New management at the CFPB plans fewer rulemakings, according to its spring 2018 regulatory agenda, the first submitted by Acting Director Mick Mulvaney.
Why It Matters: Citing interim leadership pending the appointment and confirmation of a permanent director, CFPB leadership is prioritizing, during the coming months: meeting specific statutory responsibilities, continuing selected rulemakings that were already under way, and reconsidering two regulations issued under the prior leadership.
The active agenda includes news on movement in rulemakings for mortgage, debt collection, small dollar lending, and other areas. But some rulemakings have been delayed. The delay includes future "larger participant" rulemakings for potentially subjecting personal loans, including consumer installment loans, and vehicle title loans for purposes of supervision. The CFPB also had been in the early stages of considering whether rules to require registration of those or other non-depository lenders would facilitate supervision.
What's on the Active Agenda:
- Mortgage – The CFPB is conducting follow-up rulemakings to address issues that have arisen during the process of implementing various mortgage requirements under the Dodd-Frank Act.
- Business Lending Data/Fair Lending – The CFPB is working to implement section 1071 of the Dodd-Frank Act, which amends the Equal Credit Opportunity Act to require financial institutions to collect, report, and make public certain information concerning credit applications made by women-owned, minority-owned, and small businesses.
- Debt Collection – Since 2013 the CFPB has engaged in research and pre-rulemaking activities regarding the debt collection market, which continues to be a top source of complaints to the CFPB. The CFPB now says it's preparing a proposed rule focused on Fair Debt Collection Practices Act (FDCPA) collectors that may address such issues as communication practices and consumer disclosures, which it expects to unveil in March 2019.
- Small Dollar Lending (Reconsideration) – The CFPB announced in January 2018 that it intends to engage in a rulemaking to reconsider a 2017 rule, "Payday, Vehicle Title, and Certain High-Cost Installment Loans." Most provisions of the rule would not require compliance until August 2019. The agenda claims a notice of proposed rulemaking is expected in February 2019.
- Amendments Relating to Disclosure of Records – This rule includes procedures used by the public to obtain information from the CFPB under the Freedom of Information Act and the Privacy Act of 1974, and in legal proceedings. It also addresses the protection and disclosure of confidential information that the CFPB obtains in connection with the exercise of its authorities under federal consumer financial law. The agenda claims a final rule is expected in March 2019.
- GLBA Privacy Notices – Amendments to GLBA provide that financial institutions are no longer required to provide annual privacy notices as long as: (1) They have not changed their privacy policies since the last time their customers received a privacy notice, and (2) they only share customers' financial information with others in a manner that is exempt from notice and opt-out requirements under GLBA. The CFPB issued a proposal in July 2016, to implement the reduced requirements in Regulation P, which requires, among other things, that financial institutions provide an annual notice describing their privacy policies and practices to their customers. The agenda claims a final rule is expected in June 2018.
- The Expedited Funds Availability Act (Regulation CC) – The Expedited Funds Availability Act (EFA Act), implemented by Regulation CC, governs the availability of funds after a check deposit and check collection and return processes. The CFPB will work with the Federal Reserve Board to issue jointly a proposal for implementation of a statutory requirement to adjust for inflation the dollar amounts in the EFA Act.
- HMDA – The CFPB announced in December 2017 that it intends to open a rulemaking to reconsider various aspects of a 2015 final rule that amended regulations implementing the Home Mortgage Disclosure Act. The reconsideration could involve such issues as the institutional and transactional coverage tests and the rule's discretionary data points.
Rulemakings That Are Delayed:
- Rulemakings Moved to Long-Term Status – Six rulemakings were moved to the long-term agenda:
- Rulemakings Moved to Inactive Status – Six rulemakings are now listed as "inactive." According to the CFPB, the expectation is that "final decisions on whether and when to proceed with such projects will be made by the Bureau's next permanent director."
- Alternative Mortgage Transaction Parity (Regulation D)
- Supervision of Larger Participants in Markets for Personal Loans
- Consumer Financial Civil Penalty Fund
- Overdraft Services
- Defining Larger Participants in Certain Consumer Financial Product and Service Markets
- Student Loan Servicing
Backdrop: Mulvaney's CFPB is in the process of overhauling virtually all aspects of the CFPB, which has significant rulemaking authority. As part of the overhaul, the CFPB recently launched "a call for evidence" to gain feedback on the function of the CFPB. As part of that initiative, the CFPB is seeking public feedback through a number of Requests for Information with respect to the regulations that the CFPB inherited from other agencies, as well as regulations that the Bureau itself promulgated and issued. Future agendas will take into account the feedback received through the call for evidence and the assessment projects, to identify areas in which issuing, modifying, or eliminating rules may be appropriate to achieving strategic goals and objectives. See Venable's CFPB Rulemaking Tracker.
This article is not intended to provide legal advice or opinion and should not be relied on as such. Legal advice can be provided only in response to a specific fact situation.