The Consumer Financial Protection Bureau has issued the latest Request for Information, this time looking for insights related to its rulemaking process.
This is the seventh such request the CFPB has issued in the past six weeks. The other requests were on its civil investigative demand letter process, its administrative adjudication process, its enforcement process, its supervision program, how it conducts external engagements, and how it manages its consumer complaint database.
Based on a previously published list, the CFPB will issue five more requests, covering:
- Bureau Rules Not Under §1022(d) Assessment
- Inherited Rules
- Guidance and Implementation Support
- Consumer Education
- Consumer Inquiries
Acting Director Mick Mulvaney announced in January that the agency would open up all of its policies and processes to public review and comment. For this topic, the agency is looking for information from the following areas:
Initial Outreach and Information Gathering
- Mechanisms used by the Bureau for gathering information, data, and feedback from stakeholders (i.e., industry, consumer advocates, and others) in advance of the steps outlined separately below, including:
- RFIs concerning market conditions or issues, particular regulatory options, or the process or content of Bureau research, or advance notices of proposed rulemaking inviting public comment to shape a potential proposed rule.
- Efforts to gather data from industry, academia, think tanks, consumer groups, and others to support quantitative analysis. Comment is specifically sought on methods by which the Bureau might better obtain meaningful, nationally representative data from stakeholders for use in assessing benefits and costs of proposed rules. The Bureau is particularly interested in suggestions on how the Bureau might best encourage industry and other stakeholders to share data to inform a potential proposed rule and whether concerns about treatment of proprietary business data could be better addressed consistent with existing law.
- Convening a SBREFA panel, when required as described above, including:
- The outline of the proposal under consideration and the analysis of potential impacts on small entities and regulatory alternatives that are released at the start of the SBREFA panel process.
- Selection of and interaction with small entity representatives during the SBREFA panel process.
- The SBREFA panel report.
- Outreach to other stakeholders on the basis of public release of the outline of the proposal under consideration.
- Consultations with tribal governments in certain circumstances, which pursuant to Bureau policy may occur through meetings, telephone conferences, and other forms of communication and outreach prior to issuing an NPRM, as well as through a formal request for comment from tribal governments and tribal members in an NPRM.
Notices of Proposed Rulemaking
- The content of the NPRM itself, including:
- The background section, which provides information about the relevant market and other applicable laws and regulations.
- Section-by-section analysis of the proposed regulatory text and commentary, including the level of detail regarding the Bureau’s rationale for its proposed rule, responsiveness to SBREFA panel report recommendations (where applicable), the level of detail in the section-by-section analysis about the NPRM’s draft regulatory text and commentary, and the questions and topics about which comment is requested.
- Impact analyses for the proposed rule, including the qualitative and quantitative analysis therein, and the data on which they rely.
- The proposed regulatory text and commentary, including the Bureau’s use of commentary, appendices, and model or sample forms to provide interpretations and illustrations of regulatory text and, relatedly, the level of detail and the quantity of examples contained in proposed commentary
- The Bureau’s issuance of the NPRM, including the Bureau’s general practice of releasing the NPRM on its website in advance of publication in the Federal Register, and supporting materials the Bureau may release simultaneously with an NPRM, such as a press release or consumer-facing blog post, as well as other high-level or summary material regarding the content of the NPRM.
- Comment periods for NPRMs, including the length of the comment period and extensions of comment periods in certain circumstances, whether and in what circumstances the Bureau should provide “reply periods” for commenters to review and formally respond to other commenters’ comment letters, and whether and to what extent the Bureau should consider comments received after the close of the comment period.
- Mechanisms for encouraging additional feedback on all or part of a NPRM, including the use of online tools to solicit public feedback such as, for example, the Bureau’s engagement from 2012 to 2014 with Cornell University’s eRulemaking Initiative to garner public feedback via Cornell’s website.
- The Bureau’s processing and posting of comments received to its electronic docket on http://www.regulations.gov, including the ways of accepting comments, the timeframe to post comments, treatment of duplicative or largely duplicative comments, posting similar or related comments in batches rather than as separate entries, treatment of anonymous comments, treatment of comments where there may be questions about the commenter’s identity, and ways to tabulate comments received.
- Outreach and engagement by the Bureau during and after the comment period, including meetings with stakeholders, and disclosure of such communications under the Bureau’s ex parte policy.
- Consideration of new data, studies, and reports issued by other agencies or third parties after the NPRM is released.
Final Rules
- The content of the notice issuing the final rule, including each of the elements listed above in topic 4 (for NPRMs) as well as the Bureau’s explanation of its rationale for the final rule, the discussion in the section-by-section analysis about the final rule’s regulatory text and commentary, the summary of and response to comments received on the NPRM (including those specifically regarding the impact analyses), and the explanation of changes from the NPRM.
- The Bureau’s release of the final rule on its website in advance of publication in the Federal Register and supporting materials the Bureau may release simultaneously with a final rule, which may include a press release, consumer-facing blog post, remarks by the Bureau’s Director presented at a public event or press call, other high-level or summary material regarding the content of the final rule, and select regulatory implementation materials.