United States: CFPB's Spring 2021 Rulemaking Agenda Discards Kraninger-era Rulemaking Plans

The CFPB has published its  Spring 2021 rulemaking agenda as part of the Spring 2021 Unified Agenda of Federal Regulatory and Deregulatory Actions.  It represents the "new CFPB's" first rulemaking agenda during the Biden Administration.  The agenda's preamble indicates that the information in the agenda is current as of April 26, 2021 and identifies the regulatory matters that the Bureau "reasonably anticipates having under consideration during the period from May 1, 2021 to April 30, 2021."

Three significant items that were listed as "long-term actions" in the Bureau's Fall 2020 rulemaking agenda, the last agenda issued under former Director Kraninger, no longer appear in the Spring 2021 agenda.  First, there is no longer any reference to possible rulemaking to define the meaning of "abusive" under Dodd-Frank.  Second, there is no longer any reference to possible rulemaking on payday loan disclosures.  Third, the new agenda contains no reference to a possible rulemaking to address concerns that the Bureau's current rule on loan originator compensation may be unduly restrictive.

The new agenda lists the following two items as in the "final rule stage":

• Debt collection.  In April 2021, the CFPB issued a proposal that would extend by 60 days the effective date of Part I and Part II of its final debt collection rule issued in, respectively, October 2020 and December 2020.  The comment period closed on May 19, 2021.  The debt collection rule (Parts I and II) is scheduled to take effect on November 30, 2021.  The CFPB's proposal would extend the effective date to January 29, 2022. The Bureau indicates in the agenda that its next action will be a final rule as to the effective date.
• LIBOR.  In June 2020, the CFPB proposed amendments to Regulation Z to address the discontinuation of the London Inter-Bank Offered Rate (LIBOR) that is currently used by many creditors as the index for calculating the interest rate on credit cards and other variable-rate consumer credit products.  In 2017, the United Kingdom's Financial Conduct Authority, the regulator that oversees the panel of banks on whose submissions LIBOR is based, announced that it would discontinue LIBOR sometime after 2021.  The comment period closed on August 4, 2020. In the agenda, the Bureau indicates that it expects to issue a final rule in January 2022.

The items identified in the agenda as in the "proposed rule stage" are:

• Business Lending Data (Regulation B).  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 women- or minority-owned businesses and small businesses.  The Bureau issued a SBREFA outline in September 2020 and convened a SBREFA panel in October 2020.  In December 2020, the Bureau released the final report of the SBREFA panel.  The Bureau's next step will be the issuance of a Notice of Proposed Rulemaking (NPRM) for which the agenda gives a September 2021 estimated date.
• Amendments to FIRREA Concerning Appraisals (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 December 2021.
• Mortgage Servicing COVID-19 Relief.  In April 2021, the Bureau issued an NRPM to amend Regulation X in various ways to address the COVID-19 national emergency.  The proposal would amend aspects of the early intervention requirements, loss mitigation procedures, and foreclosure protections.  The comment period on the NPRM closed on May 10, 2021 and the Bureau estimates in the agenda that it will issue a final rule in July 2021.

The items identified in the agenda as 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 (RFI) about market practices related to consumer access to financial information and, after holding a symposium in February 2020, the Bureau issued an Advance Notice of Proposed Rulemaking in connection with its Section 1033 rulemaking in November 2021.  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 Advance Notice of Proposed Rulemaking to extend Truth in Lending Act ability-to-repay requirements to PACE transactions.  The Bureau gives an October 2021 estimate in the agenda for pre-rule activity.

The items identified in the agenda as "long-term actions" for which no estimated dates for further action are given are:

• Mortgage Servicing Rules.  The Bureau is considering whether to propose additional amendments to the servicing rules, including, for example, loss mitigation-related provisions.
• Artificial Intelligence.  In February 2017, the CFPB issued an RFI concerning the use of alternative data and modeling techniques in the credit process.  The Bureau states that it recognizes the importance of continuing to monitor the use of AI and machine learning and is evaluating "whether rulemaking, a policy statement, or other Bureau action may become appropriate."

Pursuant to Dodd-Frank Section 1022(d), the Bureau is required to conduct an assessment of each significant rule or order it adopts under a Federal consumer financial law and publish a report of each assessment not later than 5 years after the rule's or order's effective date.   In connection with the release of the Spring 2021 agenda,  the CFPB announced that it will assess the October 2015 significant amendments to Regulation C under the Home Mortgage Disclosure Act.

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