[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43569-43571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18426]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

[Docket No. CFPB-HQ-2011-1]

12 CFR Chapter X


Identification of Enforceable Rules and Orders

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Final list.

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SUMMARY: Section 1063(i) of the Consumer Financial Protection Act of 
2010 (``Act'')\1\ requires the Bureau of Consumer Financial Protection 
(``CFPB'') to publish in the Federal Register not later than the 
designated transfer date a list of the rules and orders that will be 
enforced by the CFPB. This document sets forth that list.
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    \1\ The Act is Title X of the Dodd-Frank Wall Street Reform and 
Consumer Protection Act, Public Law 111-203.

FOR FURTHER INFORMATION CONTACT: Monica Jackson, Office of the 
Executive Secretary, Bureau of Consumer Financial Protection, 1801 L 
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Street, NW., Washington, DC 20036, 202-435-7275.

SUPPLEMENTARY INFORMATION:

I. Background

    Under the Act, on the designated transfer date, July 21, 2011,\2\ 
certain consumer financial protection authorities will transfer from 
seven transferor agencies \3\ to the CFPB, and the CFPB will also 
assume certain new authorities. Subject to the limitations and other 
provisions of the Act, the CFPB will be authorized to enforce, inter 
alia, rules and orders issued by the transferor agencies under the 
enumerated consumer laws.\4\ The CFPB will also have authority to 
enforce in some circumstances the Federal Trade Commission's 
Telemarketing Sales Rule and its rules under the Federal Trade 
Commission Act, although the Federal Trade Commission will retain full 
authority over these rules.\5\
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    \2\ The Secretary of the Treasury designated this date pursuant 
to section 1062 of the Act. See 75 FR 57252-02, Sept. 20, 2010.
    \3\ Section 1061(a)(2) of the Act defines the terms ``transferor 
agency'' and ``transferor agencies'' to mean, respectively, ``(A) 
the Board of Governors (and any Federal reserve bank, as context 
requires), the Federal Deposit Insurance Corporation, the Federal 
Trade Commission, the National Credit Union Administration, the 
Office of the Comptroller of the Currency, the Office of Thrift 
Supervision, and the Department of Housing and Urban Development, 
and the heads of those agencies, and (B) the agencies listed in 
subparagraph (A) collectively.''
    \4\ ``Enumerated consumer laws'' is defined in section 1002(12) 
of the Act and section 1400(b) of the Mortgage Reform and Anti-
Predatory Lending Act, Tit. XIV, Public Law 111-203.
    \5\ These rules are listed as items 1 and 6 through 12 in 
section F (``Federal Trade Commission'') of the list below.
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    Section 1063(i) of the Act provides that, not later than the 
designated transfer date, the CFPB ``(1) shall, after consultation with 
the head of each transferor agency, identify the rules and orders that 
will be enforced by the [CFPB]; and (2) shall publish a list of such 
rules and orders in the Federal Register.'' The CFPB consulted with 
each transferor agency pursuant to section 1063(i) and developed an 
initial list of rules. After consultation, neither the transferor 
agencies nor the CFPB identified any orders for inclusion in the 
list.\6\
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    \6\ Section 1063(i) requires the CFPB to list only the rules and 
orders issued by transferor agencies that will be enforceable by the 
CFPB. The list contained in this notice therefore does not include 
any rules and orders issued by non-transferor agencies that will be 
enforceable by the CFPB.

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[[Page 43570]]

    Because the list under section 1063(i) reflects the CFPB's 
interpretation of its authority under the Act and relates to agency 
organization, procedure, or practice, the list is not subject to the 
notice-and-comment requirements of the Administrative Procedure Act 
(``APA'') (5 U.S.C. 551 et seq.).\7\ Nevertheless, on May 31, 2011, the 
CFPB published a Notice containing an initial list in the Federal 
Register (``May 31 Notice'') and requested public comment.\8\
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    \7\ Because publication of the list under section 1063(i) is not 
subject to the APA's notice-and-comment requirements, a regulatory 
flexibility analysis is not required under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).
    \8\ 76 FR 31222, May 31, 2011. Section 1066 of the Act grants 
the Secretary of the Treasury interim authority to perform certain 
functions of the CFPB. Pursuant to that authority, Treasury 
published the May 31 Notice and is publishing this document on 
behalf of the CFPB.
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    As noted in the May 31 Notice, the CFPB's authority is defined by 
the Act and other applicable law. As a result, the CFPB's publication 
of the list called for by section 1063(i) will not have a substantive 
effect on any rules or orders or the parties who may be subject to 
them; it merely provides a convenient reference source. Accordingly, 
the inclusion or exclusion of any rule or order does not alter the 
CFPB's authority.\9\ In addition, section 1063(i) does not require the 
CFPB to update, correct, or otherwise maintain the final list.
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    \9\ For example, the inclusion of rules relating to HUD 
administrative enforcement procedures does not detract from the 
CFPB's authority to bring lawsuits and administrative enforcement 
actions under subtitle E of the Act.
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II. Discussion of Comments and Clarifications

    In response to the May 31 Notice, the CFPB received 12 comments 
from regulated entities, trade associations, and consumer groups, among 
others. None of the comments recommended that any items be added to or 
removed from the list. The list contained in this document is identical 
to the list published in the May 31 Notice, except that the final list 
contains a technical correction to the ordering of the Department of 
Housing and Urban Development (``HUD'') rules and reflects the addition 
of two rules issued after the May 31 Notice: the FTC's Mortgage Acts 
and Practices--Advertising rule, and HUD's rule implementing the Secure 
and Fair Enforcement for Mortgage Licensing Act of 2008.\10\
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    \10\ This rule will become effective on August 29, 2011. See 76 
FR 34864, June 30, 2011. The list contained in this notice does not 
include proposed rules that are currently pending.
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    Some comments inquired about the CFPB's application of guidance 
issued by the transferor agencies in connection with the rules 
contained on the list. The CFPB does not consider guidance or similar 
documents as falling within the meaning of enforceable ``rules and 
orders'' that are required to be listed pursuant to section 1063(i). 
However, by way of clarification, the CFPB notes that for laws with 
respect to which rulemaking authority will transfer to the CFPB, the 
official commentary, guidance, and policy statements issued prior to 
July 21, 2011, by a transferor agency with exclusive rulemaking 
authority for the law in question (or similar documents that were 
jointly agreed to by all relevant agencies in the case of shared 
rulemaking authority) will be applied by the CFPB pending further CFPB 
action. The CFPB will give due consideration to the application of 
other written guidance, interpretations, and policy statements issued 
prior to July 21, 2011, by a transferor agency in light of all relevant 
factors, including: whether the agency had rulemaking authority for the 
law in question; the formality of the document in question and the 
weight afforded it by the issuing agency; the persuasiveness of the 
document; and whether the document conflicts with guidance or 
interpretations issued by another agency. The CFPB will seek over time 
to improve the clarity and uniformity of guidance regarding the laws it 
will administer as necessary in order to facilitate compliance with the 
Federal consumer financial laws.
    Several other comments addressed policy issues that are outside the 
scope of the list called for by section 1063(i), such as specific 
recommendations regarding the CFPB's exercise of its rulemaking 
authority.\11\ The CFPB values this input, but has determined that this 
document is not the appropriate forum in which to address the issues 
raised.
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    \11\ For example, these comments included: requests that CFPB 
take or refrain from taking regulatory action with respect to 
certain entities or industries; requests that the CFPB not impose 
new or duplicative regulatory burdens; and requests that the CFPB 
appropriately take into account differences between regulated 
entities (e.g., differences between credit unions and banks). Some 
comments indicated support for the Act's consolidation of certain 
consumer financial protection functions into a single federal 
agency, while others expressed concern about such consolidation. 
Other comments emphasized the importance of involving stakeholders 
in the rulemaking process and requested information on the CFPB's 
plans for doing so.
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    Finally, it bears noting that, later this year, the CFPB intends to 
publish in chapter X of title 12 of the Code of Federal Regulations the 
rules for which rulemaking authority transfers to the CFPB. These rules 
will contain conforming amendments to reflect both the transfer of 
authority to the CFPB under the Act and certain other changes made by 
the Act to the underlying statutes.\12\ In the interim, the existing 
rules will continue in effect and the changes made by the Act to 
transfer authority to the CFPB will be effective as of the designated 
transfer date by operation of law.\13\
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    \12\ Rulemaking authority for all the rules contained on the 
list below, except items 1 and 6 through 12 in section F (``Federal 
Trade Commission''), will transfer to the CFPB on the designated 
transfer date.
    \13\ During this interim period, the CFPB may from time to time 
provide guidance on its Web site, http://www.consumerfinance.gov, 
regarding procedural matters (e.g. how to make certain filings with 
the CFPB) relating to compliance with the existing regulations in 
light of the transfer of authority to the CFPB.
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III. Final List

    Accordingly, pursuant to section 1063(i) of the Act, the CFPB sets 
forth the following list of rules that will be enforceable by the CFPB 
subject to the limitations and other provisions of the Act: \14\
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    \14\ Unless otherwise noted, all references to a Part include 
accompanying appendices and supplements.
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A. Board of Governors of the Federal Reserve

1. 12 CFR part 202--Equal Credit Opportunity Act (Regulation B)
2. 12 CFR part 203--Home Mortgage Disclosure (Regulation C)
3. 12 CFR part 205--Electronic Fund Transfers (Regulation E)
4. 12 CFR 208.101-.105 & Appendix A to Subpart I--Registration of 
Residential Mortgage Loan Originators (Regulation H, Subpart I)
5. 12 CFR part 213--Consumer Leasing (Regulation M)
6. 12 CFR part 216--Privacy of Consumer Financial Information 
(Regulation P)
7. 12 CFR part 222--Fair Credit Reporting (Regulation V), except 
with respect to Sec. Sec.  222.1(c) (effective dates), 222.83 
(Disposal of consumer information), 222.90 (Duties regarding the 
detection, prevention, and mitigation of identity theft), 222.91 
(Duties of card issuers regarding changes of address), & Appendix J 
(Interagency Guidelines on Identity Theft Detection, Prevention, and 
Mitigation)
8. 12 CFR part 226--Truth in Lending (Regulation Z)
9. 12 CFR part 230--Truth in Savings (Regulation DD)

B. Federal Deposit Insurance Corporation

1. 12 CFR part 332--Privacy of Consumer Financial Information
2. 12 CFR part 334--Fair Credit Reporting, except with respect to 
Sec. Sec.  334.83

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(Disposal of consumer information), 334.90 (Duties regarding the 
detection, prevention, and mitigation of identity theft), 334.91 
(Duties of card issuers regarding changes of address), & Appendix J 
(Interagency Guidelines on Identity Theft Detection, Prevention, and 
Mitigation)
3. 12 CFR 365.101-.105 & Appendix A to Subpart B--Registration of 
Residential Mortgage Loan Originators

C. Office of the Comptroller of the Currency

1. 12 CFR 34.20-.25--Adjustable-Rate Mortgages (but only as applied 
to non-federally chartered housing creditors under the Alternative 
Mortgage Transaction Parity Act (``AMTPA''))
2. 12 CFR 34.101-.105 & Appendix A to Subpart F--Registration of 
Residential Mortgage Loan Originators
3. 12 CFR part 40--Privacy of Consumer Financial Information
4. 12 CFR part 41--Fair Credit Reporting, except with respect to 
Sec. Sec.  41.83 (Disposal of consumer information), 41.90 (Duties 
regarding the detection, prevention, and mitigation of identity 
theft), 41.91 (Duties of card issuers regarding changes of address), 
& Appendix J (Interagency Guidelines on Identity Theft Detection, 
Prevention, and Mitigation)

D. Office of Thrift Supervision

1. 12 CFR 560.35--Adjustments to home loans (but only as applied to 
non-federally chartered housing creditors under AMTPA)
2. 12 CFR 560.210-220--Alternative Mortgage Transactions (but only 
as it relates to AMTPA)
3. 12 CFR 563.101-.105 & Appendix A to Subpart D--Registration of 
Residential Mortgage Loan Originators
4. 12 CFR part 571--Fair Credit Reporting, except with respect to 
Sec. Sec.  571.83 (Disposal of consumer information), 571.90 (Duties 
regarding the detection, prevention, and mitigation of identity 
theft), 571.91 (Duties of card issuers regarding change of address), 
& Appendix J (Interagency Guidelines on Identity Theft Detection, 
Prevention, and Mitigation)
5. 12 CFR part 573--Privacy of Consumer Financial Information

E. National Credit Union Administration

1. 12 CFR 701.21--Loans to members and lines of credit to members 
(but only as applied to non-federally chartered housing creditors 
under AMTPA)
2. 12 CFR part 707--Truth in Savings
3. 12 CFR part 716--Privacy of Consumer Financial Information
4. 12 CFR part 717--Fair Credit Reporting, except with respect to 
Sec. Sec.  717.83 (Disposal of consumer information), 717.90 (Duties 
regarding the detection, prevention, and mitigation of identity 
theft), 717.91 (Duties of card issuers regarding changes of 
address), & Appendix J (Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation)
5. 12 CFR part 741--Requirements for Insurance, but only with 
respect to Sec. Sec.  741.217 (Truth in savings), 741.220 (Privacy 
of consumer financial information), & 741.223 (Registration of 
residential mortgage loan originators)
6. 12 CFR part 761--Registration of Mortgage Loan Originators

F. Federal Trade Commission

1. 16 CFR part 310--Telemarketing Sales Rule
2. 16 CFR part 313--Privacy of Consumer Financial Information
3. 16 CFR part 320--Disclosure Requirements for Depository 
Institutions Lacking Federal Depository Insurance
4. 16 CFR part 321--Mortgage Acts and Practices--Advertising
5. 16 CFR part 322--Mortgage Assistance Relief Services
6. 16 CFR part 425--Use of Prenotification Negative Option Plans
7. 16 CFR part 429--Rule Concerning Cooling-Off Period for Sales 
Made at Homes or at Certain Other Locations
8. 16 CFR part 433--Preservation of Consumers' Claims and Defenses
9. 16 CFR part 444--Credit Practices
10. 16 CFR part 435--Mail or Telephone Order Merchandise
11. 16 CFR part 436--Disclosure Requirements and Prohibitions 
Concerning Franchising
12. 16 CFR part 437--Disclosure Requirements and Prohibitions 
Concerning Business Opportunities
13. 16 CFR Subchapter F, Parts 603 et seq.--Fair Credit Reporting 
Act, except with respect to Part 681 (Identity Theft Rules), Part 
682 (Disposal of Consumer Report Information and Records), & 
Appendix A to Part 681 (Interagency Guidelines on Identity Theft 
Detection, Prevention, and Mitigation)
14. 16 CFR part 901--Procedures for State Application for Exemption 
from the Provisions of the [Fair Debt Collection Practices] Act

G. Department of Housing and Urban Development

1. 24 CFR 26.28-.56--Hearing Procedures Pursuant to the 
Administrative Procedure Act
2. 24 CFR part 30--Civil Money Penalties: Certain Prohibited Conduct 
(but only as applied to the Real Estate Settlement Procedures Act of 
1974 (``RESPA''), the Interstate Land Sales Full Disclosure Act 
(``ILSA''), and the Secure and Fair Enforcement for Mortgage 
Licensing Act of 2008)
3. 24 CFR part 1710--Land Registration
4. 24 CFR part 1715--Purchasers' Revocation Rights, Sales Practices, 
and Standards
5. 24 CFR part 1720--Formal Procedures and Rules of Practice
6. 24 CFR part 3400--SAFE Mortgage Licensing Act: Minimum Licensing 
Standards and Oversight Responsibilities
7. 24 CFR part 3500--Real Estate Settlement Procedures Act
8. 24 CFR part 3800--Investigations in Consumer Regulatory Programs 
(but only as applied to RESPA and ILSA)

    Dated: July 14, 2011.
Alastair Fitzpayne,
Deputy Chief of Staff and Executive Secretary, Department of the 
Treasury.
[FR Doc. 2011-18426 Filed 7-20-11; 8:45 am]
BILLING CODE 4810-25-P