[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76353-76354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31310]
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BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1074
[Docket No. CFPB-2012-0051]
Procedure Relating to Rulemaking
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Final rule.
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SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is
adopting a procedural rule (Final Rule) that specifies how the Bureau
issues rules and when rules are considered issued.
DATES: The Final Rule is effective on December 28, 2012.
FOR FURTHER INFORMATION CONTACT: Lea Mosena and Martha Fulford,
Attorneys, Legal Division, Consumer Financial Protection Bureau, 1700 G
Street NW., Washington, DC 20552, at (202) 435-7152.
SUPPLEMENTARY INFORMATION:
I. Background and Summary
The Final Rule specifies how the Bureau issues rules and when rules
are considered issued. In the future, the Bureau may issue further
rules on procedures for rulemaking.
Part 1074.1 establishes that the Bureau's rules are deemed issued
upon the earlier of: (1) When the final rule is posted on the Bureau's
Web site, or (2) when the final rule is published in the Federal
Register. The Bureau's Web site is www.consumerfinance.gov.
The Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank Act) \1\ and other statutes authorize the Bureau to issue
rules. Ordinarily, a rule may be considered issued at least when the
rulemaking document containing the final rule has been placed on public
inspection by the Office of the Federal Register or published in the
Federal Register. However, an agency may treat other events as
constituting the issuance of a rule.\2\ The key prerequisite for
issuing a
[[Page 76354]]
rule appears to be providing public notice of the rule's content.
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\1\ Public Law 111-203.
\2\ See Nat'l Grain & Feed Ass'n v. OSHA, 845 F.2d 345, 346
(D.C. Cir. 1988); United Techs. Corp. v. OSHA, 836 F.2d 52, 53 (2d
Cir. 1987); Indus. Union Dep't, AFL-CIO v. Bingham, 570 F.2d 965,
970 (D.C. Cir. 1977) (Leventhal, J., concurring).
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It is beneficial for regulated entities to know what constitutes
issuance of an agency's rules.\3\ Pursuant to a commitment to using
modern technology to facilitate the Bureau's performance of its
functions, the Bureau regularly posts final rules on its Web site.
Typically on the same day, the Bureau will submit the document to the
Office of the Federal Register. After a period of time that depends on
the length of the document and other factors, the Office of the Federal
Register will then make the document available for public inspection
and then publish it in 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. Accordingly,
today's rule provides that when a final rule \4\ is posted on the
Bureau's Web site before it is published in the Federal Register, the
posting on the Web site shall constitute the official issuance of the
rule.
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\3\ It is important to note that the date of issuance of a rule
and the effective date of a rule are distinct.
\4\ For the purposes of this rule, the Bureau intends ``final
rule'' to encompass an interim final rule.
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Clarifying what constitutes issuance of a rule is beneficial
because in some cases the date of issuance of a rule has legal
consequences.\5\ For example, under section 1400(c)(3) of the Dodd-
Frank Act, certain provisions of title XIV will go into effect on the
date that is 18 months after the designated transfer date,\6\ unless
relevant regulations are ``issued'' by that date. Given the Bureau's
practice of posting rules on its Web site 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 Final Rule
eliminates uncertainty by clarifying when the Bureau's rules are deemed
issued.
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\5\ Clarity about what constitutes issuance may be of practical
moment for regulated entities, potentially assisting in planning for
implementation of a rule.
\6\ Pursuant to section 1062 of the Dodd-Frank Act, 12 U.S.C.
5582, the Secretary of the Treasury designated July 21, 2011 as the
transfer date. 75 FR 57252.
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The Bureau generally intends to issue rules by posting them on its
Web site, but, as a precaution, the Final Rule provides that a rule
will be considered issued upon publication in the Federal Register if
by inadvertence or for some other reason the rule is not posted on the
Web site or is published in the Federal Register before it is posted on
the Web site.
II. Legal Authority and Effective Date
Section 1022(b) of the Dodd-Frank Act authorizes the Bureau to
prescribe rules as may be necessary and appropriate to enable the
Bureau to administer and carry out the purposes and objectives of the
Federal consumer financial laws, and to prevent evasions of those laws.
In addition, section 1012(a) of the Dodd-Frank Act authorizes the
Bureau ``to establish the general policies of the Bureau with respect
to all executive and administrative functions, including--(1) the
establishment of rules for conducting the general business of the
Bureau, in a manner not inconsistent with this title * * * .''
The Final Rule is procedural and not substantive and, thus, is not
subject to the 30-day delay in effective date required by 5 U.S.C.
553(d). The Bureau is making the Final Rule effective immediately upon
publication in the Federal Register.
III. Section 1022(b)(2) of the Dodd-Frank Act
In developing the Final Rule, the Bureau has considered the
potential benefits, costs, and impacts, and the Bureau has consulted or
offered to consult with the prudential regulators and the Federal Trade
Commission, including with regard to consistency with any prudential,
market, or systemic objectives administered by such agencies.\7\
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\7\ Section 1022(b)(2)(A) of the Dodd-Frank Act calls for the
Bureau to consider the potential benefits and costs of a regulation
to consumers and covered persons, including the potential reduction
of access by consumers to consumer financial products or services;
the impact on depository institutions and credit unions with $10
billion or less in total assets as described in section 1026 of the
Dodd-Frank Act; and the impact on consumers in rural areas. Section
1022(b)(2)(B) directs the Bureau to consult with the appropriate
prudential regulators or other Federal agencies regarding
consistency with objectives those agencies administer. The manner
and extent to which these provisions apply to a rulemaking of this
kind, which establishes Bureau procedures and imposes no standards
of conduct, is unclear. Nevertheless, to inform this rulemaking more
fully, the Bureau performed the analyses and consultations described
in those provisions of the Dodd-Frank Act.
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Certainty about the timing of issuance of the Bureau's rules will
likely benefit consumers and covered persons. The Bureau is not aware
of costs to consumers or covered persons, including the potential
reduction of access by consumers to consumer financial products or
services, that can be predicted to result from treating rules as issued
when the Bureau has posted them on its Web site.
Further, the Bureau is not aware of any unique impact the Final
Rule might have on insured depository institutions or insured credit
unions with total assets of $10 billion or less as described in section
1026(a) of the Dodd-Frank Act, or on rural consumers.
IV. Regulatory Requirements
The Final Rule relates solely to agency procedure and practice and,
thus, is not subject to the notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. 553(b). Because no notice of
proposed rulemaking is required, this rule does not require an initial
or a final regulatory flexibility analysis pursuant to the Regulatory
Flexibility Act (RFA), 5 U.S.C. 601 et seq.
List of Subjects in 12 CFR Part 1074
Administrative practice and procedure.
Authority and Issuance
For the reasons set forth in the preamble, the Bureau adds part
1074 to Chapter X in Title 12 of the Code of Federal Regulations to
read as follows:
PART 1074--PROCEDURE RELATING TO RULEMAKING
Sec.
Sec. 1074.1 Date of issuance of Bureau rules.
Authority: 12 U.S.C. 5492(a)(1), 5512(b).
Sec. 1074.1 Date of issuance of Bureau rules.
0
A final Bureau of Consumer Financial Protection (Bureau) rule is deemed
issued upon the earlier of the following:
(a) When the final rule is posted on the Bureau's Web site; or
(b) When the final rule is published in the Federal Register.
Dated: December 21, 2012.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2012-31310 Filed 12-27-12; 8:45 am]
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