[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]


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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.

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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 http://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 http://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\
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    \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.'').
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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-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.
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    \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

[[Page 13964]]

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.

[[Page 13965]]

    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