What is Section 1071, and Why is it Important for Your Institution? 

In the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) of 2010, Congress directed the Consumer Financial Protection Bureau (the Bureau) to adopt regulations that will govern data collection for small business lending. Section 1071 of Dodd-Frank amended the Equal Credit Opportunity Act (ECOA) to require financial institutions to collect and submit specific data to the Bureau, which relates to applications for credit from women-owned, minority-owned, and small businesses. 

On September 1, 2021, the Bureau issued a proposed rule to amend Regulation B to implement the Section 1071 changes to ECOA. In the proposed rule, the Bureau outlines a requirement for covered financial institutions to begin collecting and reporting data on small business credit applications, including those small businesses owned by minorities and women. According to the Bureau, “the proposal also addresses our approach to privacy interests; shielding certain demographic data from underwriters and other persons; recordkeeping requirements; enforcement provisions; and the proposed rule’s effective and compliance dates”. 

In order to understand the key elements of the Bureau’s proposals, it is important to first understand how the Bureau is looking to define certain aspects of the proposed rule. In the sections below, we will summarize the Bureau’s proposals for how covered financial institutions, credit transactions, and small businesses may be defined, pending a final rule that will be forthcoming.

Covered Financial Institutions

The Bureau is proposing to apply the section 1071 requirements to financial institutions that satisfy an origination threshold and, as such, are considered covered financial institutions. The origination threshold would be any covered financial institution that originates at least 25 covered credit transactions to small businesses in the two previous calendar years.

Covered Credit Transactions

The Bureau is proposing that a covered credit transaction be defined as a transaction that meets the definition of business credit under Regulation B. This would include, among other items, small business loans, lines of credit, credit cards, and merchant cash advances (including credit for agricultural purposes and those covered by the Home Mortgage Disclosure Act). Even if the credit satisfies the definition of business credit, several types of credit transactions would not be considered a covered credit transaction:

• Public utility credit as defined in Regulation B;
• Securities credit as defined in Regulation B;
• Financing arrangements where a business acquires goods or services without making an immediate payment; and 
• Incidental credit as defined in Regulation B, without regard to whether the credit is extended to a consumer, by a creditor, or whether the credit is consumer credit.

Small Businesses Definition

The Small Business Act and Small Business Administration (SBA) regulations provide definitions for a business concern and small business concern. The Bureau proposes defining small businesses by referencing these definitions. However, instead of using the size standard for defining a small business as set out by the SBA, the Bureau’s proposed definition would include determining whether a business had $5 million or less in gross annual revenue for its preceding fiscal year. Within their proposed summary, the Bureau states they are seeking SBA approval for this alternate small business size standard. 

What does this mean for you and your institution?

The Bureau received public comments on the proposed rule on January 6, 2022. They are currently reviewing those comments in preparation for a proposed final rule for Section 1071. There are other nuances to the proposed rule and its various elements that are not included here. However, we wanted to highlight some of the key points of the potential challenges institutions may face and what you can do to begin preparing. 

Potential challenges to be aware of:  

• There will potentially be a short implementation period (18 months).
• Additional training will be needed for commercial lenders, including using a commercial application.
• The guidance will create a separate and distinct data collection and reporting process subject to additional monitoring and analysis for fair lending purposes.
• Potential scrutiny from regulatory agencies and consumer groups is a possibility, therefore data integrity will be key.

In the interim, it is important for your institution to conduct an assessment to determine your preparedness by: 

• Examining internal policies, procedures, and practices to determine whether your institution would fall under the proposed definition of a covered financial institution.  
• Review and understand the proposed covered credit transaction and small business definitions to see how those align with your institution’s current internal policies, practices, and definitions.
• Review the proposed data collection chart linked below to understand the amount and type of data that the Bureau is proposing would be required for your institution to collect and report.
• Pay special attention to how your institution may be required to collect and report such information and the methods by which the data can be collected.
• Assess whether or not your institution is collecting some of this data today and, if not, what changes may need to be made in order to ensure timely and accurate collection of the proposed required data.

If you have not already begun preparing for Section 1071, time is of the essence for your institution to begin internal assessments and preparations. CRI understands that reviewing and interpreting section 1071 can be time-consuming and confusing. For help navigating the new requirements, contact a CRI advisor today. We can provide assistance in order to ensure your institution is prepared and the implementation process runs smoothly and efficiently.