83 FR 10437 - Request for Information Regarding Bureau Rulemaking Processes

BUREAU OF CONSUMER FINANCIAL PROTECTION

Federal Register Volume 83, Issue 47 (March 9, 2018)

The Bureau of Consumer Financial Protection (Bureau) is seeking comments and information from interested parties to assist the Bureau in assessing the overall efficiency and effectiveness of its rulemaking processes and, consistent with law, considering whether any changes to its rulemaking processes would be appropriate.

[Federal Register Volume 83, Number 47 (Friday, March 9, 2018)]
[Notices]
[Pages 10437-10440]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-04824]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

[Docket No. CFPB-2018-0009]


Request for Information Regarding Bureau Rulemaking Processes

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Notice and request for information.

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SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is 
seeking comments and information from interested parties to assist the 
Bureau in assessing the overall efficiency and effectiveness of its 
rulemaking processes and, consistent with law, considering whether any 
changes to its rulemaking processes would be appropriate.

DATES: Comments must be received by June 7, 2018.

ADDRESSES: You may submit responsive information and other comments, 
identified by Docket No. CFPB-2018-0009, 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-2018-0009 in the subject line of the message.
     Mail: Comment Intake, Consumer Financial Protection 
Bureau, 1700 G Street NW, Washington, DC 20552.
     Hand Delivery/Courier: Comment Intake, Consumer Financial 
Protection Bureau, 1700 G Street NW, Washington, DC 20552.
    Instructions: The Bureau encourages the early submission of 
comments. All submissions must include the document title and docket 
number. Please note the number of the topic on which you are commenting 
at the top of each response (you do not need to address all topics). 
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 1700 G Street 
NW, Washington, DC 20552, 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 in response to this request for information, 
including attachments and other supporting materials, will become part 
of the public record and subject to public disclosure. Proprietary 
information or 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: Kristine M. Andreassen and Owen 
Bonheimer, Senior Counsels, Office of Regulations, at 202-435-7700. If 
you require this document in an alternative

[[Page 10438]]

electronic format, please contact [email protected].

SUPPLEMENTARY INFORMATION:

Background on Statutory Requirements Relevant to the Bureau's 
Rulemaking Process

    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act) \1\ states that the Bureau is authorized to exercise 
its authorities under Federal consumer financial law to administer, 
enforce, and otherwise implement the provisions of Federal consumer 
financial law.\2\ The Dodd-Frank Act further authorizes the Director of 
the Bureau to prescribe rules as may be necessary or appropriate to 
enable the Bureau to administer and carry out the purposes and 
objectives of the Federal consumer financial laws, including both 
enumerated consumer laws \3\ and provisions of title X of the Dodd-
Frank Act,\4\ and to prevent evasions thereof.\5\ The Bureau has 
engaged in rulemakings mandated by Congress as well as discretionary 
rulemakings pursuant to these and other authorities. The Bureau's 
rulemaking processes are subject to a number of statutory requirements, 
including those discussed below.
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    \1\ Public Law 111-203, 124 Stat. 2081 (2010).
    \2\ 12 U.S.C. 5512(a).
    \3\ Enumerated consumer laws are the 18 statutes (or portions 
thereof) specifically listed in the Dodd-Frank Act, including, for 
example, the Fair Credit Billing Act, the Fair Debt Collection 
Practices Act, the Home Mortgage Disclosure Act of 1975, the Truth 
in Lending Act, and the Truth in Savings Act. 12 U.S.C. 5481(12). 
The Bureau has rulemaking authority for these and certain other 
Federal consumer financial laws as defined by 12 U.S.C. 5481(14). 
See generally 12 U.S.C. 5512.
    \4\ This includes the Dodd-Frank Act's prohibition against 
unfair, deceptive, or abusive acts or practices. 12 U.S.C. 5531.
    \5\ 12 U.S.C. 5512(b)(1).
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    Notice-and-comment requirements for rulemakings. The Administrative 
Procedure Act (APA) requires a Federal agency to publish a notice of 
proposed rulemaking (NPRM) in the Federal Register whenever it 
formulates, amends, or repeals rules, unless an exception applies.\6\ 
The Bureau's NPRMs typically include the following: (1) Background 
sections, which provide information about the relevant market(s) and 
other applicable laws and regulations; (2) section-by-section analysis 
of proposed regulatory text and the official interpretations thereto 
(also referred to as commentary); (3) proposed impact analyses, as 
described below; and (4) the proposed regulatory text and commentary. 
(Items 1-3 are referred to collectively as preamble.) A final rule also 
includes in its preamble a summary of and response to comments received 
on the NPRM (including on its proposed impact analyses), and an 
explanation of changes from the NPRM.
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    \6\ 5 U.S.C. 553(b). The APA includes exceptions for 
interpretive rules, general statements of policy, rules of agency 
organization, procedure, or practice, or when the agency for good 
cause finds that notice and comment are impracticable, unnecessary, 
or contrary to the public interest. This RFI is focused on the 
Bureau's processes for substantive or ``legislative'' rulemakings, 
not those occurring under an exception in the APA.
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    Small business review process required for certain rulemakings. The 
Regulatory Flexibility Act (RFA) \7\ requires the Bureau to engage in a 
small business feedback process prior to proposing a rule for which (1) 
the APA requires notice and comment and (2) the Bureau does not certify 
that the proposed rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities.\8\ Prior to 
issuing an NPRM in these rulemakings, a review panel must seek input 
from a representative cross section of affected small entities to 
obtain advice and recommendations on proposals the Bureau is 
considering. The Bureau refers to this review panel as a SBREFA panel, 
as it is governed by the provisions added to the RFA by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).\9\ The 
panel must be comprised of representatives from the Bureau, the Office 
of Management and Budget's Office of Information and Regulatory Affairs 
(OMB OIRA), and the Small Business Administration's (SBA) Office of 
Advocacy. The panel is required to prepare a report on its findings and 
make this report part of the rulemaking record. The Bureau typically 
releases a SBREFA panel report, and any written comments from the small 
entity representatives, to the public at the same time that it releases 
an NPRM. As required by SBREFA, the Bureau's NPRMs reflect how the 
Bureau has acted on or otherwise responded to the report's 
recommendations. Additionally, in these rulemakings, as discussed 
further below, the RFA also requires additional impacts analysis 
concerning small entities, including consideration of potential 
alternatives.\10\
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    \7\ Public Law 96-354, 94 Stat. 1164 (1980) (codified at 5 
U.S.C. 601 et seq.).
    \8\ 5 U.S.C. 609.
    \9\ Public Law 104-21, section 241, 110 Stat. 847, 864-65 
(1996). These RFA requirements also apply to two other Federal 
agencies (the Environmental Protection Agency and the Occupational 
Safety and Health Administration). 5 U.S.C. 609(d). To date, the 
Bureau has conducted SBREFA panels for rulemakings regarding the 
integration of Truth in Lending Act and Real Estate Settlement 
Procedures Act mortgage disclosure requirements; mortgage servicing; 
residential mortgage loan origination standards; the Home Mortgage 
Disclosure Act; payday, vehicle, title, and similar loans; 
arbitration agreements; and debt collection. For issued SBREFA panel 
reports, see Bureau of Consumer Fin. Prot., ``Small Business Review 
Panels,'' https://www.consumerfinance.gov/policy-compliance/rulemaking/small-business-review-panels/ (last visited Feb. 26, 
2018).
    \10\ 5 U.S.C. 605(b).
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    Analysis of impacts of proposed and final rules. The Dodd-Frank Act 
requires the Bureau to consider, in prescribing a rule under the 
Federal consumer financial laws, the potential benefits and costs to 
consumers and covered persons, including the potential reduction of 
access by consumers to consumer financial products or services 
resulting from the rule.\11\ The Bureau also must consider the impact 
of proposed rules on depository institutions and credit unions with $10 
billion or less in assets and on consumers in rural areas.\12\ The RFA 
requires the Bureau either to certify that the rule will not have a 
significant economic impact on a substantial number of small entities 
or to analyze the rule's impacts on small entities and potential 
alternatives, as described above. The Paperwork Reduction Act \13\ also 
requires the Bureau to identify the impact of information collection 
requirements in the rule and to meet certain other procedural 
requirements in connection with information collections. These impacts 
analyses are included in an NPRM and reviewed for final rules in light 
of comments received and further analysis.
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    \11\ 12 U.S.C. 5512(b)(2)(A)(i).
    \12\ 12 U.S.C. 5512(b)(2)(A)(ii).
    \13\ 44 U.S.C. 3501 et seq.
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    Relatedly, pursuant to the Congressional Review Act (CRA), the 
Bureau must prepare a report on each final rule for each House of 
Congress and the Comptroller General of the Government Accountability 
Office.\14\ This report must include, among other things, the decision 
by the administrator of OMB OIRA as to whether the rule is a ``major 
rule'' as defined by the CRA.\15\
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    \14\ 5 U.S.C. 801(a)(1)(A).
    \15\ 5 U.S.C. 801(a)(1)(ii); 5 U.S.C. 804(2).
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    Consultation with other Federal agencies. The Dodd-Frank Act 
requires that the Bureau consult with appropriate prudential regulators 
or other Federal agencies prior to proposing a rule and before issuing 
a final rule regarding consistency with prudential, market, or systemic 
objectives administered by such agencies.\16\ In addition, as required 
by the Dodd-Frank Act, the Bureau and the Federal Trade Commission 
(FTC) have entered into a Memorandum of Understanding that provides for 
the Bureau and the FTC to consult with one another before proposing or 
finalizing a

[[Page 10439]]

rule concerning unfair, deceptive, or abusive acts or practices, to 
avoid duplication or conflict between the agencies' respective 
rulemaking activities in this area.\17\
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    \16\ 12 U.S.C. 5512(b)(2)(B).
    \17\ 12 U.S.C. 5581(b)(5)(D) (requiring this Memorandum of 
Understanding). The Bureau also must consult with the FTC before 
issuing a rule to define covered persons subject to its supervision 
authority. 12 U.S.C. 5514(a)(2).
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Overview of This Request for Information

    While many elements of Federal agency rulemaking are required by 
law, a number of the Bureau's rulemaking processes, and certain aspects 
of how the Bureau implements required processes, are discretionary, and 
the Bureau is using this request for information (RFI) to seek public 
input regarding these discretionary aspects of its rulemaking processes 
(the Bureau's processes). The Bureau encourages comments from all 
interested members of the public. The Bureau anticipates that the 
responding public may include entities and individuals subject to 
Bureau rules, trade associations that represent these businesses, 
individual consumers, consumer advocates, regulators, researchers or 
members of academia, and other entities or individuals that have 
submitted comments regarding Bureau rulemakings or provided feedback 
through other mechanisms.
    The Bureau will issue subsequent RFIs seeking public input 
regarding potential modifications to both regulations adopted by the 
Bureau and those inherited from other agencies, as well as about 
overall effectiveness and accessibility of the Bureau's guidance and 
implementation support. The purpose of this RFI is to seek feedback on 
the Bureau's processes outlined below; the Bureau is not seeking 
comment in this RFI on the content of any particular proposed or final 
rule. To provide comments on the Bureau's use of public and non-public 
external engagements, such as field hearings, town halls, and 
roundtables, please respond to the specific RFI on that topic, Docket 
No. CFPB-2018-0005, 83 FR 8247 (Feb. 26, 2018).

Suggested Topics for Commenters

    To allow the Bureau to more effectively evaluate suggestions, the 
Bureau requests that, where possible, comments include:
     Specific discussion of the positive and negative aspects 
of the Bureau's processes;
     Specific suggestions regarding any potential updates or 
modifications to the Bureau's processes, consistent with the laws 
governing rulemaking processes, including, in as much detail as 
possible, the potential updates or modifications, supporting data or 
other information on impacts and costs of participation in rulemakings 
and on suggested changes thereto, information related to consumer and 
public benefit that might result from such changes, or information 
concerning alignment with the processes of other agencies with similar 
authorities; and
     Specific identification of any aspects of the Bureau's 
processes that should not be modified, consistent with the laws 
governing rulemaking processes, and including, in as much detail as 
possible, supporting data or other information on impacts and costs, 
information related to consumer and public benefit resulting from these 
processes, or information concerning alignment with the processes of 
other agencies with similar authorities.
    The Bureau is seeking feedback on all discretionary aspects of the 
Bureau's processes, including current practices, timelines, and 
potential improvements in each stage of these processes. The following 
non-exhaustive list outlines the various stages of the Bureau's 
processes and includes particular queries regarding certain components 
of each stage. This list and related queries represent a preliminary 
attempt by the Bureau to identify elements of the Bureau's processes 
that may be of particular interest to the public. This list is meant to 
assist in the formulation of comments and is not intended to restrict 
the issues that may be addressed. In addressing these topics or others, 
the Bureau requests that commenters identify with specificity the 
Bureau practices at issue, providing citations to specific rulemakings 
or laws governing rulemakings where appropriate and available. Comments 
are welcome on any or all of the topics below, but please be sure to 
indicate on which topic or topic number you are commenting.
    The Bureau is seeking feedback on all aspects of the Bureau's 
processes including, but not limited to:

Initial Outreach and Information Gathering

    1. Mechanisms used by the Bureau for gathering information, data, 
and feedback from stakeholders (i.e., industry, consumer advocates, and 
others) in advance of the steps outlined separately below, including:
    a. RFIs concerning market conditions or issues, particular 
regulatory options, or the process or content of Bureau research, or 
advance notices of proposed rulemaking inviting public comment to shape 
a potential proposed rule.
    b. Efforts to gather data from industry, academia, think tanks, 
consumer groups, and others to support quantitative analysis. Comment 
is specifically sought on methods by which the Bureau might better 
obtain meaningful, nationally representative data from stakeholders for 
use in assessing benefits and costs of proposed rules. The Bureau is 
particularly interested in suggestions on how the Bureau might best 
encourage industry and other stakeholders to share data to inform a 
potential proposed rule and whether concerns about treatment of 
proprietary business data could be better addressed consistent with 
existing law.
    2. Convening a SBREFA panel, when required as described above, 
including:
    a. The outline of the proposal under consideration and the analysis 
of potential impacts on small entities and regulatory alternatives that 
are released at the start of the SBREFA panel process.
    b. Selection of and interaction with small entity representatives 
during the SBREFA panel process.
    c. The SBREFA panel report.
    d. Outreach to other stakeholders on the basis of public release of 
the outline of the proposal under consideration.
    3. Consultations with tribal governments in certain circumstances, 
which pursuant to Bureau policy may occur through meetings, telephone 
conferences, and other forms of communication and outreach prior to 
issuing an NPRM, as well as through a formal request for comment from 
tribal governments and tribal members in an NPRM.\18\
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    \18\ See Bureau of Consumer Fin. Prot., ``Policy for 
Consultation with Tribal Governments,'' available at http://files.consumerfinance.gov/f/201304_cfpb_consultations.pdf.
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Notices of Proposed Rulemaking

    4. The content of the NPRM itself, including:
    a. The background section, which provides information about the 
relevant market and other applicable laws and regulations.
    b. Section-by-section analysis of the proposed regulatory text and 
commentary, including the level of detail regarding the Bureau's 
rationale for its proposed rule, responsiveness to SBREFA panel report 
recommendations (where applicable), the level of detail in the section-
by-section analysis about the NPRM's draft regulatory text and 
commentary, and the questions and topics about which comment is 
requested.
    c. Impact analyses for the proposed rule, including the qualitative 
and

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quantitative analysis therein, and the data on which they rely.
    d. The proposed regulatory text and commentary, including the 
Bureau's use of commentary, appendices, and model or sample forms to 
provide interpretations and illustrations of regulatory text and, 
relatedly, the level of detail and the quantity of examples contained 
in proposed commentary.
    5. The Bureau's issuance of the NPRM, including the Bureau's 
general practice of releasing the NPRM on its website in advance of 
publication in the Federal Register, and supporting materials the 
Bureau may release simultaneously with an NPRM, such as a press release 
or consumer-facing blog post, as well as other high-level or summary 
material regarding the content of the NPRM.
    6. Comment periods for NPRMs, including the length of the comment 
period and extensions of comment periods in certain circumstances, 
whether and in what circumstances the Bureau should provide ``reply 
periods'' for commenters to review and formally respond to other 
commenters' comment letters, and whether and to what extent the Bureau 
should consider comments received after the close of the comment 
period.
    7. Mechanisms for encouraging additional feedback on all or part of 
a NPRM, including the use of online tools to solicit public feedback 
such as, for example, the Bureau's engagement from 2012 to 2014 with 
Cornell University's eRulemaking Initiative to garner public feedback 
via Cornell's website.\19\
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    \19\ Reports based on comments received using this process were 
included in the relevant rulemaking dockets. See Cornell U., 
``Cornell eRulemaking Initiative,'' http://regulationroom.org (last 
visited Feb. 26, 2018).
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    8. The Bureau's processing and posting of comments received to its 
electronic docket on http://www.regulations.gov, including the ways of 
accepting comments, the timeframe to post comments, treatment of 
duplicative or largely duplicative comments, posting similar or related 
comments in batches rather than as separate entries, treatment of 
anonymous comments, treatment of comments where there may be questions 
about the commenter's identity, and ways to tabulate comments received.
    9. Outreach and engagement by the Bureau during and after the 
comment period, including meetings with stakeholders, and disclosure of 
such communications under the Bureau's ex parte policy.\20\
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    \20\ See Policy on Ex Parte Presentations in Rulemakings, 76 FR 
18687 (Apr. 21, 2017) (revising policy in place since August 16, 
2011). Written ex parte communications and summaries of oral ex 
parte communications are posted to the rulemaking docket on http://www.regulations.gov together with public comments received through 
the avenues specified in the NPRM.
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    10. Consideration of new data, studies, and reports issued by other 
agencies or third parties after the NPRM is released.

Final Rules

    11. The content of the notice issuing the final rule, including 
each of the elements listed above in topic 4 (for NPRMs) as well as the 
Bureau's explanation of its rationale for the final rule, the 
discussion in the section-by-section analysis about the final rule's 
regulatory text and commentary, the summary of and response to comments 
received on the NPRM (including those specifically regarding the impact 
analyses), and the explanation of changes from the NPRM.
    12. The Bureau's release of the final rule on its website in 
advance of publication in the Federal Register and supporting materials 
the Bureau may release simultaneously with a final rule, which may 
include a press release, consumer-facing blog post, remarks by the 
Bureau's Director presented at a public event or press call, other 
high-level or summary material regarding the content of the final rule, 
and select regulatory implementation materials.

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

    Dated: March 6, 2018.
Mick Mulvaney,
Acting Director, Bureau of Consumer Financial Protection.
[FR Doc. 2018-04824 Filed 3-8-18; 8:45 am]
BILLING CODE 4810-AM-P