[Federal Register Volume 88, Number 62 (Friday, March 31, 2023)]
[Rules and Regulations]
[Pages 19214-19220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06719]


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CONSUMER FINANCIAL PROTECTION BUREAU

12 CFR Part 1026

[Docket No. CFPB-2022-0070]


Truth in Lending; Determination of Effect on State Laws 
(California, New York, Utah, and Virginia)

AGENCY: Consumer Financial Protection Bureau.

ACTION: Preemption determination.

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SUMMARY: After considering public comments, the Consumer Financial 
Protection Bureau (CFPB) has determined that commercial financing 
disclosure laws in California, New York, Utah, and Virginia are not 
preempted by the Truth in Lending Act.

DATES: This determination is issued on March 31, 2023.

FOR FURTHER INFORMATION CONTACT: Christopher Shelton or Anand Das, 
Senior Counsels, Legal Division, or Joel Singerman, Senior Counsel, 
Office of Regulations, at 202-435-7700. If you require this document in 
an alternative electronic format, please contact 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Overview of This Proceeding

    The Truth in Lending Act (TILA) ensures that key information about 
consumer credit transactions is disclosed to consumers. TILA preempts 
State disclosure laws only if they are ``inconsistent'' with it. The 
CFPB is authorized to determine whether there is an inconsistency.\1\
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    \1\ TILA section 111(a), 15 U.S.C. 1610(a).
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    In recent years, New York, California, Utah, and Virginia have 
enacted laws that require disclosures for commercial financing 
transactions to businesses, which do not receive TILA disclosures in 
those transactions. The CFPB received a request from a trade 
association (the requesting party) that it determine that TILA preempts 
New York's commercial financing disclosure law. In response, the CFPB 
published for public comment a notification of intent to make a 
preemption determination. In the notification of intent, the CFPB 
considered the requesting party's initial arguments and preliminarily 
found that New York's law was not preempted. On the CFPB's own motion, 
the CFPB also provided notice that it may make parallel findings 
regarding the California, Utah, and Virginia laws.
    The CFPB received fifteen comments on the notification of intent. 
The Attorney General of California, two trade associations, a lender to 
small businesses, a group of consumer advocacy organizations, and a 
group of lenders, investors, and small business advocates all supported 
the CFPB's notification of intent. On the other hand, the requesting 
party, several other trade associations, and a different lender to 
small businesses argued that some or all of the four States' laws are 
preempted.\2\
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    \2\ The notification of intent is available at 87 FR 76551 (Dec. 
15, 2022). The original request is available at https://www.regulations.gov/document/CFPB-2022-0070-0002. The comments on 
the notification of intent are available at https://www.regulations.gov/document/CFPB-2022-0070-0004/comment.
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    After analyzing the comments, the CFPB has concluded that the State 
commercial financing disclosure laws of California, New York, Utah, and 
Virginia are not preempted by TILA. Congress adopted a narrow standard 
for TILA preemption that displaces State law only in the case of 
``inconsistency.'' This means that States have broad authority to 
establish their own protections for their residents, both within and 
outside the scope of TILA. As relevant here, commercial financing 
transactions to businesses--and any disclosures associated with such 
transactions--are beyond the scope of TILA's statutory purposes, which 
concern consumer credit.

[[Page 19215]]

II. General Background on the Truth in Lending Act

    Congress enacted TILA in 1968 because it found that ``competition 
among the various financial institutions and other firms engaged in the 
extension of consumer credit would be strengthened by the informed use 
of credit.'' \3\ As relevant here, TILA's stated purpose is to ``assure 
a meaningful disclosure of credit terms so that the consumer will be 
able to compare more readily the various credit terms available to him 
and avoid the uninformed use of credit.'' \4\ TILA requires creditors 
to use specified formulas to determine credit costs and to provide cost 
disclosures, including the ``finance charge'' and ``annual percentage 
rate'' (APR), to consumers before consummation of ``consumer credit'' 
transactions. Consumer credit is credit that is offered or extended 
``primarily for personal, family, or household purposes.'' \5\ 
Conversely, TILA expressly does not apply to ``credit transactions 
involving extensions of credit primarily for business, commercial, or 
agricultural purposes.'' \6\
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    \3\ TILA section 102(a), 15 U.S.C. 1601(a).
    \4\ Id.
    \5\ TILA section 103(i), 15 U.S.C. 1602(i); 12 CFR 
1026.2(a)(12).
    \6\ TILA section 104(1), 15 U.S.C. 1603(1). There is a limited 
exception related to certain requirements for certain credit cards 
that is not applicable here. TILA section 135, 15 U.S.C. 1645; 12 
CFR 1026.12.
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    In 1968, Congress authorized the Board of Governors of the Federal 
Reserve System (Board) to issue regulations under TILA.\7\ In 2010, 
Congress transferred the ``consumer financial protection functions'' of 
the Board to the CFPB as an independent bureau in the Federal Reserve 
System.\8\ The CFPB's Regulation Z, originally based on the Board's 
Regulation Z, implements TILA.\9\
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    \7\ Public Law 90-321, title I, sec. 105, 82 Stat. 146, 148.
    \8\ See sections 1011(a) and 1061(b)(1) of the Consumer 
Financial Protection Act of 2010, 12 U.S.C. 5491(a), 5581(b)(1). 
Additionally, Congress has provided that ``the deference that a 
court affords to the Bureau with respect to a determination made by 
the Bureau relating to the meaning or interpretation of any 
provision of'' TILA or its implementing regulations, aside from 
certain provisions related to property appraisals, ``shall be 
applied as if the Bureau were the only agency authorized to apply, 
enforce, interpret, or administer the provisions of'' TILA and its 
implementing regulations. TILA sections 103(z), 105(h), 15 U.S.C. 
1602(z), 1604(h).
    \9\ 12 CFR part 1026.
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III. Standard for Preemption Under the Truth in Lending Act

A. TILA

    According to TILA section 111(a)(1), TILA does not ``annul, alter, 
or affect the laws of any State relating to the disclosure of 
information in connection with credit transactions, except to the 
extent that those laws are inconsistent with the provisions of [TILA], 
and then only to the extent of the inconsistency.'' \10\
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    \10\ 15 U.S.C. 1610(a)(1). This authority pertains to chapters 
1, 2, and 3 of TILA, which are codified as parts A, B, and C of 12 
U.S.C. ch. 41, subch. I. This determination refers to chapters 1, 2, 
and 3 of TILA as ``TILA'' for convenience. Chapters 4 and 5 of TILA, 
which are codified as parts D and E and known as the Fair Credit 
Billing Act and Consumer Leasing Act, respectively, are not 
implicated here and have separate preemption provisions.
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    As explained by TILA's legislative history, this provision ``sets 
forth the basic policy that the Federal statute does not preempt State 
legislation.'' \11\
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    \11\ S. Rep. No. 90-392, at 20 (1967); accord H.R. Rep. No. 90-
1040, at 30 (1967).
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B. Regulation Z

    Section 1026.28(a)(1) of the CFPB's Regulation Z implements the 
inconsistency standard from TILA section 111(a)(1).\12\ It is based on 
an identical provision in the Board's Regulation Z.\13\ There are three 
key sentences in the provision for purposes of this determination.
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    \12\ 12 CFR 1026.28(a)(1).
    \13\ 76 FR 79768, 79806-07 (Dec. 22, 2011); 46 FR 20848, 20906 
(Apr. 7, 1981) (codified at 12 CFR 226.28(a)(1)).
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    The first sentence, tracking TILA section 111(a)(1), provides that 
``State law requirements'' that are ``inconsistent'' with TILA and 
Regulation Z are preempted.\14\
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    \14\ 12 CFR 1026.28(a)(1) (first sentence). There are exceptions 
that are not relevant here. Id.
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    The second sentence provides, as an example, that a ``State law is 
inconsistent if it requires a creditor to make disclosures or take 
actions that contradict the requirements of the Federal law.'' \15\ The 
term ``creditor'' is a defined term in TILA and Regulation Z, referring 
to a person extending ``consumer credit.'' \16\
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    \15\ 12 CFR 1026.28(a)(1) (second sentence).
    \16\ 12 CFR 1026.2(a)(17)(i). There are other features of the 
definition of ``creditor'' that are not relevant here. Id.
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    The third sentence, in turn, provides examples of ``contradictory'' 
disclosures or actions by a creditor: ``A State law is contradictory if 
it requires the use of the same term to represent a different amount or 
a different meaning than the Federal law, or if it requires the use of 
a term different from that required in the Federal law to describe the 
same item.'' \17\
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    \17\ 12 CFR 1026.28(a)(1) (third sentence).
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    Based on Board precedents, the examples in the third sentence are 
only a subset of the second sentence, which in turn is only a subset of 
the first sentence.\18\ The structure of Sec.  1026.28(a)(1) is 
illustrated by Figure 1:
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    \18\ Put another way, when the second and third sentences use 
the word ``if,'' they do not mean ``if and only if.'' (Of course, 
use of language depends on context, and there are other statutory 
and regulatory contexts where ``if'' does imply ``if and only if.'') 
An example where the only the first sentence was applicable (but not 
the second or third), because there were no disclosures or actions 
by a ``creditor''--only by certain non-creditor loan brokers--was 53 
FR 3332, 3332-33 (Feb. 5, 1988) (Indiana). Regarding that 1988 
Indiana determination, see also note 54 below. In 1983, the Board 
that explained that sometimes both the first and second sentences 
are applicable (but not the third). That is when the State law does 
require disclosures or actions by a ``creditor,'' but the law does 
not ``deal with disclosures of terms and amounts.'' 48 FR 4454 (Feb. 
1, 1983) (Arizona, Florida, Missouri, and South Carolina).

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[[Page 19216]]

[GRAPHIC] [TIFF OMITTED] TR31MR23.031

    Because none of the four State commercial financing disclosure laws 
involve a TILA ``creditor,'' i.e., a person extending consumer credit, 
the second and third sentences are not applicable to those laws, and 
only the first sentence is potentially applicable.
    The requesting party submitted a comment arguing that the third 
sentence means that State laws are automatically preempted whenever 
they use the terms finance charge and APR to represent different 
amounts from Regulation Z. But this comment reads the third sentence 
out of its context. The third sentence provides examples of the second 
sentence's discussion of ``contradictory'' disclosures or actions by 
``creditors.'' Conduct by non-creditors is outside its scope and has to 
be analyzed using the overall inconsistency standard in the first 
sentence.\19\
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    \19\ The requesting party's comment also cites Regulation Z 
commentary discussing the third sentence of 12 CFR 1026.28(a)(1). 
The commentary provides two specific examples of types of State laws 
that would be preempted under the third sentence, but these 
commentary examples do not affect the present analysis of the 
regulation. The first example in the commentary explains that the 
third sentence's bar on a State law that ``requires the use of the 
same term to represent a different amount or a different meaning'' 
would include, as an example, a ``State law that requires use of the 
term finance charge, but defines the term to include fees that the 
Federal law excludes, or to exclude fees the Federal law includes.'' 
12 CFR part 1026, supp. I, comment 28(a)-2.i. The second example 
explains that the third sentence's bar on a State law that 
``requires the use of a term different from that required in the 
Federal law to describe the same item'' would include, as an 
example, a ``State law that requires a label such as nominal annual 
interest rate to be used for what the Federal law calls the annual 
percentage rate.'' Id., comment 28(a)-2.ii. The commentary, like the 
language in the third sentence it illustrates, is limited by its 
context to disclosures provided by TILA creditors.
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    The reading of the third sentence proffered by the requesting party 
would result in implausibly sweeping preemption. Although the 
requesting party focuses its argument on the finance charge and APR, 
the reading would logically prevent State disclosures--regardless of 
topic--from using other Regulation Z disclosure terms such as ``File 
#,'' ``Closing Date,'' ``Deposit,'' or ``County Taxes,'' without 
aligning with technical Regulation Z definitions that may have no 
connection with the topic of the State disclosures.\20\ Accordingly, 
the third sentence does not govern non-TILA-creditor contexts.
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    \20\ Id.; 12 CFR 1026.38 (Regulation Z closing disclosure for 
mortgage loans).
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C. Approach When Evaluating Inconsistency

    The notification of intent stated that the CFPB was considering 
whether it should clarify how the CFPB articulates the standard for 
TILA preemption and requested comment on that issue. The Attorney 
General of California commented that the standard should be understood 
to align with conflict preemption.
    The CFPB agrees that TILA's and Regulation Z's inconsistency 
standard aligns with conflict preemption. In conflict preemption, there 
is a conflict either when it is ``impossible'' to comply with both the 
Federal law and the State law (the impossibility prong) or when the 
State law ``stands as an obstacle to the accomplishment and execution 
of the full purposes'' of the Federal law (the obstacle prong).\21\ 
There is preemption under the obstacle prong when ``the purpose of the 
act cannot otherwise be accomplished--if its operation within its 
chosen field else must be frustrated and its provisions be refused 
their natural effect.'' \22\
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    \21\ Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-3 
(2000) (emphasis added).
    \22\ Id. at 373.
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    The Board's precedents align with conflict preemption. With respect 
to the impossibility prong, the Board at times assessed whether ``a 
creditor can comply with both the State and Federal provisions.'' \23\ 
However, State laws rarely or never make delivery of TILA disclosures 
impossible, so impossibility does not figure prominently in the Board's 
precedents.
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    \23\ 56 FR 3005, 3006 (Jan. 28, 1991) (New Mexico).
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    The Board's consideration of preemption instead typically focused 
on the obstacle prong. When determining whether disclosures or actions 
by a creditor contradicted TILA, the Board held that a State law is 
preempted when ``it significantly impedes the operation of the Federal 
law or interferes with the purposes of the Federal statute.'' \24\ When 
evaluating whether a State law regulating non-creditors was 
inconsistent with TILA, the Board used similar wording, considering 
whether the State law was ``inconsistent with the purpose of the 
Federal law'' and would ``undermine the intent of the Federal

[[Page 19217]]

scheme.'' \25\ The CFPB understands these to be applications of the 
obstacle prong.
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    \24\ E.g., 48 FR 4454 (Feb. 1, 1983) (Arizona, Florida, 
Missouri, and South Carolina).
    \25\ 53 FR 3332, 3333 (Feb. 5, 1988) (Indiana).
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    The conclusion that inconsistency under TILA aligns with conflict 
preemption is reinforced by case law. The District of Columbia Circuit 
has applied a conflict-preemption analysis when considering whether 
TILA preempted State law.\26\ The Ninth Circuit has observed, in the 
context of other statutes that use an ``inconsistency'' test for 
preemption, that ``when the preemption clause uses the term 
`inconsistent,' '' the analysis under the preemption clause and the 
analysis under conflict preemption ``effectively collapse into one.'' 
\27\
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    \26\ Williams v. First Gov't Mortg. & Invs. Corp., 176 F.3d 497, 
500 (D.C. Cir. 1999) (considering whether State law ``would defeat 
TILA's purposes'' or whether ``joint applicability of the two 
statutes would subject [the regulated party] to conflicting 
obligations'').
    \27\ Jones v. Google LLC, 56 F.4th 735, 741 (9th Cir. 2022).
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    In order to determine whether State law ``stands as an obstacle'' 
to TILA's purposes, it is necessary to carefully consider those 
statutory purposes. Congress has delineated TILA's main purposes in 
purpose provisions. The relevant purpose provision in most disclosure 
contexts, including the present one, is section 102(a): ``a meaningful 
disclosure of credit terms so that the consumer will be able to compare 
more readily the various credit terms available to him and avoid the 
uninformed use of credit.'' \28\ Thus, in order to be preempted on this 
basis, a State law has to frustrate the meaningful disclosure of credit 
terms to consumers that TILA and Regulation Z provide.
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    \28\ 15 U.S.C. 1601(a); see also, e.g., id. (``to protect the 
consumer against inaccurate and unfair credit billing and credit 
card practices''); 15 U.S.C. 1639b(a)(2) (purposes related to 
residential mortgage loan origination).
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    The group of consumer advocacy organizations argued in a comment 
that preemption under TILA should not be based on conflict with the 
purposes of TILA. The organizations expressed concern about the vague 
way in which purposes could conceivably be articulated to preempt State 
law.
    The CFPB notes that evaluating whether or not State law stands as 
an obstacle to a statute's purposes is a well-established prong of 
conflict preemption. The CFPB believes that the purposes of TILA, when 
carefully considered, provide appropriate guideposts for a narrow 
preemption standard that respects rather than undermines State law. 
When construing TILA's purposes, it is important to bear in mind that 
Congress's ``basic policy'' in drafting TILA was ``that the Federal 
statute does not preempt State legislation.'' \29\
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    \29\ S. Rep. No. 90-392, at 20 (1967); accord H.R. Rep. No. 90-
1040, at 30 (1967).
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D. States' Ability To Prescribe Additional Disclosures and Protections

    The Attorney General of California requested that the CFPB 
emphasize the statement in the Regulation Z commentary that: 
``Generally, State law requirements that call for the disclosure of 
items of information not covered by the Federal law, or that require 
more detailed disclosures,'' are not preempted.\30\ The CFPB agrees 
that these are examples of State disclosure laws that are generally not 
inconsistent with TILA or Regulation Z and so are not preempted.
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    \30\ 12 CFR part 1026, supplement I, comment 28(a)-3.
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    Relatedly, the group of consumer advocacy organizations asked the 
CFPB to note that TILA does not prevent States from affording greater 
protections to consumers. The CFPB agrees that, in the words of the 
District of Columbia Circuit: ``Nothing in TILA or its legislative 
history suggests that Congress intended the Act's disclosure regime to 
provide the maximum protection to which borrowers are entitled 
nationwide; States remain free to impose greater protections for 
borrowers.'' \31\
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    \31\ Williams v. First Gov't Mortg. & Invs. Corp., 176 F.3d 497, 
500 (D.C. Cir. 1999).
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E. Limited Extent of Preemptive Effect

    TILA section 111(a)(1) provides that, in a scenario where there is 
an inconsistency, State law is preempted ``only to the extent of the 
inconsistency.'' The Attorney General of California requested that the 
CFPB emphasize the principle articulated by the Board that ``preemption 
occurs only in those transactions in which an actual inconsistency 
exists between the State law and the Federal law.'' \32\ The CFPB 
agrees. The Board's approach honors TILA section 111(a)(1), which 
intrudes on State law only so far as is necessary to prevent 
inconsistency with TILA. For example, if an aspect of a State 
disclosure form would be inconsistent with TILA in some transactions, 
the State law is only preempted as applied to those transactions, and 
even in those transactions only the relevant aspect of the State 
disclosure form is preempted.\33\
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    \32\ 48 FR 4454, 4455 (Feb. 1, 1983) (Arizona, Florida, 
Missouri, and South Carolina).
    \33\ E.g., id. at 4455-57.
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IV. Legal Authority

    After establishing the inconsistency standard discussed above, TILA 
section 111(a)(1) provides that ``the Bureau shall determine whether 
any such inconsistency exists,'' upon the Bureau's own motion or upon 
the request of any creditor, State, or other interested party.\34\
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    \34\ 15 U.S.C. 1610(a)(1). Additionally, if the Bureau 
determines that a State-required disclosure is inconsistent, 
creditors located in that State may not make disclosures using the 
inconsistent term or form, and they incur no liability under the law 
of that State for failure to use such term or form, notwithstanding 
that such determination is subsequently amended, rescinded, or 
determined by judicial or other authority to be invalid for any 
reason. Id. The CFPB's procedures for TILA preemption determinations 
are set out in Regulation Z, 12 CFR part 1026, appendix A.
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    Congress added the authority for preemption determinations to 
section 111(a)(1) in 1980.\35\ According to the legislative history, 
Congress was concerned about ``current ambiguities'' regarding the 
interaction of TILA and State laws, which created uncertainty for 
creditors seeking to comply, but also wanted to maintain ``deference to 
the laws of the States.'' \36\ Congress retained the existing 
inconsistency standard but conferred authority on the Board, and later 
the CFPB, to determine whether State laws are inconsistent.\37\
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    \35\ Truth in Lending Simplification and Reform Act of 1980, 
Public Law 96-221, title VI, sec. 609, 94 Stat. 163, 173.
    \36\ S. Rep. No. 96-73, at 14 (1979); cf. H.R. Conf. Rep. No. 
96-842, at 80-81 (1980) (accepting Senate version). At the same 
time, Congress amended TILA to authorize the Board to make a 
``substantially the same in meaning'' determination, which is 
distinct from a preemption determination and not at issue in this 
proceeding, as explained in the discussion of Virginia below.
    \37\ Although the requesting party requested this preemption 
determination, it responded to the notification of intent with a 
comment questioning the CFPB's authority to determine that State 
commercial financing disclosure laws are not preempted. According to 
the comment, if TILA does not preempt the four States' laws, as the 
CFPB's preliminarily determined, then the CFPB's authority to make 
preemption determinations should similarly not extend to these laws. 
However, TILA authorizes the CFPB to determine ``whether'' there is 
an ``inconsistency,'' which necessarily includes the authority to 
reach the conclusion that there is no inconsistency. Moreover, the 
comment does not make any arguments challenging the CFPB's 
independent authority under section 554(e) of the Administrative 
Procedure Act, discussed in the notification of intent and also in 
the paragraph below.
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    In addition to the CFPB's authority under TILA, section 554(e) of 
the Administrative Procedure Act authorizes any agency, in its sound 
discretion, to issue a declaratory order to terminate a controversy or 
remove uncertainty.\38\ As the notification of intent explained, 
section 554(e) of the Administrative Procedure Act provides

[[Page 19218]]

an additional, independent source of authority for this proceeding. 
Agencies have long used declaratory orders to address whether or not a 
law that they administer preempts a State law.\39\
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    \38\ 5 U.S.C. 554(e).
    \39\ E.g., New York State Comm'n on Cable Television v. FCC, 749 
F.2d 804, 815 (D.C. Cir. 1984).
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    Although not required, the CFPB consulted the Board, Federal 
Deposit Insurance Corporation, Federal Trade Commission, National 
Credit Union Administration, and Office of the Comptroller of the 
Currency as part of its deliberative process.

V. California and New York

    This part V discusses the California Commercial Financing 
Disclosures Law \40\ and New York Commercial Finance Disclosure Law 
\41\ together, as they are the most similar of the four State laws at 
issue in this proceeding.
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    \40\ Cal. Fin. Code secs. 22800 to 22805; see also Cal. Code 
Regs. tit. 10, ch. 3, subch. 3.
    \41\ N.Y. Fin. Serv. Law secs. 801 to 812; see also N.Y. Comp. 
Codes R. & Regs., tit. 23, part 600.
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A. Provisions of the California and New York Laws

    Both the California and New York laws require ``providers'' to 
issue disclosures before consummation of certain commercial financing 
transactions, ``intended by the recipient for use primarily for other 
than personal, family, or household purposes'' (California) or ``the 
proceeds of which the recipient does not intend to use primarily for 
personal, family, or household purposes'' (New York).\42\ These 
contrast with the relevant TILA criterion for consumer credit, which is 
``primarily for personal, family, or household purposes.'' \43\ 
Accordingly, there was consensus among commenters that TILA 
disclosures, on the one hand, and California or New York disclosures, 
on the other, would not both be required in the context of any single 
transaction.
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    \42\ Cal. Fin. Code sec. 2280(d) (emphasis added); N.Y. Fin. 
Serv. Law sec. 801(b) (emphasis added).
    \43\ 15 U.S.C. 1602(i).
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    The California and New York disclosures include a ``finance 
charge'' and ``annual percentage rate'' (APR). These amounts are 
calculated by reference to the formulas that would hypothetically be 
used under the CFPB's Regulation Z in order to calculate the finance 
charge and APR, as if the transactions were consumer credit 
transactions, with certain specifications added by California and New 
York.\44\ There was disagreement among commenters about whether 
California's and New York's respective specifications result in 
different finance charges and APRs than would be generated under 
Regulation Z if it were hypothetically applicable, or whether they 
should instead be viewed as tailoring the finance charge and APR to the 
structures of certain types of commercial financing arrangements that 
are not shared by consumer credit transactions. For reasons discussed 
below, it is not necessary for the CFPB to resolve that specific 
debate.
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    \44\ Cal. Code Regs. tit. 10, secs. 940, 943; N.Y. Fin. Serv. 
Law secs. 801(e), 803-807; N.Y. Comp. Codes R. & Regs., tit. 23, 
secs. 600.2, 600.3. The California and New York disclosures use an 
``estimated'' finance charge or APR in some circumstances, but any 
difference between estimated and non-estimated amounts does not 
affect the CFPB's analysis below. Cf. 12 CFR 1026.5(c), 
1025.17(c)(2) (generally allowing use of estimates for Regulation Z 
disclosures when information is unavailable).
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B. Discussion

    After considering the comments, the CFPB concludes that the 
California or New York laws are not inconsistent with TILA and so are 
not preempted. No commenter has suggested that compliance with these 
State laws as well as with TILA and Regulation Z is ``impossible.'' 
\45\ The CFPB also does not believe that these State laws stand ``as an 
obstacle to the accomplishment or execution'' of TILA's purposes.\46\ 
As discussed above, the TILA purpose that is relevant here is ``a 
meaningful disclosure of credit terms so that the consumer will be able 
to compare more readily the various credit terms available to him and 
avoid the uninformed use of credit.'' \47\ TILA achieves this purpose 
by requiring disclosures for consumer credit. Consumers applying for 
consumer credit will continue to receive only TILA disclosures, which 
will assure meaningful disclosure of credit terms and allow consumers 
to compare the terms of consumer credit products, including their 
finance charges and APRs.\48\
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    \45\ Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73 
(2000).
    \46\ Id. The CFPB would reach the same conclusion however this 
concept is expressed, whether as ``significantly impedes the 
operation of the Federal law or interferes with the purposes of the 
Federal statute,'' e.g., 48 FR 4454 (Feb. 1, 1983) (Arizona, 
Florida, Missouri, and South Carolina), or ``inconsistent with the 
purpose of the Federal law,'' or ``undermin[ing] the intent of the 
Federal scheme,'' 53 FR 3332, 3333 (Feb. 5, 1988) (Indiana).
    \47\ TILA section 102(a), 15 U.S.C. 1601(a).
    \48\ A comment by a lender cited a statement in a 1982 
preliminary determination, not ultimately reflected in the final 
determination, that ``State provisions on disclosure of the cost of 
credit, analogous to the finance charge or annual percentage rate 
disclosures under Regulation Z, will be reviewed more strictly,'' 
because ``these disclosures are particularly significant.'' 47 FR 
16201, 16202 (Apr. 15, 1982). This statement simply reflects the 
fact that the finance charge and APR are important disclosures in 
the context of consumer credit transactions, and it does not advance 
the analysis here.
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    Businesses' understanding of credit available to them for business 
purposes is an important policy issue, but it is not a purpose of TILA 
and has been left to the States to address. As TILA's legislative 
history explains, Congress decided when enacting TILA in 1968 not to 
focus on lending to businesses: ``By limiting the bill to the field of 
consumer credit, the committee believes it is providing disclosure 
requirements in the area where it is most essential.'' \49\ Commenters 
advocating for preemption had a number of complaints about how 
businesses might be confused by the California and New York 
disclosures. However, these concerns about the merits of the State laws 
are properly addressed to State legislators or regulators. It is not 
appropriate to use TILA preemption to override States' judgments 
regarding how best to disclose information to businesses, which is not 
part of TILA's purposes.
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    \49\ S. Rep. No. 90-392, at 7 (1967).
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    Commenters advocating preemption have not shown that consumers--
when shopping for credit that they intend to use primarily for 
personal, family, or household purposes--would somehow be prevented 
from understanding the terms of credit available to them for those 
purposes, by State disclosures provided in different (business-purpose) 
transactions. The CFPB notes that Regulation Z places the 
responsibility for ascertaining the borrower's intended purpose on the 
would-be creditor.\50\ In any situation where a potential borrower is 
shopping for credit primarily for personal, family, or household 
purposes, the borrower would receive the Federal TILA disclosures for 
all potential transactions for those purposes--not the California or 
New York disclosures.\51\
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    \50\ 12 CFR part 1026, supplement I, comment 3(a)-1 (``A 
creditor must determine in each case if the transaction is primarily 
for an exempt purpose.'').
    \51\ Id. Relatedly, some commenters advocating preemption 
asserted that consumers who are also small businesspeople and 
receive the California or New York disclosures when applying for 
commercial financing will, in their personal lives, distrust the 
TILA finance charge and APR because they do not have consistent 
meanings across Federal and State law. However, these comments did 
not offer any evidence or other support for the assumption that 
these individuals would react to differences between the State 
commercial financing version and TILA consumer credit version with 
distrust of the TILA version, rather than an understanding that 
different calculations may be appropriate in the context of 
different types of transaction. The CFPB notes that within TILA and 
Regulation Z there can be significant differences in how the finance 
charge is calculated depending on the type of consumer credit 
transaction, but the CFPB is not aware of this causing distrust by 
consumers. As one illustration, compare 15 U.S.C. 1605(a)(4); 12 CFR 
1026.4(b)(4) (credit report fees included in finance charge for most 
consumer credit products) with 15 U.S.C. 1605(e)(6); 12 CFR 
1026.4(c)(7)(iii) (credit report fees generally excluded from 
finance charge in transactions secured by real property). Moreover, 
even assuming this scenario were to occur, the CFPB would not 
consider the issue to be so significant as to interfere with TILA's 
purpose of enabling consumers to compare consumer credit products.

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[[Page 19219]]

    TILA coverage depends on the primary purpose, so it is possible for 
a borrower to use the proceeds from a credit transaction primarily for 
business purposes but also to a lesser degree for personal purposes, in 
which case TILA disclosures would not be required. As noted above, 
TILA's disclosure regime concerned ``the area where it is most 
essential,'' namely ``consumer credit,'' which is an expansive category 
but subject to the primary-purpose standard.\52\ Congress could have 
required, but did not require, TILA disclosures whenever any minor 
portion of primarily-business credit might be used for a personal 
purpose. Given that Congress did not consider addressing those 
transactions to be necessary in order to achieve its purpose of 
ensuring that consumer credit shopping is informed, such transactions 
should not drive an assessment of whether State disclosure regimes 
interfere with Congress's purposes.
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    \52\ S. Rep. No. 90-392, at 7 (1967).
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    The requesting party submitted a comment likening the California 
and New York laws to an Indiana law that the Board determined was 
preempted in 1988, but they are quite different.\53\ The Indiana law 
required finance charge and APR disclosures in consumer credit 
transactions, with amounts that differed from TILA disclosures provided 
in the same transactions.\54\ In the Board's words, the Indiana law 
would ``undermine the intent of the Federal scheme by confusing 
consumers who will receive two different sets of disclosures--both 
purporting to describe the cost of credit--that contain different 
figures described by the same terminology.'' \55\ This type of concern 
is inapplicable in California and New York, where the consumer will 
receive only the Federal TILA disclosure forms when shopping for 
consumer credit.
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    \53\ 53 FR 3332, 3332-33 (Feb. 5, 1988) (Indiana).
    \54\ Although the Indiana law did not impose requirements on 
creditors, it required loan brokers to disclose a finance charge and 
APR to consumers, which differed from the finance charge and APR 
that TILA required creditors to provide to the very same consumers 
in the very same consumer credit transactions. Id. Because the 
Indiana law regulated loan brokers rather than creditors, only the 
first sentence of Sec.  1026.28(a)(1) (and not the second or third 
sentence) governed. But whether it was the loan broker or the 
creditor that provided the Indiana disclosure made little 
difference, and so even though the third sentence did not apply, the 
situation was analogous to the third sentence's bar on creditors 
providing State disclosures with differing amounts that contradict 
TILA disclosures.
    \55\ Id. at 3333.
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    Aside from State disclosure forms provided to borrowers 
individually, some comments asserted that advertisements for commercial 
financing that include APRs calculated using California or New York's 
formulas could cause confusion. As background, under Regulation Z there 
is a requirement that some advertisements for consumer credit 
transactions include the TILA APR.\56\ However, there is no parallel 
requirement under the California or New York commercial financing laws 
that commercial lenders include any APR-related statements in 
advertisements, so the premise of these comments appears mistaken. To 
the extent commercial lenders might conceivably choose to add the 
California or New York APRs to advertisements, that is not a 
requirement of those laws and not a basis to declare those laws' 
disclosure requirements to be inconsistent with TILA. As the first 
sentence of Sec.  1026.28(a)(1) states, only ``State law requirements'' 
that are inconsistent are preempted, not wholly voluntary practices 
that are independent of requirements.\57\ In any event, even assuming 
such voluntary practices could somehow support preemption, commenters 
have not provided any evidence that commercial lenders have an 
incentive to use the California or New York APRs in advertisements, 
which the same set of commenters assert tend to overstate the cost of 
credit.\58\
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    \56\ 12 CFR 1026.16, 1026.24.
    \57\ The Board at times considered how creditors were likely to 
comply with a State law requirement as context in considering 
whether the requirement is preempted. In particular, when the Board 
was faced with a State law that used certain terminology to describe 
an amount in a disclosure form, but did not expressly mandate that 
creditors use the law's terminology when labeling the amount in the 
disclosure form, the Board operated on the assumption that creditors 
would comply by using the State law's terminology in their 
disclosure forms. 48 FR 4454, 4455 (Feb. 1, 1983) (Arizona, Florida, 
Missouri, and South Carolina). For instance, if Missouri law 
required creditors to disclose what the text of the Missouri law 
called the ``principal balance,'' the Board assumed that creditors 
would go about complying by using the words ``principal balance'' in 
their disclosure forms, and the Board would not speculate about 
whether some synonym might also comply with the Missouri law. Id. at 
4455, 4456-57. But here, whether creditors choose to add the 
California or New York APR to advertisements is independent of the 
California and New York requirements to provide disclosure forms to 
each commercial borrower, not a method for complying with the 
disclosure-form requirements.
    \58\ Some commenters advocating preemption also invoked an 
additional hypothetical. As background, most consumer credit 
transactions above $66,400 (as inflation-adjusted annually) are 
exempt from TILA and Regulation Z, other than loans secured by real 
property, loans secured by personal property that is a principal 
dwelling, or private education loans. 87 FR 63671 (Oct. 20, 2022). 
The commenters argued that, if a State were to hypothetically 
require disclosures for consumer credit transactions above the 
$66,400 threshold, and also hypothetically were to require APR 
calculations that differ from Regulation Z's, it would be illogical 
to allow different APR disclosures depending on loan amount. 
However, the CFPB does not need to resolve whether there would be an 
inconsistency between that hypothetical State law and TILA, and it 
does not resolve that issue. The hypothesized scenario presents 
materially different issues to weigh compared to the California and 
New York laws, given that some consumers seeking credit primarily 
for personal, family, or household purposes might be unsure of what 
loan amount they want and so shop for credit above and below the 
$66,400 threshold. The California and New York disclosures would not 
be given to a consumer seeking credit primarily for personal, 
family, or household purposes of any amount.
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C. Determinations

    For these reasons, the Consumer Financial Protection Bureau 
determines that the California Commercial Financing Disclosures Law, 
Financial Code sections 22800 to 22805, is not inconsistent with 
chapters 1, 2, and 3 of the Truth in Lending Act.
    The Consumer Financial Protection Bureau also determines that the 
New York Commercial Finance Disclosure Law, Financial Services Law 
sections 801 to 811, is not inconsistent with chapters 1, 2, and 3 of 
the Truth in Lending Act.

VI. Utah

A. Discussion

    The Utah Commercial Financing Registration and Disclosure Act 
requires disclosures for certain commercial financing transactions, 
which do ``not include a transaction from which the resulting proceeds 
are intended to be used for personal, family, or household purposes.'' 
\59\ Consequently, it is not preempted for parallel reasons to 
California and New York. As an additional reason, because it does not 
require disclosure of a finance charge, APR, or other TILA-related 
disclosure, there would be no occasion for it to be preempted even if 
applicable to consumer credit transactions. The requesting party 
acknowledged in its comment that the Utah law is not preempted, and no 
other commenter provided reasons to support a determination that it is 
preempted.
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    \59\ Utah Code secs. 7-27-101 to 7-27-301; id. sec. 7-27-
101(4)(b). Besides disclosures, the statute also contains certain 
registration requirements that are plainly not preempted by TILA. 
Id. sec. 7-27-201.
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B. Determination

    For these reasons, the Consumer Financial Protection Bureau 
determines that the Utah Commercial Financing Registration and 
Disclosure Act, Utah Code sections 7-27-101 to 7-27-301, is

[[Page 19220]]

not inconsistent with chapters 1, 2, and 3 of the Truth in Lending Act.

VII. Virginia

A. Discussion

    Chapter 22.1 of title 6.2 of the Code of Virginia requires 
disclosures in connection with sales-based financing to a 
recipient.\60\ Based on the definition of ``sales-based financing,'' 
which is tied to sales or revenue of the recipient, and the definition 
of ``recipient,'' which must be ``a person whose principal place of 
business is in the Commonwealth,'' it appears that the Virginia law 
would not apply to a consumer credit transaction as defined in TILA and 
Regulation Z.\61\ To the extent it could apply to a consumer credit 
transaction, there would still be no basis to find an inconsistency 
with TILA. That is because the only TILA-related disclosure term used 
in the Virginia law is the finance charge, which the Virginia law's 
implementing regulation defines in precisely the same manner as 
Regulation Z.\62\ Because there is no difference in the amount that 
would be included in the Virginia disclosure compared to TILA and 
Regulation Z disclosures, there is no occasion to consider whether a 
difference in amount would be inconsistent with TILA and Regulation Z.
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    \60\ Va. Code tit. 6.2, ch. 22.1; see also 10 Va. Admin. Code 
secs. 5-240-10 to 5-240-40.
    \61\ ``Sales-based financing'' is defined as a transaction that 
is repaid by the recipient to the provider, over time, as a 
percentage of sales or revenue, in which the payment amount may 
increase or decrease according to the volume of sales made or 
revenue received by the recipient. Va. Code sec. 6.2-2228. Sales-
based financing also includes a true-up mechanism where the 
financing is repaid as a fixed payment but provides for a 
reconciliation process that adjusts the payment to an amount that is 
a percentage of sales or revenue. Id.
    \62\ 10 Va. Admin. Code sec. 5-240-10.
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    The requesting party has made an argument that the Virginia law's 
finance charge disclosure is nevertheless preempted. However, this 
argument appears to rely on a misunderstanding of an aspect of TILA 
that is distinct from the Act's preemption standard. TILA section 
111(a)(2), which neighbors the preemption provision in section 
111(a)(1), authorizes the CFPB to determine that a State disclosure 
``is substantially the same in meaning as'' a TILA disclosure.\63\ 
After the CFPB makes such a substantially-the-same-in-meaning 
determination, TILA creditors can provide the CFPB-endorsed State 
disclosure ``in lieu of'' the TILA disclosure, except that the finance 
charge and APR must still be disclosed as provided by TILA.\64\ 
However, the present proceeding involves a preemption determination, 
not a substantially-the-same-in-meaning determination.
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    \63\ 15 U.S.C. 1610(a)(2).
    \64\ Id.
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    The requesting party's comment appears to conflate section 
111(a)(2) (or more specifically the Regulation Z provision and 
commentary implementing section 111(a)(2) \65\) with the distinct 
question under section 111(a)(1) of whether State disclosures are 
preempted as inconsistent with TILA. The commenter appears to read 
section 111(a)(2) to mean that any State disclosure with a finance 
charge or APR is preempted. In fact, all that it does is guarantee 
that, when CFPB-endorsed State disclosures are provided ``in lieu of'' 
the normal TILA disclosures in consumer credit transactions, those 
State disclosure forms will still include the TILA finance charge and 
APR, so that consumers can use them to shop among consumer credit 
options.\66\
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    \65\ 12 CFR 1026.28(b); 12 CFR part 1026, supplement I, comment 
28(b)-1.
    \66\ The comment may also intend for this argument to extend to 
California and New York; if so, it would not succeed with respect to 
those States for the same reasons.
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B. Determination

    For these reasons, the Consumer Financial Protection Bureau 
determines that chapter 22.1 of title 6.2 of the Code of Virginia is 
not inconsistent with chapters 1, 2, and 3 of the Truth in Lending Act.

Rohit Chopra,
Director, Consumer Financial Protection Bureau.
[FR Doc. 2023-06719 Filed 3-30-23; 8:45 am]
BILLING CODE 4810-AM-P