[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Rules and Regulations]
[Pages 45372-45394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19038]
[[Page 45371]]
Vol. 76
Thursday,
No. 145
July 28, 2011
Part III
Bureau of Consumer Financial Protection
-----------------------------------------------------------------------
12 CFR Part 1070
Disclosure of Records and Information; Final Rule
Federal Register / Vol. 76 , No. 145 / Thursday, July 28, 2011 /
Rules and Regulations
[[Page 45372]]
-----------------------------------------------------------------------
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1070
[Docket No. CFPB-2011-0003]
RIN 3170-AA01
Disclosure of Records and Information
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Interim final rule with request for public comment.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes procedures for the public
to obtain information from the Bureau of Consumer Financial Protection,
under the Freedom of Information Act, the Privacy Act of 1974, and in
legal proceedings. This interim final rule also establishes the CFPB's
rules regarding the confidential treatment of information obtained from
persons in connection with the exercise of its authorities under
federal consumer financial law.
DATES: This interim final rule is effective July 28, 2011. Written
comments must be submitted by September 26, 2011.
ADDRESSES: You may submit comments, identified by Docket No. CFPB-2011-
0003, by any of the following methods:
Electronic: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail or Hand Delivery/Courier in Lieu of Mail: Monica
Jackson, Office of the Executive Secretary, Consumer Financial
Protection Bureau, 1801 L Street, NW., Washington, DC 20036.
All submissions must include the agency name and docket number or
Regulatory Information Number (RIN) for this rulemaking. In general,
all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public
inspection and copying at 1801 L Street, NW., Washington, DC 20036, on
official business days between the hours of 10 a.m. and 5 p.m. Eastern
Time. You can make an appointment to inspect the documents by
telephoning (202) 435-7275.
All comments, including attachments and other supporting materials,
will become part of the public record and subject to public disclosure.
Sensitive personal information, such as account numbers or Social
Security numbers, should not be included. Comments will not be edited
to remove any identifying or contact information.
FOR FURTHER INFORMATION CONTACT: Monica Jackson, Office of the
Executive Secretary, Consumer Financial Protection Bureau, 1801 L
Street, NW., Washington, DC 20036, 202-435-7275.
SUPPLEMENTARY INFORMATION:
I. Background
On July 21, 2010, the President signed into law the Dodd-Frank Wall
Street Reform and Consumer Protection Act (Pub. L. 111-203). Title X of
that law is the Consumer Financial Protection Act of 2010 (the
``Act''), which created the Bureau of Consumer Financial Protection
(the ``CFPB''). Pursuant to the provisions of the Act, the CFPB will
begin to exercise its authority to regulate the offering and provision
of consumer financial products and services under the federal consumer
financial laws on July 21, 2011.\1\
---------------------------------------------------------------------------
\1\ Section 1066 of the Act grants the Secretary of the Treasury
interim authority to perform certain functions of the CFPB. Pursuant
to that authority, Treasury publishes this interim final rule on
behalf of the CFPB.
---------------------------------------------------------------------------
In order to establish procedures to facilitate public interaction
with the CFPB, the CFPB is issuing this interim final rule. The CFPB
invites public comment on all aspects of this interim final rule and
will take those comments into account before publishing a final rule.
II. Summary of Interim Final Rule
This interim final rule establishes procedures for the CFPB that
are necessary to implement the Freedom of Information Act, 5 U.S.C. 552
(the ``FOIA'') and the Privacy Act of 1974, 5 U.S.C. 552a (the
``Privacy Act''). Various provisions of these statutes either require
or authorize federal agencies to promulgate implementing regulations.
See 5 U.S.C. 552(a)(4)(A)(i); id. at 552(a)(6)(B)(iv); id. at
552(a)(6)(D)(1); id. at 552(a)(6)(E); id. at 552a(f); id. at 552(k).
Pursuant to the Federal Housekeeping Statute, 5 U.S.C. 301 (as
interpreted by United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951) and subsequent related case law) and/or the Federal Records Act,
44 U.S.C. ch. 30, the interim final rule also establishes a process by
which parties may seek testimony or records from the CFPB for use in
litigation and certain other proceedings. Finally, the interim final
rule governs the CFPB's treatment of confidential information pursuant
to sections 1022 and 1052 of the Act.
A. Summary of Subpart A: General Provisions
Subpart A of part 1070 of the rules sets forth general provisions
applicable to the remainder of the part. Section 1070.1 sets forth the
CFPB's authorities for issuing its rules, which include provisions of
the Act that require or authorize the CFPB to disclose, share, or
maintain the confidentiality of certain information that the CFPB
obtains from others or generates itself. Section 1070.1 also identifies
the purposes of the rules in part 1070.
Section 1070.2 defines terms that are utilized elsewhere in part
1070 of the rules. Several of these terms warrant brief discussion. For
example, we intend for our definition of the term ``civil investigative
demand material'' in section 1070.2(e) to encompass all types of
materials provided to the CFPB in response to a civil investigative
demand that the CFPB issues in accordance with section 1052 of the Act.
As stated in section 1052 and reiterated in section 1070.2(e) of these
rules, civil investigative demand material includes documentary
materials, such written reports and answers to questions, tangible
things, oral testimony, or any combination thereof. As defined, the
term ``civil investigative demand material'' also includes such
materials to the extent that a person, through negotiations with the
CFPB or otherwise, agrees to provide them to the CFPB voluntarily or in
lieu of receiving a civil investigative demand.
Section 1070.2(f) defines the term ``confidential information.''
Confidential information refers to three categories of non-public
information--confidential consumer complaint information, confidential
investigative information, and confidential supervisory information--
that the CFPB shall protect from various types of disclosure in
accordance with Consumer Financial Protection Act and other laws. The
term also includes other CFPB information that is exempt from
disclosure pursuant to one or more of the statutory exemptions to the
FOIA.
Section 1070.2(g) defines ``confidential consumer complaint
information'' to mean information that the CFPB receives from the
public or from other agencies or organizations, or which the CFPB
generates through its own efforts pursuant to sections 1013 and 1034 of
the Act, that comprises or documents consumer complaints or inquiries
concerning financial institutions or consumer financial products and
services. The term includes information, such as personally
identifiable information, that is protected from public disclosure
under the FOIA.
Section 1070.2(h) defines ``confidential investigative
information'' to include all manner of materials received, generated,
or compiled by the CFPB in the course of its investigative activities,
including materials received
[[Page 45373]]
through the issuance of civil investigative demands. It also includes
confidential supervisory information and confidential consumer
complaint information to the extent that such materials serve as a
basis for or are utilized for purposes of, an investigation. Lastly,
the term includes materials that other federal and state agencies
provide to the CFPB or create for its use in investigating a possible
violation of federal consumer financial law.
Section 1070.2(i) defines ``confidential supervisory information''
to include various materials that the CFPB generates or receives that
relate to the examination of financial institutions. These materials
include, first, examination, inspection, visitation, operating,
condition, and compliance reports, and any information contained in,
relating to, or derived from such reports. Second, the term includes
documentary materials, including reports of examination, that the CFPB
prepares or that are prepared by others for use by the CFPB in
exercising its supervisory authority over financial institutions, as
well as information derived from such documentary materials. Third, the
term includes the CFPB's communications with financial institutions and
agencies to the extent that such communications relate to the exercise
of the CFPB's supervisory authority over financial institutions.
Fourth, confidential supervisory information includes information that
financial institutions provide to the CFPB to help it to evaluate the
risks associated with consumer financial products and services and
whether institutions should be deemed ``covered persons,'' as that term
is defined by 12 U.S.C. 5481. Finally, the term includes other
supervision-related information that is exempt from public disclosure
under the FOIA pursuant to 5 U.S.C. 552(b)(8).
B. Summary of Subpart B: Rules Implementing the Freedom of Information
Act
Subpart B contains the CFPB's rules that implement the Freedom of
Information Act, 5 U.S.C. 552. The FOIA grants the public an
enforceable right to obtain access to or copies of federal agency
records unless disclosure of those records, or information contained
within them, is exempt from disclosure pursuant to one or more
statutory exemptions and exclusions. The FOIA also requires federal
agencies to routinely publish in the Federal Register, or make
available to the public, certain information concerning their
organizational structures, policies and procedures, final opinions and
orders, and records that have or are likely to become the objects of
frequent FOIA requests. The regulations in this subpart implement the
FOIA as required or authorized by various provisions of the statute.
See 5 U.S.C. 552(a)(4)(A)(i); id. at 552(a)(6)(B)(iv); id. at
552(a)(6)(D)(1); id. at 552(a)(6)(E).
The CFPB modeled its FOIA regulations upon regulations promulgated
by the other federal agencies, including the Treasury Department. The
CFPB sought the input of the Department of Justice and the National
Archives and Records Administration's Office of Government Information
Services, which is responsible for promoting best practices among
federal agencies as to their FOIA regulations and practices.
Because most of the CFPB's FOIA regulations track the statute
itself and set forth requirements and procedures that are typical of
most federal agencies, we do not deem it necessary to provide a
detailed analysis of these regulations.
C. Summary of Subpart C: Disclosure of CFPB Information in Connection
With Legal Proceedings
Subpart C of the rules sets forth procedures for serving the CFPB
and its employees with copies of documents in connection with legal
proceedings, such as summonses, complaints, subpoenas, and other
litigation-related requests or demands for the CFPB's records or
official information. Subpart C also describes the CFPB's procedures
for considering such requests or demands for official information.
These regulations (which are sometimes referred to as Touhy
regulations) are modeled after similar regulations of other federal
agencies. Below is a brief summary of these regulations.
Sections 1070.31-1070.33 of these regulations provide that, except
as otherwise required by law, the CFPB's General Counsel is authorized
to receive and accept service of process of, and the General Counsel is
authorized to respond to, summonses and complaints in which the CFPB or
its employees (in their official capacities) are sued, as well as
subpoenas, court orders, and litigation demands and requests for the
production of the CFPB's records and official information that are
directed to the CFPB or its employees.
Section 1070.34 requires parties demanding the production of the
CFPB's documents or testimony, in legal proceedings in which the United
States or the CFPB are not parties, to provide the CFPB with certain
information about the demand or request, including the name and forum
of the proceeding, a detailed description of the nature of the
information or testimony sought and its intended uses and relevance, a
showing that the evidence sought through the production of the CFPB's
records or testimony is not available from other sources, and, as the
General Counsel deems appropriate, a statement of the party's plans to
demand additional testimony or documents in the future. Unless and
until a party provides this required information, the CFPB will not
respond to a demand it receives.
Section 1070.37 sets forth various factors that the General Counsel
shall consider in deciding whether to comply with a demand or request
for the production of the CFPB's records or testimony. This section
also lists factors that will normally cause the CFPB to refuse
compliance with such a demand or request. These factors pertain to
prudential considerations and discovery privileges established by
federal statutes, rules, and case law.
Finally, section 1070.38 prohibits CFPB employees or former
employees from providing opinion or expert testimony based upon
information (other than general expertise) which they acquired in the
scope and performance of their official CFPB duties, except to the
extent that they provide such testimony on behalf of the United States
or a party represented by the CFPB or the Department of Justice. The
General Counsel has discretion to waive this prohibition if the
requestor demonstrates an exceptional need or unique circumstances and
that the anticipated testimony will neither be adverse to the United
States nor require the United States to pay the employee's or former
employee's travel or other expenses associated with providing the
requested testimony.
D. Summary of Subpart D: Confidential Information
Subpart D of the rules pertains to the protection and disclosure of
confidential information that the CFPB generates and receives during
the course of its work. Various provisions of the Act require the CFPB
to promulgate regulations providing for the confidentiality of certain
types of information and to protect such information from public
disclosure. Other provisions of the Act, however, require or authorize
the CFPB to share information, under certain circumstances, with other
federal and state agencies to the extent that they share jurisdiction
with the CFPB as to the supervision of financial institutions, the
enforcement of consumer financial protection laws, or the investigation
and resolution of consumer complaints
[[Page 45374]]
regarding financial institutions or consumer financial products and
services. In implementing these provisions, the CFPB has sought to
provide the maximum protection for confidential information, while
ensuring its ability to share or disclose information to the extent
necessary to achieve its mission.
The CFPB recognizes that much of the information that it will
generate and obtain during the course of its activities will be
commercially, competitively, and personally sensitive in nature, and
generally warrants heightened protection. The need for greater
protection for these categories of information is reflected in the
substantive law of privilege and in various statutes, including the
FOIA and the Privacy Act, that provide for the protection of such
information from disclosure.
Notwithstanding these concerns, there are instances in which the
disclosure of confidential information will be necessary or appropriate
for the CFPB to accomplish its statutory mission, such as the
investigation and resolution of consumer complaints or the enforcement
of federal consumer financial law. Disclosures may also serve the
public interest where federal and state agencies share elements of the
CFPB's mission and where, by sharing information, they can do their
jobs more effectively.
The regulations in this subpart balance these competing concerns by
generally prohibiting the CFPB and its employees from disclosing
confidential information to non-employees, and even in certain cases to
its employees, except in limited circumstances. Even where the CFPB
permits disclosures of confidential information, the CFPB imposes
strict limits upon the further use and dissemination of disclosed
information.
Where appropriate, the CFPB has based the regulations in this
subpart upon regulations of the other federal financial regulatory
agencies that provide for the confidentiality and disclosure of certain
information generated or received in the course of supervising,
investigating, or pursuing enforcement actions against financial
institutions. A summary of this subpart follows below.
As a preliminary matter, section 1070.2 of the rules, which we
discuss above, defines the term ``confidential information'' as well as
the three categories of confidential information to which this subpart
refers: Confidential consumer complaint information, confidential
investigatory information, and confidential supervisory information. In
certain circumstances, the statute requires disparate treatment of
these three categories of confidential information.
Section 1070.41(a) generally prohibits the disclosure of
confidential information by the CFPB's employees, former employees, or
other persons who possess the CFPB's confidential information, to non-
employees of the CFPB or to CFPB employees for whom such information is
not relevant to the performance of their assigned duties. This
prohibition includes disclosures made by any means (including written
or oral communications) or in any format (including paper and
electronic formats).
Excluded from this general prohibition are disclosures of
confidential information to consultants and contractors of the CFPB who
agree, in writing, to protect the confidentiality of the information in
accordance with federal law as well as any additional conditions or
limitations that the CFPB may impose upon them.
Section 1070.41(c) states that the CFPB is not precluded from
disclosing materials that it derives from or creates using confidential
information, provided that such materials do not identify, either
directly or indirectly, any particular persons to whom the confidential
information pertains. This paragraph clarifies that the CFPB may create
and publish reports, analyses, and other materials derived from
confidential information so long as the reports, analyses, or other
materials do not identify the subject of such information or discuss
the information in such a way that one could infer the identity of the
person it concerns. For example, the CFPB is not precluded from
publishing reports that contain aggregate data derived from
confidential information, provided the report cannot be used in
conjunction with other publicly available information to re-identify
the source of the information.
Section 1070.41(d) clarifies that nothing in subpart D requires or
authorizes the CFPB to disclose confidential information that another
agency has provided to the CFPB to the extent that such disclosure
contravenes applicable law or the terms of any agreement that exists
between the CFPB and the agency to govern the CFPB's treatment of
information that the agency provides to the CFPB.
Section 1070.42(a) provides that the CFPB may, in its discretion,
disclose confidential supervisory information, such as reports of
examination, to supervised financial institutions to which the reports
pertain. To the extent that the CFPB chooses to do so, section
1070.42(b) prohibits institutions from further disseminating the
confidential information it receives except in limited circumstances.
Supervised financial institutions may share confidential supervisory
information with their directors, officers, and employees, and with
those of their parent companies, to the extent that the disclosure of
such confidential supervisory information is relevant to the
performance of such individuals' assigned duties. Supervised financial
institutions may also share confidential supervisory information with
their (or their parent companies') outside legal counsel, certified
public accountants, and consultants, provided that the supervised
financial institutions take reasonable steps to ensure that such legal
counsel, accountants, or consultants do not utilize, make or retain
copies of, or further disclose confidential information except as is
necessary to provide advice to the supervised financial institutions,
their parent companies, or to their respective directors, officers, or
employees. Furthermore, the institutions must keep written records of
their disclosures of confidential information to their legal counsel,
accountants, and consultants, along with the steps they have taken to
ensure that these accountants, legal counsel, and consultants do not
improperly utilize, make or retain copies of, or disclose such
information. Supervised financial institutions shall provide these
written records to the CFPB, upon request or demand.
Section 1070.43 sets forth circumstances under which the CFPB shall
or may disclose various categories of confidential information to law
enforcement agencies and to other government agencies.
Section 1070.43(a)(1) implements sections 1022(c)(6)(C)(i) and
1025(e)(1)(C) of the Act, which require the CFPB to share with federal
and state agencies having jurisdiction over supervised financial
institutions, the CFPB's reports of examination of those supervised
financial institutions, including drafts thereof, final reports, and
revisions to final reports, provided that the CFPB receives from the
agency reasonable assurances as to the confidentiality of the
information provided.
Section 1070.43(a)(2) implements section 1013(b)(3)(D) of the Act,
which requires the CFPB to share confidential consumer complaint
information with federal and state agencies, provided that the agency
first gives written assurance to the CFPB that it will maintain such
information in a manner that conforms to the standards that apply to
federal agencies for the protection of the
[[Page 45375]]
confidentiality of personally identifiable information and for data
security and integrity.
Section 1070.43(b)(1), meanwhile, authorizes the CFPB to make
discretionary disclosures of confidential information to federal and
state agencies under certain circumstances. For example, this provision
implements section 1022(c)(6)(C)(ii) of the Act, which authorizes the
CFPB, upon request, to share confidential supervisory information about
supervised financial institutions (other than reports of examination)
with federal and state agencies having jurisdiction over those
institutions. Section 1070.43(b)(1) also authorizes the CFPB, upon
request, to share confidential investigatory information about
supervised financial institutions with federal and state agencies
having jurisdiction over those institutions.
Section 1070.43(b)(2) sets forth procedures for federal and state
agencies to follow when requesting access to the CFPB's confidential
information as set forth in section 1070.43(b)(1). Requests must be
submitted in writing by authorized officers or employees of the
agencies to the CFPB's General Counsel, who will act upon it in
consultation with the CFPB's Associate Director for Supervision and
Enforcement or with other appropriate CFPB personnel. Requests should
describe the nature of the confidential information and documents
sought and the purposes for which it will be used. Requests should also
identify the agency's legal authority for requesting the documents and
any provisions that restrict CFPB's disclosure. Finally, the requests
should state that the requesting agency will maintain the requested
confidential information in accordance with these rules and in a manner
that conforms to the standards that apply to federal agencies for the
protection of the confidentiality of personally identifiable
information and for data security and integrity. Moreover, the requests
should commit the agencies to adhere to any additional conditions or
limitations that the CFPB, in its discretion, decides to impose.
Section 1070.43(c) clarifies that requests by state agencies for
information or records of the CFPB that do not constitute confidential
information must be made in accordance with the CFPB's FOIA regulations
set forth in subpart B.
Sections 1070.43(d) permit certain federal and state agencies to
negotiate agreements that provide for standing requests for the
exchange of confidential information.
Section 1070.44 states that nothing in this part limits the CFPB's
discretion to disclose confidential consumer complaint information, to
the extent permitted by law, to the extent that such disclosure is
necessary to investigate, resolve, or otherwise respond to consumer
complaints or inquires regarding financial institutions or consumer
financial products and services.
Section 1070.45(a) permits the CFPB to affirmatively disclose
confidential investigative information, such as civil investigative
demand material and other confidential information that becomes part of
the CFPB's investigative files, during the course of the CFPB's
investigations and enforcement proceedings. Thus, the CFPB may disclose
confidential information to its enforcement personnel and in
investigational hearings and witness interviews, as is reasonably
necessary, and to Congress upon request. The CFPB may also disclose
confidential information in administrative or court proceedings to
which the CFPB is a party. In the case of confidential investigatory
material that contains any trade secret or privileged or confidential
commercial or financial information, as claimed by designation by the
submitter of such material, or confidential supervisory information,
the submitter may seek an appropriate protective or in camera order
prior to disclosure of such material in a proceeding. Furthermore, the
CFPB may disclose confidential information to law enforcement and other
government agencies in accordance with this subpart and as required
under any other applicable law.
Section 1070.46 provides that notwithstanding the other rules in
subpart D that restrict the circumstances under which the CFPB may
disclose confidential information, the Director may authorize other
disclosures of confidential information to the extent permitted by law.
The CFPB does not intend for this provision to eviscerate the
prohibition in section 1070.41 on the disclosure of confidential
information. The CFPB intends for this provision to account for
circumstances in which there is an unforeseen and exigent need for the
CFPB to disclose confidential information for purposes or in a manner
not otherwise provided for in these regulations. To circumscribe the
extent to which the CFPB utilizes this provision to disclose
confidential information, this section provides that the disclosure of
confidential information may occur only with the prior written
authorization of the Director. The responsibility may not be delegated
by the Director, except that a person authorized by law to perform the
functions of the Director may also exercise this responsibility. For
example, pursuant to section 1066 of the Act, the Treasury Secretary
may perform this function in the absence of a Director.
Section 1070.46(b) requires the CFPB to provide prior written
notice to the person to whom the confidential information pertains (to
the extent that the CFPB deems such notice to be appropriate under the
circumstances) that the CFPB intends to disclose its confidential
information, in accordance with this section. We note that the other
federal bank regulatory agencies retain similar discretion to disclose
confidential information.
Section 1070.47(a) declares the CFPB's retained ownership of any
confidential information it discloses to federal or state agencies, to
supervised financial institutions, or to other persons as provided in
subpart D. It prohibits further disclosures of such information without
the CFPB's prior written authorization. It directs recipients of
confidential information who receive requests or demands for its
further disclosure to refer such requests or demands to the CFPB,
afford the CFPB an opportunity to respond or intervene, and to assert
legal exemptions or privileges on the CFPB's behalf if so requested. To
the extent that requests for confidential information are made pursuant
to the FOIA, the Privacy Act, or state law equivalents of those
statutes, section 1070.47(a)(3) requires federal or state agency
recipients to refer such requests to the CFPB for its response. As
provided by section 1070.47(a)(4), nothing in this section precludes a
recipient of confidential information under subpart D from disclosing
such information pursuant to a valid federal court order or a request
or demand from a duly authorized committee of the United States
Congress. In such cases where disclosure is compulsory, the disclosing
party shall use its best efforts to secure a protective order or
agreement that maintains the confidentiality of the confidential
information disclosed.
Section 1070.47(b) permits the CFPB to impose any additional
conditions or limitations that it deems prudent upon its disclosures of
confidential information to other agencies or persons.
Section 1070.47(c) clarifies that disclosures of confidential
information pursuant to subpart D are not intended and should not be
construed to constitute a waiver of any privileges that are otherwise
available to the CFPB or
[[Page 45376]]
to any agency or person with respect to this confidential information.
E. Summary of Subpart E: The Privacy Act
Subpart E contains the CFPB's rules that implement the Privacy Act
of 1974, 5 U.S.C. 552a. The Privacy Act serves to balance the
government's need to maintain information about individuals with the
rights of individuals to be protected against unwarranted invasions of
their privacy stemming from federal agencies' collection, maintenance,
use, and disclosure of personal information about them.
The regulations in this subpart implement the Privacy Act, as
required by 5 U.S.C. 552a(f), by establishing procedures by which the
public may request access to information or records that the CFPB
maintains about them, request amendment or correction of such
information or records, and request an accounting of disclosures of
their records by the CFPB.
As with its FOIA regulations, the CFPB modeled its Privacy Act
regulations upon regulations promulgated by the other federal agencies,
including the Treasury Department. Because most of the CFPB's Privacy
Act regulations track the statute itself and set forth requirements and
procedures that are typical of most federal agencies, we do not deem it
necessary to provide a detailed analysis of these regulations.
Nevertheless, we briefly summarize and discuss section 1070.60(a)
of subpart E, which identifies three systems of records (CFPB.002
Depository Institution Supervision Database, CFPB.003 Non-Depository
Institution Supervision Database, and CFPB.004 Enforcement Database)
that, pursuant to 5 U.S.C. 552a(k)(2), the CFPB has exempted from
requirements of the Privacy Act that otherwise grant the public access
to the CFPB's records contained within these systems of records, 5
U.S.C. 552a(d), require the CFPB to account for disclosures of records
contained in the systems of records, id. at 552a(c)(3) require the CFPB
to maintain in such systems only as much information about individuals
as is relevant and necessary to accomplish the CFPB's statutory
mission, id. at 552(e)(1), and require the CFPB to publish certain
information about these systems and how to access them. Id. at
552a(e)(1), (e)(4)(G)-(I), (f).
The CFPB has exempted these three systems of records from the
foregoing requirements of the Privacy Act because these systems of
records will contain information relating to the CFPB's supervision of
financial institutions and its investigations into violations of and
its enforcement of the federal consumer financial laws. Because the
CFPB's supervision and enforcement activities may examine or target the
conduct of individuals, granting such individuals access to the CFPB's
information about them and publishing accounts of the CFPB's disclosure
of such information could interfere with or undermine these activities.
For example, granting individuals access to the CFPB's examination and
investigative records regarding them could reveal to the individuals
that their conduct is of interest to the CFPB or is a target of its
examinations or investigations, thereby leading such individuals to
conceal, alter, destroy, or fabricate evidence.
The exemption is also needed in order to encourage persons having
knowledge of violations of the federal consumer financial laws to
report such information, and to protect such sources from embarrassment
or recrimination, as well as to protect their right to privacy. It is
essential that the identities of all individuals who furnish
information under an express promise of confidentiality be protected.
III. Procedural Requirements
The CFPB has determined that good cause exists, pursuant to 5
U.S.C. 553(b), to publish these regulations as an interim final rule.
When the CFPB is authorized on July 21, 2011 to begin exercising
various regulatory authorities, it will be necessary to promptly
establish procedures to facilitate the CFPB's interactions with the
public. The CFPB's failure to promptly establish such procedures will
impair the public's right to gain access to information about the CFPB
and about themselves that the CFPB maintains. The absence of
confidentiality regulations will also impair the confidentiality and
privacy rights of those who submit sensitive information to the CFPB as
well as the ability of the CFPB to use that information to carry out
its statutory mission. Furthermore, the CFPB has consulted other
federal financial regulatory agencies and the Office of Government
Information Services about the interim final rule. Thus, the CFPB
concludes that notice and public comment are unnecessary for these
regulations and that delay will be contrary to the public interest. For
the same reasons, the CFPB has determined that this interim rule should
be issued without a delayed effective date pursuant to 5 U.S.C.
553(d)(3).
The CFPB further concludes that subpart D of the interim final
rule, which governs the disclosure of the CFPB's confidential
information, constitutes an agency rule of organization, procedure, or
practice that is exempt from notice and public comment pursuant to 5
U.S.C. 553(b).
Notwithstanding these conclusions, the CFPB invites public comment
on this interim final rule.
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. Chapter 6) do
not apply.
The regulations in this part do not contain any information
collection requirement that requires the approval of OMB under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
The CFPB has conducted an analysis of benefits, costs, and impacts
\2\ and consulted with appropriate Federal agencies. In developing the
interim final rule, the CFPB considered potential benefits and costs to
consumers and covered persons, including the impact on access to
consumer financial products and services. The CFPB concludes that the
interim final rule will benefit consumers and covered persons by
granting them access, as required by the Freedom of Information Act, 5
U.S.C. 552, and the Privacy Act of 1974, 5 U.S.C. 552a, to certain
records and information of the CFPB. It will also benefit consumers and
covered persons by protecting the confidentiality of sensitive
information that pertains to them and which the CFPB receives or
generates during the course of its work. The interim final rule will
not impose any obligations on consumers or covered persons and it does
not have any direct relevance to consumers' access to consumer
financial products and services. Although the interim final rule allows
the CFPB to disclose confidential information outside of the CFPB in
certain instances, such disclosures are largely required by the Act or
are consistent with disclosure practices of the other federal financial
regulatory agencies. Any costs that may ensue from such disclosures are
likely to be minimal because the rule restricts the circumstances under
which confidential information may be disclosed, the permissible
recipients of such disclosed information, the further disclosure and
dissemination of such information by its recipients, and in many
instances, the rule requires prior
[[Page 45377]]
notice of disclosure to affected persons. Moreover, the sharing of
confidential information that the interim final rule contemplates is
necessary for the CFPB--along with other federal and state agencies
that share the CFPB's responsibilities regarding the supervision of
financial institutions and the enforcement of consumer financial laws--
to fulfill these responsibilities effectively, efficiently, and to the
overall benefit of consumers and covered persons alike.
---------------------------------------------------------------------------
\2\ Section 1022(b)(2)(A) addresses the consideration of the
potential benefits and costs of regulation to consumers and
industry, including the potential reduction of access by consumers
to consumer financial products or services; the impact of proposed
rules on depository institutions and credit unions with $10 billion
or less in total assets as described in Section 1026 of the Dodd-
Frank Act; and the impact on consumers in rural areas.
---------------------------------------------------------------------------
The CFPB has consulted with the prudential regulators and the
Department of Housing and Urban Development, including with regard to
the consistency of such rules with the prudential, market, or systemic
objectives administered by such agencies.
List of Subjects in 12 CFR Part 1070
Confidential business information, consumer protection, freedom of
information, privacy.
For the reasons set forth above, the Bureau of Consumer Financial
Protection amends Chapter X in Title 12 of the Code of Federal
Regulations by adding a new part 1070 to read as follows:
TITLE 12--BANKS AND BANKING
CHAPTER X--BUREAU OF CONSUMER FINANCIAL PROTECTION
PART 1070--DISCLOSURE OF RECORDS AND INFORMATION
Subpart A--General Provisions and Definitions
Sec.
1070.1 Authority, purpose and scope.
1070.2 General definitions.
1070.3 Custodian of records; certification; alternative authority.
1070.4 Records of the CFPB not to be otherwise disclosed.
Subpart B--Freedom of Information Act
1070.10 General.
1070.11 Information made available; discretionary disclosures.
1070.12 Publication in the Federal Register.
1070.13 Public inspection and copying.
1070.14 Requests for CFPB records.
1070.15 Responsibility for responding to requests for CFPB records.
1070.16 Timing of responses to requests for CFPB records.
1070.17 Requests for expedited processing.
1070.18 Responses to requests for CFPB records.
1070.19 Classified information.
1070.20 Requests for business information provided to the CFPB.
1070.21 Administrative appeals.
1070.22 Fees for processing requests for CFPB records.
1070.23 Authority and responsibilities of the Chief FOIA Officer.
Subpart C--Disclosure of CFPB Information in Connection With Legal
Proceedings
1070.30 Purpose and scope; definitions.
1070.31 Service of summonses and complaints.
1070.32 Service of subpoenas, court orders, and other demands for
CFPB information or action.
1070.33 Testimony and production of documents prohibited unless
approved by the General Counsel.
1070.34 Procedure when testimony or production of documents is
sought; general.
1070.35 Procedure when response to demand is required prior to
receiving instructions.
1070.36 Procedure in the event of an adverse ruling.
1070.37 Considerations in determining whether the CFPB will comply
with a demand or request.
1070.38 Prohibition on providing expert or opinion testimony.
Subpart D--Confidential Information
1070.40 Purpose and scope.
1070.41 Non-disclosure of confidential information.
1070.42 Disclosure of confidential supervisory information to and by
supervised financial institutions.
1070.43 Disclosure of confidential information to law enforcement
agencies and other government agencies.
1070.44 Disclosure of confidential consumer complaint information.
1070.45 Affirmative disclosure of confidential information.
1070.46 Other disclosures of confidential information.
1070.47 Other rules regarding the disclosure of confidential
information.
Subpart E--Privacy Act
1070.50 Purpose and scope; definitions.
1070.51 Authority and responsibilities of the Chief Privacy Officer.
1070.52 Fees.
1070.53 Request for access to records.
1070.54 CFPB procedures for responding to a request for access.
1070.55 Special procedures for medical records.
1070.56 Request for amendment of records.
1070.57 CFPB review of a request for amendment of records.
1070.58 Appeal of adverse determination of request for access or
amendment.
1070.59 Restrictions on disclosure.
1070.60 Exempt records.
1070.61 Training; rules of conduct; penalties for non-compliance.
1070.62 Preservation of records.
1070.63 Use and collection of Social Security numbers.
Authority: 12 U.S.C. 3401; 12 U.S.C. 5481 et seq.; 5 U.S.C.
552; 5 U.S.C. 552a; 18 U.S.C. 1905; 18 U.S.C. 641; 44 U.S.C. ch. 30;
5 U.S.C. 301.
Subpart A--General Provisions and Definitions
Sec. 1070.1 Authority, purpose, and scope.
(a) Authority. (1) This part is issued by the Bureau of Consumer
Financial Protection, an independent Bureau within the Federal Reserve
System, pursuant to the Consumer Financial Protection Act of 2010, 12
U.S.C. 5481 et seq.; the Freedom of Information Act, 5 U.S.C. 552; the
Privacy Act of 1974, 5 U.S.C. 552a; the Federal Records Act, 44 U.S.C.
3101; the Paperwork Reduction Act, 44 U.S.C. 3510; the Right to
Financial Privacy Act of 1978, 12 U.S.C. 3401; the Trade Secrets Act,
18 U.S.C. 1905; 18 U.S.C. 641; and any other applicable law that
establishes a basis for the exercise of governmental authority by the
CFPB.
(2) This part establishes mechanisms for carrying out the CFPB's
statutory responsibilities under the statutes in paragraph (a)(1) of
this section to the extent those responsibilities require the
disclosure, production, or withholding of information. In this regard,
the CFPB has determined that the CFPB, and its delegates, may disclose
information of the CFPB, in accordance with the procedures set forth in
this part, whenever it is necessary or appropriate to do so in the
exercise of any of the CFPB's authority. The CFPB has determined that
all such disclosures, made in accordance with the rules and procedures
specified in this part, are authorized by law.
(b) Purpose and scope. This part contains the CFPB's rules relating
to the disclosure of records and information generated by and obtained
by the CFPB.
(1) Subpart A contains general provisions and definitions used in
this part.
(2) Subpart B implements the Freedom of Information Act, 5 U.S.C.
552.
(3) Subpart C sets forth the procedures with respect to subpoenas,
orders, or other requests for CFPB information in connection with legal
proceedings.
(4) Subpart D provides for the protection of confidential
information and procedures for sharing confidential information with
supervised institutions, government agencies, and others in certain
circumstances.
(5) Subpart E implements the Privacy Act of 1974, 5 U.S.C. 552a.
Sec. 1070.2 General definitions.
For purposes of this part:
(a) Business day means any day except Saturday, Sunday or a legal
federal holiday.
(b) CFPB means the Bureau of Consumer Financial Protection.
[[Page 45378]]
(c) Chief FOIA Officer means the Chief Operating Officer of the
CFPB, or any CFPB employee to whom the Chief Operating Officer has
delegated authority to act under this part.
(d) Chief Operating Officer means the Chief Operating Officer of
the CFPB, or any CFPB employee to whom the Chief Operating Officer has
delegated authority to act under this part.
(e) Civil investigative demand material means any documentary
material, written report, or answers to questions, tangible thing, or
transcript of oral testimony received by the CFPB in any form or format
pursuant to a civil investigative demand, as those terms are set forth
in 12 U.S.C. 5562, or received by the CFPB voluntarily in lieu of a
civil investigative demand.
(f) Confidential information means confidential consumer complaint
information, confidential investigative information, and confidential
supervisory information, as well as any other CFPB information that may
be exempt from disclosure under the Freedom of Information Act pursuant
to 5 U.S.C. 552(b). Confidential information does not include
information contained in records that have been made publicly available
by the CFPB or information that has otherwise been publicly disclosed
by an employee with the authority to do so.
(g) Confidential consumer complaint information means information
received or generated by the CFPB, pursuant to 12 U.S.C. 5493 and 5534,
that comprises or documents consumer complaints or inquiries concerning
financial institutions or consumer financial products and services and
responses thereto, to the extent that such information is exempt from
disclosure pursuant to 5 U.S.C. 552(b).
(h) Confidential investigative information means:
(1) Civil investigative demand material; and
(2) Any documentary material prepared by, on behalf of, received
by, or for the use by the CFPB or any other federal or state agency in
the conduct of an investigation of or enforcement action against a
person, and any information derived from such documents.
(i)(1) Confidential supervisory information means:
(i) Reports of examination, inspection and visitation, non-public
operating, condition, and compliance reports, and any information
contained in, derived from, or related to such reports;
(ii) Any documents, including reports of examination, prepared by,
or on behalf of, or for the use of the CFPB or any other federal,
state, or foreign government agency in the exercise of supervisory
authority over a financial institution, and any information derived
from such documents;
(iii) any communications between the CFPB and a supervised
financial institution or a federal, state, or foreign government agency
related to the CFPB's supervision of the institution;
(iv) Any information provided to the CFPB by a financial
institution to enable the CFPB to monitor for risks to consumers in the
offering or provision of consumer financial products or services, or to
assess whether an institution should be considered a covered person, as
that term is defined by 12 U.S.C. 5481; and/or
(v) Information that is exempt from disclosure pursuant to 5 U.S.C.
552(b)(8).
(2) Confidential supervisory information does not include documents
prepared by a financial institution for its own business purposes and
that the CFPB does not possess.
(j) Director means the Director of the CFPB or his or her designee,
or a person authorized to perform the functions of the Director in
accordance with law.
(k) Employee means all current employees or officials of the CFPB,
including employees of contractors and any other individuals who have
been appointed by, or are subject to the supervision, jurisdiction, or
control of the Director, as well as the Director. The procedures
established within this part also apply to former employees where
specifically noted.
(l) Financial institution means any person involved in the offering
or provision of a ``financial product or service,'' including a
``covered person'' or ``service provider,'' as those terms are defined
by 12 U.S.C. 5481.
(m) General Counsel means the General Counsel of the CFPB or any
CFPB employee to whom the General Counsel has delegated authority to
act under this part.
(n) Person means an individual, partnership, company, corporation,
association (incorporated or unincorporated), trust, estate,
cooperative organization, or other entity.
(o) Report of examination means the report prepared by the CFPB
concerning the examination or inspection of a supervised financial
institution.
(p) Supervised financial institution means a financial institution
subject to the CFPB's supervisory authority.
Sec. 1070.3 Custodian of records; certification; alternative
authority.
(a) Custodian of records. The Chief Operating Officer is the
official custodian of all records of the CFPB, including records that
are in the possession or control of the CFPB or any CFPB employee.
(b) Certification of record. The Chief Operating Officer may
certify the authenticity of any CFPB record or any copy of such record,
for any purpose, and for or before any duly constituted federal or
state court, tribunal, or agency.
(c) Alternative authority. Any action or determination required or
permitted to be done by the Chief Operating Officer may be done by any
employee who has been duly designated for this purpose by the Chief
Operating Officer.
Sec. 1070.4 Records of the CFPB not to be otherwise disclosed.
Except as provided by this part, employees or former employees of
the CFPB, or others in possession of a record of the CFPB that the CFPB
has not already made public, are prohibited from disclosing such
records, without authorization, to any person who is not an employee of
the CFPB.
Subpart B--Freedom of Information Act
Sec. 1070.10 General.
This subpart contains the regulations of the CFPB implementing the
Freedom of Information Act (the ``FOIA''), 5 U.S.C. 552, as amended.
These regulations set forth procedures for requesting access to records
maintained by the CFPB. These regulations should be read together with
the FOIA, the 1987 Office of Management and Budget Guidelines for FOIA
Fees, the CFPB's Privacy Act regulations set forth in subpart E, and
the FOIA webpage on the CFPB's Web site, http://www.consumerfinance.gov, which provide additional information about
this topic.
Sec. 1070.11 Information made available; discretionary disclosures.
(a) In general. The FOIA provides for public access to information
and records developed or maintained by federal agencies. Generally, the
FOIA divides agency information into three major categories and
provides methods by which each category of information is to be made
available to the public. The three major categories of information are
as follows:
(1) Information required to be published in the Federal Register
(see section 1070.12 of this subpart);
(2) Information required to be made available for public inspection
and copying or, in the alternative, to be published and offered for
sale (see section 1070.13 of this subpart); and
[[Page 45379]]
(3) Information required to be made available to any member of the
public upon specific request (see sections 1070.14 through 1070.22 of
this subpart).
(b) Discretionary disclosures. Even though a FOIA exemption may
apply to the information or records requested, the CFPB may, if not
precluded by law, elect under the circumstances not to apply the
exemption. The fact that the exemption is not applied by the CFPB in
response to a particular request shall have no precedential
significance in processing other requests, but is merely an indication
that, in the processing of the particular request, the CFPB finds no
necessity for applying the exemption.
(c) Disclosures of records frequently requested. Subject to the
application of the FOIA exemptions and exclusions (5 U.S.C. 552(b) and
(c)), the CFPB shall make publicly available, as provided by section
1070.13 of this subpart, all records regardless of form or format,
which have been released previously to any person under 5 U.S.C.
552(a)(3) and sections 1070.14 through 1070.22 of this subpart, and
which the CFPB determines have become or are likely to become the
subject of subsequent requests for substantially the same records
because they are clearly of interest to the public at large. When the
CFPB receives three (3) or more requests for substantially the same
records, then the CFPB shall also make the released records publicly
available.
Sec. 1070.12 Publication in the Federal Register.
(a) Requirement. The CFPB shall separately state, publish and
maintain current in the Federal Register for the guidance of the public
the following information:
(1) Descriptions of its central and field organization and the
established place at which, the persons from whom, and the methods
whereby, the public may obtain information, make submissions or
requests, or obtain decisions;
(2) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as
authorized by law, and statements of general policy or interpretations
of general applicability formulated and adopted by the CFPB; and
(5) Each amendment, revision, or repeal of matters referred to in
paragraphs (a)(1) through (4) of this section.
(b) Exceptions. Publication of the information under clause (a) of
this subpart shall be subject to the application of the FOIA exemptions
and exclusions (5 U.S.C. 552(b) and (c)) and the limitations provided
in 5 U.S.C. 552(a)(1).
Sec. 1070.13 Public inspection and copying.
(a) In general. Subject to the application of the FOIA exemptions
and exclusions (5 U.S.C. 552(b) and (c)), the CFPB shall, in
conformance with 5 U.S.C. 552(a)(2), make available for public
inspection and copying, including by posting on the CFPB's Web site,
http://www.consumerfinance.gov, or, in the alternative, promptly
publish and offer for sale the following information:
(1) Final opinions, including concurring and dissenting opinions,
and orders made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the CFPB but are not published in the Federal Register;
(3) Its administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Copies of all records made publicly available pursuant to
section 1070.11 of this subpart; and
(5) A general index of the records referred to in paragraph (a)(4)
of this section.
(b) Information made available online. For records required to be
made available for public inspection and copying pursuant to 5 U.S.C.
552(a)(2) (paragraphs (a)(1) through (4) of this section), as soon as
practicable, the CFPB shall make such records available on its e-FOIA
Library, located at http://www.consumerfinance.gov.
(c) Record availability at the on-site e-FOIA Library. Any member
of the public may, upon request, access the CFPB's e-FOIA Library via a
computer terminal at 1801 L Street, NW., Washington, DC 20036. Such a
request may be made by electronic means as set forth on the CFPB's Web
site, http://www.consumerfinance.gov, or in writing, to the Chief FOIA
Officer, Bureau of Consumer Financial Protection, 1801 L Street, NW.,
Washington, DC 20036. The request must indicate a preferred date and
time for the requested access. The CFPB reserves the right to arrange a
different date and time with the requester, if necessary.
(d) Redaction of identifying details. To prevent a clearly
unwarranted invasion of personal privacy, the CFPB may redact
identifying details contained in any matter described in paragraphs
(a)(1) through (4) of this section before making such matters available
for inspection or publication. The justification for the redaction
shall be explained fully in writing, and the extent of such redaction
shall be indicated on the portion of the record which is made available
or published, unless including that indication would harm an interest
protected by the exemption in 5 U.S.C. 552(b) under which the redaction
is made. If technically feasible, the extent of the redaction shall be
indicated at the place in the record where the redaction is made.
Sec. 1070.14 Requests for CFPB records.
(a) In general. Subject to the application of the FOIA exemptions
and exclusions (5 U.S.C. 552(b) and (c)), the CFPB shall promptly make
its records available to any person pursuant to a request that conforms
to the rules and procedures of this section.
(b) Form of request. A request for records of the CFPB shall be
made in writing or by electronic means.
(1) If a request is made in writing, it shall be addressed to the
Chief FOIA Officer, Bureau of Consumer Financial Protection, 1801 L
Street, NW., Washington, DC 20036. The request shall be labeled
``Freedom of Information Act Request.''
(2) If a request is made by electronic means, it shall be submitted
as set forth on the CFPB's Web site, http://www.consumerfinance.gov.
The request shall be labeled ``Freedom of Information Act Request.''
(c) Content of request. (1) In order to ensure the CFPB's ability
to respond in a timely manner, a FOIA request should describe the
records that the requester seeks in sufficient detail to enable CFPB
personnel to locate them with a reasonable amount of effort. Whenever
possible, the request should include specific information about each
record sought, such as the date, title or name, author, recipient, and
subject matter of the record. If known, the requester should include
any file designations or descriptions for the records requested. As a
general rule, the more specific the requester is about the records or
type of records requested, the more likely the CFPB will be able to
locate those records in response to the request;
(2) In order to ensure the CFPB's ability to communicate
effectively with
[[Page 45380]]
the requester, a request should include contact information for the
requester, including, to the extent available, a mailing address,
telephone number, and e-mail address at which the CFPB may contact the
requester regarding the request;
(3) The request should state whether the requester wishes to
inspect the records or desires to receive an electronic copy or have a
copy made and furnished without first inspecting the records;
(4) For the purpose of determining any fees that may apply to
processing a request, a requester should indicate in the request
whether the requester is a commercial user, an educational institution,
non-commercial scientific institution, representative of the news
media, governmental entity, or ``other'' requester, as those terms are
defined in section 1070.22(b) of this subpart, and the basis for
claiming that fee category. Requesters may seek assistance in
determining the appropriate fee category by contacting the CFPB's FOIA
Public Liaison at the telephone number listed on the CFPB's Web site,
http://www.consumerfinance.gov. The CFPB will use any information
provided to the FOIA Public Liaison solely for the purpose of
determining the appropriate fee category that applies to the requester;
(5) If a requester seeks a waiver or reduction of fees associated
with processing a request, then the request shall include a statement
to that effect as is required by section 1070.22(e) of this subpart.
Any request that does not seek a waiver or reduction of fees
constitutes an agreement of the requester to pay any and all fees (of
up to $25) that may apply to the request, as otherwise set forth in
section 1070.22 of this subpart, except that the requester may specify
in the request an upper limit (of not less than $25) that the requester
is willing to pay to process the request; and
(6) If a requester seeks expedited processing of a request, then
the request must include a statement to that effect as is required by
section 1070.17 of this subpart.
(d) Perfected requests; effect of request deficiencies. For
purposes of computing its deadline to respond to a request, the CFPB
will deem itself to have received a request only if, and on the date
that, it receives a request that contains all of the information
required by and that otherwise conforms with paragraphs (b) and (c) of
this section. A request that another agency refers to the CFPB will be
deemed to have been received by the CFPB on the date the request was
received from the referring agency. The CFPB need not accept a request,
process a request, or be bound by any deadlines in this subpart for
processing a request that fails to conform to the requirements of
paragraphs (b) and (c) of this section. If a request is deficient in
any material respect, then the CFPB may return it to the requester and
advise the requester in what respect the request is deficient, and what
additional information is needed to respond to the request. The
requester may then amend or resubmit the request. A determination by
the CFPB that a request is deficient in any respect is not a denial of
a request for records and such determinations are not subject to
appeal. If a requester fails to respond to a CFPB notification that a
request is deficient within thirty (30) days of the CFPB's
notification, the CFPB will deem the request withdrawn.
(e) Requests by an individual for CFPB records pertaining to that
individual. An individual who wishes to inspect or obtain copies of
records of the Bureau that pertain to that individual shall file a
request in accordance with subpart E of these rules.
(f) Requests for CFPB records pertaining to another individual.
Where a request for records pertains to a third party, a requester may
receive greater access by submitting either a notarized authorization
signed by that individual or a declaration by that individual made in
compliance with the requirements set forth in 28 U.S.C. 1746
authorizing disclosure of the records to the requester, or submits
proof that the individual is deceased (e.g., a copy of a death
certificate or an obituary). The CFPB may require a requester to supply
additional information if necessary in order to verify that a
particular individual has consented to disclosure.
Sec. 1070.15 Responsibility for responding to requests for CFPB
records.
(a) In general. In determining which records are responsive to a
request, the CFPB ordinarily will include only records in its
possession as of the date the CFPB begins its search for them. If any
other date is used, the CFPB shall inform the requester of that date.
(b) Authority to grant or deny requests. The Chief FOIA Officer
shall be authorized to grant or deny any request for a record of the
CFPB.
(c) Consultations and referrals. (1) When a requested record has
been created by an agency other than the CFPB, the CFPB shall refer the
record to the originating agency for a direct response to the
requester.
(2) When a FOIA request is received for a record created by the
CFPB that includes information originated by another agency, the CFPB
shall consult the originating agency for review and recommendation on
disclosure. The CFPB shall not release any such records without prior
consultation with the originating agency.
(d) Notice of referral. Whenever the CFPB refers all or any part of
the responsibility for responding to a request to another agency, it
will notify the requester of the referral and inform the requester of
the name of each agency to which the request has been referred, in
whole or in part.
Sec. 1070.16 Timing of responses to requests for CFPB records.
(a) In general. Except as set forth in paragraphs (b) through (d)
of this section, and Sec. 1070.17 of this subpart, the CFPB shall
respond to requests according to their order of receipt.
(b) Multitrack processing. (1) The CFPB may establish separate
tracks to process simple and complex requests. The CFPB may assign a
request to the simple or complex track(s) based on the amount of work
and/or time needed to process the request. The CFPB shall process
requests in each track based on the date the request was perfected in
accordance with section 1070.14(d).
(2) The CFPB may provide a requester in its complex track with an
opportunity to limit the scope of the request to qualify for faster
processing within the specified limits of the simple track(s).
(c) Time period for responding to requests for records. Ordinarily,
the CFPB shall have twenty (20) business days from when a request is
received by the CFPB to determine whether to grant or deny a request
for records. The twenty (20) business day time period set forth in this
paragraph shall not be tolled by the CFPB except that the CFPB may:
(1) Make one reasonable demand to the requester for clarifying
information about the request and toll the twenty (20) business day
time period while it awaits the clarifying information; or
(2) Toll the twenty (20) business day time period while it awaits
clarification from or addresses any dispute with the requester
regarding the assessment of fees.
(d) Unusual circumstances. (1) Where the CFPB determines that due
to unusual circumstances it cannot respond either to a request within
the time period set forth in paragraph (c) of this section or to an
appeal within the time period set forth in Sec. 1070.21 of this
subpart, the CFPB may extend the applicable time periods by informing
the requester in writing of the unusual circumstances and of the date
by which
[[Page 45381]]
the CFPB expects to complete its processing of the request or appeal.
Any extension or extensions of time with respect to a request or an
appeal shall not cumulatively total more than ten (10) business days.
However, if the CFPB determines that it needs additional time beyond a
ten (10) business day extension to process the request or appeal, then
the CFPB shall notify the requester and provide the requester with an
opportunity to limit the scope of the request or appeal or to arrange
for an alternative time frame for processing the request or appeal or a
modified request or appeal. The requester shall retain the right to
define the desired scope of the request or appeal, as long as it meets
the requirements contained in this subpart.
(2) As used in this paragraph, unusual circumstances means:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more CFPB offices
having substantial subject matter interest therein.
Sec. 1070.17 Requests for expedited processing.
(a) In general. The CFPB shall process a request on an expedited
basis whenever a requester demonstrates a compelling need for expedited
processing in accordance with the requirements of this paragraph.
(b) Form and content of a request for expedited processing. A
request for expedited processing shall be made as follows:
(1) A request for expedited processing shall be made in writing or
by electronic means and submitted as part of a request for records in
accordance with section 1070.14(b). When a request for records includes
a request for expedited processing, the request shall be labeled
``Expedited Processing Requested.''
(2) A request for expedited processing shall contain a statement
that demonstrates a compelling need for the requester to obtain
expedited processing of the requested records.
A compelling need is defined as follows:
(i) Failure to obtain the requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual. The requester shall fully explain the
circumstances warranting such an expected threat so that the CFPB may
make a reasoned determination that a delay in obtaining the requested
records could pose such a threat; or
(ii) With respect to a request made by a person primarily engaged
in disseminating information, urgency to inform the public concerning
actual or alleged federal government activity. A person ``primarily
engaged in disseminating information'' does not include individuals who
are engaged only incidentally in the dissemination of information. The
standard of ``urgency to inform'' requires that the records requested
pertain to a matter of current exigency to the American public and that
delaying a response to a request for records would compromise a
significant recognized interest to and throughout the American general
public. The requester must adequately explain the matter or activity
and why the records sought are necessary to be provided on an expedited
basis.
(3) The requester shall certify the written statement that purports
to demonstrate a compelling need for expedited processing to be true
and correct to the best of the requester's knowledge and belief. The
certification must be in the form prescribed by 28 U.S.C. 1746: ``I
declare under penalty of perjury that the foregoing is true and correct
to the best of my knowledge and belief. Executed on [date].'' The
requester shall mail or submit electronically a copy of such written
certification to the Chief FOIA Officer as set forth in Section
1070.14(b) of this subpart. The CFPB may waive this certification
requirement in appropriate circumstances.
(c) Determinations of requests for expedited processing. Within ten
(10) calendar days of its receipt of a request for expedited
processing, the CFPB shall decide whether to grant it and shall notify
the requester of the determination in writing.
(d) Effect of granting requests for expedited processing. If the
CFPB grants a request for expedited processing, then the CFPB shall
give the expedited request priority over non-expedited requests and
shall process the expedited request as soon as practicable. The CFPB
may assign expedited requests to their own simple and complex
processing tracks based upon the amount of work and/or time needed to
process them. Within each such track, an expedited request shall be
processed in the order of its receipt.
(e) Appeals of denials of requests for expedited processing. If the
CFPB denies a request for expedited processing, then the requester
shall have the right to submit an appeal of the denial determination in
accordance with section 1070.21 of this subpart. The CFPB shall
communicate this appeal right as part of its written notification to
the requester denying expedited processing. The requester shall label
its appeal request ``Appeal for Expedited Processing.'' The CFPB shall
act expeditiously upon an appeal of a denial of a request for expedited
processing.
Sec. 1070.18 Responses to requests for CFPB records.
(a) Acknowledgements of requests. Upon receipt of a perfected
request, the CFPB will assign to the request a unique tracking number.
The CFPB will send an acknowledgement letter to the requester by mail
or email within ten (10) calendar days of receipt of the request. The
acknowledgment letter will contain the following information:
(1) The applicable request tracking number;
(2) The date of receipt of the request, as determined in accordance
with section 1070.14(d) of this subpart, as well as the date when the
requester may expect a response;
(3) A brief statement identifying the subject matter of the
request; and
(4) A confirmation, with respect to any fees that may apply to the
request pursuant to section 1070.22 of this subpart, that the requester
has sought a waiver or reduction in such fees, has agreed to pay any
and all applicable fees, or has specified an upper limit (of not less
than $25) that the requester is willing to pay in fees to process the
request.
(b) Initial determination to grant or deny a request. (1) The
officer designated in section 1070.15(b) to this subpart, or his or her
delegate, shall make initial determinations either to grant or to deny
in whole or in part requests for records.
(2) If the request is granted in full or in part, and if the
requester requests a copy of the records requested, then a copy of the
records shall be mailed or emailed to the requester in the requested
format, to the extent the records are readily produceable in the
requested format. The CFPB shall also send the requester a statement of
the applicable fees, either at the time of the determination or shortly
thereafter.
(3) In the case of a request for inspection, the requester shall be
notified in writing of the determination, when and where the requested
records
[[Page 45382]]
may be inspected, and of the fees incurred in complying with the
request. The CFPB shall then promptly make the records available for
inspection at the time and place stated, in a manner that will not
interfere with CFPB's operations and will not exclude other persons
from making inspections. The requester shall not be permitted to remove
the records from the room where inspection is made. If, after making
inspection, the requester desires copies of all or a portion of the
requested records, copies shall be furnished upon payment of the
established fees prescribed by section 1070.22 of this subpart. Fees
may be charged for search and review time as stated in section 1070.22
of this subpart.
(4) If it is determined that the request for records should be
denied in whole or in part, the requester shall be notified by mail or
by email. The letter of notification shall:
(i) State the exemptions relied upon in denying the request;
(ii) If technically feasible, indicate the amount of information
deleted and the exemptions under which the deletion is made at the
place in the record where such deletion is made (unless providing such
indication would harm an interest protected by the exemption relied
upon to deny such material);
(iii) Set forth the name and title or position of the responsible
official;
(iv) Advise the requester of the right to administrative appeal in
accordance with Sec. 1070.21 of this subpart; and
(v) Specify the official or office to which such appeal shall be
submitted.
(5) If it is determined, after a reasonable search for records,
that no responsive records have been found to exist, the requester
shall be notified in writing or by email. The notification shall also
advise the requester of the right to administratively appeal the CFPB's
determination that no responsive records exist (i.e., to challenge the
adequacy of the CFPB's search for responsive records) in accordance
with section 1070.21 of this subpart. The response shall specify the
official or office to which the appeal shall be submitted for review.
Sec. 1070.19 Classified information.
Whenever a request is made for a record containing information that
another agency has classified, or which may be appropriate for
classification by another agency under Executive Order 13526 or any
other executive order concerning the classification of information, the
CFPB shall refer the responsibility for responding to the request to
the classifying or originating agency, as appropriate.
Sec. 1070.20 Requests for business information provided to the CFPB.
(a) In general. Business information provided to the CFPB by a
business submitter shall not be disclosed pursuant to a FOIA request
except in accordance with this section.
(b) Definitions. For purposes of this section:
(1) Business information. means commercial or financial information
obtained by the CFPB from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Submitter. means any person from whom the CFPB obtains business
information, directly or indirectly. The term includes, without
limitation, corporations, state, local, and tribal governments, and
foreign governments.
(c) Designation of business information. A submitter of business
information will use good-faith efforts to designate, by appropriate
markings, either at the time of submission or at a reasonable time
thereafter, any portions of its submission that it considers to be
protected from disclosure under Exemption 4 of the FOIA. These
designations will expire ten (10) years after the date of the
submission unless the submitter requests otherwise and provides
justification for, a longer designation period.
(d) Notice to submitters. The CFPB shall provide a submitter with
prompt written notice of receipt of a request or appeal encompassing
its business information whenever required in accordance with paragraph
(e) of this section. Such written notice shall either describe the
exact nature of the business information requested or provide copies of
the records or portions of records containing the business information.
When notification of a voluminous number of submitters is required,
notification may be made by posting or publishing the notice in a place
reasonably likely to accomplish it.
(e) When notice is required. (1) The CFPB shall provide a submitter
with notice of receipt of a request or appeal whenever:
(i) The information has been designated in good faith by the
submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The CFPB has reason to believe that the information may be
protected from disclosure under Exemption 4.
(2) The notice requirements of this subsection shall not apply if:
(i) The CFPB determines that the information is exempt under the
FOIA;
(ii) The information lawfully has been published or otherwise made
available to the public;
(iii) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
(iv) The designation made by the submitter under paragraph (1)(i)
appears obviously frivolous, except that, in such a case, the CFPB
shall, within a reasonable time prior to a specified disclosure date,
give the submitter written notice of any final decision to disclose the
information.
(f) Opportunity to object to disclosure. (1) Through the notice
described in paragraph (d) of this section, the CFPB shall afford a
submitter ten (10) business days from the date of the notice to provide
the CFPB with a detailed statement of any objection to disclosure. Such
statement shall specify all grounds for withholding any of the
information under any exemption of the FOIA and, in the case of
Exemption 4, shall demonstrate why the information is considered to be
a trade secret or commercial or financial information that is
privileged or confidential. In the event that a submitter fails to
respond to the notice within the time specified in it, the submitter
shall be considered to have no objection to disclosure of the
information. Information provided by a submitter pursuant to this
paragraph may itself be subject to disclosure under the FOIA.
(2) When notice is given to a submitter under this section, the
requester shall be advised that such notice has been given to the
submitter. The requester shall be further advised that a delay in
responding to the request may be considered a denial of access to
records and that the requester may proceed with an administrative
appeal or seek judicial review, if appropriate. However, the requester
will be invited to agree to a voluntary extension of time so that the
CFPB may review the submitter's objection to disclose, if any.
(g) Notice of intent to disclose. The CFPB shall consider carefully
a submitter's objections and specific grounds for nondisclosure prior
to determining whether to disclose business information. Whenever the
CFPB decides to disclose business information over the objection of a
submitter, the CFPB shall forward to the submitter a written notice
which shall include:
(1) A statement of the reasons for which the submitter's disclosure
objections were not sustained;
[[Page 45383]]
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date which is not less than ten (10)
business days after the notice of the final decision to release the
requested information has been mailed to the submitter. Except as
otherwise prohibited by law, a copy of the disclosure notice shall be
forwarded to the requester at the same time.
(h) Notice to submitter of FOIA lawsuit. Whenever a requester
brings suit seeking to compel disclosure of business information, the
CFPB shall promptly notify the submitter of that business information
of the existence of the suit.
(i) Notice to requester of business information. The CFPB shall
notify a requester whenever it provides the submitter with notice and
an opportunity to object to disclosure; whenever it notifies the
submitter of its intent to disclose the requested information; and
whenever a submitter files a lawsuit to prevent the disclosure of the
information.
Sec. 1070.21 Administrative appeals.
(a) Grounds for administrative appeals. A requester may appeal an
initial determination of the CFPB, including for the following reasons:
(1) To deny access to records in whole or in part (as provided in
section 1070.18(b) of this subpart);
(2) To assign a particular fee category to the requestor (as
provided in section 1070.22(b) of this subpart);
(3) To deny a request for a reduction or waiver of fees (as
provided in section 1070.22(e) of this subpart);
(4) That no records exist that are responsive to the request (as
provided in section 1070.18(b) of this subpart); or
(5) To deny a request for expedited processing (as provided in
section 1070.17(e) of this subpart).
(b) Time limits for filing administrative appeals. An appeal, other
than an appeal of a denial of expedited processing, must be postmarked
or submitted electronically on a date that is within forty-five (45)
calendar days of the date of the initial determination or the date of
the letter transmitting the last records released, whichever is later.
An appeal of a denial of expedited processing must be made within ten
(10) days of the date of the initial determination letter to deny
expedited processing (see section 1070.17 of this subpart).
(c) Form and content of administrative appeals. In order to ensure
a timely response to an appeal, the appeal shall be made in writing or
by electronic means as follows:
(1) If appeal is made in writing, it shall be addressed to and
submitted to the officer specified in paragraph (e) of this section at
the address set forth in Sec. 1070.14(b) of this subpart. The appeal
shall be labeled ``Freedom of Information Act Appeal.''
(2) If an appeal is made by electronic means, it shall be addressed
to the officer specified in paragraph (e) of this section and submitted
as set forth on the CFPB's Web site, http://www.consumerfinance.gov.
The appeal shall be labeled ``Freedom of Information Act Appeal.''
(3) The appeal shall set forth contact information for the
requester, including, to the extent available, a mailing address,
telephone number, or email address at which the CFPB may contact the
requester regarding the appeal; and
(4) The appeal shall specify the applicable request tracking
number, the date of the initial request, and the date of the letter of
initial determination, and, where possible, enclose a copy of the
initial request and the initial determination being appealed.
(d) Processing of administrative appeals. Appeals will be stamped
with the date of their receipt by the FOIA response office, and will be
processed in the order of their receipt. The receipt of the appeal will
be acknowledged by the CFPB and the requester will be advised of the
date the appeal was received, the appeal tracking number, and the
expected date of response.
(e) Determinations to grant or deny administrative appeals. The
General Counsel is authorized to and shall decide whether to affirm the
initial determination (in whole or in part) or to reverse the initial
determination (in whole or in part) and shall notify the requester of
this decision in writing within twenty (20) business days after the
date of receipt of the appeal, unless extended pursuant to section
1070.16(d) of this subpart.
(1) If it is decided that the appeal is to be denied (in whole or
in part) the requester shall be:
(i) Notified in writing of the denial;
(ii) Notified of the reasons for the denial, including which of the
FOIA exemptions were relied upon;
(iii) Notified of the name and title or position of the official
responsible for the determination on appeal;
(iv) Provided with a statement that judicial review of the denial
is available in the United States District Court for the judicial
district in which the requester resides or has a principal place of
business, the judicial district in which the requested records are
located, or the District of Columbia in accordance with 5 U.S.C.
552(a)(4)(B); and
(v) Provided with notification that mediation services are
available to the requester as a non-exclusive alternative to litigation
through the Office of Government Information Services in accordance
with 5 U.S.C. 552(h)(3).
(2) If the initial determination is reversed on appeal, the
requester shall be so notified and the request shall be processed
promptly in accordance with the decision on appeal.
(f) Adjudication of administrative appeals of requests in
litigation. An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
Sec. 1070.22 Fees for processing requests for CFPB records.
(a) In general. The CFPB shall determine whether and to what extent
to charge a requester fees for processing a FOIA request, for the
services and in the amounts set forth in this paragraph, by determining
an appropriate fee category for the requester (as set forth in
paragraph (b) of this section) and then by charging the requester those
fees applicable to the assigned category (as set forth in paragraph (c)
of this section), unless circumstances exist (as described in paragraph
(d) of this section) that render fees inapplicable or inadvisable or
unless the requester has requested and the CFPB has granted a reduction
in or waiver of fees (as set forth in paragraph (e) of this section).
(1) The CFPB shall charge a requester fees for the cost of copying
records at rates set forth on the CFPB's Web site, http://www.consumerfinance.gov.
(2) The CFPB shall charge a requester for all time spent by its
employees searching for records that are responsive to a request. The
CFPB shall charge the requester fees for search time as follows:
(i) The CFPB shall charge for search time at the salary rate(s)
(basic pay plus sixteen (16) percent) of the employee(s) who conduct
the search. However, where a single class of employee is used
exclusively (e.g., all administrative/clerical, or all professional/
executive), an average rate for the range of grades typically involved
may be established. This charge shall include transportation of
employees and records necessary to the search at actual cost. Fees may
be charged for search time even if the search does not yield any
responsive records, or if records are exempt from disclosure.
(ii) The CFPB shall charge the requester for the actual direct cost
of the search, including computer search time, runs, and the operator's
salary. The fee for computer output will be the actual
[[Page 45384]]
direct cost. For a requester in the ``all other'' category, when the
cost of the search (including the operator time and the cost of
operating the computer to process a request) equals the equivalent
dollar amount of two hours of the salary of the person performing the
search (i.e., the operator), the charge for the computer search will
begin.
(3) The CFPB shall charge a requester for time spent by its
employees examining responsive records to determine whether any
portions of such record are exempt from disclosure, pursuant to the
FOIA exemptions of 5 U.S.C. 552(b). The CFPB shall also charge a
requester for time spent by its employees redacting any such exempt
information from a record and preparing a record for release to the
requester. The CFPB shall charge a requester for time spent reviewing
records at the salary rate(s) (i.e., basic pay plus sixteen (16)
percent) of the employees who conduct the review. However, when a
single class of employee is used exclusively (e.g., all administrative/
clerical, or all professional/executive), an average rate for the range
of grades typically involved may be established. Fees shall be charged
for review time even if records ultimately are not disclosed.
(4) Fees for all services provided shall be charged whether or not
copies are made available to the requester for inspection. However, no
fee shall be charged for monitoring a requester's inspection of
records.
(5) Other services and materials requested which are not covered by
this part nor required by the FOIA are chargeable at the actual cost to
the CFPB. This includes, but is not limited to:
(i) Certifying that records are true copies; or
(ii) Sending records by special methods such as express mail, etc.
(b) Categories of requesters. (1) For purposes of assessing fees as
set forth in this section, each requester shall be assigned to one of
the following categories:
(i) Commercial user refers to one who seeks information for a use
or purpose that furthers the commercial, trade, or profit interests of
the requester or the person on whose behalf the request is made, which
can include furthering those interests through litigation. The CFPB may
determine from the use specified in the request that the requester is a
commercial user.
(ii) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
(iii) Non-commercial scientific institution refers to an
institution that is not operated on a ``commercial user'' basis as that
term is defined in paragraph (b)(2)(i) of this section, and which is
operated solely for the purpose of conducting scientific research, the
results of which are not intended to promote any particular product or
industry.
(iv) Representative of the news media refers to any person or
entity that gathers information of potential interest to a segment of
the public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. In this
subparagraph, the term ``news'' means information that is about current
events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of ``news'') who make their products
available for purchase by or subscription by or free distribution to
the general public. Other examples of news media entities include
online publications and Web sites that regularly deliver news content
to the public. These examples are not all-inclusive. Moreover, as
methods of news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be news-media
entities. A freelance journalist shall be regarded as working for a
news-media entity if the journalist can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the CFPB may also
consider the past publication record of the requester in making such a
determination.
(v) Other requester refers to a requester who does not fall within
any of the previously described categories.
(2) Within twenty (20) calendar days of its receipt of a request,
the CFPB shall make a determination as to the proper fee category to
apply to a requester. The CFPB shall inform the requester of the
determination in the request acknowledgment letter, or if no such
letter is required, in writing. The CFPB shall base its determination
upon a review of the requester's submission and the CFPB's own records.
Where the CFPB has reasonable cause to doubt the use to which a
requester will put the records sought, or where that use is not clear
from the request itself, the CFPB should seek additional clarification
before assigning the request to a specific category.
(3) If the CFPB assigns to a requester a fee category, then the
requester shall have the right to submit an appeal of the CFPB's
determination in accordance with section 1070.21 of this subpart. The
CFPB shall communicate this appeal right as part of its written
notification to the requester of an adverse fee category determination.
The requester shall label its appeal request ``Appeal of Fee Category
Determination.''
(c) Fees applicable to each category of requester. The following
fee schedule applies uniformly throughout the CFPB to requests
processed under the FOIA. Specific levels of fees are prescribed for
each category of requester defined in paragraph (b) of this section.
(1) Commercial users shall be charged the full direct costs of
searching for, reviewing, and duplicating the records they request.
Moreover, when a request is received for disclosure that is primarily
in the commercial interest of the requester, the CFPB is not required
to consider a request for a waiver or reduction of fees based upon the
assertion that disclosure would be in the public interest. The CFPB may
recover the cost of searching for and reviewing records even if there
is ultimately no disclosure of records or no records are located.
(2) Educational and non-commercial scientific institution
requesters shall be charged only for the cost of duplicating the
records they request, except that the CFPB shall provide the first one
hundred (100) pages of duplication free of charge. To be eligible,
requesters must show that the request is made under the auspices of a
qualifying institution and that the records are not sought for a
commercial use, but are sought in furtherance of scholarly (if the
request is from an educational institution) or scientific (if the
request is from a non-commercial scientific institution) research.
These categories do not include requesters who want records for use in
meeting individual academic research or study requirements.
(3) Representatives of the news media shall be charged only for the
cost of duplicating the records they request, except that the CFPB
shall provide them with the first one hundred (100) pages of
duplication free of charge.
(4) Other requesters who do not fit any of the categories described
above
[[Page 45385]]
shall be charged the full direct cost of searching for and duplicating
records that are responsive to the request, except that the CFPB shall
provide the first one hundred (100) pages of duplication and the first
two hours of search time free of charge. The CFPB may recover the cost
of searching for records even if there is ultimately no disclosure of
records, or no records are located. Requests from persons for records
about themselves filed in the CFPB's systems of records shall continue
to be treated under the fee provisions of the Privacy Act of 1974, 5
U.S.C. 552a, which permit fees only for duplication, after the first
one hundred (100) pages are furnished free of charge.
(d) Other circumstances when fees are not charged. Notwithstanding
paragraphs (b) and (c) of this section, the CFPB may not charge a
requester a fee for processing a FOIA request if any of the following
applies:
(1) The cost of collecting a fee would be equal to or greater than
the fee itself;
(2) The fees were waived or reduced in accordance with paragraph
(e) of this section;
(3) If the CFPB fails to comply with any time limit under
Sec. Sec. 1070.16 or 1070.21 of this subpart, and no unusual
circumstances (as that term is defined in Sec. 1070.16(d)) or
exceptional circumstances apply to the processing of the request, then
the CFPB shall not assess search fees, or if the requester is an
educational or noncommercial scientific institution, then the CFPB
shall not assess duplication fees. The term exceptional circumstances
does not include a delay that results from a predictable CFPB workload
of requests, unless the CFPB demonstrates reasonable progress in
reducing its backlog of pending requests; or
(4) If the CFPB determines, as a matter of administrative
discretion, that waiving or reducing the fees would serve the interest
of the United States Government.
(e) Waiver or reduction of fees. (1) A requester shall be entitled
to receive from the CFPB a waiver or reduction in the fees otherwise
applicable to a FOIA request whenever the requester:
(i) Requests such waiver or reduction of fees in writing or by
electronic means as part of the FOIA request;
(ii) Labels the request for waiver or reduction of fees ``Fee
Waiver or Reduction Requested'' on the FOIA request; and
(iii) Demonstrates that the fee reduction or waiver request that a
waiver or reduction of the fees is in the public interest because:
(A) Furnishing the information is likely to contribute
significantly to public understanding of the operations or activities
of the government; and
(B) Furnishing the information is not primarily in the commercial
interest of the requester.
(2) To determine whether the requester has satisfied the
requirements of paragraph (e)(1)(ii)(A), the CFPB shall consider the
following factors:
(i) The subject of the requested records must concern identifiable
operations or activities of the federal government, with a connection
that is direct and clear, and not remote or attenuated.
(ii) The disclosable portions of the requested records must be
meaningfully informative about government operations or activities in
order to be ``likely to contribute'' to an increased public
understanding of those operations or activities. The disclosure of
information that already is in the public domain, in either a
duplicative or a substantially similar form, is not as likely to
contribute to the public's understanding.
(iii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area and ability and intention to effectively
convey information to the public shall be considered. It shall be
presumed that a representative of the news media will satisfy this
consideration.
(iv) The public's understanding of the subject in question, as
compared to the level of public understanding existing prior to the
disclosure, must be enhanced by the disclosure to a significant extent.
(3) To determine whether the requester has satisfied the
requirements of paragraph (e)(1)(ii)(B), the CFPB shall consider the
following factors:
(i) The CFPB shall consider any commercial interest of the
requester (with reference to the definition of commercial user in
(b)(1)(i) of this section), or of any person on whose behalf the
requester may be acting, that would be furthered by the requested
disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(ii) A fee waiver or reduction is justified where the public
interest standard is satisfied and that public interest is greater in
magnitude than that of any identified commercial interest in
disclosure. The CFPB ordinarily shall presume that where a news media
requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(5) The CFPB shall decide whether to grant or deny a request to
reduce or waive fees prior to processing a request. The CFPB shall
notify the requester of the determination in writing.
(6) If the CFPB denies a request to reduce or waive fees, then the
CFPB shall advise the requester, in the denial notification letter,
that the requester may incur fees if the CFPB proceeds to process the
request. The notification letter shall also advise the requester that
the CFPB will not proceed to process the request further unless the
requester, in writing, directs the CFPB to do so and either agrees to
pay any fees that may apply to processing the request or specifies an
upper limit (of not less than $25) that the requester is willing to pay
to process the request. If the CFPB does not receive this written
direction and agreement/specification within thirty (30) calendar days
of the date of the denial notification letter, then the CFPB shall deem
the request to be withdrawn.
(7) If the CFPB denies a request to reduce or waive fees, then the
requester shall have the right to submit an appeal of the denial
determination in accordance with section 1070.21 of this subpart. The
CFPB shall communicate this appeal right as part of its written
notification to the requester denying the fee reduction or waiver
request. The requester should label its appeal request ``Appeal for Fee
Reduction/Waiver.''
(f) Advance notice and prepayment of fees. (1) When the CFPB
estimates the fees for processing a request to exceed the limit set by
the requester, and that amount is less than $250, or the requester did
not specify a limit and the amount is less than $250, the requester
shall be notified of the estimated fees, and provided a breakdown of
the fees attributable to search, review, and duplication, respectively.
The requester must provide an agreement to pay the estimated fees;
however, the requester shall also be given an opportunity to
reformulate the request in an attempt to reduce fees.
(2) If the requester has failed to state a limit and the fees are
estimated to exceed $250, the requester shall be notified of the
estimated fees and provided a breakdown of the fees attributable to
search, review, and
[[Page 45386]]
duplication, respectively. The requester must pre-pay such amount prior
to the processing of the request, or provide satisfactory assurance of
full payment if the requester has a history of prompt payment of FOIA
fees. The requester shall also be given an opportunity to reformulate
the request in such a way as to lower the applicable fees.
(3) The CFPB reserves the right to request prepayment after a
request is processed and before documents are released.
(4) If a requester has previously failed to pay a fee within thirty
(30) calendar days of the date of the billing, the requester shall be
required to pay the full amount owed plus any applicable interest and
to make an advance payment of the full amount of the estimated fee
before the CFPB begins to process a new request or the pending request.
(5) When the CFPB acts under paragraphs (f)(1) through (4) of this
section, the statutory time limits of twenty (20) days (excluding
Saturdays, Sundays, and legal public holidays) from receipt of initial
requests or appeals, plus extensions of these time limits, shall begin
only after fees have been paid, a written agreement to pay fees has
been provided, or a request has been reformulated.
(g) Form of payment. Payment may be tendered as set forth on the
CFPB's Web site, http://www.consumerfinance.gov.
(h) Charging interest. The CFPB may charge interest on any unpaid
bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue from the date of the billing until payment
is received by the CFPB. The CFPB will follow the provisions of the
Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset.
(i) Aggregating requests. Where the CFPB reasonably believes that a
requester or a group of requesters acting together is attempting to
divide a request into a series of requests for the purpose of avoiding
fees, the CFPB may aggregate those requests and charge accordingly. The
CFPB may presume that multiple requests of this type made within a
thirty (30) day period have been made in order to avoid fees. Where
requests are separated by a longer period, the CFPB will aggregate them
only where there exists a solid basis for determining that aggregation
is warranted under all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
Sec. 1070.23 Authority and responsibilities of the Chief FOIA
Officer.
(a) Chief FOIA Officer. The Director authorizes the Chief FOIA
Officer to act upon all requests for agency records, with the exception
of determining appeals from the initial determinations of the Chief
FOIA Officer, which will be decided by the General Counsel. The Chief
FOIA officer shall, subject to the authority of the Director:
(1) Have agency-wide responsibility for efficient and appropriate
compliance with the FOIA;
(2) Monitor implementation of the FOIA throughout the CFPB and keep
the Director and the General Counsel, and the Attorney General
appropriately informed of the CFPB's performance in implementing the
FOIA;
(3) Recommend to the Director such adjustments to agency practices,
policies, personnel and funding as may be necessary to improve the
Chief FOIA Officer's implementation of the FOIA;
(4) Review and report to the Attorney General, through the
Director, at such times and in such formats as the Attorney General may
direct, on the CFPB's performance in implementing the FOIA;
(5) Facilitate public understanding of the purposes of the
statutory exemptions of the FOIA by including concise descriptions of
the exemptions in both the agency's handbook and the agency's annual
report on the FOIA, and by providing an overview, where appropriate, of
certain general categories of agency records to which those exemptions
apply; and
(6) Designate one or more FOIA Public Liaisons.
(b) FOIA Public Liaisons. FOIA Public Liaisons shall report to the
Chief FOIA Officer and shall serve as supervisory officials to whom a
requester can raise concerns about the service the requester has
received from the CFPB's FOIA office, following an initial response
from the FOIA office staff. FOIA Public Liaisons shall be responsible
for assisting in reducing delays, increasing transparency and
understanding of the status of requests, and assisting in the
resolution of disputes.
Subpart C--Disclosure of CFPB Information in Connection With Legal
Proceedings
Sec. 1070.30 Purpose and scope; definitions.
(a) This subpart sets forth the procedures to be followed with
respect to:
(1) Service of summonses and complaints directed to the CFPB, the
Director, or to any CFPB employee in connection with federal or state
litigation arising out of or involving the performance of official
activities of the CFPB; and
(2) Subpoenas, court orders, or other requests or demands for any
CFPB information, whether contained in the files of the CFPB or
acquired by a CFPB employee as part of the performance of that
employee's duties or by virtue of employee's official status.
(b) This subpart does not apply to requests for official
information made pursuant to subparts B, D, and E of this part.
(c) This subpart does not apply to requests for information made in
the course of adjudicating any claims against the CFPB by CFPB
employees (present or former), or applicants for CFPB employment, for
which jurisdiction resides with the U.S. Equal Employment Opportunity
Commission, the U.S. Merit Systems Protection Board, the Office of
Special Counsel, the Federal Labor Relations Authority, or their
successor agencies, or a labor arbitrator operating under a collective
bargaining agreement between the CFPB and a labor organization
representing CFPB employees, or their successor agencies.
(d) This subpart is intended only to inform the public about CFPB
procedures concerning the service of process and responses to
subpoenas, summons, or other demands or requests for official
information or action and is not intended to and does not create, and
may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the CFPB or the
United States.
(e) For purposes of this subpart, and except as the CFPB may
otherwise determine in a particular case:
(1) Demand means a subpoena or order for official information,
whether contained in CFPB records or through testimony, related to or
for possible use in a legal proceeding.
(2) Legal proceeding encompasses all pre-trial, trial, and post-
trial stages of all judicial or administrative actions, hearings,
investigations, or similar proceedings before courts, commissions,
boards, grand juries, or other judicial or quasi-judicial bodies or
tribunals, whether criminal, civil, or administrative in nature, and
whether foreign or domestic. This phrase includes all stages of
discovery as well as formal or informal requests by attorneys or others
involved in legal proceedings.
(3) Official Information means all information of any kind, however
stored, that is in the custody and control of the CFPB or was acquired
by CFPB
[[Page 45387]]
employees, or former employees as part of their official duties or
because of their official status while such individuals were employed
by or served on behalf of the CFPB. Official information also includes
any information acquired by CFPB employees or former employees while
such individuals were engaged in matters related to consumer financial
protection functions prior to the employees' transfer to the CFPB
pursuant to Subtitle F of the Consumer Financial Protection Act of
2010.
(4) Request means any request for official information in the form
of testimony, affidavits, declarations, admissions, responses to
interrogatories, document production, inspections, or formal or
informal interviews, during the course of a legal proceeding, including
pursuant to the Federal Rules of Civil Procedure, the Federal Rules of
Criminal Procedure, or other applicable rules of procedure.
(5) Testimony means a statement in any form, including personal
appearances before a court or other legal tribunal, interviews,
depositions, telephonic, televised, or videographed statements or any
responses given during discovery or similar proceeding in the course of
litigation.
Sec. 1070.31 Service of summonses and complaints.
(a) Only the General Counsel is authorized to receive and accept
summonses or complaints sought to be served upon the CFPB or CFPB
employees sued in their official capacity. Such documents should be
delivered to the Office of the General Counsel, Bureau of Consumer
Financial Protection, 1801 L Street, NW., Washington, DC 20036. This
authorization for receipt shall in no way affect the requirements of
service elsewhere provided in applicable rules and regulations.
(b) If, notwithstanding paragraph (a) of this section, any summons
or complaint described in that paragraph is delivered to an employee of
the CFPB, the employee shall decline to accept the proffered service
and may notify the person attempting to make service of the regulations
set forth herein. If, notwithstanding this instruction, an employee
accepts service of a document described in paragraph (a), the employee
shall immediately notify and deliver a copy of the summons and
complaint to the General Counsel.
(c) When a CFPB employee is sued in an individual capacity for an
act or omission occurring in connection with duties performed on behalf
of the CFPB (whether or not the officer or employee is also sued in an
official capacity), the employee by law is to be served personally with
process. See Fed. R. Civ. P. 4(i)(3). An employee sued in an individual
capacity for an act or omission occurring in connection with duties
performed on behalf of the CFPB shall immediately notify, and deliver a
copy of the summons and complaint to, the General Counsel.
(d) The CFPB will only accept service of process for an employee
sued in his or her official capacity. Documents for which the General
Counsel accepts service in official capacity shall be stamped ``Service
Accepted in Official Capacity Only.'' Acceptance of service shall not
constitute an admission or waiver with respect to jurisdiction,
propriety of service, improper venue, or any other defense in law or
equity available under applicable laws or rules.
Sec. 1070.32 Service of subpoenas, court orders, and other demands
for CFPB information or action.
(a) Except in cases in which the CFPB is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the General Counsel is authorized to receive
and accept subpoenas or other demands or requests directed to the CFPB
or its employees, whether civil or criminal in nature, for:
(1) Records of the CFPB;
(2) Official information including, but not limited to, testimony,
affidavits, declarations, admissions, responses to interrogatories, or
informal statements, relating to material contained in the files of the
CFPB or which any CFPB employee acquired in the course and scope of the
performance of his or her official duties;
(3) Garnishment or attachment of compensation of current or former
employees; or
(4) The performance or non-performance of any official CFPB duty.
(b) Documents described in paragraph (a) should be directed to the
Office of the General Counsel, Bureau of Consumer Financial Protection,
1801 L Street, NW., Washington, DC 20036. This authorization for
receipt shall in no way affect the requirements of service elsewhere
provided in applicable rules and regulations. Acceptance of such
documents by the General Counsel does not constitute a waiver of any
defense that might otherwise exist with respect to service under the
Federal Rules of Civil or Criminal Procedure or other applicable laws
or regulations.
(c) In the event that any demand or request described in paragraph
(a) is sought to be delivered to a CFPB employee other than in the
manner prescribed in paragraph (b) of this section, such employee
shall, after consultation with the General Counsel, decline service and
direct the server of process to these regulations. If the demand or
request is nonetheless delivered to the employee, the employee shall
immediately notify, and deliver a copy of that document to, the General
Counsel.
(d) Except as otherwise provided in this subpart, the CFPB is not
an agent for service, or otherwise authorized to accept on behalf of
its employees, any subpoenas, orders, or other demands of federal or
state courts, or requests from individuals or attorneys, which are not
related to the employees' official duties except upon the express,
written authorization of the individual CFPB employee to whom such
demand or request is directed.
(e) Copies of any subpoenas, show cause orders, or other demands of
federal or state courts, or requests from private individuals or
attorneys that are directed to former employees of the CFPB in
connection with legal proceedings arising out of the performance of
official duties shall also be served upon General Counsel. The CFPB
shall not, however, serve as an agent for service for the former
employee, nor is the CFPB otherwise authorized to accept service on
behalf of its former employees. If the demand involves their official
duties as CFPB employees, former employees who receive subpoenas, show
cause orders, or similar compulsory process of federal or state courts
should also notify, and deliver a copy of the document to, the General
Counsel.
Sec. 1070.33 Testimony and production of documents prohibited unless
approved by the General Counsel.
(a) Unless authorized by the General Counsel, no employee or former
employee of the CFPB shall, in response to a demand or a request
provide oral or written testimony by deposition, declaration,
affidavit, or otherwise concerning any official information.
(b) Unless authorized by the General Counsel, no employee or former
employee shall, in response to a demand or request, produce any
document or any material acquired as part of the performance of that
employee's duties or by virtue of that employee's official status.
Sec. 1070.34 Procedure when testimony or production of documents is
sought; general.
(a) If, as part of a proceeding in which the United States or the
CFPB is not a party, official information is sought
[[Page 45388]]
through a demand for testimony, CFPB records, or other material, the
party seeking such information must (except as otherwise required by
federal law or authorized by the General Counsel) set forth in writing:
(1) The title and forum of the proceeding, if applicable;
(2) A detailed description of the nature and relevance of the
official information sought;
(3) A showing that other evidence reasonably suited to the
requester's needs is not available from any other source; and
(4) If testimony is requested, the intended use of the testimony, a
general summary of the desired testimony, and a showing that no
document could be provided and used in lieu of testimony.
(b) To the extent he or she deems necessary or appropriate, the
General Counsel may also require from the party seeking such
information a plan of all reasonably foreseeable demands, including but
not limited to the names of all employees and former employees from
whom discovery will be sought, areas of inquiry, expected duration of
proceedings requiring oral testimony, identification of potentially
relevant documents, or any other information deemed necessary to make a
determination. The purpose of this requirement is to assist the General
Counsel in making an informed decision regarding whether testimony or
the production of documents or material should be authorized.
(c) The General Counsel may consult or negotiate with an attorney
for a party, or the party if not represented by an attorney, to refine
or limit a request or demand so that compliance is less burdensome.
(d) The General Counsel will notify the CFPB employee and such
other persons as circumstances may warrant of his or her decision
regarding compliance with the request or demand.
Sec. 1070.35 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand described in section 1070.34 of this
subpart is required before the General Counsel renders a decision, the
CFPB will request that the appropriate CFPB attorney or an attorney of
the Department of Justice, as appropriate, take steps to stay,
postpone, or obtain relief from the demand pending decision. If
necessary, the attorney will:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this subpart;
(3) Inform the court or other authority that the demand has been,
or is being, as the case may be, referred for the prompt consideration
of the appropriate CFPB official; and
(4) Respectfully request the court or authority to stay the demand
pending receipt of the requested instructions.
(b) In the event that an immediate demand for production or
disclosure is made in circumstances which would preclude the proper
designation or appearance of an attorney of the CFPB or the Department
of Justice on the employee's behalf, the employee, if necessary, shall
respectfully request from the demanding court or authority a reasonable
stay of proceedings for the purpose of obtaining instructions from the
General Counsel.
Sec. 1070.36 Procedure in the event of an adverse ruling.
If a stay or, or other relief from, the effect of a demand made
pursuant to sections 1070.34 and 1070.35 of this subpart is declined or
not obtained, or if the court or other judicial or quasi-judicial
authority declines to stay the effect of the demand made pursuant to
sections 1070.34 and 1070.35 of this subpart, or if the court or other
authority rules that the demand must be complied with irrespective of
the General Counsel's instructions not to produce the material or
disclose the information sought, the employee upon whom the demand has
been made shall respectfully decline to comply with the demand citing
this subpart and United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 1070.37 Considerations in determining whether the CFPB will
comply with a demand or request.
(a) In deciding whether to comply with a demand or request, CFPB
officials and attorneys shall consider, among other pertinent
considerations:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether the number of similar requests would have a cumulative
effect on the expenditure of CFPB resources;
(3) Whether compliance is appropriate under the relevant
substantive law concerning privilege or disclosure of information;
(4) The public interest;
(5) The need to conserve the time of CFPB employees for the conduct
of official business;
(6) The need to avoid spending time and money of the United States
for private purposes;
(7) The need to maintain impartiality between private litigants in
cases where a substantial government interest is not implicated;
(8) Whether compliance would have an adverse effect on performance
by the CFPB of its mission and duties; and
(9) The need to avoid involving the CFPB in controversial issues
not related to its mission.
(b) Among those demands and requests in response to which
compliance will not ordinarily be authorized are those with respect to
which any of the following factors, inter alia, exist:
(1) Compliance would violate a statute or applicable rule of
procedure;
(2) Compliance would violate a specific regulation or Executive
order;
(3) Compliance would reveal information properly classified in the
interest of national security;
(4) Compliance would reveal confidential or privileged commercial
or financial information or trade secrets without the owner's consent;
(5) Compliance would compromise the integrity of the deliberative
processes of the CFPB;
(6) Compliance would not be appropriate or necessary under the
relevant substantive law governing privilege;
(7) Compliance would reveal confidential information; or
(8) Compliance would interfere with ongoing investigations or
enforcement proceedings, compromise constitutional rights, or reveal
the identity of a confidential informant.
(c) The CFPB may condition disclosure of official information
pursuant to a request or demand on the entry of an appropriate
protective order.
Sec. 1070.38 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR
2635.805, CFPB employees or former employees shall not provide opinion
or expert testimony based upon information which they acquired in the
scope and performance of their official CFPB duties, except on behalf
of the CFPB or the United States or a party represented by the CFPB, or
the Department of Justice, as appropriate.
(b) Any expert or opinion testimony by a former employee of the
CFPB shall be excepted from paragraph (a) of this section where the
testimony involves only general expertise gained while employed at the
CFPB.
(c) Upon a showing by the requestor of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the
[[Page 45389]]
interests of the United States, the General Counsel may, consistent
with 5 CFR 2635.805, exercise his or her discretion to grant special,
written authorization for CFPB employees, or former employees, to
appear and testify as expert witnesses at no expense to the United
States.
(d) If, despite the final determination of the General Counsel, a
court of competent jurisdiction or other appropriate authority orders
the appearance and expert or opinion testimony of a current or former
CFPB employee, that person shall immediately inform the General Counsel
of such order. If the General Counsel determines that no further legal
review of or challenge to the court's order will be made, the CFPB
employee, or former employee, shall comply with the order. If so
directed by the General Counsel, however, the employee, or former
employee, shall respectfully decline to testify.
Subpart D--Confidential Information
Sec. 1070.40 Purpose and scope.
This subpart does not apply to requests for official information
made pursuant to subparts B, C, or E of this part.
Sec. 1070.41 Non-disclosure of confidential information.
(a) Non-disclosure. Except as required by law or as provided in
this part, no employee or former employee of the CFPB, or any other
person in possession of confidential information, shall disclose such
confidential information by any means (including written or oral
communications) or in any format (including paper and electronic
formats), to:
(1) Any person who is not an employee of the CFPB; or
(2) Any CFPB employee when the disclosure of such confidential
information to that employee is not relevant to the performance of the
employee's assigned duties.
(b) Disclosures to contractors and consultants. Nothing in this
subpart shall limit the discretion of the CFPB to provide confidential
information to consultants or contractors retained by the CFPB,
provided that such consultants or contractors agree in writing to treat
such confidential information in accordance with these rules, federal
laws and regulations that apply to federal agencies for the protection
of the confidentiality of personally identifiable information and for
data security and integrity, as well as any additional conditions or
limitations that the CFPB may impose.
(c) Disclosure of materials derived from confidential information.
Nothing in this subpart shall limit the discretion of the CFPB to
disclose materials that it derives from or creates using confidential
information to the extent that such materials do not identify, either
directly or indirectly, any particular person to whom the confidential
information pertains.
(d) Disclosability of confidential information provided to the CFPB
by other agencies. Nothing in this subpart requires or authorizes the
CFPB to disclose confidential information that another agency has
provided to the CFPB to the extent that such disclosure contravenes
applicable law or the terms of any agreement that exists between the
CFPB and the agency to govern the CFPB's treatment of information that
the agency provides to the CFPB.
Sec. 1070.42 Disclosure of confidential supervisory information to
and by supervised financial institutions.
(a) Discretionary disclosure of confidential supervisory
information to supervised financial institutions. The CFPB may in its
discretion, and to the extent consistent with applicable law, disclose
confidential supervisory information concerning a supervised financial
institution to that institution.
(b) Disclosure of confidential supervisory information by
supervised financial institution.
(1) Any supervised financial institution lawfully in possession of
confidential supervisory information of the CFPB pursuant to this
section may disclose such information, or portions thereof, to its
directors, officers, and employees, and to its parent company, if any,
and its parent company's directors, officers, and employees, to the
extent that the disclosure of such confidential supervisory information
is relevant to the performance of such individuals' assigned duties.
(2) Any supervised financial institution lawfully in possession of
confidential supervisory information of the CFPB pursuant to this
section may disclose such information, or portions thereof, to any
certified public accountant, legal counsel, or consultant employed by
the supervised financial institution or its parent company, if any,
provided that the supervised financial institution shall:
(i) Take reasonable steps to ensure that such certified public
accountant, legal counsel, or consultant does not utilize, make or
retain copies of, or disclose confidential supervisory information for
any purpose, without the prior written approval of the CFPB's General
Counsel, except as is necessary to provide advice to the supervised
financial institution, its parent company, or the officers, directors,
and employees of such supervised financial institution and parent
company; and
(ii) Maintain a written account of all disclosures of confidential
supervisory information that the supervised financial institution makes
to its certified public accountant, legal counsel, or consultant, as
well as steps it has taken to comply with paragraph (b)(2)(i) of this
section, and provide the CFPB with a copy of such written account upon
request or demand of the CFPB.
Sec. 1070.43 Disclosure of confidential information to law
enforcement agencies and other government agencies.
(a) Required disclosure of confidential information to government
agencies. The CFPB shall:
(1) Disclose a draft of a report of examination of a supervised
financial institution prior to its finalization, in accordance with 12
U.S.C. 5515(e)(1)(C), and disclose a final report of examination,
including any and all revisions made to such a report, to a federal or
state agency with jurisdiction over that supervised financial
institution, provided that the CFPB receives from the agency reasonable
assurances as to the confidentiality of the information disclosed; and
(2) Disclose confidential consumer complaint information to a
federal or state agency to facilitate preparation of reports to
Congress required by 12 U.S.C. 5493(b)(3)(C) and to facilitate the
CFPB's supervision and enforcement activities and its monitoring of the
market for consumer financial products and services, provided that the
agency shall first give written assurance to the CFPB that it will
maintain such information in a manner that conforms to the standards
that apply to federal agencies for the protection of the
confidentiality of personally identifiable information and for data
security and integrity.
(b) Discretionary disclosure of confidential information to
government agencies.
(1) Upon receipt of a written request that contains the information
required by paragraph (b)(2) of this paragraph, the CFPB may, in its
sole discretion, disclose confidential information to a federal or
state agency to the extent that disclosure of the information is
relevant to the exercise of the agency's statutory or regulatory
authority or, with respect to the disclosure of confidential
supervisory information, to a federal or state agency having
jurisdiction over a supervised financial institution.
[[Page 45390]]
(2) To obtain access to confidential information pursuant to
paragraph (b)(1) of this section, an authorized officer or employee of
the agency shall submit a written request to the General Counsel, who
shall act upon the request in consultation with the CFPB's Associate
Director for Supervision and Enforcement or other appropriate CFPB
personnel. The request shall include the following:
(i) A description of the particular information, kinds of
information, and where possible, the particular documents to which
access is sought;
(ii) A statement of the purpose for which the information will be
used;
(iii) A statement identifying the agency's legal authority for
requesting the documents;
(iv) A statement as to whether the requested disclosure is
permitted or restricted in any way by applicable law or regulation; and
(v) A commitment that the agency will maintain the requested
confidential information in a manner that conforms to the standards
that apply to federal agencies for the protection of the
confidentiality of personally identifiable information and for data
security and integrity, as well as any additional conditions or
limitations that the CFPB may impose.
(c) State requests for information other than confidential
information. A request or demand by a state agency for information or
records of the CFPB other than confidential information shall be made
and considered in accordance with the rules set forth elsewhere in this
part.
(d) Negotiation of standing requests. The CFPB may negotiate terms
governing the exchange of confidential information with federal or
state agencies on a standing basis, as appropriate.
Sec. 1070.44 Disclosure of confidential consumer complaint
information.
Nothing in this part shall limit the discretion of the CFPB, to the
extent permitted by law, to disclose confidential consumer complaint
information as it deems necessary to investigate, resolve, or otherwise
respond to consumer complaints or inquiries concerning financial
institutions or consumer financial products and services.
Sec. 1070.45 Affirmative disclosure of confidential information.
(a) The CFPB may disclose confidential investigative information
and other confidential information, in accordance with applicable law,
as follows:
(1) To a CFPB employee, as that term is defined in Sec. 1070.2 of
this part and in accordance with Sec. 1070.41 of this subpart;
(2) To either House of the Congress or to an appropriate committee
or subcommittee of the Congress, as provided by 12 U.S.C. 5562(d)(2);
(3) In investigational hearings and witness interviews, as is
reasonably necessary, at the discretion of the CFPB;
(4) In an administrative or court proceeding to which the CFPB is a
party. In the case of confidential investigatory material that contains
any trade secret or privileged or confidential commercial or financial
information, as claimed by designation by the submitter of such
material, or confidential supervisory information, the submitter may
seek an appropriate protective or in camera order prior to disclosure
of such material in a proceeding;
(5) To law enforcement and other government agencies in accordance
with this subpart; or
(6) As required under any other applicable law.
Sec. 1070.46 Other disclosures of confidential information.
(a) To the extent permitted by law and as authorized by the
Director in writing, the CFPB may disclose confidential information
other than as set forth in this subpart.
(b) Prior to disclosing confidential information pursuant to
paragraph (a) of this section, the CFPB may, as it deems appropriate
under the circumstances, provide written notice to the person to whom
the confidential information pertains that the CFPB intends to disclose
its confidential information in accordance with this section.
(c) The authority of the Director to disclosure confidential
information pursuant to paragraph (a) shall not be delegated. However,
a person authorized to perform the functions of the Director in
accordance with law may exercise the authority of the Director as set
forth in this section.
Sec. 1070.47 Other rules regarding the disclosure of confidential
information.
(a) Further disclosure prohibited.
(1) All confidential information made available under this subpart
shall remain the property of the CFPB, unless the General Counsel
provides otherwise in writing.
(2) Except as set forth in this section, no supervised financial
institution, federal or state agency, any officer, director, employee
or agent thereof, or any other person to whom the confidential
information is made available under this subpart, may further disclose
such confidential information without the prior written permission of
the General Counsel.
(3) A supervised financial institution, federal or state agency,
any officer, director, employee or agent thereof, or any other person
to whom the CFPB's confidential information is made available under
this subpart, that receives from a third party a legally enforceable
demand or request for such confidential information (including but not
limited to, a subpoena or discovery request or a request made pursuant
to the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act of
1974, 5 U.S.C. 552a, or any state analogue to such statutes) should:
(i) Inform the General Counsel of such request or demand in writing
and provide the General Counsel with a copy of such request or demand
as soon as practicable after receiving it;
(ii) In the case of a request made pursuant to the Freedom of
Information Act, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, or any
state analogue to such statutes, advise the requester that:
(A) The confidential information sought may not be disclosed
insofar as it is the property of the CFPB; and
(B) Any request for the disclosure of such confidential information
is properly directed to the CFPB pursuant to its regulations set forth
in this part.
(iii) In the case of all other types of requests or demands,
consult with the General Counsel before complying with the request or
demand, and to the extent applicable:
(A) Give the CFPB a reasonable opportunity to respond to the demand
or request;
(B) Assert all reasonable and appropriate legal exemptions or
privileges that the CFPB may request be asserted on its behalf; and
(C) Consent to a motion by the CFPB to intervene in any action for
the purpose of asserting and preserving any claims of confidentiality
with respect to any confidential information.
(4) Nothing in this section shall prevent a supervised financial
institution, federal or state agency, any officer, director, employee
or agent thereof, or any other person to whom the information is made
available under this subpart from complying with a legally valid and
enforceable United States federal court order compelling production of
the CFPB's confidential information or, if compliance is deemed
compulsory, with a request or demand from either House of the Congress
or a duly authorized committee of the Congress. To the extent that
compulsory disclosure of confidential information occurs as set forth
in this paragraph, the
[[Page 45391]]
producing party shall use its best efforts to ensure that the requestor
secures an appropriate protective order or, if the requestor is a
legislative body, use its best efforts to obtain the commitment or
agreement of the legislative body that it will maintain the
confidentiality of the confidential information.
(5) No person obtaining access to confidential information pursuant
to this subpart may make a personal copy of any such information, and
no person may remove confidential information from the premises of the
institution or agency in possession of such information except as
permitted by specific language in this regulation or by the CFPB.
(b) Additional conditions and limitations. The CFPB may impose any
additional conditions or limitations on disclosure or use under this
subpart that it determines are necessary.
(c) Non-waiver. The provision by the CFPB of any confidential
information pursuant to this subpart does not constitute a waiver, or
otherwise affect, any privilege any agency or person may claim with
respect to such information under federal law.
Subpart E--The Privacy Act
Sec. 1070.50 Purpose and scope; definitions.
(a) This subpart implements the provisions of the Privacy Act of
1974, 5 U.S.C. 552a (the ``Privacy Act''). The regulations apply to all
records maintained by the CFPB and which are retrieved by an
individual's name or personal identifier. The regulations set forth the
procedures for requests for access to, or amendment of, records
concerning individuals that are contained in systems of records
maintained by the CFPB. These regulations should be read in conjunction
with the Privacy Act, which provides additional information about this
topic.
(b) For purposes of this subpart, the following definitions apply:
(1) The term Chief Privacy Officer means the Chief Information
Officer of the CFPB or any CFPB employee to whom the Chief Information
Officer has delegated authority to act under this part;
(2) The term guardian means the parent of a minor, or the legal
guardian of any individual who has been declared to be incompetent due
to physical or mental incapacity or age by a court of competent
jurisdiction;
(3) Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence;
(4) Maintain includes maintain, collect, use, or disseminate;
(5) Record means any item, collection, or grouping of information
about an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voiceprint or a photograph;
(6) Routine use means the disclosure of a record that is compatible
with the purpose for which it was collected;
(7) System of records means a group of any records under the
control of an agency from which information is retrieved by the name of
the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual; and
(8) Statistical record means a record in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual, except as provided by 13 U.S.C. 8.
Sec. 1070.51 Authority and responsibilities of the Chief Privacy
Officer.
The Chief Privacy Officer is authorized to:
(a) Respond to requests for access to, accounting of, or amendment
of records contained in a system of records maintained by the CFPB;
(b) Approve the publication of new systems of records and amend
existing systems of record; and
(c) File any necessary reports related to the Privacy Act.
Sec. 1070.52 Fees.
(a) Copies of records. The CFPB shall provide the requester with
copies of records requested pursuant to section 1070.53 of this subpart
at the same cost charged for duplication of records under Sec. 1070.22
of this part.
(b) No fee. The CFPB will not charge a fee if:
(1) Total charges associated with a request are less than $5, or
(2) The requester is a CFPB employee or former employee, or an
applicant for employment with the CFPB, and request pertains to that
employee, former employee, or applicant.
Sec. 1070.53 Request for access to records.
(a) Procedures for making a request for access to records. An
individual's requests for access to records that pertain to that
individual (or to the individual for whom the requester serves as
guardian) may be submitted to the CFPB in writing or by electronic
means.
(1) If submitted in writing, the request shall be labeled ``Privacy
Act Request'' and shall be addressed to the Chief Privacy Officer,
Bureau of Consumer Financial Protection, 1801 L Street, NW.,
Washington, DC 20036.
(2) If submitted by electronic means, the request shall be labeled
``Privacy Act Request'' and the request shall be submitted as set forth
at the CFPB's Web site, http://www.consumerfinance.gov.
(b) Content of a request for access to records. A request for
access to records shall include:
(1) A statement that the request is made pursuant to the Privacy
Act;
(2) The name of the system of records that the requester believes
contains the record requested, or a description of the nature of the
record sought in detail sufficient to enable CFPB personnel to locate
the system of records containing the record with a reasonable amount of
effort;
(3) Whenever possible, a description of the nature of the record
sought, the date of the record or the period in which the requester
believes that the record was created, and any other information that
might assist the CFPB in identifying the record sought (e.g., maiden
name, dates of employment, account information, etc.).
(4) Information necessary to verify the requester's identity
pursuant to paragraph (c) of this section;
(5) The mailing or email address where the CFPB's response or
further correspondence should be sent.
(c) Verification of identity. To obtain access to the CFPB's
records pertaining to a requester, the requester shall provide proof to
the CFPB of the requester's identity as provided below.
(1) In general, the following will be considered adequate proof of
a requester's identity:
(i) A photocopy of two forms of identification, including one form
of identification that bears the requester's photograph, and one form
of identification that bears the requester's signature;
(ii) A photocopy of a single form of identification that bears both
the requester's photograph and signature; or
(iii) A statement swearing or affirming the requester's identity
and to the fact that the requester understands the penalties provided
in 5 U.S.C. 552a(i)(3).
(2) Notwithstanding paragraph (c)(1) of this section, a designated
official may require additional proof of the requester's identity
before action will be taken on any request, if such official determines
that it is necessary to protect against unauthorized disclosure of
information in a particular case. In
[[Page 45392]]
addition, if a requester seeks records pertaining to an individual in
the requester's capacity as that individual's guardian, the requester
shall be required to provide adequate proof of the requester's legal
relationship before action will be taken on any request.
(d) Request for accounting of previous disclosures. An individual
may request an accounting of previous disclosures of records pertaining
to that individual in a system of records as provided in 5 U.S.C.
552a(c). Such requests should conform to the procedures and form for
requests for access to records set forth in subsection (a) and (b) of
this section.
Sec. 1070.54 CFPB procedures for responding to a request for access.
(a) Acknowledgment and response. The CFPB will provide written
acknowledgement of the receipt of a request within twenty (20) business
days from the receipt of the request and will, where practicable,
respond to each request within that twenty (20) day period. When a full
response is not practicable within the twenty (20) day period, the CFPB
will respond as promptly as possible.
(b) Disclosure.
(1) When the CFPB discloses information in response to a request,
the CFPB will make the information available for inspection and copying
during regular business hours as provided in Sec. 1070.13 of this
part, or the CFPB will mail it or email it the requester, if feasible,
upon request.
(2) The requester may bring with him or her anyone whom the
requester chooses to see the requested material. All visitors to the
CFPB's buildings must comply with the applicable security procedures.
(c) Denial of a request. If the CFPB denies a request made pursuant
to Sec. 1070.53 of this subpart, it will inform the requester in
writing of the reason(s) for denial and the procedures for appealing
the denial.
Sec. 1070.55 Special procedures for medical records.
If an individual requests medical or psychological records pursuant
to Sec. 1070.53 of this subpart, the CFPB will disclose them directly
to the requester unless the CFPB determines that such disclosure could
have an adverse effect on the requester. If the CFPB makes that
determination, the CFPB will provide the information to a licensed
physician or other appropriate representative that the requester
designates, who may disclose those records to the requester in a manner
he or she deems appropriate.
Sec. 1070.56 Request for amendment of records.
(a) Procedures for making request.
(1) If an individual wishes to amend a record that pertains to that
individual in a system of records, that individual may submit a request
in writing or by electronic means to the Chief Privacy Officer, as set
forth in section 1070.53(a). The request shall be labeled ``Privacy Act
Amendment Request.''
(2) A request for amendment of a record must:
(i) Identify the system of records containing the record for which
amendment is requested;
(ii) Specify the portion of that record requested to be amended;
and
(iii) Describe the nature and reasons for each requested amendment.
(3) When making a request for amendment of a record, the CFPB will
require a requester to verify his or her identity under the procedures
set forth in Sec. 1070.53(c) of this subpart, unless the requester has
already done so in a related request for access or amendment.
(b) Burden of proof. A request for amendment of a record must
explain why the requester believes the record is not accurate,
relevant, timely, or complete. The requester has the burden of proof
for demonstrating the appropriateness of the requested amendment, and
the requester must provide relevant and convincing evidence in support
of the request.
Sec. 1070.57 CFPB review of a request for amendment of records.
(a) Time limits. The CFPB will acknowledge a request for amendment
of records within ten (10) business days after it receives the request.
In the acknowledgment, the CFPB may request additional information
necessary for a determination on the request for amendment. The CFPB
will make a determination on a request to amend a record promptly.
(b) Contents of response to a request for amendment. When the CFPB
responds to a request for amendment, the CFPB will inform the requester
in writing whether the request is granted or denied, in whole or in
part. If the CFPB grants the request, it will take the necessary steps
to amend the record and, when appropriate and possible, notify prior
recipients of the record of its action. If the CFPB denies the request,
in whole or in part, it will inform the requester in writing:
(1) Why the request (or portion of the request) was denied;
(2) That the requester has a right to appeal; and
(3) How to file an appeal.
Sec. 1070.58 Appeal of adverse determination of request for access
or amendment.
(a) Appeal. A requester may appeal a denial of a request made
pursuant to Sec. Sec. 1070.53 or 1070.56 of this subpart within ten
(10) business days after the CFPB notifies the requester that it has
denied the request.
(b) Content of Appeal. A requester may submit an appeal in writing
or by electronic means as set forth in section 1070.53(a). The appeal
shall be addressed to the General Counsel and labeled ``Privacy Act
Appeal.'' The appeal must also:
(1) Specify the background of the request; and
(2) Provide reasons why the requester believes the denial is in
error.
(c) Determination. The General Counsel will make a determination as
to whether to grant or deny an appeal within thirty (30) business days
from the date it is received, unless the General Counsel extends the
time for good cause.
(1) If the General Counsel grants an appeal regarding a request for
amendment, he or she will take the necessary steps to amend the record
and, when appropriate and possible, notify prior recipients of the
record of its action.
(2) If the General Counsel denies an appeal, he or she will inform
the requester of such determination in writing, including the reasons
for the denial, and the requester's right to file a statement of
disagreement and to have a court review its decision.
(d) Statement of disagreement.
(1) If the General Counsel denies an appeal regarding a request for
amendment, a requester may file a concise statement of disagreement
with the denial. The CFPB will maintain the requester's statement with
the record that the requester sought to amend and any disclosure of the
record will include a copy of the requester's statement of
disagreement.
(2) When practicable and appropriate, the CFPB will provide a copy
of the statement of disagreement to any prior recipients of the record.
Sec. 1070.59 Restrictions on disclosure.
The CFPB will not disclose any record about an individual contained
in a system of records to any person or agency without the prior
written consent of that individual unless the disclosure is authorized
by 5 U.S.C. 552a(b). Disclosures authorized by 5 U.S.C. 552a(b) include
disclosures that are compatible with one or more routine uses that are
contained within the CFPB's Systems of Records Notices, which are
available on the CFPB's Web
[[Page 45393]]
site, at http://www.consumerfinance.gov.
Sec. 1070.60 Exempt records.
(a) Exempt systems of records. Pursuant to 5 U.S.C. 552a(k)(2), the
CFPB exempts the systems of records listed below from 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G)-(H), and (f), and Sec. Sec. 1070.53
through 1070.59 of this subpart, to the extent that such systems of
records contain investigatory materials compiled for law enforcement
purposes, provided, however, that if any individual is denied any
right, privilege, or benefit to which he or she would otherwise be
entitled under federal law, or for which he or she would otherwise be
eligible as a result of the maintenance of such material, such material
shall be disclosed to such individual, except to the extent that the
disclosure of such material would reveal the identity of a source who
furnished information to the CFPB under an express promise that the
identity of the source would be held in confidence:
(1) CFPB.002 Depository Institution Supervision Database
(2) CFPB.003 Non-Depository Institution Supervision Database
(3) CFPB.004 Enforcement Database
(b) Information compiled for civil actions or proceedings. This
regulation does not permit an individual to have access to any
information compiled in reasonable anticipation of a civil action or
proceeding.
Sec. 1070.61 Training; rules of conduct; penalties for non-
compliance.
(a) Training. The Chief Privacy Officer shall institute a training
program to instruct CFPB employees and employees of Government
contractors covered by 5 U.S.C. 552a(m), who are involved in the
design, development, operation or maintenance of any CFPB system of
records, on a continuing basis with respect to the duties and
responsibilities imposed on them and the rights conferred on
individuals by the Privacy Act, the regulations in this part, and any
other related regulations. Such training shall provide suitable
emphasis on the civil and criminal penalties imposed on the CFPB and
the individual employees by the Privacy Act for non-compliance with
specified requirements of the Act as implemented by the regulations in
this subpart.
(b) Rules of conduct. The following rules of conduct are applicable
to employees of the CFPB (including, to the extent required by the
contract or 5 U.S.C. 552a(m), Government contractors and employees of
such contractors), who are involved in the design, development,
operation or maintenance of any system of records, or in maintain any
records, for or on behalf of the CFPB.
(1) The head of each office of the CFPB shall be responsible for
assuring that employees subject to such official's supervision are
advised of the provisions of the Privacy Act, including the criminal
penalties and civil liabilities provided therein, and the regulations
in this subpart, and that such employees are made aware of their
individual and collective responsibilities to protect the security of
personal information, to assure its accuracy, relevance, timeliness and
completeness, to avoid unauthorized disclosure either orally or in
writing, and to insure that no system of records is maintained without
public notice.
(2) Employees of the CFPB involved in the design, development,
operation, or maintenance of any system of records, or in maintaining
any record shall:
(i) Collect no information of a personal nature from individuals
unless authorized to collect it to achieve a function or carry out a
responsibility of the CFPB;
(ii) Collect information, to the extent practicable, directly from
the individual to whom it relates;
(iii) Inform each individual asked to supply information, on the
form used to collect the information or on a separate form that can be
retained by the individual--
(A) The authority (whether granted by statute, or by executive
order of the President) which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary;
(B) The principal purpose or purposes for which the information is
intended to be used;
(C) The routine uses which may be made of the information, as
published pursuant to 5 U.S.C. 552a(e)(4)(D); and
(D) The effects on the individual, if any, of not providing all or
any part of the requested information.
(iv) Not collect, maintain, use or disseminate information
concerning an individual's religious or political beliefs or activities
or membership in associations or organizations, unless expressly
authorized by statute or by the individual about whom the record is
maintained or unless pertinent to and within the scope of an authorized
law enforcement activity;
(v) Advise their supervisors of the existence or contemplated
development of any record system which is capable of retrieving
information about individuals by individual identifier;
(vi) Assure that no records maintained in a CFPB system of records
are disseminated without the permission of the individual about whom
the record pertains, except when authorized by 5 U.S.C. 552a(b);
(vii) Maintain and process information concerning individuals with
care in order to insure that no inadvertent disclosure of the
information is made either within or without the CFPB;
(viii) Prior to disseminating any record about an individual to any
person other than an agency, unless the dissemination is made pursuant
to 5 U.S.C. 552a(b)(2) of this section, make reasonable efforts to
assure that such records are accurate, complete, timely, and relevant
for agency purposes; and
(ix) Assure that an accounting is kept in the prescribed form, of
all dissemination of personal information outside the CFPB, whether
made orally or in writing, unless disclosed under 5 U.S.C. 552 or
subpart B of this part.
(3) The head of each office of the CFPB shall, at least annually,
review the record systems subject to their supervision to insure
compliance with the provisions of the Privacy Act of 1974 and the
regulations in this subpart.
Sec. 1070.62 Preservation of records.
The CFPB will preserve all correspondence pertaining to the
requests that it receives under this part, as well as copies of all
requested records, until disposition or destruction is authorized by
title 44 of the United States Code or the National Archives and Records
Administration's General Records Schedule 14. Records will not be
disposed of while they are the subject of a pending request, appeal,
proceeding, or lawsuit.
Sec. 1070.63 Use and collection of social security numbers.
The CFPB will ensure that employees authorized to collect
information are aware:
(a) That individuals may not be denied any right, benefit, or
privilege as a result of refusing to provide their social security
numbers, unless the collection is authorized either by a statute or by
a regulation issued prior to 1975; and
(b) That individuals requested to provide their social security
numbers must be informed of:
(1) Whether providing social security numbers is mandatory or
voluntary;
(2) Any statutory or regulatory authority that authorizes the
collection of social security numbers; and
(3) The uses that will be made of the numbers.
[[Page 45394]]
Dated: July 22, 2011.
Sam Valverde,
Deputy Executive Secretary, Department of the Treasury.
[FR Doc. 2011-19038 Filed 7-27-11; 8:45 am]
BILLING CODE 4810-25-P