Unknown. Compliance bulletin

4,573 words·~21 min read·/register/2022/03/28/2022-06446

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2022-03-28.xml --- 87 59 Monday, March 28, 2022 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service AIRFORCE Air Force Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17273 2022-06466 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

National Management Information System, 17262-17263 2022-06487 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17273-17274 2022-06438 2022-06471 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Compliance Bulletin: Unfair and Deceptive Acts or Practices That Impede Consumer Reviews, 17143-17145 2022-06446 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 17294-17297 2022-06432 2022-06435 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Measuring Human Trafficking Prevalence in Construction: A Field Test of Multiple Estimation Methods, 17299-17300 2022-06415 Next Generation of Enhanced Employment Strategies Project, 17298-17299 2022-06403 Provision of Services in Intergovernmental IV-D; Federally Approved Forms, 17297 2022-06407 Civil Rights Civil Rights Commission NOTICES Meetings:

North Carolina Advisory Committee, 17268 2022-06475 Coast Guard Coast Guard RULES Special Local Regulation: Seventh Coast Guard District, Blessing of the Fleet—St. Augustine, 17180-17181 2022-06431 Seventh Coast Guard District, Mug Race, 17181 2022-06430 PROPOSED RULES Electronic Chart and Navigational Equipment Carriage Requirements, 17241-17246 2022-06416 Safety Zone: Blue Angels at Kaneohe Bay Air Show, Oahu, HI, 17246-17248 2022-06455 Commerce Commerce Department See Foreign-Trade Zones Board See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 17410-17412 2022-06456 Defense Department Defense Department See Air Force Department See Army Department See Engineers Corps See Navy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17274-17281 2022-06441 2022-06442 2022-06469 2022-06470 2022-06472 2022-06473 2022-06476 2022-06478 2022-06480 2022-06481 2022-06485 Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Indirect Cost Rate Proposals, Payments to Small Business Subcontractors, and Bankruptcy Notifications, 17292-17294 2022-06479 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Part D Discretionary Grant Application: Individuals with Disabilities Education Act, 17284-17285 2022-06417 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 17285 2022-06314 Energy Department Energy Department NOTICES Meetings:

Environmental Management Site-Specific Advisory Board, Idaho Cleanup Project, 17285-17286 2022-06422 Environmental Management Site-Specific Advisory Board, Northern New Mexico, 17286 2022-06426 Nuclear Science Advisory Committee, 17286-17287 2022-06464 Engineers Engineers Corps NOTICES Meetings: Review of Nationwide Permit 12, 17281-17283 2022-06458 Environmental Protection Environmental Protection Agency PROPOSED RULES Clean Water Act Hazardous Substance Worst Case Discharge Planning, 17890-17935 2022-05505 Control of Air Pollution from New Motor Vehicles:

Heavy-Duty Engine and Vehicle Standards, 17414-17888 2022-04934 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reporting in the Federal Insecticide, Fungicide, and Rodenticide Act Grant Database, 17288-17289 2022-06377 Request for Submissions: Safer Choice Partner of the Year Awards for 2022, 17287-17288 2022-06381 Executive Office Executive Office for Immigration Review NOTICES Meetings: Case and Appeals System; Immigration Court Online Resource, 17336-17337 2022-06357 Federal Aviation Federal Aviation Administration RULES Airworthiness Criteria:

Special Class Airworthiness Criteria for the Airobotics Inc. OPTIMUS 1-EX Unmanned Aircraft, 17145-17157 2022-06380 Special Class Airworthiness Criteria for the Flytrex, Inc. FTX-M600P Unmanned Aircraft, 17169-17180 2022-06379 Special Class Airworthiness Criteria for the Percepto Robotics, Ltd. Percepto System 2.4 Unmanned Aircraft, 17157-17169 2022-06378 PROPOSED RULES Airworthiness Directives: Airbus Helicopters, 17206-17208 2022-06425 Airbus Helicopters Deutschland GmbH

(AHD)Helicopters, 17201-17203 2022-06358 Airbus SAS Airplanes, 17198-17201 2022-06392 Alexander Schleicher GmbH and Co. Segelflugzeugbau Gliders, 17204-17206 2022-06390 British Aerospace (Operations) Limited and British Aerospace Regional Aircraft Airplanes, 17211-17215 2022-06428 Rolls-Royce Deutschland Ltd and Co KG (Type Certificate previously held by Rolls-Royce plc) Turbofan Engines, 17209-17211 2022-06409 NOTICES Change in Use of Aeronautical Property: Lancaster Airport, Lititz, PA, 17405-17406 2022-06369 Federal Communications Federal Communications Commission RULES Improving Competitive Broadband Access to Multiple Tenant Environments, 17181-17194 2022-05862 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17290 2022-06437 Charter Renewal: World Radiocommunication Conference Advisory Committee; Request for Nominations, 17289-17290 2022-06389 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17410-17412 2022-06456 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 17290-17291 2022-06606 2022-06607 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: Interstate 15: Farmington to Salt Lake City, UT, 17406-17408 2022-06449 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17410-17412 2022-06456 Change in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 17292 2022-06363 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 17291 2022-06364 2022-06468 Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 17291-17292 2022-06365 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 17292 2022-06362 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Quantitative Research on a Voluntary Symbol Depicting the Nutrient Content Claim “Healthy” on Packaged Foods, 17300-17307 2022-06419 Prescription Drug User Fee Rates for Fiscal Year 2022; Correction, 17300 2022-06427 Foreign Trade Foreign-Trade Zones Board NOTICES Authorization of Limited Production Activity: Fluvitex USA, Inc. (Quilts, Comforters and Cushions), Foreign-Trade Zone 138, Columbus, OH, 17269 2022-06405 Proposed Foreign-Trade Zone under Alternative Site Framework Plaquemines Parish, LA, 17268-17269 2022-06404 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Secure Rural Schools Act, 17263-17264 2022-06436 Meetings: Modoc County Resource Advisory Committee, 17267-17268 2022-06406 Trinity County Resource Advisory Committee, 17265-17267 2022-06398 2022-06399 Wenatchee-Okanogan Resource Advisory Committee, 17266 2022-06400 Proposed New Fee Site, 17264-17265 2022-06463 2022-06465 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indirect Cost Rate Proposals, Payments to Small Business Subcontractors, and Bankruptcy Notifications, 17292-17294 2022-06479 Health and Human Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See Health Resources and Services Administration See National Institutes of Health See Refugee Resettlement Office See Substance Abuse and Mental Health Services Administration Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Telehealth Resource Center Performance Measurement Tool, 17309-17310 2022-06486 Requests for Nominations: Advisory Committee on Heritable Disorders in Newborns and Children, 17308-17309 2022-06367 Organizational Representatives to the Advisory Committee on Heritable Disorders in Newborns and Children, 17307-17308 2022-06368 Homeland Homeland Security Department See Coast Guard See Transportation Security Administration Industry Industry and Security Bureau NOTICES Reporting for Calendar Year 2021 on Offsets Agreements Related to Sales of Defense Articles or Defense Services to Foreign Countries or Foreign Firms, 17269-17270 2022-06272 Interior Interior Department See Land Management Bureau See National Park Service See Ocean Energy Management Bureau Internal Revenue Internal Revenue Service PROPOSED RULES Multiple Employer Plans, 17225-17241 2022-06005 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cut-to-Length Carbon-Quality Steel Plate from Korea, 17270-17271 2022-06401 Sales at Less Than Fair Value; Determinations, Investigations, etc.: Superabsorbent Polymers from the Republic of Korea, 17270 2022-06402 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Welded Stainless Steel Pressure Pipe from India, 17336 2022-06434 Justice Department Justice Department See Executive Office for Immigration Review Labor Department Labor Department See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Meetings: John Day-Snake Resource Advisory Council Planning Subcommittee and John Day-Snake Resource Advisory Council, Oregon, 17320 2022-06454 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Indirect Cost Rate Proposals, Payments to Small Business Subcontractors, and Bankruptcy Notifications, 17292-17294 2022-06479 National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Procedures for Participating in and Receiving Information from the National Driver Register, 17408-17410 2022-06467 National Institute National Institutes of Health NOTICES Meetings: Eunice Kennedy Shriver National Institute of Child Health and Human Development, 17311 2022-06361 National Cancer Institute, 17311 2022-06360 National Heart, Lung, and Blood Institute, 17311 2022-06433 National Institute of Diabetes and Digestive and Kidney, 17312 2022-06376 National Institute on Aging, 17310-17312 2022-06372 2022-06374 2022-06375 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone off Alaska: Pacific Cod by Catcher/Processors Using Hook-and-Line Gear in the Western Regulatory Area of the Gulf of Alaska, 17196-17197 2022-06459 Pacific Island Fisheries: 2022-2025 Annual Catch Limits and Accountability Measures for Main Hawaiian Islands Uku (Gray Jobfish), 17195-17196 2022-06285 PROPOSED RULES International Fisheries: Pacific Tuna Fisheries; Fishing Restrictions for Tropical Tuna and Silky Shark in the Eastern Pacific Ocean for 2022 and beyond, 17248-17261 2022-06345 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of Education Higher Education Scholarship, Fellowship and Internship Programs, 17271-17273 2022-06477 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification of Identity and Consent Form, 17321-17322 2022-06445 National Historic Landmarks Nomination Form, 17320-17321 2022-06443 President's Park National Christmas Tree Music Program Application, 17322-17323 2022-06444 National Register of Historic Places: Pending Nominations and Related Actions, 17323-17324 2022-06359 Navy Navy Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17283-17284 2022-06439 2022-06440 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Nuclear Material Events Database for the Collection of Event Report, Response, Analyses, and Follow-Up Data on Events Involving the Use of Atomic Energy Act Radioactive Byproduct Material, 17342-17343 2022-06484 Request for a Medical Exception to the COVID-19 Vaccination Requirement, 17343-17344 2022-06483 Licenses; Exemptions, Applications, Amendments etc.: Diversified Scientific Services, Inc., 17340-17342 2022-06424 Meetings; Sunshine Act, 17344-17345 2022-06564 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Occupational Exposure to Hazardous Chemicals in Laboratories, 17337-17339 2022-06410 Nationally Recognized Testing Laboratories: TUV SUD America, Inc.; Grant of Expansion of Recognition and Modification to the Program's List of Appropriate Test Standards, 17339-17340 2022-06411 Ocean Energy Management Ocean Energy Management Bureau NOTICES Wind Lease Sale: Carolina Long Bay Area, 17324-17336 2022-06507 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 17345-17346 2022-06482 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Death of Madeleine Korbel Albright (Proc. 10351), 17141-17142 2022-06614 Refugee Refugee Resettlement Office NOTICES Extending Refugee Cash Assistance and Refugee Medical Assistance from 8 Months to 12 Months, 17312-17313 2022-06356 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17358-17359 2022-06421 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Qualitative Feedback on Agency Service Delivery, 17378 2022-06420 Meetings; Sunshine Act, 17359 2022-06533 Self-Regulatory Organizations; Proposed Rule Changes: Cboe Exchange, Inc., 17359-17374 2022-06383 ICE Clear Europe, Ltd., 17374-17376 2022-06384 MIAX Emerald, LLC, 17347-17349 2022-06387 New York Stock Exchange, LLC, 17346-17347 2022-06382 NYSE American, LLC, 17349-17350 2022-06386 NYSE Arca, Inc., 17351-17358, 17376-17378 2022-06385 2022-06388 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Immigrant Visa and Alien Registration, 17379 2022-06429 Culturally Significant Objects Imported for Exhibition: Cezanne Exhibition, 17380 2022-06474 Chroma: Ancient Sculpture in Color Exhibition, 17380 2022-06460 Meetings: International Digital Economy and Telecommunication Advisory Committee, 17379-17380 2022-06418 Overseas Security Advisory Council, 17378-17379 2022-06412 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 17313-17319 2022-06396 2022-06413 2022-06414 Trade Representative Trade Representative, Office of United States NOTICES Exclusion: China's Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 17380-17405 2022-06397 Transportation Department Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration PROPOSED RULES Accessible Lavatories on Single-Aisle Aircraft; Part 2, 17215-17225 2022-05869 Security Transportation Security Administration NOTICES Request for Applicants: Aviation Security Advisory Committee, 17319 2022-06447 Treasury Treasury Department See Comptroller of the Currency See Internal Revenue Service Separate Parts In This Issue Part II Environmental Protection Agency, 17414-17888 2022-04934 Part III Environmental Protection Agency, 17890-17935 2022-05505 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 87 59 Monday, March 28, 2022 Rules and Regulations BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Chapter X Bulletin 2022-05: Unfair and Deceptive Acts or Practices That Impede Consumer Reviews AGENCY: Bureau of Consumer Financial Protection. ACTION: Compliance bulletin. SUMMARY: Reviews of products and services help to promote fair, transparent, and competitive markets. When firms frustrate the ability of consumers to post honest reviews of products and services that they use, they may be engaged in conduct prohibited by the Consumer Financial Protection Act (CFPA). The Consumer Financial Protection Bureau (Bureau) is issuing this bulletin to remind regulated entities of the CFPA's requirements and explain how the Bureau intends to exercise its enforcement and supervisory authorities on this issue. DATES: This bulletin is applicable as of March 28, 2022. FOR FURTHER INFORMATION CONTACT: Christopher Shelton, Senior Counsel, Legal Division, at 202-435-7700. If you require this document in an alternative electronic format, please contact *CFPB_Accessibility@cfpb.gov.* SUPPLEMENTARY INFORMATION: I. Background A. Role of Consumer Reviews Numerous studies and surveys have confirmed the importance of online reviews across the economy. For example, one prominent study estimated that a one-star rating increase on Yelp.com translated to an increase of 5 to 9 percent in revenues for a restaurant. 1 Another study found that a one-point boost in a hotel's online ratings on travel sites is tied to an 11 percent jump in room rates, on average. 2 To date, academic research has not focused specifically on markets for consumer financial products and services. But online reviews are also commonplace in many of those markets, and the Bureau expects them to play an increasing role in helping consumers choose between financial providers. This can create an incentive for dishonest market participants to attempt to manipulate the review process, rather than compete based on the value of their services, which can frustrate a competitive marketplace. 1 Michael Luca, *Reviews, Reputation, and Revenue: The Case of Yelp.com,* Harv. Bus. Sch. Working Paper No. 12-016, 14 (2016). 2 Chris Anderson, *The Impact of Social Media on Lodging Performance,* 12(15) Cornell Hospitality Report 6, 11 (2012). The Bureau notes that consumer reviews can be important to two groups of consumers: The consumers who read and rely upon reviews, as well as the consumers who take the time to express their viewpoints by writing them in the first place. Of course, these groups can be overlapping. Firms that interfere with consumer reviews can harm both of these groups. B. Public Policy Regarding Consumer Reviews Congress unanimously enacted the Consumer Review Fairness Act in 2016, in response to abuses by companies that restricted consumer reviews. 3 As the legislative history of the statute explains, the “wide availability” of consumer reviews “has caused consumers to rely on them more heavily as credible indicators of product or service quality. In turn, businesses have sought to avoid negative reviews . . . through provisions of form contracts with consumers restricting such reviews. These provisions typically impose monetary or other penalties for publishing negative comments regarding the provider's services or products.” 4 The legislative history explains that these “gag clauses or non-disparagement clauses” are harmful to consumers. 5 3 Public Law 114-258, 130 Stat. 1355

(2016)(codified at 15 U.S.C. 45b). 4 H.R. Rep. No. 114-731, at 5 (2016). 5 *Id.* As discussed below, the Consumer Review Fairness Act protects “covered communications.” A covered communication is defined as “a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party.” 6 For simplicity, this bulletin will refer to “covered communications” as consumer reviews. 6 15 U.S.C. 45b(a)(2). The statute clarifies that the term “pictorial” includes pictures, photographs, video, illustrations, and symbols. 15 U.S.C. 45b(a)(4). Relatedly, a “form contract” is defined as a contract with standardized terms that is: “used by a person in the course of selling or leasing the person's goods or services;” and “imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms.” 7 7 15 U.S.C. 45b(a)(3)(A). However, the term “form contract” does not include an employer-employee or independent contractor contract. 15 U.S.C. 45b(a)(3)(B). The Consumer Review Fairness Act provides, with limited exceptions, that “a provision of a form contract is *void from the inception of such contract* ” if the provision: A. Prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication; B. imposes a penalty or fee against an individual who is a party to the form contract for engaging in a covered communication; or C. transfers or requires an individual who is a party to the form contract to transfer to any person any intellectual property rights in review or feedback content, with the exception of a non-exclusive license to use the content, that the individual may have in any otherwise lawful covered communication about such person or the goods or services provided by such person. 8 8 15 U.S.C. 45b(b)(1) (emphasis added). There are additional rules of construction, 15 U.S.C. 45b(b)(2), and exceptions, 15 U.S.C. 45b(b)(3). For simplicity, this bulletin will refer to these various types of provisions as restrictions on consumer reviews. II. Violations of the Consumer Financial Protection Act

(CFPA)Sections 1031 and 1036 of the CFPA prohibit a covered person or service provider from engaging in an “unfair, deceptive, or abusive act or practice” that is “in connection with any transaction with a consumer for a consumer financial product or service, or the offering of a consumer financial product or service.” 9 There are a number of ways that covered persons or service providers could violate this prohibition by interfering with consumer reviews. 9 12 U.S.C. 5531, 5536. For definitions of “covered person,” “service provider,” and “consumer financial product or service,” *see* section 1002 of the CFPA, 12 U.S.C. 5481, and the associated regulation, 12 CFR part 1001. A. Deceiving Consumers Who Wish To Leave Consumer Reviews, Using Purported Contractual Restrictions That Are Unenforceable “An act or practice is deceptive if:

(1)There is a representation, omission, or practice that

(2)is likely to mislead consumers acting reasonably under the circumstances, and

(3)the representation, omission, or practice is material.” 10 10 *CFPB* v. *Gordon,* 819 F.3d 1179, 1192 (9th Cir. 2016) (internal quotation marks and punctuation omitted). It is well-established that material misrepresentations to consumers that are unsupported under applicable law can be deceptive. 11 In particular, including an unenforceable material term in a consumer contract is deceptive, because it misleads consumers into believing the contract term is enforceable. The Bureau's examiners have repeatedly cited such unenforceable contract provisions in their supervisory work. 12 Moreover, disclaimers in a contract such as “subject to applicable law” do not cure the misrepresentation caused by the inclusion of an unenforceable contract term. Additionally, subsequent disclaimers cannot cure a misrepresentation. 13 11 *See, e.g., FTC* v. *World Media Brokers,* 415 F.3d 758, 763 (7th Cir. 2005). 12 *See, e.g.,* Supervisory Highlights: Summer 2017, 82 FR 48703, 48708 (Oct. 19, 2017) (deceptive waivers of borrowers' rights in loss mitigation agreements that were unenforceable under 12 CFR part 1026 (Regulation Z), implementing the Truth in Lending Act); Supervisory Highlights, Issue 24, Summer 2021, 86 FR 36108, 36117 (July 8, 2021) (deceptive waivers of rights in security deed riders that were unenforceable under 12 CFR part 1024 (Regulation X), implementing the Real Estate Settlement Procedures Act). 13 *See, e.g., FTC* v. *IAB Marketing Assoc., LP,* 746 F.3d 1228, 1233 (11th Cir. 2014). Consistent with these principles, it would generally be deceptive to include a restriction on consumer reviews in a form contract, given that the restriction would be void under the Consumer Review Fairness Act. Consumers can be expected to read the language to mean what it says: That they are restricted in their ability to provide consumer reviews. But that is not the case, since the provision is void under applicable law. And the option to post candid reviews about products or services would be material to the many American consumers who do so. Moreover, the Bureau believes that enforcing the deception prohibition is particularly important in this context, given that consumer reviews are a significant driver of competition in the modern economy. In addition, if a covered person or service provider attempts to pressure a consumer to remove an already posted negative review, by invoking a restriction on consumer reviews that is void under the Consumer Review Fairness Act, that would also generally be a deceptive act or practice. Note that this would be an additional deceptive act or practice, not a precondition for establishing the kind of deceptive act or practice already described. Damage can be done by chilling consumers' reviews even if, unknown to the consumer, the covered person or service provider does not later follow up by invoking the contract provision against consumers who post negative reviews. Accordingly, in other contexts, Bureau examiners have found unenforceable contract provisions to be deceptive regardless of whether the provision is ultimately enforced. 14 But if a covered person or service provider does invoke the void contract provision against the consumer (for example, by claiming that the consumer is contractually required to remove a negative review, or that the consumer is contractually required to stop posting such reviews, or assessing a penalty or fee if the consumer does not remove a negative review), that can be expected to further deepen the materially misleading impression that the affected consumers would have. It would be natural for consumers to believe that they need to remove existing negative reviews, stop posting such reviews, or pay the purported penalty or fee, which is not the case. 14 *See* matters cited in note 12. B. Unfairly Depriving Consumers of Information Using Restrictions on Consumer Reviews In addition to deceiving consumers who wish to leave reviews, purported contractual restrictions on consumer reviews can unfairly harm the many other consumers who rely upon reviews when deciding what products and services to purchase. Under section 1031(c) of the CFPA, an act or practice is unfair if:

(A)It causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers; and

(B)such substantial injury is not outweighed by countervailing benefits to consumers or to competition. 15 15 12 U.S.C. 5531(c). In applying the CFPA's unfairness prohibition, the Bureau finds persuasive the reasoning of the Federal Trade Commission

(FTC)in *FTC* v. *Roca Labs, Inc.* 16 *Roca Labs* was an enforcement action that predated the Consumer Review Fairness Act, but it was cited in the that statute's legislative history. 17 In *Roca Labs,* the FTC alleged that the Defendants' use of “contractual provisions that prohibit purchasers from speaking or publishing truthful or nondefamatory negative comments or reviews about the Defendants, their products, or their employees” was unfair under the Federal Trade Commission Act. 18 The defendants' conduct “caused or are likely to cause purchasers to refrain from commenting negatively about the Defendants or their products. By depriving prospective purchasers of this truthful, negative information, Defendants' practices have resulted or are likely to result in consumers buying Roca Labs products they would not otherwise have bought.” 19 This substantial injury was not reasonably avoidable by consumers or outweighed by countervailing benefits to consumers or to competition. 20 The Bureau intends to apply similar unfairness principles if it encounters a covered person or service provider, acting within the scope of the CFPA, who uses contractual restrictions to restrict consumer reviews. 16 Complaint, *FTC* v. *Roca Labs, Inc.,* No. 8:15-cv-02231 (M.D. Fla. filed Sept. 24, 2015), *https://www.ftc.gov/system/files/documents/cases/150928rocalabscmpt.pdf.* 17 H.R. Rep. No. 114-731, at 5

(2016)(citing *id.* ). 18 Complaint at 27, *FTC* v. *Roca Labs, Inc.,* No. 8:15-cv-02231. 19 *Id.* at 22. 20 *Id.* at 27. C. Deceiving Consumers Who Read Consumer Reviews About the Nature of Those Reviews Whether or not there are any contractual restrictions on consumer reviews, covered persons or service providers can engage in a deceptive act or practice by manipulating consumers' comprehension of the set of reviews that are available. Two recent FTC matters illustrate this concern. First, in the *Sunday Riley* matter, the FTC alleged that a company instructed its employees to leave reviews of its products on a third-party website, and also to “dislike” negative reviews left by real customers. 21 The FTC found that this was deceptive. By engaging in this conduct, the company had “represented, directly or indirectly, expressly or by implication, that certain reviews . . . reflected the experiences or opinions of users of the products.” 22 But the company “failed to disclose that the online consumer reviews were written by” the company's employees, which “would be material to consumers . . . in connection with a purchase or use decision.” 23 And, although in *Sunday Riley* the posters were the company's own employees, the Bureau notes that another way that companies can deceive consumers is by paying non-employees to post reviews that are materially misleading. 21 Complaint, *In the Matter of Sunday Riley Modern Skincare, LLC,* File No. 192-3008 (F.T.C. Nov. 6, 2020), *https://www.ftc.gov/system/files/documents/cases/192_3008_c4729_sunday_riley_complaint.pdf.* 22 *Id.* at 4. 23 *Id.* Second, in the *Fashion Nova* matter, a company that sold products through a website allegedly had “four- and five-star reviews automatically post to the website, but did not approve or publish hundreds of thousands lower-starred, more negative reviews.” 24 The FTC found that this was a deceptive act or practice, misleading consumers who read the website into believing that the posted ratings accurately reflected the consumer reviews submitted. 25 24 Complaint at 2, *In the Matter of Fashion Nova, LLC,* File No. 192-3138 (F.T.C. Jan. 25, 2022), *https://www.ftc.gov/system/files/documents/cases/192_3138_fashion_nova_complaint.pdf.* 25 *Id.* Of course, there are also numerous other ways that firms could improperly manipulate consumer reviews. The Bureau intends to carefully scrutinize whether covered persons or service providers are skewing consumers' understanding of consumer reviews in a manner that is deceptive (or unfair or abusive). III. Conclusion In summary, covered persons and service providers are liable under the CFPA if they deceive consumers using restrictions on consumer reviews that are unenforceable under the Consumer Review Fairness Act, if they unfairly deprive consumers of information by using such restrictions, or if they deceive consumers who read reviews about the nature of those reviews. If the Bureau identifies a violation of the CFPA, it intends to use its authorities to hold the violators accountable. IV. Regulatory Matters This is a general statement of policy under the Administrative Procedure Act (APA). It provides background information about applicable law and articulates considerations relevant to the Bureau's exercise of its authorities. It does not confer any rights of any kind. As a general statement of policy, it is exempt from the APA's notice-and-comment rulemaking requirements. 26 Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 27 It also 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 of 1995. 28 26 5 U.S.C. 553(b). 27 5 U.S.C. 603(a), 604(a). 28 44 U.S.C. 3501-3521. Rohit Chopra, Director, Consumer Financial Protection Bureau. [FR Doc. 2022-06446 Filed 3-25-22; 8:45 am]

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