CFPB Extends Comment Period for Debt Collection NPRM to Sept. 18, iA Provides Perspective on What Could Happen

Today, the Consumer Financial Protection Bureau (CFPB) announced that it is extending the comment period for the Notice of Proposed Rulemaking (NPRM) for debt collection to September 18, 2019, one month past the original comment deadline.

According to the Federal Register, the CFPB received "[t]wo written requests from consumer advocates and an industry trade group" that asked to extend the comment period by 60 to 90 days. "The requests indicate that the interested parties would use the time to conduct additional outreach to relevant constituencies and to properly address the many questions presented in the NPRM." 

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insideARM Perspective

For those drafting comments to the 500-page long NPRM, an extension might come as a sigh of relief. However, it's important to note that an extension has certain implications.

Once the comment period closes, it could take roughly a year for a final rule to be proposed. Congress receiving the final rule in mid-September means that the Congressional Review Act's 60-day clock—which allows Congress to kill a regulatory rule and prevents any new similar rule—would be running right around election time. What happens if the election shifts the current power dynamic? What happens if it takes longer than one year for the final rule to be introduced to Congress, putting the Congressional Review Act deadline at a point when the new Congress is seated?

The Congressional Review Act doesn't just kill a bill—it prevents the agency (in this case, the CFPB) from submitting a substantially similar rule without new statutory authorization. Two years ago, we saw the CFPB's Arbitration Rule meet its bitter end when the Congressional Review Act was invoked. Could this happen again with the CFPB's debt collection NPRM that, with some recommended tweaks, could both provide debt collectors the long-desired clarity on compliance with the Fair Debt Collection Practices Act and bring them into the 20th century (no, that is not a typo) by allowing emails and voicemails? If it does, debt collectors could be left without further guidance indefinitely.

The good news is that the NPRM is, generally, a thoroughly thought-out rule. It needs some changes, but for the most part, it is fairly comprehensive and clear about what it allows and what it doesn't. Considering that the CFPB has been working on the debt collection rules for many years, it may not take a full year for the final rule to be released. If that's the case, then the Congressional Review Act situation might be avoided and the industry can finally have its guidebook of rules.