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[Federal Register Volume 80, Number 76 (Tuesday, April 21, 2015)]
[Rules and Regulations]
[Pages 22091-22094]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-09244]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 80, No. 76 / Tuesday, April 21, 2015 / Rules 
and Regulations

[[Page 22091]]

BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Parts 1024 and 1026

RIN 3170-AA52

Homeownership Counseling Organizations Lists and High-Cost 
Mortgage Counseling Interpretive Rule

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is 
reissuing a prior interpretive rule regarding the provision of lists of 
HUD-approved housing counseling agencies to mortgage loan applicants 
with additional interpretations describing permissible addresses for 
list generation, as well as additional details for generation. This 
interpretive rule also provides guidance, in addition to existing 
commentary, on the qualifications for providing high-cost mortgage 
counseling and on lender participation in such counseling. This 
interpretive rule continues to describe data instructions for lenders 
to use in complying with the requirement under the High-Cost Mortgage 
and Homeownership Counseling Amendments to the Truth in Lending Act 
(Regulation Z) and Homeownership Counseling Amendments to the Real 
Estate Settlement Procedures Act (RESPA Homeownership Counseling 
Amendments) Final Rule to provide a homeownership counseling list using 
data made available by the Bureau or Department of Housing and Urban 
Development (HUD).

DATES: This rule is effective April 21, 2015.

FOR FURTHER INFORMATION CONTACT: Rachel Ross, Special Assistant; 
Nicholas Hluchyj, Senior Counsel; Office of Regulations, Consumer 
Financial Protection Bureau, 1700 G Street NW., at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Background

    The Bureau previously issued an interpretive rule \1\ (2013 HC 
Interpretive Rule) to assist lender compliance with the homeownership 
counseling list requirements of High-Cost Mortgage and Homeownership 
Counseling Amendments to the Truth in Lending Act (Regulation Z) and 
Homeownership Counseling Amendments to the Real Estate Settlement 
Procedures Act (RESPA Homeownership Counseling Amendments) Final Rule 
(2013 HOEPA Final Rule). Based on input the Bureau has received through 
informal discussion and outreach with stakeholders, the Bureau is 
issuing this interpretive rule, which substantively restates the 
guidance in the 2013 HC Interpretive Rule and adds further guidance to 
address additional questions stakeholders have raised. Specifically, 
the Bureau has received questions about: (1) How to provide applicants 
abroad with homeownership counseling lists; (2) permissible geolocation 
tools; (3) combining the homeownership counseling list with other 
disclosures; and (4) use of a consumer's mailing address to provide the 
list. The Bureau has also received questions and requests for guidance 
about the high-cost mortgage counseling requirements in the 2013 HOEPA 
Final Rule, specifically concerning counselor qualifications to provide 
such counseling and lender participation in high-cost mortgage 
counseling.
---------------------------------------------------------------------------

    \1\ 78 FR 68343 (Nov. 14, 2013).
---------------------------------------------------------------------------

    To facilitate compliance and make the Bureau's guidance on these 
questions more generally accessible, the Bureau is issuing this 
official Bureau interpretation to add guidance to the 2013 HC 
Interpretive Rule to address these additional issues. Along with the 
new guidance, the instructions in the 2013 HC Interpretive Rule are 
republished here substantively as previously issued to keep all of this 
related information together for the convenience of stakeholders. New 
material is added to parts II. B, Location by Zip Code, and D, 
Accompanying Information, and new parts II. E and III. are added to 
discuss combining the homeownership counseling list with other 
disclosures and high-cost mortgage counseling, respectively.\2\
---------------------------------------------------------------------------

    \2\ The discussion in this interpretive rule uses the terms 
``lender'' or ``creditor,'' as appropriate. Part II, which addresses 
Regulation X, uses the term ``lender'' consistent with Regulation X. 
Part III, which addresses Regulation Z, uses the term ``creditor'' 
consistent with Regulation Z.
---------------------------------------------------------------------------

    In January 2013, pursuant to the Dodd-Frank Wall Street Reform and 
Consumer Protection Act (Dodd-Frank Act), Public Law 111-203, 124 Stat. 
1375 (2010), the Bureau issued the 2013 HOEPA Final Rule.\3\ The 2013 
HOEPA Final Rule implemented numerous Dodd-Frank Act requirements. 
Section 1450 of the Dodd-Frank Act amended section 5(c) of the Real 
Estate Settlement Procedures Act (RESPA) to require lenders to provide 
federally related mortgage loan applicants with a ``reasonably complete 
or updated list of homeownership counselors who are certified pursuant 
to section 106(e) of the Housing and Urban Development Act of 1968 (12 
U.S.C. 1701x(e)) and located in the area of the lender.'' \4\ The RESPA 
Homeownership Counseling Amendments implement this section 1450 
amendment in Regulation X Sec.  1024.20(a).
---------------------------------------------------------------------------

    \3\ 78 FR 6855 (Jan. 31, 2013).
    \4\ Section 106(e) of the Housing and Urban Development Act of 
1968, 12 U.S.C. 1701x(e), requires that homeownership counseling 
provided under programs administered by HUD can be provided only by 
organizations or individuals certified by HUD as competent to 
provide homeownership counseling. Section 106(e) also requires HUD 
to establish standards and procedures for testing and certifying 
counselors.
---------------------------------------------------------------------------

    In implementing this Dodd-Frank Act requirement, Sec.  
1024.20(a)(1) requires lenders to provide the loan applicant with a 
written list of homeownership counseling organizations that provide 
relevant services in the loan applicant's location. The Bureau 
specified two compliance methods for obtaining this list: (1) Using a 
tool developed and maintained by the Bureau on its Web site,\5\ or (2) 
using data made available by the Bureau or HUD, provided that the data 
are used in accordance with instructions provided with the data.\6\ The 
Bureau noted the use of the data in accordance with these instructions 
would produce a list consistent with what would have been generated if 
the

[[Page 22092]]

tool had been used.\7\ This rule interprets Sec.  1024.20(a)(1) of 
Regulation X, as adopted by the RESPA Homeownership Counseling 
Amendments, and describes those data instructions.
---------------------------------------------------------------------------

    \5\ See www.consumerfinance.gov/find-a-housing-counselor.
    \6\ These two pathways are specified in Sec.  1024.20(a)(1)(i) 
and (ii), respectively.
    \7\ 78 FR 6865 (Jan. 31, 2013).
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    The Bureau's tool, as discussed in Sec.  1024.20(a)(1)(i), follows 
these data instructions.

II. List and Data Instructions

    This rule interprets the Regulation X Sec.  1024.20(a)(1) 
requirement for lenders to provide a list of homeownership counseling 
organizations and to obtain the list from data made available by the 
Bureau or HUD, provided the data are used in accordance with 
instructions provided with the data.\8\ This rule describes 
instructions for lenders to use in complying with the Sec.  
1024.20(a)(1)(ii) requirement to generate a list of homeownership 
counseling organizations by using data provided by the Bureau or HUD.
---------------------------------------------------------------------------

    \8\ RESPA and Sec.  1024.20(a)(1) refer to counseling entities 
as Homeownership Counseling Organizations. HUD refers to them as 
HUD-approved Housing Counseling Agencies. Homeownership Counseling 
Organizations as referred to in Sec.  1024.20(a)(1) and this rule 
are HUD-approved Housing Counseling Agencies.
---------------------------------------------------------------------------

    HUD currently provides the data needed to comply with the 
Regulation X Sec.  1024.20(a)(1) list requirement. HUD maintains a free 
and publicly available application programming interface (API) 
containing data on HUD-approved housing counseling agencies (HUD API). 
Although it appears on this site that a token is required to use the 
data, credentials are not required to access and use the data. These 
data instructions are designed to be applied with publicly available 
homeownership counselor agency data from HUD,\9\ as referenced in Sec.  
1024.20(a)(1)(ii). The Bureau also has a summary of the data 
instructions available on the Bureau's Web site, along with a link to 
the publicly available housing counseling agency data.\10\
---------------------------------------------------------------------------

    \9\ Available at: http://data.hud.gov/housing_counseling.html.
    \10\ Summary of Data instructions available at http://files.consumerfinance.gov/f/201311_cfpb_summary_homeownership-counseling.pdf. Homeownership Counseling Organization data is 
available at http://data.hud.gov/housing_counseling.html.
---------------------------------------------------------------------------

A. Number of Homeownership Counselors To Appear on List

    Regulation X Sec.  1024.20(a)(1) requires lenders to provide a 
written list of homeownership counseling organizations. Consistent with 
Sec.  1024.20(a)(1), lenders comply with this requirement when they 
provide a list of ten HUD-approved housing counseling agencies. The 
tool maintained by the Bureau will generate a list of ten HUD-approved 
housing counseling agencies. A lender-generated list under Sec.  
1024.20(a)(1)(ii) complies with Sec.  1024.20(a)(1) when the same 
number of counseling agencies are provided. Listing ten housing 
counseling agencies ensures fairness and equity among housing 
counseling agencies, by offering loan applicants a thorough and diverse 
list of counseling options.

B. Location by Zip Code

    Regulation X 1024.20(a)(1) requires lenders to provide a written 
list of homeownership counseling organizations in the loan applicant's 
location. As the Bureau discussed in the RESPA Homeownership Counseling 
Amendments, lenders comply with Sec.  1024.20(a)(1) when they use the 
loan applicant's five-digit zip code to generate a list of the ten 
closest HUD-approved housing counseling agencies to the centroid of the 
zip code of the loan applicant's current address, in descending order 
of proximity to the centroid. Lenders are also permitted to generate 
the list from a more precise geographic marker, such as a street 
address. The loan applicant's current zip code satisfies the 
requirement that the homeownership counseling organizations be in the 
loan applicant's location. The zip code of the loan applicant's current 
address generally is the default to be entered for list generation, 
subject to additional guidance below concerning use of the loan 
applicant's mailing address and circumstances where a zip code is not 
available. Lenders may offer loan applicants the option of generating 
the list from a zip code different than their home address or from a 
more precise geographic marker such as a street address, but lenders 
are not required to offer such an option. The Bureau's tool will permit 
generating the list of HUD-approved housing counseling agencies through 
entry of zip code. A lender-generated list pursuant to Sec.  
1024.20(a)(1)(ii) complies with Sec.  1024.20(a)(1) when the lender 
generates the list through entry of zip code or from a more precise 
geographic marker such as a street address. Lenders generating a list 
pursuant to Sec.  1024.20(a)(1)(ii) through zip code or from a more 
precise geographic marker such as a street address will ensure that 
lists generated under this provision are obtained through similar means 
as those generated through the Bureau's tool, pursuant to Sec.  
1024.20(a)(1)(i), thus ensuring consistency.
    In circumstances where the applicant's current address does not 
include a five-digit zip code, e.g., the applicant currently lives 
overseas, making it impossible to generate a list based on the zip code 
of the applicant's current address, the lender may use the five-digit 
zip code of the property securing the mortgage to generate the list.
    Additionally, there may be circumstances where an applicant's 
current and mailing addresses are different. For example, an applicant 
residing in a remote area may receive mail at a post office box. In the 
case in which an applicant's current and mailing address are different, 
a lender using an applicant's mailing address instead of the current 
address to generate the list would be consistent with the requirement 
that the list be generated based upon the loan applicant's location. 
Consistent with the previous paragraph, a lender may also use an 
applicant's mailing address to generate a list if the mailing address 
includes a zip code but the current address does not.
    The Bureau's tool, as discussed in Sec.  1024.20(a)(1)(i) and 
above, uses a third-party, commercially-available geolocation tool to 
match counseling organizations to a zip code. A lender is not required 
to use the same geolocator or geocoding system as the Bureau, so long 
as the results are generated in accordance with Sec.  1024.20 and these 
instructions, thus ensuring general consistency.

C. Homeownership Counselor Contact Information

    Regulation X Sec.  1024.20(a)(1) requires lenders to provide a 
written list of homeownership counseling organizations that provide 
relevant services in the loan applicant's location. Consistent with 
Sec.  1024.20(a)(1), lenders comply when they provide the following 
data fields for each housing counseling agency on the list to the 
extent that they are available through the HUD API: Agency name, phone 
number, street address, street address continued, city, state, zip 
code, Web site URL, email address, counseling services provided, and 
languages spoken. Providing a street address is preferable to providing 
a mailing address, as available. The tool maintained by the Bureau will 
provide these data fields to the extent that they are available through 
the HUD API. A lender-generated list under Sec.  1024.20(a)(1)(ii) 
complies with Sec.  1024.20(a)(1) when these data fields are provided 
to the extent that they are available through the HUD API. The table 
below describes how the HUD API data fields relate to the above 
required data fields:

[[Page 22093]]

----------------------------------------------------------------------------------------------------------------
 Data element required for list                            HUD field
         for each agency          HUD API field name      definition                     Example
---------------------------------------------------------------------------------------------------------------
Agency name.....................  nme...............  Agency name.......  ``Local Counseling Agency''.........
Phone number....................  phone1............  Phone number......  ``555-555-5555''....................
Street address..................  adr1..............  Street Address....  ``1234 Main Street''................
Street address continued........  adr2..............  Street Address      ....................................
                                                       continued.
City............................  city..............  City..............  ``Anytown''.........................
State...........................  statecd...........  Code for state in   ``PA''..............................
                                                       which agency is
                                                       located.
Zip code........................  zipcd.............  Zip Code..........  ``12345''...........................
Website URL.....................  weburl............  Agency Web Site     ``http://www.counselor.org''........
                                                       address.
Email address...................  email.............  Email address.....  ``counselor@counselor.org''.........
Counseling services provided....  Services..........  Types of            ``DFC, FBC, FHW, HIC, HMC, NDW, PLW,
                                                       Counseling          PPC, PPW, RHC'' \11\.
                                                       Services
                                                       available.
Languages spoken................  languages.........  The languages in    ``ENG''.............................
                                                       which agency
                                                       provides services.
----------------------------------------------------------------------------------------------------------------

    Data fields that are populated with codes not commonly understood 
by loan applicants, including the data fields ``Counseling services 
provided'' and ``Languages spoken,'' should be translated into their 
definitional meanings, according to the Data Dictionary,\7\ to ensure 
clarity.
---------------------------------------------------------------------------

    \11\ A data dictionary for the Field ``Services'' can be found 
at http://data.hud.gov/Housing_Counselor/getServices, and a data 
dictionary for ``Languages'' can be found at http://data.hud.gov/Housing_Counselor/getLanguages.
---------------------------------------------------------------------------

D. Accompanying Information

    Lenders comply with Regulation X Sec.  1024.20(a)(1) when the 
following language is included: ``The counseling agencies on this list 
are approved by the U.S. Department of Housing and Urban Development 
(HUD), and they can offer independent advice about whether a particular 
set of mortgage loan terms is a good fit based on your objectives and 
circumstances, often at little or no cost to you. This list shows you 
several approved agencies in your area. You can find other approved 
counseling agencies at the Consumer Financial Protection Bureau's 
(CFPB) Web site: consumerfinance.gov/mortgagehelp or by calling 1-855-
411-CFPB (2372). You can also access a list of nationwide HUD-approved 
counseling intermediaries at http://portal.hud.gov/hudportal/HUD?src=/ohc_nint.''
    Including information about where loan applicants can gain 
additional information is consistent with the Bureau's preamble 
discussion of how it envisioned implementing the Sec.  1024.20(a)(1) 
list requirement in the RESPA Homeownership Counseling Amendments.\12\ 
Giving loan applicants the link to HUD-approved national counseling 
intermediaries offers loan applicants additional housing counseling 
options, as national intermediaries often offer phone counseling and 
online counseling services, which are particularly useful to loan 
applicants in remote areas or areas with fewer counseling agencies or 
loan applicants who work during normal business hours and require 
alternative meeting time options. The Bureau's tool will generate lists 
under Sec.  1024.20(a)(1)(i) that include this text above. By including 
this information, lenders generating lists under Sec.  
1024.20(a)(1)(ii) will comply with Sec.  1024.20(a)(1). This will 
ensure that information provided under this provision is consistent 
with information accompanying lists generated by the Bureau's Web site, 
thus ensuring consistency.
---------------------------------------------------------------------------

    \12\ See 78 FR 6855 (Jan. 31, 2013) (``The Bureau anticipates 
the lists generated through its tool will also include information 
enabling the consumer to access the Bureau or HUD list of 
homeownership counseling organizations, so that an applicant who 
receives the list can obtain information about additional counseling 
organizations if desired.'').
---------------------------------------------------------------------------

E. Combining the List With Other Disclosures.

    Section 5(c) of RESPA does not specify whether the written list may 
be combined with other disclosures. In the 2013 HOEPA Final Rule, the 
Bureau noted it did not receive any comments concerning the ability to 
combine disclosures. The Bureau finalized the combined disclosure 
allowance in Sec.  1024.20(a)(2), which provides that the ``list of 
homeownership counseling organizations provided under this section may 
be combined and provided with other mortgage loan disclosures required 
pursuant to Regulation Z, 12 CFR part 1026, or this part [1024] unless 
prohibited by Regulation Z or this part.''
    Since the 2013 HOEPA Final Rule went into effect, the Bureau has 
received questions as to whether the list of counseling organizations 
may be combined with other disclosures besides those required pursuant 
to Regulations X and Z. Although only disclosures pursuant to 
Regulations X and Z are specifically referenced in the rule, the Bureau 
does not consider combining the list of organizations with other 
mortgage loan disclosures to be a violation of Sec.  1024.20(a), unless 
otherwise prohibited. As long as the other requirements of Sec.  
1024.20(a) are met, and if not otherwise prohibited, combining the list 
with another disclosure does not violate the rule.

III. High-Cost Mortgage Counseling

    This rule also interprets the Regulation Z Sec.  1026.34(a)(5) pre-
loan counseling requirement for high-cost mortgages. Specifically, this 
rule clarifies the qualifications necessary to provide high-cost 
mortgage counseling and to provide guidance on the issue of lender 
participation in the counseling.

A. Counseling Qualifications

    Regulation Z Sec.  1026.34(a)(5)(i) provides that a creditor 
``shall not extend a high-cost mortgage to a consumer unless the 
creditor receives written certification that the consumer has obtained 
counseling on the advisability of the mortgage from a counselor that is 
approved to provide such counseling by the Secretary of the U.S. 
Department of Housing and Urban Development or, if permitted by the 
Secretary, by a State housing finance authority.'' The Bureau has heard 
informally that there has been some concern among creditors and 
counselors regarding both the necessary qualifications for providing 
high-cost mortgage counseling and what constitutes ``high-cost mortgage 
counseling.''
    Regulation Z comment 34(a)(5)(iv)-1 describes what is necessary for 
a consumer to have received counseling on the advisability of the high-
cost mortgage. The counseling must cover: ``key terms of the mortgage 
transaction'' as set out in the relevant disclosure (usually the Good 
Faith Estimate or, after August 1, 2015, the Loan Estimate); ``the 
consumer's budget, including the consumer's income, assets, financial

[[Page 22094]]

obligations, and expenses; . . . and the affordability of the mortgage 
transaction for the consumer.''
    The Bureau understands that these topics are currently covered by 
counseling agencies approved by HUD in providing counseling to 
prospective borrowers. As stated in the preamble for the 2013 HOEPA 
Final Rule, ``HUD already requires counselors to analyze the financial 
situation of their clients and establish a household budget for their 
clients when providing housing counseling.'' \13\ To the extent that a 
counselor from a HUD-approved counseling agency covers the matters 
described in comment 34(a)(5)(iv)-1, the counseling requirement of 
Sec.  1026.34(a)(5)(i) is met. Unless and until HUD limits the current 
scope of counseling in some way that would not include elements of the 
comment, counseling agencies that are already approved by HUD to offer 
homeownership counseling are also qualified to provide the counseling 
required for high-cost mortgages, provided such counseling does indeed 
cover the topics prescribed by comment 34(a)(5)(iv)-1. Further, the 
Bureau encourages creditors, counselors, and consumers to facilitate 
provision of the required counseling as early as feasible in the loan 
application process to help ensure the consumer ultimately makes an 
informed and considered decision.
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    \13\ 78 FR 6931 (Jan. 31, 2013).
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B. Lender Participation

    The Bureau has also received information that consumers may be 
receiving high-cost mortgage counseling by telephone in a creditor's 
office while the creditor is present and listening-in. Such listening 
in may be objectionable by certain counselors, as it could diminish the 
quality of counseling. In the 2013 HOEPA Final Rule, the Bureau 
expressed a desire to implement the counseling requirement in a way 
that ``ensures that borrowers will receive meaningful counseling, and 
at the same time that the required counseling can be provided in a 
manner that minimizes operational challenges.'' \14\ The Bureau added 
an anti-steering provision to the counseling requirement in Sec.  
1026.34(a)(5)(vi) that provides that a creditor ``shall not steer or 
otherwise direct a consumer to choose a particular counselor or 
counseling organization for the counseling required. . . .'' \15\ The 
2013 HOEPA Final Rule described the rationale behind this provision as 
``preserv[ing] counselor independence and prevent[ing] conflicts of 
interest that may arise. . .''.\16\
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    \14\ 78 FR 6928 (Jan. 31, 2013).
    \15\ 12 CFR 1026.34(a)(5)(vi).
    \16\ 78 FR 6933 (Jan. 31, 2013).
---------------------------------------------------------------------------

    Consistent with the purpose of the high-cost mortgage counseling 
requirement and with the anti-steering provision at Sec.  
1026.34(a)(5)(vi) in particular, the Bureau is issuing this 
interpretive rule, in part, to clarify that a creditor may be steering, 
that is directing, if the creditor insists on participating or 
listening in to a counseling call or session if such behavior results 
in a consumer's selection of a particular counselor. Under these 
circumstances, creditors comply with the anti-steering provision if a 
counselor is allowed to request that the creditor not participate or 
listen on the call. A counselor also is allowed to request that a 
creditor participate in a call or a portion of a call. For example, a 
counselor may request that a creditor participate in part of the 
counseling session to provide additional information related to the 
loan.
    The Bureau believes that counselor independence and impartiality, 
which the anti-steering provision seeks to preserve, may be adversely 
affected by a concern that another counselor may be selected or the 
content of the counseling influenced if the counselor requests that the 
creditor not listen to the counseling and the creditor does not agree. 
Counselor independence and impartiality may also be compromised by the 
knowledge that the creditor is listening-in to the advice given. 
Moreover, creditor participation in such conversations may influence 
loan applicants away from a full and frank conversation with an 
independent and impartial counselor, thus undermining the purpose of 
the rule.

IV. Regulatory Requirements

    This rule articulates the Bureau's official interpretations of the 
Bureau's Regulation X and Regulation Z. It is therefore exempt from the 
APA's notice and comment rulemaking requirements pursuant to 5 U.S.C. 
553(b).
    Because no notice of proposed rulemaking is required, the 
Regulatory Flexibility Act does not require an initial or final 
regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a).
    The Bureau has determined that this rule does not impose any new or 
revise any existing recordkeeping, reporting, or disclosure 
requirements on covered entities or members of the public that would be 
collections of information requiring OMB approval under the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq. The RESPA requirements under 
Regulation X that lenders provide loan applicants with a written list 
of homeownership counseling organizations in the loan applicants' 
location are currently approved by OMB and assigned the OMB control 
number 3170-0025. The related TILA requirements are approved under OMB 
control number 3170-0023. Generally, the collections of information 
contained in Regulation X are assigned the OMB control number 3170-
0016, and the collections of information contained in Regulation Z are 
assigned the OMB control number 3170-0015.

    Dated: April 15, 2015.
Richard Cordray,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2015-09244 Filed 4-20-15; 8:45 am]
 BILLING CODE 4810-AM-P
```