To promote openness and transparency in its rulemaking, the CFPB has adopted a policy requiring public disclosure of ex parte presentations made to the Bureau staff concerning a pending informal rulemaking. In the normal course, regulators will designate a comment period during which the public can weigh in on proposed or interim final rules in a formal comment letter. This policy addresses communications outside the normal comment procedure – known as ex parte presentations. Len Kennedy, the Bureau’s General Counsel, indicated the importance of these ex parte communications and recognized the need for disclosure to promote openness and fairness. Accordingly, the new policy addresses the procedures and deadlines for those parties making ex parte presentations to the Bureau. Any person who communicates directly with “decision-making personnel” at the Bureau, either in person or writing, about a published rule is required to summarize the communication and post the summary on the public docket within three business days after the presentation. Excluded from the disclosure requirement are presentations by other federal agencies, communications to the Bureau’s General Counsel or his staff by members of the public seeking judicial review of a CFPB decision, and members of Congress (unless the Congressional comments are of major significance, contain information or arguments not already reflected in the rulemaking docket, and are intended to affect the ultimate outcome of the rulemaking).
Practical Tip: This ex parte presentation rule applies to informal (as opposed to formal) rulemaking. Informal rulemaking under the Administrative Procedure Act, the process used by most federal agencies to create regulations, involves publication of a “Notice of Proposed Rulemaking” in the Federal Register, the opportunity for public comment, and publication of a final rule in the Federal Register not less than 30 days before its effective date after the agency has reviewed and analyzed the public comments. Formal rulemaking requires trial-like, on-the-record proceedings.