CFPB’s Advisory Opinions Program
What is the Consumer Financial Protection Bureau’s (CFPB) Advisory Opinions Program and how does a regulated entity submit a request for opinion?
The CFPB established an Advisory Opinions Program to publicly address regulatory uncertainty in existing regulations by providing written guidance in the form of advisory opinions to regulated entities upon request. The CFPB initially published a proposed procedural rule in regard to this program in June 2020, while also launching a Pilot Program. On November 30, 2020, the CFPB published its final Advisory Opinions Policy, which supersedes the Pilot Program.
Under the Advisory Opinions Program, entities subject to the CFPB’s supervisory or enforcement authority can submit a request for an advisory opinion to email@example.com or through other means designated by the CFPB. Requests are accepted and reviewed on a rolling basis. All requests should identify the person or entity seeking the opinion, as well as the identity of any person or entity submitting the request on behalf of a third party. Third parties, such as law firms, trade associations, or consumer advocacy groups, may submit requests on behalf of clients or members without identifying those entities.
The following information must be provided with the request for advisory opinion:
- A statement of whether the issue is the subject of any known or reasonably knowable active litigation or federal or state agency investigations;
- The actual facts or course of action the requestor (or third party) is engaged in or considering engaging in;
- All material facts and circumstances, including detailed specification of the legal question and supporting facts with respect to which the requestor seeks the advisory opinion; and
- A proposed interpretation of law or regulation, identification of the potential uncertainty or ambiguity that the interpretation would address, and an explanation of why the requested interpretation is an appropriate resolution of that uncertainty or ambiguity.
The CFPB advised it intends to consider the following factors when determining whether to issue an advisory opinion:
- The interpretive issue has been noted during prior CFPB exams as one that might benefit from additional regulatory clarity;
- The issue is one of substantive importance or impact or one whose clarification would provide significant benefit; and/or
- The issue concerns an ambiguity that the CFPB has not previously addressed through an interpretive rule or other authoritative source.
The CFPB indicated there will be a strong presumption against appropriateness of an advisory opinion for issues that are the subject of an ongoing investigation or enforcement action or the subject of an ongoing or planned rulemaking. The CFPB also indicated that, in some cases, it may decide to issue an advisory opinion based on questions it receives from the public, through other channels, that are not requests for advisory opinions.
All advisory opinions issued by the CFPB will be posted on the CFPB’s website and published in the Federal Register.
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