[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Rules and Regulations]
[Pages 32547-32551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13023]


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BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Part 1026

[Docket No. CFPB-2013-0013]
RIN 3170-AA37


Loan Originator Compensation Requirements Under the Truth in 
Lending Act (Regulation Z); Prohibition on Financing Credit Insurance 
Premiums; Delay of Effective Date

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Final rule; Delay of Effective Date.

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SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is 
issuing a final rule delaying the June 1, 2013, effective date of a 
prohibition on creditors financing credit insurance premiums in 
connection with certain consumer credit transactions secured by a 
dwelling. The prohibition was adopted in the Loan Originator 
Compensation Requirements under the Truth in Lending Act (Regulation Z) 
Final Rule, issued on January 20, 2013, and published in the Federal 
Register on February 15, 2013. The Bureau is delaying the effective 
date until January 10, 2014, to permit the Bureau to clarify, before 
the provision takes effect, its applicability to transactions other 
than those in which a lump-sum premium is added to the loan amount at 
closing. The new effective date will be January 10, 2014, but the 
Bureau will solicit comment on the appropriate effective date at the 
same time that it seeks comment on clarifications. (The Bureau is not 
contemplating extending the effective date beyond January 10, 2014.)

DATES: The final rule published February 15, 2013, at 78 FR 11280, is 
effective January 10, 2014, with the exception of the amendments to 12 
CFR 1026.36(h) and (i), which are effective June 1, 2013. This rule 
delays the effective date of the amendment to 12 CFR 1026.36(i) until 
January 10, 2014.

FOR FURTHER INFORMATION CONTACT: Richard Arculin or Daniel Brown, 
Counsels, Office of Regulations, at (202) 435-7700.

SUPPLEMENTARY INFORMATION: 

I. Background

    In January 2013, the Bureau issued several final rules concerning 
mortgage markets in the United States, pursuant to the Dodd-Frank Wall 
Street Reform and Consumer Protection Act (Dodd-Frank Act).\1\ One of 
these final rules was the Loan Originator Compensation Requirements 
Under the Truth in Lending Act (Regulation Z) (Final Rule).\2\ The 
Final Rule implemented Dodd-Frank Act amendments to the Truth in 
Lending Act (TILA) addressing loan originator compensation; 
qualifications of, and registration or licensing of loan originators; 
compliance procedures for depository institutions; mandatory 
arbitration; and the financing of single-premium credit insurance. With 
regard to the financing of single-premium credit insurance, the Final 
Rule included a provision implementing the Dodd-Frank Act section 1414 
amendment that added new TILA section 129C(d), 15 U.S.C. 1639c(d). That 
provision prohibits creditors from financing premiums or fees for 
certain credit insurance products in connection with certain consumer 
credit transactions secured by a dwelling. The Bureau implemented this 
provision by adopting Sec.  1026.36(i).
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ 78 FR 11279 (Feb. 15, 2013).
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A. Title XIV Rulemaking Effective Dates

    In enacting the Dodd-Frank Act, Congress significantly amended the 
statutory requirements governing a number of mortgage practices, 
including loan originator compensation. Under the statute, most of 
these new requirements would have taken effect automatically on January 
21, 2013, if the Bureau had not issued implementing regulations by that 
date.\3\ To avoid uncertainty and potential disruption in the national 
mortgage market at a time of economic vulnerability, the Bureau issued 
several final rules (Title XIV Rulemakings) in January 2013, including 
the Final Rule issued on January 20, 2013, to implement these new 
statutory provisions and provide for an orderly transition. To allow 
the mortgage industry sufficient time to comply with the new rules, the 
Bureau established January 10, 2014--one year after

[[Page 32548]]

issuance of the earliest of the Title XIV Rulemakings--as the effective 
date for most of the Title XIV Rulemakings, including most provisions 
of the Final Rule. However, the Bureau identified certain provisions 
that it believed did not present significant implementation burdens for 
industry, including Sec.  1026.36(h) on mandatory arbitration clauses 
and waivers of certain consumer rights and Sec.  1026.36(i) on 
financing single-premium credit insurance, as adopted by the Final 
Rule. For these provisions, the Bureau set an earlier effective date of 
June 1, 2013.
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    \3\ Dodd-Frank Act section 1400(c), 15 U.S.C. 1601 note.
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B. Implementation Initiative for New Mortgage Rules

    On February 13, 2013, the Bureau announced an initiative to support 
implementation of its new mortgage rules (Implementation Plan),\4\ 
under which the Bureau would work with the mortgage industry to ensure 
that the Title XIV Rulemakings can be implemented accurately and 
expeditiously. The Implementation Plan included (1) coordination with 
other agencies; (2) publication of plain-language guides to the new 
rules; (3) publication of updates, such as additional corrections, 
adjustments, and clarifications of the new rules, as needed; (4) 
publication of readiness guides for the new rules; and (5) education of 
consumers on the new rules.
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    \4\ Consumer Financial Protection Bureau Lays Out Implementation 
Plan for New Mortgage Rules. Press Release. Feb. 13, 2013.
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    This final rule, which delays the effective date of the provision 
on financing single-premium credit insurance, is one of several updates 
to the Title XIV Rulemakings. The purpose of these updates is to 
address important questions raised by industry, consumer groups, or 
other agencies. The update addressed by this final rule was given 
priority because the effective date for Sec.  1026.36(i) was June 1, 
2013, and certainty regarding compliance is a matter of some urgency. 
The Bureau intends to publish a proposal shortly to seek further 
comment on clarifications to the provision as discussed further below.

II. Legal Authority

    On July 21, 2011, section 1061 of the Dodd-Frank Act transferred to 
the Bureau the ``consumer financial protection functions'' previously 
vested in certain other Federal agencies, including the Board of 
Governors of the Federal Reserve System. The term ``consumer financial 
protection function'' is defined to include ``all authority to 
prescribe rules or issue orders or guidelines pursuant to any Federal 
consumer financial law, including performing appropriate functions to 
promulgate and review such rules, orders, and guidelines.'' 12 U.S.C. 
5581(a)(1). TILA is a Federal consumer financial law. Dodd-Frank Act 
section 1002(14), 12 U.S.C. 5481(14) (defining ``Federal consumer 
financial law'' to include the ``enumerated consumer laws'' and the 
provisions of title X of the Dodd-Frank Act); Dodd-Frank Act section 
1002(12), 12 U.S.C. 5481(12) (defining ``enumerated consumer laws'' to 
include TILA). Accordingly, the Bureau has authority to issue 
regulations pursuant to TILA.
    As amended by the Dodd-Frank Act, TILA section 105(a), 15 U.S.C. 
1604(a), directs the Bureau to prescribe regulations to carry out the 
purposes of TILA and provides that such regulations may contain 
additional requirements, classifications, differentiations, or other 
provisions, and may provide for such adjustments and exceptions for all 
or any class of transactions, that the Bureau judges are necessary or 
proper to effectuate the purposes of TILA, to prevent circumvention or 
evasion thereof, or to facilitate compliance. Further, under Dodd-Frank 
Act section 1022(b)(1), 15 U.S.C. 5512(b)(1), the Bureau has general 
authority to prescribe rules as may be necessary or appropriate to 
enable the Bureau to administer and carry out the purposes and 
objectives of the Federal consumer financial laws, and to prevent 
evasions thereof. The Bureau is delaying the effective date until 
January 10, 2014, pursuant to its TILA section 105(a) and Dodd-Frank 
Act section 1022(b)(1) authority. The Bureau believes such a delay will 
facilitate compliance and help ensure that the Final Rule does not have 
adverse unintended consequences. In particular, the delay will permit 
the Bureau to clarify, before Sec.  1026.36(i) takes effect, its 
applicability to transactions other than those in which a lump-sum 
premium is added to the loan amount at closing.

III. Effective Date

    As discussed above, Dodd-Frank Act section 1414 added TILA section 
129C(d), which generally prohibits a creditor from financing any 
premiums or fees for credit insurance in connection with any 
residential mortgage loan or with any extension of credit under an 
open-end consumer credit plan secured by the consumer's principal 
dwelling.\5\ The prohibition applies to credit life, credit disability, 
credit unemployment, credit property insurance, and other similar 
products. The same provision states, however, that the prohibition does 
not apply to credit insurance for which premiums or fees are calculated 
and paid in full on a monthly basis or to credit unemployment insurance 
for which the premiums are reasonable, the creditor receives no 
compensation, and the premiums are paid pursuant to a separate 
insurance contract and are not paid to the creditor's affiliate.
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    \5\ 15 U.S.C. 1639C(d).
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    In a proposed rule published on September 7, 2012,\6\ the Bureau 
proposed to implement this provision through Sec.  1026.36(i), which 
generally tracks the statutory language. In the proposal, the Bureau 
stated its belief that the provision was generally straightforward but 
sought comment on whether any issues raised by the provision required 
clarification. Anticipating that few, if any, clarifications would be 
necessary and that accordingly industry would not require significant 
time to accommodate any clarifications of the final rule, the Bureau 
also sought comment on whether the provision should become effective 
sooner than January 2014.\7\
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    \6\ 77 FR 55272 (Sept. 7, 2012).
    \7\ Id.
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    The Bureau received very few public comments on the substance of 
the proposed prohibition or the earlier effective date. Consumer groups 
sought clarification on the provision's applicability to certain 
factual scenarios where credit insurance premiums are charged 
periodically, rather than as a lump-sum added to the loan amount at 
closing. They also urged the Bureau to provide an early effective date 
for the provision. The Bureau did not receive any public comments from 
the credit insurance industry. The Bureau received some limited 
comments from creditors concerning the general prohibition, but these 
comments did not address the applicability of the provision to 
transactions in which premiums are charged periodically. In the 
preamble to the Final Rule, the Bureau provided some explanation 
concerning the provision's applicability to credit insurance premiums 
charged periodically, rather than as a lump-sum added to the loan 
amount at closing.

A. Post-Final Rule Concerns

    Since publication of the Final Rule, industry stakeholders have 
expressed concern that the regulation text and preamble left 
substantial uncertainty about whether, and under what circumstances, 
premiums for certain credit insurance products can be

[[Page 32549]]

charged on a periodic basis in connection with a covered consumer 
credit transaction secured by a dwelling. Specifically, representatives 
of credit unions and credit insurers have raised a concern that the 
Final Rule could be interpreted to prohibit any level or levelized 
credit insurance premiums, which they believe are not financed by the 
creditor and/or should be permissible as calculated and paid in full on 
a monthly basis.\8\ These stakeholders pointed out that the preamble to 
the Final Rule states that ``charging a fixed monthly charge for the 
credit insurance that does not decline as the loan balance declines 
would fail to meet the requirement for the premium to be `calculated . 
. . on a monthly basis' [and] . . . [a]s a result, this practice would 
fail to satisfy the conditions for the exclusion from what constitutes 
`financ[ing], directly or indirectly' credit insurance premiums.'' 
Thus, absent clarification by the Bureau, the Final Rule could be 
interpreted to assume that any level or levelized premiums are both 
financed by the creditor and not calculated and paid on a monthly 
basis--and therefore they are prohibited.
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    \8\ The term ``levelized'' premiums refers to a flat monthly 
payment that is derived from a decreasing monthly premium 
alternative arrangement, and the term ``level'' premium refers to 
premiums for which there is no decreasing monthly premium 
alternative arrangement available, such as for level mortgage life 
insurance.
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    Credit insurance company representatives raised several 
interpretive questions relating to this concern, which they have urged 
the Bureau to address. They stated that levelized premiums are, in 
fact, ``calculated . . . on a monthly basis,'' because an actuarially 
derived rate is multiplied by a fixed monthly principal and interest 
payment to derive the monthly insurance premium. They also stated that 
level premiums are ``calculated . . . on a monthly basis'' because an 
actuarially derived rate is multiplied by the consumer's original loan 
amount to derive the monthly insurance premium. Accordingly, they 
believe that level and levelized credit insurance premiums should be 
excluded from the prohibition on creditors financing credit insurance 
premiums so long as they are also paid in full on a monthly basis. In 
addition they stated that, even if the Bureau concludes that level or 
levelized credit insurance premiums are not ``calculated'' on a monthly 
basis within the meaning of the exclusion from the prohibition, they 
are not ``financed'' by a creditor and thus are not prohibited by the 
statutory provision.
    Accordingly, they have requested clarification on Sec.  
1026.36(i)'s applicability to these credit insurance products and also 
have expressed concern regarding their ability to comply timely, given 
that the Final Rule provided an effective date for Sec.  1026.36(i) of 
June 1, 2013.
    In light of the interpretive questions that have arisen since 
publication of the Final Rule, the Bureau intends to publish a proposal 
to seek further comment on the provision shortly. In that proposal, the 
Bureau intends, among other things to seek public comment, including 
from industry stakeholders and consumers, on (1) the applicability of 
the prohibition to transactions in which credit insurance premiums are 
charged periodically; and (2) given these proposed clarifications to 
Sec.  1026.36(i), what effective date would be appropriate.

B. May 10, 2013 Proposal To Delay Effective Date

    On May 10, 2013, the Bureau issued a proposed rule seeking comment 
on a temporary delay of the June 1, 2013 effective date of Sec.  
1026.36(i).\9\ The Bureau made clear in the proposal that it 
contemplated delaying the effective date only as long as necessary for 
any clarifications to be proposed, finalized, and implemented, and 
sought public comment on two issues: (1) whether the effective date 
should be delayed; and (2) if so, what the new effective date should 
be. The Bureau also stated it was concerned that, if the effective date 
were not delayed, creditors could face uncertainty about whether and 
under what circumstances credit insurance premiums may be charged 
periodically in connection with covered consumer credit transactions 
secured by a dwelling, which could result in a substantial compliance 
burden to industry. Finally, the Bureau noted that it intends to 
propose and again seek comment on the effective date for any 
clarifications to Sec.  1026.36(i) as part of the forthcoming proposal.
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    \9\ 78 FR 27308 (May 10, 2013).
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C. Public Comments

    The Bureau received approximately 70 comments from credit unions 
and other industry members supporting the proposal to delay the 
effective date. These commenters agreed that interpretive questions 
exist regarding the application of the provision to credit insurance 
premiums charged periodically, in particular to level or levelized 
premiums. These commenters strongly supported the proposal to delay the 
effective date while those questions are addressed in the upcoming 
proposal, and they generally suggested a delay of the effective date 
until January 10, 2014, or alternatively 6 to 12 months after the 
upcoming proposal is finalized. The Bureau also received a joint 
comment from consumer groups opposing the proposal. The consumer groups 
stated that they did not believe any real interpretive questions exist 
that require a delay of the effective date or an additional proposal.

D. Final Rule

    Upon consideration of these public comments, the Bureau is 
finalizing the proposal to delay the effective date for Sec.  
1026.36(i). The Bureau is persuaded that significant interpretive 
questions exist regarding the application of the provision to credit 
insurance charged periodically, which it intends to address in a 
forthcoming proposal. The Bureau also agrees with industry commenters 
that, if the effective date were not delayed, creditors would face 
uncertainty about whether and under what circumstances credit insurance 
premiums may be charged periodically in connection with covered 
consumer credit transactions secured by a dwelling, which could result 
in a substantial compliance burden to industry.
    Rather than suspend the effective date indefinitely pending the 
clarification, the Bureau believes it is appropriate to adopt a new 
effective date for Sec.  1026.36(i) of January 10, 2014, which is 
consistent with the effective date for most of the Title XIV 
Rulemakings. Thus, Sec.  1026.36(i) will be effective for any 
transactions where applications were received by the creditor on or 
after January 10, 2014.
    However, with respect to the January 10, 2014 effective date, the 
Bureau emphasizes that it intends to issue a new proposal shortly that 
will, among other things, specifically seek comment on the appropriate 
effective date in light of the proposal to provide additional 
clarifying amendments. The Bureau is mindful of the public comments it 
received in connection with this notice that suggest creditors will 
need time to adjust certain credit insurance premium billing practices 
once the clarifications are finalized. However, any such amendments 
will not be finalized until the Bureau has proposed amendments to Sec.  
1026.36(i), appropriately considered public comment, and issued a final 
rule in connection with the upcoming proposal. The Bureau is also 
mindful of the fact that the protections provided by Congress would 
have applied effective January 21, 2013, had the Bureau not promulgated 
implementing regulations.

[[Page 32550]]

The Bureau expects that industry will use the intervening time to 
review systems and begin making appropriate modifications to facilitate 
the implementation process as quickly as practicable once the 
additional clarifications are finalized.
    Accordingly, the Bureau is delaying the June 1, 2013 effective date 
for the provision to January 10, 2014, while the Bureau considers 
addressing interpretive questions concerning the provision's 
applicability to transactions other than those in which a lump-sum 
premium is added to the loan amount at consummation.
    This final rule will be effective on June 1, 2013. Under section 
553(d) of the Administrative Procedure Act (APA), the required 
publication or service of a substantive rule shall be made not less 
than 30 days before its effective date, except for (1) a substantive 
rule which grants or recognizes an exemption or relieves a restriction; 
(2) interpretive rules and statements of policy; or (3) as otherwise 
provided for good cause found and published with the rule. 5 U.S.C. 
553(d). This final rule does not establish any requirements, but rather 
delays the effective date of Sec.  1026.36(i) until January 10, 2014. 
Therefore, under 553(d)(1) of the APA, the Bureau is publishing this 
final rule less than 30 days before its effective date because it is a 
substantive rule which grants or recognizes an exemption or relives a 
restriction. 5 U.S.C. 553(d)(1). Further, making the delay effective on 
June 1, 2013, will ensure that Sec.  1026.36(i) does not take effect 
until the Bureau has an opportunity to clarify the provision's 
applicability to transactions other than those in which a lump-sum 
premium is added to the loan amount at closing, facilitating compliance 
with the statute and helping to ensure that the Final Rule does not 
have adverse unintended consequences. Therefore, The Bureau further 
finds it has good cause pursuant to section 553(d)(3) of the APA to 
dispense with the 30 day delayed effective date requirement because, on 
balance, the need to implement immediately the delay of the June 1, 
2013 effective date of Sec.  1026.36(i) outweighs the need for affected 
parties to prepare for this delay.

IV. Section 1022(b)(2) of the Dodd-Frank Act

    In developing the final rule, the Bureau has considered the 
potential benefits, costs, and impacts.\10\ The Bureau requested 
comment on its preliminary analysis as well as submissions of 
additional data that could inform the Bureau's analysis of the 
benefits, costs, and impacts of the final rule. The Bureau has 
consulted, or offered to consult with, the prudential regulators, HUD, 
USDA, FHFA, the Federal Trade Commission, and the Department of the 
Treasury, including regarding consistency with any prudential, market, 
or systemic objectives administered by such agencies.
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    \10\ Section 1022(b)(2)(A) of the Dodd-Frank Act, 12 U.S.C. 
5521(b)(2), directs the Bureau, when prescribing a rule under the 
Federal consumer financial laws, to consider the potential benefits 
and costs of regulation to consumers and covered persons, including 
the potential reduction of access by consumers to consumer financial 
products or services; the impact on insured depository institutions 
and credit unions with $10 billion or less in total assets as 
described in section 1026 of the Dodd-Frank Act; and the impact on 
consumers in rural areas. Section 1022(b)(2)(B) of the Dodd-Frank 
Act directs the Bureau to consult with appropriate prudential 
regulators or other Federal agencies regarding consistency with 
prudential, market, or systemic objectives that those agencies 
administer.
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    In part VII of the Final Rule, the Bureau previously considered the 
costs, benefits, and impact of Sec.  1026.36(i) as adopted by the Final 
Rule. The Bureau believes that, compared to the baseline established by 
the Final Rule,\11\ the delay of the effective date for Sec.  
1026.36(i) will generally benefit creditors and the credit insurance 
industry by delaying the start of ongoing compliance costs, and 
allowing time for a process to clarify the scope and compliance 
requirements of the regulation. Creditors and the credit insurance 
industry will benefit to the extent that the changes eliminate any 
disruptions in the provision of credit insurance products to consumers 
while interpretive questions concerning Sec.  1026.36(i) are addressed. 
The Bureau believes that delaying the effective date of Sec.  
1026.36(i) will also delay the consumer benefit that would result from 
allowing the rule to take effect. Specifically, delaying the effective 
date would delay the prohibition on lump-sum credit insurance premiums 
added to the loan amount at closing, which Congress prohibited through 
TILA section 129C(d).
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    \11\ The Bureau has discretion in any rulemaking to choose an 
appropriate scope of analysis with respect to potential benefits and 
costs and an appropriate baseline.
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    In addition, the final rule is not expected to have a differential 
impact on depository institutions and credit unions with $10 billion or 
less in total assets as described in section 1026 of the Dodd-Frank Act 
or on consumers in rural areas. The Bureau does not believe that the 
final rule will meaningfully reduce consumers' access to consumer 
products and services.

V. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct an initial regulatory flexibility analysis (IRFA) and a 
final regulatory flexibility analysis (FRFA) of any rule subject to 
notice-and-comment rulemaking requirements.\12\ These analyses must 
``describe the impact of the final rule on small entities.'' \13\ An 
IRFA or FRFA is not required if the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities,\14\ or if the agency considers a series of closely related 
rules as one rule for purposes of complying with the IRFA or FRFA 
requirements.\15\ The Bureau also is subject to certain additional 
procedures under the RFA involving the convening of a panel to consult 
with small business representatives prior to proposing a rule for which 
an IRFA is required.\16\
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    \12\ 5 U.S.C. 601 et seq.
    \13\ 5 U.S.C. 603(a). For purposes of assessing the impacts of 
the final rule on small entities, ``small entities'' is defined in 
the RFA to include small businesses, small not-for-profit 
organizations, and small government jurisdictions. 5 U.S.C. 601(6). 
A ``small business'' is determined by application of Small Business 
Administration regulations and reference to the North American 
Industry Classification System (NAICS) classifications and size 
standards. 5 U.S.C. 601(3). A ``small organization'' is any ``not-
for-profit enterprise which is independently owned and operated and 
is not dominant in its field.'' 5 U.S.C. 601(4). A ``small 
governmental jurisdiction'' is the government of a city, county, 
town, township, village, school district, or special district with a 
population of less than 50,000. 5 U.S.C. 601(5).
    \14\ 5 U.S.C. 605(b).
    \15\ 5 U.S.C. 605(c).
    \16\ 5 U.S.C. 609.
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    The Bureau did not perform an IFRA for the proposed rule because it 
determined and certified that the proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The Bureau did not receive any comments regarding its 
certification of no significant economic impact. The Bureau concludes 
that a FRFA is not required for this final rule because it will not 
have a significant impact on a substantial number of small entities. As 
discussed above, the final rule will delay the June 1, 2013 effective 
date of Sec.  1026.36(i), as adopted by the Final Rule, until January 
10, 2014. The delay in effective date will benefit small creditors by 
delaying the start of any ongoing compliance costs.
    Accordingly, the undersigned hereby certifies that the final rule 
will not have a significant economic impact on a substantial number of 
small entities.

[[Page 32551]]

VI. Paperwork Reduction Act Analysis

    The Bureau may not conduct or sponsor, and, notwithstanding any 
other provision of law, a respondent is not required to respond to, an 
information collection unless it displays a currently valid OMB control 
number. Regulation Z currently contains collections of information 
approved by OMB. The Bureau's OMB control number for Regulation Z is 
3170-0015. However, the Bureau has determined that this final rule will 
not materially alter these collections of information or impose any new 
recordkeeping, reporting, or disclosure requirements on the public that 
would constitute collections of information requiring approval under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    Dated: May 29, 2013.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2013-13023 Filed 5-30-13; 8:45 am]
BILLING CODE 4810-25-P