Policy on Ex Parte Presentations in Rulemaking Proceedings, 18687-18690 [2017-08096]

Agencies

• BUREAU OF CONSUMER FINANCIAL PROTECTION

[Federal Register Volume 82, Number 76 (Friday, April 21, 2017)]
[Rules and Regulations]
[Pages 18687-18690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08096]



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Federal Register / Vol. 82, No. 76 / Friday, April 21, 2017 / Rules 
and Regulations

[[Page 18687]]



BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Chapter X


Policy on Ex Parte Presentations in Rulemaking Proceedings

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Policy Guidance and Procedural Rule.

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SUMMARY: The Consumer Financial Protection Bureau (CFPB) has adopted 
the following updated policy on ex parte presentations in rulemaking 
proceedings. The original policy was posted on the CFPB's Web site on 
August 16, 2011.

DATES: The substantive amendments made in paragraph (e)(1) of this 
updated Policy on Ex Parte Presentations in Rulemaking Proceedings 
apply only to informal rulemaking proceedings where the CFPB has 
published general notice of proposed rulemaking on or after May 22, 
2017. All other revisions apply May 22, 2017, to all CFPB informal 
rulemaking proceedings subject to the Policy, including rulemakings 
that have not been finalized.

FOR FURTHER INFORMATION CONTACT: Stephen Hayes, Counsel, Legal 
Division, 1700 G Street NW., 20552, 202-435-9585.

SUPPLEMENTARY INFORMATION:

I. Background

    On August 16, 2011, the CFPB posted on its Web site a Policy on Ex 
Parte Presentations in Rulemaking Proceedings.\1\ This Policy generally 
requires public disclosure of ex parte presentations made to CFPB 
decision-making personnel concerning pending rulemakings. Since its 
publication, the CFPB's Policy has promoted fairness and transparency 
in rulemaking proceedings by ensuring that the general public has 
access to input the CFPB receives during such proceedings. Based on 
public feedback and the CFPB's implementation experiences, the CFPB has 
made certain revisions to ensure the Policy operates effectively to 
foster fairness and transparency in the CFPB's rulemaking proceedings 
to which the Policy applies. Most of the revisions in the Updated 
Policy are non-substantive, and do not affect the scope or requirements 
under the Policy. Instead, they clarify the Policy's provisions and 
requirements, ensure consistency in terminology throughout the Policy, 
make technical amendments, and facilitate compliance with the 
procedures in the Policy. The discussion below provides background on 
the Policy and describes the revisions.
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    \1\ This supplementary material refers to the CFPB's Ex Parte 
Policy posted on August 16, 2011 as the ``Prior Policy,'' and to the 
updated policy in this document as the ``Updated Policy.'' At times, 
this document uses the term ``Policy'' when discussing aspects of 
the Policy that are unchanged.
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    Under the CFPB's Policy, an ``ex parte presentation'' means ``any 
written or oral communication'' by ``any person outside the CFPB that 
imparts information or argument directed to the merits or outcome of a 
rulemaking proceeding.'' These presentations are only covered by the 
Policy to the extent they are made to ``decision-making personnel.'' 
The Updated Policy makes certain non-substantive changes to this 
definition. First, in the Prior Policy, the ``decision-making 
personnel'' limitation was contained in paragraph (d), which describes 
the Policy's disclosure requirements. For clarity, the Updated Policy 
instead moves that limitation to the definition of ``ex parte 
presentation,'' in paragraph (b). This change does not affect the scope 
of disclosure obligations under the Policy.
    Second, the Updated Policy makes clear that ex parte presentations 
can include communications ``made in any form, including those made in 
person, or via mail, telephone, email, or other medium. A communication 
may be an `ex parte presentation' even if the person making the 
communication does not intend or desire it to be publicly disclosed.'' 
The CFPB's Policy has always covered these types of communications, but 
the CFPB has received feedback suggesting that outside parties may not 
have always understood this scope of coverage. The new clarificatory 
language addresses that feedback.
    The Policy continues to define ``ex parte presentations'' to not 
include: (i) ``Statements by any person made in a public meeting, 
hearing, conference, or similar event, or public medium such as a 
newspaper, magazine, or blog''; (ii) ``Communications that are 
inadvertently or casually made''; (iii) ``Inquiries limited to the 
status of a rulemaking or concerning compliance with procedural 
requirements''; or (iv) ``Communications that occur as part of the 
CFPB's regular supervisory, monitoring, research, and/or other 
statutory responsibilities, which communications are only incidentally 
relevant to, and not intended to influence the outcome of, a rulemaking 
proceeding.'' The Updated Policy inserts the word ``enforcement'' into 
clause (iv), to make clear that communications that occur as part of 
the CFPB's regular enforcement activities, if incidentally relevant to, 
and not intended to influence the outcome of, a rulemaking proceeding, 
also are not ex parte presentations. These communications have always 
been excluded from the definition of ``ex parte presentation'' because 
they occur as part of the CFPB's regular statutory responsibilities. 
For clarity, the Updated Policy makes that coverage explicit.
    It bears emphasis that comments submitted through the methods set 
forth in a notice of proposed rulemaking for the submission of comments 
are not ex parte presentations, and therefore are not subject to the 
requirements under the Policy. Moreover, the CFPB notes that the Policy 
addresses the public disclosure obligations for ex parte presentations 
as set forth in the Policy. Although decision-making personnel may in 
their discretion consider ex parte presentations in the course of 
developing a final rule covered by the Policy, the Policy does not 
require such consideration. As the Policy makes clear, once a proposed 
rule is published, the CFPB ``expects that the primary means of 
communicating a person's view in the course of a rulemaking will be 
through the submission of written comments to the rulemaking docket. Ex 
parte presentations should supplement and not substitute for those 
submissions.''
    The Updated Policy also clarifies that it applies only where ``the 
CFPB is required by section 553 of the Administrative Procedure Act 
(APA) to publish general notice of proposed

[[Page 18688]]

rulemaking.'' The Prior Policy stated that it applied to informal 
(notice and comment) rulemaking procedures ``conducted in accordance 
with section 553 of the Administrative Procedure Act, including 
proceedings in which public comment is sought as a matter of 
discretion.'' The CFPB solicits public feedback on a range of documents 
and in a variety of ways, many of which are not conducted in accordance 
with section 553 of the APA. In order to avoid confusion regarding when 
outside parties must comply with the Policy, this revision makes clear 
that the Policy does not apply where the CFPB voluntarily seeks 
comment, but is not legally required to do so in accordance with 
section 553 of the APA.
    The Policy applies once the CFPB has published a proposed rule on 
its Web site or in the Federal Register, whichever is earlier. Input 
the CFPB receives before a rule is proposed is not covered by the 
Policy, although parties should keep in mind that their communications 
with the CFPB might be made public as required by law or for other 
reasons. The Prior Policy applied until publication of a final rule in 
the Federal Register, or final disposition of the notice of proposed 
rulemaking or interim final rule. The Updated Policy continues to cease 
applying upon final disposition of the notice of proposed rulemaking, 
although the term ``interim final rule'' is removed, consistent with 
the revision to the language regarding the applicability of the Policy, 
because the APA does not require general notice of proposed rulemaking 
for interim final rules. The Updated Policy makes a minor technical 
change to the date the Policy ceases to apply to a rulemaking. The 
Prior Policy ceased to apply upon the date of publication of the final 
rule in the Federal Register. In addition to ceasing to apply on this 
date, the Updated Policy ceases to apply upon the date of publication 
of the final rule on the CFPB's Web site, if earlier than Federal 
Register publication. The CFPB has made this change for consistency 
with when the Policy applies, which is the earlier of Web site or 
Federal Register publication, and because CFPB rules are considered 
issued at the time they are posted on the CFPB's Web site.
    The Policy continues to provide that its requirements do not apply 
to presentations: (i) ``to the General Counsel and his or her staff 
that concern judicial review of a matter that has been decided by the 
CFPB''; (ii) ``by other Federal government agencies, offices, or their 
staff''; or (iii) ``by members of Congress or their staff,'' unless 
``such presentations are of major significance, contain information or 
argument not already reflected in the rulemaking docket, and are 
plainly intended to affect the ultimate outcome of the rulemaking.'' 
The Updated Policy makes two non-substantive clarifications to the 
Policy, which make explicit: (1) That Federal government agencies 
include ``components of the Federal Reserve System;'' and (2) that 
clauses (ii) and (iii) above apply only when the entities identified in 
those clauses are acting ``in their official capacities.''
    The Updated Policy also makes a substantive change to this 
paragraph, by providing that the Policy's requirements do not apply to 
communications ``by State attorneys general or their equivalents, State 
bank regulatory authorities, or State agencies that license, supervise, 
or examine the offering of consumer financial products or services, 
including their offices or staff, when acting in their official 
capacities.'' The Updated Policy specifies that ``State'' means ``any 
State, the District of Columbia, the Commonwealth of Puerto Rico, or 
any territory or possession of the United States or any federally 
recognized Indian tribe.'' The CFPB has special partnerships with these 
sister entities, including certain cooperative supervisory and 
enforcement relationships, and these entities often have uniquely 
valuable insights into proposed rulemakings. In the CFPB's experience, 
communications from these entities have at times been sensitive, and 
the CFPB believes that these entities are likely to provide more frank 
and robust feedback if communications are not subject to the disclosure 
requirements of the Policy. The Updated Policy therefore includes a 
tailored exemption from coverage designed to further those objectives, 
as well as the purposes of the Policy in general.
    Next, the Prior Policy directed outside parties to submit summaries 
of oral ex parte presentations or written ex parte presentations within 
three business days after a presentation. In response to feedback the 
CFPB has received regarding difficulties complying with that timing 
requirement, the Updated Policy extends that period for outside parties 
from three to ten business days. For clarity, the Updated Policy also 
instructs that summary memoranda include ``the identity of the 
person(s) preparing the memorandum'' and ``the date of the 
memorandum.'' The Prior Policy directed outside parties to file ex 
parte presentation materials directly to the public rulemaking docket 
at www.regulations.gov, as well as submitting them to the CFPB. In 
response to feedback regarding technical limitations outside parties 
have experienced making submissions to rulemaking dockets on 
www.regulations.gov after comment periods have closed, the Updated 
Policy provides that outside parties need not themselves file ex parte 
materials directly to the public rulemaking docket, and instead 
instructs them to email required materials to the CFPB's Executive 
Secretary and to the CFPB employee point of contact for the 
presentation, if applicable. The Updated Policy also updates the email 
and mailing address of the Executive Secretary of the CFPB.
    The Prior Policy provided that CFPB staff may require filers to 
correct inaccuracies or missing information in ex parte materials. The 
Updated Policy clarifies and supplements that clause, explaining ``that 
CFPB staff may communicate with the presenter regarding the summary 
memorandum or presentation, including, for example, requiring the 
submitter to correct any inaccuracies or insert missing information, or 
regarding treatment of confidential information, as appropriate.'' In 
light of the technical limitations experienced by outside parties 
making submissions to rulemaking dockets on www.regulations.gov after 
comment periods have closed, as described above, the Updated Policy 
provides that CFPB will post ex parte presentations and summary 
memoranda ``on the public rulemaking docket in accordance with [the] 
policy, including making reasonable efforts to do so within a 
reasonable period of time before publication of the final rule.''
    The Updated Policy clarifies procedures for requesting confidential 
treatment under the Policy. The Prior Policy provided that where a 
filer believed that one or more documents or portions thereof should be 
withheld from public inspection, the filer should electronically 
request that the information not be made available for public 
inspection, and it instructed the filer to file with the CFPB's 
Executive Secretary confidential and public copies of the documents. 
The Updated Policy makes several non-substantive clarifications to this 
paragraph for clarity, and it instructs the submitter to explain why 
confidential treatment is requested and why such information would be 
properly withheld from disclosure under the Freedom of Information Act, 
5 U.S.C. 552. These changes reflect and clarify practices under the 
Policy, and the CFPB believes they will facilitate requests for 
confidentiality.
    Finally, the Updated Policy makes non-substantive changes to a 
provision

[[Page 18689]]

reserving CFPB discretion to deviate from the Policy where public 
interest requires, and it inserts as an example that such discretion 
may be exercised to apply the Policy ``during proceedings other than 
those described in paragraph (a) [of the Policy], and not to apply the 
policy during proceedings described in paragraph (a), such as where the 
CFPB has determined that a rule for which general notice of proposed 
rulemaking was provided in accordance with section 553 of the APA will 
not be finalized.''

II. Legal Authority and Effective Date

    Section 1022(b) of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act (Dodd-Frank Act) authorizes the CFPB to prescribe rules 
as may be necessary or appropriate to enable the CFPB to administer and 
carry out the purposes and objectives of the Federal consumer financial 
laws, and to prevent evasions of those laws.\2\ In addition, section 
1012(a) of the Dodd-Frank Act authorizes the Bureau ``to establish the 
general policies of the Bureau with respect to all executive and 
administrative functions, including--(1) the establishment of rules for 
conducting the general business of the Bureau, in a manner not 
inconsistent with this title * * * .'' \3\
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    \2\ 12 U.S.C. 5512(b).
    \3\ 12 U.S.C. 5492(a).
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    As described above, the Updated Policy makes changes to paragraph 
(e)(1) by including a clause providing that the Policy's requirements 
do not apply to communications ``by State attorneys general or their 
equivalents, State bank regulatory authorities, or State agencies that 
license, supervise, or examine the offering of consumer financial 
products or services, including their offices or staff, when acting in 
their official capacities.'' The Updated Policy specifies that 
``State'' means ``any State, the District of Columbia, the Commonwealth 
of Puerto Rico, or any territory or possession of the United States or 
any federally recognized Indian tribe.'' These substantive revisions 
apply only to informal rulemaking proceedings subject to the Policy 
where the CFPB has published general notice of proposed rulemaking at 
least thirty days after publication of the Updated Policy in the 
Federal Register. All other revisions apply thirty days after the date 
of publication of this document in the Federal Register, to all CFPB 
informal rulemaking proceedings subject to the Policy, including 
rulemakings that have not been finalized.

III. Regulatory Requirements

    The updated CFPB Policy on Ex Parte Presentations in Rulemaking 
Proceedings is a policy statement and procedural rule that articulates 
the CFPB's policies and expectations for communications with persons 
outside the CFPB during informal rulemaking proceedings where general 
notice is required by section 553 of the APA. It is exempt from notice 
and comment rulemaking requirements under the APA pursuant to 5 U.S.C. 
553(b). Because no notice of proposed rulemaking is required, the 
Regulatory Flexibility Act does not require an initial or final 
regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a). The CFPB has 
determined that this policy does not impose any new or revise any 
existing recordkeeping, reporting, or disclosure requirements on 
covered entities or members of the public that would be collections of 
information requiring OMB approval under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq.

IV. Final Policy

    The text of the Policy is as follows:

CFPB Policy on Ex Parte Presentations in Rulemaking Proceedings

    (a) Scope.--This policy applies to communications with persons 
outside the Consumer Financial Protection Bureau during informal 
rulemaking proceedings where the CFPB is required by section 553 of the 
Administrative Procedure Act (APA) to publish general notice of 
proposed rulemaking.
    (b) Definitions.--For purposes of this policy, the following 
definitions apply:
    (1) Ex Parte Presentation.--
    (A) Except as provided in subparagraph (b)(1)(B), the term ``ex 
parte presentation'' means any written or oral communication by any 
person outside the CFPB to any decision-making personnel that imparts 
information or argument directed to the merits or outcome of a 
rulemaking proceeding. Ex parte presentations include such 
communications made in any form, including those made in person, or via 
mail, telephone, email, or other medium. A communication may be an ``ex 
parte presentation'' even if the person making the communication does 
not intend or desire it to be publicly disclosed.
    (B) Ex parte presentations do not include the following:
    (i) Statements by any person made in a public meeting, hearing, 
conference, or similar event, or public medium such as a newspaper, 
magazine, or blog;
    (ii) Communications that are inadvertently or casually made;
    (iii) Inquiries limited to the status of a rulemaking or concerning 
compliance with procedural requirements; or
    (iv) Communications that occur as part of the CFPB's regular 
supervisory, enforcement, monitoring, research, and/or other statutory 
responsibilities, which communications are only incidentally relevant 
to, and not intended to influence the outcome of, a rulemaking 
proceeding.
    (2) Decision-making personnel.--The term ``decision-making 
personnel'' means any employee of the CFPB who is or may reasonably be 
expected to be involved in formulating a CFPB rule.
    (c) Policy.--It is the CFPB's policy to provide for open 
development of rules and to encourage full public participation in 
rulemaking actions. The CFPB encourages decision-making personnel to 
contact the public directly when factual information is needed to 
resolve questions of substance and to be receptive, consistent with the 
limitations on CFPB staff time, to communications from persons affected 
by or interested in a CFPB rulemaking. However, to promote fairness and 
reasoned decision-making, the CFPB's policy is to require public 
disclosure of ex parte presentations according to CFPB guidelines. The 
CFPB expects that the primary means of communicating a person's views 
in the course of a rulemaking will be through the submission of written 
comments to the rulemaking docket. Ex parte presentations should 
supplement and not substitute for those submissions.
    (d) Disclosure.--Except as provided in paragraph (e), the following 
requirements apply from the date of publication in the Federal Register 
(or on the CFPB's Web site, whichever is earlier) of a notice of 
proposed rulemaking for public comment until the date of publication in 
the Federal Register (or on the CFPB's Web site, whichever is earlier) 
of the final rule or final disposition of the notice of proposed 
rulemaking:
    (1) Oral Ex Parte Presentations.--A person who makes an oral ex 
parte presentation shall, not later than ten business days after the 
presentation, submit to the CFPB's Executive Secretary and the CFPB 
employee point of contact for the presentation, a memorandum 
summarizing the presentation. The memorandum must contain the identity 
of the person(s) preparing the memorandum; the date of the memorandum; 
a list of all persons attending or otherwise participating in the 
presentation; the date of the presentation; and a summary of data 
presented and arguments made during the presentation by the person(s)

[[Page 18690]]

making the presentation. If the oral ex parte presentation consisted in 
whole or in part of the presentation of data or arguments already 
reflected in the presenter's prior written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. CFPB staff may communicate with the presenter regarding the 
memorandum summarizing the presentation, including, for example, 
requiring the submitter to correct any inaccuracies or insert missing 
information, or regarding treatment of confidential information, as 
appropriate. CFPB staff will post such memoranda on the public 
rulemaking docket in accordance with this policy, including making 
reasonable efforts to do so within a reasonable period of time before 
publication of the final rule.
    (2) Written Ex Parte Presentations.--A person who makes a written 
ex parte presentation (including documents shown or given to decision-
making personnel during oral ex parte presentations) shall, not later 
than ten business days after the presentation, submit to the CFPB's 
Executive Secretary and the CFPB employee point of contact for the 
presentation, if applicable, a copy of the presentation. CFPB staff may 
communicate with the presenter regarding the written ex parte 
presentation. CFPB staff will post written ex parte presentations on 
the public rulemaking docket in accordance with this policy, including 
making reasonable efforts to do so within a reasonable period of time 
before publication of the final rule.
    (3) Submission Requirements.--
    (i) Any memorandum summarizing an oral ex parte presentation or 
written ex parte presentation (and cover letter, if any) shall identify 
the proceeding to which it relates, including the docket number, if 
any, and must be labeled as an ex parte submission.
    (ii) All submissions under paragraphs (d)(1) and (2) shall be made 
electronically by emailing the required materials to the Executive 
Secretary (at CFPB_expartedisclosures@cfpb.gov) and the CFPB employee 
point of contact for the presentation, if applicable. If electronic 
submission would present an undue hardship, the submitter must request 
an exemption from the electronic submission requirement, stating the 
nature of the hardship, and submit by mail or by hand to the Executive 
Secretary an original and one copy of the written ex parte presentation 
or memorandum summarizing an oral ex parte presentation, with a copy by 
mail to the CFPB employee point of contact for the presentation, if 
applicable. (Mail may be sent to the Office of the Executive Secretary, 
Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 
20552.)
    (iii) In cases where a member of the public believes that one or 
more of the documents or portions thereof covered by this policy 
(whether a written ex parte presentation or summary of an oral ex parte 
presentation) should not be posted on the public rulemaking docket, he 
or she should submit electronically a request for confidential 
treatment under this policy. Such requests should explain why 
confidential treatment is requested and why such information would be 
properly withheld from disclosure under the Freedom of Information Act, 
5 U.S.C. 552. Unless otherwise agreed to with the CFPB, such requests 
should include a copy of the document(s) containing the confidential 
information and marked prominently as ``Confidential,'' and a copy of 
the same document(s) with confidential information redacted and marked 
``Public Copy.''
    (iv) CFPB staff may in their discretion elect to prepare written 
summaries of oral ex parte presentations and post them to the 
rulemaking docket in lieu of requiring the person who made the ex parte 
presentation to prepare such summaries.
    (e) Exemptions.--
    (1) The requirements in section (d) do not apply to ex parte 
presentations (i) to the General Counsel and his or her staff that 
concern judicial review of a matter that has been decided by the CFPB; 
(ii) by other Federal government agencies, offices, or their staff 
(including components of the Federal Reserve System), when acting in 
their official capacities; (iii) by State attorneys general or their 
equivalents, State bank regulatory authorities, or State agencies that 
license, supervise, or examine the offering of consumer financial 
products or services, including their offices or staff, when acting in 
their official capacities; or (iv) by members of Congress or their 
staff, when acting in their official capacities, unless such 
presentations are of major significance, contain information or 
argument not already reflected in the rulemaking docket, and are 
plainly intended to affect the ultimate outcome of the rulemaking. For 
purposes of this policy, State means any State, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States, or any federally recognized Indian 
tribe. All entities are welcome to post written comments to the 
rulemaking docket.
    (2) The CFPB may properly withhold from the rulemaking docket 
information exempt from disclosure under the Freedom of Information 
Act, 5 U.S.C. 552.
    (f) CFPB Discretion.--Where the public interest so requires in 
particular rulemaking proceedings, the CFPB and its staff retain the 
discretion to deviate from this ex parte policy set forth above, 
including to apply this policy during proceedings other than those 
described in paragraph (a), and not to apply the policy during 
proceedings described in paragraph (a), such as where the CFPB has 
determined that a rule for which general notice of proposed rulemaking 
was provided in accordance with section 553 of the APA will not be 
finalized.
    (g) Violations.--Persons who fail to adhere to this policy are 
subject to such sanctions as may be appropriate. Any person who becomes 
aware of a possible violation of any of the requirements of this policy 
may advise the Office of General Counsel of all the facts and 
circumstances that are known to him or her.

    Dated: April 17, 2017.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2017-08096 Filed 4-20-17; 8:45 am]
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