On March 7, 2018, the Consumer Financial Protection Bureau (CFPB or "Bureau") released a Request for Information (RFI) regarding the Bureau's rulemaking process, the seventh RFI in its initiative to reexamine the Bureau's existing policies and procedures under Acting Director Mick Mulvaney's leadership.1 Through this latest RFI, the Bureau seeks feedback "on all discretionary aspects of the Bureau's [rulemaking] processes, including current practices, timelines, and potential improvements in each stage of these processes." As a result, the CFPB is not seeking feedback about those elements of federal agency rulemaking that are required by law, or the content of any particular proposed or final rule. Thus, responses to this RFI should focus on the process elements of CFPB rulemaking.

Commenters are invited to provide feedback on the Bureau's overall rulemaking process and to include a discussion of the positive and negative aspects of the CFPB's processes, specific suggestions for improvements and identification of rulemaking procedures that should not be modified. The RFI divides the rulemaking process into three parts: (1) Initial Outreach and Information Gathering, (2) Notices of Proposed Rulemaking, and (3) Final Rules. To illustrate the types of comments the CFPB is seeking from the public and industry, the Bureau provides sample questions with respect to each element of the rulemaking process.


The RFI invites comment on the mechanisms the Bureau uses to gather data, such as RFIs and methods to better obtain data from stakeholders to support quantitative analysis and for use in assessing benefits and costs of proposed rules. The CFPB is "particularly interested" in suggestions on how the CFPB "might best encourage" industry stakeholders to share data to inform potential proposed rules, and whether the Bureau could better address concerns about treatment of proprietary business information. The RFI also requests feedback about its processes for convening a panel comprised of representatives from the Bureau, the Office of Management and Budget's Office of Information and Regulatory Affairs, and the Small Business Administration's Office of Advocacy under Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) to seek input from a representative cross section of affected small entities and to obtain advice and recommendations on proposals the Bureau is considering.


The RFI also seeks public input on the content of the various sections normally contained in a Notice of Proposed Rulemaking and the level of detail and analysis provided therein, as well as the quality of examples provided in proposed commentary. In addition, the RFI requests feedback on the practice of releasing proposed rules prior to publication in the Federal Register, the duration of comment periods, mechanisms for encouraging additional public feedback, the use of online comment posting systems, and meetings with stakeholders during and after a comment period.

This RFI appears to be a further step in Acting Director Mulvaney's plan to limit, or cease altogether, the CFPB's practice under former Director Richard Cordray of engaging in rulemaking by enforcement actions by using a more formal rulemaking process. The CFPB will begin accepting comments when the RFI is published in the Federal Register, which is expected to occur on March 9, and the comment period will last 90 days. The CFPB plans to issue subsequent RFIs seeking public comment on potential modifications to regulations already adopted by the CFPB and those inherited from other agencies.


1 Our client alert on this initiative is available here.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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