The CFPB has published its Fall 2021 rulemaking agenda as part of the Fall 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions. The agenda’s preamble indicates that the information in the agenda is current as of November 1, 2021 and identifies the regulatory matters that the Bureau “reasonably anticipates having under consideration during the period from November 1, 2021 to October 31, 2022.”
Although it represents the CFPB’s first rulemaking agenda under Director Chopra, the Bureau’s preamble indicates that the agenda is not necessarily reflective of his priorities. It states:
In this regulatory agenda the Bureau is prioritizing the continuation of certain ongoing rulemakings that further the Bureau’s consumer financial protection mission and help to advance the country’s economic recovery from the financial crisis related to the COVID-19 pandemic. The Bureau also continues to prioritize work that promotes racial and economic equity and supports underserved, vulnerable and marginalized communities by, among other things, facilitating access to fair and affordable credit. The Bureau expects that its new Director, will assess what regulatory actions the Bureau should prioritize to best further its consumer protection mission and the Spring 2022 Agenda will reflect his priorities.
Accordingly, the new agenda offers no meaningful new insights into the Bureau’s rulemaking plans in many key areas, such as whether it intends to engage in rulemaking to further identify “larger participants” or in UDAAP rulemaking to address overdrafts or other practices or whether it intends to revisit its rulemakings on small-dollar lending, debt collection, or arbitration. In its Spring 2018 rulemaking agenda under former Acting Director Mulvaney, the CFPB had classified as “inactive” certain rulemakings that were listed in previous agendas “in the expectation that final decisions whether and when to proceed with such projects will be made by the Bureau’s next permanent director.” The rulemakings classified as inactive included overdrafts, supervision of larger participants in markets for personal loans, and student loan servicing.
Those items remained inactive throughout former Director Kraninger’s tenure and continue to be listed as inactive for purposes of the Fall 2021 agenda. According to the Office of Information and Regulatory Affairs which publishes the Unified Agenda, “[a]gencies designate actions as “inactive” when they choose to take additional time to review a regulatory or deregulatory action but wish to preserve the regulatory identification number (RIN) and title for possible future use.” Thus, based on the CFPB’s comment in the preamble to the new agenda, unless the CFPB announces its plans sooner, it seems we will have to wait for the Spring 2022 agenda to learn whether the CFPB plans to restore any of these items to an active rulemaking status or to learn of any other new rulemaking plans.
Two items that appeared as “long-term actions” in the Spring 2021 rulemaking agenda issued under former Acting Director Uejio, artificial intelligence and mortgage servicing, continue to be listed in the Fall 2021 agenda as “long-term actions” for which no estimated dates for further action are given. The agenda indicates that the Bureau:
- Is considering whether to propose additional amendments to the mortgage servicing rules, including, for example, loss mitigation-related provisions to address actions required of servicers working with borrowers affected by natural disasters or other emergencies.
- Recognizes the importance of continuing to monitor the use of AI and identifying regulatory areas ripe for further action and, to that end, is evaluating whether rulemaking, a policy statement, or other Bureau action may become appropriate.
In addition to rulemaking to address the transition from LIBOR (which the Bureau finalized last week), the other rulemakings designated in the Fall 2021 agenda to be in the “proposed rule” stage are:
- Small Business Lending Data Under the ECOA. Section 1071 of Dodd-Frank amended the ECOA, subject to rules adopted by the Bureau, to require financial institutions to collect and report certain data in connection with credit applications made by made by small businesses, including women- or minority-owned small businesses. The Bureau issued a NPRM in August 2021 and comments on the NPRM are due by January 6, 2022.
- Amendments to FIRREA Concerning Automated Valuation Models. The Bureau is participating in interagency rulemaking with the Federal Reserve, OCC, FDIC, NCUA and FHFA to develop regulations to implement the amendments made by the Dodd-Frank Act to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) concerning appraisals. The FIRREA amendments require implementing regulations for quality control standards for automated valuation models. The Bureau estimates in the agenda that the agencies will issue an NPRM in June 2022.
The items designated in the Fall 2021 agenda to be in the “pre-rule” stage are:
- Consumer Access to Financial Information. Section 1033 of Dodd-Frank addresses consumers’ rights to access information about their own financial accounts, and permits the CFPB to prescribe rules concerning how a provider of consumer financial products or services must make a consumer’s account information available to him or her, “including information related to any transaction, or series of transactions, to the account including costs, charges, and usage data.” In November 2016, the Bureau issued a request for information about market practices related to consumer access to financial information and, after holding a symposium in February 2020, the Bureau issued an ANPR in connection with its Section 1033 rulemaking in November 2020. In the agenda, the Bureau gives an estimated April 2022 date for its next pre-rule steps.
- Property Assessed Clean Energy Financing. In March 2019, the CFPB issued an ANPR to extend Truth in Lending Act ability-to-repay requirements to PACE transactions. The Bureau gives an October 2022 estimate in the agenda for pre-rule activity.