The CFPB’s Many RFIs: A Recap and Timeline

by Manatt, Phelps & Phillips, LLP
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As part of Acting Director Mick Mulvaney’s efforts to overhaul the Consumer Financial Protection Bureau (CFPB or Bureau), it has released a series of requests for information (RFIs) over the past two months. To help keep the issues and deadlines straight, see below for details.

What happened

The RFIs are the first step in a complete review of the Bureau’s enforcement, supervision, rulemaking, market monitoring and education activities, in a move to ensure the CFPB is “fulfilling its proper and appropriate functions to best protect consumers,” according to the Bureau, providing “an opportunity for the public to submit feedback and suggest ways to improve outcomes for both consumers and covered entities.”

  • First on the list: the process for requesting documents from companies under investigation. The CFPB specifically asked to hear from businesses that have received multiple civil investigative demands (CIDs). “The Bureau is especially interested in better understanding how its processes related to CIDs may be updated, streamlined, or revised to better achieve the Bureau’s statutory and regulatory objectives, while minimizing burdens, consistent with applicable law, and how to align the Bureau’s CID processes with those of other agencies with similar authorities,” according to the RFI. The Bureau recently extended the comment period for this RFI to April 26.
  • For its second review, the Bureau asked for more information on the benefits and impacts of its use of administrative adjudications and how the existing process may be improved. The RFI asked for input on whether the CFPB should abandon the process completely and pursue contested matters only in federal court, whether Bureau staff should be permitted to issue subpoenas without approval of the administrative law judge, and whether limitations should be placed on expert witnesses or discovery (including deposing fact witnesses or servicing interrogatories). The CFPB also sought feedback on the policy for proceedings to be conducted expeditiously, among other questions. Comments are due by May 7.
  • Enforcement processes took the next spot on the RFI list, with the Bureau asking for information “to help assess the overall efficiency and effectiveness of its processes related to the enforcement of federal consumer financial law.” Seven topics were included for comment, among them the length of CFPB investigations, the communication between the Bureau and the subjects of investigations (such as timing, frequency and what information the Bureau should provide on the status of an investigation), and the manner and extent to which the CFPB should coordinate its enforcement activities with other federal or state agencies. Also extended, the deadline for this RFI is May 14.
  • What about the Bureau’s supervision program? The CFPB requested feedback on 12 aspects of the program, which it characterized as “a preliminary attempt by the Bureau to identify elements of the Bureau processes related to its Supervision Program that may be deserving of more immediate focus.” Topics on the list ranged from the efficiency and effectiveness of on-site examination work to the process for appealing supervisory findings and the usefulness of Supervisory Highlights to share findings and promote transparency. Comments are due by May 21.
  • In the fifth RFI, the Bureau asked commenters to take a closer look at its external engagements, such as field hearings, town halls, roundtables and meetings of its advisory groups. Specific areas of interest included strategies for seeking public and private feedback from diverse external stakeholders and structures that could maximize participation and constructive input. The RFI asked how the CFPB can solicit perspectives from outside Washington, D.C., and whether there are other approaches not currently being used that would elicit constructive input. Feedback must be received by the Bureau by May 29.
  • Regarding a program that triggered significant industry concern, the CFPB’s practices for the public reporting of consumer complaint information occupied the next RFI. More specifically, the Bureau queried whether it is net beneficial or net harmful to publish the names of the most-complained-about companies, whether the data fields in the Consumer Complaint Database should be changed, the frequency with which reports should be issued, the need for tweaks to reporting methodology, and whether greater context should be added to complaint information (such as product or service market share and company size). June 4 is the deadline for comment.
  • In its seventh RFI, the Bureau requested comment and information from interested parties “to help assess the overall efficiency and effectiveness” of its rulemaking processes. The CFPB clarified it was not seeking input on specific proposed or final rules but instead queried stakeholders about the mechanisms the Bureau uses to gather information in advance of initiating a rulemaking, the content and structure of notices of proposed rulemaking (NPRM), the NPRM comment process, and the content and structure of notices of final rules, among other questions. Comments must be received by June 7.
  • Considering rules, the CFPB began with those adopted since its creation. Defining “Adopted Regulations” to include “all final rulemakings that the Bureau issued after providing notice and seeking public comment, including any accompanying Official Interpretations (commentary) issued by the Bureau,” the RFI wondered whether the Bureau should amend any rules it has issued or whether stakeholders see a need to issue new rules under its rulemaking authority. Other options—such as pilots, field tests, demonstrations or other activities to better quantify the benefits and costs of potential revisions to regulations—are also options, the Bureau said. Comments on adopted rules must be submitted by June 19.
  • As distinct from adopted rules, the CFPB’s next RFI turned to inherited regulations—those rules issued by other agencies pursuant to rulemaking authority that was transferred to the CFPB by the Dodd-Frank Wall Street Reform and Consumer Protection Act. Similar to the questions it asked in the prior RFI on adopted rules, the Bureau asked whether any changes are necessary to inherited regulations to more effectively meet the statutory purposes and objectives set forth in consumer protection laws and the CFPB’s goals. In addition, the Bureau requested input on aspects of inherited regulations that should be tailored to institutions of particular types or sizes or that may be incompatible or misaligned with new technologies, as well as whether areas exist where the CFPB has inherited rulemaking authority that it has not exercised but that would be beneficial if it did so. Comments close on June 25.
  • The Bureau next focused on guidance and implementation support. Over the years, the CFPB has produced an array of guidance, according to the RFI, such as interpretive rules, general statements of policy or “policy guidance,” and non-rule guidance, such as implementation support materials and activities. Interested parties should weigh in to help the CFPB assess “the overall effectiveness and accessibility of its guidance materials and activities, including implementation support,” the Bureau said. The RFI also considers whether it would be appropriate to make changes to the formats, processes and delivery methods for providing this guidance.
  • Most recently, the CFPB published in the Federal Register on April 9 an RFI seeking comments and information from interested parties to assist the Bureau in assessing the overall efficiency and effectiveness of its consumer financial education programs. It notes that financial education is one of the six primary functions of the CFPB, and acknowledges the information that the CFPB has provided to date to consumers through various channels. The RFI focuses on the effectiveness of these efforts, including whether the Bureau is addressing the right topics and how the Bureau can measure ROI on these education initiatives. Comments are due by July 9.

One that is still to come: an RFI on consumer inquiries. To read all of the RFIs, click here.

Why it matters

The RFIs—which represent just one of the many ways Acting Director Mulvaney continues to dramatically reshape the CFPB—offer both the public and covered entities a chance to weigh in on almost every aspect of the CFPB’s enforcement, supervision, rulemaking and education activities. Industry participants are weighing the benefits and risks of submitting public comments on these issues. But any information generated by this RFI process may have a significant impact on the future direction of the CFPB, including after a permanent director replaces Mulvaney.

 

DISCLAIMER: 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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