There are many ways to access the CFPB’s final debt collection rule. Here are some tips to find the format that works best for your business. Editor’s note: This article is for members only.
4/5/2021 12:30
By Colin Winkler
In discussions with ACA International members over the past few months, it’s become clear to me that while just about everyone in the accounts receivable management (ARM) industry seems acutely—one might even say “painfully”—aware that we have a historic new set of Fair Debt Collection Practices Act rules in place, not everyone understands exactly where to find the rule content or how it has been organized, presented and published by the federal government.
Here, we explain the history of Regulation F as amended by the two recent final rules that the Consumer Financial Protection Bureau issued in October and December 2020; provide guidance on where to find these final rules; explain how ACA’s compliance department regard these resources; and explore how members should be navigating the content of the resulting amendments to Reg F.
A Brief History of Reg F
First, understand that Regulation F refers to a federal regulation, which some refer to as a rule, issued by the CFPB under the rulemaking authority granted to the agency through the Dodd-Frank Act of 2010.
Technically, Reg F has been part of the Code of Federal Regulations since December 2011. But that current version of Reg F doesn’t say much; it merely reflects a wholesale adoption of the Federal Trade Commission’s rule on FDCPA state exemptions following the transfer of FDCPA rulemaking authority to the CFPB. If you were to look at the current version of Regulation F as it appears in the CFR today, you’d find just eight short sections of regulatory law, none of which really required any attention from collection agencies.
Since then, the whole debt collection world has been waiting—for nearly a decade—for an amendment to Reg F. And in late 2020, we got one.
When you hear folks refer to “the new rule,” they’re referring to Reg F, as amended by two final rules issued by the CFPB: one issued on Oct. 30, 2020, and a second one issued on Dec. 18, 2020.
These two final rules were published in the Federal Register on Nov. 30, 2020, and Jan. 19, 2021, respectively. (For those who may not know, the Federal Register is the federal government’s daily publication for rules, proposed rules, notices, orders and other presidential documents.) In case you haven’t picked this up from our prior articles, these two final rules amending Reg F will both take effect on Nov. 30, 2021.
That’s the brief—and not entirely complete—history of Reg F: two final rules issued by the CFPB late in 2020, both amending a regulation that’s technically been on the books for nearly a decade, which the CFPB lifted wholesale from the FTC’s regulations after the passage of Dodd-Frank.
Where to Find the Rule Content
Reg F is available in several formats, any of which might be useful for a given purpose.
First, the CFPB published, for lack of a better term, “unformatted” PDF copies of the two final rules at the time it issued them. ACA’s compliance department thinks of these as the “CFPB’s PDFs.” They can be found on the CFPB’s website:
- CFPB PDF of the October 2020 final rule: https://www.consumerfinance.gov/documents/9275/cfpb_debt-collection_final-rule_2020-10.pdf
- CFPB PDF of the December 2020 final rule: https://www.consumerfinance.gov/documents/9423/cfpb_debt-collection_final-rule_2020-12.pdf
If you’re looking for an easy-to-read format, those PDFs straight from the bureau will be the versions that you want to read. If you download them, the PDFs will reveal the bureau’s bookmarks , which will make it easy to navigate the documents and jump from section to section—including each part of the bureau’s prefatory section-by-section analyses, the enumerated sections of the two rules, and the binding comments set forth at Supplement I (aka the “Official Interpretations”).
If you’re looking for a more, shall we say, formal version of the rules’ content, go straight to the Federal Register, where you can get Reg F copy in two flavors: the electronic versions or PDF versions that show how the rules look as printed in the physical Federal Register. You can find these at the links below:
October 2020 final rule:
- Electronic Federal Register:
https://www.federalregister.gov/documents/2020/11/30/2020-24463/debt-collection-practices-regulation-f - PDF of print Federal Register:
https://www.govinfo.gov/content/pkg/FR-2020-11-30/pdf/2020-24463.pdf
December 2020 final rule
- Electronic Federal Register
https://www.federalregister.gov/documents/2021/01/19/2020-28422/debt-collection-practices-regulation-f - PDF of print Federal Register
https://www.govinfo.gov/content/pkg/FR-2021-01-19/pdf/2020-28422.pdf
For the record—pun intended—whenever ACA’s compliance department provides a formal citation to these final rules, we try to provide the citation to the relevant Federal Register publication, e.g., “Debt Collection Practices (Regulation F), 85 Fed. Reg. 76734 (Nov. 30, 2020).”
That’s because these versions of the October and December final rules, published in the Federal Register, will be universally cited (including by courts, where necessary) and preserved for posterity for all the world to remember.
The two final rules that comprise the full scope of amendments to Reg F will eventually be published in the Code of Federal Regulations. Based on my read of the CFR’s publication cycle, however, the parts of the rule that will end up in the CFR—i.e., the enumerated sections, subparts, appendices, and Supplement I (the official comments)—will not be published in the CFR until Jan. 1, 2022. (Note that the section-by-section analysis discussed below will not make it into the CFR, but it’s worth hanging onto because the CFPB provided some helpful content that explains why it wrote certain parts of the final rules the way that it did.)
Finally, it’s worth noting that the CFPB has now published the amended Reg F on its “interactive bureau regulations” webpage—hat tip to ACA member John Bedard Jr., owner of Bedard Law Group, P.C., for being the first to point this out.
This interactive online version of the final consolidated regulation that will take effect on Nov. 30, 2021, might be the easiest way to navigate Reg F. It’s cleanly bookmarked, and the bureau has helpfully added the official interpretations (also referred to as “comments”) following the sections of the rule to which each comment applies. It’s pretty slick, and you can find it here:
Interactive Bureau Regulations 12 CFR Part 1006 (Regulation F):
www.consumerfinance.gov/rules-policy/regulations/1006/2021-11-30/1/
Navigating the Rules
The last word on this primer about “reading the rule” must be this: structure. You’ve probably heard commentators say it before, but the October 2020 final rule runs about 650 pages in the CFPB’s PDF version, and the December 2020 final rule runs about 350 pages in the same format. So that’s about 1,000 pages of double-spaced PDF to get through if you want to digest the whole thing.
But do you need to read the whole thing? My answer to that is: Yes. If that feels overwhelming, at a minimum you need to know how to navigate it.
The two final rules each comprise several prefatory sections including a summary; background; description of the rulemaking process; substantiation of the legal authority on which the rules rest; a section-by-section analysis; discussion of the effective date; and required federal analyses under Dodd-Frank, the Regulatory Flexibility Act, the Paperwork Reduction Act, and the Congressional Review Act.
Among those prefatory materials, you want to spend the most time reviewing the section-by-section analysis (SbSA) whenever you need to dive into a given provision of the rule. The SbSA gives a window into what the bureau had in mind when it adopted the various provisions of the final rules, and while the SbSA might not be binding, it contains some illuminating nuggets of insight.
Additionally, and most obviously, the rules contain the enumerated provisions that will make up the final regulation to be codified at Part 1006 of Title 12 of the Code of Federal Regulations. These provisions compose the general facets of the rule, like the section on the collection of time-barred debts (Section 1006.26) or the section on communications in connection with debt collection (Section 1006.6).
But within each section you’ll find the prized information and traps for the unwary that you’ve probably heard various analysts discussing since we first laid eyes on the October rule release.
Those individual provisions buried within each section hold the keys to understanding the final rule. For instance, the “limited-content message” exists only as part of the definitional section of the rule, i.e., as subparagraph (j) of Section 1006.2. Similarly, the “call frequency limitations” provision of the rule exists as subparagraph (b)(2) of Section 1006.14, which addresses harassing, oppressive or abusive conduct.
The Importance of Supplement I
Finally, do not forget about Supplement I to Part 1006, the “Official Interpretations.”
Let me repeat that: Do not forget about the Official Interpretations. They’re critical to unlocking many of the mysteries of the rule. The specific official interpretations can be referred to as “comments.” For instance: Comment 2(j)-1, which discusses the limited-content message “in general,” makes clear that “[i]f a voicemail includes content other than the specific items described in § 1006.2(j)(1) and (2), and such other content directly or indirectly conveys any information about a debt, the message is a communication, as defined in § 1006.2(d).”
That’s helpful information because it telegraphs that the limited-content message will almost certainly be strictly construed under the rule, and it seems likely that courts will be beholden to the bureau’s solution to the Foti conundrum. But that remains to be seen (and litigated, and decided) by folks smarter than me.
In any event, I’ll say it a third time: check out the Official Interpretations.
With that, you should have a clear picture of where to look for the rule, what the various modes of publication (original PDF, electronic Federal Register, PDF from the printed Federal Register, and the bureau’s handy online mashup) can do for you, as well as how to read the rule once you find it.
Colin Winkler is ACA International’s corporate counsel.