BCFP Releases Fall 2018 Rulemaking Agenda
On October 17, 2018, the Bureau of Consumer Financial Protection (“BCFP” or the “Bureau”) announced the release of its Fall 2018 semiannual update of its rulemaking agenda, which is included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (the “Unified Agenda”), published by the Office of Information and Regulatory Affairs (“OIRA”). The BCFP’s updated rulemaking agenda is available on the OIRA web site. The agenda lists twelve rulemakings in the prerule, proposed rule, and final rule stages and another eight potential rulemaking in the long-term actions stage. These items include a number of new and revised rulemaking items, reflecting recent legislative enactments and evolving Bureau priorities.
In the proposed rule category, the agenda’s highlights include the expected issuances of Notices of Proposed Rulemaking (“NPRMs”) that would: (1) reconsider the final rule governing payday, vehicle title, and certain high-cost installment loans; (2) amend Regulation C, which implements the Home Mortgage Disclosure Act (“HMDA”), in part to clarify certain HMDA exemptions created by the Economic Growth, Regulatory Relief, and Consumer Protection Act (“EGRRCPA”); and (3) consider new debt collection rules under the Fair Debt Collection Practices Act. The Bureau expects to issue the first NPRM by early 2019 and the second and third NPRMs no later than spring 2019.
New items in the prerule stage include rulemakings mandated by EGRRCPA. One rule would exempt certain creditors with assets of $10 billion or less from certain escrow account requirements for higher priced mortgage loans. Another rule would set standards for assessing a consumer’s ability to repay Property Assessed Clean Energy financing for home improvements. For the latter, the Bureau expects to issue an Advanced Notice of Proposed Rulemaking (“ANPR”) or a Request for Information (“RFI”) in February 2019, after completing an assessment of the agency’s rules for assessing a consumer’s ability to repay a mortgage loan, scheduled for completion in January 2019. The agenda also adds, at the prerule stage, a rulemaking to address the public release of HMDA data, which would build on forthcoming policy guidance expected later this year that will govern the disclosure of 2018 HMDA data in 2019.
Longer-term actions also include several noteworthy items. Significantly, the BCFP is considering whether to pursue a rulemaking “or other activities” to more concretely define “abusiveness” under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). The Bureau has delayed a rulemaking, required by Dodd-Frank Act amendments to the Equal Credit Opportunity Act (“ECOA”), to require financial institutions to collect, report, and make public certain data regarding credit applications from women-owned, minority-owned, and small businesses. The rule is now listed as a longer-term action. The Bureau also reaffirmed that it is “considering future activity” regarding disparate impact discrimination claims under the ECOA. Other longer-term action items of note include possible consumer reporting rules under the Fair Credit Reporting Act, rules governing consumer access to financial records under Section 1033 of the Dodd-Frank Act, and the modernization of Regulation E to reflect new payments and fund transfer technologies and business practices.