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Financial Services Law Insights and Observations

CFPB finalizes Section 1071 rule on small business lending data

Agency Rule-Making & Guidance Federal Issues CFPB Small Business Lending Section 1071 Dodd-Frank

Agency Rule-Making & Guidance

On March 30, the CFPB released its final rule implementing Section 1071 of the Dodd-Frank Act. Consistent with Section 1071, the final rule will require financial institutions to collect and provide to the Bureau data on lending to small businesses, defined as an entity with gross revenue under $5 million in its last fiscal year, which the Bureau will ultimately publish. (See also an executive summary here.) 

As explained in a corresponding fact sheet, the final rule is intended to foster transparency and accountability by requiring financial institutions—both traditional banks and credit unions, as well as non-banks—to collect and disclose data about small business loan recipients’ race, ethnicity, and gender, as well as geographic information, lending decisions, and credit pricing. The credit application information will be compiled in a comprehensive, publicly available database to help policymakers, borrowers, and lenders better address economic development needs and adapt to future challenges. The final rule also contains a sample data collection form that lenders can, but are not required to, use to collect applicants’ demographic data, and while small businesses are given the option not to provide this information, lenders must not discourage applicants from supplying this data (as explained in more detail in an accompanying policy statement). The Bureau also released a report detailing user testing research used to learn about lenders’ likely experience in filling out the sample data collection form, as well as a report describing the agency’s methodology for estimating how many lenders will be required to report under the final rule and for producing cost estimates associated with implementing the final rule.

The final rule contains important changes from the proposed rule issued in September 2021 (covered by a Special Alert here). Explaining that these changes are designed to make the final rule more effective and easier to follow, the Bureau stated that larger lenders will be required to collect and report data earlier than small lenders. The reporting requirements begin once a lender originates at least 100 covered small business loans in each of the two prior calendar years—a threshold that “accounts for more than 95 percent of small-business loans by banks and credit unions,” the Bureau said in its press release, noting that it was raised from the originally proposed 25-loans-per-year threshold.

While the final rule is effective 90 days after publication in the Federal Register, lenders will follow a tiered compliance date structure:

  • Lenders that originate at least 2,500 covered small business loans in both 2022 and 2023, must begin collecting data on October 1, 2024.
  • Lenders that originate at least 500 covered small business loans in both 2022 and 2023, must begin collecting data on April 1, 2025.
  • Lenders that originate at least 100 covered small business loans in both 2022 and 2023 must begin collecting data on January 1, 2026.
  • Lenders that did not originate at least 100 covered small business loans in both 2022 and 2023, but subsequently originated at least 100 transactions in two consecutive calendar years may begin collecting data no earlier than January 1, 2026.
  • Lenders that originate between 100 and 500 small business loans in both 2024 and 2025, must begin collecting data on January 1, 2026.

Other changes from the proposal include allowing applicants to self-identify demographic information, including race and ethnicity, rather than requiring loan officers to make the determination. The final rule also now includes an exclusion for mortgage loans that must be reported under HMDA, and suggests that under the federal regulators’ forthcoming Community Reinvestment Act (CRA) reporting requirements, data submitted under the Bureau’s final rule will satisfy relevant CRA requirements. Additionally, financial institutions and other third parties will be allowed to develop services and technologies to assist lenders with collecting and reporting data. The Bureau noted that it is working on a supplementary proposal that would, if finalized, give more compliance time for small lenders that are already successful in meeting the needs of the local communities they serve.

CFPB Director Rohit Chopra commented that the final rule’s impact “will be in the comprehensive data that it produces, which can be used by lenders, borrowers, and the broader public to achieve better credit outcomes for small businesses and communities across the country.”