37558 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

basis if such asset, or group of assets, 

was sold or otherwise disposed of in an 

orderly transaction. 

(2) The term ‘‘most recent financial 

statement available’’ means a covered 

financial company’s: 

(i) Most recent financial statement 

filed with the Securities and Exchange 

Commission or any other regulatory 

body; 

(ii) Most recent financial statement 

audited by an independent CPA firm; or 

(iii) Other available financial 

statements. The FDIC and the Treasury 

will jointly determine the most 

pertinent of the above financial 

statements, taking into consideration the 

timeliness and reliability of the 

statements being considered. 

(3) The term ‘‘obligation’’ means, with 

respect to any covered financial 

company: 

(i) Any guarantee issued by the FDIC 

on behalf of the covered financial 

company; 

(ii) Any amount borrowed pursuant to 

section 210(n)(5)(A) of the Dodd-Frank 

Act; and 

(iii) Any other obligation with respect 

to the covered financial company for 

which the FDIC has a direct or 

contingent liability to pay any amount. 

(4) The term ‘‘total consolidated assets 

of each covered financial company that 

are available for repayment’’ means the 

difference between: 

(i) The total assets of the covered 

financial company on a consolidated 

basis that are available for liquidation 

during the operation of the receivership; 

and 

(ii) To the extent included in (b)(4)(i) 

of this section, all assets that are 

separated from, or made unavailable to, 

the covered financial company by a 

statutory or regulatory barrier that 

prevents the covered financial company 

from possessing or selling assets and 

using the proceeds from the sale of such 

assets. 

Department of the Treasury 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, Treasury amends Title 31, 

Chapter I of the Code of Federal 

Regulations by adding part 149 to read 

as follows: 

PART 149—CALCULATION OF 

MAXIMUM OBLIGATION LIMITATION 

Sec. 

149.1 Authority and purpose. 

149.2 Definitions. 

149.3 Maximum obligation limitation. 

Authority: 31 U.S.C. 321 and 12 U.S.C. 

5390. 

§ 149.1 Authority and purpose. 

(a) Authority. This part is issued by 

the Federal Deposit Insurance 

Corporation (FDIC) and the Secretary of 

the Department of the Treasury 

(Treasury) under section 210(n)(7) of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act (Act). 

(b) Purpose. The purpose of this part 

is to issue implementing regulations as 

required by the Act. The part governs 

the calculation of the maximum 

obligation limitation which limits the 

aggregate amount of outstanding 

obligations the FDIC may issue or incur 

in connection with the orderly 

liquidation of a covered financial 

company. 

§ 149.2 Definitions. 

As used in this part: 

Fair value. The term ‘‘fair value’’ 

means the expected total aggregate value 

of each asset, or group of assets that are 

managed within a portfolio of a covered 

financial company on a consolidated 

basis if such asset, or group of assets, 

was sold or otherwise disposed of in an 

orderly transaction. 

Most recent financial statement 

available. (1) The term ‘‘most recent 

financial statement available’’ means a 

covered financial company’s— 

(i) Most recent financial statement 

filed with the Securities and Exchange 

Commission or any other regulatory 

body; 

(ii) Most recent financial statement 

audited by an independent CPA firm; or 

(iii) Other available financial 

statements. 

(2) The FDIC and the Treasury will 

jointly determine the most pertinent of 

the above financial statements, taking 

into consideration the timeliness and 

reliability of the statements being 

considered. 

Obligation. The term ‘‘obligation’’ 

means, with respect to any covered 

financial company— 

(1) Any guarantee issued by the FDIC 

on behalf of the covered financial 

company; 

(2) Any amount borrowed pursuant to 

section 210(n)(5)(A) of the Act; and 

(3) Any other obligation with respect 

to the covered financial company for 

which the FDIC has a direct or 

contingent liability to pay any amount. 

Total consolidated assets of each 

covered financial company that are 

available for repayment. The term ‘‘total 

consolidated assets of each covered 

financial company that are available for 

repayment’’ means the difference 

between: 

(1) The total assets of the covered 

financial company on a consolidated 

basis that are available for liquidation 

during the operation of the receivership; 

and 

(2) To the extent included in 

paragraph (1) of this definition, all 

assets that are separated from, or made 

unavailable to, the covered financial 

company by a statutory or regulatory 

barrier that prevents the covered 

financial company from possessing or 

selling assets and using the proceeds 

from the sale of such assets. 

§ 149.3 Maximum obligation limitation. 

The FDIC shall not, in connection 

with the orderly liquidation of a covered 

financial company, issue or incur any 

obligation, if, after issuing or incurring 

the obligation, the aggregate amount of 

such obligations outstanding for each 

covered financial company would 

exceed— 

(a) An amount that is equal to 10 

percent of the total consolidated assets 

of the covered financial company, based 

on the most recent financial statement 

available, during the 30-day period 

immediately following the date of 

appointment of the FDIC as receiver (or 

a shorter time period if the FDIC has 

calculated the amount described under 

paragraph (b) of this section); and 

(b) The amount that is equal to 90 

percent of the fair value of the total 

consolidated assets of each covered 

financial company that are available for 

repayment, after the time period 

described in paragraph (a) of this 

section. 

Dated at Washington, DC, this 23rd day of 

April 2012. 

By order of the Board of Directors. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

Dated: June 15, 2012. 

By the Department of the Treasury. 

Rebecca H. Ewing, 

Executive Secretary. 

Dated: June 15, 2012. 

[FR Doc. 2012–15310 Filed 6–21–12; 8:45 am] 

BILLING CODE 6714–01–P; 4810–25–P 

BUREAU OF CONSUMER FINANCIAL 

PROTECTION 

12 CFR Chapter X 

[Docket No. CFPB–2011–0040] 

Disclosure of Certain Credit Card 

Complaint Data 

AGENCY: Bureau of Consumer Financial 

Protection. 

ACTION: Notice of final policy statement. 

SUMMARY: The Bureau of Consumer 

Financial Protection (the ‘‘Bureau’’) is 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37559 

1 12 U.S.C. 5511(b)(1) & (5). 

2These are the Consumer Response Annual 

Report for 2011 (March 31, 2012) at http:// 

files.consumerfinance.gov/f/ 

201204_cfpb_ConsumerResponseAnnualReport.pdf, 

the Semi-Annual Report of the Consumer Financial 

Protection Bureau (January 30, 2012) at http:// 

www.consumerfinance.gov/reports/semi-annualreport-of-the-consumer-financial-protectionbureau/, and the Consumer Response Interim 

Report on CFPB’s Credit Card Complaint Data 

(November 30, 2011) at http:// 

www.consumerfinance.gov/reports/consumerresponse-interim-report-on-cfpbs-credit-cardcomplaint-data. 

3The database will not include duplicative 

complaints submitted by the same consumer. 

4The Policy Statement concerns the Bureau’s 

authority to make public certain consumer 

complaint data that it has decided to include in the 

public database in its discretion. The Policy 

Statement does not address the Bureau’s authority 

or obligation to disclose additional complaint data 

pursuant to a request made under the Freedom of 

Information Act, 5 U.S.C. 552. 

5One consumer submitted the same letter directly 

to the Bureau. 

6To take one example, one credit union 

association commented that the Policy Statement 

should address the sanction that will apply to an 

issuer if it fails to respond to a complaint in a 

timely fashion. 

7Consumer Response already maintains several 

feedback mechanisms for participants in the 

Complaint System. 

issuing a final policy statement (the 

‘‘Policy Statement’’) to provide guidance 

on how the Bureau plans to exercise its 

discretion to publicly disclose certain 

credit card complaint data that do not 

include personally identifiable 

information. The Bureau receives credit 

card complaints from consumers under 

the terms of Title X of the Dodd-Frank 

Wall Street Reform and Consumer 

Protection Act (the ‘‘Dodd-Frank Act’’). 

The Policy Statement also identifies 

additional ways that the Bureau may 

disclose credit card complaint data but 

as to which it will conduct further study 

before finalizing its position. 

DATES: This Policy Statement is effective 

on June 19, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Scott Pluta, Office of Consumer 

Response, Bureau of Consumer 

Financial Protection, at (202) 435–7306; 

or Will Wade-Gery, Division of 

Research, Markets and Regulations, 

Consumer Financial Protection Bureau, 

at (202) 435–7700. 

SUPPLEMENTARY INFORMATION: 

I. Overview 

A. Final Policy Statement 

Under the final Policy Statement, the 

Bureau plans to disclose data associated 

with credit card complaints in two 

ways. These disclosures are intended to 

help provide consumers with ‘‘timely 

and understandable information to 

make responsible decisions about 

financial transactions’’ and to enhance 

the credit card market’s ability to 

‘‘operate transparently and 

efficiently.’’ 1 First, the Bureau plans to 

issue its own periodic reports about 

complaint data. The Bureau has already 

issued three such reports.2 Second, the 

Bureau plans to provide public access to 

an electronic database containing 

certain fields for each unique 3

complaint.4 As discussed further below, 

the Bureau has adjusted its plans to 

include certain fields in the public 

database in response to comments on 

the proposed Policy Statement 

published by the Bureau on December 8, 

2011. The public database will initially 

include data from credit card 

complaints submitted on or after June 1, 

2012. 

B. Concurrent Notice 

Concurrent with the publication of 

this Policy Statement, the Bureau is 

publishing a notice in the Federal 

Register seeking comment on a 

proposed extension of the disclosure 

system described in the Policy 

Statement to complaints about 

consumer financial products other than 

credit cards (the ‘‘Concurrent Notice’’). 

In addition to credit cards, the Bureau’s 

complaint-handling system (the 

‘‘Complaint System’’) now encompasses 

mortgages, bank products such as 

checking and savings accounts, and 

certain other consumer loans. The 

Bureau anticipates that the Complaint 

System will accept complaints about all 

consumer financial products and 

services within the Bureau’s jurisdiction 

by the end of 2012. Comments in 

response to the Concurrent Notice are 

due by July 19, 2012. 

II. Background 

A. Complaint System 

In the proposed Policy Statement, the 

Bureau generally described how the 

Office of Consumer Response 

(‘‘Consumer Response’’) accepts and 

processes credit card complaints. The 

Bureau has since revised the Complaint 

System in a number of respects, in part 

as a result of the comments received on 

the proposed Policy Statement. For 

example, the Bureau has adjusted the 

permissible entries for the ‘‘issuer 

response category’’ field, as summarized 

in part III.D.5. 

B. Overview of Public Comments 

The Bureau received seventeen sets of 

comments in response to the proposed 

Policy Statement. In some cases, several 

organizations submitted a single 

comment letter. Eleven industry groups 

submitted a total of nine comment 

letters. One credit union also 

commented. One financial reform 

organization, Americans for Financial 

Reform (‘‘AFR’’), submitted a single set 

of comments on behalf of twenty-one 

consumer, civil rights, privacy, and 

open government groups. Two privacy 

groups that joined that set of comments 

also submitted their own comments, as 

did one open government group, which 

submitted 840 substantially identical 

comment letters from consumers.5

There was one additional consumer 

submission. Finally, one member of 

Congress commented on the proposed 

Policy Statement. 

Almost all comments concerned the 

public database component of the 

proposed Policy Statement. Industry 

commenters generally opposed the 

public database. Although they 

endorsed the intended goals of the 

public database, many industry 

commenters asserted that the database 

would confuse consumers and unfairly 

damage the reputation of credit card 

issuers. The disclosure of issuer names 

in the public database was a particular 

focus of these comments. Some industry 

commenters further asserted that the 

Bureau lacks legal authority to disclose 

individual-level complaint data. 

Consumer groups and consumers also 

endorsed the goals underlying the 

public database proposal. The AFR 

submission supported the public 

database, and urged the Bureau to 

include all narrative fields, subject to 

certain privacy protections. The two 

privacy groups that joined the AFR 

submission also offered their own 

written comments advising the Bureau 

to be mindful of the privacy risks 

associated with broader disclosure. 

Many submissions included 

comments directed to the Bureau’s 

process for handling credit card 

complaints. To the extent that these 

comments also relate to the Policy 

Statement, the Bureau addresses them 

below. To the extent that they relate 

only to the Complaint System and not 

to any associated impact on disclosure, 

the Bureau does not address them in 

this final Policy Statement.6 In response 

to such feedback, however, Consumer 

Response has and will continue to 

refine and improve its Complaint 

System over time.7

III. Summary of Comments Received, 

Bureau Response, and Resulting Policy 

Statement Changes 

This section provides a summary of 

the comments received by subject 

matter. It also summarizes the Bureau’s 

assessment of the comments by subject 

matter and, where applicable, describes 


wreier-aviles on DSK7SPTVN1PROD with RULES
37560 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

8See 12 U.S.C. 5493(b)(3). 

9One commenter argues that, by specifying in 

Section 1013(b)(3) that the Bureau should report to 

Congress only complaint numbers, types, and 

resolutions, Congress intended to limit the Bureau 

to compiling that information. The commenter 

argues that the collection and reporting of other 

information—including narrative information from 

consumers—is not authorized. 

10One commenter further asserts that Section 

1022(c)(6), which authorizes and in some cases 

requires the Bureau to share confidential 

supervisory information with other agencies, 

demonstrates that Congress intended to exclude the 

public as an acceptable recipient of such 

information. 

11To the same effect, the trade associations 

contend that by directing the Bureau to share 

consumer complaint information in a manner that 

protects data integrity, Congress manifested its 

intention that the Bureau share only information 

that is validated, reliable, and objective—standards 

that the associations argue are not met by the 

complaint data, including, in particular, complaint 

narratives. 

12 12 U.S.C. 5534(a). 

13 12 U.S.C. 5512(c)(1). 

14 12 U.S.C. 5512(c)(3)(B). 

15 12 U.S.C. 5512(c)(4)(A), 5512(c)(4)(C). 

16 12 U.S.C. 5512(c)(8). 

the resulting changes that the Bureau is 

making in the final Policy Statement. 

All such changes concern the public 

database. There are no changes to the 

proposed policy for the Bureau to issue 

its own complaint data reports. 

A. The Policy Statement Process 

One trade association commented that 

the Bureau should engage in a public 

rulemaking under the Administrative 

Procedures Act to provide the public 

with an opportunity to comment on all 

aspects of the initiative. One issue that 

the rulemaking should address, 

according to this commenter, is the link 

between the availability of complaint 

information and informed consumer 

decision-making. 

The Bureau is committed to 

transparency and to robust engagement 

with the public regarding its actions. 

Although not required by law, the 

Bureau solicited and received public 

comment on the proposed Policy 

Statement. The Bureau received 

substantial public feedback expressing a 

range of viewpoints, and it has carefully 

considered the comments received, as 

described in detail below. As stated in 

the final Policy Statement, the Bureau 

plans to study the effectiveness of its 

policy on an ongoing basis, and plans to 

continue to engage with the public, 

including regulated entities, as it 

assesses the efficacy of its complaint 

disclosure policy. 

B. Legal Authority for Public Database 

Several trade associations commented 

that the Dodd-Frank Act does not 

authorize the Bureau to create the 

proposed public consumer complaint. 

The associations make two arguments. 

First, they contend that the DoddFrank Act expressly delineates the 

circumstances and manner in which the 

Bureau may collect, resolve, and share 

consumer complaints with others. The 

public database is not included. By 

negative inference, therefore, they argue 

that the Dodd-Frank Act does not 

authorize the database. 

Section 1013(b)(3) of the Dodd-Frank 

Act requires the Director of the Bureau 

to establish a unit to collect, monitor, 

and respond to consumer complaints 

regarding consumer financial products 

and services.8 This provision requires 

the Bureau to present an annual report 

to Congress that includes information 

and analysis of complaint numbers, 

types, and resolutions, and it authorizes 

the Bureau to share consumer complaint 

information with prudential regulators, 

the Federal Trade Commission, and 

other Federal and State agencies, subject 

to certain confidentially and data 

protection standards. According to the 

associations, by delineating entities 

with which the Bureau may share 

consumer complaint information,9

Congress meant such entities to be the 

exclusive recipients of such 

information.10 Furthermore, the 

associations argue, by specifying that 

the Bureau may share such information 

only to the extent that these specific 

recipients agree to protect the 

confidentiality of the information 

shared, Congress manifested its 

intention that this information should 

otherwise remain confidential.11

The associations also argue that 

Section 1034 of the Dodd-Frank Act, 

which requires the Bureau to establish 

‘‘reasonable procedures to provide a 

timely response to consumers * * * to 

complaints against, or inquiries 

concerning, a covered person,’’ does not 

authorize the creation or publication of 

a public consumer complaint database 

that, instead of aiding complainants, 

enables data mining and market 

research.12 The associations also 

contend that, by directing the Bureau in 

Section 1034(d) to enter into agreements 

with other affected federal agencies to 

facilitate the joint resolution of 

complaints, Congress intended for the 

Bureau to handle consumer complaints 

in accordance with the procedures of 

these other agencies, which publish 

only aggregated complaint data. 

Second, the associations argue that 

the Dodd-Frank Act’s restrictions on 

publishing confidential information 

block the implementation of the 

proposed public database. They contend 

that Section 1022(c), which authorizes 

the Bureau to ‘‘monitor for risks to 

consumers in the offering or provision 

of consumer financial protects or 

services, including developments in 

markets for such products or 

services,’’ 13 and to ‘‘make public such 

information * * * as is in the public 

interest,’’ only permits the Bureau to 

make the resulting information public 

through aggregate reporting ‘‘designed 

to protect confidential information.’’ 14

By using non-aggregated formats, the 

associations contend, the proposed 

database risks compromising the 

confidentiality of individual complaint 

information. 

One commenter also argues that 

Section 1022(c)(4) prohibits the Bureau 

from collecting or sharing information 

like zip codes or the identities of card 

issuers. Although Section 1022(c)(4)(A) 

authorizes the Bureau to ‘‘gather 

information from time to time regarding 

the organization, business conduct, 

markets, and activities of covered 

persons and service providers,’’ Section 

1022(c)(4)(C) prohibits the Bureau from 

using this authority to ‘‘obtain records 

from covered persons and service 

providers participating in consumer 

financial services markets for purposes 

of gathering or analyzing the personally 

identifiable financial information of 

consumers.’’ 15 The commenter asserts 

that zip codes and card issuer names 

constitute personally identifiable 

information that the Bureau may not 

collect or share. The same commenter 

cites Section 1022(c)(8), which requires 

the Bureau, in ‘‘collecting information 

from any person, publicly releasing 

information held by the Bureau, or 

requiring covered persons to publicly 

report information,’’ to ‘‘take steps to 

ensure that proprietary, personal, or 

confidential consumer information that 

is protected from public disclosure 

under Section 552(b) or 552a of title 5, 

United States Code, or any other 

provision of law, is not made public 

under this title.’’ 16 The commenter 

asserts that this provision requires the 

Bureau to keep consumer complaint 

information confidential to the extent 

that any law, including but not limited 

to the Freedom of Information Act 

(‘‘FOIA’’) or the Privacy Act, requires 

such confidentiality. The commenter 

argues that credit card issuer narratives 

and complaint rates by zip codes 

constitute trade secrets of credit card 

issuers that the Trade Secrets Act, 18 

U.S.C. 1905, prohibits the Bureau from 

disclosing. 

The Bureau disagrees with these 

arguments. First, the Dodd-Frank Act 

expressly authorizes the disclosure 

addressed in the Policy Statement, 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37561 

17 12 U.S.C. 5512(c)(1). 

18 12 U.S.C. 5512(c)(4)(A). 

19 12 U.S.C. 5512(c)(4)(B)(i). 

20 12 U.S.C. 5512(c)(3)(B). 

21See 12 CFR 1070.40 through 1070.47. 

22See 12 CFR 1070.41 (prohibiting Bureau 

employees from disclosing confidential information 

other than as provided in subpart D); 12 CFR 1070.2 

(defining ‘‘confidential information’’ to include 

‘‘confidential consumer complaint information’’). 

23 12 CFR 1070.2(g). 

which cannot, therefore, be barred by 

negative inference. Second, there are no 

applicable confidentiality restrictions 

that apply to the data that will be 

disclosed in the public database. 

Section 1022 of the Dodd-Frank Act 

permits the Bureau, in support of its 

rulemaking ‘‘and other functions,’’ to 

monitor and assess risks to consumers 

in the offering or provision of consumer 

financial products or services.17 In 

monitoring and assessing such risks, 

this provision authorizes the Bureau to 

gather information regarding the 

‘‘business conduct’’ of covered persons 

and service providers.18 The provision 

expressly states that ‘‘consumer 

complaints’’ are among the types of 

information that the Bureau may gather 

for this purpose.19

Not only does section 1022 permit the 

Bureau to gather or compile consumer 

complaint information, it also 

contemplates that the Bureau may 

disclose such information to the public 

under certain circumstances. Section 

1022(c)(3)(B) states that the Bureau 

‘‘may make public such information 

obtained by the Bureau under this 

section as is in the public interest, 

through aggregated reports or other 

appropriate formats designed to protect 

confidential information * * *’’ 20

Although commenters focus on the fact 

that this subparagraph permits the 

Bureau to disclose consumer complaint 

information in aggregated reports, they 

ignore the fact that the subparagraph 

also permits the Bureau to disclose such 

information in a non-aggregated format 

as long as it protects the confidentiality 

of certain information in accordance 

with the other provisions of Section 

1022(c). 

Nothing in Section 1013(b)(3) suggests 

that Congress, in describing one 

database containing consumer 

complaint information and the manner 

in which its contents are to be reported 

to Congress or shared with other Federal 

or State agencies, sought to limit the 

Bureau’s authority to disclose 

information to the public. Likewise, 

there is no reason to interpret Section 

1034, which requires the Bureau to 

establish procedures to provide a timely 

‘‘response’’ to consumers to their 

complaints, to mean that the Bureau 

may only disclose consumer complaint 

information publicly to complainants, 

and even then, only to the extent 

necessary to ‘‘respond’’ to their 

complaints. 

The Bureau also disagrees that 

subpart D of the Bureau’s Interim Final 

Rules on the Disclosure of Records and 

Information,21 which the Bureau 

promulgated pursuant to section 

1022(c)(6), precludes the Bureau from 

disclosing publicly any information 

contained within a consumer complaint 

database. Commenters are correct to 

point out that subpart D generally 

restricts the authority of the Bureau to 

publicly disclose ‘‘confidential 

information,’’ including ‘‘confidential 

consumer complaint information.’’ 22

However, such disclosure restrictions 

only apply to the extent that consumer 

complaint information is confidential in 

nature. The Bureau’s regulations define 

‘‘confidential consumer complaint 

information’’ to mean ‘‘information 

received or generated by the [Bureau], 

pursuant to [sections 1013 and 1034 of 

the Dodd-Frank Act], 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) [the 

FOIA].’’ 23 Because the information to be 

disclosed in the public database is not 

exempt from disclosure under the FOIA, 

as discussed in more detail in part 

III.D.1.a below, such information does 

not constitute ‘‘confidential consumer 

complaint information.’’ As a result, 

there is no applicable rule that 

precludes the Bureau from making such 

information available to the public. 

C. The Impact of the Public Database on 

Consumers 

Consumer groups, privacy groups, 

and consumers commented that the 

public database would help consumers 

make more informed decisions and 

avoid ‘‘bad actors.’’ They also noted that 

consumers can draw their own 

conclusions from the public database. 

Several noted that data do not need to 

be fully verified or random to be of 

some use to outside parties. For 

example, the data might alert outside 

researchers and consumers to 

potentially harmful trends. 

Industry commenters, by contrast, 

asserted that the public database would 

mislead consumers because its contents 

would be unverified, unrepresentative, 

lacking in context, and open to 

manipulation. Each of these general 

assertions is addressed below. Section D 

addresses industry comments that 

disclosure of particular data fields— 

issuer name, zip code, credit card 

complaint type, and discrimination 

fields—would be especially 

inappropriate or misleading. 

1. Verification 

Several trade associations commented 

that the Bureau should not disclose 

unverified data. Some argued that the 

Bureau should exclude complaints 

lacking factual foundation or legal 

merit. Others stated that consumer 

complaints were primarily statements of 

opinion, and not subject to objective 

verification. Several also argued that 

complaints resolved without any 

showing of company fault should be 

excluded as lacking foundation. One 

trade association stated that releasing 

unverified complaint data deprives 

issuers of due process. Privacy and 

consumer groups commented that the 

lack of verification presented only 

minimal risks to issuers because there 

are controls to ensure that complaints 

must come from actual cardholders, and 

issuers are given adequate time to 

dispute their identification. 

The Bureau agrees with industry 

commenters that its complaint process 

does not provide for across the board 

verification of claims made in 

complaints. However, as it has 

previously indicated, the Bureau plans 

to specifically disclaim the accuracy of 

complaints when the data are made 

available to consumers. Outside of its 

own affirmative data reporting, the 

Bureau will allow the marketplace of 

ideas to determine what the data show. 

While the Bureau does not validate 

the factual allegations of complaints, it 

does maintain significant controls to 

authenticate complaints. Issuer names 

are verified using card numbers and by 

other procedures. Each complaint is 

checked to ensure that it is submitted by 

the identified consumer or from his or 

her specifically authorized 

representative. Each submission is also 

reviewed to determine if it is a 

complaint, an inquiry, or feedback about 

the Bureau. Submissions in the latter 

two categories are not forwarded to the 

identified company for handling as 

complaints. Further, each complaint is 

checked to prevent duplicate 

submissions by a consumer who has 

already filed with the Bureau a 

complaint on the same issue. 

Complaints are only forwarded to 

companies when they contain all the 

required fields, including the complaint 

narrative, the consumer’s narrative 

statement of his or her fair resolution, 

the consumer’s contact information, and 


wreier-aviles on DSK7SPTVN1PROD with RULES
37562 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

24M. Beck, Searching for Side Effects, Wall Street 

Journal Online, Jan. 31, 2012. 25See 12 U.S.C. 5493(b)(3)(D). 

the name of a card issuer within the 

scope of Section 1025 of the Dodd-Frank 

Act. 

2. Representativeness 

Several trade associations commented 

that it is inappropriate for the Bureau to 

publish data that is not randomly 

sourced. Non-random complaints, they 

contend, cannot provide consumers 

with useful information. One trade 

association commented that academics 

and researchers would not use such 

unreliable data. 

The Bureau will inform consumers 

and any other public database users that 

the data reflect only the credit card 

complaints that consumers submit to 

the Bureau. Even though similar 

limitations apply to other public 

complaint databases, however, 

experience shows that outside parties 

have, in fact, made reasonable use of 

non-random complaint databases 

disclosed by other agencies. The trade 

associations did not offer any examples 

of misuse of currently available nonrandom data sets or challenge the utility 

of the examples cited by the Bureau. In 

addition to those examples, the Bureau 

notes that two outside companies have 

recently repackaged for consumer use 

drug and medical device data mined 

from the AERS and MAUDE public 

complaint databases maintained by the 

Food and Drug Administration.24

The trade associations also fail to 

acknowledge that consumers currently 

make credit card choices with little or 

no knowledge of consumer complaints. 

It is true that more robust data sets 

might, in theory, be assembled. 

Consumers would be better informed if 

the public database included complaint 

data from issuers’ internal processes or 

even surveys of complainants and noncomplainants. But that does not mean 

that less complete data sets worsen the 

status quo. So long as consumers are 

aware of the limitations of the data, 

there is little or no reason to believe that 

complaint data should make the market 

less informed and transparent. 

Industry comments on 

representativeness also recognized that 

the Bureau is expressly authorized to 

use complaint data to set priorities in its 

supervision process. Some industry 

comments also recognized that the data 

could play a role with respect to other 

statutory obligations, such as fair 

lending enforcement or market 

monitoring. If complaint data can 

provide the Bureau with meaningful 

information, then logically they may 

also prove useful to consumers and 

other reviewers. If the data lacked such 

potential, Congress would not have 

pointed to public complaints as a basis 

to set important Bureau priorities.25

Furthermore, credit card issuers have 

told Consumer Response on numerous 

occasions that they learn valuable 

information from consumer complaints. 

If the data inform issuers, they have the 

potential to inform consumers as well. 

3. Context 

Several trade associations commented 

that Bureau disclaimers about the lack 

of verification or representativeness will 

not effectively warn consumers about 

the limitations of the public database. 

The associations expressed concern that 

consumers and the media will 

inevitably see or portray the information 

as being endorsed by the Bureau, 

notwithstanding the Bureau’s 

disclaimers. In addition, one trade 

group commented that the marketplace 

of ideas cannot prevent consumers from 

being misled by the public database. 

Another commented that the database 

fails to distinguish complaints of major 

and minor significance and that without 

that context, the data are open to 

misinterpretation. 

The Bureau acknowledges the 

possibility that some consumers may 

draw (or be led to) erroneous 

conclusions from the data. That is true, 

however, for any market data. In 

addition, the Bureau’s two-part 

disclosure policy—first, its own 

affirmative reports of data findings that 

it believes may inform consumers, and 

second, a public database that 

researchers and others can mine for 

possible data trends—is intended to 

minimize any consumer confusion 

about the scope of the Bureau’s own 

conclusions with respect to the 

complaint data. The Bureau is open, 

however, to further suggestions from 

trade associations, issuers, and other 

concerned stakeholders on how best to 

provide additional context for the 

public database. 

4. Manipulation 

Several trade associations commented 

that third parties like debt negotiation 

companies could use complaint filing as 

a strategic tool to aid their clients. One 

trade association commented that 

outside parties may artificially inflate 

complaint counts for litigation 

purposes. Several trade associations 

claimed that one outside party has filed 

numerous fraud complaints about a 

single merchant, allegedly for improper 

purposes. 

The Complaint System has a number 

of protections against manipulation. For 

one, the burden of submitting a 

complaint is not negligible. Consumers 

must affirm that the information is true 

to the best of their knowledge and 

belief. The consumer is asked for a 

verifiable account number. If none is 

provided and the consumer is unable to 

produce verifiable documentation of the 

account (such as a statement), the 

complaint is not pursued further. As 

described further at part III.D.1.b below, 

when an issuer offers a reasonable basis 

to challenge its identification, the 

Bureau does not plan to post the 

relevant complaint to the public 

database unless and until the correct 

issuer is identified. Furthermore, 

duplicate complaints from the same 

consumer are consolidated into a single 

complaint. 

The Bureau maintains additional 

controls after complaints are submitted 

and issuers are able to alert the Bureau 

to any suspected manipulation. If 

issuers find this combined package of 

controls insufficient in practice, the 

Bureau will consider suggestions for 

addressing any problems identified, 

including enabling an issuer to flag in 

the public database any complaint entry 

that the issuer reasonably believes is not 

submitted in good faith by or on behalf 

of an individual consumer. 

D. The Impact of Specific Public 

Database Fields on Consumers and 

Credit Card Issuers 

1. Issuer Names 

a. Legal Authority 

Several trade associations commented 

that the Bureau lacks authority to 

include issuer names in the public 

database or its own data reporting. The 

associations argue that the disclosure of 

this information is prohibited by 

Section 1022(c)(8), which requires the 

Bureau to take steps to protect from 

public disclosure confidential 

proprietary information that is exempt 

from disclosure under the FOIA. 

Specifically, they argue that the names 

of issuers are properly subject to 

Exemption 4 of the FOIA, which 

permits agencies to withhold trade 

secrets or confidential commercial 

information that businesses provide to 

it, and that the Bureau must, therefore, 

withhold from publication the names of 

credit card issuers cited in complaints. 

Courts generally hold that Exemption 4 

applies when the submission of 

confidential commercial information is 

required of a business and the 

disclosure of such information would 

result in competitive harm to the 

business or would impair the ability of 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37563 

26See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 

1154 (D.C. Cir. 1987) (‘‘To the extent that any data 

requested under FOIA are in the public domain, the 

submitter is unable to make any claim to 

confidentiality—a sine qua non of Exemption 4’’) 

(italics in original); Northwest Coal. for Alt. to 

Pesticides v. Browner, 941 F. Supp. 197, 202 (D.D.C. 

1996) (‘‘If the information at issue is publicly 

available through other sources, no showing of 

competitive harm can be made.’’). 

27Nat’l Parks and Conservation Ass’n v. Morton, 

498 F.2d 765, 770 (D.C. Cir. 1974). 

28See Ctr to Prevent Handgun Violence v. Dep’t 

of the Treasury, 981 F. Supp. 20, 23 (D.D.C. 1997). 29See id. 30See id. 31See Gen. Elect. Co. v. Nuclear Regulatory 

Comm’n, 750 F.2d 1394, 1402 (7th Cir. 1984) 

(‘‘[T]he competitive harm that attends any 

embarrassing disclosure is not the sort of thing that 

triggers exemption 4.’’). 32See Silverberg v. Dep’t of Health and Human 

Svcs, Civ. A. No. 89–2743, 1991 WL 633740, at *4 

(D.D.C. Jun. 14, 1991) (holding that business ‘‘may 

suffer embarrassment from potential distortions of 

[the disclosed] information, but the case law is clear 

that the government can not withhold confidential 

information under Exemption Four of FOIA on the 

grounds it may cause embarrassment’’). 

33See People for the Ethical Treatment of 

Animals v. Dep’t of Agric., No. Civ. 03 C 195–SBC, 

2005 WL 1241141, at *7 (D.D.C. May 24, 2005) 

(holding that competitive harm would not arise 

from disclosure of information where ‘‘all banks 

would suffer the same alleged harm’’). 

34 5 U.S.C. 552(b)(8). 

35OCC Interpretive Ltr., 1991 WL 338374 (Jan. 14, 

1991). 

36No. 86–1841, slip. op. (D.D.C. Mar. 11, 1988). 

an agency to obtain similar information 

in the future. The associations argue 

that both of these prongs—competitive 

harm and impairment—are satisfied 

with respect to the disclosure of credit 

card issuer names. They argue that the 

disclosure of issuer names would make 

issuers reluctant to respond (and/or 

reticent in responding) to consumer 

complaints and would cause 

competitive harm if the disclosed 

complaints unfairly or misleadingly 

identify them as bad actors. 

The Bureau does not agree that issuer 

names are subject to Exemption 4. As a 

threshold matter, Exemption 4 does not 

protect the names of credit card issuers 

because such information does not 

constitute ‘‘confidential’’ commercial 

information. The identities of the credit 

card issuers who do business with 

consumers are not typically secrets kept 

by the credit card issuers. By and large, 

consumers know this information and 

report it to the Bureau in their 

complaints. Even to the extent that the 

true names of credit card issues are not 

known to consumers when they file 

their complaints, this information 

typically becomes known to consumers 

as part of the complaint investigation 

and resolution process. Information 

which is in the public domain is not 

‘‘confidential’’ and is therefore not 

subject to Exemption 4.26

Further, even if one assumed that the 

names of credit card issuers constitute 

‘‘confidential’’ commercial information, 

this information still does not qualify 

for protection under Exemption 4. To 

qualify for such protection, information 

must be likely either: ‘‘(1) To impair the 

Government’s ability to obtain necessary 

information in the future; or (2) to cause 

substantial harm to the competitive 

position of the person from whom the 

information was obtained.’’27 The 

Bureau concludes that the information 

at issue does not satisfy either prong of 

this test. 

First, the proposed disclosure of 

credit card issuer names is unlikely to 

impair the Bureau’s ability to obtain 

similar information in the future. As 

noted above, it is usually consumers 

who provide the Bureau with the names 

of credit card issuers to which their 

complaints pertain. The decision by 

consumers to submit complaints against 

particular credit card issuers is not 

likely to be affected by the Bureau’s 

policy of disclosing the names of the 

issuers to which complaints apply. The 

Bureau also finds unavailing arguments 

that its proposed policy of disclosing 

issuer names would make issuers 

reluctant to participate further in the 

resolution of consumer complaints. 

Section 1034 of the Dodd-Frank Act 

requires issuers to respond to consumer 

complaints. Courts generally agree that 

the disclosure of information will not 

impede an agency’s efforts to obtain 

such information in the future when the 

information is provided pursuant to 

statutory obligation.28

Second, the Bureau disagrees with 

commenters that the proposed policy of 

disclosing credit card issuer names is 

likely to cause credit card issuers 

substantial competitive harm. It is 

conceivable that consumer complaints 

could contain false or misleading 

allegations against a particular credit 

card issuer and that publication of the 

names of credit card issuers associated 

with such complaints could expose 

those issuers to unwarranted public 

criticism, reputational harm, and 

perhaps even a loss of existing or 

prospective customers. However, such 

harms can be mitigated through the use 

of disclaimers that warn consumers that 

the public database contains data 

reflecting unverified complaints that 

consumers submit to the Bureau. Even 

to the extent that such disclaimers are 

not sufficient to mitigate these harms, 

courts are clear that Exemption 4 is 

designed to protect against harms that 

flow from competitors’ use of the 

released information, not from any use 

made by the public at large or by 

customers.29 Thus, even the prospect of 

unwarranted public criticism and 

harassment,30 embarrassment,31 or 

distortions of the disclosed 

information,32 are not grounds for 

application of Exemption 4. Moreover, 

any harm that arises from publishing the 

names of credit card issuers is one that 

all issuers in the industry share. Harms 

shared among competitors do not 

constitute competitive harms for 

purposes of Exemption 4.33

The associations also argue that FOIA 

Exemption 8 requires the Bureau to 

protect the names of issuers from 

disclosure. Exemption 8 authorizes 

Federal financial regulators to protect 

information relating to the examination 

of financial institutions. The 

associations contend that consumer 

complaints constitute confidential 

supervisory information and that the 

disclosure of these complaints would 

threaten the regulatory relationship 

between financial institutions and the 

Bureau. 

The Bureau disagrees. As noted, 

Exemption 8 protects information that is 

‘‘contained in or related to examination, 

operating, or condition reports prepared 

by, on behalf of, or for the use of an 

agency responsible for the regulation or 

supervision of financial institutions.’’ 34

The scope of this exemption is broad in 

that it applies not only to financial 

institution examination, operating, or 

condition reports, but also to all manner 

of information that relates, even 

indirectly, to the supervision process. 

Notwithstanding the breadth of 

Exemption 8, it typically applies only to 

information that supervisory agencies 

either generate themselves or receive 

from regulated financial institutions or 

from other supervisory agencies. 

Exemption 8 does not typically apply to 

information, like credit card issuer 

names, that consumers supply to 

supervisory agencies outside of the 

supervisory context, except to the extent 

that the agencies later utilize such 

information for supervisory purposes. 

Commenters argue otherwise by citing 

a 1991 FOIA request response letter that 

the Office of the Comptroller of the 

Currency (‘‘OCC’’) sent to a FOIA 

requester.35 In the letter, the OCC 

applies Exemption 8 to deny a request 

for the names of banks associated with 

consumer complaints received by the 

OCC. As its primary authority for its 

decision, the OCC cites an unpublished 

1988 district court opinion in 

Consumers Union v. Office of the 

Comptroller of the Currency.36 In that 

case, the court applied the following 


wreier-aviles on DSK7SPTVN1PROD with RULES
37564 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

37 Id. at 2–3. 38See, e.g., 12 U.S.C. 5493(b)(3)(D). 

rationale to protect the identities of 

banks named in consumer complaints: 

Irrespective of the fact that consumers 

provided the information to defendant and 

that disclosure of the identities of the banks 

against which complaints were made 

probably would not undermine public 

confidence, the portion of the computer 

printout to which plaintiff seeks access falls 

under exemption 8 because this information 

is directly derived from and ‘contained in 

* * * examination reports * * * prepared 

by, * * * or for the use of’ defendant. The 

uncontroverted evidence shows that the bank 

charter numbers in the computer printout are 

contained in examination reports that fall 

within the meaning of Exemption 8 because 

the bank charter numbers are matters 

contained in larger reports, reflecting all 

consumer complaints against banks, which 

defendant forwards to its District offices. 

These larger reports are ‘examination reports’ 

within the meaning of Exemption 8 because 

they analyze and summarize information 

concerning consumer complaints.37

Unlike the complaint information at 

issue in Consumers Union, however, the 

information at issue here is not part of 

an examination report. Also, it is not 

presented within the context of a 

Bureau investigation of issuer conduct. 

Rather, the complaints exist in raw form 

as part of a database intended for public 

use and study. Accordingly, the Bureau 

does not believe that Consumers Union 

is analogous. 

b. Other Comments on Issuer Name 

Disclosure 

Consumer groups commented that the 

disclosure of issuer names represents a 

significant aspect of the Bureau’s policy. 

They noted that other complaint 

databases that disclose the identity of 

specific companies—like NHTSA—have 

created pressure on companies to 

improve whatever metrics are measured 

by the public database. As a result, these 

groups expect the Bureau’s public 

database to cause issuers to compete 

more effectively on customer service 

and product quality. Together with 

privacy and open government groups, 

consumer groups commented that 

outside groups can use the issuer data 

to help consumers make more informed 

decisions about credit card use, a factor 

also cited by the numerous consumers 

who submitted comments through the 

open government organization, OMB 

Watch. 

Industry groups disputed that 

disclosing issuer names serves these or 

any policy purposes. They commented 

that this form of disclosure would 

unfairly damage issuers’ reputation and 

competitive position. One trade 

association indicated that the inclusion 

of issuer names could implicate safety 

and soundness concerns, particularly in 

light of viral media. Another 

commented that disclosing issuer names 

would serve only as ‘‘fodder for 

plaintiffs’ lawyers.’’ One noted that the 

public database would not take account 

of the size and nature of the credit card 

business at different financial services 

providers, which would cause consumer 

confusion. Another suggested that debt 

sellers would attract fewer complaints 

than issuers that collected their own 

debts. 

Trade groups agreed that if issuer 

names were included, they should be 

verified. Several noted that consumers 

would be particularly likely to name the 

merchant or other partner in connection 

with private label or co-brand cards, and 

not the actual issuer. Some noted that 

card numbers would not be sufficient 

for verification because the system will 

accept complaints without a number, 

and some complaints—like declined 

application complaints—will arise even 

when there is no card number. Several 

trade associations argued that some 

complaints are really merchant disputes 

and that the issuer should not be named 

at all. 

The Bureau believes that these 

industry comments fail to acknowledge 

the system controls that are in place to 

verify that a complaint is from a 

cardholder and that the issuer is 

properly identified. No issuer will be 

associated with a complaint if it offers 

a reasonable basis to dispute a 

commercial relationship with the 

consumer. Currently, the Complaint 

System provides issuers 15 days to 

contest issuer identity, which 

experience has shown to be sufficient. 

As noted earlier, there are also system 

controls to avoid double-counting 

duplicate complaints from the same 

consumer. 

For many complaints, credit card 

account numbers provide a reliable 

method to verify the identity of the 

issuer. The Bureau agrees that some 

complaints may identify the issuer as 

the merchant or other partner associated 

with a co-brand or private label card. In 

such cases, the account number 

provided will not match to the name 

provided. As a result, the Bureau 

confirms the account number with the 

consumer, then substitutes the name of 

the correct issuer. The merchant or 

other partner is not named. The Bureau 

also recognizes that there are cases in 

which no credit card number is 

available to the consumer, such as 

declined application complaints. In 

these cases, the Bureau works directly 

with the consumer to identify the 

correct issuer from issuer 

correspondence. If the correct issuer 

cannot be identified in this manner, the 

case will be closed and no data added 

to the public database. 

The Bureau acknowledges, as it did in 

connection with the proposed Policy 

Statement, that there are significantly 

varying views among stakeholders about 

whether this kind of data is useful to 

consumers. However, the Bureau 

continues to believe that this disclosure 

may allow researchers to inform 

consumers about potentially significant 

trends and patterns in the data. In 

addition, given that companies have 

made competitive use of other public 

databases, the Bureau anticipates that 

disclosure has the potential to sharpen 

competition over product quality and 

customer service. 

Furthermore, as several trade 

associations conceded and as previously 

noted above, Congress itself recognized 

that the Bureau may properly use 

consumer complaint data to set 

supervision, enforcement, and market 

monitoring priorities.38 If the Bureau is 

able to use complaint data in this way, 

there is good reason to allow consumers 

and outside researchers to weigh the 

importance of complaint data in their 

own research, analysis, and decisionmaking. Outside review of this kind will 

also help ensure that the Bureau 

remains accountable for tackling the 

complaints that it receives. 

Finally, the Bureau notes the general 

acceptance by consumer and industry 

groups that normalization can improve 

data utility. Thus, although trade 

associations uniformly opposed the 

release of issuer names in the public 

database, many recognized the 

importance of normalizing the data that 

the Bureau decides to release. Only a 

minority of trade groups suggested that 

normalization was not workable and 

urged that issuer names not be disclosed 

for this reason as well. One association 

suggested that normalization cover open 

accounts, closed accounts with a 

balance, accounts without a balance that 

closed within the last year, and 

prospective accounts declined within 

the last year. Consumer groups also 

recognized the importance of 

normalizing data, but none offered any 

indication of the appropriate metrics for 

market share. The Bureau agrees with 

industry commenters that, if possible, 

normalization should make some 

account for closed accounts with a 

balance and declined applications 

because these may generate complaints. 

The Bureau intends to work further with 

commenters on specific normalization 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37565 

39Consumer Response has provided detailed 

guidance to institutions participating in the 

Complaint System regarding these changes. 

Institutions should not rely on the summary 

description provided herein. 

40 If the company provides no substantive or 

explanatory response, it must designate the 

complaint as ‘‘Closed.’’ In conjunction with the 

‘‘Closed with explanation’’ category, this residual 

category differentiates issuers that—having opted 

against substantive relief—choose not to explain 

their conduct to consumers. 

41There may be a lag between the two dates in 

part because, as noted above, consumers do not 

always submit complaints with sufficient 

information. In addition, some complaints are 

received via channels that trigger additional 

processing steps at the Bureau. For example, a Webbased complaint will move to the relevant company 

faster than a hard-copy complaint received from 

another agency that must be input into the Bureau’s 

Web-based system. 

proposals, and welcomes further 

operational suggestions on the point. 

2. Zip Codes 

Consumer groups commented that the 

Bureau should add additional location 

fields, such as city and census tract. 

Several trade associations, however, 

commented that zip code disclosure 

created risks to privacy because zip 

codes can be combined with other data 

to identify consumers, particularly in 

sparsely-populated rural zip codes. 

Trade associations also commented that 

zip code data may be misunderstood to 

imply discriminatory conduct, leading 

to unfounded allegations of 

discrimination. 

The Bureau is mindful of the privacy 

implications of zip code disclosure. As 

a result, it will limit zip code 

disclosures to 5 digits, even if a 

consumer provides the full 9-digit zip 

code. Furthermore, as it analyzes 

narrative disclosure, the Bureau will 

account for zip code disclosures in 

assessing privacy risks. The Bureau will 

also analyze whether there are ways to 

disclose more granular location fields 

without creating privacy risks, as 

suggested by some commenters. 

The Bureau may, as one trade group 

noted, investigate zip code data for 

indications of ‘‘improper trends.’’ The 

Bureau believes that consumers and 

outside researchers should have the 

same opportunity. 

3. Discrimination 

Several trade associations warned 

against disclosure of any data that 

consumers submit in the discrimination 

field of the complaint form. These 

groups commented that in light of the 

seriousness of such allegations, the 

Bureau should not disclose this field 

unless and until it has investigated the 

allegations and determined that they 

have factual support. In support of their 

position, these commenters note that 

some consumers who check the 

discrimination field on the intake form 

fail to include any allegations of 

discrimination in the narrative field. 

The Bureau is continuing to refine its 

methods for identifying discrimination 

allegations from consumers that submit 

complaints. Accordingly, the Bureau 

does not plan to disclose discrimination 

field data in the public database at this 

time. In the interim, the Bureau will 

continue to study the conditions, if any, 

necessary for the appropriate disclosure 

of such information at the individual 

complaint level. The Bureau may also 

report discrimination data at aggregated 

levels in its own periodic complaint 

data reports. 

4. Type of Credit Card Issue 

Trade and consumer groups agreed 

that the Bureau could improve this data 

field in several respects. First, a 

consumer should be able to select 

several issues for a given complaint. 

Second, the issue categories should be 

better explained and differentiated. One 

trade association also commented that 

the Bureau should not rely on 

consumers for this data point. 

The Bureau agrees that a consumer 

should be able to ‘‘tag’’ a complaint as 

implicating more than one issue. It is 

working to develop the required 

functionality. In addition, the Bureau is 

weighing possible improvements to the 

issue categories and is considering the 

extent to which Bureau staff should 

‘‘tag’’ complaints as raising certain 

issues. The Bureau welcomes further 

input from stakeholders on how to 

improve the issue categories. 

5. Issuer Disposition 

Consumer groups commented on the 

need to include data about the issuer’s 

response, the consumer’s assessment of 

that response, and the timing of each of 

those steps, so that a user of the public 

database would know how fast 

complaints are handled and how often 

an issuer response is disputed. 

Consumer groups also urged the 

addition of more resolution-related data 

categories, such as categories that would 

explain why a complaint remains 

unresolved. 

Several trade associations commented 

that the ‘‘Closed without relief’’ issuer 

response category was not meaningful 

and should be revised. These groups 

claimed that the category suggests an 

inappropriate response even though 

certain complaints are appropriately 

closed without any form of relief, such 

as meritless complaints or complaints 

that have already been appropriately 

handled by means of the issuer’s 

internal complaints process. In addition, 

there will be complaints appropriately 

closed with non-monetary relief, which, 

under the Bureau’s current system, do 

not meet the monetary criteria for 

‘‘Closed with relief.’’ As a result, trade 

groups expressed concern that 

resolution rates would be undercounted. 

On that basis, some trade groups asked 

the Bureau to restore its prior 

resolution-related categories: full, 

partial, and no resolution. Others urged 

that the Bureau subdivide the ‘‘Closed 

with relief’’ category into monetary and 

non-monetary relief subcategories. 

In light of these comments, the 

Bureau has made several changes to the 

Complaint Systems’ issuer response 

categories.39 First, where an issuer 

provides relief to the consumer, the 

issuer may categorize the complaint as 

either ‘‘Closed with monetary relief’’ or 

‘‘Closed with non-monetary relief.’’ To 

qualify for the ‘‘Closed with monetary 

relief’’ category, the company’s response 

must provide objective and verifiable 

monetary relief that is measurable in 

dollars. To qualify for ‘‘Closed with 

non-monetary relief,’’ the response must 

provide the consumer with objective 

and verifiable relief that does not meet 

the definition of monetary relief. These 

categories reduce any risk that reviewers 

fail to accord appropriate significance to 

cases that issuers close with nonmonetary relief. Second, the Bureau has 

added a ‘‘Closed with explanation’’ 

response category, which may be used 

when the issuer believes that the 

complaint does not merit substantive 

relief, and instead provides a full 

explanation to that effect to the 

consumer. This category recognizes that 

in some instances, a thorough 

explanation will serve to resolve the 

consumer’s complaint. At the same 

time, it allows reviewers and consumers 

to see in more detail how issuers, 

collectively and separately, resolve the 

complaints filed against them.40

6. Date Fields 

Finally, the Bureau agrees with the 

commenters who urged the inclusion of 

relevant dates in the public database. 

Initially, the Bureau will be able to 

include the date that a complaint is sent 

to the Bureau and the date that the 

Bureau forwards it to the relevant 

company.41 The Bureau is currently 

developing the technical ability to 

publish other date fields including the 

date that a company responds. When 

this is feasible, the Bureau plans to 

include additional date fields in the 

public database. 


wreier-aviles on DSK7SPTVN1PROD with RULES
37566 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

42Under the Bureau’s current system, the 

company has 15 days from its receipt of the 

complaint to state its initial response to that 

complaint. That initial response can seek up to an 

additional 45 days to finalize the response. 

E. Potential Impacts of Undisclosed 

Fields 

The Bureau received a number of 

comments about data fields that the 

proposed Policy Statement did not list 

for disclosure in the public database. 

The Bureau is not shifting any of these 

fields into the disclosed category in the 

final Policy Statement, though several 

fields remain under assessment for 

potential inclusion at a later date. 

1. Consumer Narratives 

The issue of disclosing consumer 

narratives generated the most 

comments. Each consumer comment 

letter submitted by OMB Watch 

requested access to narratives ‘‘to help 

me make better financial decisions and 

avoid bad actors.’’ Consumer, civil 

rights, open government, and privacy 

groups uniformly supported disclosure 

on the grounds that it would provide 

consumers with more useful 

information on which to base financial 

decisions and would allow reviewers to 

assess the validity of the complaint. As 

noted, these groups submitted a 

coordinated proposal that would give 

the consumer a default option to submit 

narrative information for public 

disclosure. Recognizing the need to 

protect privacy interests, the 

commenters’ proposal calls for the 

Bureau to use algorithms to detect 

personally identifiable information in 

narratives slated for disclosure, with 

back-up manual review by staff and 

consumers of any narratives that the 

algorithm identifies. Subject to FOIA 

limitations, however, the proposal 

would also provide a consumer the 

chance to opt out of narrative 

disclosure, in whole or in part. 

Narratives that the consumer opts out 

would not be disclosed in the normal 

course. 

The two privacy groups expounded 

on privacy risks in the most detail, 

echoing the Bureau’s acknowledgment 

that a detailed narrative may enable reidentification even if it does not contain 

standard personally identifiable 

information like a name or account 

number. One privacy group noted that 

the privacy risk from ‘‘non-identifiable’’ 

data is increasing all the time. The other 

noted that after it established its own 

online complaint system, it received a 

number of ‘‘extraordinarily detailed and 

unique complaints’’ that would have 

been inappropriate to disclose without 

express consent and heavy redaction or 

summarization. Although this group 

supported disclosure on an opt-in basis, 

it urged the Bureau to study a large 

sample of complaint narratives before 

resolving on its final course. 

Trade groups and industry 

commenters uniformly opposed 

disclosure of consumer narratives. 

Several suggested that if the Bureau 

resolved to disclose narratives, it might 

inadvertently disclose personally 

identifiable information, with 

potentially significant consequences to 

the affected individuals. These 

commenters also argued that narrative 

disclosure might undermine the 

Bureau’s mission to the extent that 

consumers, fearing potential disclosure 

of their personal financial information, 

became reluctant to file complaints. 

Some industry commenters argued 

against narrative opt-ins or opt-outs, 

claiming that consumers would not take 

time to read them or to understand the 

consequences of their choices. One 

privacy group also cautioned against the 

use of opt-in or opt-out approaches on 

grounds that consumers do not 

generally understand them and will 

usually select the default option, 

undermining the notion that a consumer 

has thereby ‘‘consented’’ to publication. 

As a result, the privacy group urged that 

the Bureau explore the use of data 

agreements, whereby users could have 

access to select narratives subject to a 

contractual agreement not to attempt reidentification. 

While acknowledging the general lack 

of consensus in this area, the Bureau 

notes that almost all commenters agreed 

that the privacy risks of narrative 

disclosure must be carefully addressed 

if narrative disclosure is to take place. 

Accordingly, the Bureau will not 

publish narrative data until such time as 

the privacy risks of doing so have been 

carefully and fully addressed. In 

addition to assessing the feasibility of 

redacting personally identifiable 

information (‘‘PII’’) and other reidentifying narrative information, by 

algorithmic and/or manual methods, the 

Bureau will carefully consider whether 

there are ways to give submitting 

consumers a meaningful choice of 

narrative disclosure options. 

2. Responsive Issuer Narratives 

Consumer groups argued that issuers 

should have the same ability as 

consumers to offer their responsive 

narratives for either public disclosure or 

private communication to the consumer. 

According to these commenters, this 

mechanism would protect consumer 

privacy, allow for effective 

communication between consumers and 

issuers, and permit issuers to respond 

publicly to public complaint narratives. 

Trade associations disagreed, arguing 

that the Gramm-Leach-Bliley Act 

prohibits them from publicly disclosing 

any PII about their customers. In light of 

the Bureau’s current disclosure position 

on consumer narratives, however, the 

Bureau is not resolving this issue at this 

point. 

F. Addition of New Data Fields 

Several consumer groups requested 

the Bureau to add new data fields for 

collection and disclosure via the public 

database. One group suggested that the 

database identify the specific card 

product, not the issuer alone. As noted, 

several groups urged that location data 

be provided at the city or census tract 

level to help identify discriminatory 

practices. To that same end, several 

groups urged the collection of 

demographic data on a voluntary basis. 

The Bureau is open to the inclusion 

of additional data fields and will 

continue to work with external 

stakeholders to address the value of 

adding such fields. The Bureau notes, 

however, that additional data categories 

will logically fall into one of two 

groups, each of which implicates 

different policy concerns and trade-offs. 

First, the Bureau can disclose new data 

fields by adding them to the intake form 

for consumers to complete. These fields 

impose additional burden on the 

consumer and may make the submission 

of a complaint that much less likely. 

Second, the Bureau can derive 

additional data fields from a complaint 

submitted on the existing intake form. 

Thus, the Bureau could tag complaints 

by issue or by other criteria. New fields 

of this type would not impose a burden 

on consumers, but they would impose 

an additional burden on the Complaint 

System and the Bureau’s resources. 

G. When Complaint Data Will Be Added 

to the Public Database 

One consumer group commented that 

data should be uploaded 10 days after 

the submission of a complaint. This 

group also urged that the issuer be 

required to respond substantively to the 

complaint within that same 10-day 

window.42 Several trade associations, 

however, noted that the complaint 

process may allow up to 60 days for a 

substantive response and, on that basis, 

argued that data for a given complaint 

should not be uploaded until the 60-day 

period has run. Finally, one privacy 

group endorsed the proposed 30-day lag 

between a consumer submitting a 

complaint and the Bureau adding the 

applicable data to the public database. 

The Bureau’s rationale for the 30-day 

lag was to ensure that issuers have 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37567 

43The Bureau will consider requests for more 

than 15 days to determine identity only on an 

exceptional, case-by-case basis. If the Bureau were 

to authorize such an extension, it would not post 

the relevant complaint to the database in the 

interim. 44Along the same lines, one trade group objected 

to the disclosure of issuer names in part because the 

Bureau’s database would only include complaints 

against larger financial institutions. 

45For example, the system will enable a user to 

know the 5-digit zip code distribution of all billing 

dispute claims, or the complaint-type distribution 

of all complaints associated with one issuer or one 

time period. 

46Additional fields remain under consideration 

for potential inclusion. 

sufficient time to determine whether 

they are the identified issuer before any 

data about the complaint is disclosed. 

Experience shows, however, that issuers 

do not need more than 15 days from 

their receipt of the complaint to make 

this determination. As a result, the 

Bureau proposes to revise the posting 

schedule. Under the revised approach, 

the Bureau will add field data subject to 

disclosure to the public database once 

the issuer has made a timely response 

within the 15-day window (‘‘Closed 

with monetary relief,’’ ‘‘Closed with 

non-monetary relief,’’ ‘‘Closed with 

explanation,’’ ‘‘Closed’’ or ‘‘In 

progress’’) or has failed to make any 

response within 15 days. This means 

that almost all complaints will be 

subject to posting at or before the 15-day 

mark, improving the timeliness of data 

in the public database. However, if the 

company can make a reasonable 

showing within the 15 days that the 

consumer’s identification is incorrect, 

the complaint will not be published 

unless and until the correct issuer is 

identified.43

Once data for a given complaint has 

been posted to the public database, any 

new data fields for that complaint will 

be added to the public database as they 

become available. Thus, if a company 

makes a late response, its response will 

be included in the public database, but 

that response would also show as 

untimely. The Bureau currently 

proposes to update the public database 

once each day, subject to the initial lag 

period that applies to a given complaint. 

H. Posting Data for Complaints 

Submitted to Other Regulators 

One consumer group commented that 

the public database should include data 

on complaints that the Bureau forwards 

to other agencies. This group also 

commented that the Bureau should 

encourage other agencies to submit 

complaints to the same public 

database.44

The Bureau agrees that the utility of 

the public database would be improved 

by the inclusion of as many complaint 

records as possible. As a result, it is 

open to other regulators providing 

parallel complaint data for inclusion in 

the public database. Until that can be 

achieved, however, the Bureau does not 

believe it would be that useful to 

include referred complaints in the 

public database. The Bureau would not 

be able to describe how and when a 

referred complaint was responded to, or 

whether the consumer accepted or 

disputed the outcome. In addition, the 

Bureau would not have verified the 

existence of a commercial relationship 

between the company and the 

consumer. 

I. Public Database Tools 

Consumer groups recommended a 

number of particular tools for accessing 

the public database. One group urged 

that the tools directly generate ranking 

data. Another argued that the access 

system should be able to generate 

percentage shares for one variable in 

terms of another. 

The Bureau will use a data platform 

to make the complaints publicly 

available. This platform has a number of 

important features. First, users can 

search and filter the data across any of 

the data fields.45 Second, users can 

build their own data visualizations, 

which can then be embedded on other 

Web sites and shared via social media. 

These visualizations can stay up-to-date 

with the Bureau’s public database as it 

receives new data. This makes it easy 

for reviewers to disseminate information 

from the database, reducing transaction 

costs in the marketplace of ideas. Third, 

the platform allows users to submit 

public comments for potential 

refinements and improvements to the 

public database. Fourth, the data will be 

provided in a machine-readable format 

via an Application Programming 

Interface. This will allow third parties to 

build their own tools for leveraging the 

data, further reducing transaction costs 

and improving dissemination. 

J. Extension of Policy Statement to 

Complaint Data for Other Consumer 

Products and Services 

The Concurrent Notice published in 

the Federal Register describes the 

Bureau’s proposal to extend the Policy 

Statement to all consumer products and 

services within the Bureau’s 

jurisdiction. Responsive comments are 

due on or before July 19. 

IV. Final Policy Statement 

The text of the final Policy Statement 

is as follows: 

1. Purposes of Credit Card Complaint 

Data Disclosure 

The Bureau receives credit card 

complaints from consumers. The Bureau 

intends to disclose certain information 

about credit card complaints in a public 

database and in the Bureau’s own 

periodic reports. 

The purpose of this disclosure is to 

provide consumers with timely and 

understandable information about credit 

cards and to improve the functioning of 

the credit card market. By enabling 

more informed decisions about credit 

card use, the Bureau intends for its 

complaint data disclosures to improve 

the transparency and efficiency of the 

credit card market. 

2. Public Access to Data Fields 

Data from complaints that consumers 

submit will be uploaded to a publicly 

accessible database, as described below. 

a. Complaints Included in the Public 

Database 

To be included in the public database, 

complaints must: (a) Not be duplicative 

of another complaint at the Bureau from 

the same consumer; (b) not be a 

whistleblower complaint; (c) within the 

scope of the Bureau’s authority under 

section 1025 of the Consumer Financial 

Protection Act; and (d) be submitted by 

a consumer (or his or her authorized 

representative) with an authenticated 

commercial relationship with the 

identified issuer. The public database 

will initially include data from credit 

card complaints submitted on or after 

June 1, 2012. 

b. Fields Included in the Public 

Database 

For included complaints, the Bureau 

will upload to the public database 

certain non-narrative fields that do not 

call for PII. The Bureau plans to include 

these fields: 

(i) Bureau-assigned unique ID 

number; 

(ii) Channel of submission to Bureau; 

(iii) Date of submission to Bureau; 

(iv) Consumer’s 5-digit zip code; 

(v) Subject matter; 

(vi) Date of submission to company; 

(vii) Company name; 

(viii) Company response category; 

(ix) Whether the company response 

was timely; and 

(x) Whether the consumer disputed 

the response.46

The consumer generates data for 

fields (iv), (v), (vii), and (x). The Bureau 

will authenticate the consumer’s 

identification of the relevant company 


wreier-aviles on DSK7SPTVN1PROD with RULES
37568 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 

47The consumer’s card number generally will 

enable authentication of the correct issuer. If a card 

number is not available, the Bureau works directly 

with the consumer to identify the correct issuer 

from issuer correspondence such as statements or 

letters. If the correct issuer cannot be identified in 

this manner, no data is posted to the database. 

48 If a response is untimely, at either the 15 or 60- 

day mark, field (ix) will show that the issuer did 

not respond on a timely basis. The issuer’s 

substantive response, if it eventually makes one, 

will still be shown in field (viii), but the 

untimeliness entry will remain. 

49The Bureau is not planning to disclose the 

consumer’s claimed amount of monetary loss and, 

as a result, believes it would be inappropriate to 

disclose, in the individual case, the amount of relief 

provided by the issuer. The Bureau, however, may 

include non-individual data on monetary relief in 

its own periodic reports. The Bureau has 

determined not to include the consumer’s claimed 

amount of monetary relief because a review of 

complaints shows that consumers have had 

difficulty stating the amount and prefer to provide 

a narrative description of the relief that they believe 

to be appropriate. 50See note 2. 

in field (vii), and finalize the entry in 

that field as appropriate.47 The Bureau 

intends to use the name of the issuer as 

disclosed in Nilson Report data on the 

credit card market. If a company 

demonstrates by the 15-day deadline 

that it has been wrongly identified, no 

data for that complaint will be posted 

unless and until the correct issuer is 

identified. At the 15-day mark, however, 

the Bureau will post the complaint data 

with the originally identified issuer in 

field (vii) so long as the Bureau has card 

number or documentary data to support 

the identification. If the Bureau cannot 

reasonably identify the company, 

however, the complaint will be closed 

without posting to the public database. 

The complaint system automatically 

populates the two date fields, (iii) and 

(vi). The Bureau completes fields (i), (ii), 

and (ix).48 The issuer completes field 

(viii). If it selects ‘‘Closed with monetary 

relief’’ for field (viii), the issuer will also 

enter the amount of monetary relief 

provided, although that information will 

not be included in the public 

database.49 Field (viii) will show as ‘‘In 

progress’’ if the issuer responds with a 

request within 15 days for the full 60- 

day response period. The issuer’s later 

response will then overwrite the ‘‘In 

progress’’ data entry. 

c. When Data Is Included in the Public 

Database 

The Bureau will generally add field 

data to the public database for a given 

complaint within 15 days of forwarding 

the complaint to the company in 

question. If the company responds 

‘‘Closed with monetary relief,’’ ‘‘Closed 

with non-monetary relief,’’ ‘‘Closed with 

explanation,’’ ‘‘Closed,’’ or ‘‘In 

progress’’ before the 15-day deadline for 

response, the Bureau will then post 

applicable data for that complaint to the 

public database. If the company fails to 

respond at all by the 15-day deadline, 

the Bureau will also post data for that 

complaint at that point. In this case, the 

issuer response category field will be 

blank and the untimely response field 

will be marked. As noted above, if a 

company demonstrates by the 15-day 

deadline that it has been wrongly 

identified, no data for that complaint 

will be posted unless and until the 

correct issuer is identified. Once the 

Bureau discloses some data for a given 

complaint, it will add to the public 

database any new complaint data that 

are subject to disclosure as they become 

available. Subject to these various 

restrictions, data will be posted to the 

public database on a daily basis. 

d. Public Access 

A public platform for the public 

database will enable user-defined 

searches of the posted field data. Each 

complaint will be linked with a unique 

identifier, enabling reviewers to 

aggregate the data as they choose, 

including by complaint type, issuer, 

location, date, or any combination of 

these variables. The data platform will 

also enable users to save and 

disseminate their data aggregations. 

These aggregations can be automatically 

updated as the public database expands 

to include more complaints. Finally, 

users will be able to download the data 

or leverage it via an Application 

Programming Interface. 

e. Excluded Fields 

The public database will not include 

personally identifying fields such as a 

consumer’s name, credit card number, 

or address information other than a 

5-digit zip code. At least until it can 

conduct sufficient further study, the 

Bureau will not post to the public 

database the consumer’s narrative 

description of ‘‘what happened’’ or his 

or her description of a ‘‘fair resolution.’’ 

The Bureau also will not post a 

company’s narrative response. These 

narrative fields may contain personally 

identifiable information or other 

information that could enable 

identification. The possibility of 

disclosure may also suppress 

complaints and/or reduce the specificity 

of complaint narratives, potentially 

undermining the effectiveness of the 

complaint process. In addition, the 

company’s response may contain 

material protected from disclosure 

under consumer privacy laws. The 

Bureau intends to study the potential 

inclusion of narrative fields as described 

further in section 4 of this Policy 

Statement. 

3. Regular Bureau Reporting on 

Complaints 

At periodic intervals, the Bureau 

intends to publish reports about 

complaint data, which may contain its 

own analysis of patterns or trends that 

it identifies in the complaint data. So 

far, the Bureau has published three 

reports containing aggregate complaint 

data.50 The Bureau intends for its 

reporting to provide information that 

will be valuable to consumers and other 

market participants. Before determining 

what reports to issue beyond those 

relating to its own handling of 

complaints, the Bureau will study the 

volume and content of complaints that 

it has received in a given reporting 

period for patterns or trends that it is 

able to discern from the data. If the data 

will support it, the Bureau intends for 

its reports to include some standardized 

metrics that would provide comparisons 

across reporting periods. The reports 

will also describe the Bureau’s use of 

complaint data across the range of its 

statutory authorities during a reporting 

period. Because monetary relief data 

will not be included in the individuallevel public database, the Bureau 

anticipates such data will be included at 

non-individual levels in its own 

periodic reporting. 

4. Matters for Further Study 

Going forward, the Bureau intends to 

study the effectiveness of its credit card 

complaint disclosure policy in realizing 

its stated purposes. In addition, the 

Bureau will analyze the narrative fields 

submitted by consumers and issuers. 

The analysis will assess whether there 

are practical ways to disclose narrative 

data in a manner that will improve 

consumer understanding without 

undermining privacy interests or the 

effectiveness of the credit card 

complaint process and without creating 

unwarranted reputational injury to 

issuers. 

5. Effect of Policy Statement 

This Policy Statement is intended to 

provide guidance regarding the Bureau’s 

exercise of discretion to publicly 

disclose certain data derived from 

consumer complaints. The Policy 

Statement does not create or confer any 

substantive or procedural rights on third 

parties that could be enforceable in any 

administrative or civil proceeding. 

Authority: 12 U.S.C. 5492(a), 5493(b)(3)(C), 

5496(c)(4), 5511(b)(1), (5), 5512(c)(3)(B). 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations 37569 

Dated: June 14, 2012. 

Richard Cordray, 

Director, Bureau of Consumer Financial 

Protection. 

[FR Doc. 2012–15163 Filed 6–21–12; 8:45 am] 

BILLING CODE 4810–AM–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2012–0217; Airspace 

Docket No. 12–AEA–2] 

Establishment of Class D Airspace and 

Amendment of Class E Airspace; East 

Hampton, NY 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action establishes Class 

D airspace and amends existing Class E 

airspace at East Hampton, NY, to 

accommodate the new mobile airport 

traffic control tower (ATCT) at East 

Hampton Airport. Controlled airspace 

enhances the safety and management of 

Instrument Flight Rules (IFR) operations 

at the airport. This action also updates 

the geographic coordinates of the 

airport’s existing Class E airspace and 

eliminates Class E extensions that are no 

longer required. 

DATES: Effective 0901 UTC, July 26, 

2012. The Director of the Federal 

Register approves this incorporation by 

reference action under title 1, Code of 

Federal Regulations, part 51, subject to 

the annual revision of FAA Order 

7400.9 and publication of conforming 

amendments 

FOR FURTHER INFORMATION CONTACT: John 

Fornito, Operations Support Group, 

Eastern Service Center, Federal Aviation 

Administration, P.O. Box 20636, 

Atlanta, Georgia 30320; telephone (404) 

305–6364. 

SUPPLEMENTARY INFORMATION: 

History 

On March 15, 2012, the FAA 

published in the Federal Register a 

Notice of Proposed Rulemaking (NPRM) 

to establish Class D and E airspace and 

amend existing Class E airspace at East 

Hampton, NY, to accommodate a new 

air traffic control tower at East Hampton 

Airport (77 FR 15297). Interested parties 

were invited to participate in this 

rulemaking effort by submitting written 

comments on the proposal to the FAA. 

Two positive comments were received 

in support of the airspace. One negative 

comment letter was received. 

One positive response was received 

from the Town of East Hampton. The 

other positive commenter, the East 

Hampton Aviation Association, 

observed that establishment of Class D 

airspace would provide greater safety to 

IFR operations during bad weather 

conditions. The FAA agrees with this 

observation. 

The negative response comment was 

received from the Eastern Region 

Helicopter Council, Inc. (ERHC). ERHC 

made several observations in its 

comment letter. The FAA does not agree 

with this commenter’s observations or 

conclusion. Each of the commenter’s 

observations are outlined and addressed 

below. 

The ERHC observed that the purpose 

of Class D airspace is to protect IFR 

operations; that the East Hampton tower 

will not have radar capabilities; that the 

tower will not have the authority to 

require helicopters to fly specific 

arrival/departure flight paths; and that 

most helicopter operations already 

comply with the voluntary noise 

abatement procedures; therefore, the 

commenter concludes that the airspace 

changes are not needed. 

The FAA does not agree. The 

protection provided by Class D airspace 

to IFR operations is not based on the 

tower’s ability to use radar to provide 

separation. Rather, the airspace 

establishes higher weather minima for 

VFR flights, thus restricting access of 

VFR flights to the airspace while IFR 

operations are in progress. 

The ERHC commented that an 

unintended consequence of establishing 

Class D airspace would be increased 

noise impact from helicopters that are 

forced to wait outside the Class D 

airspace during adverse weather 

conditions. 

While the FAA agrees that one-at-atime Special VFR operations may have 

the potential for creating adverse effects, 

separation rules for Special VFR 

operations in Class D airspace allow for 

multiple helicopters to operate in Class 

D airspace at the same time, as long as 

they operate at a safe distance from IFR 

operations. Use of these rules requires 

the helicopter operators to enter into a 

Letter of Agreement (LOA) with the 

FAA. Use of these rules will allow the 

helicopter operators to minimize any 

delays they may experience due to the 

airspace, as well as provide a higher 

level of safety to all operations in 

adverse weather conditions. 

The ERHC observed that one purpose 

of establishing a tower at East Hampton 

Airport is for helicopter noise mitigation 

purposes. 

The FAA does not agree. The purpose 

of control towers and Class D airspace 

is the safe and efficient use of airspace. 

Class D airspace provides controlled 

airspace to contain IFR arrival and 

departure operations. Further, Class D 

enhances safety by setting VFR weather 

minima specified in 14 CFR § 91.155 

and the communications and other 

operating requirements in 14 CFR 

91.129. 

The Proposed Rule included a Class E 

surface area to be in effect when the 

control tower is closed. One prerequisite 

for the establishment of controlled 

airspace at the surface of an airport is 

the availability of hourly and special 

weather observations. Currently this 

prerequisite is only met during the dates 

and times when the tower will be 

operating. Therefore, the Class E surface 

area has been removed from this rule 

action. 

The current Class E5 Airspace Areas 

Extending Upward from 700 feet or 

More Above the Surface of the Earth 

(E5) includes two extensions for the 

support of IFR approach procedures. 

The approaches published for East 

Hampton Airport have been modified 

since this airspace was established and 

these extensions are no longer required 

for safe IFR operations. Therefore, they 

are being removed as part of the rule. 

Class D and E airspace designations 

are published in Paragraphs 5000 and 

6005, respectively, of FAA Order 

7400.9V dated August 9, 2011, and 

effective September 15, 2011, which is 

incorporated by reference in 14 CFR 

71.1. The Class D and E airspace 

designations listed in this document 

will be published subsequently in the 

Order. 

The Rule 

This amendment to Title 14, Code of 

Federal Regulations (14 CFR) part 71 

establishes Class D airspace extending 

upward from the surface to and 

including 2,500 feet MSL within a 4.8- 

mile radius of East Hampton Airport, 

East Hampton, NY. Controlled airspace 

supports the new airport traffic control 

tower for continued safety and 

management of IFR operations at East 

Hampton Airport. This action also 

amends Class E airspace extending 

upward from 700 feet above the surface 

within a 7.3-mile radius of the airport. 

The geographic coordinates of the 

airport are adjusted to be in concert 

with the FAA’s current aeronautical 

database. 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 


wreier-aviles on DSK7SPTVN1PROD with RULES