[Federal Register Volume 82, Number 92 (Monday, May 15, 2017)]
[Notices]
[Pages 22318-22322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09732]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

[Docket No.: CFPB-2017-0011]


Request for Information Regarding the Small Business Lending 
Market

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Notice and request for information.

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SUMMARY: The Consumer Financial Protection Bureau (CFPB or Bureau) 
seeks information about the small business lending market. Section 1071 
of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-
Frank Act) amends the Equal Credit Opportunity Act (ECOA) to require 
financial institutions to compile, maintain, and report information 
concerning credit applications made by women-owned, minority-owned, and 
small businesses. In an effort to inform the Bureau's work on the 
business lending data collection rulemaking to implement section 1071, 
the Bureau seeks to learn more about the small business financing 
market, including understanding more about the products that are 
offered to small businesses, including women-owned and minority-owned 
small businesses, as well as the financial institutions that offer such 
credit. The Bureau also seeks to learn more about the business lending 
data that currently is used and may be maintained by financial 
institutions in connection with credit applications made by small 
businesses, including women-owned and minority-owned small businesses, 
and the potential complexity and cost of small business data collection 
and reporting. The Bureau is also seeking comment from the public on 
privacy concerns related to the disclosure purposes of section 1071.

DATES: Comments must be received on or before July 14, 2017.

ADDRESSES: You may submit responsive information and other comments, 
identified by Docket No. CFPB-2017-0011, by any of the following 
methods:
     Electronic: Go to http://www.regulations.gov. Follow the 
instructions for submitting comments.
     Email: [email protected]. Include Docket 
No. CFPB-2017-0011 in the subject line of the email.
     Mail: Monica Jackson, Office of the Executive Secretary, 
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 
20552.
     Hand Delivery/Courier: Monica Jackson, Office of the 
Executive Secretary, Consumer Financial Protection Bureau, 1275 First 
Street NE., Washington, DC 20002.
    Instructions: Please note the number associated with any question 
to which you are responding at the top of each response (you are not 
required to answer all questions to receive consideration of your 
comments). The Bureau encourages the early submission of comments. All 
submissions must include the document title and docket number. Because 
paper mail in the Washington, DC area and at the Bureau is subject to 
delay, commenters are encouraged to submit comments electronically. In 
general, all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public 
inspection and copying at 1275 First Street NE., Washington, DC 20002, 
on official business days between the hours of 10 a.m. and 5 p.m. 
Eastern Time. You can make an appointment to inspect the documents by 
telephoning 202-435-7275.
    All submissions, including attachments and other supporting 
materials, will become part of the public record and subject to public 
disclosure. Sensitive personal information, such as account numbers or 
Social Security numbers, or names of other individuals, should not be 
included. Submissions will not be edited to remove any identifying or 
contact information.

FOR FURTHER INFORMATION CONTACT: For general inquiries, submission 
process questions or any additional information, please contact Monica 
Jackson, Office of the Executive Secretary, at 202-435-7275.

SUPPLEMENTARY INFORMATION: 
    The Bureau is seeking comment through this Request for Information 
(RFI) to better understand the small business lending market in order 
to prioritize and streamline work to implement section 1071. The 
feedback obtained in response to this RFI will help the Bureau fulfill 
the statutory purpose of section 1071 in a manner that is efficient and 
minimizes burden on industry.
    The Bureau encourages comments from all interested members of the 
public, including:
     Individual consumers;
     Individual businesses;
     Consumer civil rights and privacy advocates;
     Small business advocates;
     Business development and community development 
organizations;
     Lenders, including depository and non-depository 
institutions;
     Business trade associations;

[[Page 22319]]

     Data software vendors and developers who may provide 
services to lenders for regulatory compliance and data submission;
     Consultants, attorneys, or other professionals who advise 
market participants on these issues;
     Federal, State, and municipal regulators;
     State, local, and tribal government entities;
     Researchers or members of academia; and
     Any other interested parties.
    The Bureau is interested in all input from commenters, including 
knowledge of standard practices, understanding of the market as a 
whole, and views on the questions included in this RFI.

Part A: Congressional Mandate To Enact Section 1071

    Section 1071 of the Dodd-Frank Act (section 1071) amends ECOA to 
require financial institutions to report information concerning credit 
applications made by women-owned, minority-owned, and small businesses. 
The purpose of this data collection, as stated by Congress in section 
1071, is to ``facilitate enforcement of fair lending laws'' and to 
``enable communities, governmental entities, and creditors to identify 
business and community development needs and opportunities of women-
owned, minority-owned, and small businesses.'' \1\ In order to achieve 
this statutory purpose, the Bureau believes the section 1071 data 
should cover an extensive share of the market and contain enough 
flexibility to analyze different market segments. However, there are 
costs associated with any data collection which have to be weighed 
against the benefits. Please consider this context in responding to 
this RFI.
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    \1\ 15 U.S.C. 1691c-2(a).
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    Small businesses, including those owned by women and minorities, 
are critical engines for economic growth, and access to credit is a 
crucial component of their success. The Bureau believes that data 
collected under the business lending data collection rule as mandated 
by section 1071 would fill existing gaps in the general understanding 
of the small business lending environment. Further, data would be 
helpful in fulfilling Congress's purposes in enacting section 1071 by 
identifying potential fair lending concerns regarding small businesses, 
including women-owned and minority-owned small businesses, as well as 
the needs and opportunities for both business and community 
development. At the same time, the Bureau recognizes that certain 
financial institutions may not be collecting and reporting information 
regarding small business lending in connection with other regulatory 
requirements and that therefore a new data collection requirement could 
pose implementation and operational challenges.
    The Bureau is in its early stages with respect to implementing 
section 1071, and is currently focused on outreach and research to 
further develop its understanding of the small business lending market, 
including the institutions, credit products, recording systems, 
underwriting approaches, distribution channels, and types of applicants 
in that market. In furtherance of that outreach and research, the 
Bureau is issuing this RFI. The Bureau is interested in exploring 
potential ways to implement section 1071 in a balanced manner with a 
goal of providing timely data with the highest potential for achieving 
the statutory objectives, while minimizing burden to both industry and 
the Bureau.

Part B: Questions Related to the Small Business Lending Market

    The Bureau is seeking comment to enhance our understanding of the 
small business lending market in order to prioritize and guide research 
and policy development work for implementation of section 1071.
    The Bureau recognizes that some commenters may feel that answering 
the questions below raises concerns about revealing proprietary 
information. We encourage commenters to share as much detail as 
possible in this public forum. We also welcome comments from 
representatives, such as attorneys, consultants, or trade associations, 
which need not identify their clients or members by name. The Bureau 
also welcomes any relevant empirical research or studies on these 
topics.
    The questions below are separated into five categories: (1) Small 
Business Definition, (2) Data Points, (3) Financial Institutions 
Engaged in Business Lending, (4) Access to Credit and Financial 
Products Offered to Businesses, and (5) Privacy.

Small Business Definition

    Section 1071 defines ``small business'' as having ``the same 
meaning as the term `small business concern' in section 3 of the Small 
Business Act (15 U.S.C. 632).'' \2\ This section of the Small Business 
Act sets forth a multi-part definition of ``small business concern'' 
that includes a provision authorizing the Small Business Administration 
(SBA) to establish detailed size standards that meet certain criteria 
set forth within the statute.\3\ The most commonly used size standards 
developed by the SBA are industry-specific size standards organized by 
the six-digit North American Industry Classification System (NAICS-
specific size standards).\4\ These NAICS-specific size standards are 
primarily used by the SBA and other Federal agencies to determine 
eligibility for Federal contract and loan assistance programs.\5\
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    \2\ 15 U.S.C. 1691c-2(h)(2).
    \3\ 15 U.S.C. 632(a)(2).
    \4\ 13 CFR 121.201 (NAICS-specific size standards promulgated by 
the SBA).
    \5\ See 13 CFR 121.101(a) (``SBA's size standards define whether 
a business entity is small and, thus, eligible for Government 
programs and preferences reserved for `small business' concerns.'')
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    Section 632 also permits the SBA to approve size standards 
developed by other Federal agencies that meet certain requirements.\6\ 
As an alternative to the NAICS-specific size standards, the Bureau is 
exploring developing an alternative definition of small business that 
meets the criteria outlined in section 632 of the Small Business Act 
and is tailored to the needs of section 1071, a business lending data 
collection rule. Specifically, the Bureau is exploring size standard 
approaches that potentially may not require a determination of a six-
digit NAICS code for each applicant while remaining consistent with the 
SBA's policy and regulatory requirements and that are aligned with the 
common practices of financial institutions extending credit to small 
businesses.
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    \6\ 15 U.S.C. 632(a)(2)(C).
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    Under nearly any definition of ``small business,'' a substantial 
percentage of women-owned and minority-owned businesses would be 
covered. For example, a definition of small businesses as businesses 
with annual revenue of $1 million or less \7\ covers approximately 95% 
of all firms, over 97% of all minority-owned firms, and over 98% of all 
women-owned firms.\8\ Bureau outreach to date with industry reveals 
other definitions used by financial institutions as to what constitutes 
a ``small business'' for internal purposes, including for focusing 
marketing resources,

[[Page 22320]]

establishing appropriate products to support the small business 
segment, and establishing risk management practices. Common factors 
that financial institutions use for defining a business as small 
include annual revenue, industry, loan size, aggregate credit exposure, 
or some combination of these factors. The threshold amounts that 
financial institutions apply to each of these factors also vary 
considerably among financial institutions.
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    \7\ Under the Community Reinvestment Act, certain financial 
institutions report information on small business loans extended to 
businesses with annual revenue of $1 million or less. See, e.g., 12 
CFR 228.42.
    \8\ U.S. Census Bureau, Statistics for All U.S. Firms by 
Industry, Gender, and Receipts Size of Firm for the U.S. and States: 
2012 More Information 2012 Survey of Business Owners, American Fact 
Finder (last visited April 12, 2017), available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=SBO_2012_00CSA05&prodType=table.
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    Through this RFI, the Bureau hopes to learn more about the various 
definitions of a small business that are currently utilized by lenders.
    1. What potential challenges and burdens would financial 
institutions or applicants encounter if a business lending data 
collection rule defined a ``small business'' applicant using the SBA's 
NAICS-specific size regulations?
    2. What definitions of ``small business'' do financial institutions 
currently use internally or for external reporting purposes?
    a. What factors are used to define a ``small business'' (such as 
revenue of the business applicant)? If more than one factor is used, 
are those factors considered individually or in combination?
    b. What minimum or maximum thresholds are used to define a ``small 
business''?
    c. Are certain types of small businesses excluded or treated 
differently under the definitions?
    d. Do the definitions take into account entities that are related 
to the small business applicant (such as parents, subsidiaries, 
affiliates, etc.)?

Data Points

    Section 1071 specifies particular data points that financial 
institutions must compile and maintain, submit annually to the Bureau, 
and make available to members of the public upon request unless the 
Bureau determines to permit the deletion or modification of certain 
data to advance a privacy interest.\9\ These include:
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    \9\ 15 U.S.C. 1691c-2(e)(2)(A)-(G), (e)(4), (f)(1), (f)(2)(A)-
(B). The statute also provides that the data shall annually be made 
available to the public generally by the Bureau, in such form and in 
such manner as is determined by the Bureau, by regulation. Id. 
1691c-2(f)(2)(C).
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     Application number;
     application date;
     type and purpose of the financing;
     amount applied for;
     amount approved;
     type of action taken and action taken date;
     census tract of the principal place of business;
     gross annual revenue in the last fiscal year of the 
applicant preceding the date of the application; and
     information about the race, sex, and ethnicity of the 
business principal owners.\10\
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    \10\ 15 U.S.C. 1691c-2(e)(2)(A)-(G). With some exceptions, 
section 1002.5(b) of Regulation B, which implements the ECOA, 
prohibits a creditor from inquiring about the race, color, religion, 
national origin, or sex of an applicant or any other person in 
connection with a credit transaction. Section 1002.5(a)(2) provides 
an exception to that prohibition for information required by a 
regulation, order, or agreement issued by or entered into with a 
court or an enforcement agency to monitor or enforce compliance with 
ECOA, Regulation B, or other Federal or State statutes or 
regulations. Section 1002.5(a)(3) provides another exception to that 
prohibition for information to determine eligibility for a special 
purpose credit program under 1002.8.
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    Section 1071 also gives the Bureau authority to require ``any 
additional data that the Bureau determines would aid in fulfilling the 
purposes of [1071]''.\11\ The purpose of section 1071 provided in the 
statute is, as previously noted: (1) To facilitate enforcement of fair 
lending laws; and (2) to enable communities, governmental entities, and 
creditors to identify business and community development needs and 
opportunities of women-owned, minority-owned, and small businesses.\12\
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    \11\ 15 U.S.C. 1691c-2(e)(2)(H).
    \12\ 15 U.S.C. 1691c-2(a).
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    As part of its research and policy development work, the Bureau 
will explore how to best implement the data point reporting 
requirements for the business lending data collection rulemaking to 
serve the purposes of section 1071 while minimizing burden. Through 
this RFI, the Bureau seeks information on existing business lending 
data collection and reporting standards, how various data points are 
used by the business financing industry, how reporting particular data 
points could serve the purposes of section 1071, and other issues 
related to data points.
    As part of a business lending data collection rulemaking, the 
Bureau plans to explore how to best implement the statutorily-mandated 
data points. The Bureau believes the reporting and potential disclosure 
of these data would constitute a major advancement in information on 
lending to small businesses, including to women-owned and minority-
owned small businesses. In addition, the Bureau will consider whether 
supplementing the statutorily-mandated data points with a limited 
number of discretionary data points would serve the purposes of section 
1071, improve the quality of the data for all stakeholders, and reduce 
the possibility of misinterpretations or incorrect conclusions that 
might arise from the collection or release of more limited data. The 
Bureau believes that responses to the RFI questions will provide 
helpful information for this purpose and aid the Bureau in determining 
whether to supplement, in a limited fashion, the statutorily-mandated 
data points.
    3. What data standards regarding information on small business 
financing are financial institutions currently subject to or using? 
Data standards are rules by which data is described and recorded using 
standardized formats and meanings for purposes such as sharing, 
exchanging and analyzing data. Examples could include governmental 
reporting or recordkeeping requirements, as well as standards 
associated with credit bureaus, data repositories, trade associations, 
accounting standards, or securitization or guarantee programs.
    a. What information is being collected, reported, or disclosed 
using these data standards?
    b. Are these data standards applicable at the loan level, on an 
aggregate basis, or some combination of the two?
    4. What information concerning the data points specifically 
identified for reporting under section 1071 by Congress do financial 
institutions collect and maintain in the ordinary course of business 
concerning their small business lending?
    a. What sources of information do financial institutions rely on in 
obtaining this data, including, for example, applicant self-reporting, 
specific documents used by financial institutions to obtain this data, 
or third party sources?
    b. What technological or other challenges do financial institutions 
foresee in collecting and reporting this data (such as the manual 
compilation of information, the lack of an electronic system for 
maintaining this information, the potential for this information to be 
found in multiple systems within a financial institution, etc.)? What 
steps can the Bureau take within a business lending data collection 
rulemaking to minimize the challenges?
    c. With respect to which data points, if any, among those 
specifically identified by Congress in Section 1071, do financial 
institutions currently not collect any information?
    5. The Bureau understands that applications for small business 
financing may vary both by financial institution and by the business 
credit product. How do financial institutions integrate data collection 
into their application process?

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    a. When are different data collected in the process (such as at the 
time of initial application, during the application process, or near 
the end of the process)?
    b. What verification procedures are used?
    c. Are certain data not collected or more difficult to collect if 
the application is not originated and instead is withdrawn, denied, or 
involves a counteroffer?
    d. Are different data collected for different types of credit 
events (such as renewals, line increases, etc.)?
    e. What systems, whether proprietary or provided by a third party 
vendor, are used by financial institutions to collect and maintain the 
data?
    f. How does data collection differ according to business credit 
product?
    6. Considering the data points specifically identified by Congress 
for reporting in section 1071:
    a. What concerns, if any, do financial institutions have about the 
possibility of misinterpretations or incorrect conclusions being drawn 
by regulators from the collection of the data provided for in Section 
1071 or by the public from potential release of these data in a manner 
protective of privacy interests?
    b. Are there limited additional data points that could be readily 
reported and potentially disclosed that would mitigate these concerns 
and reduce the risk of misinterpretation or help reduce incorrect 
conclusions?
    7. What information about the type of business (such as NAICS code 
or other industry information) of a small business applicant do 
financial institutions currently collect? What challenges might 
financial institutions have in potentially collecting this information 
under section 1071?
    8. What information about the number of employees of a small 
business applicant do financial institutions currently collect? What 
challenges might financial institutions have in potentially collecting 
this information under section 1071?
    9. In section 1071, Congress requires financial institutions to 
collect and report information on whether an applicant is a women-
owned, minority-owned, or small business and the ethnicity, race, and 
sex of the principal owners of the business. Section 1071 provides for 
limitations on access to certain information, including an applicant's 
minority-owned or women-owned business status, by underwriters, where 
feasible, and provides for limited access in certain circumstances 
determined by the financial institution with notice to the applicant.
    a. What challenges do financial institutions foresee in complying 
with these requirements with respect to applications by small 
businesses, including any potential challenges in identifying the 
principal owners of the business and reporting demographic information 
about them?
    b. In what situations, if any, may it not be feasible to limit 
underwriter access to this information?
    c. What steps can the Bureau take to minimize burden on financial 
institutions and applicants and facilitate compliance with the 
requirements to identify the principal owners of the business and 
report demographic information about them?

Financial Institutions Engaged in Business Lending

    Section 1071 of the Dodd-Frank Act requires financial institutions 
to report information concerning credit applications made by women-
owned, minority-owned, and small businesses. Financial institution is 
defined in section 1071 to mean ``any partnership, company, 
corporation, association (incorporated or unincorporated), trust, 
estate, cooperative organization, or other entity that engages in any 
financial activity.'' \13\ The Bureau understands small businesses, 
including women-owned and minority-owned small businesses, may secure 
non-equity financing from many sources, including, but not limited to, 
depository and non-depository financial institutions such as banks and 
credit unions, community development financial institutions, 
governmental entities, commercial finance firms, and alternative online 
lenders.
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    \13\ 15 U.S.C. 1691c-2(h)(1).
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    This Bureau seeks comment to enhance its understanding of the 
various financial institutions and other parties engaged in small 
business lending as well as initial feedback from stakeholders on 
appropriate institutional coverage the Bureau may consider for the 
business lending data collection rule.
    10. Section 1071 allows the Bureau to exercise exemption authority 
to exempt certain classes of financial institutions from collecting and 
reporting pursuant to a business lending data collection rule as the 
Bureau deems necessary or appropriate to carry out the purposes of 
section 1071.
    a. Should certain classes of financial institutions be exempt from 
a small business lending data collection rule?
    b. Are there data or data sources available that could inform the 
Bureau's decision to exempt certain classes of financial institutions 
(such as the size, type, or lending characteristics of the financial 
institution or types of small business credit products offered by the 
financial institution)?
    11. What are the roles of lending marketplaces, brokers, dealers 
and other third parties in the small business lending application 
process (such as in taking an application and in making a credit 
decision on an application)?

Access to Credit and Financial Products Offered to Businesses

    The Bureau seeks information on the various financial products that 
are offered to small businesses, including women-owned and minority-
owned small businesses, as well as initial feedback from stakeholders 
on challenges small businesses may face in accessing credit and 
appropriate transaction and product coverage the Bureau may consider 
for a business lending data collection rule.
    Section 1071 requires financial institutions to report information 
concerning credit applications made by women-owned, minority-owned, and 
small businesses. Although section 1071 does not provide a specific 
definition for credit, credit is a defined term under ECOA. ECOA (which 
section 1071 amended) defines credit as ``the right granted by a 
creditor to a debtor to defer payment of debt or to incur debts and 
defer its payment or to purchase property or services and defer payment 
therefor.'' \14\
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    \14\ 15 U.S.C. 1691a(d).
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    From its initial outreach and research, the Bureau understands that 
small businesses depend on a number of different non-equity financing 
products to establish, maintain, and grow their businesses. Although 
small businesses, including women-owned and minority-owned small 
businesses, secure non-equity financing in many forms, the Bureau 
understands that term loans, lines of credit, and credit cards are the 
principal all-purpose products used by small businesses. The Bureau 
estimates that these products collectively comprise about three-fourths 
of the non-equity financing market, when excluding supplier 
financing.\15\ Through this RFI, the Bureau seeks initial feedback on 
products offered by financial institutions to small business applicants 
and the challenges faced by small businesses, including women-

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owned and minority-owned small businesses, in accessing credit.
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    \15\ See Consumer Financial Protection Bureau, ``Lending to 
Women-Owned, Minority-Owned and Small Businesses: A White Paper,'' 
May 2017 (figure is based on CFPB research of available data sources 
exclusive of business-to-business credit), available at http://files.consumerfinance.gov/f/documents/201705_cfpb_Key-Dimensions-Small-Business-Lending-Landscape.pdf .
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    12. What business credit product types are currently offered to 
small businesses by financial institutions as defined in section 1071, 
and for which product types is data collection and reporting most 
important for furthering the purposes of section 1071?
    a. In addition to term loans, lines of credit, and credit card 
products, are there other business credit products that are an 
important source of financing for small businesses?
    13. How do financial institutions define an application for 
business credit products? How, if at all, does a financial 
institution's definition of an application vary for different types of 
products offered to small business applicants?
    a. Under what circumstances are preapproval, prequalification, and 
similar assessments made and what information is typically collected 
and evaluated during such assessments?
    14. Under what circumstances (such as renewal, line increase, etc.) 
would a credit review occur on an existing credit facility?
    a. In what circumstances would the credit review be initiated by 
the borrower? In what circumstances is the credit review initiated by 
the financial institution?
    b. For each circumstance, what information is collected as part of 
the credit review? How would such a credit review differ, if at all, 
from an application submitted on a new credit facility?
    c. For each circumstance, what are the types of action taken?
    15. What challenges do small businesses face in accessing credit? 
What obstacles do women-owned or and minority-owned small businesses in 
particular face in accessing credit?

Privacy

    Section 1071 specifies particular data points that financial 
institutions must compile and maintain, submit annually to the Bureau, 
and make available to members of the public upon request in a form 
prescribed by the Bureau.\16\ Section 1071 also provides the Bureau 
with authority to delete or modify data available to the public to 
advance a privacy interest.\17\ The Bureau is exploring options which 
protect applicant and borrower privacy, as well as the confidentiality 
interests of financial institutions, while also fulfilling the purpose 
of section 1071 which, to repeat, is to facilitate enforcement of fair 
lending laws and enable communities, governmental entities, and 
creditors to identify business and community development needs and 
opportunities of women-owned, minority-owned, and small businesses. 
Through this RFI, the Bureau seeks initial feedback to understand 
privacy concerns related to the potential disclosure of the data points 
specifically identified for reporting under section 1071 by Congress.
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    \16\ 15 U.S.C. 1691c-2(e)(2)(A)-(G), (f).
    \17\ 15 U.S.C. 1691c-2(e)(4).
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    16. What privacy-related concerns for applicants and 
confidentiality-related concerns of financial institutions are 
implicated by the statutorily-mandated data points in section 1071? For 
example, are there particular statutorily-mandated data points or a 
combination of data points that, if released to the public, may be 
harmful to applicant privacy or financial institution confidentiality? 
Are there particular statutorily-mandated data points or a combination 
of data points that may pose a risk of re-identification if released to 
the public?
    17. What steps can the Bureau take to mitigate such privacy or 
confidentiality-related concerns consistent with the purposes of 
section 1071?

    Authority:  12 U.S.C. 5511(c).

    Dated: May 9, 2017.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2017-09732 Filed 5-12-17; 8:45 am]
 BILLING CODE 4810-AM-P