The CFPB has published its Spring 2022 rulemaking agenda as part of the Spring 2022 Unified Agenda of Federal Regulatory and Deregulatory Actions. The agenda’s preamble indicates that the information in the agenda is current as of April 1, 2022 and identifies the regulatory matters that the Bureau “reasonably anticipates having under consideration during the period from June 1, 2022 to May 31, 2023.
Perhaps the most noteworthy aspect of the agenda is its brevity. Only five items are listed as active rulemakings and there are no long-term actions. The preamble to the CFPB’s Fall 2021 rulemaking agenda, which represented the CFPB’s first rulemaking agenda under Director Chopra, indicated that it was not necessarily reflective of his priorities. It stated that “[t]he 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.” The small number of active rulemakings listed on the Spring 2022 agenda, coupled with the absence of any long-term actions, appears to lend strong support to the view of many observers that Director Chopra intends to use supervision and enforcement as the primary vehicles for furthering his priorities rather than rulemaking.
Among the potential areas of rulemaking absent from the new agenda are any “larger participant” rulemakings and rulemakings concerning overdrafts, small-dollar lending, debt collection, or arbitration. Even the two items that appeared as long-term actions in the Fall 2021 agenda, artificial intelligence and mortgage servicing, no longer appear in the Spring 2022 agenda. In addition, in a blog post published last month, Director Chopra indicated that the CFPB was looking at using its authority to issue rules regarding the registration of nonbanks, the CARD Act (Regulation Z) rules establishing safe harbors for credit card late charges, and the Regulation Z qualified mortgage rules. Although the agenda is current only as of April 1 and the CFPB issued its ANPR on late fees last month, it is surprising that none of these items appear even as long-term actions in the agenda.
The Spring 2022 agenda designated two rulemakings to be in the “final rule stage.” In addition to the Bureau’s rulemaking concerning the reporting of adverse information on survivors of human trafficking by consumer reporting agencies finalized last month, the other “final rule stage” item is the rulemaking on “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 small businesses, including women- or minority-owned small businesses. The Bureau issued a NPRM in August 2021 and the comment period ended on January 6, 2022. The agenda indicates that the Bureau estimates issuance of a final rule in March 2023.
The two items designated in the Spring 2022 agenda to be in the “proposed rule stage” are:
- 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 released a SBREFA outline in February 2022 and estimates in the agenda that the agencies will issue an NPRM in December 2022.
- Property Assessed Clean Energy Financing. In March 2019, the CFPB issued an ANPR to extend TILA ability-to-repay requirements to Property Assessed Clean Energy transactions. The Bureau gives a May 2023 estimate in the agenda for issuance of a NPRM.
The only item designated in the Spring 2022 agenda to be in the “pre-rule stage” is “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 November 2022 date for issuance of a SBREFA outline.
Director Chopra has demonstrated a proclivity toward using other types of pronouncements to create binding law without characterizing them as “rules” for purposes of the Administrative Procedures Act. A good example would be the fairly recent update to the UDAAP section of the CFPB’s Supervision and Examination Manual to include discrimination in connection with non-credit products and services as an unfair act or practice, including both intentional discrimination and discrimination resulting from the use of disparate impact. We suggest that the CFPB include items like this in their rulemaking agenda which are as impactful, if not more impactful, than some of the rules that it did include.