CFPB Summary: Procedural rule re: Advisory Opinions Policy
12 CFR Chapter X
Prepared by the Legislative and Regulatory Affairs Division
December 2020
The Consumer Financial Protection Bureau (CFPB) is issuing its final Advisory Opinions Policy, which sets forth procedures to facilitate the submission by interested parties of requests that the Bureau issue advisory opinions, in the form of interpretive rules, to resolve regulatory uncertainty, and the manner in which the Bureau will evaluate and response to such requests.
The Advisory Opinions Policy became effective November 30, 2020. The final policy can be found here.
Summary:
This notice finalizes the Advisory Opinions Proposal as the Advisory Opinions Policy. Part I provides some background on the Bureau’s guidance functions and related statutory authorities. Part II sets out the final text of the Advisory Opinions Policy. Part III reviews the comments received on the Advisory Opinions Proposal and describes the changes the Bureau has made in the final Advisory Opinions Policy. Parts IV through VI address additional regulatory matters.
The primary purpose of the Advisory Opinion Policy is to establish procedures to facilitate the submission by interested parties of requests that the Bureau issue advisory opinions and the manner in which the Bureau will evaluate/respond to such requests.
Requests for advisory opinions should be submitted via email to [email protected] or through other means designated by the Bureau. The Bureau will not consider a request for an advisory opinion to be complete unless the request includes the information denoted below:
- Confidential Information
- Identity of person/entity seeking the advisory opinion
- Statement about the absence of investigation/litigation
- Specifics about the issue on which the advisory opinion is sought
Advisory opinions will be considered interpretive rules under the Administrative Procedure Act (APA) that respond to a specific needs for clarity on a statutory or regulatory interpretive question. The Bureau will publish advisory opinions in the Federal Register or on consumerfinance.gov.
The Bureau intends to consider the following factors as part of its consideration of whether to address requests for advisory opinions. The initial factors weighing for the appropriateness of an advisory opinion include:
- the interpretive issue has been noted during prior Bureau examinations as one that might benefit from additional regulatory clarity
- the issue is one of significant importance or one whose clarification would provide significant benefit
- the issue concerns an ambiguity that the Bureau has not previously addressed through an interpretative rule or other authoritative source
Factors weighing strongly for presumption that an advisory opinion is not an appropriate tool include:
- The interpretive issue is the subject of an ongoing Bureau investigation or enforcement action
- The interpretive issue is the subject of an ongoing or planned rulemaking
- The issue is better suited for notice-and-comment rulemaking
- This issue could be addressed more effectively through a Compliance Aid or the RIF function
- There is a clear existing Bureau or court precedent that is available to the public on this issue
The Bureau will primarily focus on the following statutory objectives:
- Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;
- Outdated, unnecessary or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;
- Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and
- Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.
The Bureau will focus primarily on clarifying ambiguities in its regulations, although Advisory Opinions may clarify statutory ambiguities.