83_FR_14022 83 FR 13959 - Request for Information Regarding Bureau Guidance and Implementation Support

83 FR 13959 - Request for Information Regarding Bureau Guidance and Implementation Support

BUREAU OF CONSUMER FINANCIAL PROTECTION

Federal Register Volume 83, Issue 63 (April 2, 2018)

Page Range13959-13965
FR Document2018-06674

The Bureau of Consumer Financial Protection (Bureau) is seeking comments and information from interested parties to assist the Bureau in assessing the overall effectiveness and accessibility of its guidance materials and activities (including implementation support) to members of the general public, including regulated entities. The Bureau is also considering whether it would be appropriate to make changes, consistent with law, to the formats, processes, and delivery methods for providing such guidance.

Federal Register, Volume 83 Issue 63 (Monday, April 2, 2018) 
[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Notices]
[Pages 13959-13965]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-06674]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

[Docket No. CFPB-2018-0013]


Request for Information Regarding Bureau Guidance and 
Implementation Support

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 effectiveness and accessibility of its 
guidance materials and activities (including implementation support) to 
members of the general public, including regulated entities. The Bureau 
is also considering whether it would be appropriate to make changes, 
consistent with law, to the formats, processes, and delivery methods 
for providing such guidance.

DATES: Comments must be received by July 2, 2018.

ADDRESSES: You may submit responsive information and other comments, 
identified by Docket No. CFPB-2018-0013, 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-2018-0013 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 10:00 a.m. and 5:00 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: Kristin Switzer, Regulatory 
Implementation Program Manager; Angela Fox and Eliott C. Ponte, 
Attorneys (Regulatory Guidance and Implementation); and Brian Shearer, 
Counsel, at 202-435-7700. If you require this document in an 
alternative electronic format, please contact 
[email protected].

SUPPLEMENTARY INFORMATION: The Dodd-Frank Act transferred to the Bureau 
rulemaking authority that previously had been exercised by seven other 
Federal agencies. Those agencies used a variety of methods for 
providing guidance to industry on interpretive questions arising under 
the statutes and regulations they administered. Such guidance is 
``widely understood to be an essential instrument of [F]ederal 
administration'' \1\ and facilitates compliance with Federal law. In 
particular, it allows agencies to articulate their positions in a 
``relatively low cost and flexible'' \2\ way and facilitates 
stakeholders' knowledge of agency positions and intentions ahead of 
enforcement or similar actions.\3\
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    \1\ Nicholas R. Parrillo, ``Federal Agency Guidance: An 
Institutional Perspective,'' at 28 (Oct. 12, 2017) (Yale L. Sch.), 
available at https://www.acus.gov/report/agency-guidance-final-report (report on guidance submitted to the Admin. Conf. of the 
U.S.) [hereinafter ACUS Guidance Report].
    \2\ John F. Manning, ``Nonlegislative Rules,'' 72 Geo. Wash. L. 
Rev. 893, at 914-15 (2004).
    \3\ See, e.g., Hoctor v. USDA, 82 F.3d 165, 167 (7th Cir. 1996) 
(``It would be no favor to the public to discourage the announcement 
of agencies' interpretations by burdening the interpretive process 
with cumbersome formalities.''); Cmty. Nutrition Inst. v. Young, 818 
F.2d 943, 949 (D.C. Cir. 1987) (``We recognize that such guidelines 
have the not inconsiderable benefits of apprising the regulated 
community of the agency's intentions as well as informing the 
exercise of discretion by agents and officers in the field.'').
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    For example, the Board of Governors of the Federal Reserve System 
(``Board'') primarily relied upon what it denominated as ``Official 
Staff Interpretations,'' which were published in the Code of Federal 
Regulations (CFR) as an appendix to the Board's rules, typically 
following a notice-and-comment process.\4\ Board staff also provided 
informal guidance orally in response to individual inquiries. Other 
agencies, such as the Department of Housing and Urban Development and 
the Federal Trade Commission, used various other forms of written 
guidance (such as standalone interpretive rules, letters or advisory 
opinions, and frequently asked questions), while also providing some 
informal oral guidance in response to individual inquiries.
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    \4\ The Board's practice has evolved over time. For example, 
before the Truth in Lending Simplification and Reform Act of 1980, 
the Board generally issued three different kinds of guidance under 
the Truth in Lending Act and its implementing rules, known as 
Regulation Z: Official Board Interpretations; Official Staff 
Interpretations; and Public Information Letters. Official Board 
Interpretations had the most weight of these guidance documents; 
Official Staff Interpretations had less weight but did provide a 
safe harbor from private liability under Regulation Z; and Public 
Information Letters were unofficial staff interpretations and 
therefore did not provide a safe harbor from private liability. In 
doing so, the Board noted that the volume of the varying 
interpretations and letters published by the Board (over 1,500, of 
which only 60 were Official Board Interpretations) complicated 
rather than facilitated compliance. See Truth in Lending; Proposed 
Official Staff Commentary, 46 FR 28560 (May 27, 1981).
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    As described further below, the Bureau, since its inception, has 
provided guidance through a variety of means, and its guidance and 
implementation support functions are continuing to evolve in response 
to feedback from industry and other stakeholders. This Request for 
Information (RFI) seeks input on a number of aspects of the Bureau's 
guidance activities to date and suggestions for future improvements.

Legal Background

    Unless specified otherwise by statute, agency rulemaking activities 
and many guidance activities are governed by the Administrative 
Procedure Act (APA). 5 U.S.C. 551 et seq. The APA distinguishes among 
several types of agency issuances, including rules.\5\ The

[[Page 13960]]

most authoritative type of rulemaking that the Bureau and most other 
agencies engage in creates what are known as ``substantive'' or 
``legislative'' rules under the APA.\6\ When adopted as authorized by 
law, legislative rules have the ``force and effect of law'' in that, 
among other things, they can affect individual rights and obligations, 
such as those of consumers and financial services providers.\7\ 
Legislative rules also bind ``members of the public, the agency, and 
even the courts, in the sense that courts must affirm a legislative 
rule as long as it represents a valid exercise of agency authority.'' 
\8\ Such rules are promulgated, amended, and repealed through notice-
and-comment procedures, unless an exception applies, and published in 
the Federal Register.\9\
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    \5\ 5 U.S.C. 551(4) (defining ``rule'' in relevant part as ``the 
whole or part of an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy or describing the organization, procedure, 
or practice requirements of an agency'').
    \6\ See 5 U.S.C. 552(a)(1)(D) (referring to ``substantive rules 
of general applicability''); Perez v. Mortgage Bankers Ass'n, 135 S. 
Ct. 1199, 1203 (2015) (noting that ``rules issued through the 
notice-and-comment process are often referred to as `legislative 
rules' '').
    \7\ U.S. Dep't of Justice, Attorney General's Manual on the 
Administrative Procedure Act, at 30 n.3 (1947) (hereinafter 
``Attorney General Manual'') (describing substantive rules as 
``rules, other than organizational or procedural, issued by an 
agency pursuant to statutory authority and which implement the 
statute'' and noting that ``[s]uch rules have the force and effect 
of law''); see Chrysler Corp v. Brown, 441 U.S. 281, 302 (1979) 
(advising that legislative rules that carry the force of law 
``affect individual rights and obligations'') (quoting Morton v. 
Ruiz, 415 U.S. 199, 232 (1974)).
    \8\ Richard J. Pierce, Administrative Law Treatise, at Sec.  6.4 
(5th ed. 2017).
    \9\ See 5 U.S.C. 551(5) (defining rulemaking as ``agency process 
for formulating, amending, or repealing a rule''); 5 U.S.C. 
552(a)(1)(D) (requiring legislative rules ``adopted as authorized by 
law'' to be published in the Federal Register); 5 U.S.C. 553(b)(B) 
(requiring notices of proposed rulemaking to be published in the 
Federal Register).
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    The APA also designates ``interpretive rules,'' which advise the 
public of an agency's construction of the statutes and rules which it 
administers, and ``general statements of policy,'' which articulate the 
agency's prospective plans to exercise discretionary authorities.\10\ 
Interpretive rules can be binding in some respects; for example, 
agencies may be subject to a duty to provide appropriate notice prior 
to changing an interpretation in certain circumstances.\11\ However, 
neither an interpretive rule nor a general statement of policy can 
create new rights and obligations for regulated entities.\12\ The level 
of deference that interpretive rules and general statements of policy 
receive from the courts is more variable,\13\ and interpretive rules 
and general statements of policy can be issued and changed through less 
formal procedures than legislative rules.\14\ They are to be published 
in the Federal Register but do not need to go through notice-and-
comment procedures, although the Bureau and other agencies sometimes 
seek comment to gather input before issuance or revision to refine 
their thinking about certain factual and policy issues.\15\
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    \10\ See 5 U.S.C. 553(b)(A) (referring to ``interpretative 
rules'' and ``general statements of policy''); see also Attorney 
General Manual, supra note 7, at 30 n.3.
    \11\ See generally FCC v. Fox TV Stations, Inc., 567 U.S. 239, 
253-54 (2012) (Fox II) (describing need for ``fair notice'' of 
change from previous agency interpretation). In contrast, general 
statements of policy do not bind the public or the agency. See, 
e.g., Syncor Int'l v. Shalala, 127 F.3d 90 (D.C. Cir. 1997) (``The 
agency retains the discretion and the authority to change its 
position--even abruptly--in any specific case because a change in 
its policy does not affect the legal norm.'').
    \12\ See Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199, 1208 
(2015) (noting the ``longstanding recognition that interpretive 
rules do not have the force and effect of law''); see also Chrysler 
Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (citing Attorney 
General Manual, at 30 n.3); Skidmore v. Swift & Co., 323 U.S. 134, 
140 (1944).
    \13\ See Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997) 
(stating that reasonable agency interpretations carry ``at least 
some added persuasive force''); Reno v. Koray, 515 U.S. 50, 61 
(1995) (according ``some deference'' to an interpretive rule that 
``do[es] not require notice and comment''); Martin v. Occupational 
Safety and Health Review Comm'n, 499 U.S. 144, 157 (1991) 
(indicating that ``some weight'' is due to informal interpretations 
though not ``the same deference as norms that derive from the 
exercise of . . . delegated lawmaking powers''). Courts give 
``substantial deference'' to agency interpretations of ambiguous 
agency regulations, including interpretations issued without notice 
and comment. See Halo v. Yale Health Plan, Dir. of Benefits & 
Records Yale U., 819 F.3d 42, 53 (2d Cir. 2016) (citing Auer v. 
Robbins, 519 U.S. 452 (1997)); see also Shalala v. Guernsey Meml. 
Hosp., 514 U.S. 87, 94-95 (1995) (deferring to ``a reasonable 
regulatory interpretation'' contained in an interpretive rule).
    \14\ See 5 U.S.C. 553(b), (d) (exempting interpretive rules and 
general statements of policy from notice-and-comment procedures).
    \15\ 5 U.S.C. 552(a)(1)(D) (providing that, among other things, 
``statements of general policy or interpretations of general 
applicability'' formulated and adopted by an agency must be 
published in the Federal Register).
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    Interpretive rules and general statements of policy are frequently 
referred to as ``guidance.'' \16\ However, the Bureau also uses the 
term guidance more broadly to refer to compliance guides and other 
materials and activities that it does not believe are rules within the 
meaning under the APA (hereinafter ``non-rule guidance''). These non-
rule guidance materials and activities generally reiterate 
requirements, positions, or priorities that previously have been 
announced in a regulation or elsewhere, and include such documents as 
rule summaries, compliance guides, checklists, institutional and 
transactional coverage charts, webinars, and other compliance aids 
directed to regulated entities, the general public, or agency staff 
(e.g., staff manuals). Such materials do not go through notice-and-
comment procedures, are typically not published in the Federal 
Register, do not have the force and effect of law, and are not binding 
under the APA.\17\
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    \16\ See, e.g., ACUS Guidance Report, supra note 1, at 4 
(defining ``guidance'' as ``general statements of policy'' and 
``interpretive rules'').
    \17\ For example, some courts have held that such documents are 
not ``general statements of policy'' or ``rules'' under the APA 
because these documents do not ``implement, interpret, or prescribe 
law or policy.'' See Indep. Equip. Dealers Ass'n v. EPA, 372 F.3d 
420, 428 (D.C. Cir. 2004) (Roberts, J.) (finding that EPA letter 
declining to concur in entity-requested interpretation was not a 
rule, because the letter merely restated EPA longstanding 
interpretation; because it tread no new ground, it did not 
``implement, interpret, or prescribe law or policy''); see also 
Golden and Zimmerman, LLC v. Domenech, 599 F.3d 426, 431-32 (4th 
Cir. 2010) (finding that ATF Reference Guide restating statutes and 
regulations and providing FAQs reiterating interpretations was not a 
rule).
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    The type of guidance issued also can have legal and practical 
significance under certain Federal consumer financial laws that provide 
industry a safe harbor for good faith reliance on legislative rules and 
certain interpretations issued by the Bureau or duly authorized staff. 
See e.g., 15 U.S.C. 1640(f); 12 CFR part 1026, Supp. I, Part 1 (``Good 
faith compliance with this commentary affords protection from liability 
under section 130(f) of the Truth in Lending Act.'').
    Consistent with the practice of many Federal agencies, including 
its predecessor agencies, the Bureau has released an array of guidance. 
These documents and activities have included interpretive rules,\18\ 
general statements of policy or ``policy guidance,'' \19\ and non-rule 
guidance, such as implementation support materials and activities.\20\ 
However, each Bureau

[[Page 13961]]

guidance material and activity has not or may not necessarily fit 
neatly within a single category, as some may include elements from 
multiple categories.\21\
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    \18\ See, e.g., Application of Regulation Z's Ability-To-Repay 
Rule to Certain Situations Involving Successors-in-Interest, 79 FR 
41631 (July 17, 2014); Safe Harbors From Liability Under the Fair 
Debt Collection Practices Act for Certain Actions Taken in 
Compliance With Mortgage Servicing Rules Under the Real Estate 
Settlement Procedures Act (Regulation X) and the Truth in Lending 
Act (Regulation Z), 81 FR 71977 (Oct. 19, 2016).
    \19\ The Bureau's policy guidance has included forward-looking, 
first-time announcements of Bureau positions or priorities regarding 
the Bureau's discretionary supervisory, enforcement, or other 
powers, as well as statements reminding entities of its legal 
obligations in these areas, identifying potential risk areas, and 
providing general compliance management suggestions. See, e.g., 
Policy Guidance on Supervisory and Enforcement Priorities Regarding 
Early Compliance With the 2016 Amendments to the 2013 Mortgage Rules 
Under the Real Estate Settlement Procedures Act (Regulation X) and 
the Truth in Lending Act (Regulation Z), 82 FR 29713 (June 30, 
2017); Compliance Bulletin and Policy Guidance; 2016-02, Service 
Providers, 81 FR 74410 (Oct. 26, 2016).
    \20\ This category includes implementation support provided in 
response to individual inquiries through the Bureau's Regulatory 
Inquiries Function. Additional examples include: Bureau of Consumer 
Fin. Prot., ``Home Mortgage Disclosure (Regulation C) Small Entity 
Compliance Guide,'' (Oct. 2017), available at https://www.consumerfinance.gov/documents/5692/cfpb_hmda_small-entity-compliance-guide.pdf; Bureau of Consumer Fin. Prot., ``Preparing the 
Short Form Disclosure for Prepaid Accounts,'' (Apr. 20, 2017), 
available at https://www.consumerfinance.gov/documents/4528/201704_cfpb_Prepaid_preparingtheshortformdisclosure_v2.pdf. The 
Bureau has also issued other types of non-rule guidance relating 
principally to the Bureau's supervisory processes (rather than 
support of regulatory implementation), including the Bureau's 
Supervision and Examination Manuals. Such other non-rule guidance is 
outside the scope of this RFI.
    \21\ For example, some contemporaneous guidance documents, such 
as preambles of rules, may, among other things, contain both 
interpretive rules and general statements of policy. See Admin. 
Conf. of the U.S., ``Administrative Conference Recommendation 2014-
3: Guidance in the Rulemaking Process,'' (June 6, 2014), available 
at https://www.acus.gov/recommendation/guidance-rulemaking-process 
(describing ``guidance that agencies provide about the meaning and 
purpose of their rules at the time those rules are issued'').
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    Like other agencies, the Bureau faces tradeoffs that it must 
consider when issuing guidance. Where the Bureau does not use notice-
and-comment procedures, it can act more quickly to issue or update 
guidance materials to address industry interpretive questions and 
respond to developments in the marketplace. However, the more expedited 
the process is in developing guidance, the more likely that an agency 
may find a need over time to revise or adjust its initial guidance 
statements and address related legal, factual, and policy issues, even 
though revisiting such materials can impose additional costs on both 
the agency and regulated entities. Materials issued through less formal 
processes also may, depending on the circumstances, receive less 
deference from courts in litigation.\22\ Also, diversifying the number 
of channels through which the Bureau provides guidance can create more 
flexibility for the Bureau to respond to different circumstances and 
stakeholder needs, but also can make it more challenging for 
stakeholders to identify all relevant forms of information. On the 
other hand, legislative rules and Official Interpretations (otherwise 
known as commentary and discussed further below) collected in 
appendices to particular rules in the CFR after notice and comment 
provide the greatest amount of certainty, reliability, and ease of 
access, but take a considerable amount of time and agency resources to 
promulgate.
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    \22\ See U.S. v. Mead Corp., 533 U.S. 218, 229-31 (2001) 
(recognizing ``a very good indicator of delegation meriting 
[deference] in express congressional authorizations to engage in the 
process of rulemaking or adjudication that produces regulations or 
rulings,'' but also noting that ``we have sometimes found reasons 
for [deference] even when no such administrative formality was 
required and none was afforded'').
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Overview of This Request for Information

    The Bureau is using this request for information (RFI) to seek 
public input regarding the overall effectiveness and accessibility of 
the Bureau's guidance as well as changes that it may make, consistent 
with applicable law, to the formats, processes, and delivery methods 
for providing such guidance. Additionally, the Bureau is seeking 
comment on potential new forms of guidance that could support 
regulatory implementation and compliance, as well as on the disclaimers 
used for its non-rule guidance.
    In this RFI, the Bureau is not seeking comments on the following 
topics, as these have been addressed or will be addressed in other 
Bureau RFIs: (1) Educational materials on its regulations developed for 
consumers or in response to consumer inquiries; (2) the substance of 
any particular proposed or final rule (for both rules the Bureau 
adopted and those it inherited), including a proposed or final rule's 
Official Interpretations that are published with the regulations; or 
(3) the guidance provided in the Bureau's Supervision and Examination 
Manuals or Supervisory Highlights.\23\
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    \23\ For commenters interested in addressing guidance provided 
in the Official Interpretations of Bureau-issued rules, see the RFI 
on that topic, Docket No. CFPB-2018-0011, 83 FR 12286 (Mar. 21, 
2018). For commenters interested in addressing guidance provided in 
the Official Interpretations of rules the Bureau inherited, see the 
RFI on that topic, Docket No. CFPB-2018-0012, 83 FR 12881 (Mar. 26, 
2018). For commenters interested in addressing the Bureau's 
Supervision and Examination Manual or Supervisory Highlights 
publications, see the RFI on the Bureau's Supervision Program, 
Docket No. CFPB-2018-0004, 83 FR 7168 (Feb. 20, 2018).
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    The Bureau encourages comments from all interested members of the 
public. The Bureau anticipates that the responding public may include 
entities subject to Bureau rules, trade associations and professional 
services organizations that represent these entities, individual 
consumers, consumer advocates, regulators, and researchers or members 
of academia.

Suggested Topics for Commenters

    To allow the Bureau to evaluate suggestions more effectively, the 
Bureau requests that, where possible, comments include:
     Specific discussions of the positive and negative aspects 
of the Bureau's guidance materials and activities (including 
implementation support).
     Specific suggestions regarding any potential updates or 
modifications to the Bureau's approach to providing guidance (including 
implementation support), and including, in as much detail as possible, 
supporting data or other information on impacts and costs, or 
information concerning alignment with the processes of other agencies.
     Specific identification of any aspects of the Bureau's 
approach to guidance (including implementation support) provided by the 
Bureau that should not be modified, and including, in as much detail as 
possible, supporting data or other information on impacts and costs, or 
information concerning alignment with the processes of other agencies.
    The following sections list areas of interest on which commenters 
may want to focus input. This non-exhaustive list is meant to assist in 
the formulation of comments and is not intended to restrict what may be 
addressed by the public. Commenters may comment on matters that are 
related to the Bureau's guidance (including implementation support), 
but do not appear in the list below. The Bureau requests that, in 
addressing these questions, commenters identify with specificity the 
Bureau guidance material or activity, format, process, or delivery 
platform at issue, providing specific examples where appropriate. In 
discussing Bureau guidance provided to date, the Bureau also requests 
that commenters provide examples and supporting information where 
possible, as well as relevant information about the frequency with 
which particular types of guidance have been used within an 
institution, by which parties, and in what ways. Commenters should feel 
free to comment on some or all of the questions below, but are 
encouraged to indicate in which area their comments are focused.
    From all of the suggestions, the Bureau requests that commenters 
offer their highest priorities, where possible, along with an 
explanation of how or why certain suggestions have been prioritized. 
Commenters are asked to single out their top priority where possible. 
Suggestions will be most helpful if they focus on revisions that the 
Bureau could implement without changes in the law, consistent with the 
Bureau's authorities and in light of tradeoffs under the APA framework 
described above.

Regulatory Inquiries Function

    The Bureau's Regulatory Inquiries Function assists individual 
inquirers

[[Page 13962]]

who have specific questions about the Bureau's statutes and 
regulations. At times, the Bureau has received several thousand 
inquiries per year, largely focused on implementation by industry of 
new or revised regulations. The Regulatory Inquiries Function is an 
example of an implementation support activity that falls within the 
category of non-rule guidance. Similar to the regulatory inquiries 
functions of many of its predecessor agencies, the Bureau's function is 
designed to provide inquirers with relatively quick, informal 
assistance concerning the statutes and regulations that the Bureau 
administers. However, in part because of the APA constraints discussed 
above, the function is limited in scope. Responses are not intended to 
be interpretations of the regulations or general statements of policy, 
as described earlier, but rather to assist in the application and 
implementation by industry of the Bureau's regulations and Official 
Interpretations. For example, the Bureau emphasizes on its website that 
the informal assistance provided through this function does not 
constitute an official interpretation of the Bureau and is not a 
substitute for formal legal counsel or other compliance advice. The 
Bureau also does not moderate disputes between parties, provide 
guidance on matters that are under examination or investigation by the 
Bureau or another State or Federal agency, or answer questions about 
specific business plans.
    Although the assistance provided through the Regulatory Inquiries 
Function is limited and individualized, the Bureau believes that the 
assistance is valuable to those receiving it. In addition, the 
inquiries received through this channel provide an important 
information source, which helps the Bureau prioritize provision of the 
various other types of guidance described in this RFI by providing a 
window (supplementing the Bureau's general market monitoring and 
outreach activities) into the implementation and compliance challenges 
faced by regulated entities. Thus, when the Bureau receives multiple 
individual inquiries about the same topic, as described below, the 
Bureau often prioritizes that topic for webinars and various forms of 
written guidance, potentially culminating in revisions to the Official 
Interpretations to the particular rule after a notice-and-comment 
process.
    Generally, individual inquiries are submitted to the Bureau through 
a phone message or a form accessed on the Bureau's website. However, 
inquiries related specifically to the Home Mortgage Disclosure Act 
(HMDA) and its implementing Regulation C are also submitted through a 
separate channel--the Bureau's HMDA Help function--via phone, email, or 
a form accessed on a specific Bureau website dedicated to HMDA 
operational support.
    Historically, responses to regulatory inquiries have been provided 
orally via phone conversations with Bureau staff. However, the Bureau 
has been providing an increasing number of responses to regulatory 
inquiries through emails, most extensively with the responses provided 
through its HMDA Help function.
    The Bureau is seeking feedback on all aspects of its Regulatory 
Inquiries Function, including the following areas of interest:
    1. The preferred vehicle(s) for submitting inquiries (i.e., phone 
message, email, web form, or other specific vehicle).
    2. Preferences regarding the responses to regulatory inquiries; the 
format and delivery method for the responses provided (i.e., oral 
response, email, or other format or delivery method); and the desired 
timing of the responses provided.
    3. The relative value of responses to regulatory inquiries. In 
particular, the Bureau is interested in the tradeoffs between providing 
quick guidance orally to individuals through the Regulatory Inquiries 
Function and providing written guidance, which is generic and takes 
more time, but generally is more broadly accessible.
    4. Whether the Bureau should, as a matter of practice, publish 
written responses to regulatory inquiries and, if so, consistent with 
law, the appropriate vehicle or platform for such publications, the 
desired frequency for publishing such responses, and the appropriate 
disclaimers to accompany such publications.
    5. Additional ways that the Bureau can improve the Regulatory 
Inquiries Function, including improvements to the process for 
submitting inquiries, the process for receiving responses, the 
substance of responses, or the timing of responses.

Regulatory Implementation and Compliance Aids

    The Bureau creates and releases on its website several categories 
of regulatory implementation and compliance aids, including: (1) 
Compliance guides; (2) rule summaries and other quick reference 
materials; and (3) webinars. These regulatory implementation and 
compliance aids are examples of implementation support materials 
categorized as non-rule guidance. These materials provide relatively 
brief, informal summaries of Federal consumer financial laws and 
regulations, generally focusing on summarizing statutes and 
interpretations and positions previously announced in Bureau 
legislative or non-legislative rules using language and formats that 
may be particularly useful to compliance professionals. As noted above, 
both the content and format of regulatory implementation and compliance 
aids are informed by what the Bureau learns as it administers its 
Regulatory Inquiries Function and general market monitoring and 
outreach activities.
    Compliance guides are plain language summaries of a Bureau rule 
and, like other examples of non-rule guidance in this section, are not 
intended to be interpretations of that rule or general statements of 
policy. Compliance guides include Small Entity Compliance Guides as 
well as instructional guides for disclosure forms. The Bureau is 
statutorily required to provide Small Entity Compliance Guides for 
rules it issues that meet certain criteria, although it also provides 
them for certain rules for which they are not required.\24\
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    \24\ Section 212(a) of the Small Business Administration 
Regulatory Enforcement Act (SBREFA) requires, among other things, 
that with respect to certain rules, an agency ``publish[es] 1 or 
more guides to assist small entities in complying with the rule and 
shall entitle such publications `small entity compliance guides.' '' 
The Bureau's Small Entity Compliance Guides fulfill the Bureau's 
requirements under Section 212(a), although the Bureau occasionally 
provides these guides even when not required under the SBREFA 
statute, as in the case of the Prepaid Rule Small Entity Compliance 
Guide. The Bureau also understands that these guides are used by all 
entity types, not just those defined as ``small entities'' under the 
SBREFA statute. Compliance guides are provided in PDF format on the 
Bureau's Regulatory Implementation and Guidance web page. See Bureau 
of Consumer Fin. Prot., ``Implementation and Guidance,'' https://www.consumerfinance.gov/policy-compliance/guidance/implementation-guidance/ (last visited Mar. 16, 2018).
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    Quick reference materials are additional plain language summaries 
of a rule or portions of a rule, but are shorter than compliance 
guides. These include, but are not limited to, executive summaries, 
summaries of changes, factsheets, flow charts, decision trees, and 
summary tables. Executive summaries are posted at the same time that 
the underlying rule is released, and other quick reference materials 
are posted as they are completed.\25\
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    \25\ Quick reference materials are also provided in PDF format 
on the Bureau's Regulatory Implementation and Guidance web page. Id.
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    Webinars are recorded presentations in which the Bureau (either

[[Page 13963]]

independently or in collaboration with other Federal agencies or trade 
associations) provides information to facilitate further understanding 
of a rule, either in a question-and-answer or topic-based explanation 
format. The Bureau has created webinars for production on trade 
association websites, other regulatory agency websites, and most 
recently its own public YouTubeTM channel. Each webinar is 
accompanied by the presentation slides used for the discussion, and 
some have hyperlinked video section breaks, either in a separate 
document or in the video description.
    The Bureau is seeking feedback on all aspects of its regulatory 
implementation and compliance aids, including the following areas of 
interest: \26\
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    \26\ The Bureau understands that industry has expressed concerns 
regarding its use of disclaimers for non-rule guidance such as 
regulatory implementation and compliance aids. See below for a 
discussion and questions on the Bureau's use of disclaimers.
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    6. The utility of the Bureau's compliance guides and quick 
reference materials as well as potential areas for improvement, 
including:
    a. The scope of topics addressed and the format in which they are 
presented;
    b. The ease of navigation to materials on the Bureau's website and 
to sections within the compliance guides or quick reference materials;
    c. The effectiveness of the Bureau's use of the plain language 
writing style in the Small Entity Compliance Guides and quick reference 
materials to help make the rules more easily understandable; and
    d. The usefulness of the Bureau providing Small Entity Compliance 
Guides and quick reference materials when not legally required to do so 
(particularly for entities that do not meet the Small Business 
Administration's definition of ``small business.'').\27\
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    \27\ See 13 CFR 121.201; U.S. Small Bus. Admin., ``Small 
Business Compliance Guide Size and Affiliation,'' (Mar. 2014), 
available at https://www.sba.gov/sites/default/files/articles/affiliation_ver_03.pdf.
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    7. The utility of the Bureau's webinars as well as potential areas 
for improvement, including issues related to the website utilized for 
viewing; the format of the webinar guidance (i.e., question and answer 
format, explanatory format, or other formats); the supplemental 
materials (e.g., hyperlinked navigation tools, presentation slides, or 
other materials); and the ease with which topics of interest may be 
located within webinar materials.
    8. For the identified types of regulatory implementation and 
compliance aids in questions six and seven, feedback on the delivery 
methods (e.g., provision on the Bureau's website and email 
notifications to the appropriate email listserv), and the delivery 
method and timing for notifying stakeholders of the availability of new 
or amended materials.

Official Interpretations and Standalone Interpretive Rules

    Many regulations issued under the Bureau's rulemaking authority 
contain Official Interpretations within the supplement or appendix to 
the regulatory text in the CFR. The Bureau, as a matter of practice, 
has published Official Interpretations in the Federal Register after 
notice and comment. Among other purposes, the Bureau uses Official 
Interpretations to clarify regulatory text and provide examples of 
practices that comply with regulatory provisions. The Bureau also uses 
Official Interpretations to memorialize the Bureau's responses to 
recurring questions on particular legislative rules over time. For 
example, after issuing a new regulation, during the implementation 
period for that rule, the Bureau frequently has amended the Official 
Interpretations (and sometimes the regulatory text) in response to 
questions posed during the implementation process.\28\ As discussed 
earlier, under certain enumerated consumer financial laws, such as the 
Truth in Lending Act,\29\ Official Interpretations also provide 
financial services providers protection from civil liability for acts 
committed in good faith reliance on those interpretations.
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    \28\ By including this implementation guidance in the Official 
Interpretations on routine basis during the implementation period, 
the Bureau has expanded on the practice of the Federal Reserve Board 
described above of incorporating guidance into the Official 
Interpretations in an effort to make such guidance more readily 
accessible and to clarify its legal effect.
    \29\ See 15 U.S.C. 1640(f).
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    Although the Bureau has generally used Official Interpretations as 
a cumulative repository of the Bureau's interpretations issued over 
time, the Bureau also occasionally has issued standalone interpretive 
rules without notice and comment when rapid issuance of interpretive 
clarification will assist industry with regulatory implementation or 
compliance.\30\ The Bureau identifies regulatory areas that would 
benefit from these types of clarifications from a variety of sources, 
including inquiries received through the Regulatory Inquiries Function 
and feedback obtained through industry outreach or market monitoring 
activities. The Bureau generally expects that it will periodically 
amend the relevant Official Interpretations in the CFR to reflect the 
positions taken in these materials, after notice and comment to assess 
whether further refinement is warranted.\31\
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    \30\ See 79 FR 41631 (July 17, 2014) and 81 FR 71977 (Oct. 19, 
2016), supra note 18. In the past, the Bureau has used labels for 
interpretive guidance that are different than what is used in this 
RFI. For example, interpretive guidance may have been issued in 
other documents, such as bulletins. See, e.g., CFPB Bulletin 2013-
12, Implementation Guidance for Certain Mortgage Servicing Rules 
(Oct. 15, 2013).
    \31\ For example, the Bureau addressed in the Official 
Interpretations some of the guidance previously provided in CFPB 
Bulletin 2013-12, supra note 30. See Amendments to the 2013 Mortgage 
Rules Under the Real Estate Settlement Procedures Act (Regulation X) 
and the Truth in Lending Act (Regulation Z), 81 FR 72160, 72236-38 
(Oct. 19, 2016). In some cases, for example, there is no existing 
implementing regulation for some or all of the statute and, thus, no 
Official Interpretations that may be used to incorporate guidance 
about that portion of the statute. See, e.g., Fair Debt Collection 
Practices Act, 15 U.S.C. 1692-1692p.
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    Consistent with applicable law, the Bureau is seeking feedback on 
all aspects of the process by which it issues interpretive rules and 
Official Interpretations, including the following areas of interest:
    9. The efficiency and effectiveness of providing guidance through 
the Bureau's Official Interpretations.
    10. Which types of standalone interpretive rules are most efficient 
and effective and, if any, with what frequency and through what 
processes the Bureau should amend the Official Interpretations to 
incorporate standalone interpretive guidance into the CFR.
    11. Whether there are circumstances in which the Bureau should use 
the notice-and-comment process (even though not legally required) for 
standalone interpretive rules.

SEFL Guidance Materials

    The Bureau's Division of Supervision, Enforcement, and Fair Lending 
(SEFL) issues a number of documents meant to provide industry and the 
public with insight into the Bureau's enforcement and supervision 
priorities, perspectives regarding compliance with Federal consumer 
financial law, and supervisory expectations. For example, SEFL guidance 
materials have helped to identify compliance risks, made 
recommendations to strengthen compliance management systems, and 
provided options for reducing compliance risks. Those materials 
include, for example, compliance bulletins, policy statements, and 
statements on supervisory practices. They generally are examples of 
policy

[[Page 13964]]

guidance as described above, and, for example, do not have the force 
and effect of law.\32\ Examples include the Bureau's policy guidance on 
supervisory and enforcement priorities regarding early compliance with 
the 2016 amendments to the 2013 Mortgage Rules under the Real Estate 
Settlement Procedures Act (Regulation X) and the Truth in Lending Act 
(Regulation Z),\33\ and the Bureau's compliance bulletin on detecting 
and preventing consumer harm from production incentives.\34\
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    \32\ As noted above, the guidance provided in the Bureau's 
Supervision and Examination Manuals or Supervisory Highlights 
publications is outside the scope of this RFI.
    \33\ 2016 Amendments to the 2013 Mortgage Rules Under the Real 
Estate Settlement Procedures Act (Regulation X) and the Truth in 
Lending Act (Regulation Z), 82 FR 29713 (June 30, 2017).
    \34\ Bureau of Consumer Fin. Prot., ``CFPB Compliance Bulletin 
2016-03, Detecting and Preventing Consumer Harm from Production 
Incentives,'' (Nov. 28, 2016), available at https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201611_cfpb_Production_Incentives_Bulletin.pdf.
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    The Bureau is seeking feedback on all aspects of these SEFL 
guidance materials, including but not limited to:
    12. The timing, frequency, scope, and delivery method of SEFL 
guidance materials.
    13. The benefits or drawbacks associated with the Bureau's use of 
each particular type of SEFL guidance vehicle.
    14. Other feedback or suggestions related to SEFL guidance 
materials.

Recommendations for New Forms of Written Guidance

    The Bureau has received feedback from industry and other external 
stakeholders encouraging the use of forms of written guidance that have 
been used frequently by some other agencies, such as Frequently Asked 
Questions (FAQs) and advisory opinions. In response to this feedback, 
the Bureau has begun to explore new and enhanced methods for delivering 
direct, easy-to-understand written guidance that can be delivered via a 
public-facing platform on a shorter timeline than might be required for 
interpretive rules.\35\
---------------------------------------------------------------------------

    \35\ Earlier iterations of the Bureau's Small Entity Compliance 
Guides utilized a question and answer format. See, e.g., Bureau of 
Consumer Fin. Prot., ``Ability-to-Repay and Qualified Mortgage Rule: 
Small Entity Compliance Guide,'' (Mar. 2016), available at https://files.consumerfinance.gov/f/201603_cfpb_atr-qm_small-entity-compliance-guide.pdf; Bureau of Consumer Fin. Prot., ``Remittance 
Transfers: Small Entity Compliance Guide,'' (Jan. 31, 2017), 
available at https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201701_cfpb_Intl_Money_Transfer_Small_Entity_Compliance_Guide.pdf.
---------------------------------------------------------------------------

    For example, the Bureau recently published on its website FAQs on 
bankruptcy issues related to mortgage servicing,\36\ and issued FAQs on 
HMDA operational and regulatory requirements.\37\ These FAQs have 
historically been non-rule guidance--written responses to questions 
received from regulated entities and other stakeholders that do not 
constitute an interpretive rule under the APA, consistent with the 
kinds of information that the Bureau has provided orally or by email 
through the Regulatory Inquiries Function described above. However, the 
Bureau could choose to change its approach in the future to issue 
interpretive rules in the form of FAQs.
---------------------------------------------------------------------------

    \36\ Bureau of Consumer Fin. Prot., ``Mortgage Servicing FAQs,'' 
https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/cfpb_mortgage-servicing_frequently-asked-questions.pdf (last updated 
Mar. 20, 2018).
    \37\ The HMDA FAQs may be accessed using a searchable web portal 
located on the Federal Financial Institutions Examination Council 
HMDA Help web page, which may be accessed from the Bureau's website. 
See Bureau of Consumer Fin. Prot., ``Frequently Asked Questions: 
HMDA Filing, FFIEC,'' https://www.consumerfinance.gov/data-research/hmda/faq (last visited Mar. 16, 2018); Bureau of Consumer Fin. 
Prot., FFIEC: HMDA Platform,'', https://hmdahelp.consumerfinance.gov/knowledgebase/s/ (last visited Mar. 23, 
2018).
---------------------------------------------------------------------------

    The Bureau has also begun exploring the use of advisory opinions 
and similar types of focused guidance to assist industry in better 
understanding its legal and regulatory obligations.\38\ The Bureau 
understands that Federal agencies have described different types of 
guidance as advisory opinions. In the most formal cases, advisory 
opinions are interpretive rules--written opinions providing 
interpretations of a statute or regulation, often applying that 
interpretation to a particular situation. In other cases, advisory 
opinions are policy or non-rule guidance. The Bureau also understands 
that advisory opinions typically are focused on reducing uncertainty by 
providing a written response to a specific inquiry regarding the 
conformance of a specific transaction or activity with a particular 
statute or regulation subject to the agency's jurisdiction.
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    \38\ The Bureau has two other programs by which individual 
applicants can seek determinations from the Bureau, although the 
programs do not provide guidance on compliance with existing 
statutes and regulations. Rather, the Bureau's Trial Disclosure 
Waiver Policy sets forth procedures for the Bureau to exercise its 
authority pursuant to section 1032(e) of the Dodd-Frank Act to waive 
disclosure requirements for a set period to allow applicants 
flexibility in field testing alternative disclosures. 12 U.S.C. 
5532(e). The Bureau has also developed a program setting forth the 
requirements and processes for the issuance of No Action Letters in 
cases in which Bureau staff do not intend to exercise their 
discretion to pursue supervision or enforcement activity concerning 
potentially consumer-friendly market innovations that involve 
significant regulatory uncertainty. These programs are not the focus 
of this RFI, which is focused on guidance to facilitate 
implementation of the Bureau's regulations and compliance with 
Federal law.
---------------------------------------------------------------------------

    The Bureau is seeking feedback on potential new methods or channels 
for providing guidance, including but not limited to:
    15. The utility of FAQs. Specifically, comment is sought on the 
types of questions that are appropriately dealt with through FAQs 
rather than another instrument, and the mechanisms that the Bureau 
should use to identify and prioritize issues and topics that should be 
addressed using FAQs.
    16. The potential utility of establishing an advisory opinion 
program that would provide interpretations, in addition to or instead 
of an FAQ program, including the particular scope and benefits of 
advisory opinions that would be distinct from generalized FAQs and the 
types of questions or issues that could or could not be appropriately 
dealt with by advisory opinions.
    17. The potential benefits and costs of memorializing over time any 
interpretations reflected in advisory opinions or other standalone 
guidance documents in the Official Interpretations to the underlying 
regulations, after notice and comment.
    18. The tradeoffs between issuing FAQs or advisory opinions quickly 
and issuing written guidance after notice and comment. With respect to 
FAQs or advisory opinions, commenters should include, where possible, 
suggestions on how best to mitigate risks to stakeholders (e.g., 
industry confusion, increased compliance costs, potential legal 
concerns) where there is a heightened risk that the Bureau may change 
its approach at a later date.
    19. Other approaches, methods, or practices not currently employed 
by the Bureau that would enhance external stakeholders' ability to 
comprehend, implement, or comply with statutes and regulations subject 
to the Bureau's purview.

Disclaimers

    The Bureau uses disclaimers on non-rule guidance materials to, 
among other things, describe the purpose of the material, note the 
legal limitations of the guidance in light of the APA and underlying 
Federal consumer financial laws, and emphasize that the rule and its 
Official Interpretations are the definitive sources regarding a rule's 
requirements in the event of a perceived conflict. In other words, 
these disclaimers are often used to clarify when guidance materials are 
non-rule materials that are intended only to aid understanding and 
implementation.

[[Page 13965]]

    The Bureau has received feedback from industry indicating that the 
Bureau's use of disclaimers on its materials causes confusion as to the 
utility and reliability of the guidance and otherwise diminishes the 
usefulness of the guidance provided. The Bureau has also received 
feedback urging the Bureau to modify existing disclaimers.
    Bureau disclaimers are printed on, for example, rule summaries, 
compliance guides, quick reference materials, and other compliance 
aids. These disclaimers are given orally to industry stakeholders when 
Bureau staff present in webinars or at industry conferences or respond 
to questions through the Regulatory Inquiries Function. The particular 
language used in disclaimers is tailored to the type of guidance being 
provided. For example, the disclaimers provided within the Bureau's 
regulatory implementation and compliance aids generally indicate that 
the explanation or summary of a regulatory requirement does not apply 
to all possible circumstances and is not legal advice. Oral disclaimers 
given through the Bureau's Regulatory Inquiries Function generally 
explain that Bureau staff only provide informal responses to regulatory 
inquiries and that the responses are not intended to serve as legal 
advice or considered to be an official interpretation of a regulation.
    The Bureau has developed different disclaimers for different types 
of materials as its guidance function has evolved over time, and 
stakeholders have indicated that some historical formulations are 
particularly likely to cause confusion. For example, industry 
stakeholders point to language stating that webinar materials do not 
bind the Bureau, or create any rights, benefits, or defenses that are 
enforceable by other parties, as raising questions about whether 
material presented can be relied upon. They question whether the Bureau 
would change its interpretation without notice or take action against a 
party acting in conformity with an interpretation stated in a webinar.
    The Bureau is seeking feedback on all aspects of its disclaimers, 
including the following areas of interest:
    20. Taking into consideration the Bureau's purposes for providing 
guidance as well as APA requirements discussed above, whether 
disclaimers are transparent, understandable, and appropriate to the 
type of guidance being provided.
    21. Desired changes to the Bureau's disclaimer language or approach 
to disclaimers generally, and whether other Federal agencies have 
adopted disclaimer language or approaches to disclaimers that would be 
useful to the Bureau.
    22. The variety of Bureau disclaimers currently provided, and 
whether the Bureau should adopt a single, more generic disclaimer to be 
used in most instances.
    23. Other feedback or suggestions related to the Bureau's 
disclaimers.

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

    Dated: March 27, 2018.
Mick Mulvaney,
Acting Director, Bureau of Consumer Financial Protection.
[FR Doc. 2018-06674 Filed 3-30-18; 8:45 am]
 BILLING CODE 4810-AM-P

Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices 13959 the instructions to view Department of number of the topic on which you are For example, the Board of Governors Commerce collections currently under commenting at the top of each response of the Federal Reserve System (‘‘Board’’) review by OMB. (you do not need to address all topics). primarily relied upon what it Written comments and Because paper mail in the Washington denominated as ‘‘Official Staff recommendations for the proposed DC area and at the Bureau is subject to Interpretations,’’ which were published information collection should be sent delay, commenters are encouraged to in the Code of Federal Regulations within 30 days of publication of this submit comments electronically. In (CFR) as an appendix to the Board’s notice to OIRA_Submission@ general, all comments received will be rules, typically following a notice-and- omb.eop.gov or fax to (202) 395–5806. posted without change to http:// comment process.4 Board staff also Dated: March 28, 2018. www.regulations.gov. In addition, provided informal guidance orally in comments will be available for public response to individual inquiries. Other Sarah Brabson, inspection and copying at 1700 G Street agencies, such as the Department of NOAA PRA Clearance Officer. NW, Washington, DC 20552, on official Housing and Urban Development and [FR Doc. 2018–06604 Filed 3–30–18; 8:45 am] business days between the hours of the Federal Trade Commission, used BILLING CODE 3510–NK–P 10:00 a.m. and 5:00 p.m. eastern time. various other forms of written guidance You can make an appointment to (such as standalone interpretive rules, inspect the documents by telephoning letters or advisory opinions, and BUREAU OF CONSUMER FINANCIAL 202–435–7275. frequently asked questions), while also PROTECTION All submissions in response to this providing some informal oral guidance request for information, including in response to individual inquiries. [Docket No. CFPB–2018–0013] attachments and other supporting As described further below, the materials, will become part of the public Bureau, since its inception, has Request for Information Regarding record and subject to public disclosure. provided guidance through a variety of Bureau Guidance and Implementation Proprietary information or sensitive means, and its guidance and Support personal information, such as account implementation support functions are AGENCY: Bureau of Consumer Financial numbers or Social Security numbers, or continuing to evolve in response to Protection. names of other individuals, should not feedback from industry and other ACTION: Notice and request for be included. Submissions will not be stakeholders. This Request for information. edited to remove any identifying or Information (RFI) seeks input on a contact information. number of aspects of the Bureau’s SUMMARY: The Bureau of Consumer FOR FURTHER INFORMATION CONTACT: guidance activities to date and Financial Protection (Bureau) is seeking Kristin Switzer, Regulatory suggestions for future improvements. comments and information from Implementation Program Manager; Legal Background interested parties to assist the Bureau in Angela Fox and Eliott C. Ponte, assessing the overall effectiveness and Attorneys (Regulatory Guidance and Unless specified otherwise by statute, accessibility of its guidance materials Implementation); and Brian Shearer, agency rulemaking activities and many and activities (including Counsel, at 202–435–7700. If you guidance activities are governed by the implementation support) to members of require this document in an alternative Administrative Procedure Act (APA). 5 the general public, including regulated electronic format, please contact CFPB_ U.S.C. 551 et seq. The APA entities. The Bureau is also considering Accessibility@cfpb.gov. distinguishes among several types of whether it would be appropriate to agency issuances, including rules.5 The SUPPLEMENTARY INFORMATION: The Dodd- make changes, consistent with law, to Frank Act transferred to the Bureau discourage the announcement of agencies’ the formats, processes, and delivery rulemaking authority that previously interpretations by burdening the interpretive methods for providing such guidance. had been exercised by seven other process with cumbersome formalities.’’); Cmty. Federal agencies. Those agencies used a Nutrition Inst. v. Young, 818 F.2d 943, 949 (D.C. DATES: Comments must be received by Cir. 1987) (‘‘We recognize that such guidelines have July 2, 2018. variety of methods for providing the not inconsiderable benefits of apprising the ADDRESSES: You may submit responsive guidance to industry on interpretive regulated community of the agency’s intentions as questions arising under the statutes and well as informing the exercise of discretion by information and other comments, agents and officers in the field.’’). identified by Docket No. CFPB–2018– regulations they administered. Such 4 The Board’s practice has evolved over time. For 0013, by any of the following methods: guidance is ‘‘widely understood to be an example, before the Truth in Lending • Electronic: Go to http:// essential instrument of [F]ederal Simplification and Reform Act of 1980, the Board administration’’ 1 and facilitates generally issued three different kinds of guidance www.regulations.gov. Follow the under the Truth in Lending Act and its instructions for submitting comments. compliance with Federal law. In implementing rules, known as Regulation Z: • Email: FederalRegisterComments@ particular, it allows agencies to Official Board Interpretations; Official Staff cfpb.gov. Include Docket No. CFPB– articulate their positions in a ‘‘relatively Interpretations; and Public Information Letters. low cost and flexible’’ 2 way and Official Board Interpretations had the most weight 2018–0013 in the subject line of the of these guidance documents; Official Staff message. facilitates stakeholders’ knowledge of Interpretations had less weight but did provide a • Mail: Comment Intake, Consumer agency positions and intentions ahead safe harbor from private liability under Regulation of enforcement or similar actions.3 Z; and Public Information Letters were unofficial Financial Protection Bureau, 1700 G staff interpretations and therefore did not provide Street NW, Washington, DC 20552. 1 Nicholas R. Parrillo, ‘‘Federal Agency Guidance: a safe harbor from private liability. In doing so, the • Hand Delivery/Courier: Comment Board noted that the volume of the varying daltland on DSKBBV9HB2PROD with NOTICES An Institutional Perspective,’’ at 28 (Oct. 12, 2017) interpretations and letters published by the Board Intake, Consumer Financial Protection (Yale L. Sch.), available at https://www.acus.gov/ (over 1,500, of which only 60 were Official Board Bureau, 1700 G Street NW, Washington, report/agency-guidance-final-report (report on Interpretations) complicated rather than facilitated DC 20552. guidance submitted to the Admin. Conf. of the U.S.) compliance. See Truth in Lending; Proposed [hereinafter ACUS Guidance Report]. Official Staff Commentary, 46 FR 28560 (May 27, Instructions: The Bureau encourages 2 John F. Manning, ‘‘Nonlegislative Rules,’’ 72 1981). the early submission of comments. All Geo. Wash. L. Rev. 893, at 914–15 (2004). 5 5 U.S.C. 551(4) (defining ‘‘rule’’ in relevant part submissions must include the document 3 See, e.g., Hoctor v. USDA, 82 F.3d 165, 167 (7th as ‘‘the whole or part of an agency statement of title and docket number. Please note the Cir. 1996) (‘‘It would be no favor to the public to Continued VerDate Sep<11>2014 19:06 Mar 30, 2018 Jkt 244001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\02APN1.SGM 02APN1

13960 Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices most authoritative type of rulemaking interpretive rule nor a general statement checklists, institutional and that the Bureau and most other agencies of policy can create new rights and transactional coverage charts, webinars, engage in creates what are known as obligations for regulated entities.12 The and other compliance aids directed to ‘‘substantive’’ or ‘‘legislative’’ rules level of deference that interpretive rules regulated entities, the general public, or under the APA.6 When adopted as and general statements of policy receive agency staff (e.g., staff manuals). Such authorized by law, legislative rules have from the courts is more variable,13 and materials do not go through notice-and- the ‘‘force and effect of law’’ in that, interpretive rules and general comment procedures, are typically not among other things, they can affect statements of policy can be issued and published in the Federal Register, do individual rights and obligations, such changed through less formal procedures not have the force and effect of law, and as those of consumers and financial than legislative rules.14 They are to be are not binding under the APA.17 services providers.7 Legislative rules published in the Federal Register but do The type of guidance issued also can also bind ‘‘members of the public, the not need to go through notice-and- have legal and practical significance agency, and even the courts, in the comment procedures, although the under certain Federal consumer sense that courts must affirm a Bureau and other agencies sometimes financial laws that provide industry a legislative rule as long as it represents seek comment to gather input before safe harbor for good faith reliance on a valid exercise of agency authority.’’ 8 issuance or revision to refine their legislative rules and certain Such rules are promulgated, amended, thinking about certain factual and interpretations issued by the Bureau or and repealed through notice-and- policy issues.15 duly authorized staff. See e.g., 15 U.S.C. comment procedures, unless an Interpretive rules and general 1640(f); 12 CFR part 1026, Supp. I, Part exception applies, and published in the statements of policy are frequently 1 (‘‘Good faith compliance with this Federal Register.9 referred to as ‘‘guidance.’’ 16 However, commentary affords protection from The APA also designates ‘‘interpretive the Bureau also uses the term guidance liability under section 130(f) of the rules,’’ which advise the public of an more broadly to refer to compliance Truth in Lending Act.’’). agency’s construction of the statutes and guides and other materials and activities Consistent with the practice of many rules which it administers, and ‘‘general that it does not believe are rules within Federal agencies, including its statements of policy,’’ which articulate the meaning under the APA (hereinafter predecessor agencies, the Bureau has the agency’s prospective plans to ‘‘non-rule guidance’’). These non-rule released an array of guidance. These exercise discretionary authorities.10 guidance materials and activities documents and activities have included Interpretive rules can be binding in generally reiterate requirements, interpretive rules,18 general statements some respects; for example, agencies positions, or priorities that previously of policy or ‘‘policy guidance,’’ 19 and may be subject to a duty to provide have been announced in a regulation or non-rule guidance, such as appropriate notice prior to changing an elsewhere, and include such documents implementation support materials and interpretation in certain as rule summaries, compliance guides, activities.20 However, each Bureau circumstances.11 However, neither an 17 For example, some courts have held that such 1997) (‘‘The agency retains the discretion and the general or particular applicability and future effect authority to change its position—even abruptly—in documents are not ‘‘general statements of policy’’ designed to implement, interpret, or prescribe law any specific case because a change in its policy or ‘‘rules’’ under the APA because these documents or policy or describing the organization, procedure, does not affect the legal norm.’’). do not ‘‘implement, interpret, or prescribe law or or practice requirements of an agency’’). 12 See Perez v. Mortgage Bankers Ass’n, 135 S. Ct. policy.’’ See Indep. Equip. Dealers Ass’n v. EPA, 6 See 5 U.S.C. 552(a)(1)(D) (referring to 1199, 1208 (2015) (noting the ‘‘longstanding 372 F.3d 420, 428 (D.C. Cir. 2004) (Roberts, J.) recognition that interpretive rules do not have the (finding that EPA letter declining to concur in ‘‘substantive rules of general applicability’’); Perez entity-requested interpretation was not a rule, v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203 force and effect of law’’); see also Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (citing because the letter merely restated EPA longstanding (2015) (noting that ‘‘rules issued through the notice- interpretation; because it tread no new ground, it Attorney General Manual, at 30 n.3); Skidmore v. and-comment process are often referred to as did not ‘‘implement, interpret, or prescribe law or Swift & Co., 323 U.S. 134, 140 (1944). ‘legislative rules’ ’’). 13 See Metro. Stevedore Co. v. Rambo, 521 U.S. policy’’); see also Golden and Zimmerman, LLC v. 7 U.S. Dep’t of Justice, Attorney General’s Manual 121, 136 (1997) (stating that reasonable agency Domenech, 599 F.3d 426, 431–32 (4th Cir. 2010) on the Administrative Procedure Act, at 30 n.3 (finding that ATF Reference Guide restating statutes interpretations carry ‘‘at least some added (1947) (hereinafter ‘‘Attorney General Manual’’) and regulations and providing FAQs reiterating persuasive force’’); Reno v. Koray, 515 U.S. 50, 61 (describing substantive rules as ‘‘rules, other than interpretations was not a rule). (1995) (according ‘‘some deference’’ to an organizational or procedural, issued by an agency 18 See, e.g., Application of Regulation Z’s Ability- interpretive rule that ‘‘do[es] not require notice and pursuant to statutory authority and which To-Repay Rule to Certain Situations Involving comment’’); Martin v. Occupational Safety and implement the statute’’ and noting that ‘‘[s]uch Health Review Comm’n, 499 U.S. 144, 157 (1991) Successors-in-Interest, 79 FR 41631 (July 17, 2014); rules have the force and effect of law’’); see Chrysler (indicating that ‘‘some weight’’ is due to informal Safe Harbors From Liability Under the Fair Debt Corp v. Brown, 441 U.S. 281, 302 (1979) (advising interpretations though not ‘‘the same deference as Collection Practices Act for Certain Actions Taken that legislative rules that carry the force of law norms that derive from the exercise of . . . in Compliance With Mortgage Servicing Rules ‘‘affect individual rights and obligations’’) (quoting delegated lawmaking powers’’). Courts give Under the Real Estate Settlement Procedures Act Morton v. Ruiz, 415 U.S. 199, 232 (1974)). ‘‘substantial deference’’ to agency interpretations of (Regulation X) and the Truth in Lending Act 8 Richard J. Pierce, Administrative Law Treatise, ambiguous agency regulations, including (Regulation Z), 81 FR 71977 (Oct. 19, 2016). at § 6.4 (5th ed. 2017). interpretations issued without notice and comment. 19 The Bureau’s policy guidance has included 9 See 5 U.S.C. 551(5) (defining rulemaking as See Halo v. Yale Health Plan, Dir. of Benefits & forward-looking, first-time announcements of ‘‘agency process for formulating, amending, or Records Yale U., 819 F.3d 42, 53 (2d Cir. 2016) Bureau positions or priorities regarding the repealing a rule’’); 5 U.S.C. 552(a)(1)(D) (requiring (citing Auer v. Robbins, 519 U.S. 452 (1997)); see Bureau’s discretionary supervisory, enforcement, or legislative rules ‘‘adopted as authorized by law’’ to also Shalala v. Guernsey Meml. Hosp., 514 U.S. 87, other powers, as well as statements reminding be published in the Federal Register); 5 U.S.C. 94–95 (1995) (deferring to ‘‘a reasonable regulatory entities of its legal obligations in these areas, 553(b)(B) (requiring notices of proposed rulemaking interpretation’’ contained in an interpretive rule). identifying potential risk areas, and providing to be published in the Federal Register). 14 See 5 U.S.C. 553(b), (d) (exempting interpretive general compliance management suggestions. See, 10 See 5 U.S.C. 553(b)(A) (referring to rules and general statements of policy from notice- e.g., Policy Guidance on Supervisory and daltland on DSKBBV9HB2PROD with NOTICES ‘‘interpretative rules’’ and ‘‘general statements of and-comment procedures). Enforcement Priorities Regarding Early Compliance policy’’); see also Attorney General Manual, supra 15 5 U.S.C. 552(a)(1)(D) (providing that, among With the 2016 Amendments to the 2013 Mortgage note 7, at 30 n.3. other things, ‘‘statements of general policy or Rules Under the Real Estate Settlement Procedures 11 See generally FCC v. Fox TV Stations, Inc., 567 interpretations of general applicability’’ formulated Act (Regulation X) and the Truth in Lending Act U.S. 239, 253–54 (2012) (Fox II) (describing need for and adopted by an agency must be published in the (Regulation Z), 82 FR 29713 (June 30, 2017); ‘‘fair notice’’ of change from previous agency Federal Register). Compliance Bulletin and Policy Guidance; 2016– interpretation). In contrast, general statements of 16 See, e.g., ACUS Guidance Report, supra note 1, 02, Service Providers, 81 FR 74410 (Oct. 26, 2016). policy do not bind the public or the agency. See, at 4 (defining ‘‘guidance’’ as ‘‘general statements of 20 This category includes implementation support e.g., Syncor Int’l v. Shalala, 127 F.3d 90 (D.C. Cir. policy’’ and ‘‘interpretive rules’’). provided in response to individual inquiries VerDate Sep<11>2014 19:06 Mar 30, 2018 Jkt 244001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\02APN1.SGM 02APN1

Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices 13961 guidance material and activity has not particular rules in the CFR after notice guidance materials and activities or may not necessarily fit neatly within and comment provide the greatest (including implementation support). a single category, as some may include amount of certainty, reliability, and ease • Specific suggestions regarding any elements from multiple categories.21 of access, but take a considerable potential updates or modifications to Like other agencies, the Bureau faces amount of time and agency resources to the Bureau’s approach to providing tradeoffs that it must consider when promulgate. guidance (including implementation issuing guidance. Where the Bureau support), and including, in as much does not use notice-and-comment Overview of This Request for detail as possible, supporting data or procedures, it can act more quickly to Information other information on impacts and costs, issue or update guidance materials to The Bureau is using this request for or information concerning alignment address industry interpretive questions information (RFI) to seek public input with the processes of other agencies. and respond to developments in the regarding the overall effectiveness and • Specific identification of any marketplace. However, the more accessibility of the Bureau’s guidance as aspects of the Bureau’s approach to expedited the process is in developing well as changes that it may make, guidance (including implementation guidance, the more likely that an agency consistent with applicable law, to the support) provided by the Bureau that may find a need over time to revise or formats, processes, and delivery should not be modified, and including, adjust its initial guidance statements methods for providing such guidance. in as much detail as possible, and address related legal, factual, and Additionally, the Bureau is seeking supporting data or other information on policy issues, even though revisiting comment on potential new forms of impacts and costs, or information such materials can impose additional guidance that could support regulatory concerning alignment with the costs on both the agency and regulated implementation and compliance, as processes of other agencies. entities. Materials issued through less well as on the disclaimers used for its The following sections list areas of formal processes also may, depending non-rule guidance. interest on which commenters may on the circumstances, receive less In this RFI, the Bureau is not seeking want to focus input. This non- deference from courts in litigation.22 comments on the following topics, as exhaustive list is meant to assist in the Also, diversifying the number of these have been addressed or will be formulation of comments and is not channels through which the Bureau addressed in other Bureau RFIs: (1) intended to restrict what may be provides guidance can create more Educational materials on its regulations addressed by the public. Commenters flexibility for the Bureau to respond to developed for consumers or in response may comment on matters that are different circumstances and stakeholder to consumer inquiries; (2) the substance related to the Bureau’s guidance needs, but also can make it more of any particular proposed or final rule (including implementation support), but challenging for stakeholders to identify (for both rules the Bureau adopted and do not appear in the list below. The all relevant forms of information. On the those it inherited), including a proposed Bureau requests that, in addressing other hand, legislative rules and Official or final rule’s Official Interpretations these questions, commenters identify Interpretations (otherwise known as that are published with the regulations; with specificity the Bureau guidance commentary and discussed further or (3) the guidance provided in the material or activity, format, process, or below) collected in appendices to Bureau’s Supervision and Examination delivery platform at issue, providing Manuals or Supervisory Highlights.23 specific examples where appropriate. In through the Bureau’s Regulatory Inquiries Function. The Bureau encourages comments discussing Bureau guidance provided to Additional examples include: Bureau of Consumer date, the Bureau also requests that Fin. Prot., ‘‘Home Mortgage Disclosure (Regulation from all interested members of the C) Small Entity Compliance Guide,’’ (Oct. 2017), public. The Bureau anticipates that the commenters provide examples and available at https://www.consumerfinance.gov/ responding public may include entities supporting information where possible, documents/5692/cfpb_hmda_small-entity- subject to Bureau rules, trade as well as relevant information about compliance-guide.pdf; Bureau of Consumer Fin. the frequency with which particular Prot., ‘‘Preparing the Short Form Disclosure for associations and professional services Prepaid Accounts,’’ (Apr. 20, 2017), available at organizations that represent these types of guidance have been used https://www.consumerfinance.gov/documents/ entities, individual consumers, within an institution, by which parties, 4528/201704_cfpb_Prepaid_preparingtheshort consumer advocates, regulators, and and in what ways. Commenters should formdisclosure_v2.pdf. The Bureau has also issued feel free to comment on some or all of other types of non-rule guidance relating researchers or members of academia. principally to the Bureau’s supervisory processes the questions below, but are encouraged (rather than support of regulatory implementation), Suggested Topics for Commenters to indicate in which area their including the Bureau’s Supervision and To allow the Bureau to evaluate comments are focused. Examination Manuals. Such other non-rule From all of the suggestions, the guidance is outside the scope of this RFI. suggestions more effectively, the Bureau 21 For example, some contemporaneous guidance requests that, where possible, comments Bureau requests that commenters offer documents, such as preambles of rules, may, among include: their highest priorities, where possible, other things, contain both interpretive rules and • Specific discussions of the positive along with an explanation of how or general statements of policy. See Admin. Conf. of and negative aspects of the Bureau’s why certain suggestions have been the U.S., ‘‘Administrative Conference prioritized. Commenters are asked to Recommendation 2014–3: Guidance in the Rulemaking Process,’’ (June 6, 2014), available at 23 For commenters interested in addressing single out their top priority where https://www.acus.gov/recommendation/guidance- guidance provided in the Official Interpretations of possible. Suggestions will be most rulemaking-process (describing ‘‘guidance that Bureau-issued rules, see the RFI on that topic, helpful if they focus on revisions that agencies provide about the meaning and purpose of Docket No. CFPB–2018–0011, 83 FR 12286 (Mar. the Bureau could implement without their rules at the time those rules are issued’’). 21, 2018). For commenters interested in addressing changes in the law, consistent with the daltland on DSKBBV9HB2PROD with NOTICES 22 See U.S. v. Mead Corp., 533 U.S. 218, 229–31 guidance provided in the Official Interpretations of (2001) (recognizing ‘‘a very good indicator of rules the Bureau inherited, see the RFI on that Bureau’s authorities and in light of delegation meriting [deference] in express topic, Docket No. CFPB–2018–0012, 83 FR 12881 tradeoffs under the APA framework congressional authorizations to engage in the (Mar. 26, 2018). For commenters interested in described above. process of rulemaking or adjudication that produces addressing the Bureau’s Supervision and regulations or rulings,’’ but also noting that ‘‘we Examination Manual or Supervisory Highlights Regulatory Inquiries Function have sometimes found reasons for [deference] even publications, see the RFI on the Bureau’s when no such administrative formality was Supervision Program, Docket No. CFPB–2018–0004, The Bureau’s Regulatory Inquiries required and none was afforded’’). 83 FR 7168 (Feb. 20, 2018). 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13962 Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices who have specific questions about the and its implementing Regulation C are materials provide relatively brief, Bureau’s statutes and regulations. At also submitted through a separate informal summaries of Federal times, the Bureau has received several channel—the Bureau’s HMDA Help consumer financial laws and thousand inquiries per year, largely function—via phone, email, or a form regulations, generally focusing on focused on implementation by industry accessed on a specific Bureau website summarizing statutes and of new or revised regulations. The dedicated to HMDA operational interpretations and positions previously Regulatory Inquiries Function is an support. announced in Bureau legislative or non- example of an implementation support Historically, responses to regulatory legislative rules using language and activity that falls within the category of inquiries have been provided orally via formats that may be particularly useful non-rule guidance. Similar to the phone conversations with Bureau staff. to compliance professionals. As noted regulatory inquiries functions of many However, the Bureau has been above, both the content and format of of its predecessor agencies, the Bureau’s providing an increasing number of regulatory implementation and function is designed to provide responses to regulatory inquiries compliance aids are informed by what inquirers with relatively quick, informal through emails, most extensively with the Bureau learns as it administers its assistance concerning the statutes and the responses provided through its Regulatory Inquiries Function and regulations that the Bureau administers. HMDA Help function. general market monitoring and outreach However, in part because of the APA The Bureau is seeking feedback on all activities. constraints discussed above, the aspects of its Regulatory Inquiries Compliance guides are plain language function is limited in scope. Responses Function, including the following areas summaries of a Bureau rule and, like are not intended to be interpretations of of interest: other examples of non-rule guidance in the regulations or general statements of 1. The preferred vehicle(s) for this section, are not intended to be policy, as described earlier, but rather to submitting inquiries (i.e., phone interpretations of that rule or general assist in the application and message, email, web form, or other statements of policy. Compliance guides implementation by industry of the specific vehicle). include Small Entity Compliance Bureau’s regulations and Official 2. Preferences regarding the responses Guides as well as instructional guides Interpretations. For example, the Bureau to regulatory inquiries; the format and for disclosure forms. The Bureau is emphasizes on its website that the delivery method for the responses statutorily required to provide Small informal assistance provided through provided (i.e., oral response, email, or Entity Compliance Guides for rules it this function does not constitute an other format or delivery method); and issues that meet certain criteria, official interpretation of the Bureau and the desired timing of the responses although it also provides them for is not a substitute for formal legal provided. certain rules for which they are not counsel or other compliance advice. The 3. The relative value of responses to required.24 Bureau also does not moderate disputes regulatory inquiries. In particular, the Quick reference materials are between parties, provide guidance on Bureau is interested in the tradeoffs additional plain language summaries of matters that are under examination or between providing quick guidance a rule or portions of a rule, but are investigation by the Bureau or another orally to individuals through the shorter than compliance guides. These State or Federal agency, or answer Regulatory Inquiries Function and include, but are not limited to, questions about specific business plans. providing written guidance, which is executive summaries, summaries of Although the assistance provided generic and takes more time, but changes, factsheets, flow charts, through the Regulatory Inquiries generally is more broadly accessible. decision trees, and summary tables. Function is limited and individualized, 4. Whether the Bureau should, as a Executive summaries are posted at the the Bureau believes that the assistance matter of practice, publish written same time that the underlying rule is is valuable to those receiving it. In responses to regulatory inquiries and, if released, and other quick reference addition, the inquiries received through so, consistent with law, the appropriate materials are posted as they are this channel provide an important vehicle or platform for such completed.25 information source, which helps the publications, the desired frequency for Webinars are recorded presentations Bureau prioritize provision of the publishing such responses, and the in which the Bureau (either various other types of guidance appropriate disclaimers to accompany described in this RFI by providing a such publications. 24 Section 212(a) of the Small Business window (supplementing the Bureau’s 5. Additional ways that the Bureau Administration Regulatory Enforcement Act general market monitoring and outreach can improve the Regulatory Inquiries (SBREFA) requires, among other things, that with activities) into the implementation and Function, including improvements to respect to certain rules, an agency ‘‘publish[es] 1 or compliance challenges faced by the process for submitting inquiries, the more guides to assist small entities in complying with the rule and shall entitle such publications regulated entities. Thus, when the process for receiving responses, the ‘small entity compliance guides.’ ’’ The Bureau’s Bureau receives multiple individual substance of responses, or the timing of Small Entity Compliance Guides fulfill the Bureau’s inquiries about the same topic, as responses. requirements under Section 212(a), although the described below, the Bureau often Bureau occasionally provides these guides even Regulatory Implementation and when not required under the SBREFA statute, as in prioritizes that topic for webinars and the case of the Prepaid Rule Small Entity Compliance Aids various forms of written guidance, Compliance Guide. The Bureau also understands potentially culminating in revisions to The Bureau creates and releases on its that these guides are used by all entity types, not the Official Interpretations to the website several categories of regulatory just those defined as ‘‘small entities’’ under the implementation and compliance aids, SBREFA statute. Compliance guides are provided in particular rule after a notice-and- daltland on DSKBBV9HB2PROD with NOTICES PDF format on the Bureau’s Regulatory comment process. including: (1) Compliance guides; (2) Implementation and Guidance web page. See Generally, individual inquiries are rule summaries and other quick Bureau of Consumer Fin. Prot., ‘‘Implementation submitted to the Bureau through a reference materials; and (3) webinars. and Guidance,’’ https://www.consumerfinance.gov/ phone message or a form accessed on These regulatory implementation and policy-compliance/guidance/implementation- guidance/ (last visited Mar. 16, 2018). the Bureau’s website. However, compliance aids are examples of 25 Quick reference materials are also provided in inquiries related specifically to the implementation support materials PDF format on the Bureau’s Regulatory Home Mortgage Disclosure Act (HMDA) categorized as non-rule guidance. These Implementation and Guidance web page. Id. 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Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices 13963 independently or in collaboration with compliance aids in questions six and would benefit from these types of other Federal agencies or trade seven, feedback on the delivery methods clarifications from a variety of sources, associations) provides information to (e.g., provision on the Bureau’s website including inquiries received through the facilitate further understanding of a and email notifications to the Regulatory Inquiries Function and rule, either in a question-and-answer or appropriate email listserv), and the feedback obtained through industry topic-based explanation format. The delivery method and timing for outreach or market monitoring Bureau has created webinars for notifying stakeholders of the availability activities. The Bureau generally expects production on trade association of new or amended materials. that it will periodically amend the websites, other regulatory agency relevant Official Interpretations in the Official Interpretations and Standalone websites, and most recently its own CFR to reflect the positions taken in Interpretive Rules public YouTubeTM channel. Each these materials, after notice and webinar is accompanied by the Many regulations issued under the comment to assess whether further presentation slides used for the Bureau’s rulemaking authority contain refinement is warranted.31 discussion, and some have hyperlinked Official Interpretations within the Consistent with applicable law, the video section breaks, either in a separate supplement or appendix to the Bureau is seeking feedback on all document or in the video description. regulatory text in the CFR. The Bureau, aspects of the process by which it issues The Bureau is seeking feedback on all as a matter of practice, has published interpretive rules and Official aspects of its regulatory implementation Official Interpretations in the Federal Interpretations, including the following and compliance aids, including the Register after notice and comment. areas of interest: following areas of interest: 26 Among other purposes, the Bureau uses 9. The efficiency and effectiveness of 6. The utility of the Bureau’s Official Interpretations to clarify providing guidance through the compliance guides and quick reference regulatory text and provide examples of Bureau’s Official Interpretations. materials as well as potential areas for practices that comply with regulatory 10. Which types of standalone improvement, including: provisions. The Bureau also uses interpretive rules are most efficient and a. The scope of topics addressed and Official Interpretations to memorialize effective and, if any, with what the format in which they are presented; the Bureau’s responses to recurring frequency and through what processes b. The ease of navigation to materials questions on particular legislative rules the Bureau should amend the Official on the Bureau’s website and to sections over time. For example, after issuing a Interpretations to incorporate within the compliance guides or quick new regulation, during the standalone interpretive guidance into reference materials; implementation period for that rule, the c. The effectiveness of the Bureau’s the CFR. Bureau frequently has amended the use of the plain language writing style 11. Whether there are circumstances Official Interpretations (and sometimes in the Small Entity Compliance Guides in which the Bureau should use the the regulatory text) in response to and quick reference materials to help notice-and-comment process (even questions posed during the make the rules more easily though not legally required) for implementation process.28 As discussed understandable; and standalone interpretive rules. earlier, under certain enumerated d. The usefulness of the Bureau consumer financial laws, such as the SEFL Guidance Materials providing Small Entity Compliance Truth in Lending Act,29 Official Guides and quick reference materials The Bureau’s Division of Supervision, Interpretations also provide financial Enforcement, and Fair Lending (SEFL) when not legally required to do so services providers protection from civil (particularly for entities that do not issues a number of documents meant to liability for acts committed in good faith provide industry and the public with meet the Small Business reliance on those interpretations. Administration’s definition of ‘‘small insight into the Bureau’s enforcement Although the Bureau has generally and supervision priorities, perspectives business.’’).27 used Official Interpretations as a 7. The utility of the Bureau’s webinars regarding compliance with Federal cumulative repository of the Bureau’s consumer financial law, and as well as potential areas for interpretations issued over time, the improvement, including issues related supervisory expectations. For example, Bureau also occasionally has issued SEFL guidance materials have helped to to the website utilized for viewing; the standalone interpretive rules without format of the webinar guidance (i.e., identify compliance risks, made notice and comment when rapid recommendations to strengthen question and answer format, issuance of interpretive clarification explanatory format, or other formats); compliance management systems, and will assist industry with regulatory provided options for reducing the supplemental materials (e.g., implementation or compliance.30 The hyperlinked navigation tools, compliance risks. Those materials Bureau identifies regulatory areas that include, for example, compliance presentation slides, or other materials); and the ease with which topics of 28 By including this implementation guidance in bulletins, policy statements, and interest may be located within webinar the Official Interpretations on routine basis during statements on supervisory practices. materials. the implementation period, the Bureau has They generally are examples of policy expanded on the practice of the Federal Reserve 8. For the identified types of Board described above of incorporating guidance 31 For example, the Bureau addressed in the regulatory implementation and into the Official Interpretations in an effort to make Official Interpretations some of the guidance such guidance more readily accessible and to clarify previously provided in CFPB Bulletin 2013–12, 26 The Bureau understands that industry has its legal effect. supra note 30. See Amendments to the 2013 expressed concerns regarding its use of disclaimers 29 See 15 U.S.C. 1640(f). Mortgage Rules Under the Real Estate Settlement daltland on DSKBBV9HB2PROD with NOTICES for non-rule guidance such as regulatory 30 See 79 FR 41631 (July 17, 2014) and 81 FR Procedures Act (Regulation X) and the Truth in implementation and compliance aids. See below for 71977 (Oct. 19, 2016), supra note 18. In the past, Lending Act (Regulation Z), 81 FR 72160, 72236– a discussion and questions on the Bureau’s use of the Bureau has used labels for interpretive guidance 38 (Oct. 19, 2016). In some cases, for example, there disclaimers. that are different than what is used in this RFI. For is no existing implementing regulation for some or 27 See 13 CFR 121.201; U.S. Small Bus. Admin., example, interpretive guidance may have been all of the statute and, thus, no Official ‘‘Small Business Compliance Guide Size and issued in other documents, such as bulletins. See, Interpretations that may be used to incorporate Affiliation,’’ (Mar. 2014), available at https:// e.g., CFPB Bulletin 2013–12, Implementation guidance about that portion of the statute. See, e.g., www.sba.gov/sites/default/files/articles/affiliation_ Guidance for Certain Mortgage Servicing Rules (Oct. Fair Debt Collection Practices Act, 15 U.S.C. 1692– ver_03.pdf. 15, 2013). 1692p. VerDate Sep<11>2014 19:06 Mar 30, 2018 Jkt 244001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\02APN1.SGM 02APN1

13964 Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices guidance as described above, and, for bankruptcy issues related to mortgage transaction or activity with a particular example, do not have the force and servicing,36 and issued FAQs on HMDA statute or regulation subject to the effect of law.32 Examples include the operational and regulatory agency’s jurisdiction. Bureau’s policy guidance on requirements.37 These FAQs have The Bureau is seeking feedback on supervisory and enforcement priorities historically been non-rule guidance— potential new methods or channels for regarding early compliance with the written responses to questions received providing guidance, including but not 2016 amendments to the 2013 Mortgage from regulated entities and other limited to: Rules under the Real Estate Settlement stakeholders that do not constitute an 15. The utility of FAQs. Specifically, Procedures Act (Regulation X) and the interpretive rule under the APA, comment is sought on the types of Truth in Lending Act (Regulation Z),33 consistent with the kinds of information questions that are appropriately dealt and the Bureau’s compliance bulletin on that the Bureau has provided orally or with through FAQs rather than another detecting and preventing consumer by email through the Regulatory instrument, and the mechanisms that harm from production incentives.34 Inquiries Function described above. the Bureau should use to identify and The Bureau is seeking feedback on all However, the Bureau could choose to prioritize issues and topics that should aspects of these SEFL guidance change its approach in the future to be addressed using FAQs. materials, including but not limited to: issue interpretive rules in the form of 16. The potential utility of 12. The timing, frequency, scope, and FAQs. establishing an advisory opinion delivery method of SEFL guidance The Bureau has also begun exploring program that would provide materials. the use of advisory opinions and similar interpretations, in addition to or instead 13. The benefits or drawbacks types of focused guidance to assist of an FAQ program, including the associated with the Bureau’s use of each industry in better understanding its particular scope and benefits of advisory particular type of SEFL guidance legal and regulatory obligations.38 The opinions that would be distinct from vehicle. Bureau understands that Federal generalized FAQs and the types of 14. Other feedback or suggestions agencies have described different types questions or issues that could or could related to SEFL guidance materials. of guidance as advisory opinions. In the not be appropriately dealt with by most formal cases, advisory opinions are advisory opinions. Recommendations for New Forms of interpretive rules—written opinions 17. The potential benefits and costs of Written Guidance providing interpretations of a statute or memorializing over time any The Bureau has received feedback regulation, often applying that interpretations reflected in advisory from industry and other external interpretation to a particular situation. opinions or other standalone guidance stakeholders encouraging the use of In other cases, advisory opinions are documents in the Official forms of written guidance that have policy or non-rule guidance. The Bureau Interpretations to the underlying been used frequently by some other also understands that advisory opinions regulations, after notice and comment. agencies, such as Frequently Asked typically are focused on reducing 18. The tradeoffs between issuing Questions (FAQs) and advisory uncertainty by providing a written FAQs or advisory opinions quickly and opinions. In response to this feedback, response to a specific inquiry regarding issuing written guidance after notice the Bureau has begun to explore new the conformance of a specific and comment. With respect to FAQs or and enhanced methods for delivering advisory opinions, commenters should direct, easy-to-understand written 36 Bureau of Consumer Fin. Prot., ‘‘Mortgage include, where possible, suggestions on guidance that can be delivered via a Servicing FAQs,’’ https://s3.amazonaws.com/ how best to mitigate risks to public-facing platform on a shorter files.consumerfinance.gov/f/documents/cfpb_ mortgage-servicing_frequently-asked-questions.pdf stakeholders (e.g., industry confusion, timeline than might be required for (last updated Mar. 20, 2018). increased compliance costs, potential interpretive rules.35 37 The HMDA FAQs may be accessed using a legal concerns) where there is a For example, the Bureau recently searchable web portal located on the Federal heightened risk that the Bureau may published on its website FAQs on Financial Institutions Examination Council HMDA change its approach at a later date. Help web page, which may be accessed from the Bureau’s website. See Bureau of Consumer Fin. 19. Other approaches, methods, or 32 As noted above, the guidance provided in the Prot., ‘‘Frequently Asked Questions: HMDA Filing, practices not currently employed by the Bureau’s Supervision and Examination Manuals or FFIEC,’’ https://www.consumerfinance.gov/data- Bureau that would enhance external Supervisory Highlights publications is outside the research/hmda/faq (last visited Mar. 16, 2018); scope of this RFI. stakeholders’ ability to comprehend, Bureau of Consumer Fin. Prot., FFIEC: HMDA 33 2016 Amendments to the 2013 Mortgage Rules Platform,’’, https://hmdahelp.consumerfinance.gov/ implement, or comply with statutes and Under the Real Estate Settlement Procedures Act knowledgebase/s/ (last visited Mar. 23, 2018). regulations subject to the Bureau’s (Regulation X) and the Truth in Lending Act 38 The Bureau has two other programs by which purview. (Regulation Z), 82 FR 29713 (June 30, 2017). individual applicants can seek determinations from 34 Bureau of Consumer Fin. Prot., ‘‘CFPB the Bureau, although the programs do not provide Disclaimers Compliance Bulletin 2016–03, Detecting and guidance on compliance with existing statutes and Preventing Consumer Harm from Production regulations. Rather, the Bureau’s Trial Disclosure The Bureau uses disclaimers on non- Incentives,’’ (Nov. 28, 2016), available at https:// Waiver Policy sets forth procedures for the Bureau rule guidance materials to, among other s3.amazonaws.com/files.consumerfinance.gov/f/ to exercise its authority pursuant to section 1032(e) things, describe the purpose of the documents/201611_cfpb_Production_Incentives_ of the Dodd-Frank Act to waive disclosure material, note the legal limitations of the Bulletin.pdf. requirements for a set period to allow applicants 35 Earlier iterations of the Bureau’s Small Entity flexibility in field testing alternative disclosures. 12 guidance in light of the APA and Compliance Guides utilized a question and answer U.S.C. 5532(e). The Bureau has also developed a underlying Federal consumer financial format. See, e.g., Bureau of Consumer Fin. Prot., program setting forth the requirements and laws, and emphasize that the rule and ‘‘Ability-to-Repay and Qualified Mortgage Rule: processes for the issuance of No Action Letters in its Official Interpretations are the daltland on DSKBBV9HB2PROD with NOTICES Small Entity Compliance Guide,’’ (Mar. 2016), cases in which Bureau staff do not intend to available at https://files.consumerfinance.gov/f/ exercise their discretion to pursue supervision or definitive sources regarding a rule’s 201603_cfpb_atr-qm_small-entity-compliance- enforcement activity concerning potentially requirements in the event of a perceived guide.pdf; Bureau of Consumer Fin. Prot., consumer-friendly market innovations that involve conflict. In other words, these ‘‘Remittance Transfers: Small Entity Compliance significant regulatory uncertainty. These programs disclaimers are often used to clarify Guide,’’ (Jan. 31, 2017), available at https:// are not the focus of this RFI, which is focused on s3.amazonaws.com/files.consumerfinance.gov/f/ guidance to facilitate implementation of the when guidance materials are non-rule documents/201701_cfpb_Intl_Money_Transfer_ Bureau’s regulations and compliance with Federal materials that are intended only to aid Small_Entity_Compliance_Guide.pdf. law. understanding and implementation. VerDate Sep<11>2014 19:06 Mar 30, 2018 Jkt 244001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\02APN1.SGM 02APN1

Federal Register / Vol. 83, No. 63 / Monday, April 2, 2018 / Notices 13965 The Bureau has received feedback formulations are particularly likely to Dated: March 27, 2018. from industry indicating that the cause confusion. For example, industry Mick Mulvaney, Bureau’s use of disclaimers on its stakeholders point to language stating Acting Director, Bureau of Consumer materials causes confusion as to the that webinar materials do not bind the Financial Protection. utility and reliability of the guidance Bureau, or create any rights, benefits, or [FR Doc. 2018–06674 Filed 3–30–18; 8:45 am] and otherwise diminishes the defenses that are enforceable by other BILLING CODE 4810–AM–P usefulness of the guidance provided. parties, as raising questions about The Bureau has also received feedback whether material presented can be urging the Bureau to modify existing relied upon. They question whether the DEPARTMENT OF DEFENSE disclaimers. Bureau would change its interpretation Bureau disclaimers are printed on, for without notice or take action against a Office of the Secretary example, rule summaries, compliance party acting in conformity with an guides, quick reference materials, and [Transmittal No. 17–52] interpretation stated in a webinar. other compliance aids. These disclaimers are given orally to industry The Bureau is seeking feedback on all Arms Sales Notification stakeholders when Bureau staff present aspects of its disclaimers, including the AGENCY: Defense Security Cooperation in webinars or at industry conferences following areas of interest: Agency, Department of Defense. or respond to questions through the 20. Taking into consideration the ACTION: Arms sales notice. Regulatory Inquiries Function. The Bureau’s purposes for providing particular language used in disclaimers guidance as well as APA requirements SUMMARY: The Department of Defense is is tailored to the type of guidance being discussed above, whether disclaimers publishing the unclassified text of an provided. For example, the disclaimers are transparent, understandable, and arms sales notification. provided within the Bureau’s regulatory appropriate to the type of guidance FOR FURTHER INFORMATION CONTACT: implementation and compliance aids being provided. Pamela Young, (703) 697–9107, generally indicate that the explanation pamela.a.young14.civ@mail.mil or or summary of a regulatory requirement 21. Desired changes to the Bureau’s disclaimer language or approach to Kathy Valadez, (703) 697–9217, does not apply to all possible kathy.a.valadez.civ@mail.mil; DSCA/ circumstances and is not legal advice. disclaimers generally, and whether other Federal agencies have adopted DSA–RAN. Oral disclaimers given through the disclaimer language or approaches to SUPPLEMENTARY INFORMATION: This Bureau’s Regulatory Inquiries Function generally explain that Bureau staff only disclaimers that would be useful to the 36(b)(1) arms sales notification is provide informal responses to regulatory Bureau. published to fulfill the requirements of inquiries and that the responses are not section 155 of Public Law 104–164 22. The variety of Bureau disclaimers intended to serve as legal advice or dated July 21, 1996. The following is a currently provided, and whether the copy of a letter to the Speaker of the considered to be an official Bureau should adopt a single, more interpretation of a regulation. House of Representatives, Transmittal generic disclaimer to be used in most 17–52 with attached Policy Justification. The Bureau has developed different instances. disclaimers for different types of Dated: March 27, 2018. materials as its guidance function has 23. Other feedback or suggestions Shelly E. Finke, evolved over time, and stakeholders related to the Bureau’s disclaimers. Alternate OSD Federal Register Liaison have indicated that some historical Authority: 12 U.S.C. 5511(c). Officer, Department of Defense. daltland on DSKBBV9HB2PROD with NOTICES VerDate Sep<11>2014 19:06 Mar 30, 2018 Jkt 244001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\02APN1.SGM 02APN1


Document Created: 2018-11-01 09:08:40
Document Modified: 2018-11-01 09:08:40
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice and request for information.
DatesComments must be received by July 2, 2018.
ContactKristin Switzer, Regulatory Implementation Program Manager; Angela Fox and Eliott C. Ponte, Attorneys (Regulatory Guidance and Implementation); and Brian Shearer, Counsel, at 202-435-7700. If you require this document in an alternative electronic format, please contact [email protected]
FR Citation83 FR 13959 
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