CFPB Summary: Procedural Rule and Request for Comments re: Supervisory Authority Over Certain Nonbank Covered Persons Based on Risk Determination; Public Release of Decisions/Orders
12 CFR Part 1091
The Consumer Financial Protection Bureau (CFPB) is amending an aspect of procedures for establishing supervisory authority based on a risk determination. Specifically, the Bureau is adding a mechanism for the Bureau to make final decisions and order in these proceedings public. The Bureau welcomes comments on this rule and the Bureau may make further amendments if it receives comments warranting changes.
This procedural rule became effective on April 29, 2022. Comments must be received by May 31, 2022. The rule/request for comment can be found here.
Dodd Frank provides the Bureau with the authority to supervise a nonbank covered person that the Bureau “has reasonable cause to determine, by order, after notice of the covered person and a reasonable opportunity for such covered person to respond…is engaging, or has engaged, in conduct that poses risks to consumers with regard to the offering or provision of consumer financial products or services. The Bureau issued a procedural rule in 2013 to govern these proceedings. Section 1091.115(c) of the existing rule provides that documents, records or other items in connection with a proceeding under part 1091 shall be deemed confidential supervisory information.
The Bureau is adding a new section (1091.115(c)(2), which provides an exception regarding final decisions and orders by the Director. A central principle of the supervisory process is confidentiality. However, the Bureau notes that “these decisions and orders present unique considerations compared to other supervisory activity. There is a public interest in transparency when it comes to these potentially significant rulings by the Director as head of the agency.” Accordingly, the Bureau believes that there should be a procedural mechanism to determine whether all or part of a decision or order should be publicly released. The process established in 1091.115(c)(2) provides that within seven days of service of the decision or order, the respondent has the option of filing a submission on this issue, and then the Director will determine whether the decision or order will be released on the Bureau’s website, in whole or in part. The Bureau anticipates applying Exemptions 4 and 6 of the Freedom of Information Act to information pertaining to “trade secrets and commercial or financial information obtained from a person that is privileged or confidential or that pertains to “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The Bureau will take into consideration whether there are other reasons to not publicly release a final decision or order, in whole or in part.”
The Bureau welcomes any comments on whether it should amend the rule to codify a standard for determinations regarding public release.