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Consumer Bureau Adopts Procedural Rule Specifying How Agency Issues Regulations

Wednesday, January 2, 2013

New Development: The Consumer Financial Protection Bureau adopted a rule specifying how it puts out rules and when they are considered issued.

Potential Impact: CFPB says procedural rule will eliminate uncertainty.

By Jeff Bater

The Consumer Financial Protection Bureau Dec. 28 finalized a procedural rule that spells out how and when the agency issues rules, a move intended to clarify the bureau's practices and eliminate uncertainty.

The new rule became effective Dec. 28, the day it was published in the Federal Register.

The agency said it generally intends to issue rules by posting them on its website but, as a precaution, a rule will be considered issued if published first in the Federal Register.

The Dodd-Frank Wall Street Reform and Consumer Protection Act created the CFPB and authorized the agency to issue rules. Typically, a rule is considered issued when it has been placed on the Office of the Federal Register's website or published in the Federal Register. But the CFPB, in its new rule, said a government agency might treat other events as constituting the issuance of a rule.

“The key prerequisite for issuing a rule appears to be providing public notice of the rule's content,” it said. 

Modern Technology

The CFPB, citing a commitment to modern technology, regularly posts final rules on its website and, typically, it submits the document to the Office of the Federal Register.

“The bureau does not believe that delaying issuance until the rule is published in the Federal Register is necessary or in the public interest,” the CFPB said.

The agency said clarifying what constitutes rule issuance is useful because, in some cases, the date of issuance of a rule has legal consequences.

The CFPB gives an example: under Dodd-Frank, certain provisions of Title XIV will go into effect on the date that is 18 months after the designated transfer date unless relevant regulations are issued by that date.

“Given the bureau's practice of posting rules on its website before the Office of the Federal Register makes the rules available for public inspection or publishes the rules in the Federal Register, uncertainty could arise regarding the date on which such rules were issued,” the agency said. “The final rule eliminates uncertainty by clarifying when the bureau's rules are deemed issued.”

By Jeff Bater

The CFPB rule is available at /uploadedFiles/Content/News/Legal_and_Business/Bloomberg_Law/Legal_Reports/fedreg(1).pdf.

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