64698 Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Proposed Rules 

1The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See 

Commission rule 4.9(c), 16 CFR 4.9(c).

2 In relevant part, Section 212(b) of the FACT Act 

provides: 

(b) DISCLOSURE OF CREDIT SCORES—Section 

609 of the Fair Credit Reporting Act (15 U.S.C. 

1681g), as amended by this Act, is amended by 

adding at the end the following: 

‘‘(f) DISCLOSURE OF CREDIT SCORES—

‘‘(1) IN GENERAL—Upon the request of a 

consumer for a credit score, a consumer reporting 

agency shall supply to the consumer a statement 

indicating that the information and credit scoring 

model may be different than the credit score that 

may be used by the lender, and a notice which shall 

include—

‘‘(A) the current credit score of the consumer or 

the most recent credit score of the consumer that 

was previously calculated by the credit reporting 

agency for a purpose related to the extension of 

credit; 

‘‘(B) the range of possible credit scores under the 

model used; 

‘‘(C) all of the key factors that adversely affected 

the credit score of the consumer in the model used, 

the total number of which shall not exceed 4 * * *; 

‘‘(D) the date on which the credit score was 

created; and 

‘‘(E) the name of the person or entity that 

provided the credit score or credit file upon which 

the credit score was created.’’

3FCRA section 609(f)(4).

4Section 609(f)(7)(A) provides that ‘‘In complying 

with this subsection, a consumer reporting agency 

shall supply the consumer with [1] a credit score 

FEDERAL TRADE COMMISSION

16 CFR Chapter I 

[RIN 3084–AA94] 

Fair and Reasonable Fee for Credit 

Score Disclosure

AGENCY: Federal Trade Commission 

(FTC).

ACTION: Advance notice of proposed 

rulemaking, request for comment. 

SUMMARY: Section 212(b) of the Fair and 

Accurate Credit Transactions Act of 

2003 (‘‘FACT Act’’) amends the Fair 

Credit Reporting Act (‘‘FCRA’’) by 

adding a new section 609(f), which 

mandates that consumer reporting 

agencies make available upon request a 

consumer’s credit score, together with 

other information. Section 609(f)(8) 

provides that a consumer reporting 

agency may charge a ‘‘fair and 

reasonable fee, as determined by the 

[Federal Trade] Commission’’ for such 

disclosure. 

In this document, the Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

is publishing for comment an advance 

notice of proposed rulemaking that 

would implement the requirement in 

section 609(f)(8) of the FCRA that it 

determine a fair and reasonable fee to be 

charged by a consumer reporting agency 

for providing the information required 

under FCRA section 609(f).

DATES: Comments must be received by 

January 5, 2005.

ADDRESSES: Interested parties are 

invited to submit written comments. 

Comments should refer to ‘‘FACTA 

Credit Score Fee, Project No. R411004’’

to facilitate the organization of 

comments. A comment filed in paper 

form should include this reference both 

in the text and on the envelope, and 

should be mailed to the following 

address: Federal Trade Commission/

Office of the Secretary, Room H–159 

(Annex O), 600 Pennsylvania Avenue, 

NW., Washington, DC 20580. The FTC 

is requesting that any comment filed in 

paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions. 

Comments containing confidential 

material must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’

and must comply with Commission 

Rule 4.9(c). 16 CFR 4.9(c) (2004).1

Comments filed in electronic form 

should be submitted by clicking on the 

following Web link: https://

secure.commentworks.com/ftcCreditScoreFee and following the 

instructions on the Web-based form. To 

ensure that the Commission considers 

an electronic comment, you must file it 

on the Web-based form at the https://

secure.commentworks.com/ftcCreditScoreFee weblink. You may also 

visit http://www.regulations.gov to read 

this advance notice of proposed 

rulemaking, and may file an electronic 

comment through that Web site. The 

Commission will consider all comments 

that regulations.gov forwards to it. 

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. All timely and responsive 

public comments received by the 

Commission, whether filed in paper or 

in electronic form, will be considered by 

the Commission, and will be available 

to the public on the FTC Web site, to the 

extent practicable, at http://www.ftc.gov.

As a matter of discretion, the FTC makes 

every effort to remove home contact 

information for individuals from public 

comments it receives before placing 

those comments on the FTC Web site. 

More information, including routine 

uses permitted by the Privacy Act, may 

be found in the FTC’s privacy policy, at 

http://www.ftc.gov/privacy.htm.

FOR FURTHER INFORMATION CONTACT:

Christopher Keller, Attorney, (202) 326–

3224, Division of Financial Practices, 

Federal Trade Commission, 601 New 

Jersey Avenue, NW., Washington, DC 

20580.

SUPPLEMENTARY INFORMATION: 

I. Background 

The FCRA, enacted in 1970, sets 

standards for the collection, 

communication, and use of information 

bearing on a consumer’s credit 

worthiness, credit standing, credit 

capacity, character, general reputation, 

personal characteristics, or mode of 

living that is collected and 

communicated by consumer reporting 

agencies. 15 U.S.C. 1681–1681x. Since 

its inception in 1970, the FCRA has 

provided generally that a consumer may 

learn of the information that consumer 

reporting agencies maintain concerning 

the consumer. As originally enacted, the 

FCRA provided that a consumer could 

obtain disclosure of the ‘‘nature and 

substance’’ of the information in his or 

her file at the consumer reporting 

agency. 

In 1996, the Consumer Credit 

Reporting Reform Act, Pub. L. 104–208, 

110 Stat. 3009, amended the FCRA to 

provide that a consumer may obtain 

disclosure of ‘‘[a]ll information in the 

consumer’s file at the time of the request 

* * *,’’ as well as a summary of 

consumer rights under the FCRA. 

However, the 1996 amendment 

specifically excluded from the 

information required to be disclosed to 

consumers ‘‘any information concerning 

credit scores or any other risk scores or 

predictors relating to the consumer.’’

The Fair and Accurate Credit 

Transactions Act of 2003, Pub. L. 108–

159, 117 Stat. 1952, amends the FCRA 

to add a new subsection 609(f) to the 

FCRA, giving consumers the right to 

obtain disclosure of credit scores and 

related information.2 The requirement 

to disclose a credit score applies to 

consumer reporting agencies that 

‘‘distribute scores that are used in 

connection with residential real 

property loans,’’ or ‘‘develop scores that 

assist credit providers in understanding 

the general credit behavior of a 

consumer and predicting the future 

credit behavior of the consumer.’’3 The 

provision requires only the disclosure of 

a ‘‘mortgage score’’ or ‘‘educational 

score,’’ and does not require disclosure 

of other risk scores based on credit 

information, such as those used to 

underwrite auto loans, personal loans, 

credit cards, or insurance products.4

Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Proposed Rules 64699

that is derived from a credit scoring model that is 

widely distributed to users by that consumer 

reporting agency in connection with residential real 

property loans or [2] with a credit score that assists 

the consumer in understanding the credit scoring 

assessment of the credit behavior of the consumer 

and predictions about the future credit behavior of 

the consumer.’’ Section 609(f)(7), 15 U.S.C. 

1681g(f)(7). Thus, consumer reporting agencies may 

provide consumers with a score derived from an 

actual model used to calculate scores for mortgage 

underwriting, or may opt to provide consumers 

with a so-called ‘‘educational score,’’ which shows 

a consumer how scoring works and the perceived 

credit risk that the consumer presents relative to 

other consumers.

5See http://www.ftc.gov/bcp/creditscoring/

present/index.htm (describing the development and 

application of scoring models). Section 212(c) of the 

FACT Act (‘‘Disclosure of Credit Scores by Certain 

Mortgage Lenders’’), which adds subsection (g) to 

section 609 of the FCRA, specifies the text of an 

educational disclosure notice that mortgage lenders 

are required to supply to consumers. The notice 

describes how scores are derived and explains their 

significance to the consumer. Section 609(g)(1)(A) 

and (D); 15 U.S.C. 1681g(g)(1)(A), (D).

6For example, in April 2004, Intersections, Inc., 

a company specializing in providing various credit 

information products direct to consumers, made an 

initial public offering of common stock. See 

American Banker, ‘‘Young Credit Monitoring Firm 

Gets Cap One Feather in Cap,’’ Sept. 15, 2004.

7See, e.g., http://www.myfico.com/.

8See, e.g., http://www.transunion.com/; http://

www.experian.com/; https://

www.econsumer.equifax.com/; http://

www.freecreditadvice.com/; http://

www.consumerinfo.com/; http://

www.truecredit.com/.

9See, e.g., http://www.freecreditreport.com/.

10We look only at report-plus-score products 

because where the ‘‘bundle’’ includes added 

services or products, the cost of the additional items 

would be difficult to ascertain. The score 

component calculation is based on an assumption 

that, of the total fee for the package, the basic cost 

of the full credit report accounts for approximately 

$9, which is the price generally charged by 

consumer reporting agencies for a stand-alone copy 

of a consumer report.

11Sections 1785.10 and 1785.15.1 of the 

California Civil Code, effective July 1, 2001; Section 

12–14.3–104.3 of the Colorado Revised Statues. 

Section 212(b) of the FACT Act is based on the 

California statute.

12Section 1785.15.2(b) of the California Civil 

Code, and section 12–14.3–104.3(5) of the Colorado 

Revised Statutes, respectively. Although the 

statutes permit consumer reporting agencies to 

charge a ‘‘reasonable fee,’’ they do not specify a fee 

or a mechanism for determining one.

13TransUnion offers a stand-alone score for $4.95 

through its Web site. See http://

www.transunion.com/

Personal/CreditReportandScoreFees.jsp. Based on 

telephone inquiries in California made in mid-2004, 

Experian sells a score alone for $6, and Equifax 

charges $8.

New subsection 609(f)(8) provides that 

the consumer reporting agency may 

charge a ‘‘fair and reasonable fee, as 

determined by the Commission’’ for 

such disclosure.

New section 609(f)(2)(A) of the FCRA 

defines a credit score as ‘‘a numerical 

value or a categorization derived from a 

statistical tool or modeling system used 

by a person who makes or arranges a 

loan to predict the likelihood of certain 

credit behaviors, including default.’’

Generally, the higher the score, the 

lower the predicted risk.5

Currently, there appears to be an 

extensive and dynamic market for credit 

score products. In addition, several 

sellers are developing and introducing 

diverse new scoring products. Many of 

these sellers are not consumer reporting 

agencies, and thus would not be subject 

to the Commission’s fee determination 

under FCRA section 609(f)(8). 

Consumers can buy scores from several 

companies, including subsidiaries of 

nationwide consumer reporting agencies 

and Fair Isaac and Company (FICO), the 

company that initially developed credit 

scoring. Other companies have also 

entered the market.6

Scores are available to consumers in 

a wide variety of forms and delivery 

methods, both directly from the 

companies that provide the scores and 

score products themselves, and 

indirectly through entities that have 

existing relationships with consumers 

(e.g., credit card issuers) who ‘‘partner’’

with the score suppliers. Some 

companies that offer consumer credit 

scores also provide a variety of 

educational material, including tutorials 

and interactive exercises that allow 

consumers to see how modifications in 

credit behavior (such as closing an 

account or making a larger payment) 

might affect their credit score.7

Most credit score products available 

to consumers include not only a score, 

but also a copy of the consumer’s 

complete credit report and educational 

materials.8 Some products include 

additional features, such as a 

monitoring function—e.g., a service that 

alerts the consumer when new or 

negative information is added to the 

consumer’s file or new accounts are 

opened in the consumer’s name.9 The 

‘‘bundled’’ services are available at 

prices that range from $14 to $90, 

depending on the duration of the service 

and the range of options offered with 

the package. For those packages that 

include only the consumer’s full report 

plus a score, the incremental cost of the 

score component of the product appears 

to be in the range of $4 to $7.10

Stand-alone scores, such as those 

required by section 609(f), appear to be 

available in those states that mandate 

free credit reports, and particularly in 

California and Colorado, where state 

laws require the disclosure of credit 

scores.11 In California and Colorado, the 

laws requiring disclosure of scores also 

permit a consumer reporting agency to 

charge a ‘‘reasonable’’ fee.12 In those 

states where a score-only product is 

available, the cost range is 

approximately $5 to $8.13

II. Possible Approaches for Commission 

Determination 

Section 609(f)(8) of the FCRA states 

that consumer reporting agencies may 

charge a fair and reasonable fee ‘‘as 

determined by the Commission.’’ The 

law does not specify the manner in 

which that fee is to be determined. The 

Commission invites comments from all 

interested parties on any aspect of a 

proposed determination of a fair and 

reasonable fee for score disclosure. In 

setting out its background discussion 

above, and in reviewing various 

potential approaches to its 

determination below, the Commission 

does not wish to preclude comment on 

any alternatives, or the submission of 

appropriate background information. 

The Commission invites comment on 

approaches and factors that should be 

considered in determining a fee for the 

disclosures required under FCRA 

section 609(f), as well as comment on 

underlying premises that it should 

employ in considering various 

approaches and factors. 

There are several possible approaches 

that the Commission could take to make 

the required determination. One 

approach would be to establish a single 

mandatory price that regulated entities 

must charge for a score disclosure. Such 

an approach could provide clarity and 

certainty for both the industry and 

consumers. On the other hand, a fixed 

price might result in a higher fee than 

a consumer would be asked to pay in a 

competitive market; where the price is 

set above the level the regulated seller 

would otherwise charge, consumers 

could pay more than they would 

without intervention. If the fee is set too 

low, however, it may discourage 

competition on other terms of the 

transaction. For example, the seller may 

choose to cut corners elsewhere, such as 

quality, service, or willingness to 

innovate. In a market such as this—with 

both regulated sellers (consumer 

reporting agencies who distribute 

mortgage scores or develop their own 

scoring models) and unregulated sellers 

(non-consumer reporting agencies and 

consumer reporting agencies that do not 

sell mortgage scores or develop 

proprietary scores)—a fixed price may 

place regulated sellers at a competitive 

disadvantage to unregulated sellers. 

A maximum fee is another potential 

approach (setting a ‘‘cap’’ or upper limit 

on the fee that could be charged). A 

maximum fee may be preferable to a 

mandatory fee because it would allow 

64700 Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Proposed Rules 

14 ‘‘[C]utting prices in order to increase business 

is often the very essence of competition.’’

Matsushita Elec. Industrial Co. v. Zenith Radio 

Corp., 475 U.S. 574, 594 (1986).

15See, e.g., Scherer, Industrial Market Structure 

and Economic Performance at 190–93, 204 (1980); 

Scherer, ‘‘Focal Point Pricing and Conscious 

Parallelism,’’ in Scherer, Competition Policy, 

Domestic and International, at 89–97 (2000). 

Although uniform prices might be the result of 

collusion, the outcome also can be due more 

innocently to a phenomenon sometimes referred to 

as ‘‘focal point pricing.’’ In this situation, 

competitors in a market coalesce around an 

externally imposed ‘‘focal point,’’ such as a 

government price control. See also Arizona v. 

Maricopa County Med. Soc., 457 U.S. 332, 348 

(1982) (stating that a maximum price fixing 

agreement ‘‘may be a masquerade for an agreement 

to fix uniform prices, or it may in the future take 

on that character’’).

16 ’The reasonable price fixed today may through 

economic and business changes become the 

unreasonable price of tomorrow.’’ United States v. 

Trenton Potteries Co., 273 U.S. 392, 397 (1927).

17Such an adjustment procedure would be 

analogous to the statutory adjustment, undertaken 

annually by the Commission, to the fee that 

consumer reporting agencies can charge consumers 

for disclosure of their credit files. (In 1996, 

Congress specified an $8 ‘‘cap’’ on the fee that 

consumer reporting agencies can charge for full-file 

disclosure to consumers. Section 612(a)(1)(A)(i) of 

the FCRA, 15 U.S.C. 1681j(f)(1)(A)(i). FCRA section 

612(f)(2) provides that the Federal Trade 

Commission shall increase the amount based 

proportionally on changes in the Consumer Price 

Index. The current limit is $9. See http://

www.ftc.gov/os/2002/12/fedcreditstatutesfrn.htm.).

18While there seems to be little variation in the 

price of the underlying consumer credit file that is 

being scored, which as noted is capped currently 

at $9, the several participants in the market appear 

to compete vigorously in other aspects of the directto-consumer score package (e.g., the score itself, 

accompanying educational materials, and follow-up 

services). Furthermore, there is price dispersion in 

the market for bundled scores, as well as the market 

for stand-alone scores. See supra notes 7–13 and 

accompanying text (the current range for bundled 

scores is $4 to $7 and the current range for standalone scores is $5 to $8).

19Prices for credit scores appear to range between 

$4 and $7 in the unregulated market.

regulated entities to compete on price.14

If the price cap is set below the level the 

regulated seller would otherwise charge, 

however, it shares many of the 

drawbacks of a mandatory price. 

Furthermore, as academic commenters 

have recognized, a maximum price can 

become a de facto mandatory price.15

For example, the nine-dollar maximum 

fee specified in the Fair Credit 

Reporting Act’s section 609(f) for the 

disclosure of consumer report 

information to consumers has become, 

in practice, the industry norm: the three 

major nationwide consumer reporting 

agencies all charge $9 for consumer file 

disclosures, despite the opportunity to 

compete on price below the statutory 

limit.

Moreover, any set fee, whether 

mandatory or maximum, runs the risk of 

becoming obsolete.16 A set fee may 

become too low—e.g., if the costs of 

producing or delivering a score rise; or 

it may become too high—e.g., if new 

technology lowers the costs of selling a 

score or if market participants would 

compete on price absent the regulation.

Some of these problems may be 

addressed by adjusting the set price 

periodically by a preannounced external 

factor—e.g., the consumer price index. 

There is a variety of ways in which such 

adjustments might be undertaken—they 

could be automatic and required within 

any rule that the Commission adopts as 

its determination, or they could be 

initiated by the Commission in the 

context of periodic review of its 

determination. If the adjustments were 

automatic, the Commission could itself 

make the adjustment based on 

preannounced criteria,17 or it could 

provide a formula for periodic 

adjustment that those subject to the rule 

would be required to apply and 

implement.

One limitation to the usefulness of an 

externally-derived price adjustment is 

the fact that it would not take into 

account possible changes, e.g., in 

technology or costs, that are internal to 

a specific firm or the industry. In order 

to account for such changes, the 

Commission could readjust fees based 

on an examination of the internal 

operations of each individual firm. In 

the public utility context, this is 

typically done by a detailed 

examination of a firm’s operating costs 

and profits, capital employed, cost of 

capital, and rate of return on capital. Of 

course, this would be a potentially 

difficult and complex inquiry for the 

Commission to undertake in this 

proceeding, especially because it may be 

difficult to specify which cost elements 

should be included in the calculations 

or how to allocate fixed costs, such as 

the cost of developing the scoring 

model. 

Another approach that the 

Commission might consider would be to 

make a determination that looks to those 

charges produced by a competitive 

market as the basis for a fair and 

reasonable fee. Such a determination 

might be done with varying degrees of 

Commission involvement. For example, 

the Commission might conduct a 

periodic market survey to determine the 

range of prices charged and whether 

those prices are the product of 

competition, and set a price or a range 

of prices.

A market-based approach is attractive 

because a competitive market generally 

provides the most rational, responsive, 

and efficient form of pricing. Typically, 

the market is able to produce and 

account for relevant factors: prices, 

quality, service, costs, encouragement of 

investment, and promotion of 

competition. The government often sets 

cost-based fees in the public utility 

context, because regulators often have 

no competitive market to which they 

can refer. In the case of direct-toconsumer credit scores, however, there 

currently exists a market with many 

buyers and sellers on which the 

Commission might base a 

determination. In its consideration of 

whether a market-based determination 

is appropriate and feasible, the 

Commission seeks comment on whether 

there is reason to believe that the fees 

being charged consumers for credit 

scores today are not fair and reasonable, 

that there is not active price 

competition, or that the market is not 

producing appropriate pricing 

incentives.18

More specifically, the Commission 

seeks comment on an appropriate 

methodology for determining a fair and 

reasonable fee if it elected a marketbased approach. One method that the 

Commission might consider would take 

advantage of the market in credit scores 

by determining a fee that fluctuates 

based on that market. For example, the 

Commission’s survey of the market to be 

regulated shows that prices between $5 

and $8 currently are charged.19 A 

determination that reflects a dynamic, 

competitive market might include a set 

or maximum fee based on a calculated 

weighted mean figure. This approach 

could require the fee to be readjusted as 

the weighted mean price for credit 

scores rises and falls. If the Commission 

adopted such an approach, it would 

need to specify whether the 

Commission itself would make such 

market-based readjustments, or whether 

affected parties would be required to 

determine and apply readjustments 

based on a Commission-supplied 

formula.

The Commission also seeks comment 

on whether a fee determination based 

on ongoing assessment of the market 

might be an appropriate method on 

which to base its determination, and 

also whether such an approach might 

have drawbacks. Any market-based 

approach assumes that the market in 

direct-to-consumer credit scores will 

persist. The Commission seeks comment 

on both the current state of the market 

for credit scores and anticipated 

changes in the market. For example, a 

factor that could lead to changes in 

market forces is consumers’ new right 

under the FACT Act to obtain a free 

annual copy of their consumer reports 

from each of the nationwide consumer 

Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Proposed Rules 64701

20Section 211(d) of the FACT Act. Under the 

Commission’s rule implementing this requirement, 

this centralized source will first be available to 

some consumers beginning December 1, 2004, with 

full implementation by September 1, 2005. See 16 

CFR 610, 69 FR 35468 (June 24, 2004). See also 

http://www.ftc.gov/os/2004/05/040520factafrn.pdf 

and http://www.ftc.gov/os/2004/06/

040624factafreeannualfrn.pdf.

21 Id.

22The FACT Act also contains a new requirement 

that mortgage lenders disclose a credit score to 

home loan applicants, along with an explanatory 

notice. Section 212(c) of the FACT Act adds new 

FCRA section 609(g), effective December 1, 2004, 

mandating score disclosure and providing the text 

of the educational ‘‘Notice to the home loan 

applicant.’’ This mandated disclosure and notice 

may increase consumer awareness of credit scores, 

which might increase consumer demand for scores, 

but also could diminish demand for score 

purchases, because those consumers who apply for 

home loans will receive scores for free.

23See 16 CFR 602.1(c)(3)(x) (establishing 

December 1, 2004 as the effective date for FACTA 

Section 212(b)).

reporting agencies through a 

‘‘centralized source.’’20 Nationwide 

consumer reporting agencies may 

choose to market scores to consumers 

(and may choose to fulfill their statutory 

obligation under section 609(f)) through 

the centralized source.21 The 

centralized source may increase demand 

for scores by promoting consumer 

awareness of score availability, and 

might further competition among the 

nationwide consumer reporting agencies 

that sell scores through the centralized 

source. On the other hand, the 

centralized source might provide a 

competitive advantage to these 

consumer reporting agencies vis-a-vis 

other sellers of scores due to the 

‘‘captive’’ audience of consumers that it 

supplies.22

The Commission is seeking to make a 

determination that would preserve for 

consumers the benefits of competition 

in both the regulated and unregulated 

market, while protecting consumers 

from the non-competitive prices that 

might occur in these markets in the 

event that competition deteriorates. 

Optimally, the Commission seeks to 

identify and implement an approach 

that will result in a fee that is fair to 

consumers; will provide regulated 

entities with a sufficient level of 

certainty; will encourage regulated 

entities to compete on price, quality, 

and service; will encourage innovation 

and cost-cutting; will avoid unduly 

interfering with the unregulated market 

for credit scores; and does not involve 

a lengthy rate-making proceeding or 

reliance upon proprietary cost or 

revenue data. 

The Commission seeks comment on 

the relative merits of each approach, as 

well as comments and suggestions on 

other appropriate factors to take into 

account in determining a fair and 

reasonable fee or periodically adjusting 

that fee. 

Effective Date 

The Commission proposes an 

effective date of thirty days after 

promulgation of its final determination.

The Commission recognizes that the 

provisions of FCRA section 609(f) will 

become effective on December 1, 2004 

without regard to whether the 

Commission has made a determination 

or given guidance on how it will 

determine whether a particular fee is 

fair and reasonable.23 Although 

Congress has directed credit scores be 

available for a fair and reasonable fee as 

determined by the Commission, it did 

not impose a deadline for a 

determination nor has it required that 

the determination be made in any 

particular manner. Furthermore, there is 

no indication that Congress meant to 

require regulated entities to make the 

required disclosures free of charge. For 

these reasons, the Commission 

interprets section 609(f) to allow 

regulated entities to charge a fee for 

required disclosures in advance of any 

specific Commission determination or 

other guidance, so long as that fee is fair 

and reasonable. Thus, absent additional 

Commission action on or before 

December 1, 2004, consumer reporting 

agencies must disclose mortgage or 

educational scores to consumers and 

may charge a fair and reasonable fee for 

those disclosures. Indeed, this process is 

currently used in the states that require 

similar disclosure.

The Commission’s enforcement of the 

‘‘fair and reasonable’’ requirement will 

be by reference to the extant market in 

credit scores. Thus, at present the 

Commission may question any fee that 

significantly exceeds the current market 

rates for credit scores, which are 

currently in the range of $4 to $8. 

III. Request for Comments 

The Commission welcomes comment 

on all aspects of the determination it 

will make, including policy and 

pragmatic considerations associated 

with any potential approach to 

determining a fair and reasonable fee for 

credit score disclosure, costs and 

benefits to all affected parties, 

implementation considerations, and any 

other issues bearing on the 

Commission’s determination. 

Specifically, the Commission seeks 

comment on the range of approaches 

outlined above, as well as suggestions 

for alternative approaches to fee 

determination, and comments prompted 

by the following considerations and 

questions. All comments should be filed 

as prescribed in the ADDRESSES section 

above, and must be received by January 

5, 2005. 

(1) The Commission believes that the 

current market in direct-to-consumer 

scores is competitive and healthy—there 

appears to be price dispersion, 

innovation, and a variety of products 

and sellers. Is this an accurate 

characterization of the market? If so, 

why? If not, why? The Commission 

believes that one nationwide consumer 

reporting agency—TransUnion—sells 

stand-alone credit scores to consumers 

for $4.95 in states that mandate free file 

disclosures. Three nationwide consumer 

reporting agencies sell stand-alone 

scores in California and Colorado for 

prices ranging from $4.95 to $8. Is this 

accurate? Are these the only 

circumstances under which consumers 

can obtain stand-alone credit scores? 

The Commission believes that most 

scores are sold as part of a package or 

are bundled with a consumer report and 

other information or services. Is this 

accurate? What is the range of prices for 

these products? By what method should 

the score component of a package or 

bundle or goods and services be valued? 

(2) The Commission recognizes that 

its determination under FCRA Section 

609(f) will apply only to a portion of the 

market—consumer reporting agencies 

that distribute ‘‘mortgage’’ scores or 

develop their own credit scores—and 

only to two scoring products currently 

offered to consumers—‘‘mortgage’’

scores and ‘‘educational’’ scores. How 

many consumer reporting agencies 

would be subject to this requirement? 

What percentage of the credit score 

market would be regulated, and what 

percentage unregulated? 

(3) The Commission is aware that 

many non-consumer reporting agencies 

offer scores and related products to 

consumers. What is the relevant market 

for purposes of the Commission 

determination? What would be the 

competitive effects of the imposition of 

a maximum price requirement that 

applies only to a part of the market for 

scores? Would a maximum price 

requirement in the limited market for 

‘‘statutory’’ scores (i.e., mortgage or 

educational scores provided by 

consumer reporting agencies) have 

effects on the broader, unregulated 

market for scores? 

(4) It is the Commission’s 

understanding that many consumer 

reporting agencies do not currently 

provide scores directly to consumers, 

but do so through non-consumer 

reporting agency subsidiaries. Will 

consumer reporting agencies choose to 

fulfill the statutory requirement in 

64702 Federal Register / Vol. 69, No. 215 / Monday, November 8, 2004 / Proposed Rules 

FCRA Section 609 through nonconsumer reporting agency subsidiaries? 

(5) Consumer reporting agencies can 

fulfill FCRA Section 609’s requirement 

by providing consumers with mortgage 

or educational scores. How will 

consumer reporting agencies choose to 

fulfill this requirement and what type of 

score are they most likely to provide to 

consumers? Why? 

(6) Among the potential approaches 

available to the Commission is 

determining a fee based on the market 

for scores. In that context, what is the 

appropriate market to consider: the 

market for stand-alone mortgage and 

educational scores sold by consumer 

reporting agencies, or the market for all 

credit scores sold by consumer reporting 

agencies and non-consumer reporting 

agencies? If a market-based approach is 

appropriate, are these two markets 

appropriate reference points? Are there 

other markets that should be 

considered? Overall, what is the 

appropriate market, and what are the 

factors that the Commission should 

consider in determining the appropriate 

market? 

(7) The Commission welcomes 

comment on whether other factors, in 

addition to prices charged in a 

competitive market, should be taken 

into account in determining a fair and 

reasonable fee for required disclosures 

(e.g., cost data, revenue data, other 

market conditions). Comments should 

discuss the pragmatic aspects of each 

factor advanced for consideration; for 

example, whether data underlying a 

given factor are readily available or 

difficult to obtain. 

(8) For any determination involving a 

specified dollar amount for a fair and 

reasonable fee, should the Commission 

include within a final determination a 

mechanism for periodic adjustment of 

the specified amount? If so, what 

approach is desirable for such 

adjustment and what entity or entities 

should determine the specific 

adjustment? Should the Commission 

initiate new assessments of all of the 

factors underlying its determination at a 

fixed time interval, or only when a 

factor changes significantly? Should the 

Commission’s determination include an 

‘‘automatic’’ adjustment keyed to the 

consumer price index or similar 

economic index? Should periodic 

adjustments be required to be both 

determined and implemented by the 

regulated entities based on a formula set 

forth within the Commission’s 

determination? Are there other bases for 

periodic adjustment that might be 

appropriate?

By direction of the Commission. 

Donald S. Clark, 

Secretary.

[FR Doc. 04–24841 Filed 11–5–04; 8:45 am] 

BILLING CODE 6750–01–P

SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Regulation No. 4] 

RIN 0960–AF28

Revised Medical Criteria for Evaluating 

Impairments of the Digestive System

AGENCY: Social Security Administration.

ACTION: Proposed rules; limited 

reopening of comment period. 

SUMMARY: We are reopening for limited 

purposes the comment period for the 

notice of proposed rulemaking (NPRM) 

that we published in the Federal 

Register on November 14, 2001 (66 FR 

57009). We have decided to reopen the 

comment period for 60 days to solicit 

additional public comments on our 

proposal to revise and remove several of 

the chronic liver disease listings from 

the Listing of Impairments (the listings) 

because we believe that the revisions we 

propose are significant. We are 

reopening the comment period only to 

accept comments about chronic liver 

disease. Due to the limited reopening of 

the NPRM, we will not consider any 

comments on other aspects of the 

proposed listings for the digestive 

system.

DATES: To be sure your comments are 

considered, we must receive them by 

January 7, 2005.

ADDRESSES: You may give us your 

comments by: using our Internet site 

facility (i.e., Social Security Online) at: 

http://policy.ssa. gov/pnpublic.nsf/

LawsRegs or the Federal eRulemaking 

Portal at http://www.regulations.gov; email to regulations@ssa.gov; telefax to 

(410) 966–2830; or by letter to the 

Commissioner of Social Security, P.O. 

Box 17703, Baltimore, Maryland 21235–

7703. You may also deliver them to the 

Office of Regulations, Social Security 

Administration, 107 Altmeyer Building, 

6401 Security Boulevard, Baltimore, 

Maryland 21235–6401, between 8 a.m. 

and 4:30 p.m. on regular business days. 

Comments are posted on our Internet 

site, at http://policy.ssa. gov/

pnpublic.nsf/LawsRegs or you may 

inspect them on regular business days 

by making arrangements with the 

contact person shown in this preamble. 

Electronic Version: The electronic file 

of this document is available on the date 

of publication in the Federal Register at 

http://www.gpoaccess. gov/fr/

index.html. It is also available on the 

Internet site for SSA (i.e., Social 

Security Online) at: http://policy.ssa. 

gov/pnpublic.nsf/LawsRegs.

FOR FURTHER INFORMATION CONTACT:

Suzanne DiMarino, Social Insurance 

Specialist, Office of Regulations, Social 

Security Administration, 107 Altmeyer 

Building, 6401 Security Boulevard, 

Baltimore, Maryland 21235–6401, (410) 

965–1767 or TTY (410) 966–5609. For 

information on eligibility or filing for 

benefits, call our national toll-free 

number, 1–800–772–1213 or TTY 1–

800–325–0778, or visit our Internet Web 

site, Social Security Online, at 

www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: On 

November 14, 2001, we published 

‘‘Revised Medical Criteria for Evaluating 

Impairments of the Digestive System’’ as 

an NPRM in the Federal Register (66 FR 

57009). You may find this document at 

our Web site: http://policy.ssa.gov/erm/ 

rules.nsf/5da82b031 

a6677dc85256b41006b7f8d/ 

a37bb476cb 227bdd85256b410067a74d? 

OpenDocument.

This NPRM proposed to revise the 

criteria in the Listings that we use to 

evaluate claims involving impairments 

of the digestive system. We explained in 

the proposed rules that we were revising 

and removing several of the chronic 

liver disease listings because of the 

progress in medical and surgical 

advancements in treating these diseases. 

When we published the NPRM, we 

provided a 60-day comment period that 

ended January 14, 2002. We have 

reviewed and considered all the 

comments we received during the 

comment period. However, we received 

few comments regarding our proposed 

revisions to the listings that specifically 

involve chronic liver disease. Because 

we believe that the revisions we propose 

are significant, we want to ensure that 

the public has another opportunity to 

review and comment on those proposals 

involving the evaluation of chronic liver 

disease. In order to allow the public 

sufficient time to review and comment 

on our proposals, we have decided to 

provide an additional 60-day comment 

period within which to comment on our 

proposal to revise and remove several of 

the listings for evaluating chronic liver 

disease. If you have already provided 

comments on the proposals, your 

comments will be considered and you 

do not need to resubmit them.