On March 28, 2018, the Consumer Financial Protection Bureau (“CFPB”) issued a Request for Information (“RFI”) regarding the effectiveness and accessibility of its guidance materials and activities, including implementation support. Specifically, the RFI asks for information about the following aspects of the CFPB’s methods of providing guidance to the public:
- Regulatory Inquiries Function: This function allows individuals to submit specific questions about the CFPB’s statutes and regulations by phone, email, or forms on the Bureau’s website. Responses are informal and usually provided by phone, although the RFI notes that “an increasing number of responses” are conducted by email, particularly for questions about the Home Mortgage Disclosure Act (“HMDA”). The RFI invites comments specifically on the preferred methods for submitting inquiries and receiving responses; the relative value of different types of responses (such as the tradeoff between faster oral guidance provided individually vs. slower, but more accessible, written guidance); and whether and how the CFPB should publish written responses.
- Regulatory Implementation and Compliance Aids: This category includes both traditional written material such as compliance guides, rule summaries, and other quick reference materials, and webinars. The RFI asks for input on the format and availability of these materials; the scope of topics addressed; the effectiveness of the “plain language writing style” that the CFPB uses; and the value of providing Small Entity Compliance Guides and similar materials that the Bureau is not required by law to produce. On this last topic, the RFI appears to reflect a concern that the small entity resources are written for more than just entities that strictly meet the SBA’s definition of “small business.”
- Official Interpretations and Standalone Interpretive Rules: These forms of guidance include published Official Interpretations to final rules and standalone interpretive rules issued without notice-and-comment processes. The RFI states that areas of interest to the CFPB include the efficiency and effectiveness of these interpretations; how often the CFPB should amend Official Interpretations to incorporate standalone interpretive guidance; what process the agency should use for making such amendments; and whether the CFPB should voluntarily employ notice-and-comment procedures for issuing standalone interpretive rules.
- Guidance Materials of the CFPB Division of Supervision, Enforcement, and Fair Lending (“SEFL”): These materials include compliance bulletins, policy statements, and statements on supervisory practices. Suggested topics for comment include the timing, frequency, scope, and delivery method of SEFL guidance materials, and the relative value of each type of SEFL guidance.
- Recommendations for New Forms of Written Guidance: The RFI requests feedback on the utility of providing guidance through FAQs; the comparative utility of an advisory opinion program alongside or instead of FAQs; the costs and benefits of memorializing advisory opinions or other guidance in Official Interpretations through notice and comment; the tradeoffs between quicker guidance such as FAQs or advisory opinions and written guidance after notice and comment; and other forms of written guidance.
- Disclaimers: The RFI requests feedback on whether the disclaimers on the CFPB’s guidance are transparent, understandable, and appropriate; how the CFPB should change its disclaimer language; how the CFPB should change its “approach” to disclaimers generally; and whether the Bureau should more frequently use a single, more generic disclaimer rather than the variety of disclaimers now used.
The RFI does not ask for comments on certain other matters, which the CFPB is addressing through other RFIs, including:
- Educational materials on regulations developed for consumers or in response to consumer inquiries;
- The substance of any proposed rules, final rules, or Official Interpretations; and
- The guidance provided in the CFPB’s Supervision and Examination Manuals and Supervisory Highlights.
The RFI is the tenth to be issued on various topics in short succession since the arrival of Acting Director Mick Mulvaney. The CFPB has announced that it will shortly issue RFIs on consumer education and on consumer inquiries.