Request for Information Regarding Bureau Guidance and Implementation Support, 13959-13965 [2018-06674]
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BILLING CODE 3510–NK–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
[Docket No. CFPB–2018–0013]
Request for Information Regarding
Bureau Guidance and Implementation
Support
Bureau of Consumer Financial
Protection.
ACTION: Notice and request for
information.
AGENCY:
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 https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: FederalRegisterComments@
cfpb.gov. 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
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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 https://
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 CFPB_
Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION: The DoddFrank 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
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
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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-andcomment 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.
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
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.’’).
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).
5 5 U.S.C. 551(4) (defining ‘‘rule’’ in relevant part
as ‘‘the whole or part of an agency statement of
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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-andcomment procedures, unless an
exception applies, and published in the
Federal Register.9
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
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 noticeand-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 § 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).
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.
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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-andcomment 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
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-andcomment 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
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
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 noticeand-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).
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).
18 See, e.g., Application of Regulation Z’s AbilityTo-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
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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
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
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-entitycompliance-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_preparingtheshort
formdisclosure_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/guidancerulemaking-process (describing ‘‘guidance that
agencies provide about the meaning and purpose of
their rules at the time those rules are issued’’).
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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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.
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
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
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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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 nonexhaustive 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
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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-andcomment 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)
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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
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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 nonlegislative 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
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
Webinars are recorded presentations
in which the Bureau (either
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/implementationguidance/ (last visited Mar. 16, 2018).
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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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
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
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
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.
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_
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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.
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
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).
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).
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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
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
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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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
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.
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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
For example, the Bureau recently
published on its website FAQs on
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.
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-complianceguide.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.
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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.
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
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/dataresearch/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).
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.
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transaction or activity with a particular
statute or regulation subject to the
agency’s jurisdiction.
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 nonrule 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.
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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
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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).
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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
DEPARTMENT OF DEFENSE
Office of the Secretary
[Transmittal No. 17–52]
Arms Sales Notification
Defense Security Cooperation
Agency, Department of Defense.
ACTION: Arms sales notice.
AGENCY:
The Department of Defense is
publishing the unclassified text of an
arms sales notification.
FOR FURTHER INFORMATION CONTACT:
Pamela Young, (703) 697–9107,
pamela.a.young14.civ@mail.mil or
Kathy Valadez, (703) 697–9217,
kathy.a.valadez.civ@mail.mil; DSCA/
DSA–RAN.
SUPPLEMENTARY INFORMATION: This
36(b)(1) arms sales notification is
published to fulfill the requirements of
section 155 of Public Law 104–164
dated July 21, 1996. The following is a
copy of a letter to the Speaker of the
House of Representatives, Transmittal
17–52 with attached Policy Justification.
SUMMARY:
Dated: March 27, 2018.
Shelly E. Finke,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
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]]>Agencies
[Federal Register Volume 83, Number 63 (Monday, April 2, 2018)]
[Notices]
[Pages 13959-13965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06674]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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 https://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\
---------------------------------------------------------------------------
\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.'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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
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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\
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\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.
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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.
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\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).
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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.
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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.
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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
