The CFPB has published its Fall 2019 rulemaking agenda as part of the Fall 2019 Unified Agenda of Federal Regulatory and Deregulatory Actions, which is coordinated by the Office of Management and Budget. It represents the CFPB’s second rulemaking agenda under Director Kraninger’s leadership. The agenda’s preamble indicates that the information in the agenda is current as of July 25, 2019 and identifies the regulatory matters that the Bureau “reasonably anticipates having under consideration during the period from October 1, 2019 to September 30, 2020.”
The Bureau issued a proposed debt collection rule in May 2019. In the preamble to the rulemaking agenda, the Bureau states that it is testing consumer disclosures related to time-barred debt disclosures and, after testing, will assess whether to issue a supplemental proposal seeking comments on a proposal concerning such disclosures. The agenda indicates that the Bureau expects to issue a final debt collection rule in 2020.
The only other noteworthy information in the preamble is the Bureau’s announcement that in light of the feedback it received in response to the series of RFIs it issued in 2018, it has decided to add two new items to its long-term regulatory agenda. One item is a possible rulemaking to address feedback the Bureau received that its loan originator compensation requirements are too restrictive. The Bureau plans to examine whether it should (1) permit adjustments to a loan originator’s compensation in connection with originating state housing finance authority loans to facilitate the origination of such loans, and (2) permit creditors to decrease an originator’s compensation due to the originator’s error.
The second item the Bureau plans to add to its long-term regulatory agenda relates to feedback it received that the intersection of certain Regulation Z requirements and E-SIGN are too restrictive for consumers applying for credit cards electronically and for consumers willing, or preferring, to only receive information electronically. The Bureau is considering a rulemaking to address “a range of issues at the intersection of E-SIGN and Regulation Z with regard to credit cards.” Noting that similar concerns about the effect of E-SIGN were raised with respect to other consumer financial products and services including checking accounts, the Bureau states that it anticipates what it learns in the credit card context may assist it in assessing whether there are similar concerns with other products and services that may be appropriate to address in future rulemakings.
In addition to debt collection, other current rulemakings listed in the agenda are:
- Payday Rule. In February 2019, the Bureau issued a proposal to rescind the ability to repay provisions of its final payday/auto title/high-rate installment loan rule. The agenda estimates issuance of a final rule in April 2020.
- Business lending data (Dodd-Frank Section 1071). Section 1071 amended the ECOA to require financial institutions to collect and maintain certain data in connection with credit applications made by women- or minority-owned businesses and small businesses. Such data includes the race, sex, and ethnicity of the principal owners of the business. The Bureau held a symposium on Section 1071 last month. No timetable for rulemaking is provided in the agenda. However, the CFPB discussed its rulemaking plans in its cross-motion for summary judgment filed earlier this month in the lawsuit brought by the California Reinvestment Coalition, the National Association for Latino Community Asset Builders, and two individual small business owners seeking a declaration that the CFPB’s failure to issue regulations implementing Section 1071 violates the Administrative Procedure Act and requiring the CFPB to promptly issue such regulations. The Bureau stated that it “intends to complete its internal policymaking process in the next six months,” and within six months thereafter (estimated to be by next November), it “expects to release a detailed outline of the proposals under consideration” to be followed by a report issued by a SBREFA panel “within two months of being officially convened.” It notes, however, that because “the Bureau cannot predict the nature and extent of the comments it will receive in connection with the SBREFA process, or that it will receive in response to a notice of proposed rulemaking…the Bureau’s plan does not yet include intended dates for the issuance of a proposed or final rule.”
- PACE financing. In March 2019, the CFPB issued an advance notice of proposed rulemaking to solicit information on Property Assessed Clean Energy (PACE) financing. The agenda estimates that pre-rule activity will occur in December 2019 to address
- Qualified mortgages. The Bureau estimates action in December 2019 in connection with the scheduled expiration of the temporary GSE QM category.
- HMDA. In May 2019, the CFPB issued a proposed HMDA rule concerning the volume threshold that triggers reporting of open-end credit lines and closed-end mortgage loans. Last month, the Bureau issued a final rule concerning an extension of the temporary threshold for open-end credit lines. It estimates that it will issue and another final rule in March 2020 concerning the permanent thresholds for both open-end credit lines and closed-end mortgage loans.
In addition to loan originator compensation and E-SIGN requirements, other long-term agenda items (for which no time estimates for further action are given) include:
- Abusive Acts and Practices. The Bureau held a symposium in June 2019 to inform its next steps regarding a possible rulemaking to clarify the meaning of “abusive.”
- Inherited Regulations. These are the existing regulations that the CFPB inherited from other agencies through the transfer of authorities under the Dodd-Frank Act. The CFPB indicates that it expects to focus its initial review on the subparts of Regulation Z that implement TILA with respect to open-end credit and credit cards in particular. By way of example, the CFPB states that it expects to consider adjusting rules concerning the database of credit card agreements it is required to maintain by the CARD Act “to reduce [the] burden on issuers that submit credit card agreements to the Bureau and make the database more useful for consumers and the general public.” The CFPB states it may launch additional projects after reviewing the responses it received to its RFIs on the inherited regulations and rules issued by the CFPB.
- Consumer Access to Financial Records. In November 2016, the CFPB issued a RFI about market practices related to consumer access to financial information. The Bureau will continue to monitor market developments and evaluate possible policy responses to issues identified, including potential rulemaking. Possible topics the Bureau might consider include specific acts or practices and consumer disclosures. In addition, the Bureau plans to consider “whether clarifications or adjustments are necessary with respect to existing regulatory structures that may be implicated by current and potential developments in this area.” The Bureau expects to hold a symposium on consumer-authorized financial data sharing in 2020.
The Bureau’s regulatory priorities could change significantly if the U.S. Supreme Court rules in Seila Law that the Dodd-Frank Act provision that allows the President to remove the Bureau’s Director only “for cause” is unconstitutional and the appropriate remedy is to sever that provision. Such a decision would allow a Democratic President, if elected in 2020, to remove Director Kraninger without cause.