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Highlight Updates Waiver authority for trial disclosure programs

The Dodd-Frank Act grants the CFPB authority to allow a covered person to conduct a trial program for the purpose of providing trial disclosures to consumers that are designed to improve upon any model form issued by the agency, so long as the program is limited in time and scope and is subject to specified standards and procedures.238 During the limited trial period, the covered person conducting the trial disclosure program is deemed to be in compliance with, or may be exempted from, a requirement of a rule or an enumerated consumer law.239 In 2013, the CFPB exercised its authority and announced its “Policy to Encourage Trial Disclosure Programs.”240 The policy lists the factors the agency will consider in deciding which eligible programs to approve for a waiver, describes the agency’s procedures for issuing waivers, and discusses how the CFPB will disclose information to the public about these programs.241 As of mid-2016, the CFPB has not granted permission for any trial disclosure programs.

Older bulletins may not include this language. Nonetheless, the Supreme Court recognizes that unpublished guidance is entitled to little, if any, deference. “The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules ‘do not have the force and effect of law and are not accorded that weight in the adjudicatory process.’”242


  • 238 12 U.S.C. § 5532(e)(1).

  • 239 12 U.S.C. § 5532(e)(2).

  • 240 78 Fed. Reg. 64,389 (Oct. 29, 2013).

  • 241 Id. at 64,393–64,394.

  • 242 Perez v. Mortg. Bankers Ass’n, ___ U.S. ___, 135 S. Ct. 1199, 1204, 191 L. Ed. 2d 186 (2015) (quoting Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995)).