The American Bankers Association and the Consumer Bankers Association (the Associations) have sent a letter to the Office of Information and Regulatory Affairs (OIRA) (part of the Office of Management and Budget (OMB)) urging OIRA to update its existing guidance on information collections to ensure that the CFPB or other agencies do not improperly use the generic clearance process.

In May 2016, the ABA sent a comment letter to the CFPB challenging its use of the generic clearance process to conduct research in connection with its overdraft rulemaking.  The ABA’s letter was submitted in response to the CFPB’s March 2016 request to OMB under the Paperwork Reduction Act of 1995 for re-approval of an existing generic clearance “to collect quantitative data on effective strategies and consumer experiences….” (Qualitative Consumer Education Generic Clearance).  In its letter, the ABA asserted that after obtaining approval for the Qualitative Consumer Education Generic Clearance in 2013, the CFPB improperly used the clearance to seek approval, without prior public notice, for an information collection on “Qualitative Research of Consumer Understanding and Decision-making Related to Overdrafts.”  The ABA stated that because the collection would clearly inform the CFPB’s overdraft rulemaking, such as the need for increased disclosures and limitations on usage, it should have been pursued through a standard clearance.  The ABA urged the CFPB to refrain from improperly using a generic clearance to conduct an individual collection on substantive or policy issues and to seek approval for a standard clearance when it plans to conduct such a collection.

The Associations’ letter to OIRA was sent as a comment to the CFPB’s renewed request in June 2016 for comments on its March 2016 request for re-approval.  In their letter, the Associations renew the concerns raised by the ABA in its May 2016 comment letter regarding the CFPB’s improper use of the generic clearance process.  In addition to commenting on the CFPB’s specific request for re-approval, the Associations urge OIRA to update its existing guidance on information collections by making the following two revisions to the clearance process:

  • Imposing an explicit term of clearance on every generic clearance, including the Qualitative Consumer Education Generic Clearance should OIRA decide to re-approve it, that prohibits the requesting agency from using the clearance to conduct substantive or policy-related collections.
  • Requiring an agency to provide notice to the public whenever it requests approval, under a generic clearance, of an individual information collection on a topic that is or may be the subject of rulemaking.  The Associations assert that this step would give the public an opportunity to comment when an agency seeks to conduct a collection that could impact a rulemaking or other policy activity of the agency.