive greater (2) The CFPB may provide a requester
FOIA Public Liaison solely for the access by submitting either a notarized in its complex track with an opportunity
purpose of determining the appropriate authorization signed by that individual to limit the scope of the request to
qualify for faster processing within the of the request, or among two or more knowledge and belief. The certification
specified limits of the simple track(s). CFPB offices having substantial subject must be in the form prescribed by 28
(c) Time period for responding to matter interest therein. U.S.C. 1746: ‘‘I declare under penalty of
requests for records. Ordinarily, the perjury that the foregoing is true and
CFPB shall have twenty (20) business § 1070.17 Requests for expedited correct to the best of my knowledge and
days from when a request is received by processing.
belief. Executed on [date].’’ The
the CFPB to determine whether to grant (a) In general. The CFPB shall process requester shall mail or submit
or deny a request for records. The a request on an expedited basis electronically a copy of such written
twenty (20) business day time period set whenever a requester demonstrates a certification to the Chief FOIA Officer as
forth in this paragraph shall not be compelling need for expedited set forth in § 1070.14(b) of this subpart.
tolled by the CFPB except that the CFPB processing in accordance with the The CFPB may waive this certification
may: requirements of this paragraph or in requirement in appropriate
(1) Make one reasonable demand to other cases that the CFPB deems circumstances.
the requester for clarifying information appropriate. (c) Determinations of requests for
about the request and toll the twenty (b) Form and content of a request for expedited processing. Within ten (10)
(20) business day time period while it expedited processing. A request for calendar days of its receipt of a request
awaits the clarifying information; or expedited processing shall be made as for expedited processing, the CFPB shall
(2) Toll the twenty (20) business day follows: decide whether to grant it and shall
time period while it awaits clarification (1) A request for expedited processing notify the requester of the determination
from or addresses any dispute with the shall be made in writing or by electronic in writing.
requester regarding the assessment of means and submitted as part of a (d) Effect of granting requests for
fees. request for records in accordance with expedited processing. If the CFPB grants
(d) Unusual circumstances. (1) Where section 1070.14(b). When a request for a request for expedited processing, then
the CFPB determines that due to records includes a request for expedited the CFPB shall give the expedited
unusual circumstances it cannot processing, the request shall be labeled request priority over non-expedited
respond either to a request within the ‘‘Expedited Processing Requested.’’ requests and shall process the expedited
time period set forth in paragraph (c) of (2) A request for expedited processing request as soon as practicable. The
this section or to an appeal within the shall contain a statement that CFPB may assign expedited requests to
time period set forth in § 1070.21 of this demonstrates a compelling need for the their own simple and complex
subpart, the CFPB may extend the requester to obtain expedited processing processing tracks based upon the
applicable time periods by informing of the requested records. A ‘‘compelling amount of work and/or time needed to
the requester in writing of the unusual need’’ is defined as follows: process them. Within each such track,
circumstances and of the date by which (i) Failure to obtain the requested
an expedited request shall be processed
the CFPB expects to complete its records on an expedited basis could
in the order of its receipt.
processing of the request or appeal. Any reasonably be expected to pose an (e) Appeals of denials of requests for
extension or extensions of time with imminent threat to the life or physical expedited processing. If the CFPB
respect to a request or an appeal shall safety of an individual. The requester denies a request for expedited
not cumulatively total more than ten shall fully explain the circumstances processing, then the requester shall have
(10) business days. However, if the warranting such an expected threat so the right to submit an appeal of the
CFPB determines that it needs that the CFPB may make a reasoned denial determination in accordance
additional time beyond a ten (10) determination that a delay in obtaining with § 1070.21 of this subpart. The
business day extension to process the the requested records could pose such a CFPB shall communicate this appeal
request or appeal, then the CFPB shall threat; or right as part of its written notification to
notify the requester and provide the (ii) With respect to a request made by
the requester denying expedited
requester with an opportunity to limit a person primarily engaged in
processing. The requester shall label its
the scope of the request or appeal or to disseminating information, urgency to
appeal request ‘‘Appeal for Expedited
arrange for an alternative time frame for inform the public concerning actual or
Processing.’’ The CFPB shall act
processing the request or appeal or a alleged Federal government activity. A
expeditiously upon an appeal of a
modified request or appeal. The person ‘‘primarily engaged in
denial of a request for expedited
requester shall retain the right to define disseminating information’’ does not
processing.
the desired scope of the request or include individuals who are engaged
appeal, as long as it meets the only incidentally in the dissemination § 1070.18 Responses to requests for CFPB
requirements contained in this subpart. of information. The standard of records.
(2) As used in this paragraph, ‘‘urgency to inform’’ requires that the (a) Acknowledgements of requests.
‘‘unusual circumstances’’ means: records requested pertain to a matter of Upon receipt of a perfected request, the
(i) The need to search for and collect current exigency to the American public CFPB will assign to the request a unique
the requested records from field and that delaying a response to a request tracking number. The CFPB will send an
facilities or other establishments that are for records would compromise a acknowledgement letter to the requester
separate from the office processing the significant recognized interest to and by mail or email within ten (10)
request; throughout the American general calendar days of receipt of the request.
(ii) The need to search for, collect, public. The requester must adequately The acknowledgment letter will contain
and appropriately examine a explain the matter or activity and why the following information:
voluminous amount of separate and the records sought are necessary to be (1) The applicable request tracking
distinct records which are demanded in provided on an expedited basis. number;
a single request; or (3) The requester shall certify the (2) The date of receipt of the request,
(iii) The need for consultation, which written statement that purports to as determined in accordance with
shall be conducted with all practicable demonstrate a compelling need for section 1070.14(d) of this subpart, as
speed, with another agency having a expedited processing to be true and well as the date when the requester may
substantial interest in the determination correct to the best of the requester’s expect a response;
(3) A brief statement identifying the (iv) Advise the requester of the right (d) Notice to submitters. The CFPB
subject matter of the request; and to administrative appeal in accordance shall provide a submitter with prompt
(4) A confirmation, with respect to with § 1070.21 of this subpart; and written notice of receipt of a request or
any fees that may apply to the request (v) Specify the official or office to appeal encompassing its business
pursuant to § 1070.22 of this subpart, which such appeal shall be submitted. information whenever required in
that the requester has sought a waiver or (5) If it is determined, after a accordance with paragraph (e) of this
reduction in such fees, has agreed to pay reasonable search for records, that no section. Such written notice shall either
any and all applicable fees, or has responsive records have been found to describe the exact nature of the business
specified an upper limit (of not less than exist, the requester shall be notified in information requested or provide copies
$25) that the requester is willing to pay writing or by email. The notification of the records or portions of records
in fees to process the request. shall also advise the requester of the containing the business information.
(b) Initial determination to grant or right to administratively appeal the When notification of a voluminous
deny a request. (1) The officer CFPB’s determination that no number of submitters is required,
designated in § 1070.15(b) to this responsive records exist (i.e., to notification may be made by posting or
subpart, or his or her delegate, shall challenge the adequacy of the CFPB’s publishing the notice in a place
make initial determinations either to search for responsive records) in reasonably likely to accomplish it.
grant or to deny in whole or in part accordance with § 1070.21 of this (e) When notice is required. (1) The
requests for records. subpart. The response shall specify the CFPB shall provide a submitter with
(2) If the request is granted in full or official or office to which the appeal notice of receipt of a request or appeal
in part, and if the requester requests a shall be submitted for review. whenever:
copy of the records requested, then a (i) The information has been
copy of the records shall be mailed or § 1070.19 Classified information. designated in good faith by the
emailed to the requester in the Whenever a request is made for a submitter as information considered
requested format, to the extent the record containing information that protected from disclosure under
records are readily producible in the another agency has classified, or which Exemption 4; or
requested format. The CFPB shall also may be appropriate for classification by (ii) The CFPB has reason to believe
send the requester a statement of the another agency under Executive Order that the information may be protected
applicable fees, either at the time of the 13526 or any other executive order from disclosure under Exemption 4.
determination or shortly thereafter. concerning the classification of (2) The notice requirements of this
(3) In the case of a request for information, the CFPB shall refer the paragraph shall not apply if:
inspection, the requester shall be responsibility for responding to the (i) The CFPB determines that the
notified in writing of the determination, request to the classifying or originating information is exempt under the FOIA;
when and where the requested records agency, as appropriate. (ii) The information lawfully has been
may be inspected, and of the fees published or otherwise made available
incurred in complying with the request. § 1070.20 Requests for business to the public;
The CFPB shall then promptly make the information provided to the CFPB. (iii) Disclosure of the information is
records available for inspection at the (a) In general. Business information required by statute (other than the
time and place stated, in a manner that provided to the CFPB by a business FOIA) or by a regulation issued in
will not interfere with CFPB’s submitter shall not be disclosed accordance with the requirements of
operations and will not exclude other pursuant to a FOIA request except in Executive Order 12600 (3 CFR, 1988
persons from making inspections. The accordance with this section. Comp., p. 235); or
requester shall not be permitted to (b) Definitions. For purposes of this (iv) The designation made by the
remove the records from the room section: submitter under paragraph (e)(1)(i) of
where inspection is made. If, after (1) Business information means this section appears obviously frivolous,
making inspection, the requester desires commercial or financial information except that, in such a case, the CFPB
copies of all or a portion of the obtained by the CFPB from a submitter shall, within a reasonable time prior to
requested records, copies shall be that may be protected from disclosure a specified disclosure date, give the
furnished upon payment of the under Exemption 4 of the FOIA, 5 submitter written notice of any final
established fees prescribed by § 1070.22 U.S.C. 552(b)(4). decision to disclose the information.
of this subpart. Fees may be charged for (2) Submitter means any person from (f) Opportunity to object to disclosure.
search and review time as stated in whom the CFPB obtains business (1) Through the notice described in
§ 1070.22 of this subpart. information, directly or indirectly. The paragraph (d) of this section, the CFPB
(4) If it is determined that the request term includes, without limitation, shall afford a submitter ten (10) business
for records should be denied in whole corporations, State, local, and tribal days from the date of the notice to
or in part, the requester shall be notified governments, and foreign governments. provide the CFPB with a detailed
by mail or by email. The letter of (c) Designation of business statement of any objection to disclosure.
notification shall: information. A submitter of business Such statement shall specify all grounds
(i) State the exemptions relied upon information will use good-faith efforts to for withholding any of the information
in denying the request; designate, by appropriate markings, under any exemption of the FOIA and,
(ii) If technically feasible, indicate the either at the time of submission or at a in the case of Exemption 4, shall
amount of information deleted and the reasonable time thereafter, any portions demonstrate why the information is
exemptions under which the deletion is of its submission that it considers to be considered to be a trade secret or
made at the place in the record where protected from disclosure under commercial or financial information
such deletion is made (unless providing Exemption 4 of the FOIA. These that is privileged or confidential. In the
such indication would harm an interest designations will expire ten (10) years event that a submitter fails to respond
protected by the exemption relied upon after the date of the submission unless to the notice within the time specified
to deny such material); the submitter requests otherwise and in it, the submitter shall be considered
(iii) Set forth the name and title or provides justification for, a longer to have no objection to disclosure of the
position of the responsible official; designation period. information. Information provided by a
submitter pursuant to this paragraph (2) To assign a particular fee category appeal tracking number, and the
may itself be subject to disclosure under to the requestor (as provided in expected date of response.
the FOIA. § 1070.22(b) of this subpart); (e) Determinations to grant or deny
(2) When notice is given to a (3) To deny a request for a reduction administrative appeals. The General
submitter under this section, the or waiver of fees (as provided in Counsel is authorized to and shall
requester shall be advised that such § 1070.22(e) of this subpart); decide whether to affirm the initial
notice has been given to the submitter. (4) That no records exist that are determination (in whole or in part) or to
The requester shall be further advised responsive to the request (as provided in reverse the initial determination (in
that a delay in responding to the request § 1070.18(b) of this subpart); or whole or in part) and shall notify the
may be considered a denial of access to (5) To deny a request for expedited requester of this decision in writing
records and that the requester may processing (as provided in § 1070.17(e) within twenty (20) business days after
proceed with an administrative appeal of this subpart). the date of receipt of the appeal, unless
or seek judicial review, if appropriate. (b) Time limits for filing extended pursuant to § 1070.16(d) of
However, the requester will be invited administrative appeals. An appeal, this subpart.
to agree to a voluntary extension of time other than an appeal of a denial of
expedited processing, must be (1) If it is decided that the appeal is
so that the CFPB may review the
postmarked or submitted electronically to be denied (in whole or in part) the
submitter’s objection to disclose, if any.
on a date that is within forty-five (45) requester shall be:
(g) Notice of intent to disclose. The
CFPB shall consider carefully a calendar days of the date of the initial (i) Notified in writing of the denial;
submitter’s objections and specific determination or the date of the letter (ii) Notified of the reasons for the
grounds for nondisclosure prior to transmitting the last records released, denial, including which of the FOIA
determining whether to disclose whichever is later. An appeal of a denial exemptions were relied upon;
business information. Whenever the of expedited processing must be made
(iii) Notified of the name and title or
CFPB decides to disclose business within ten (10) days of the date of the
position of the official responsible for
information over the objection of a initial determination letter to deny
the determination on appeal;
submitter, the CFPB shall forward to the expedited processing (see § 1070.17 of
submitter a written notice which shall this subpart). (iv) Provided with a statement that
include: (c) Form and content of judicial review of the denial is available
administrative appeals. In order to in the United States District Court for
(1) A statement of the reasons for the judicial district in which the
which the submitter’s disclosure ensure a timely response to an appeal,
the appeal shall be made in writing or requester resides or has a principal
objections were not sustained; place of business, the judicial district in
by electronic means as follows:
(2) A description of the business which the requested records are located,
(1) If appeal is made in writing, it
information to be disclosed; and or the District of Columbia in
shall be addressed to and submitted to
(3) A specified disclosure date which the officer specified in paragraph (e) of accordance with 5 U.S.C. 552(a)(4)(B);
is not less than ten (10) business days this section at the address set forth in and
after the notice of the final decision to § 1070.14(b) of this subpart. The appeal (v) Provided with notification that
release the requested information has shall be labeled ‘‘Freedom of mediation services are available to the
been mailed to the submitter. Except as Information Act Appeal.’’ requester as a non-exclusive alternative
otherwise prohibited by law, a copy of (2) If an appeal is made by electronic to litigation through the Office of
the disclosure notice shall be forwarded means, it shall be addressed to the Government Information Services in
to the requester at the same time. officer specified in paragraph (e) of this accordance with 5 U.S.C. 552(h)(3).
(h) Notice to submitter of FOIA section and submitted as set forth on the
lawsuit. Whenever a requester brings (2) If the initial determination is
CFPB’s Web site, http:// reversed on appeal, the requester shall
suit seeking to compel disclosure of www.consumerfinance.gov. The appeal
business information, the CFPB shall be so notified and the request shall be
shall be labeled ‘‘Freedom of processed promptly in accordance with
promptly notify the submitter of that Information Act Appeal.’’
business information of the existence of the decision on appeal.
(3) The appeal shall set forth contact
the suit. information for the requester, including, (3) If the initial determination is
(i) Notice to requester of business to the extent available, a mailing remanded on appeal to the Chief FOIA
information. The CFPB shall notify a address, telephone number, or email Officer for further action, the requester
requester whenever it provides the address at which the CFPB may contact shall be so notified and the request shall
submitter with notice and an the requester regarding the appeal; and be processed in accordance with the
opportunity to object to disclosure; (4) The appeal shall specify the decision on appeal. The remanded
whenever it notifies the submitter of its applicable request tracking number, the request shall be treated as a new request
intent to disclose the requested date of the initial request, and the date received by the CFPB as of the date
information; and whenever a submitter of the letter of initial determination, when the General Counsel transmits the
files a lawsuit to prevent the disclosure and, where possible, enclose a copy of remand notification to the requester.
of the information. the initial request and the initial The procedures and deadlines set forth
determination being appealed. in this subpart for processing, deciding,
§ 1070.21 Administrative appeals. responding to, and filing administrative
(d) Processing of administrative
(a) Grounds for administrative appeals. Appeals will be stamped with appeals of new FOIA requests shall
appeals. A requester may appeal an the date of their receipt by the FOIA apply to the remanded request.
initial determination of the CFPB, response office, and will be processed in (f) Adjudication of administrative
including for the following reasons: the order of their receipt. The receipt of appeals of requests in litigation. An
(1) To deny access to records in whole the appeal will be acknowledged by the appeal ordinarily will not be
or in part (as provided in § 1070.18(b) of CFPB and the requester will be advised adjudicated if the request becomes a
this subpart); of the date the appeal was received, the matter of FOIA litigation.
§ 1070.22 Fees for processing requests for spent reviewing records at the salary editorial skills to turn the raw materials
CFPB records. rate(s) (i.e., basic pay plus sixteen (16) into a distinct work, and distributes that
(a) In general. The CFPB shall percent) of the employees who conduct work to an audience. In this paragraph,
determine whether and to what extent the review. However, the CFPB shall the term ‘news’ means information that
to charge a requester fees for processing charge review fees at the rate of $9.00 is about current events or that would be
a FOIA request, for the services and in per fifteen (15) minutes of search time of current interest to the public.
the amounts set forth in this paragraph, whenever only administrative/clerical Examples of news-media entities are
by determining an appropriate fee employees review records and at the television or radio stations broadcasting
category for the requester (as set forth in rate of $23.00 per fifteen (15) minutes of to the public at large and publishers of
paragraph (b) of this section) and then search time whenever only professional/ periodicals (but only if such entities
by charging the requester those fees executive employees review records. qualify as disseminators of ‘news’) who
applicable to the assigned category (as Fees shall be charged for review time make their products available for
set forth in paragraph (c) of this section), even if records ultimately are not purchase by or subscription by or free
unless circumstances exist (as described disclosed. distribution to the general public. Other
in paragraph (d) of this section) that (4) Fees for all services provided shall examples of news media entities
render fees inapplicable or inadvisable be charged whether or not copies are include online publications and Web
or unless the requester has requested made available to the requester for sites that regularly deliver news content
and the CFPB has granted a reduction in inspection. However, no fee shall be to the public. These examples are not
or waiver of fees (as set forth in charged for monitoring a requester’s all-inclusive. Moreover, as methods of
paragraph (e) of this section). inspection of records. news delivery evolve (for example, the
(1) The CFPB shall charge a requester (5) Other services and materials adoption of the electronic dissemination
fees for the cost of copying or printing requested which are not covered by this of newspapers through
records at the rate of $0.10 per page. part nor required by the FOIA are telecommunications services), such
(2) The CFPB shall charge a requester chargeable at the actual cost to the alternative media shall be considered to
for all time spent by its employees CFPB. This includes, but is not limited be news-media entities. A freelance
searching for records that are responsive to: journalist shall be regarded as working
to a request. The CFPB shall charge the (i) Certifying that records are true for a news-media entity if the journalist
requester fees for search time as follows: copies; or can demonstrate a solid basis for
(i) The CFPB shall charge for search (ii) Sending records by special
time at the salary rate(s) (basic pay plus expecting publication through that
methods such as express mail, etc. entity, whether or not the journalist is
sixteen (16) percent) of the employee(s) (b) Categories of requesters. (1) For
who conduct the search. However, the actually employed by the entity. A
purposes of assessing fees as set forth in
CFPB shall charge search fees at the rate publication contract would present a
this section, each requester shall be
of $9.00 per fifteen (15) minutes of solid basis for such an expectation; the
assigned to one of the following
search time whenever only CFPB may also consider the past
categories:
administrative/clerical employees (i) Commercial user refers to one who publication record of the requester in
conduct a search and at the rate of seeks information for a use or purpose making such a determination.
$23.00 per fifteen (15) minutes of search that furthers the commercial, trade, or (v) ‘‘Other’’ requester refers to a
time whenever only professional/ profit interests of the requester or the requester who does not fall within any
executive employees conduct a search. person on whose behalf the request is of the previously described categories.
Search charges shall also include made, which can include furthering (2) Within twenty (20) calendar days
transportation of employees and records those interests through litigation. The of its receipt of a request, the CFPB shall
necessary to the search at actual cost. CFPB may determine from the use make a determination as to the proper
Fees may be charged for search time specified in the request that the fee category to apply to a requester. The
even if the search does not yield any requester is a commercial user. CFPB shall inform the requester of the
responsive records, or if records are (ii) Educational institution refers to a determination in the request
exempt from disclosure. preschool, a public or private acknowledgment letter, or if no such
(ii) The CFPB shall charge the elementary or secondary school, an letter is required, in writing. The CFPB
requester for the actual direct costs of institution of graduate higher education, shall base its determination upon a
conducting an electronic records search, an institution of undergraduate higher review of the requester’s submission
including computer search time, runs, education, an institution of professional and the CFPB’s own records. Where the
and output. The CFPB shall also charge education, and an institution of CFPB has reasonable cause to doubt the
for time spent by computer operators or vocational education, which operates a use to which a requester will put the
programmers (at the rates set forth in program or programs of scholarly records sought, or where that use is not
paragraph (a)(2)(i) of this section) who research. clear from the request itself, the CFPB
conduct or assist in the conduct of an (iii) Non-commercial scientific should seek additional clarification
electronic records search. institution refers to an institution that is before assigning the request to a specific
(3) The CFPB shall charge a requester not operated on a ‘‘commercial user’’ category.
for time spent by its employees basis as that term is defined in (3) If the CFPB assigns to a requester
examining responsive records to paragraph (b)(2)(i) of this section, and a fee category, then the requester shall
determine whether any portions of such which is operated solely for the purpose have the right to submit an appeal of the
record are exempt from disclosure, of conducting scientific research, the CFPB’s determination in accordance
pursuant to the FOIA exemptions of 5 results of which are not intended to with § 1070.21 of this subpart. The
U.S.C. 552(b). The CFPB shall also promote any particular product or CFPB shall communicate this appeal
charge a requester for time spent by its industry. right as part of its written notification to
employees redacting any such exempt (iv) Representative of the news media the requester of an adverse fee category
information from a record and preparing refers to any person or entity that determination. The requester shall label
a record for release to the requester. The gathers information of potential interest its appeal request ‘‘Appeal of Fee
CFPB shall charge a requester for time to a segment of the public, uses its Category Determination.’’
(c) Fees applicable to each category of (d) Other circumstances when fees are informative about government
requester. The following fee schedule not charged. Notwithstanding operations or activities in order to be
applies uniformly throughout the CFPB paragraphs (b) and (c) of this section, ‘‘likely to contribute’’ to an increased
to requests processed under the FOIA. the CFPB may not charge a requester a public understanding of those
Specific levels of fees are prescribed for fee for processing a FOIA request if any operations or activities. The disclosure
each category of requester defined in of the following applies: of information that already is in the
paragraph (b) of this section. (1) The cost of collecting a fee would public domain, in either a duplicative or
(1) Commercial users shall be charged be equal to or greater than the fee itself; a substantially similar form, is not as
the full direct costs of searching for, (2) The fees were waived or reduced likely to contribute to the public’s
reviewing, and duplicating the records in accordance with paragraph (e) of this understanding.
they request. Moreover, when a request section; (iii) The disclosure must contribute to
is received for disclosure that is (3) If the CFPB fails to comply with the understanding of a reasonably broad
primarily in the commercial interest of any time limit under §§ 1070.15 or audience of persons interested in the
the requester, the CFPB is not required 1070.21 of this subpart, and no unusual subject, as opposed to the individual
to consider a request for a waiver or circumstances (as that term is defined in understanding of the requester. A
reduction of fees based upon the § 1070.16(d)) or exceptional requester’s expertise in the subject area
assertion that disclosure would be in the circumstances apply to the processing of and ability and intention to effectively
public interest. The CFPB may recover the request, then the CFPB shall not convey information to the public shall
the cost of searching for and reviewing assess search fees, or if the requester is be considered. It shall be presumed that
records even if there is ultimately no a representative of the news media or an a representative of the news media will
disclosure of records or no records are educational or noncommercial scientific satisfy this consideration.
located. institution, then the CFPB shall not (iv) The public’s understanding of the
(2) Educational and non-commercial assess duplication fees. The term subject in question, as compared to the
scientific institution requesters shall be ‘‘exceptional circumstances’’ does not level of public understanding existing
charged only for the cost of duplicating include a delay that results from a prior to the disclosure, must be
the records they request, except that the predictable CFPB workload of requests, enhanced by the disclosure to a
CFPB shall provide the first one unless the CFPB demonstrates significant extent.
hundred (100) pages of duplication free reasonable progress in reducing its (3) To determine whether the
of charge. To be eligible, requesters backlog of pending requests; or requester has satisfied the requirements
must show that the request is made (4) If the CFPB determines, as a matter of paragraph (e)(1)(ii)(B), the CFPB shall
under the auspices of a qualifying of administrative discretion, that consider the following factors:
institution and that the records are not waiving or reducing the fees would (i) The CFPB shall consider any
sought for a commercial use, but are serve the interest of the United States commercial interest of the requester
sought in furtherance of scholarly (if the Government. (with reference to the definition of
request is from an educational (e) Waiver or reduction of fees. (1) A ‘‘commercial user’’ in (b)(1)(i) of this
institution) or scientific (if the request is requester shall be entitled to receive section), or of any person on whose
from a non-commercial scientific from the CFPB a waiver or reduction in behalf the requester may be acting, that
institution) research. These categories the fees otherwise applicable to a FOIA would be furthered by the requested
do not include requesters who want request whenever the requester: disclosure. Requesters shall be given an
(i) Requests such waiver or reduction
records for use in meeting individual opportunity in the administrative
of fees in writing or by electronic means
academic research or study process to provide explanatory
as part of the FOIA request;
requirements. information regarding this
(ii) Labels the request for waiver or
(3) Representatives of the news media consideration.
reduction of fees ‘‘Fee Waiver or
shall be charged only for the cost of Reduction Requested’’ on the FOIA (ii) A fee waiver or reduction is
duplicating the records they request, request; and justified where the public interest
except that the CFPB shall provide them (iii) Demonstrates that the fee standard is satisfied and that public
with the first one hundred (100) pages reduction or waiver request that a interest is greater in magnitude than that
of duplication free of charge. waiver or reduction of the fees is in the of any identified commercial interest in
(4) Other requesters who do not fit public interest because: disclosure. The CFPB ordinarily shall
any of the categories described above (A) Furnishing the information is presume that where a news media
shall be charged the full direct cost of likely to contribute significantly to requester has satisfied the public
searching for and duplicating records public understanding of the operations interest standard, the public interest
that are responsive to the request, or activities of the government; and will be the interest primarily served by
except that the CFPB shall provide the (B) Furnishing the information is not disclosure to that requester. Disclosure
first one hundred (100) pages of primarily in the commercial interest of to data brokers or others who merely
duplication and the first two hours of the requester. compile and market government
search time free of charge. The CFPB (2) To determine whether the information for direct economic return
may recover the cost of searching for requester has satisfied the requirements shall not be presumed to primarily serve
records even if there is ultimately no of paragraph (e)(1)(ii)(A), the CFPB shall the public interest.
disclosure of records, or no records are consider the following factors: (4) Where only some of the records to
located. Requests from persons for (i) The subject of the requested be released satisfy the requirements for
records about themselves filed in the records must concern identifiable a waiver of fees, a waiver shall be
CFPB’s systems of records shall operations or activities of the Federal granted for those records.
continue to be treated under the fee government, with a connection that is (5) The CFPB shall decide whether to
provisions of the Privacy Act of 1974, 5 direct and clear, and not remote or grant or deny a request to reduce or
U.S.C. 552a, which permit fees only for attenuated. waive fees prior to processing a request.
duplication, after the first one hundred (ii) The disclosable portions of the The CFPB shall notify the requester of
(100) pages are furnished free of charge. requested records must be meaningfully the determination in writing.
(6) If the CFPB denies a request to requester shall be required to pay the (2) Monitor implementation of the
reduce or waive fees, then the CFPB full amount owed plus any applicable FOIA throughout the CFPB and keep the
shall advise the requester, in the denial interest and to make an advance Director, the General Counsel, and the
notification letter, that the requester payment of the full amount of the Attorney General appropriately
may incur fees if the CFPB proceeds to estimated fee before the CFPB begins to informed of the CFPB’s performance in
process the request. The notification process a new request or the pending implementing the FOIA;
letter shall also advise the requester that request. (3) Recommend to the Director such
the CFPB will not proceed to process (5) When the CFPB acts under adjustments to agency practices,
the request further unless the requester, paragraphs (f)(1) through (4) of this policies, personnel and funding as may
in writing, directs the CFPB to do so and section, the statutory time limits of be necessary to improve the Chief FOIA
either agrees to pay any fees that may twenty (20) days (excluding Saturdays, Officer’s implementation of the FOIA;
apply to processing the request or Sundays, and legal public holidays) (4) Review and report to the Attorney
specifies an upper limit (of not less than from receipt of initial requests or General, through the Director, at such
$25) that the requester is willing to pay appeals, plus extensions of these time times and in such formats as the
to process the request. If the CFPB does limits, shall begin only after fees have Attorney General may direct, on the
not receive this written direction and been paid, a written agreement to pay CFPB’s performance in implementing
agreement/specification within thirty fees has been provided, or a request has the FOIA;
(30) calendar days of the date of the been reformulated. (5) Facilitate public understanding of
denial notification letter, then the CFPB (g) Form of payment. Payment may be the purposes of the statutory
shall deem the request to be withdrawn. tendered as set forth on the CFPB’s Web exemptions of the FOIA by including
(7) If the CFPB denies a request to site, http://www.consumerfinance.gov. concise descriptions of the exemptions
reduce or waive fees, then the requester
(h) Charging interest. The CFPB may in both the CFPB’s handbook and the
shall have the right to submit an appeal
charge interest on any unpaid bill CFPB’s annual report on the FOIA, and
of the denial determination in
starting on the 31st day following the by providing an overview, where
accordance with section 1070.21 of this
date of billing the requester. Interest appropriate, of certain general categories
subpart. The CFPB shall communicate
charges will be assessed at the rate of CFPB records to which those
this appeal right as part of its written
provided in 31 U.S.C. 3717 and will exemptions apply;
notification to the requester denying the
fee reduction or waiver request. The accrue from the date of the billing until (6) Designate one or more FOIA
requester should label its appeal request payment is received by the CFPB. The Public Liaisons; and
‘‘Appeal for Fee Reduction/Waiver.’’ CFPB will follow the provisions of the (7) Maintain and update, as necessary
(f) Advance notice and prepayment of Debt Collection Act of 1982 (Pub. L. 97– and in accordance with the
fees. (1) When the CFPB estimates the 365, 96 Stat. 1749), as amended, and its requirements of this subpart, the CFPB’s
fees for processing a request to exceed administrative procedures, including FOIA Web site, including its e-FOIA
the limit set by the requester, and that the use of consumer reporting agencies, Library.
amount is less than $250, or the collection agencies, and offset. (b) FOIA Public Liaisons. FOIA Public
requester did not specify a limit and the (i) Aggregating requests. Where the Liaisons shall report to the Chief FOIA
amount is less than $250, the requester CFPB reasonably believes that a Officer and shall serve as supervisory
shall be notified of the estimated fees, requester or a group of requesters acting officials to whom a requester can raise
and provided a breakdown of the fees together is attempting to divide a concerns about the service the requester
attributable to search, review, and request into a series of requests for the has received from the CFPB’s FOIA
duplication, respectively. The requester purpose of avoiding fees, the CFPB may office, following an initial response
must provide an agreement to pay the aggregate those requests and charge from the FOIA office staff. FOIA Public
estimated fees; however, the requester accordingly. The CFPB may presume Liaisons shall be responsible for
shall also be given an opportunity to that multiple requests of this type made assisting in reducing delays, increasing
reformulate the request in an attempt to within a thirty (30) day period have transparency and understanding of the
reduce fees. been made in order to avoid fees. Where status of requests, and assisting in the
(2) If the requester has failed to state requests are separated by a longer resolution of disputes.
a limit and the fees are estimated to period, the CFPB will aggregate them
exceed $250, the requester shall be only where there exists a solid basis for Subpart C—Disclosure of CFPB
notified of the estimated fees and determining that aggregation is Information in Connection With Legal
provided a breakdown of the fees warranted under all the circumstances Proceedings
attributable to search, review, and involved. Multiple requests involving
§ 1070.30 Purpose and scope; definitions.
duplication, respectively. The requester unrelated matters will not be aggregated.
must pre-pay such amount prior to the (a) This subpart sets forth the
§ 1070.23 Authority and responsibilities of procedures to be followed with respect
processing of the request, or provide
the Chief FOIA Officer. to:
satisfactory assurance of full payment if
the requester has a history of prompt (a) Chief FOIA Officer. The Director (1) Service of summonses and
payment of FOIA fees. The requester authorizes the Chief FOIA Officer to act complaints directed to the CFPB, the
shall also be given an opportunity to upon all requests for agency records, Director, or to any CFPB employee in
reformulate the request in such a way as with the exception of determining connection with Federal or State
to lower the applicable fees. appeals from the initial determinations litigation arising out of or involving the
(3) The CFPB reserves the right to of the Chief FOIA Officer, which will be performance of official activities of the
request prepayment after a request is decided by the General Counsel. The CFPB; and
processed and before documents are Chief FOIA officer shall, subject to the (2) Subpoenas, court orders, or other
released. authority of the Director: requests or demands for any CFPB
(4) If a requester has previously failed (1) Have CFPB-wide responsibility for information, whether contained in the
to pay a fee within thirty (30) calendar efficient and appropriate compliance files of the CFPB or acquired by a CFPB
days of the date of the billing, the with the FOIA; employee as part of the performance of
that employee’s duties or by virtue of pursuant to Subtitle F of the Consumer or her official capacity. Documents for
employee’s official status. Financial Protection Act of 2010. which the General Counsel accepts
(b) This subpart does not apply to (4) Request means any request for service in official capacity shall be
requests for official information made official information in the form of stamped ‘‘Service Accepted in Official
pursuant to subparts B, D, and E of this testimony, affidavits, declarations, Capacity Only.’’ Acceptance of service
part. admissions, responses to interrogatories, shall not constitute an admission or
(c) This subpart does not apply to document production, inspections, or waiver with respect to jurisdiction,
requests for information made in the formal or informal interviews, during propriety of service, improper venue, or
course of adjudicating claims against the the course of a legal proceeding, any other defense in law or equity
CFPB by CFPB employees (present or including pursuant to the Federal Rules available under applicable laws or rules.
former) or applicants for CFPB of Civil Procedure, the Federal Rules of
employment for which jurisdiction Criminal Procedure, or other applicable § 1070.32 Service of subpoenas, court
resides with the U.S. Equal Employment orders, and other demands for CFPB
rules of procedure.
Opportunity Commission, the U.S. information or action.
(5) Testimony means a statement in
Merit Systems Protection Board, the any form, including personal (a) Except in cases in which the CFPB
Office of Special Counsel, the Federal appearances before a court or other legal is represented by legal counsel who
Labor Relations Authority, or their tribunal, interviews, depositions, have entered an appearance or
successor agencies, or a labor arbitrator telephonic, televised, or videographed otherwise given notice of their
operating under a collective bargaining statements or any responses given representation, only the General
agreement between the CFPB and a during discovery or similar proceeding Counsel is authorized to receive and
labor organization representing CFPB in the course of litigation. accept subpoenas or other demands or
employees. requests directed to the CFPB or its
(d) This subpart is intended only to § 1070.31 Service of summonses and employees, whether civil or criminal in
inform the public about CFPB complaints. nature, for:
procedures concerning the service of (a) Only the General Counsel is (1) Records of the CFPB;
process and responses to subpoenas, authorized to receive and accept (2) Official information including, but
summons, or other demands or requests summonses or complaints sought to be not limited to, testimony, affidavits,
for official information or action and is served upon the CFPB or CFPB declarations, admissions, responses to
not intended to and does not create, and employees sued in their official interrogatories, or informal statements,
may not be relied upon to create any capacity. Such documents should be relating to material contained in the
right or benefit, substantive or served upon the General Counsel, files of the CFPB or which any CFPB
procedural, enforceable at law by a Consumer Financial Protection Bureau, employee acquired in the course and
party against the CFPB or the United 1700 G Street NW., Washington, DC scope of the performance of his or her
States. 20552. This authorization for receipt official duties;
(e) For purposes of this subpart: shall in no way affect the requirements
(1) Demand means a subpoena or (3) Garnishment or attachment of
of service elsewhere provided in
order for official information, whether compensation of current or former
applicable rules and regulations.
contained in CFPB records or through (b) If, notwithstanding paragraph (a) employees; or
testimony, related to or for possible use of this section, any summons or (4) The performance or non-
in a legal proceeding. complaint described in that paragraph is performance of any official CFPB duty.
(2) Legal proceeding encompasses all delivered to an employee of the CFPB, (b) Documents described in paragraph
pre-trial, trial, and post-trial stages of all the employee shall decline to accept the (a) of this section should be served upon
judicial or administrative actions, proffered service and may notify the the General Counsel, Consumer
hearings, investigations, or similar person attempting to make service of the Financial Protection Bureau, 1700 G
proceedings before courts, commissions, regulations set forth herein. If, Street NW., Washington, DC 20552.
boards, grand juries, arbitrators, or other notwithstanding this instruction, an Service must be effected as provided in
judicial or quasi-judicial bodies or employee accepts service of a document applicable rules and regulations
tribunals, whether criminal, civil, or described in paragraph (a) of this governing service in Federal judicial
administrative in nature, and whether section, the employee shall immediately and administrative proceedings.
foreign or domestic. This phrase notify and deliver a copy of the Acceptance of such documents by the
includes all stages of discovery as well summons and complaint to the General General Counsel does not constitute a
as formal or informal requests by Counsel. waiver of any defense that might
attorneys or others involved in legal (c) When a CFPB employee is sued in otherwise exist with respect to service
proceedings. an individual capacity for an act or under the Federal Rules of Civil or
(3) Official Information means all omission occurring in connection with Criminal Procedure or other applicable
information of any kind, however duties performed on behalf of the CFPB laws or regulations.
stored, that is in the custody and control (whether or not the officer or employee (c) In the event that any demand or
of the CFPB or was acquired by CFPB is also sued in an official capacity), the request described in paragraph (a) of
employees, or former employees as part employee by law is to be served this section is sought to be delivered to
of their official duties or because of their personally with process. See Fed. R. a CFPB employee other than in the
official status while such individuals Civ. P. 4(i)(3). An employee sued in an manner prescribed in paragraph (b) of
were employed by or served on behalf individual capacity for an act or this section, such employee shall
of the CFPB. Official information also omission occurring in connection with decline service and direct the server of
includes any information acquired by duties performed on behalf of the CFPB process to these regulations. If the
CFPB employees or former employees shall immediately notify, and deliver a demand or request is nonetheless
while such individuals were engaged in copy of the summons and complaint to, delivered to the employee, the employee
matters related to consumer financial the General Counsel. shall immediately notify, and deliver a
protection functions prior to the (d) The CFPB will only accept service copy of that document to, the General
employees’ transfer to the CFPB of process for an employee sued in his Counsel.
(d) Except as otherwise provided in summary of the desired testimony, and a reasonable stay of proceedings for the
this subpart, the CFPB is not an agent a showing that no document could be purpose of obtaining instructions from
for service for, or otherwise authorized provided and used in lieu of testimony. the General Counsel.
to accept on behalf of its employees, any (b) To the extent he or she deems
subpoenas, orders, or other demands or necessary or appropriate, the General § 1070.36 Procedure in the event of an
adverse ruling.
requests, which are not related to the Counsel may also require from the party
employees’ official duties except upon seeking such information a plan of all If a stay or, or other relief from, the
the express, written authorization of the reasonably foreseeable demands, effect of a demand made pursuant to
individual CFPB employee to whom including but not limited to the names sections 1070.34 and 1070.35 of this
such demand or request is directed. of all employees and former employees subpart is declined or not obtained, or
(e) Copies of any subpoenas, orders, from whom discovery will be sought, if the court or other judicial or quasi-
or other demands or requests that are areas of inquiry, expected duration of judicial authority declines to stay the
directed to former employees of the proceedings requiring oral testimony, effect of the demand made pursuant to
CFPB in connection with the identification of potentially relevant sections 1070.34 and 1070.35 of this
performance of official CFPB duties documents, or any other information subpart, or if the court or other authority
shall also be served upon the General deemed necessary to make a rules that the demand must be complied
Counsel. The CFPB shall not, however, determination. The purpose of this with irrespective of the General
serve as an agent for service for the requirement is to assist the General Counsel’s instructions not to produce
former employee, nor is the CFPB Counsel in making an informed decision the material or disclose the information
otherwise authorized to accept service regarding whether testimony or the sought, the employee upon whom the
on behalf of its former employees. If the production of documents or material demand has been made shall
demand involves their official duties as should be authorized. respectfully decline to comply with the
CFPB employees, former employees (c) The General Counsel may consult demand citing this subpart and United
who receive subpoenas, orders, or or negotiate with an attorney for a party, States ex rel. Touhy v. Ragen, 340 U.S.
similar compulsory process should also or the party if not represented by an 462 (1951).
notify, and deliver a copy of the attorney, to refine or limit a request or
document to, the General Counsel. § 1070.37 Considerations in determining
demand so that compliance is less whether the CFPB will comply with a
§ 1070.33 Testimony and production of burdensome. demand or request.
documents prohibited unless approved by (d) The General Counsel will notify (a) In deciding whether to comply
the General Counsel. the CFPB employee and such other with a demand or request, CFPB
(a) Unless authorized by the General persons as circumstances may warrant officials and attorneys shall consider,
Counsel, no employee or former of his or her decision regarding among other pertinent considerations:
employee of the CFPB shall, in response compliance with the request or demand. (1) Whether such compliance would
to a demand or a request provide oral § 1070.35 Procedure when response to be unduly burdensome or otherwise
or written testimony by deposition, demand is required prior to receiving inappropriate under the applicable rules
declaration, affidavit, or otherwise instructions. of discovery or the rules of procedure
concerning any official information. (a) If a response to a demand governing the case or matter in which
(b) Unless authorized by the General described in section 1070.34 of this the demand arose;
Counsel, no employee or former subpart is required before the General (2) Whether the number of similar
employee shall, in response to a Counsel renders a decision, the CFPB requests would have a cumulative effect
demand or request, produce any will request that the appropriate CFPB on the expenditure of CFPB resources;
document or any material acquired as attorney or an attorney of the (3) Whether compliance is
part of the performance of that Department of Justice, as appropriate, appropriate under the relevant
employee’s duties or by virtue of that take steps to stay, postpone, or obtain substantive law concerning privilege or
employee’s official status. relief from the demand pending disclosure of information;
§ 1070.34 Procedure when testimony or decision. If necessary, the attorney will: (4) The public interest;
production of documents is sought; (1) Appear with the employee upon (5) The need to conserve the time of
general. whom the demand has been made; CFPB employees for the conduct of
(a) If, as part of a proceeding in which (2) Furnish the court or other official business;
the United States or the CFPB is not a authority with a copy of the regulations (6) The need to avoid spending time
party, official information is sought contained in this subpart; and money of the United States for
through a demand for testimony, CFPB (3) Inform the court or other authority private purposes;
records, or other material, the party that the demand has been, or is being, (7) The need to maintain impartiality
seeking such information must (except as the case may be, referred for the between private litigants in cases where
as otherwise required by Federal law or prompt consideration of the appropriate a substantial government interest is not
authorized by the General Counsel) set CFPB official; and implicated;
forth in writing: (4) Respectfully request the court or (8) Whether compliance would have
(1) The title and forum of the authority to stay the demand pending an adverse effect on performance by the
proceeding, if applicable; receipt of the requested instructions. CFPB of its mission and duties;
(2) A detailed description of the (b) In the event that an immediate (9) The need to avoid involving the
nature and relevance of the official demand for production or disclosure is CFPB in controversial issues not related
information sought; made in circumstances which would to its mission;

(3) A showing that other evidence preclude the proper designation or (10) Compliance would interfere with
reasonably suited to the requester’s appearance of an attorney of the CFPB supervisory examinations, compromise
needs is not available from any other or the Department of Justice on the the CFPB’s supervisory functions or
source; and employee’s behalf, the employee, if programs, or undermine public
(4) If testimony is requested, the necessary, shall respectfully request confidence in supervised financial
intended use of the testimony, a general from the demanding court or authority institutions; and
(11) Compliance would interfere with former employees, to appear and testify of the CFPB to disclose materials that it
the CFPB’s ability to monitor for risks to as expert witnesses at no expense to the derives from or creates using
consumers in the offering or provision United States. confidential information to the extent
of consumer financial products and (d) If, despite the final determination that such materials do not identify,
services. of the General Counsel, a court of either directly or indirectly, any
(b) Among those demands and competent jurisdiction or other particular person to whom the
requests in response to which appropriate authority orders the confidential information pertains.
compliance will not ordinarily be appearance and expert or opinion (d) Disclosability of confidential
authorized are those with respect to testimony of a current or former CFPB information provided to the CFPB by
which any of the following factors, inter employee, that person shall other agencies. Nothing in this subpart
alia, exist: immediately inform the General requires or authorizes the CFPB to
(1) Compliance would violate a Counsel of such order. If the General disclose confidential information that
statute or applicable rule of procedure; Counsel determines that no further legal another agency has provided to the
(2) Compliance would violate a review of or challenge to the court’s CFPB to the extent that such disclosure
specific regulation or Executive order; order will be made, the CFPB employee, contravenes applicable law or the terms
(3) Compliance would reveal or former employee, shall comply with of any agreement that exists between the
information properly classified in the the order. If so directed by the General CFPB and the agency to govern the
interest of national security; Counsel, however, the employee, or CFPB’s treatment of information that the
(4) Compliance would reveal former employee, shall respectfully agency provides to the CFPB.
confidential or privileged commercial or decline to testify.
financial information or trade secrets § 1070.42 Disclosure of confidential
without the owner’s consent; Subpart D—Confidential Information supervisory information to supervised
(5) Compliance would compromise financial institutions and their affiliates and
§ 1070.40 Purpose and scope. by supervised financial institutions and
the integrity of the deliberative their affiliates to others.
processes of the CFPB; This subpart does not apply to
(6) Compliance would not be requests for official information made (a) Discretionary disclosure of
appropriate or necessary under the pursuant to subparts B, C, or E of this confidential supervisory information to
relevant substantive law governing part. supervised financial institutions and
privilege; their affiliates. The CFPB may, in its
§ 1070.41 Non-disclosure of confidential discretion, and to the extent consistent
(7) Compliance would reveal information.
confidential information; or with applicable law, disclose
(8) Compliance would interfere with (a) Non-disclosure. Except as required confidential supervisory information
ongoing investigations or enforcement by law or as provided in this part, no concerning a supervised financial
proceedings, compromise constitutional current or former employee or institution or its service providers to
rights, or reveal the identity of a contractor or consultant of the CFPB, or that supervised financial institution or
confidential informant. any other person in possession of to its affiliates.
(c) The CFPB may condition confidential information, shall disclose (b) Disclosure of confidential
disclosure of official information such confidential information by any supervisory information by a supervised
pursuant to a request or demand on the means (including written or oral financial institution or its affiliates.
entry of an appropriate protective order. communications) or in any format Unless directed otherwise by the
(including paper and electronic Associate Director for Supervision,
§ 1070.38 Prohibition on providing expert formats), to: Enforcement, and Fair Lending or by his
or opinion testimony. (1) Any person who is not an or her delegee:
(a) Except as provided in this section, employee, contractor, or consultant of (1) Any supervised financial
and subject to 5 CFR 2635.805, CFPB the CFPB; or institution lawfully in possession of
employees or former employees shall (2) Any CFPB employee, contractor, confidential supervisory information of
not provide opinion or expert testimony or consultant when the disclosure of the CFPB pursuant to this section may
based upon information which they such confidential information to that disclose such information, or portions
acquired in the scope and performance employee, contractor, or consultant is thereof, to its affiliates and to the
of their official CFPB duties, except on not relevant to the performance of the following individuals to the extent that
behalf of the CFPB or the United States employee’s, contractor’s, or consultant’s the disclosure of such confidential
or a party represented by the CFPB, or assigned duties. supervisory information is relevant to
the Department of Justice, as (b) Disclosures to contractors and the performance of such individuals’
appropriate. consultants. CFPB contractors or assigned duties:
(b) Any expert or opinion testimony consultants may receive confidential (i) The directors, officers, trustees,
by a former employee of the CFPB shall information only if such contractors or members, general partners, or
be excepted from paragraph (a) of this consultants certify in writing to treat employees of the supervised financial
section where the testimony involves such confidential information in institution; and
only general expertise gained while accordance with these rules, Federal (ii) The directors, officers, trustees,
employed at the CFPB. laws and regulations that apply to members, general partners, or
(c) Upon a showing by the requestor Federal agencies for the protection of employees of the affiliates of the
of exceptional need or unique the confidentiality of personally supervised financial institution.
circumstances and that the anticipated identifiable information and for data (2) Any supervised financial
testimony will not be adverse to the security and integrity, as well as any institution or affiliate thereof that is
interests of the United States, the additional conditions or limitations that lawfully in possession of confidential
General Counsel may, consistent with 5 the CFPB may impose. supervisory information of the CFPB
CFR 2635.805, exercise his or her (c) Disclosure of materials derived pursuant to this section may disclose
discretion to grant special, written from confidential information. Nothing such information, or portions thereof,
authorization for CFPB employees, or in this subpart shall limit the discretion to:
(i) Its certified public accountant, (b) Discretionary disclosure of permitted by law, to disclose
legal counsel, contractor, consultant, or confidential information to government confidential consumer complaint
service provider; or agencies. information as it deems necessary to
(ii) Another person, with the prior (1) Upon receipt of a written request investigate, resolve, or otherwise
written approval of the Associate that contains the information required respond to consumer complaints or
Director for Supervision, Enforcement, by paragraph (b)(2) of this section, the inquiries concerning financial
and Fair Lending or his or her delegee. CFPB may, in its sole discretion, institutions or consumer financial
disclose confidential information to a products and services.
(3) Where a supervised financial
Federal or State agency to the extent
institution or its affiliate discloses § 1070.45 Affirmative disclosure of
that the disclosure of the information is
confidential supervisory information confidential information.
relevant to the exercise of the agency’s
pursuant to this paragraph (b) of this (a) The CFPB may disclose
statutory or regulatory authority or, with
section: confidential investigative information
respect to the disclosure of confidential
(i) The recipient of such confidential supervisory information, to a Federal or and other confidential information, in
supervisory information shall not, State agency having jurisdiction over a accordance with applicable law, as
without the prior written approval of supervised financial institution. follows:
the Associate Director for Supervision, (2) To obtain access to confidential (1) To a CFPB employee, as that term
Enforcement, and Fair Lending or his or information pursuant to paragraph (b)(1) is defined in § 1070.2 of this part and in
her delegee, utilize, make, or retain of this section, an authorized officer or accordance with § 1070.41 of this
copies of, or disclose confidential employee of the agency shall submit a subpart;
supervisory information for any written request to the General Counsel, (2) To either House of the Congress or
purpose, except as is necessary to who shall act upon the request in to an appropriate committee or
provide advice or services to the consultation with the CFPB’s Associate subcommittee of the Congress, as set
supervised financial institution or its Director for Supervision, Enforcement, forth in 12 U.S.C. 5562(d)(2), provided
affiliate; and and Fair Lending or other appropriate that, upon the receipt by the CFPB of a
(ii) The supervised financial CFPB personnel. The request shall request from the Congress for
institution or affiliate disclosing the include the following: confidential information that a financial
confidential supervisory information (i) A description of the particular institution submitted to the CFPB along
shall take reasonable steps to ensure information, kinds of information, and with a claim that such information
that the recipient complies with where possible, the particular consists of a trade secret or privileged or
paragraph (b)(3)(i) of this section. documents to which access is sought; confidential commercial or financial
(ii) A statement of the purpose for information, or confidential supervisory
§ 1070.43 Disclosure of confidential which the information will be used; information, the CFPB shall notify the
information to law enforcement agencies (iii) A statement certifying and financial institution in writing of its
and other government agencies. receipt of the request and provide the
identifying the agency’s legal authority
(a) Required disclosure of confidential for requesting the documents; institution with a copy of the request;
information to government agencies. (iv) A statement certifying and (3) In investigational hearings and
The CFPB shall: identifying the agency’s legal authority witness interviews, as is reasonably
(1) Disclose a draft of a report of for protecting the requested information necessary, at the discretion of the CFPB;
examination of a supervised financial from public disclosure; and (4) In an administrative or court
institution prior to its finalization, in (v) A certification that the agency will proceeding to which the CFPB is a
accordance with 12 U.S.C. 5515(e)(1)(C), maintain the requested confidential party. In the case of confidential
and disclose a final report of information in confidence, including in investigatory material that contains any
examination, including any and all a manner that conforms to the standards trade secret or privileged or confidential
revisions made to such a report, to a that apply to Federal agencies for the commercial or financial information, as
Federal or State agency with jurisdiction protection of the confidentiality of claimed by designation by the submitter
over that supervised financial personally identifiable information and of such material, or confidential
institution, provided that the CFPB for data security and integrity, as well supervisory information, the submitter
receives from the agency reasonable as any additional conditions or may seek an appropriate protective or in
assurances as to the confidentiality of limitations that the CFPB may impose. camera order prior to disclosure of such
the information disclosed; and (c) State requests for information material in a proceeding;
other than confidential information. A (5) To law enforcement agencies and
(2) Disclose confidential consumer request or demand by a State agency for other government agencies in summary
complaint information to a Federal or information or records of the CFPB form to the extent necessary to notify
State agency to facilitate preparation of other than confidential information such agencies of potential violations of
reports to Congress required by 12 shall be made and considered in laws subject to their jurisdiction; or
U.S.C. 5493(b)(3)(C) and to facilitate the accordance with the rules set forth (6) As required under any other
CFPB’s supervision and enforcement elsewhere in this part. applicable law.
activities and its monitoring of the (d) Negotiation of standing requests.
market for consumer financial products The CFPB may negotiate terms § 1070.46 Other disclosures of confidential
and services, provided that the agency information.
governing the exchange of confidential
shall first give written assurance to the (a) To the extent permitted by law and
information with Federal or State

CFPB that it will maintain such agencies on a standing basis, as as authorized by the Director in writing,
information in confidence, including in appropriate. the CFPB may disclose confidential
a manner that conforms to the standards information other than as set forth in
that apply to Federal agencies for the § 1070.44 Disclosure of confidential this subpart.
protection of the confidentiality of consumer complaint information. (b) Prior to disclosing confidential
personally identifiable information and Nothing in this part shall limit the information pursuant to paragraph (a) of
for data security and integrity. discretion of the CFPB, to the extent this section, the CFPB may, as it deems
appropriate under the circumstances, (B) Assert all reasonable and supervisory or regulatory process of the
provide written notice to the person to appropriate legal exemptions or CFPB shall not be construed as waiving,
whom the confidential information privileges that the CFPB may request be destroying, or otherwise affecting any
pertains that the CFPB intends to asserted on its behalf; and privilege such person may claim with
disclose its confidential information in (C) Consent to a motion by the CFPB respect to such information under
accordance with this section. to intervene in any action for the Federal or State law as to any person or
(c) The authority of the Director to purpose of asserting and preserving any entity other than the CFPB.
disclose confidential information claims of confidentiality with respect to (b) Rule of Construction. Paragraph (a)
pursuant to paragraph (a) shall not be any confidential information. of this section shall not be construed as
delegated. However, a person (4) Nothing in this section shall implying or establishing that—
authorized to perform the functions of prevent a supervised financial (1) Any person waives any privilege
the Director in accordance with law may institution, Federal or State agency, any applicable to information that is
exercise the authority of the Director as officer, director, employee or agent submitted or transferred under
set forth in this section. thereof, or any other person to whom circumstances to which paragraph (a) of
the information is made available under this section does not apply; or
§ 1070.47 Other rules regarding the this subpart from complying with a (2) Any person would waive any
disclosure of confidential information. legally valid and enforceable order of a privilege applicable to any information
(a) Further disclosure prohibited. (1) court of competent jurisdiction by submitting the information to the
All confidential information made compelling production of the CFPB’s CFPB but for this section.
available under this subpart shall confidential information, or, if
remain the property of the CFPB, unless compliance is deemed compulsory, with Subpart E—The Privacy Act
the General Counsel provides otherwise a request or demand from either House
in writing. § 1070.50 Purpose and scope; definitions.
of the Congress or a duly authorized
(2) Except as set forth in this subpart, committee of the Congress. To the (a) This subpart implements the
no supervised financial institution, extent that compulsory disclosure of provisions of the Privacy Act of 1974, 5
Federal or State agency, any officer, confidential information occurs as set U.S.C. 552a (the Privacy Act). The
director, employee or agent thereof, or forth in this paragraph, the producing regulations apply to all records
any other person to whom the party shall use its best efforts to ensure maintained by the CFPB and which are
confidential information is made that the requestor secures an retrieved by an individual’s name or
available under this subpart, may appropriate protective order or, if the personal identifier. The regulations set
further disclose such confidential requestor is a legislative body, use its forth the procedures for requests for
information without the prior written best efforts to obtain the commitment or access to, or amendment of, records
permission of the General Counsel. agreement of the legislative body that it concerning individuals that are
(3) A supervised financial institution, will maintain the confidentiality of the contained in systems of records
Federal or State agency, any officer, confidential information. maintained by the CFPB. These
director, employee or agent thereof, or (5) No person obtaining access to regulations should be read in
any other person to whom the CFPB’s confidential information pursuant to conjunction with the Privacy Act, which
confidential information is made this subpart may make a personal copy provides additional information about
available under this subpart, that of any such information, and no person this topic.
receives from a third party a legally may remove confidential information (b) For purposes of this subpart, the
enforceable demand or request for such from the premises of the institution or following definitions apply:
confidential information (including but agency in possession of such (1) The term Chief Privacy Officer
not limited to, a subpoena or discovery information except as permitted under means the Chief Information Officer of
request or a request made pursuant to this subpart or by the CFPB. the CFPB or any CFPB employee to
the Freedom of Information Act, 5 (b) Additional conditions and whom the Chief Information Officer has
U.S.C. 552, the Privacy Act of 1974, 5 limitations. The CFPB may impose any delegated authority to act under this
U.S.C. 552a, or any State analogue to additional conditions or limitations on part;
such statutes) should: disclosure or use under this subpart that (2) The term guardian means the
(i) Inform the General Counsel of such it determines are necessary. parent of a minor, or the legal guardian
request or demand in writing and (c) Non-waiver. (1) In General. The of any individual who has been
provide the General Counsel with a CFPB shall not be deemed to have declared to be incompetent due to
copy of such request or demand as soon waived any privilege applicable to any physical or mental incapacity or age by
as practicable after receiving it; information by transferring that a court of competent jurisdiction;
(ii) To the extent permitted by information to, or permitting that (3) Individual means a citizen of the
applicable law, advise the requester information to be used by, any Federal United States or an alien lawfully
that: or State agency. admitted for permanent residence;
(A) The confidential information (2) Rule of Construction. Paragraph (4) Maintain includes maintain,
sought may not be disclosed insofar as (c)(1) of this section shall not be collect, use, or disseminate;
it is the property of the CFPB; and construed as implying that any person (5) Record means any item, collection,
(B) Any request for the disclosure of waives any privilege applicable to any or grouping of information about an
such confidential information is information because paragraph (c)(1) of individual that is maintained by an
properly directed to the CFPB pursuant agency, including, but not limited to,
this section does not apply to the

to its regulations set forth in this part. transfer or use of that information. his education, financial transactions,
(iii) Consult with the General Counsel medical history, and criminal or
before complying with the request or § 1070.48 Privileges not affected by employment history and that contains
demand, and to the extent applicable: disclosure to the CFPB. his name or the identifying number,
(A) Give the CFPB a reasonable (a) In General. The submission by any symbol, or other identifying particular
opportunity to respond to the demand person of any information to the CFPB assigned to the individual, such as a
or request; for any purpose in the course of any finger or voiceprint or a photograph;
(6) Routine use means the disclosure (b) Content of a request for access to a system of records as provided in 5
of a record that is compatible with the records. A request for access to records U.S.C. 552a(c). Such requests should
purpose for which it was collected; shall include: conform to the procedures and form for
(7) System of records means a group (1) A statement that the request is requests for access to records set forth
of any records under the control of an made pursuant to the Privacy Act; in paragraphs (a) and (b) of this section.
agency from which information is (2) The name of the system of records
that the requester believes contains the § 1070.54 CFPB procedures for
retrieved by the name of the individual responding to a request for access.
or by some identifying number, symbol, record requested, or a description of the
or other identifying particular assigned nature of the record sought in detail (a) Acknowledgment and response.
to the individual; and sufficient to enable CFPB personnel to The CFPB will provide written
(8) Statistical record means a record locate the system of records containing acknowledgement of the receipt of a
the record with a reasonable amount of request within twenty (20) business
in a system of records maintained for
effort; days from the receipt of the request and
statistical research or reporting purposes
(3) Whenever possible, a description will, where practicable, respond to each
only and not used in whole or in part
of the nature of the record sought, the request within that twenty (20) day
in making any determination about an
date of the record or the period in which period. When a full response is not
identifiable individual, except as
the requester believes that the record practicable within the twenty (20) day
provided by 13 U.S.C. 8.
was created, and any other information period, the CFPB will respond as
§ 1070.51 Authority and responsibilities of that might assist the CFPB in identifying promptly as possible.
the Chief Privacy Officer. the record sought (e.g., maiden name, (b) Disclosure. (1) When the CFPB
The Chief Privacy Officer is dates of employment, account discloses information in response to a
authorized to: information, etc.). request, the CFPB will make the
(a) Respond to requests for access to, (4) Information necessary to verify the information available for inspection and
accounting of, or amendment of records requester’s identity pursuant to copying during regular business hours
contained in a system of records paragraph (c) of this section; as provided in § 1070.13 of this part, or
maintained by the CFPB; (5) The mailing or email address the CFPB will mail it or email it the
(b) Approve the publication of new where the CFPB’s response or further requester, if feasible, upon request.
systems of records and amend existing correspondence should be sent. (2) The requester may bring with him
systems of record; and (c) Verification of identity. To obtain or her anyone whom the requester
(c) File any necessary reports related access to the CFPB’s records pertaining chooses to see the requested material.
to the Privacy Act. to a requester, the requester shall All visitors to the CFPB’s buildings
provide proof to the CFPB of the must comply with the applicable
§ 1070.52 Fees. requester’s identity as provided below. security procedures.
(a) Copies of records. The CFPB shall (1) In general, the following will be (c) Denial of a request. If the CFPB
provide the requester with copies of considered adequate proof of a denies a request made pursuant to
records requested pursuant to § 1070.53 requester’s identity: § 1070.53 of this subpart, it will inform
of this subpart at the same cost charged (i) A photocopy of two forms of the requester in writing of the reason(s)
for duplication of records under identification, including one form of for denial and the procedures for
§ 1070.22 of this part. identification that bears the requester’s appealing the denial.
(b) No fee. The CFPB will not charge photograph, and one form of § 1070.55 Special procedures for medical
a fee if: identification that bears the requester’s records.
(1) Total charges associated with a signature; If an individual requests medical or
request are less than $5, or (ii) A photocopy of a single form of psychological records pursuant to
(2) The requester is a CFPB employee identification that bears both the § 1070.53 of this subpart, the CFPB will
or former employee, or an applicant for requester’s photograph and signature; or disclose them directly to the requester
employment with the CFPB, and the (iii) A statement swearing or affirming unless the CFPB determines that such
request pertains to that employee, the requester’s identity and to the fact disclosure could have an adverse effect
former employee, or applicant. that the requester understands the on the requester. If the CFPB makes that
penalties provided in 5 U.S.C. determination, the CFPB shall provide
§ 1070.53 Request for access to records. 552a(i)(3). the information to a licensed physician
(a) Procedures for making a request (2) Notwithstanding paragraph (c)(1) or other appropriate representative that
for access to records. An individual’s of this section, a designated official may the requester designates, who shall
requests for access to records that require additional proof of the disclose those records to the requester
pertain to that individual (or to the requester’s identity before action will be in a manner he or she deems
individual for whom the requester taken on any request, if such official appropriate.
serves as guardian) may be submitted to determines that it is necessary to protect
the CFPB in writing or by electronic against unauthorized disclosure of § 1070.56 Request for amendment of
means. information in a particular case. In records.
(1) If submitted in writing, the request addition, if a requester seeks records (a) Procedures for making request. (1)
shall be labeled ‘‘Privacy Act Request’’ pertaining to an individual in the If an individual wishes to amend a
and shall be addressed to the Chief requester’s capacity as that individual’s record that pertains to that individual in
Privacy Officer, Consumer Financial guardian, the requester shall be required a system of records, that individual may
Protection Bureau, 1700 G Street NW., to provide adequate proof of the submit a request in writing or by
Washington, DC 20552. requester’s legal relationship before electronic means to the Chief Privacy
(2) If submitted by electronic means, action will be taken on any request. Officer, as set forth in § 1070.53(a). The
the request shall be labeled ‘‘Privacy Act (d) Request for accounting of previous request shall be labeled ‘‘Privacy Act
Request’’ and the request shall be disclosures. An individual may request Amendment Request.’’
submitted as set forth at the CFPB’s Web an accounting of previous disclosures of (2) A request for amendment of a
site, http://www.consumerfinance.gov. records pertaining to that individual in record must:
(i) Identify the system of records (2) Provide reasons why the requester be eligible as a result of the maintenance
containing the record for which believes the denial is in error. of such material, such material shall be
amendment is requested; (c) Determination. The General disclosed to such individual, except to
(ii) Specify the portion of that record Counsel will make a determination as to the extent that the disclosure of such
requested to be amended; and whether to grant or deny an appeal material would reveal the identity of a
(iii) Describe the nature and reasons within thirty (30) business days from source who furnished information to the
for each requested amendment. the date it is received, unless the CFPB under an express promise that the
(3) When making a request for General Counsel extends the time for identity of the source would be held in
amendment of a record, the CFPB will good cause. confidence:
require a requester to verify his or her (1) If the General Counsel grants an (1) CFPB.002 Depository Institution
identity under the procedures set forth appeal regarding a request for Supervision Database
in § 1070.53(c) of this subpart, unless amendment, he or she will take the (2) CFPB.003 Non-Depository
the requester has already done so in a necessary steps to amend the record Institution Supervision Database
related request for access or and, when appropriate and possible, (3) CFPB.004 Enforcement Database
amendment. notify prior recipients of the record of (4) CFPB.005 Consumer Response
(b) Burden of proof. In a request for its action. System
amendment of a record, the requester (2) If the General Counsel denies an (b) Information compiled for civil
bears the burden of proving by a appeal, he or she will inform the actions or proceedings. This subpart
preponderance of the evidence that the requester of such determination in does not permit an individual to have
record is not accurate, relevant, timely, writing, including the reasons for the access to any information compiled in
or complete. denial, and the requester’s right to file reasonable anticipation of a civil action
§ 1070.57 CFPB review of a request for a statement of disagreement and to have or proceeding.
amendment of records. a court review its decision.
§ 1070.61 Training; rules of conduct;
(a) Time limits. The CFPB will (d) Statement of disagreement. (1) If penalties for non-compliance.
acknowledge a request for amendment the General Counsel denies an appeal
regarding a request for amendment, a (a) Training. The Chief Privacy Officer
of records within ten (10) business days shall institute a training program to
after it receives the request. In the requester may file a concise statement of
disagreement with the denial. The CFPB instruct CFPB employees and
acknowledgment, the CFPB may request employees of Government contractors
additional information necessary for a will maintain the requester’s statement
with the record that the requester sought covered by 5 U.S.C. 552a(m), who are
determination on the request for involved in the design, development,
amendment. The CFPB will make a to amend and any disclosure of the
record will include a copy of the operation, or maintenance of any CFPB
determination on a request to amend a system of records, on a continuing basis
record promptly. requester’s statement of disagreement.
(2) When practicable and appropriate, with respect to the duties and
(b) Contents of response to a request responsibilities imposed on them and
for amendment. When the CFPB the CFPB will provide a copy of the
statement of disagreement to any prior the rights conferred on individuals by
responds to a request for amendment, the Privacy Act, the regulations in this
the CFPB will inform the requester in recipients of the record.
subpart, and any other related
writing whether the request is granted § 1070.59 Restrictions on disclosure. regulations. Such training shall provide
or denied, in whole or in part. If the suitable emphasis on the civil and
The CFPB will not disclose any record
CFPB grants the request, it will take the criminal penalties imposed on the CFPB
about an individual contained in a
necessary steps to amend the record and the individual employees by the
system of records to any person or
and, when appropriate and possible, Privacy Act for non-compliance with
agency without the prior written
notify prior recipients of the record of specified requirements of the Act as
consent of that individual unless the
its action. If the CFPB denies the implemented by the regulations in this
disclosure is authorized by 5 U.S.C.
request, in whole or in part, it will subpart.
552a(b). Disclosures authorized by 5
inform the requester in writing: (b) Rules of conduct. The following
U.S.C. 552a(b) include disclosures that
(1) Why the request (or portion of the rules of conduct are applicable to
are compatible with one or more routine
request) was denied; employees of the CFPB (including, to
(2) That the requester has a right to uses that are contained within the
CFPB’s Systems of Records Notices, the extent required by the contract or 5
appeal; and U.S.C. 552a(m), Government contractors
(3) How to file an appeal. which are available on the CFPB’s Web
site, at http:// and employees of such contractors),
§ 1070.58 Appeal of adverse determination www.consumerfinance.gov. who are involved in the design,
of request for access or amendment. development, operation or maintenance
(a) Appeal. A requester may appeal a § 1070.60 Exempt records. of any system of records, or in maintain
denial of a request made pursuant to (a) Exempt systems of records. any records, for or on behalf of the
§§ 1070.53 or 1070.56 of this subpart Pursuant to 5 U.S.C. 552a(k)(2), the CFPB.
within ten (10) business days after the CFPB exempts the systems of records (1) The head of each office of the
CFPB notifies the requester that it has listed below from 5 U.S.C. 552a(c)(3), CFPB shall be responsible for assuring
denied the request. (d), (e)(1), (e)(4)(G)–(H), and (f), and that employees subject to such official’s
(b) Content of Appeal. A requester §§ 1070.53 through 1070.59 of this supervision are advised of the
may submit an appeal in writing or by subpart, to the extent that such systems provisions of the Privacy Act, including
electronic means as set forth in § of records contain investigatory the criminal penalties and civil
1070.53(a). The appeal shall be materials compiled for law enforcement liabilities provided therein, and the
addressed to the General Counsel and purposes, provided, however, that if any regulations in this subpart, and that
labeled ‘‘Privacy Act Appeal.’’ The individual is denied any right, privilege, such employees are made aware of their
appeal must also: or benefit to which he or she would individual and collective
(1) Specify the background of the otherwise be entitled under Federal law, responsibilities to protect the security of
request; and or for which he or she would otherwise personal information, to assure its
accuracy, relevance, timeliness and expressly authorized by statute or by the § 1070.62 Preservation of records.
completeness, to avoid unauthorized individual about whom the record is The CFPB will preserve all
disclosure either orally or in writing, maintained or unless pertinent to and correspondence pertaining to the
and to insure that no system of records within the scope of an authorized law requests that it receives under this part,
is maintained without public notice. enforcement activity; as well as copies of all requested
(2) Employees of the CFPB involved (v) Advise their supervisors of the records, until disposition or destruction
in the design, development, operation, existence or contemplated development is authorized by title 44 of the United
or maintenance of any system of of any record system which is capable States Code or the National Archives
records, or in maintaining any record of retrieving information about and Records Administration’s General
shall: individuals by individual identifier; Records Schedule 14. Records will not
(i) Collect no information of a (vi) Assure that no records maintained be disposed of or destroyed while they
personal nature from individuals unless in a CFPB system of records are are the subject of a pending request,
authorized to collect it to achieve a disseminated without the permission of appeal, proceeding, or lawsuit.
function or carry out a responsibility of the individual about whom the record
the CFPB; § 1070.63 Use and collection of social
pertains, except when authorized by 5 security numbers.
(ii) Collect information, to the extent U.S.C. 552a(b);
practicable, directly from the individual The CFPB will ensure that employees
(vii) Maintain and process
to whom it relates; authorized to collect information are
information concerning individuals
(iii) Inform each individual asked to aware:
with care in order to insure that no
supply information, on the form used to (a) That individuals may not be
inadvertent disclosure of the
collect the information or on a separate denied any right, benefit, or privilege as
information is made either within or
form that can be retained by the a result of refusing to provide their
without the CFPB;
individual of— social security numbers, unless the
(A) The authority (whether granted by (viii) Prior to disseminating any
collection is authorized either by a
statute, or by executive order of the record about an individual to any
statute or by a regulation issued prior to
President) which authorizes the person other than an agency, unless the
1975; and
solicitation of the information and dissemination is made pursuant to 5
(b) That individuals requested to
whether disclosure of such information U.S.C. 552a(b)(2) of this section, make
provide their social security numbers
is mandatory or voluntary; reasonable efforts to assure that such
must be informed of:
(B) The principal purpose or purposes records are accurate, complete, timely,
and relevant for agency purposes; and (1) Whether providing social security
for which the information is intended to numbers is mandatory or voluntary;
be used; (ix) Assure that an accounting is kept
(2) Any statutory or regulatory
(C) The routine uses which may be in the prescribed form, of all
authority that authorizes the collection
made of the information, as published dissemination of personal information
of social security numbers; and
pursuant to 5 U.S.C. 552a(e)(4)(D); and outside the CFPB, whether made orally
(3) The uses that will be made of the
(D) The effects on the individual, if or in writing, unless disclosed under 5
numbers.
any, of not providing all or any part of U.S.C. 552 or subpart B of this part.
the requested information. (3) The head of each office of the Dated: January 15, 2013.
(iv) Not collect, maintain, use or CFPB shall, at least annually, review the Richard Cordray,
disseminate information concerning an record systems subject to their Director, Bureau of Consumer Financial
individual’s religious or political beliefs supervision to insure compliance with Protection.
or activities or membership in the provisions of the Privacy Act of [FR Doc. 2013–01737 Filed 2–14–13; 8:45 am]
associations or organizations, unless 1974 and the regulations in this subpart. BILLING CODE 4810–AM–P

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Bureau of Consumer Financial Protection: Vol. 78 Friday, No. 32 February 15, 2013

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Board regulation providing for discretionary release

commit to maintain the information in confidence.

of other Federal bank regulatory examination of both depository and information.

comments regarding § 1070.45. One commenter that this paragraph should

information sought; made in circumstances which would to its mission;

information with Federal or State

this section does not apply to the

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