[Federal Register Volume 87, Number 131 (Monday, July 11, 2022)]
[Rules and Regulations]
[Pages 41042-41046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14150]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Part 1022


The Fair Credit Reporting Act's Limited Preemption of State Laws

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Interpretive rule.

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SUMMARY: States play an important role in the regulation of consumer 
reporting. State laws that are not ``inconsistent'' with the Fair 
Credit Reporting Act (FCRA) are generally not preempted by that 
statute. The FCRA also expressly preempts certain categories of State 
laws. This interpretive rule clarifies that FCRA's express preemption 
provisions have a narrow and targeted scope. States therefore retain 
substantial flexibility to pass laws involving consumer reporting to 
reflect emerging problems affecting their local economies and citizens. 
For example, if a State law were to forbid consumer reporting agencies 
from including information about medical debt, evictions, arrest 
records, or rental arrears in a consumer report (or from including such 
information for a certain period of time), such a law would generally 
not be preempted. Likewise, if a State law were to prohibit furnishers 
from furnishing such information to consumer reporting agencies, such a 
law would also not generally be preempted. Similarly, if a State law 
required that a consumer reporting agency provide information required 
by the FCRA at the consumer's requests in languages other than English, 
such a law would generally not be preempted.

DATES: This interpretive rule is effective on July 11, 2022.

FOR FURTHER INFORMATION CONTACT: Shiva Nagaraj, Senior Counsel, Legal 
Division, and Bradley Lipton, Senior Counsel, Legal Division, (202) 
435-7700. If you require this document in an alternative electronic 
format, please contact <a href="/cdn-cgi/l/email-protection#1c5f5a4c5e435d7f7f796f6f757e75707568655c7f7a6c7e327b736a"><span class="__cf_email__" data-cfemail="3675706674697755555345455f545f5a5f424f765550465418515940">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    The Fair Credit Reporting Act (FCRA)--which was enacted in 1970 and 
has since been amended several times--was intended by Congress to 
``ensure fair and accurate credit reporting, promote efficiency in the 
banking system, and protect consumer privacy.'' Safeco Ins. Co. of Am. 
v. Burr, 551 U.S. 47, 52 (2007). The FCRA ``imposes a host of 
requirements concerning the creation and use of consumer reports.'' 
Spokeo, Inc. v. Robins, 578 U.S. 330, 335 (2016). Among other things, 
the statute sets forth the permissible uses of consumer reports, 
establishes limits for information included in consumer reports, and 
creates a process for consumers to dispute information in their credit 
files.
    In the Consumer Financial Protection Act of 2010, Congress granted 
the Consumer Financial Protection Bureau general rulemaking authority 
over the FCRA (except for certain provisions that are administered by 
other Federal agencies).\1\ The Bureau also has authority to enforce 
the FCRA, along with other Federal regulators.\2\
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    \1\ The Bureau is generally authorized to issue regulations as 
``necessary or appropriate to administer and carry out the purposes 
and objectives of [the FCRA], and to prevent evasions thereof or to 
facilitate compliance therewith.'' 15 U.S.C. 1681s(e)(1). The CFPA 
did not, however, transfer to the Bureau rulemaking authority for 15 
U.S.C. 1681m(e) (``Red Flag Guidelines and Regulations Required''') 
and 15 U.S.C. 1681w (`''Disposal of Records'').
    \2\ 15 U.S.C. 1681s(b).
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    States also play an important role in the regulation of consumer 
reporting. The FCRA itself grants States the authority to enforce the 
statute.\3\ Additionally, in the wake of Congress's enactment of the 
FCRA, many States passed their own versions of the statute. States have 
continued to enact legislation regulating the conduct of consumer 
reporting agencies, furnishers, and users of consumer reports. In some 
cases, State legislation provides protections to consumers that go 
above and beyond the requirements of the FCRA.
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    \3\ 15 U.S.C. 1681(c).
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    These State statutes exist alongside the FCRA, which says that--
subject to certain exceptions--it ``does not annul, alter, affect, or 
exempt any person subject to [the FCRA] from complying with the laws of 
any State with respect to the collection, distribution, or use of any 
information on consumers, or for the prevention or mitigation of 
identity theft, except to the extent that those laws are inconsistent 
with any provision of this subchapter, and then only to the extent of 
the inconsistency.'' \4\ In other words, State laws that are not 
``inconsistent'' with the FCRA--including State laws that are more 
protective of consumers than the FCRA--are generally not preempted.
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    \4\ 15 U.S.C. 1681t(a); see also Davenport v. Farmers Ins. 
Group, 378 F.3d 839, 842 (8th Cir. 2004) (``The FCRA makes clear 
that it is not intended to occupy the entire regulatory field with 
regard to consumer reports.'').
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    The FCRA also expressly preempts certain categories of State laws. 
As relevant here, 15 U.S.C. 1681t(b) says that ``[n]o requirement or 
prohibition may be imposed under the laws of any State with respect to 
any subject matter regulated under'' certain sections or subsections of 
the FCRA:
    <bullet> subsection (c) or (e) of section 1681b, relating to the 
prescreening of consumer reports;
    <bullet> section 1681i, relating to the time by which a consumer 
reporting agency must take any action, including the provision of 
notification to a consumer or other person, in any procedure related to 
the disputed accuracy of information in a consumer's file, [with an 
exception for laws in effect on September 30, 1996];
    <bullet> subsections (a) and (b) of section 1681m, relating to the 
duties of a person

[[Page 41043]]

who takes any adverse action with respect to a consumer;
    <bullet> section 1681m(d), relating to the duties of persons who 
use a consumer report of a consumer in connection with any credit or 
insurance transaction that is not initiated by the consumer and that 
consists of a firm offer of credit or insurance;
    <bullet> section 1681c, relating to information contained in 
consumer reports, [with an exception for laws in effect on September 
30, 1996];
    <bullet> section 1681s-2, relating to the responsibilities of 
persons who furnish information to consumer reporting agencies [with 
exceptions for certain enumerated State laws]
    <bullet> section 1681g(e), relating to information available to 
victims under section 1681g(e);
    <bullet> section 1681s-3, relating to the exchange and use of 
information to make a solicitation for marketing purposes;
    <bullet> section 1681m(h), relating to the duties of users of 
consumer reports to provide notice with respect to terms in certain 
credit transactions;
    <bullet> subsections (i) and (j) of section 1681c-1 relating to 
security freezes; or
    <bullet> subsection (k) of section 1681c-1, relating to credit 
monitoring for active duty military consumers.
    Similarly, 15 U.S.C. 1681t(b)(5) says that ``[n]o requirement or 
prohibition may be imposed under the laws of any State with respect to 
the conduct required by the specific provisions of'' certain sections 
or subsections of the FCRA:
    <bullet> section 1681c(g);
    <bullet> section 1681c-1;
    <bullet> section 1681c-2;
    <bullet> section 1681g(a)(1)(A);
    <bullet> section 1681j(a);
    <bullet> subsections (e), (f), and (g) of section 1681m;
    <bullet> section 1681s(f);
    <bullet> section 1681s-2(a)(6); or
    <bullet> section 1681w.
    This interpretive rule clarifies the preemptive scope of 15 U.S.C. 
1681t(b), with a particular focus on 15 U.S.C. 1681t(b)(1) and (5), 
which have been the subject of recent legal challenges to State 
laws.\5\ As 15 U.S.C. 1681t(b)(1) says, that provision preempts only 
those State laws ``with respect to any subject matter regulated under'' 
certain sections or subsections of the FCRA. Similarly, 15 U.S.C. 
1681t(b)(5) preempts only those States law ``with respect to the 
conduct required by the specific provisions of'' certain sections or 
subsections of the FCRA. The term ``with respect to'' indicates that 
Congress intended these provisions to have a narrow sweep. As the 
Supreme Court has held in a similar context, ``with respect to'' means 
to ``concern.'' In other words, section 1681t(b)(1) does not preempt 
State laws unless they concern a subject matter regulated under the 
enumerated portions of the FCRA. Similarly, section 1681t(b)(5) does 
not preempt State laws unless they concern conduct required by the 
enumerated portions of the FCRA.
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    \5\ The CFPB ``encourages State Officials to consult with the 
Bureau whenever interpretation of Federal consumer financial law, as 
defined in section 1002(14) of the Dodd-Frank Act, . . . is relevant 
to a State regulatory or law enforcement matter, even if it is not 
the type of action for which notification is required'' pursuant to 
the State Official Notification Rule. 77 FR 39112, 39113 (June 29, 
2012). The Office of the New Jersey Attorney General recently 
notified the CFPB about pending litigation in which the plaintiff 
alleges that a New Jersey consumer protection statute is preempted 
by the FCRA.
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II. Analysis

    The Supremacy Clause of the United States Constitution says that 
``the Laws of the United States'' shall be ``the supreme Law of the 
Land . . . any Thing in the Constitution or Laws of any state to the 
Contrary notwithstanding.'' Art. VI, cl. 2. When a Federal statute 
includes a preemption clause--as the FCRA does--``[t]he purpose of 
Congress is the ultimate touchstone'' in interpreting such a clause. 
Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). ``Congressional 
intent, of course, primarily is discerned from the language of the pre-
emption statute and the `statutory framework' surrounding it.'' 
Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996). Thus, any preemption 
analysis must ``focus on the plain wording of the clause.'' Puerto Rico 
v. Franklin California Tax-Free Tr., 579 U.S. 115, 125 (2016).
    Focusing on the plain text of sections 1681t(b)(1) and 1681t(b)(5), 
it is apparent that both provisions have a narrow and targeted scope.

A. Under 15 U.S.C. 1681t(b)(1), State Laws Are Not Preempted Unless 
They Are ``With Respect to Any Subject Matter Regulated Under'' Certain 
Sections or Subsections of the FCRA

    Section 1681t(b)(1) has eleven subsections, each of which follows 
the same syntax. Each subsection preempts State laws ``with respect to 
any subject matter regulated under'' an enumerated part of the FCRA 
(e.g., section 1681c). Following the enumerated section of the FCRA 
comes a parenthetical phrase beginning with ``relating to'' that 
describes or further narrows the section that has just been enumerated. 
For instance, section 1681(b)(1)(E) generally preempts State laws 
``with respect to any subject matter regulated under section 1681c of 
this title, relating to information contained in consumer reports.'' 
Preemption under section 1681t(b)(1) thus depends on the meaning of 
both the ``with respect to'' and ``relating to'' clauses.
    Foremost, State laws are not preempted unless they are ``with 
respect to any subject matter regulated under'' the enumerated sections 
of the FCRA. In the case of section 1681t(b)(1)(E), State laws would 
not be preempted unless they are ``with respect to any subject matter 
regulated under section 1681c.''
    In addition, a State law is preempted under section 1681t(b)(1) 
only if it also falls within the description in the ``relating to'' 
parenthetical. In some cases, the ``relating to'' parenthetical merely 
reiterates the enumerated section. For instance, 15 U.S.C. 
1681t(b)(1)(C) preempts State laws ``with respect to any subject matter 
regulated under subsections (a) and (b) of section 1681m of this title, 
relating to the duties of a person who takes any adverse action with 
respect to a consumer.'' Both subsections (a) and (b) of section 1681m 
lay out certain duties of a person who takes an adverse action with 
respect to a consumer. Thus, both the ``with respect to'' clause and 
the ``relating to'' clause of section 1681t(b)(1)(C) have the same 
scope.
    But in other cases, the ``relating to'' clause serves as a further 
limitation on the ``with respect to'' clause. For example (and as noted 
above), section 1681t(b)(1)(E) preempts State laws ``with respect to 
any subject matter regulated under section 1681c of this title, 
relating to information contained in consumer reports.'' Although 
section 1681c primarily contains limitations on information that can be 
included in consumer reports, it also includes other miscellaneous 
provisions. See, e.g., 15 U.S.C. 1681c(g) (requirement for truncating 
credit card and debit card numbers in receipts provided to cardholder). 
Thus, the plain text of section 1681t(b)(1)(E) indicates that only 
those State laws ``with respect to'' section 1681c that also ``relate 
to'' information contained in consumer reports are preempted.
    It has been argued by some that the preemptive scope of section 
1681t(b)(1) is defined only by the ``relating to'' clause. For example, 
in Consumer Data Indus. Ass'n v. Frey, 26 F.4th 1 (1st Cir. 2022), the 
plaintiffs argued that section 1681t(b)(1)(E) preempts any State laws 
``relating to information contained in consumer reports,'' regardless 
of whether the law is ``with respect to any subject matter regulated 
under'' section 1681c. As courts have correctly held,

[[Page 41044]]

that ``is not the most natural reading of the statute's syntax and 
structure.'' Frey, 26 F.4th at 6. That interpretation would render the 
``with respect to'' clause surplusage. A statute, however, ``ought to 
be construed in a way that `no clause, sentence, or word shall be 
superfluous, void, or insignificant.'' Duncan v. Walker, 533 U.S. 167, 
174 (2001). Moreover, Congress knows how to broadly preempt State laws 
that are ``related to'' fields or topics. For instance, the Employee 
Retirement Income Security Act ``supersede[s] any and all State laws 
insofar as they may now or hereafter relate to any employee benefit 
plan.'' 29 U.S.C. 1144(a). Congress could have used similar syntax in 
the FCRA--but it did not. Instead, Congress made clear that a State law 
is not preempted by section 1681t(b)(1) unless it falls within the 
``with respect to'' clause.
    Whether a particular State law is ``with respect to any subject 
matter regulated under'' the enumerated sections of the FCRA will 
depend on the facts and circumstances. But it bears noting that the 
phrase ``with respect to any subject matter regulated under'' is an 
important limiting factor. As the Supreme Court has noted in a case 
involving a statute that--like the FCRA--included a preemption 
provision with both ``related to'' and ``with respect to'' phrases, the 
``with respect to'' phrase served to ``massively limit[ ] the scope of 
preemption.'' Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 
(2013). The ``with respect to'' phrase ``necessarily reaches a subset 
of laws narrower than those that merely relate to information contained 
in consumer reports.'' Frey, 26 F.4th at 8. It narrows the universe of 
preemption only to those laws that ``concern'' the subject matter 
regulated under the enumerated FCRA sections. Dan's City Used Cars, 569 
U.S. at 261; see also, e.g., Frey, 26 F.4th at 7 (section 
1681t(b)(1)(E) ``preempt[s] those claims that concern subject matter 
regulated under section 1681c''); Galper v. JP Morgan Chase Bank, N.A., 
802 F.3d 437, 446 (2d Cir. 2015) (section 1681t(b)(1)(F) ``preempts 
only those claims that concern a furnisher's responsibilities). Thus, 
if a State law does not ``concern'' the subject matters regulated under 
the FCRA sections specified in section 1681t(b)(1), it is not preempted 
by that clause.
    It bears emphasis that section 1681t(b)(1) does not preempt all 
State laws relating to the content or information contained in consumer 
reports. Indeed, the legislative history of this provision confirms 
that it was intended to provide only ``limited'' preemption on 
``procedural'' issues.\6\
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    \6\ See 141 Cong. Rec. S5450 (daily ed. Apr. 5, 1995) (statement 
of Sen. Bond) (``This bill also contains limited Federal preemption 
to ensure that there are uniform Federal standards to govern a 
number of procedural issues which are part of credit reporting and 
which will reduce the burdens on the credit industry from having to 
comply with a variety of different State requirements. For example, 
the bill preempts requirements regarding prescreening, information 
shared among affiliates, reinvestigation timetables, obsolescence 
time periods and certain disclosure forms.'').
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    For example, section 1681t(b)(1)(E) preempts State laws ``with 
respect to any subject matter regulated under'' section 1681c 
``relating to information contained in consumer reports.'' In turn, 
section 1681c states requirements relating to four topics relating to 
information contained in consumer reports: (1) obsolescence, i.e., how 
long certain specific types of information may continue to appear on a 
consumer report; \7\ (2) certain information about medical information 
furnishers; \8\ (3) certain information relating to veterans' medical 
debt; \9\ and (4) certain information that must be included in a 
consumer report (e.g., the fact that the consumer has disputed 
information provided by a furnisher to the consumer reporting agency 
issuing the report).\10\
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    \7\ 15 U.S.C. 1681c(a)(1)-(5).
    \8\ 15 U.S.C. 1681c(a)(6).
    \9\ 15 U.S.C. 1681c(a)(7)-(8).
    \10\ 15 U.S.C. 1681c(d), (e), (f).
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    The legislative history of the FCRA preemption provision confirms 
that only subject matter at this level of specificity is subject to 
preemption. The legislative history expressly references ``obsolescence 
periods'' as an example of a subject matter governed by preemption--not 
the broader subject matter of the content of a consumer report more 
generally.\11\ Hence, FCRA 1681t(b)(1)(E) does not preempt State laws 
about subject matter regarding the content of or information on 
consumer reports beyond these topics.\12\
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    \11\ See 141 Cong. Rec. S5450 (daily ed. Apr. 5, 1995) 
(statement of Sen. Bond) (referring to ``obsolescence time periods'' 
as an example of a subject matter on which there would be 
preemption).
    \12\ To be sure, the title of Section 1681c is stated more 
broadly as ``Requirements relating to information contained in 
consumer reports.'' But the title of a statutory provision is of 
only limited significance. See, e.g., Bhd. of R.R. Trainmen v. Balt. 
& Ohio R.R. Co., 331 U.S. 519, 529 (explaining that titles and 
headings ``are but tools available for the resolution of a doubt,'' 
``[b]ut they cannot undo or limit that which the text makes 
plain''). And the actual subject matter regulated by the text of 
Section 1681c is limited to the narrow topics actually addressed. 
Further, the legislative history confirms that the subject matter 
intended to be preempted is only the specific topics regulated in 
Section 1681c.
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    For instance, although how long the specific types of information 
listed in section 1681c may continue to appear on a consumer report is 
a subject matter regulated under section 1681c, what or when items 
generally may be initially included on a consumer report is not a 
subject matter regulated under section 1681c. Indeed, section 
1681c(a)(7) provides requirements about when veterans' medical debt, 
specifically, may be included on a consumer report by a nationwide 
consumer reporting agency, but nothing in section 15 U.S.C. 1681c 
addresses what or when information of other types may initially be 
included on reports.\13\ (For example, section 1681c(a)(5) regulates 
how long ``adverse item[s] of information, other than records of 
convictions of crimes'' may appear on consumer reports, but not whether 
or when adverse items may initially appear on a consumer report.) 
Similarly, only 1681c(a)(6) and (8), relating specifically to 
information about medical information furnishers and veterans' medical 
debt, contain restrictions on the content of a consumer report; the 
other provisions restrictions relate only to how long information may 
appear. section 1681c therefore does not provide any general 
restrictions on the content of a consumer report. Accordingly, State 
laws relating to what or when items generally may be initially included 
on a consumer report--or what or when certain types of information may 
initially be included on a consumer report--would generally not be 
preempted by section 1681t(b)(1)(E).
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    \13\ Section 1681c(a)(1)-(5) regulates when certain types of 
information that ``antedate the report'' by ``more than'' certain 
periods of time may appear. But only 1681c(a)(7), relating 
specifically to veterans' medical debt, regulates when a type of 
information that antedates the report by ``less than'' a period of 
time may appear. Hence, only 1681c(a)(7), which is limited to 
veterans' medical debt, regulates when a type of information that 
antedates a report by less than a certain period of time may appear. 
Moreover, restrictions on what or when types of information may 
initially appear on a consumer report do not alter the period of 
time that information may remain on a report under Section 1681c. 
The restrictions in Section 1681c(a)(1)-(5) each provide that 
information may remain on a report for a certain period of time 
following the date that particular events occurred. A restriction on 
what or when information may initially appear on a report would not 
alter the date of those events. Such a restriction therefore does 
not change the date on which Section 1681c(a)(1)-(5) prohibits the 
information from continuing to appear on the report.
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    States therefore retain substantial flexibility to pass laws 
involving consumer reporting to reflect emerging problems affecting 
their local economies and citizens. For instance, medical debt that 
shows up in a consumer report can be factored into a consumer's credit 
score, though whether and how these debts affect their scores varies

[[Page 41045]]

depending on the score model.\14\ Research by the CFPB has found that 
medical collections are less predictive of future consumer credit 
performance than nonmedical collections.\15\ Additionally, paid medical 
collections are less predictive of future performance than unpaid 
medical collections. Individuals with more medical than non-medical 
collections and individuals with more paid than unpaid medical 
collections had delinquency rates that were comparable to those of 
individuals with credit scores of 10 points higher and 20 points 
higher, respectively. In other words, these individuals were less 
likely to be delinquent than other individuals with the same credit 
score. Nonetheless, some widely used models still weight medical and 
nonmedical collections equally.\16\ This means that consumers with 
medical debt may be negatively affected if creditors use older scoring 
models that may overweight medical debt. To address these concerns and 
others, States may pass laws addressing the furnishing and reporting of 
medical debt.
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    \14\ CFPB, Medical Debt Burden in the United States, at 27 (Feb. 
2022), https://files.consumerfinance.gov/f/documents/cfpb_medical-debt-burden-in-the-united-states_report_2022-03.pdf.
    \15\ CFPB, Data point: Medical debt and credit scores (May 
2014), https://files.consumerfinance.gov/f/201405_cfpb_report_data-point_medical-debtcredit-scores.pdf.
    \16\ Medical Debt Burden in the United States, at 27-28.
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    If a State law were to forbid a consumer reporting agency from 
including medical debt in a consumer report for a certain period of 
time after the debt was incurred, such a law would generally not be 
preempted. Section 1681c does not regulate the subject matter of when 
medical debt (or debt generally) may be first included in a consumer 
report. As noted above, section 1681t(b)(1) does not preempt all State 
laws relating to the content or information contained in consumer 
reports; rather, 1681t(b)(1) preempts only State laws concerning the 
subject matter regulated under the specified FCRA sections. Hence, as 
described above, 1681t(b)(1)(E) preempts State laws only with respect 
to the four specific topics regulated under section 1681c. Section 
1681c(a)(7) provides requirements regarding veterans' medical debt, but 
section 1681c does not regulate the subject matter of medical debt 
information more generally. Further, although medical debt information 
may be ``adverse information'' regulated under 1681c((a)(5), as 
explained above, that provision regulates only the subject of how long 
such information may appear on a consumer report, not the content of 
the information or when such information may initially appear.
    Likewise, if a State law prohibited a furnisher from furnishing 
information about medical debt for a certain period of time after the 
debt was incurred, such a law would not be preempted by section 
1681t(b)(1)(F), which voids only State laws ``with respect to any 
subject matter regulated under section 1681s-2 of this title, relating 
to the responsibilities of persons who furnish information to consumer 
reporting agencies.'' Section 1681s-2 sets forth several requirements 
for furnishers in order to assure the accuracy of information provided 
to consumer reporting agencies. For instance, ``[a] person shall not 
furnish any information relating to a consumer to any consumer 
reporting agency if the person knows or has reasonable cause to believe 
that the information is inaccurate.'' \17\ However, section 1681s-2 
says nothing about when a furnisher may or must begin furnishing 
information about a consumer's account. Consistent with the discussion 
above about section 1681, the subject matter of section 1681s-2 that is 
subject to preemption is limited to these topics that are actually 
addressed in the section. Accordingly, when a furnisher may or must 
begin furnishing information about a consumer's account is not a 
``subject matter regulated under section 1681s-2.'' Thus, a State law 
governing when a furnisher may begin furnishing on a consumer's account 
(including medical debt) would not be preempted by section 
1681t(b)(1)(F).
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    \17\ 15 U.S.C. 1681s-2(a)(1)(A).
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    Additionally, for example, the CFPB has noted that rental 
information in consumer reports plays a critical role in consumers' 
access to rental housing, credit, and other opportunities.\18\ The CFPB 
has received consumer complaints about receiving collection notices 
from landlords or debt collectors for rent-related charges and fees 
they viewed as questionable.\19\ These charges may then appear on their 
consumer reports. Complaints to the CFPB also indicate that tenant 
screening companies may report inaccurate or misleading criminal and 
civil information, which led to consumers being denied for housing 
applications,\20\ and the Federal Trade Commission has found that 
certain tenant screening companies have failed to follow reasonable 
procedures to ensure the accuracy of their reports about potential 
tenants.\21\ CFPB examiners have also found that the oversight of 
public records providers by one or more consumer reporting agencies was 
weak and required corrective action.\22\ Further, research suggests 
that a significant number of eviction records ``contain ambiguous 
information on how the case was resolved or falsely represent a 
tenant's eviction history.'' \23\ There is little or no empirical 
research showing that tenant screening report content is reliably 
predictive of future tenant behavior. For example, the CFPB has 
expressed concern regarding how reliably predictive pandemic era rental 
data is on a consumer's future performance.\24\ To address these 
concerns and others, States may pass laws addressing the furnishing and 
reporting of rental information.
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    \18\ CFPB, Bulletin 2021-03: Consumer Reporting of Rental 
Information, at 2 (July 2021), https://files.consumerfinance.gov/f/documents/cfpb_consumer-reporting-rental-information_bulletin-2021-03_2021-07.pdf.
    \19\ CFPB, Complaint Bulletin: COVID-19 issues described in 
consumer complaints, at 14 (July 2021), https://files.consumerfinance.gov/f/documents/cfpb_covid-19-issues-described-consumer-complaints_complaint-bulletin_2021-07.pdf.
    \20\ CFPB, Complaint Bulletin: COVID-19 issues described in 
consumer complaints, at 15, https://files.consumerfinance.gov/f/documents/cfpb_covid-19-issues-described-consumer-complaints_complaint-bulletin_2021-07.pdf.
    \21\ See FTC v. RealPage, Inc. (Oct. 2018), https://www.ftc.gov/system/files/documents/cases/152_3059_realpage_inc_stipulated_order_10-16-18.pdf; USA v. 
AppFolio, Inc. (Dec. 2020), https://www.ftc.gov/system/files/documents/cases/ecf_1_-_us_v_appfolio_complaint.pdf.
    \22\ CFPB, Supervisory Highlights, at 6 (Summer 2015), https://files.consumerfinance.gov/f/201506_cfpb_supervisory-highlights.pdf.
    \23\ Adam Porton, Ashley Gromis, and Matthew Desmond, 
Inaccuracies in Eviction Records: Implications for Renters and 
Researchers, Housing Policy Debate 31:3-5 (Sept. 2021).
    \24\ CFPB, Bulletin 2021-03: Consumer Reporting of Rental 
Information, at 10 (July 2021), https://files.consumerfinance.gov/f/documents/cfpb_consumer-reporting-rental-information_bulletin-2021-03_2021-07.pdf.
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    A State law prohibiting a consumer reporting agency from including 
information (or certain types of information) about a consumer's 
eviction, rental arrears, or arrests on a consumer report would 
generally not be preempted under section 1681t(b)(1). As noted above, 
section 1681t(b)(1)(E) preempts State laws only ``with respect to any 
subject matter regulated under'' section 1681c ``relating to 
information contained in consumer reports.'' Again, nothing in section 
1681c regulates the content of eviction information, rental arrears, or 
arrest records or when such information may initially appear on a 
consumer report. Although such information may be information about 
``[c]ivil suits, civil judgments, and records of arrest'' regulated 
under section 1681c((a)(2) or ``adverse information'' regulated under 
section

[[Page 41046]]

1681c((a)(5), as explained above, those provisions regulate only the 
subject of how long such information may appear on a consumer report, 
not the content of the information. Section 1681t(b)(1) preempts only 
State laws concerning the subject matter regulated under the specified 
FCRA sections, and whether or when information such as eviction 
information, rental arrears, or arrest records appears on a consumer 
report is not such a subject matter.

B. Under 15 U.S.C. 1681t(b)(5), Only Those State Laws ``With Respect to 
the Conduct Required by'' Certain Sections or Subsections of the FCRA 
Are Preempted

    Similarly, Congressional purpose in 15 U.S.C. 1681t(b)(5) is 
evident from its plain text. It has nine subsections, and each follows 
the same syntax: State laws are preempted to the extent they are ``with 
respect to the conduct required by the specific provisions of [an 
enumerated FCRA provision].'' For example, 15 U.S.C. 1681t(b)(5)(E) 
preempts State laws ``with respect to the conduct required by the 
specific provisions of section 1681j(a),'' which sets forth 
requirements for nationwide consumer reporting agencies and nationwide 
specialty consumer reporting agencies to provide free annual credit 
reports to consumers. A State law on this topic--for example, a State 
law requiring consumer reporting agencies to provide semi-annual credit 
reports to consumers--would likely be ``with respect to the conduct 
required'' by this provision. On the other hand, if a State law does 
not concern ``the conduct required by'' the enumerated section--the 
annual disclosure requirement, in the case of section 1681j(a)--then it 
is not preempted. For example, section 1681j(a) provides no 
requirements regarding the language in which disclosures of information 
are provided. Accordingly, if a State law required that a consumer 
reporting agency provide information required by the FCRA at the 
consumer's requests in languages other than English, such a law would 
generally not be preempted by section 1681t(b)(5)(E).

III. Regulatory Matters

    This is an interpretive rule issued under the Bureau's authority to 
interpret the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(CFPA), including under section 1022(b)(1) of the CFPA, which 
authorizes guidance as may be necessary or appropriate to enable the 
Bureau to administer and carry out the purposes and objectives of 
Federal consumer financial laws, such as the CFPA.\25\
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    \25\ 12 U.S.C. 5512(b)(1).
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    As an interpretive rule, this rule is exempt from the notice-and-
comment rulemaking requirements of the Administrative Procedure 
Act.\26\ Because no notice of proposed rulemaking is required, the 
Regulatory Flexibility Act does not require an initial or final 
regulatory flexibility analysis.\27\ The Bureau has also determined 
that this interpretive rule does not impose any new or revise any 
existing recordkeeping, reporting, or disclosure requirements on 
covered entities or members of the public that would be collections of 
information requiring approval by the Office of Management and Budget 
under the Paperwork Reduction Act.\28\
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    \26\ 5 U.S.C. 553(b).
    \27\ 5 U.S.C. 603(a), 604(a).
    \28\ 44 U.S.C. 3501-3521.
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    Pursuant to the Congressional Review Act,\29\ the Bureau will 
submit a report containing this interpretive rule and other required 
information to the United States Senate, the United States House of 
Representatives, and the Comptroller General of the United States prior 
to the rule's published effective date. The Office of Information and 
Regulatory Affairs has designated this interpretive rule as not a 
``major rule'' as defined by 5 U.S.C. 804(2).
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    \29\ 5 U.S.C. 801 et seq.

Rohit Chopra,
Director, Consumer Financial Protection Bureau.
[FR Doc. 2022-14150 Filed 7-8-22; 8:45 am]
BILLING CODE 4810-AM-P


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