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House reps press CFPB to reopen comments on larger participant rule

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Inside the Beltway
Friday, February 2, 2024

The Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra received a letter from members of the House Financial Services Committee (FSC) pushing back against the bureau’s proposal to expand its supervisory authority over “Big Tech” companies in the financial space. The representatives argued the bureau should reopen the comment period and reconsider finalizing the rule as proposed.

The letter was endorsed by FSC Chair Patrick McHenry (R-N.C.), Rep. Mike Flood (R-Neb.) and Rep. French Hill (R-Ark.), who also chairs the House Subcommittee on Digital Assets, Financial Technology and Inclusion.

The lawmakers asserted the rule does not adequately establish the bureau’s jurisdiction over “larger participant” entities referred to by the rule and it is unclear what impact it would have on digital assets. They also argued the rule would be “burdensome” and that the bureau is “overreaching” its supervisory authority.  

They asserted the rule relies too heavily on its regulatory prerogative under the Dodd-Frank Act and fails to analyze costs, the impact on competition and potential consumer harm. They also assert flaws in the bureau’s stated precedent for the rule, noting, for example, the broad definition of “service provider” under Dodd-Frank may raise questions about what third-party entities the rule would cover.  

“Citing flawed bureau precedent, the proposed rule reiterates that ‘[t]he bureau need not conclude before issuing a [larger participant rule] that the market identified in the rule has a higher rate of non-compliance, poses a greater risk to consumers, or is in some other sense more important to supervise than other markets,’” the letter states. “In fact, the proposed rule fails to provide any evidence of non-compliance with federal consumer financial laws or explain how it would be addressed by this new regulation. Disregarding such considerations allows the bureau to wield a concerning degree of power when issuing a larger participant rule.”

Additionally, the legislators argued the bureau failed to establish the rule’s necessity and the agency should forgo finalizing it before providing “a more detailed analysis of the scope of the proposed rule and its impact.”   

Another piece of regulatory uncertainty within the rule, the legislators cited, pertains to digital asset payments. Specifically, they took issue with the rule’s inclusion of digital assets as “funds,” as well as other ambiguities.

“As written, it is unclear when the rule would apply to specific entities within the digital asset ecosystem,” the letter states. “On one hand, the proposed rule explicitly states that fiat-to-crypto and crypto-to-crypto transactions conducted on an exchange would not be covered. However, it remains unclear if this exclusion would exempt digital asset exchanges entirely, or only in instances where they offer services limited to the conversion of fiat-to-crypto and crypto-to-crypto transactions. If the latter is true, then digital asset exchanges may be dissuaded from expanding their services to allow for peer-to-peer transactions through wallets hosted on the platform.”

To address the concerns cited in the letter, the lawmakers argued that a 60-day comment period extension is warranted, noting the importance of stakeholder input to address regulatory uncertainty.

Financial industry advocates have largely expressed support for the proposed rule along with some recommended updates to ensure it appropriately applies to nonbanks in need of the most supervision.  

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