The CFPB has released its Spring 2023 rulemaking agenda as part of the Spring 2023 Unified Agenda of Federal Regulatory and Deregulatory Actions. The agenda’s preamble indicates that “[t]he Bureau reasonably anticipates having the regulatory matters identified [in the agenda] under consideration during the period from June 1, 2023 to May 31, 2024.”
The new agenda includes one new rulemaking that did not appear on the Fall 2022 agenda—a rule to supervise nonbank larger participants in the market for consumer payments. The agenda gives a July 2023 estimate for issuance of a notice of proposed rulemaking. A persistent CFPB theme under Director Chopra’s leadership has been concerns about the entry of big tech companies into financial services, particularly in connection with payments, and the companies’ ability to collect and monetize data about consumers. In October 2021, the CFPB sent orders to six large technology platforms offering payment services that directed them to provide information to the Bureau about their payments products and services and their collection and use of personal payments data. It has not yet issued a report on its findings from the monitoring orders. We assume the CFPB is continuing to consider petitions urging it to engage in rulemaking to define larger participants in the market for personal loans and in the market for data aggregation services. Other potential significant areas of rulemaking not included in the agenda are buy-now-pay-later, earned wage access, and liability for peer-to-peer payment fraud.
The other ongoing rulemakings listed in the agenda are:
- Registration of nonbanks subject to certain enforcement orders. In December 2022, the CFPB issued a proposed rule that would require certain “covered nonbanks” to register with and submit information to the CFPB when they become subject to certain orders from local, state, or federal agencies and courts involving violations of certain consumer protection laws. The Bureau gives a November 2023 estimate for issuance of a final rule.
- Registration of nonbanks regarding standard form contract terms and conditions. In January 2023, the CFPB issued a proposed rule to establish a system for the registration of nonbanks subject to CFPB supervision that use “certain terms or conditions that seek to waive consumer rights or other legal protections or limit the ability of consumers to enforce their rights,” with arbitration provisions among the terms that would trigger registration. The Bureau gives a November 2023 estimate for issuance of a final rule.
- Fees for insufficient funds. The CFPB states in the agenda that “lately some large financial institutions have voluntarily stopped charging [NSF] fees.” Despite this acknowledgment and recent CFPB reports showing a significant decline in NSF and overdraft fee revenues, the agenda indicates that the Bureau is continuing to consider new rules regarding NSF fees. The Bureau designates the rulemaking to be in the “prerule stage” and estimates pre-rule activity in November 2023.
- Overdraft fees. The agenda acknowledges neither that many banks have changed their overdraft practices nor the recent CFPB reports showing a significant decline in overdraft revenues. It states only that the CFPB is continuing to consider whether to propose amendments to the Regulation Z overdraft rules. The Bureau designates the rulemaking to be in the “prerule stage” and estimates pre-rule activity in November 2023.
- Credit card penalty fees. In May 2023, the CFPB proposed significant amendments to the Regulation Z rules on credit card late fees, including substantially reducing the safe harbor late fee amounts that card issuers can charge and eliminating annual inflation adjustments. The Bureau gives an October 2023 estimate for issuance of a final rule.
- Personal Financial Data Rights (previously titled “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, issued a SBREFA outline in October 2022, and issued a SBREFA report in March 2023. The CFPB estimates that it will issue a proposed rule in October 2023.
- Fair Credit Reporting Act. The agenda item states only that the Bureau is considering whether to amend Regulation V (which implements portions of the FCRA) but does not indicate the nature of the amendments that the CFPB is considering. The Bureau designates the rulemaking to be in the “prerule stage” and estimates pre-rule activity in November 2023.
- Amendments to FIRREA Concerning Automated Valuation Models. In June 2023, the Bureau, together with the federal banking agencies and the FHFA, issued a proposed rule on automated valuation models. The Bureau does not provide an estimated date for issuance of a final rule.
- Property Assessed Clean Energy Financing. In May 2023, the CFPB issued a proposed rule that would extend TILA ability-to-repay requirements to PACE transactions. The Bureau does not provide an estimated date for issuance of a final rule.
It is a virtual certainty that the CFPB’s final rule on credit card late fees will face a legal challenge and its final registry rules are very likely to face legal challenges. Moreover, the validity of all CFPB rules could be in jeopardy if the U.S. Supreme Court rules in the CFSA case that the CFPB’s funding mechanism is unconstitutional.