Accompanying the July 21, 2011, debut of the Bureau of Consumer Financial Protection (CFPB) was the CFPB’s publication in the Federal Register of the final list of the rules it will enforce.
The Dodd-Frank Wall Street Reform and Consumer Protection Act required the CFPB to identify both rules and orders of the seven federal agencies from whom authority was transferred to the CFPB effective July 21. The CFPB’s final list, consistent with its initial list published for comment, did not contain any orders.
Noteworthy aspects of the final list include the following:
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The final list includes two rules that were not on the initial list: the Federal Trade Commission’s (FTC) Mortgage Acts and Practices-Advertising rule and the rule of the Department of Housing and Urban Development implementing the Secure and Fair Enforcement for Mortgage Licensing Act of 2009 (which takes effect on August 29, 2011).
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The initial list raised questions about the ability of financial institutions to continue to rely on guidance issued before July 21, 2011, by the transferor agencies. Responding to those questions in its discussion accompanying the final list, the CFPB indicated that, pending further action, it would follow “official commentary, guidance and policy statements” for laws “with respect to which rulemaking authority” is transferred to the CFPB. However, as to “other written guidance, interpretations, and policy statements,” it will give those documents “due consideration … in light of all relevant factors.” Those factors include “the formality of the document in question and the weight afforded it by the issuing agency” and “the persuasiveness of the document.” The CFPB’s final list includes FTC rules under the FTC Act. Because no rulemaking authority under the FTC Act is transferred to the CFPB, it is unclear to what extent the CFPB intends to follow any FTC official guidance when enforcing FTC Act rules.
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The CFPB notes that the final list does not include any rules and orders enforceable by the CFPB that are issued by agencies other than the seven agencies from whom authority is transferred.
The CFPB makes clear that, pending publication (in Chapter X of Title 12 of the Code of Federal Regulations) later this year of the rules for which rulemaking authority transfers to the CFPB, those rules remain in effect. During this interim period, the CFPB may also post guidance on its Web site relating to compliance with existing regulations.
Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). For more information, please contact group Chair Alan S. Kaplinsky, 215.864.8544 or kaplinsky@ballardspahr.com; Vice Chair Jeremy T. Rosenblum, 215.864.8505 or rosenblum@ballardspahr.com; John L. Culhane, Jr., 215.864.8535 or culhane@ballardspahr.com; Keith R. Fisher, 202.661.2284 or fisherk@ballardspahr.com; Barbara S. Mishkin, 215.864.8528 or mishkinb@ballardspahr.com; or Mark J. Furletti, 215.864.8138 or furlettim@ballardspahr.com.
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