The CFPB has issued a request for information that seeks comment on its rulemaking processes. Comments on the RFI must be received no later than 90 days after it is published in the Federal Register, which the CFPB expects to occur on March 9, 2021.
The RFI begins with a review of the statutory requirements that are relevant to the CFPB’s rulemaking processes. The RFI discusses the Administrative Procedure Act notice-and-comment requirements, the Regulatory Flexibility Act requirements for rulemakings that will have a significant impact on a substantial number of small business entities (often referred to as the SBREFA process), federal law requirements for various impact analyses of proposed and final rules, and federal law requirements and MOU agreements for consultation with other federal agencies.
The CFPB states that while many elements of its rulemaking are required by law, a number of its rulemaking processes, and certain elements of how it implements required processes, are discretionary. The RFI is intended to obtain public input on the discretionary aspects of the CFPB’s rulemaking processes.
In the RFI, the CFPB seeks feedback on all discretionary aspects of its rulemaking processes, including the following:
- Mechanisms used by the CFPB to gather information, data, and feedback from stakeholders such as RFIs
- Convening a SBREFA panel, including the outline of the proposal under consideration, selection and interaction with small entity representatives, and the SBREFA panel report
- Various issues relating to Notices of Proposed Rulemaking, such as the content of the NPRM itself, the CFPB’s practices with regard to issuing a NPRM, length of comment periods, processing and posting of comments, outreach and engagement during and after the comment period, and consideration of new data and other information issued by other agencies or third parties after a NPRM is released
- Content of a notice issuing a final rule and the CFPB’s practices in advance of a final rule’s publication in the Federal Register, such as issuing a press release and having the Director present remarks at a public event or on a press call
The new RFI represents the seventh in a series of RFIs announced by Mr. Mulvaney. The subjects of the CFPB’s first six RFIs and their comment deadlines are as follows:
- Processes surrounding civil investigative demands and investigational hearings -March 27, 2021
- Administrative adjudication processes -April 6, 2021
- Enforcement processes -April 33, 2021
- Supervision program -May 21, 2021
- External engagement -May 29, 2021
- Public reporting of consumer complaint information -June 4, 2021.
In its press release announcing the latest RFI, the CFPB stated that the next RFI in the series will be issued next week and will address the CFPB’s adopted rules. These rules, which are also sometimes referred to as the CFPB’s “inherited” rules, are the rules for which Dodd-Frank transferred authority from another federal agency to the CFPB.