Summary: BCFP Request for Information Regarding Bureau Guidance and Implementation Support

Bureau of Consumer Financial Protection
Prepared by NASCUS Legislative & Regulatory Affairs Division
May 2018

The Bureau of Consumer Financial Protection (BCFP) 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.

Comments are due on July 2, 2018.  The RFI can be found here.

The Bureau 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.

The Bureau requests that comments include:

  • Specific discussions of the positive and negative aspects of the Bureau’s guidance and activities;
  • Specific suggestions regarding any potential updates or modifications to the Bureau’s approach to providing guidance
  • 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 Bureau requests that commenters identify, with specificity, the guidance material or activity, format, process or delivery platform at issue—providing specific examples where appropriate. 

Regulatory Inquiries Function

The Bureau’s Regulatory Inquiry Function assists individual inquirers with specific questions about the Bureau’s statutes and regulations.  Typically, the responses to these inquiries are provided to individuals orally.  However, the Bureau has been providing an increasing number of responses to regulatory inquiries via email.  The Bureau is seeking feedback on all aspects of its Regulatory Inquiries Function including the following areas of interest:

  • The preferred mechanism for submitting inquiries
  • Preferences regarding the responses to regulatory inquiries; the form and delivery method for the responses provided; and the desired timing of the responses.
  • The relative value of the responses to regulatory inquiries. Specifically, the Bureau is interested in getting feedback regarding the tradeoffs between providing quick guidance orally to individuals v. providing written guidance that takes longer to issue but that is broadly applicable.
  • 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.
  • Additional ways the Bureau can improve the Regulatory Inquiries Function

Regulatory Implementation and Compliance Aids

The Bureau creates and releases on its website several categories of regulatory implementation and compliance aids such as compliance guides; rule summaries and quick reference materials; and webinars. The Bureau is seeking feedback on all aspects of its regulatory implementation and compliance aids including:

  • The utility of the Bureau’s compliance guides and quick reference materials as well as potential areas for improvement such as
    • The scope of topics addressed and the format in which they are presented;
    • The ease of navigation to materials on the Bureau’s website and to sections within the compliance guides or quick reference materials;
    • The effectiveness of the Bureau’s use of the plain language writing style in the Small Entity Compliance Guides and quick reference materials when not legally required to do so;
    • The usefulness of the Bureau providing Small Entity Compliance Guides and quick reference materials when not legally required to do so;
  • 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; the supplemental materials; and the ease with which topics of interest may be located within webinar materials

Official Interpretations and Standalone Interpretive Rules

Many regulations issued by the Bureau contain Official Interpretations, which are used to clarify regulatory text and provide examples of practices that comply with the regulation.  The Bureau has also used Official Interpretations to memorialize the Bureau’s responses to recurring questions on particular rules over time and also provide financial services provider’s protection from civil liability for acts committed in good faith in reliance on the interpretations.  The Bureau is seeking feedback on all aspects of the process by which it issues interpretive rules and Official Interpretations including:

  • The efficiency and effectiveness of providing guidance through the Bureau’s Official Interpretations
  • 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. 
  • 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.  Those materials include compliance bulletins, policy statements, and statements on supervisory practices.  The Bureau is seeking feedback on all aspects of these SEFL guidance materials, including but not limited to:

  • The timing, frequency, scope and delivery method of SEFL guidance materials;
  • The benefits or drawbacks associated with the Bureau’s use of each particular type of SEFL guidance vehicle;
  • 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 other forms of written guidance frequently used by other agencies such as Frequently Asked Questions (FAQs) and Advisory Opinions. The Bureau is seeking feedback on potential new methods or channels for providing guidance, including but not limited to:

  • The utility of FAQs.  Specifically, comment is sought on the types of questions that are better suited for FAQs than other forms of guidance and mechanisms the Bureau should use to identify and prioritize issues and topics that should be addressed using FAQs.
  • The potential benefits and costs of memorializing over time any interpretations reflected in advisory opinions or other stand-alone guidance documents in the Official Interpretations to the underlying regulations, after notice and comment.
  • The tradeoffs between issuing FAQs or advisory opinions quickly and issuing written guidance after notice and comment.
  • 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. However, the Bureau has received feedback from industry indicating that its use of disclaimers causes confusion as to the utility and reliability of the guidance.  The Bureau is seeking feedback on all aspects of its disclaimers including:

  • 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
  • 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
  • The variety of Bureau disclaimers currently provided, and whether the Bureau should adopt a single, more generic disclaimer to be used in most instances
  • Other feedback or suggestions related to the Bureau’s disclaimers