Promoting Openness in CFPB Rulemaking

August 19, 2011

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Written by Leonard Kennedy

Public participation is essential to CFPB’s rulemaking process. We firmly believe that input from consumers, industry, and other interested parties will help make our rules more efficient and effective. To promote openness and transparency, CFPB has adopted a policy governing ex parte presentations. This policy generally requires public disclosure of ex parte presentations made to CFPB staff concerning a pending rulemaking. This way, the general public will have access to the input that CFPB is receiving.

At the beginning of a rulemaking process, CFPB staff will typically receive suggestions and information from a variety of stakeholders. This input will help inform the drafting of a proposed rule. For example, the CFPB is currently gathering public input on mortgage disclosure forms in its “Know Before You Owe” project and on how to define a “larger participant” for its non-bank supervision program. The ex parte policy does not apply during this stage of the process, which is before a rule has been proposed.

Once the CFPB publishes a proposed rule in the Federal Register or on the CFPB’s website, the ex parte policy comes into play. The policy also comes into play when the CFPB publishes an interim final rule with a request for comment. During this stage, the primary way CFPB collects public input is through written comments that are posted on the public rulemaking docket. (Our Federal Register notices explain how to submit comments. The most efficient way is on www.regulations.gov.)

However, during this stage, members of the public may wish to provide oral or written comments directly to CFPB staff regarding the rulemaking, or CFPB staff may wish to obtain information directly from members of the public. The input CFPB receives in this manner is considered ex parte because it is outside of or in addition to the formal comment process. The CFPB’s policy requires that these ex parte presentations be summarized and disclosed on the public docket. In this way, members of the public can be informed of the input CFPB is receiving. This policy recognizes that ex parte communications can be a valuable source of information that can improve the quality of CFPB’s rulemaking. At the same time, the policy recognizes the need for disclosure to promote openness and fairness. (continued…)