By Nicolas G. Keller
On May 21, 2018, President Trump signed into law a resolution disapproving the Consumer Financial Protection Bureau’s (“CFPB”) guidance on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act (“Indirect Auto Lending Guidance” or “Guidance”). In that Guidance, the CFPB expressed the view that certain indirect auto lenders—that is, lenders that coordinate with dealerships to provide auto loans to consumers—are subject to the Equal Credit Opportunity Act and its anti-discriminatory provisions.
The CFPB issued the Indirect Auto Lending Guidance in 2013 as a bulletin, not a formal rule, and did not submit it to Congress for review under the Congressional Review Act (“CRA”), which would have allowed Congress sixty days to disapprove the Guidance by simple majority vote in both houses. However, in March 2017, Senator Patrick Toomey of Pennsylvania requested that the Government Accountability Office (“GAO”) determine whether the Indirect Auto Lending Guidance is a “rule” under the CRA and therefore subject to the disapproval procedures. In an opinion issued on December 5, 2017, the GAO concluded that the Guidance is indeed a “rule” under the CRA—this was effectively treated as a trigger for the sixty-day clock, enabling Congress to exercise its powers under the CRA even though the Guidance was never submitted to Congress or published in the Federal Register. In its opinion, the GAO expressed a broad stance on the reach of the CRA over agency guidance, stating that “CRA requirements apply to general statements of policy which, by definition, are not legally binding.” This holds open the door for the CRA to be used to disapprove agency guidance that is much older than sixty days, as was the case with the Indirect Auto Lending Guidance.
The disapproval of the Indirect Auto Lending Guidance and passing of the CRA deadline for the Payday Lending Rule comes in the wake of a successful attempt to disapprove the CFPB’s Arbitration Agreements Rule in November 2017, which we discussed here.
The text of the Indirect Auto Lending Guidance can be accessed here.
The text of the Payday Lending Rule may be accessed here, and CFPB’s announcement to revisit that Rule may be accessed here.
 Consumer Fin. Prot. Bureau, CFPB to Hold Auto Lenders Accountable for Illegal Discriminatory Markup (Mar. 21, 2013), www.consumerfinance.gov/about-us/newsroom/consumer-financial-protection-bureau-to-hold-auto-lenders-accountable-for-illegal-discriminatory-markup/.
 5 U.S.C. §§ 801(a)(1)(A), 802(a). The sixty-day deadline is measured in “days-of-continuous-session”, which excludes “days either House of Congress is adjourned for more than 3 days during a session of Congress . . . .” Maeve P. Carey et al., Cong. Research Serv., R43992, The Congressional Review Act: Frequently Asked Questions 15 (Nov. 17, 2016); 5 U.S.C. § 802(a). The CRA contains a carryover provision that enables a session of Congress to reach back sixty days into the previous session. 5 U.S.C. § 801(d)(1).
 Letter from Patrick J. Toomey, U.S. Senate, to Gene Dodaro, U.S. Government Accountability Office (Mar. 31, 2017), www.toomey.senate.gov/files/documents/GAO%20original.pdf.
 See Maeve P. Carey et al., Cong. Research Serv., R43992, The Congressional Review Act: Frequently Asked Questions 11-12.
 Thomas H. Armstrong, U.S. Gov’t Accountability Off., B-329129, Bureau of Consumer Financial Protection: Applicability of the Congressional Review Act to Bullet in on Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act (Dec. 5, 2017), www.gao.gov/assets/690/688763.pdf.
 H.R.J. Res. 122, 115th Cong. (2018), available at www.congress.gov/bill/115th-congress/house-joint-resolution/122/text (“Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Bureau of Consumer Financial Protection relating to ‘Payday, Vehicle Title, and Certain High-Cost Installment Loans’”); S.J. Res. 56, 115th Cong. (2018), available at www.congress.gov/bill/115th-congress/senate-joint-resolution/56/text (“A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by Bureau of Consumer Financial Protection relating to ‘Payday, Vehicle, Title, and Certain High-Cost Installment Loans’”).
 Consumer Fin. Prot. Bureau, CFPB Finalizes Rule to Stop Payday Debt Traps (Oct. 5, 2017), www.consumerfinance.gov/about-us/newsroom/cfpb-finalizes-rule-stop-payday-debt-traps/.
 Cmty. Fin. Services Ass’n of America v. Consumer Fin. Prot. Bureau, No. 1:18-cv-00295 (W.D. Tex. filed Apr. 9, 2018).
 See Consumer Fin. Prot. Bureau, Spring 2018 Rulemaking Agenda (May 10, 2018), www.consumerfinance.gov/about-us/blog/spring-2018-rulemaking-agenda/ (“The Bureau also announced, in January 2018, that it intends to engage in a rulemaking to reconsider a 2017 rule titled Payday, Vehicle Title, and Certain High-Cost Installment Loans.”).