CFPB Lays Out Upcoming Rulemaking Agenda
In its semiannual regulatory agenda, the CFPB identified the rules it will be considering from July 2024 to June 2025.
The agenda is organized under five sections: pre-rule stage; proposed rule stage; final rule stage; long-term actions; and completed actions.
The CFPB's active rulemaking plans in the proposed rule stage include: (i) "Fair Credit Reporting Act Rulemaking," (ii) "Mortgage Servicing," (iii) "Financial Data Transparency Act" and (iv) "Regulation AA." In the final rule stage, CFPB rulemakings include: (i) "Overdraft Lending: Very Large Financial Institutions," (ii) "Amendments to FIRREA Concerning Automative Valuation Models," (iii) "Required Rulemaking on Personal Financial Data Rights," (iv) "Property Assessed Clean Energy Financing," (v) "Registry of Nonbank Covered Persons Subject to Certain Agency and Court Orders," (vi) "Registry of Supervised Nonbank That Use Form Contracts to Impose Terms And Conditions That Seek To Waive Or Limit Consumer Legal Protections," (vii) "Fees for Instantaneously Declined Transactions" and (viii) "Defining Larger Participants of a Market for General-Use Digital Consumer Payment Applications."
The CFPB also published completed rulemakings including "Credit Card Penalty Fees."
Commentary
In the updated rulemaking agenda, of note is the CFPB's plan to issue a final rule creating a "Registry of Supervised Nonbanks that Use Form Contracts to Impose Terms And Conditions that Seek To Waive Or Limit Consumer Legal Protections." In January 2023, the CFPB issued a proposed rule that would require certain supervised nonbank entities "to register with the CFPB and provide information about their use of certain terms and conditions in standard-form contracts for consumer financial products or services that seek to waive or limit consumer rights or legal protections." On June 4, 2024, the CFPB issued a circular warning against the use of unlawful or unenforceable terms and conditions in contracts for consumer financial products or services.
Many expected that the CFPB would drop its plans to finalize the Registry once it published this circular, but this latest rulemaking agenda tells us that that is not the case. The combination of the upcoming Registry final rule and the circular will likely pose substantial compliance challenges for not only supervised non-banks, but for all those entities that contract with consumers in connection with the offering of consumer financial products or services.