On August 19, 2011, the CFPB announced its “Policy on Ex Parte Presentations in Rulemaking Proceedings,” and posted that policy on its web site. The rule essentially requires anyone who communicates with the CFPB about a pending rulemaking to submit a written copy of the presentation (or a summary of an oral presentation) on the public rulemaking record within three days after the communication to the CFPB. The stated purpose of the rule is to “promote openness and transparency” and to give the public “access to the input that CFPB is receiving.”
The CFPB is not the only federal agency to have addressed rules to this situation. Indeed, the Federal Communications Commission recently revised its ex parte communication rules. In the process, the FCC surveyed the various approaches taken by other federal agencies to ex parte communications (see Paragraph 13 of the linked document).
But the CFPB’s policy has two significant exceptions that call into question how transparent the CFPB’s rulemaking process will really be. First, the ex parte policy doesn’t apply at all until the CFPB publishes a proposed rule in the Federal Register or on its web site. The Bureau’s press release highlights this, stating that before a rule is proposed, “CFPB staff will typically receive suggestions and information from a variety of stakeholders,” and “[t]his input will help inform the drafting of a proposed rule.” So, the CFPB has left itself free to communicate with whomever it wishes on a ex parte basis while its rulemaking process is in the formative stage, when many key policy decisions will likely be made. By the time a rule is proposed, it will have the momentum of the CFPB staff behind it. Only after this point does the process become “transparent.” Certainly, the CFPB is not unique in this respect–the same factors apply to any federal agency’s rulemaking–but it seems a stretch to call the rulemaking process “transparent” based on a policy that applies only after the proposed rule has been formulated and published.
Moreover, like other CFPB rules released recently, the policy on ex parte communications contains an exception by which the CFPB and its staff “retain the discretion to modify the applicable ex parte rules or practices” when they deem it in “the public interest” to do so. The policy does not define what kind of “public interest” will suffice, nor how the CFPB will assess or document the existence of such an interest. The policy is also silent about whether this discretion can be exercised only for particular commenters, or must apply to a rulemaking as a whole, and is also silent about whether the exercise of this discretion must be announced publicly or not. But regardless, what is the point of creating a rule–especially a “transparency” rule–that can be modified in the CFPB’s discretion?