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On April 18, the Congressional Research Service released an overview of digital wallet technology and related cybersecurity, data privacy and consumer protection policy considerations. Digital wallets are software applications that store payment or account details to facilitate traditional payments using bank and credit card details, and also cover transfers from consumers’ bank accounts to retailers and peer-to-peer and cryptocurrency transactions. One issue the report identified is that companies that offer digital wallets and payment companies often collect information about users and may share data with affiliates and nonaffiliates unless users opt out. As previously covered by InfoBytes, the CFPB is developing proposed rulemaking around sharing consumer financial data, but it remains unclear whether the rules would apply to digital wallet companies. The report also stressed that because funds stored on digital wallets are not deposits, digital wallets are generally not covered by deposit insurance. And while credit, debit, or prepaid cards stored on a mobile wallet are covered by the EFTA and TILA (and implementing Regulations E and Z), those statutes do not currently cover cryptocurrency wallets. The report explained that “[c]ryptocurrency transactions are not subject to Regulation E primarily because these are not bank products and also because cryptocurrencies are not typically used for consumer payments.”
On June 30, President Biden signed S.J. Res. 15, repealing the OCC’s “true lender” rule pursuant to the Congressional Review Act. Issued last year, the final rule amended 12 CFR Part 7 to state that a bank makes a loan when, as of the date of origination, it either (i) is named as the lender in the loan agreement, or (ii) funds the loan. The final rule also provided that if “one bank is named as the lender in the loan agreement and another bank funds the loan, the bank that is named as the lender in the loan agreement makes the loan.” (Covered by InfoBytes here.)
On June 24, the U.S. House passed S.J. Res. 15 by a vote of 218 - 208 to repeal the OCC’s “true lender” rule. As previously covered by InfoBytes, the U.S. Senate passed S.J. Res. 15 last month by vote of 52-47 to invoke the Congressional Review Act and provide for congressional disapproval and invalidation of the final rule. The measure now heads to President Biden who is expected to sign it. Issued last year, the final rule amended 12 CFR Part 7 to state that a bank makes a loan when, as of the date of origination, it either (i) is named as the lender in the loan agreement, or (ii) funds the loan. The final rule also clarified that if “one bank is named as the lender in the loan agreement and another bank funds the loan, the bank that is named as the lender in the loan agreement makes the loan.” (Covered by InfoBytes here.) Acting Comptroller of the Currency Michael Hsu issued a statement after the vote saying the OCC respects Congress’ role in reviewing regulations under the Congressional Review Act. He reaffirmed the OCC’s position that predatory lending has no place in the federal banking system and noted that moving forward the OCC “will consider policy options, consistent with the Congressional Review Act, that protect consumers while expanding financial inclusion.”
On May 19, the House Financial Services Committee held a hearing entitled “Oversight of Prudential Regulators: Ensuring the Safety, Soundness, Diversity, and Accountability of Depository Institutions.” Committee Chairwoman Maxine Waters (D-CA) opened the hearing by expressing her concerns about the “harmful deregulatory actions” taken by the previous administration’s appointees to “roll back key Dodd-Frank reforms and other consumer protections.” She noted, however, that she was pleased that the Senate is moving forward to reverse the OCC’s true lender rule and commented that she has asked House leadership to address the related Congressional Review Act resolution as soon as possible.
Fed Vice Chair for Supervision Randal K. Quarles provided an update on the Fed’s Covid-19 regulatory and supervisory efforts, noting that the Fed has “worked to align [the Fed’s] emergency actions with other relief efforts as the economic situation improves” and is maintaining or extending some measures to promote continued access to credit. When Congresswoman Velazquez inquired how government programs like the Paycheck Protection Program helped to stabilize businesses and improve the overall economy, Quarles answered, “We would have experienced a much deeper and more durable economic contraction, and would have had more lasting economic scarring with closed businesses and defaulting obligations  had those programs not been put in place.”
OCC Comptroller Michael Hsu discussed the agency’s increasing coordination with other federal and state regulators on fintech policy, in addition to OCC efforts to strengthen Community Reinvestment Act (CRA) regulations and address climate change. The OCC has been encouraging innovation, Hsu said, but added that his “broader concern is that these initiatives were not done in full coordination with all stakeholders. Nor do they appear to have been part of a broader strategy related to the regulatory perimeter.” In his written testimony, Hsu emphasized his concerns with providing charters to fintechs, noting that in doing so, it would “convey the benefits of banking without its responsibilities,” but also “that refusing to charter fintechs will encourage growth of another shadow banking system outside the reach of regulators.” Hsu expressed in his oral statement the importance of finding “a way to consider how fintechs and payment platforms fit into the banking system” and emphasized that it must be done in coordination with the FDIC, Fed, and the states. He also explained that “the regulatory community is taking a fragmented agency-by-agency approach to the technology-driven changes taking place today. At the OCC, the focus has been on encouraging responsible innovation. For instance, we updated the framework for chartering national banks and trust companies and interpreted crypto custody services as part of the business of banking.” When Congressman Bill Huizenga (R-MI) asked how the OCC planned to address the “true lender” rule, which would soften the regulations for national banks to sell loans to third parties, Hsu stated that the OCC originally intended to review the rule, but that after the Senate passed S.J.Res. 15 to invoke the Congressional Review Act and provide for congressional disapproval and invalidation of the rule (covered by InfoBytes here), the agency decided to leave it up to congressional deliberation and will monitor it instead.
FDIC Chairman Jelena McWilliams discussed, among other things, the FDIC’s policy of granting industrial loan company charters. As previously covered by Infobytes, the agency approved a final rule in December 2020 establishing certain conditions and supervisory standards for the parent companies of industrial banks and ILCs. McWilliams defended the FDIC’s new rule during the hearing, stating it “ensures that the parent company serves as a source of financial strength for the ILC while providing clarity about the FDIC's supervisory expectations of both the ILC and its parent company.”
NCUA Chairman Todd Harper also outlined agency measures taken in response to the pandemic. Among other things, Harper noted that the NCUA is supporting low-income credit unions through the Community Development Revolving Loan Fund and that the agency is working to strengthen its Consumer Financial Protection Program (CFPP) to ensure fair and equitable access to credit. During the hearing, Harper stated, “there is an increased emphasis on fair lending compliance, and agency staff are studying methods for improving consumer financial protection supervision for the largest credit unions not primarily supervised by the CFPP.”
On May 11, the U.S. Senate passed S.J. Res. 15 by a vote of 52 - 47 to invoke the Congressional Review Act and provide for congressional disapproval and invalidation of the OCC’s “true lender" rule. Issued last year, the final rule amended 12 CFR Part 7 to state that a bank makes a loan when, as of the date of origination, it either (i) is named as the lender in the loan agreement or (ii) funds the loan. The final rule also clarified that if “one bank is named as the lender in the loan agreement and another bank funds the loan, the bank that is named as the lender in the loan agreement makes the loan.” (Covered by InfoBytes here.) In applauding the passage of the resolution, Senator Chris Van Hollen (D-MD), who introduced S.J. Res. 15, stated that “strik[ing] down the ‘Rent-A-Bank’ rule will help prevent predatory lenders from ripping off consumers by charging loan-shark rates under deceptive terms.” He noted that the legislation has support from a broad array of stakeholder and consumer protection groups, including a bipartisan group of state attorneys generals and the Conference of State Bank Supervisors, as previously covered by InfoBytes here.
Ranking member of the Senate Banking Committee, Senator Pat Toomey (R-PA) countered, however, that “[w]ithout the rule, the secondary market for these loans would be disrupted, which, again, disproportionately harms lower-income borrowers.” He further added that “[v]oting in favor of the CRA is a direct assault on fintech. It will make it harder for Congress to legislate here. It will make it harder for regulators to issue guidance and rules that promote fintech. Courts will see it as Congress buying into the notion that fintechs are ‘predatory’ lending. And it will scare away state legislatures from promoting fintech.”
S.J. Res. 15 now heads to the House of Representatives for consideration.
On April 21, a coalition of 26 state attorneys general sent a letter urging Congress to exercise its authority under the Congressional Review Act (CRA) and rescind the OCC’s “True Lender Rule” in order to “safeguard states’ fundamental sovereign rights to protect their citizens from financial abuse.” As previously covered by InfoBytes, the OCC’s final rule amended 12 CFR Part 7 to state that a bank makes a loan when, as of the date of origination, it either (i) is named as the lender in the loan agreement or (ii) funds the loan. The final rule also clarified that if “one bank is named as the lender in the loan agreement and another bank funds the loan, the bank that is named as the lender in the loan agreement makes the loan.” In their letter, the AGs expressed concern that the final rule “establishes a simplistic standard to redefine the meaning of ‘true lender,’” enabling predatory lenders to “circumvent” state interest-rate caps through “rent-a-bank” schemes, which would in turn allow banks to act as lenders in name only while passing state law exemptions for banks to non-bank entities. The letter references a complaint filed by eight state AGs against the OCC in January challenging the final rule (covered by InfoBytes here) and argues that in finalizing the rule the OCC “acted in a manner contrary to centuries of case law [and] the OCC’s own prior interpretation of the law,” and seeks to preempt state usury law and “infringe on the States’ historical police powers and facilitate predatory lending.”
In March, both House and Senate Democrats introduced CRA resolutions (see H.J. Res. 35 and S.J. Res. 15) intended to provide for congressional disapproval and invalidation of the OCC’s final rule. The OCC responded on April 14, arguing that “disapproval of the rule would return bank lending relationships to the previous state of legal and regulatory uncertainty, which. . . adversely affects the function of secondary markets and restricts the availability of credit.” The OCC further stated that the final rule is intended to enhance the agency’s ability to supervise bank lending and “does not change bank’s authority to export interest rates” nor does it “permit national banks to charge whatever rate they like” as both federal and state-chartered banks are required to conform to applicable interest rate limits. “Disparities of interest rates from state to state result from differences in the state laws that impose these caps, not OCC rules or actions,” the OCC stressed, adding that “[s]tates retain the authority to set interest rates.” However, the Conference of State Bank Supervisors sent a letter to Congress in support of S.J. Res. 15, disagreeing with the OCC and noting that the final rule, if it stands, would “eviscerate the power of state interest rate caps and rid state regulators of the most effective tool to protect consumers from such predatory lending.”
On June 29, the U.S. House of Representatives approved resolution H.J. 90, along party lines, which would reverse the OCC’s final rule (covered by a Buckley Special Alert) to modernize the regulatory framework implementing the Community Reinvestment Act (CRA). As previously covered by InfoBytes, Chair of the House Financial Services Committee, Maxine Waters (D-CA) and Chair of the Subcommittee on Consumer Protection and Financial Institutions, Gregory Meeks (D-NY) introduced the resolution, with Waters criticizing the OCC’s decision to move forward with the rule “despite the Federal Reserve and the FDIC—the other regulatory agencies responsible for enforcing CRA—declining to join in the rulemaking.” While the resolution is unlikely to pass the Senate, the White House released a Statement of Administration Policy, which opposes the resolution and states that the President’s advisors will recommend he veto the action.
On June 11, Chair of the House Financial Services Committee, Maxine Waters (D-CA) and Chair of the Subcommittee on Consumer Protection and Financial Institutions, Gregory Meeks (D-NY), introduced a Congressional Review Act resolution to reverse the OCC’s final rule to modernize the regulatory framework implementing the Community Reinvestment Act (CRA). The OCC’s final rule (covered by a Buckley Special Alert), while technically effective October 1, provides for at least a 27-month transition period for compliance based on a bank’s size and business model. However, Waters criticized the OCC’s decision to move forward with the rule “despite the Federal Reserve and the FDIC—the other regulatory agencies responsible for enforcing CRA—declining to join in the rulemaking.” Waters argued that the final rule “will result in disinvestment in many low- and moderate-income communities,” with Meeks stating that the OCC’s decision to “put forward a rushed, incomplete rule. . .will harm the very communities the CRA is meant to support.”
On April 11, acting Director of the Office of Management and Budget (OMB), Russel Vought, sent a memorandum to the heads of all executive agencies announcing that on May 11, agencies will be required to submit all regulatory guidance materials to the Office of Information and Regulatory Affairs (OIRA) for review prior to publication. The memo asserts that the Congressional Review Act (CRA) “applies to more than just notice-and-comment rules; it also encompasses a wide range of other regulatory actions, including, inter alia, guidance documents, general statements of policy and interpretive rules” and therefore, agencies should not publish a regulatory action in the Federal Register without first submitting the document to OIRA to determine whether it is considered a “major rule” under the CRA. The CRA defines a “major rule” as one having (i) an annual effect on the economy of at least $100 million; (ii) a major increase in costs or prices for consumers, individual industries, or federal and state governments; or (iii) significant adverse effects on competition, employment, and U.S.-based enterprises. Should OIRA consider the regulatory action to be a “major rule,” the rule will be submitted to Congress with OIRA’s report and will not become effective sooner than 60 days after its submission. The memo instructs agencies to provide OIRA a quantitative analysis, which includes costs, benefits, and transfer impacts relative to a baseline, “when reasonably possible.” Additionally, the agency’s analysis should include whether the regulatory action would impose a disproportionate cost on a particular group or place a significant burden on the economy.
Trump signs legislation repealing CFPB auto guidance, Mulvaney praises action; CFPB to reexamine ECOA requirements
On May 21, President Trump signed resolution S.J. Res. 57, which repeals CFPB Bulletin 2013-02 on indirect auto lending and compliance with the Equal Credit Opportunity Act (ECOA). The president’s signature completes the disapproval process under the Congressional Review Act (CRA), which began after the Government Accountability Office (GAO) issued a letter in December 2017 to Senator Pat Toomey (R-Pa) stating that “the Bulletin is a general statement of policy and a rule” that is subject to override under the CRA. The Senate passed the disapproval measure in April and the House approved it in the beginning of May. (Previously covered by InfoBytes here.)
The repeal responds to concerns that the bulletin improperly attempted to regulate auto dealers, which the Dodd-Frank Act excluded from the Bureau’s authority. In a statement after the president’s signing, CFPB acting Director Mick Mulvaney praised the action and thanked the president and Congress for “reaffirming that the Bureau lacks the power to act outside of federal statutes.” He also stated that the repeal “clarifies that a number of Bureau guidance documents may be considered rules for purposes of the CRA, and therefore the Bureau must submit them for review by Congress. The Bureau welcomes such review, and will confer with Congressional staff and federal agency partners to identify appropriate documents for submission.”
Additionally, acting Director Mulvaney announced plans to reexamine the requirements of ECOA, “[g]iven a recent Supreme Court decision distinguishing between antidiscrimination statutes that refer to the consequences of actions and those that refer only to the intent of the actor.” Although the decision is not identified, it is likely the June 2015 Supreme Court decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which concluded that disparate impact claims are permitted under the Fair Housing Act but acknowledged some limitations on its application. (Covered by a Buckley Sandler Special Alert.)
- Buckley Webcast: Community Reinvestment Act modernization – For real this time?
- Jeremiah Buckley to moderate the discussion “CFPB’s new approach to discrimination: Invoking UDAAP” at an American University Washington College of Law Symposium
- Benjamin W. Hutten to discuss “Latest on AML regulations and impact of economic sanctions” at a Mortgage Bankers Association webinar