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In its recently issued Fifth Annual Report to the Director, the CFPB Ombudsman highlighted concerns raised about the CFPB’s ex parte policy. Several groups expressed concerns that they could not locate documented ex parte communications to proposed rules or noticed that the documentation of such communications were publicly available in noticeably varying timeframes on regulations.gov.
The Ombudsman in the report notes:
To study this topic, we reviewed the CFPB’s ex parte policy in CFPB Bulletin 11-3, the process to memorialize communications at the CFPB, and any internal guidance for memorializing ex parte communications; met with the relevant CFPB offices involved in memorializing ex parte communications; sought additional feedback from outside stakeholders; and analyzed the ex parte documentation posted on regulations.gov over a specified timeframe. At the outset, we reviewed the existing internal draft process documentation, including an early process map, as well as any related guidance for CFPB employees on how to memorialize an ex parte communication.
In reviewing the posted documentation, we observed that there was not a consistent format used in posting the information, although a template is available to CFPB staff. Additionally, documents were posted in varying timeframes after the communication, from one day to approximately five months, which we learned was not related to any process delays at the regulations.gov resource. We also noted examples of communications made prior to publication of the proposed rule that were included in the docket as ex parte communications although not required by the Bureau’s policy.
The Ombudsman recommended that the CFPB standardize the Bureau’s process for memorializing ex parte communications regarding proposed rules. The report notes that the CFPB plans to issue a revised ex parte policy which will update the timeframe in which disclosures must be made when memorializing such communications.
CUNA’s Chief Advocacy Officer Ryan Donovan also provided information to help credit unions better understand this process this summer. During discussions with the CFPB this summer and fall, CUNA and the Leagues filed several ex parte memos outlining discussions urging the CFPB to exempt credit unions from the CFPB’s small dollar loan rule and describing specific concerns with the proposal. Several of these ex parte communications were cited in CUNA’s comprehensive small dollar loan comment.
CUNA agrees with the Ombudsman that more transparency and clarity on this process from the CFPB will be beneficial.
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