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CFPB final rule aims to accelerate shift to open banking

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Banking, Emerging Technology
Friday, June 7, 2024

In a move to help accelerate a shift to open banking in the U.S., the Consumer Financial Protection Bureau (CFPB) finalized a rule outlining the qualifications an organization must demonstrate to be recognized as an industry standard-setting body to develop technical standards for protecting consumer data rights.

Such organizations will be tasked with issuing standards companies can refer to when crafting policies and systems to comply with the CFPB’s upcoming Personal Financial Data Rights Rule, implementing Sec. 1033 of the Dodd-Frank Act.

The rule provides a step-by-step application process, as well as criteria the CFPB plans to use in evaluating applications.

“Industry standards can be weaponized by dominant firms in order to maintain their market position, undermining competition for all,” CFPB Director Rohit Chopra said in a statement. “Today’s rule will prevent these firms from rigging standards in their favor by identifying attributes the CFPB will use to recognize standard setters.”

The rule aligns with the Dodd-Frank mandate requiring the bureau to work to guarantee consumers’ data privacy rights, noting that doing so could open up more opportunities for smaller financial institutions and startups offering products and services.

“Consumer electronic access to personal financial data, including and especially open banking, holds the potential to intensify consumer-friendly competition and innovation,” the final rule states. “Fair, open, and inclusive industry standard-setting plays a critical role in ensuring the open banking system reaches its full potential to benefit consumers and competition.”

Open banking, also referred to as “open finance,” is a financial services framework that allows consumers to control third-party access to their financial data through application programming interfaces (APIs).

In October 2023, the CFPB proposed a rule to provide consumers the following rights, which it plans to finalize it in the coming months:

·        Consumers must be able to obtain their data free of “junk fees,” meaning covered data providers must make personal financial data available at no charge to consumers or their agents, through dedicated digital interfaces that are safe, secure, and reliable.

·        Consumers have a legal right to grant third parties access to data about their credit card, checking, prepaid, and digital wallet accounts to help improve products and services.

·        Consumers may more easily walk away from providers that hold their data and shift to a competitor offering better or lower priced products and services.

Addressing commenter concerns

In response to several comments the bureau received about the proposal, the agency saw the need to clarify multiple definitions and criterion. For example, commenters asserted a need for clarification on the criteria for determining when a standard becomes a “consensus standard” and when it loses that status. The finalized rule states that a “consensus standard” must be adopted and maintained by a CFPB-recognized standard-setter. The final rule also replaces the term “qualified industry standard” with “consensus standard” and defines “recognized standard setter” to enhance clarity and ensure standards are fair and inclusive.

Commenters also raised concerns about market uncertainty if a standard loses consensus status, which would require financial institutions to adjust to new standards. The CFPB wrote that revocations would be rare and the bureau would provide guidance during such transitions.

The CFPB decided to extend the recognition period for standard-setting bodies from three to five years in the final rule, addressing concerns that frequent re-recognition might be burdensome to the industry. The bureau believes the extension will help provide stability and encourage more standard-setting bodies to seek recognition, ensuring that standards remain current. The five-year period also helps small data providers comply with the forthcoming Personal Financial Data Rights rule by offering a more extended period of certainty regarding standards. The rule also requires periodic reviews to avoid outdated standards and to keep governance practices aligned with established attributes.

Evaluation criteria

To be recognized by the CFPB, the standard setters must apply to the CFPB and display the following attributes:

·        Openness: Recognized standard-setting organizations must be committed to keeping the process open to all interested parties and creating standards that are not rigged in favor of any set of industry players. Interested parties may include public interest groups, app developers, and a broad range of financial firms with a stake in open banking.

·        Transparency: Procedures must be transparent to participants and publicly available.

·        Balanced decision-making: The decision-making power to set standards must be balanced across all interested parties, including public interest groups, large and small commercial entities and without allowing a single special interest to dominate the decision-making process.

·        Consensus: Standards development must proceed by consensus, but does not necessarily need to be unanimous. Comments and objections must be considered using fair and impartial processes.

·        Due process and appeals: The standard-setting body must use documented and publicly available policies and procedures, provide adequate notice of meetings, sufficient time to review drafts and prepare views and objections, access to views and objections of other participants, and a fair and impartial process for resolving conflicting views. The rule also would create an appeals process for the impartial handling of procedural appeals.

The CFPB set the rule’s effective date for 30 days after its publication in the Federal Register, consistent with section 553(d) of the Administrative Procedure Act.

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