Advisory Opinions Policy, 77987-77991 [2020-26661]
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Federal Register / Vol. 85, No. 233 / Thursday, December 3, 2020 / Rules and Regulations
published in a notice in the Federal
Register.
(a) Initial guarantee fee. The Agency
will establish and charge an initial
guarantee fee of up to one percent of the
guarantee amount. For purposes of
calculating this fee, the guarantee
amount is the product of the percentage
of the guarantee times the initial
principal amount of the guaranteed
loan.
(b) Annual guarantee fee. An annual
guarantee fee will be charged, as
established by the Agency, each year or
portion of a year that the guarantee is in
effect. This fee is due no later than
February 28, of each calendar year.
*
*
*
*
*
Elizabeth Green,
Acting Administrator, Rural Housing Service.
[FR Doc. 2020–25822 Filed 12–2–20; 8:45 am]
BILLING CODE 3410–XV–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Chapter X
[Docket No. CFPB–2020–0019]
Advisory Opinions Policy
Bureau of Consumer Financial
Protection.
ACTION: Procedural rule.
AGENCY:
The Bureau of Consumer
Financial Protection (Bureau) is issuing
its final Advisory Opinions Policy
(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 respond to such
requests.
SUMMARY:
The Advisory Opinions Policy
was applicable beginning November 30,
2020.
FOR FURTHER INFORMATION CONTACT: For
additional information about the
Advisory Opinions Policy contact
Jaydee DiGiovanni and Shelley
Thompson, Counsels; and Adetola
Adenuga, Regulatory Implementation
and Guidance Specialist, at 202–435–
7158. If you require this document in an
alternative electronic format, please
contact CFPB_Accessibility@cfpb.gov.
SUPPLEMENTARY INFORMATION: On June
22, 2020, the Bureau published and
sought public comment on a proposal
(Advisory Opinions Proposal) for a new
Bureau policy on advisory opinions and
simultaneously launched a pilot
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advisory opinion program (Pilot
Advisory Opinions program).1 This
notice finalizes the Advisory Opinions
Proposal as the Advisory Opinions
Policy (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.
I. Background
Under the Dodd-Frank Wall Street
Reform and Consumer Protection Act
(Dodd-Frank Act),2 3 the Bureau’s
‘‘primary functions’’ include issuing
guidance implementing Federal
consumer financial law. Providing clear
and useful guidance to regulated entities
is an important aspect of facilitating
markets that serve consumers.
The Bureau currently issues several
types of guidance regarding the statutes
that it administers, as well as
implementing regulations and Official
Interpretations. For example, the Bureau
issues ‘‘Compliance Aids’’ that present
legal requirements in a manner that is
useful for compliance professionals,
other industry stakeholders, and the
public, or that include practical
suggestions for how entities might
choose to comply with those
requirements.4 The Bureau also
provides individualized
‘‘implementation support’’ to regulated
entities through its Regulatory Inquiries
Function (RIF).5 Neither Compliance
Aids nor the RIF are intended to
interpret ambiguities in legal
requirements. The Bureau also may
issue interpretive rules, which provide
guidance on the Bureau’s regulations or
governing statutes, and which in some
situations may provide a safe harbor to
regulated entities that are in compliance
with the Bureau’s interpretive rule.6
The Bureau initiated its policy for
issuing advisory opinions in response to
1 See Advisory Opinions Pilot, 85 FR 37394 (June
22, 2020).
2 Public Law 111–203, 124 stat. 2081 (2010).
3 See 12 U.S.C. 5511(c)(5).
4 See Policy Statement on Compliance Aids, 85
FR 4579 (Jan. 27, 2020).
5 See Bureau of Consumer Financial Protection
Request for Information Regarding Bureau Guidance
and Implementation Support (Guidance RFI), 83 FR
13959, 13961–62 (Apr. 2, 2018).
6 E.g., Treatment of Pandemic Relief Payments
Under Regulation E and Application of the
Compulsory Use Prohibition, 85 FR 23217 (Apr. 27,
2020); Truth in Lending (Regulation Z); Screening
and Training Requirements for Mortgage Loan
Originators with Temporary Authority, 84 FR 63791
(Nov. 19, 2019).
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feedback received from external
stakeholders in the 2018 Guidance RFI,
encouraging the Bureau to provide
written guidance in cases of regulatory
uncertainty. The final Advisory
Opinions Policy supersedes the pilot
Advisory Opinions Program.7 Similar to
the advisory opinion programs of many
other federal agencies, the Advisory
Opinions Policy is intended to facilitate
timely guidance by the Bureau that
enables compliance by resolving
outstanding regulatory uncertainty. The
Advisory Opinions Policy supports the
Bureau’s statutory purpose of ensuring
consumers have access to markets for
consumer financial products and
services, and that markets for consumer
financial products and services are fair,
transparent, and competitive.8
II. Final Text of the Advisory Opinions
Policy
A. Overview
The primary purpose of this Advisory
Opinions 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 and respond to such requests.
Advisory opinions will be interpretive
rules issued to resolve regulatory
uncertainty.9
B. Submission and Content of Requests
Requests for advisory opinions should
be submitted via email to
advisoryopinion@cfpb.gov 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 all of the
information specified in the following
paragraphs.
1. Confidential information: The
request must identify information the
requestor believes should be treated as
confidential. If the requestor would not
normally make the information public,
the Bureau intends to withhold that
information from public disclosure to
the extent permitted by the Freedom of
Information Act, 5 U.S.C. 552(b), and
treat the information as confidential in
accordance with the Bureau’s
regulations on Disclosure of Records
7 Because the Advisory Opinions Policy replaces
the pilot, no further requests may be submitted for
the pilot as of November 30, 2020. Requests
submitted under the pilot that are pending as of that
date will continue to be considered by the Bureau.
8 See 12 U.S.C. 5511(a).
9 For convenience, this document uses the term
‘‘regulatory uncertainty’’ to encompass uncertainty
with respect to regulatory or, where applicable,
statutory provisions.
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and Information.10 Requests should not
include sensitive personal information,
such as account numbers or Social
Security numbers, or names of
individuals.
2. Identity of person or entity seeking
the advisory opinion. The request must
identify the person or entity seeking the
advisory opinion, as well as the identity
of any person or entity submitting the
request on behalf of a third party (i.e.,
one or more clients or members).
Outside counsel, a trade association, or
a consumer advocacy group, for
example, may submit requests for
advisory opinions on behalf of one or
more clients or members, and those
entities do not need to be identified.
3. Statement about the absence of
investigation or litigation. The request
must include a statement that the issue
on which the advisory opinion is being
requested is—or is not—the subject of
any known or reasonably knowable
active litigation or Federal or State
agency investigation. Additionally, if
the requestor is submitting a request on
behalf of an unidentified third party, the
requestor must provide a statement that
the unidentified third party is—or is
not—the subject of an ongoing public
Bureau enforcement action or an
ongoing Bureau enforcement
investigation.
4. Specifics about the issue on which
the advisory opinion is sought. The
issue raised in the request must be
within the Bureau’s purview,11 and the
request must concern actual facts or a
course of action that the requestor (or
third party) is engaged in, or
considering engaging in. The request
must set forth as completely as possible,
all material facts and circumstances,
including detailed specification of the
legal question(s) and supporting facts
with respect to which the requestor
seeks an advisory opinion. The request
must also identify the regulatory or
statutory provision at issue and the
potential uncertainty or ambiguity that
the proposed interpretation would
address, provide a proposed
interpretation of law or regulation, and
explain why the proposed interpretation
is an appropriate resolution of that
10 12
CFR part 1070.
title X of the Dodd-Frank Act (the
Consumer Financial Protection Act of 2010), the
Bureau was created to regulate the offering and
provision of consumer financial products and
services under federal consumer financial laws. 12
U.S.C. 5881. The Act enumerates several consumer
laws under the Bureau’s jurisdiction (in part or
whole). 12 U.S.C. 5841(12). Note that the Bureau’s
Regulation J provides a separate procedure for
advisory opinions regarding certain issues under
the Interstate Land Sales Full Disclosure Act. See
12 CFR 1010.17.
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11 Under
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uncertainty or ambiguity.12 Requestors
may also choose to offer additional
information, including, as applicable, an
explanation of the potential consumer
benefits and risks associated with
resolution of the interpretive question
and the proposed interpretation; and an
explanation of how the proposed
interpretation relates to the Bureau’s
statutory objectives.13
Alternatively, in some cases the
Bureau may decide to issue an advisory
opinion based on questions the Bureau
receives from the public, through other
channels, that are not requests for
advisory opinions.14
requestor’s situation do not conform to
the summary of material facts.
If a statutory safe harbor is applicable
to an advisory opinion, the advisory
opinion will explain that fact. The Truth
in Lending Act (TILA), Equal Credit
Opportunity Act (ECOA), Electronic
Fund Transfer Act (EFTA), and Real
Estate Settlement Procedures Act
(RESPA) provide certain protections
from liability for acts or omissions done
in good faith in conformity with an
interpretation by the Bureau.17 The Fair
Debt Collection Practices Act (FDCPA)
contains similar protections, specifically
using the term ‘‘advisory opinion.’’ 18
C. Characteristics of Advisory Opinions
Advisory Opinions issued by the
Bureau under the Advisory Opinions
Policy will be interpretive rules under
the Administrative Procedure Act
(APA) 15 that respond to a specific need
for clarity on a statutory or regulatory
interpretive question. The Bureau will
publish advisory opinions in the
Federal Register and on
consumerfinance.gov, including a
summary of the material facts or
covered products and the Bureau’s legal
analysis of the issue.
Unless otherwise stated, each
advisory opinion will be applicable to
the requestor and to similarly situated
parties to the extent that their situations
conform to the summary of material
facts or coverage in the advisory
opinion. The scope and terms of an
advisory opinion will be set out in the
advisory opinion itself, and may deviate
from the interpretation proposed by the
requestor in its submission.16 Moreover,
the Bureau will not normally investigate
the underlying facts of the requestor’s
situation and, as a result, an advisory
opinion may not be applicable to the
requestor if the underlying facts of the
D. Factors in Bureau Selection of Topics
for Advisory Opinions
The Bureau intends to consider the
following factors as part of its
consideration of whether to address
requests for advisory opinions.19 The
Bureau will prioritize open questions if
they are within the Bureau’s purview
that can legally be addressed through an
interpretive rule and if an advisory
opinion is an appropriate tool relative to
other Bureau tools for answering the
question. Initial factors weighing for the
appropriateness of an advisory opinion
include: (1) The interpretive issue has
been noted during prior Bureau
examinations as one that might benefit
from additional regulatory clarity; (2)
the issue is one of significant
importance or one whose clarification
would provide significant benefit; and/
or (3) the issue concerns an ambiguity
that the Bureau has not previously
addressed through an interpretive rule
or other authoritative source. Factors
weighing strongly for presumption that
an advisory opinion is not an
appropriate tool include: (1) The
interpretive issue is the subject of an
ongoing Bureau investigation or
enforcement action; (2) the interpretive
issue is the subject of an ongoing or
planned rulemaking; (3) the issue is
better suited for notice-and-comment
rulemaking; (4) the issue could be
addressed more effectively through a
Compliance Aid or the RIF function; or
(5) there is clear existing Bureau or
court precedent that is available to the
public on the issue.
The Bureau intends to further
evaluate requests for advisory opinions
12 The responsive advisory opinion will not
necessarily adopt the requestor’s proposed
interpretation. The Bureau retains the discretion to
answer requests with its own interpretation
regardless of the requestor’s proposed
interpretation.
13 Requestors should describe relevant legal
provisions and arguments with as much specificity
as practicable. The Bureau recognizes that in some
cases, the requestor may lack the legal resources to
provide a detailed and complete showing. In such
circumstances, the requestor should provide the
maximum specification practicable under the
circumstances and explain the limits on further
specification.
14 In that situation, references in this Advisory
Opinions Policy to the requestor or request are
inapplicable. Note that the Bureau may also issue
interpretive rules outside the framework of the
Advisory Opinions Policy, including deciding to
issue advisory opinions on its own initiative.
15 5 U.S.C. 553(b).
16 Thus, the initial request drafted by the
requestor is not necessarily a reliable guide to the
scope and terms of the advisory opinion.
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17 See 15 U.S.C. 1640(f) (TILA); 15 U.S.C.
1691e(e) (ECOA); 15 U.S.C. 1693m(d) (EFTA); 12
U.S.C. 2617, 12 CFR 1024.4 (RESPA).
18 See 15 U.S.C. 1692(k)(e).
19 The following are factors that the Bureau
intends to weigh when deciding which topics to
prioritize in the Advisory Opinions Policy, based
on all of the information available to the Bureau.
Advisory opinion requests need not address these
factors in order to be fully considered by the
Bureau.
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based on secondary factors, including:
Alignment with the Bureau’s statutory
objectives; size of the benefit offered to
consumers by resolution of the
interpretive issue; known impact on the
actions of other regulators; and impact
on available Bureau resources. The
Bureau will primarily focus on the
following statutory objectives: (1)
Consumers are provided with timely
and understandable information to
make responsible decisions about
financial transactions; (2) outdated,
unnecessary, or unduly burdensome
regulations are regularly identified and
addressed in order to reduce
unwarranted regulatory burdens; (3)
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 (4) markets for
consumer financial products and
services operate transparently and
efficiently to facilitate access and
innovation.20
The Bureau will focus primarily on
clarifying ambiguities in its regulations,
although Advisory Opinions may clarify
statutory ambiguities. The Bureau will
not issue advisory opinions on issues
that require, or are better addressed
through, a legislative rulemaking under
the APA.21 For example, the Bureau
does not intend to issue an advisory
opinion that would change regulation
text or commentary. Similarly, if a
regulation or statute establishes a
general standard that can only be
applied through highly fact-intensive
analysis, the Bureau does not intend to
replace that analysis with a bright-line
standard that eliminates all of the
required analysis. Highly fact-intensive
applications of general standards, such
as the statutory prohibition on unfair,
deceptive, or abusive acts or practices,
pose particular challenges for issuing
advisory opinions, although there may
be times when the Bureau is able to
offer advisory opinions that provide
additional clarity on the meaning of
such standards.
20 See 12 U.S.C. 5511(b)(1), (3)–(5). The Bureau
has a further statutory objective, that consumers are
protected from unfair, deceptive, or abusive acts
and practices and from discrimination. 12 U.S.C.
5511(b)(2). The Bureau considers this objective to
be at least as important as its other objectives, and
it does not plan to issue an advisory opinion that
is in conflict with this objective. But because other
regulatory tools are often more suitable for
addressing UDAAPs and discrimination, the Bureau
has chosen not to highlight this objective as a
primary focus when selecting issues for the
Advisory Opinions Policy.
21 5 U.S.C. 553(b).
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E. Public Input
Advisory opinions will be issued and
final upon publication in the Federal
Register. However, interested persons
may provide input on published
advisory opinions at any time by
sending an email to advisoryopinion@
cfpb.gov or through other means
designated by the Bureau. The Bureau is
particularly interested in input that
addresses whether an advisory opinion
would benefit from clarification or
reconsideration, with information about
the factual or legal basis for clarification
or reconsideration.
III. Discussion of Comments and
Changes in the Final Advisory Opinions
Policy
A. Overview
The Bureau solicited comments on
the Advisory Opinions Proposal. The
Bureau received 16 unique comments,
13 of which were submitted by industry
trade associations. A consortium of 7
consumer advocacy groups submitted a
joint comment letter. The remaining
comments were provided by staff of the
Administrative Conference of the
United States (ACUS) and one
anonymous submitter. The Bureau has
made certain changes to the Advisory
Opinions Policy based on the
comments, as discussed below, as well
as other changes to the Advisory
Opinions Policy for clarity.
B. General Comments
Industry commenters uniformly
supported the Advisory Opinions
Proposal, as did the anonymous
commenter. These commenters
generally stated that the issuance by the
Bureau of advisory opinions could aid
in compliance in situations where there
are statutory and regulatory
uncertainties. Conversely, the joint
comment letter by certain consumer
advocacy groups generally opposed the
Advisory Opinions Proposal and argued
that the Bureau should abandon it. The
Bureau has carefully considered this
comment letter, but contrary to the
group’s assertions, and as discussed
below the Bureau concludes that issuing
interpretive rules in the form of
advisory opinions is consistent with the
APA or with the Bureau’s statutory
authorities. The Bureau also does not
agree that advisory opinions are not an
appropriate use of Bureau resources.
Advisory opinions represent a
commitment of resources by the Bureau
that will help entities better understand
their obligations under Federal
consumer financial law. If an advisory
opinion makes clear the law applies, it
will promote compliance with the law
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that will prevent consumer harm. If an
advisory opinion makes clear the law
does not apply, it will avoid regulated
entities incurring unnecessary
compliance costs.
C. Legality of Advisory Opinions Policy
The consumer advocacy group
comments stated that issuing
interpretive rules in the form of
advisory opinions are inconsistent with
the APA and with the Bureau’s statutory
authorities. The Bureau disagrees with
this assertion. As proposed, the advisory
opinions are interpretive rules under the
APA.22 Nevertheless, the Bureau revised
the phrase in the proposed Advisory
Opinions Policy that states that
‘‘substantive importance or impact’’ is
one of a list of factors that the Bureau
intends to consider in part II.D so that
it reads ‘‘significant importance.’’ This
change is intended to address the
commenter’s concern that the phrase
might be read to suggest that the Bureau
intends to issue advisory opinions that
are substantive rules rather than
interpretive rules under the APA.
D. Role of Public Input
The Bureau received a number of
comments from stakeholders expressing
interest in a mechanism for soliciting
public input on advisory opinions,
either before or after issuance. Some
commenters advocated that the Bureau
obtain such input from the public before
issuing advisory opinions. The Bureau
notes that there is nothing in the
Advisory Opinions Policy that would
prevent the Bureau from soliciting input
on a draft advisory opinion before
finalizing, if the Bureau believes it
would be appropriate for a given
advisory opinion. However, the Bureau
declines to adopt this as a uniform
requirement for advisory opinions. Such
a process is not typical of peer financial
regulators’ advisory opinion policies.23
It could unnecessarily delay the process
of issuing advisory opinions, and thus
inhibit the ability of the Bureau to
promptly provide clarity about its own
regulations and the statutes that it
administers.
However, the Bureau does agree that
providing a mechanism for the public to
provide feedback after an advisory
opinion is issued could be useful.
Accordingly, the Bureau has added new
part II.E to the Advisory Opinions
Policy to provide that any person may
comment on an advisory opinion via
email to advisoryopinion@cfpb.gov or
through other means designated by the
22 See
5 U.S.C. 552(b)(3).
16 CFR 1.2–1.6 (Federal Trade
Commission).
23 E.g.,
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Bureau. The Bureau encourages any
stakeholders including, but not limited
to, industry representatives and
consumer advocates, to submit such
feedback in an instance where
stakeholders believe the Bureau should
clarify or reconsider an advisory
opinion.
E. Accuracy of Requests
Certain consumer advocacy group
commenters expressed concern that the
requestor’s presentation of the issue
might be inaccurate or misleading.
However, the Bureau emphasizes that it
expects requestors to provide truthful
submissions to the Bureau. While it is
possible that the submitting party may
provide inaccurate or misleading facts,
doing so would put at great risk the
benefit the requester might obtain from
an advisory opinion. The Advisory
Opinions Policy specifically explains
that ‘‘an advisory opinion may not be
applicable to the requestor if the
underlying facts of the requestor’s
situation do not conform to the Bureau’s
summary of material facts’’ in the
advisory opinion. The Bureau concludes
that this disincentive is sufficient to
address the concern commenters have
raised. For the same reason, the Bureau
does not believe it is necessary to
require requestors to include an
affirmation that the information
provided is accurate, as some
commenters suggested.
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F. Follow-Up by Requestors
Some commenters asked the Bureau
to provide a mechanism for requestors
to modify or rescind pending advisory
opinion requests. The Bureau notes that
it would be consistent with the
Advisory Opinions Policy for a
requestor to amend or withdraw a
pending request.
If the Bureau informs a requestor that
it has not chosen to issue an advisory
opinion, some commenters advocated
that the Bureau create a specific
procedure for the requestor to appeal or
request reconsideration of that decision.
The Bureau does not believe adding a
specific procedure to address that
possibility is necessary, because the
Advisory Opinions Policy would allow
a requestor to renew its request a
subsequent time if it wants to bring new
facts, law, or other considerations to the
Bureau’s attention.
G. Third-Party Requests
Part II.B of the Advisory Opinions
Proposal stated that the Bureau would
accept advisory opinion requests from
trade associations, service providers,
and other third parties; however, the
Advisory Opinions Proposal noted that
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if the requestor is submitting a request
on behalf of an unidentified third party,
the requestor must provide a statement
on whether the unidentified third party
is the subject of an ongoing public
Bureau enforcement action or an
ongoing Bureau enforcement
investigation conducted by the Bureau’s
Office of Enforcement.24 This statement
was in addition to the general
requirement that any requestor provide
a statement of whether the issue on
which the advisory opinion is being
requested is the subject of any known or
reasonably knowable active litigation or
Federal or State agency investigations.
Trade association commenters generally
supported the Bureau’s proposal to
allow third parties to request advisory
opinions. These commenters stated that
allowing third parties to facilitate
requests would increase access to
advisory opinions, in particular for
smaller entities that might otherwise
lack the resources to request an advisory
opinion.
Certain consumer advocacy groups
opposed the proposal to allow requests
on behalf of third parties. These
commenters argued that the Bureau
would have insufficient details about
the underlying facts of the third party’s
situation. The Bureau agrees that it is
possible for requests on behalf of a third
party, like any type of request, to
include insufficient facts for the Bureau
to reach a legal conclusion. However,
that would be a potential reason for
denying an individual request, not
entirely closing off this potential source
of requests for advisory opinions.
These commenters also asserted that
the Bureau must know the identity of
the third party in order to avoid
interference with litigation or
enforcement-related proceedings.
However, the Bureau concludes that the
categorical, express representations that
the requestor would need to make under
the Advisory Opinions Policy are
sufficient to alert the Bureau to those
proceedings of which the Bureau would
not otherwise be aware that are likely to
be relevant to a potential advisory
opinion and about which further Bureau
inquiry may be warranted. The Bureau
is finalizing the required statements,
with non-substantive wording changes
in part II.B of the Advisory Opinions
Policy.25
24 85
FR 37394 (June 22, 2020).
commenter suggested that the Bureau
provide sample language that requestors can use
when making these required statements. The
Bureau has instead made non-substantive edits to
how the required statements are set out in part II.B
of the Advisory Opinions Policy, so that requestors
can choose to comply by using the applicable
language in the Advisory Opinions Policy verbatim.
25 One
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H. Rescission of Advisory Opinions
It is, of course, possible that the
Bureau may decide it is appropriate to
rescind an advisory opinion. One
commenter emphasized that, if an
advisory opinion is rescinded, no action
should be taken against those
institutions who acted in good faith in
accordance with the advisory opinion.
The Bureau notes that several statutes
provide protections from liability for
acts or omissions done in good faith in
conformity with an interpretation by the
Bureau, as detailed in the text of the
Advisory Opinions Policy. And of
course, in addition to any applicable
safe harbors, the Bureau would not
expect to retroactively impose
punishments on persons who
conformed their conduct in good faith to
an advisory opinion before the advisory
opinion was rescinded. Doing so would
raise serious concerns under the Due
Process Clause, which restricts such
retroactive relief.
I. Confidentiality of Material in Advisory
Opinion Requests
Part II.B of the Advisory Opinions
Proposal explained that where
information submitted to the Bureau is
information the requestor would not
normally make public, the Bureau
intends to treat it as confidential
pursuant to its rule, Disclosure of
Records and Information, to the extent
applicable.26
Industry commenters were broadly
supportive of this approach. However,
certain consumer advocacy groups
asserted that this statement is in tension
with the Freedom of Information Act
(FOIA). To be clear, the Bureau will
treat information that it receives in
accordance with FOIA, including the
FOIA exemption at 5 U.S.C. 552(b)(4)
that applies to confidential business
information. Information that is subject
to a FOIA exemption also will be treated
as confidential in accordance with the
Bureau’s rule on Disclosure of Records
and Information, 12 CFR part 1070. The
confidentiality assurance in the
proposed policy reflects the standard for
determining applicability of the
exemption at 5 U.S.C. 552(b)(4),
established by the United States
Supreme Court in Food Marketing
Institute v. Argus Leader Media dba
Argus Leader, 139 S. Ct. 2356 (2019). To
make this clearer, the Bureau revises the
policy to state explicitly that the
information will be treated in
accordance with FOIA.
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J. Other Comments on Specific
Implementation Issues
The Bureau received comments on a
number of other subjects. These include
comments on the structure of the
Bureau’s internal deliberative process
for considering advisory opinion
requests; timelines for deciding advisory
opinion requests; details of how the
Bureau should communicate with
requestors after the Bureau receives
their requests, such as what the Bureau
should say in the letters that it sends
denying requests; general outreach that
commenters recommend that the Bureau
conduct with outside bodies or groups;
recommendations regarding the types of
requests the Bureau should prioritize;
and details of how the Bureau should
post advisory opinions on its website.
The Bureau appreciates receiving
commenters’ views on all aspects of the
program. However, the Bureau has
decided not to expand the scope of the
Advisory Opinions Policy, which is
intended to establish the general
procedures of the program, to cover
these specific implementation issue.
Instead, the Bureau will consider these
comments as it proceeds with
implementation of the Advisory
Opinions Policy.
IV. Regulatory Requirements
khammond on DSKJM1Z7X2PROD with RULES
This Advisory Opinions Policy is a
rule of agency organization, procedure,
or practice, and it is therefore exempt
from the notice-and-comment
rulemaking requirements of the APA.27
For the same reason, it is not subject to
the 30-day delayed effective date for
substantive rules under the APA.28
Because no notice of proposed
rulemaking is required, the Regulatory
Flexibility Act does not require an
initial or final regulatory flexibility
analysis.29
The Bureau’s Advisory Opinions
Proposal, published June 22, 2020,
sought comment on these information
collection requirements. While the
Bureau received numerous comments
on the Advisory Opinions Proposal,
which are addressed above, the Bureau
received no comments specifically
regarding the burden estimates or the
utility or appropriateness of these
information collections. Additional
details on comments received can be
found in the Supporting Statement for
the related 30-day notice published as
required under the PRA.30
A complete description of the
information collection requirements,
including the burden estimate methods,
is provided in the information
collection request (ICR) that the Bureau
submitted to OMB under the
requirements of the PRA. The ICR
submitted to OMB requesting approval
under the PRA for the information
collection requirements contained
herein is available at OMB’s publicfacing docket at https://
www.reginfo.gov/public/.
VI. Signing Authority
The Director of the Bureau, Kathleen
L. Kraninger, having reviewed and
approved this document, is delegating
the authority to electronically sign this
document to Grace Feola, a Bureau
Federal Register Liaison, for purposes of
publication in the Federal Register.
Dated: November 30, 2020.
Grace Feola,
Federal Register Liaison, Bureau of Consumer
Financial Protection.
[FR Doc. 2020–26661 Filed 12–2–20; 8:45 am]
BILLING CODE 4810–AM–P
DEPARTMENT OF TRANSPORTATION
V. Paperwork Reduction Act
Federal Aviation Administration
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) requires
that Federal agencies may not conduct
or sponsor, and notwithstanding any
other provision of law, a person is not
required to respond to a collection of
information unless it displays a
currently valid Office of Management
and Budget (OMB) control number. The
information collection requirements as
contained in this final Policy and
identified below have been approved by
OMB and assigned the OMB control
number 3170–0072. OMB’s approval
will expire on November 30, 2023.
14 CFR Part 39
U.S.C. 553(b).
U.S.C. 553(d).
29 5 U.S.C. 603(a), 604(a).
[Docket No. FAA–2020–1031; Project
Identifier AD–2020–00846–T; Amendment
39–21334; AD 2020–24–04]
RIN 2120–AA64
Airworthiness Directives; The Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule; request for
comments.
AGENCY:
VerDate Sep<11>2014
15:55 Dec 02, 2020
The FAA is adopting a new
airworthiness directive (AD) for all The
SUMMARY:
30 See https://beta.regulations.gov/docket/CFPB2020-0019.
Jkt 253001
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
Boeing Company Model 787–8, 787–9,
and 787–10 airplanes. This AD requires
revising the existing airplane flight
manual (AFM) to incorporate
procedures for conducting an approach
with a localizer-based navigation aid,
monitoring localizer raw data, calling
out any significant deviations, and
performing an immediate go around if
the airplane has not intercepted the
final approach course as shown by the
localizer deviation. This AD was
prompted by reports that the autopilot
flight director system (AFDS) failed to
transition to the instrument landing
system localizer (LOC) beam after the
consistent localizer capture function in
the flight control modules initiated a
transition to capture LOC during
approach. The FAA is issuing this AD
to address the unsafe condition on these
products.
DATES: This AD is effective December
18, 2020.
The FAA must receive comments on
this AD by January 19, 2021.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this final rule, contact Boeing
Commercial Airplanes, Attention:
Contractual & Data Services (C&DS),
2600 Westminster Blvd., MC 110–SK57,
Seal Beach, CA 90740–5600; telephone
562–797–1717; internet https://
www.myboeingfleet.com. You may view
this service information at the FAA,
Airworthiness Products Section,
Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
It is also available on the internet at
https://www.regulations.gov by
searching for and locating Docket No.
FAA–2020–1031.
Examining the AD Docket
27 5
28 5
77991
You may examine the AD docket on
the internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2020–
1031; or in person at Docket Operations
E:\FR\FM\03DER1.SGM
03DER1
]]>Agencies
[Federal Register Volume 85, Number 233 (Thursday, December 3, 2020)]
[Rules and Regulations]
[Pages 77987-77991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26661]
=======================================================================
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BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Chapter X
[Docket No. CFPB-2020-0019]
Advisory Opinions Policy
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Procedural rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Consumer Financial Protection (Bureau) is
issuing its final Advisory Opinions Policy (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 respond to such requests.
DATES: The Advisory Opinions Policy was applicable beginning November
30, 2020.
FOR FURTHER INFORMATION CONTACT: For additional information about the
Advisory Opinions Policy contact Jaydee DiGiovanni and Shelley
Thompson, Counsels; and Adetola Adenuga, Regulatory Implementation and
Guidance Specialist, at 202-435-7158. If you require this document in
an alternative electronic format, please contact
[email protected].
SUPPLEMENTARY INFORMATION: On June 22, 2020, the Bureau published and
sought public comment on a proposal (Advisory Opinions Proposal) for a
new Bureau policy on advisory opinions and simultaneously launched a
pilot advisory opinion program (Pilot Advisory Opinions program).\1\
This notice finalizes the Advisory Opinions Proposal as the Advisory
Opinions Policy (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.
---------------------------------------------------------------------------
\1\ See Advisory Opinions Pilot, 85 FR 37394 (June 22, 2020).
---------------------------------------------------------------------------
I. Background
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank Act),2 3 the Bureau's ``primary functions''
include issuing guidance implementing Federal consumer financial law.
Providing clear and useful guidance to regulated entities is an
important aspect of facilitating markets that serve consumers.
---------------------------------------------------------------------------
\2\ Public Law 111-203, 124 stat. 2081 (2010).
\3\ See 12 U.S.C. 5511(c)(5).
---------------------------------------------------------------------------
The Bureau currently issues several types of guidance regarding the
statutes that it administers, as well as implementing regulations and
Official Interpretations. For example, the Bureau issues ``Compliance
Aids'' that present legal requirements in a manner that is useful for
compliance professionals, other industry stakeholders, and the public,
or that include practical suggestions for how entities might choose to
comply with those requirements.\4\ The Bureau also provides
individualized ``implementation support'' to regulated entities through
its Regulatory Inquiries Function (RIF).\5\ Neither Compliance Aids nor
the RIF are intended to interpret ambiguities in legal requirements.
The Bureau also may issue interpretive rules, which provide guidance on
the Bureau's regulations or governing statutes, and which in some
situations may provide a safe harbor to regulated entities that are in
compliance with the Bureau's interpretive rule.\6\
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\4\ See Policy Statement on Compliance Aids, 85 FR 4579 (Jan.
27, 2020).
\5\ See Bureau of Consumer Financial Protection Request for
Information Regarding Bureau Guidance and Implementation Support
(Guidance RFI), 83 FR 13959, 13961-62 (Apr. 2, 2018).
\6\ E.g., Treatment of Pandemic Relief Payments Under Regulation
E and Application of the Compulsory Use Prohibition, 85 FR 23217
(Apr. 27, 2020); Truth in Lending (Regulation Z); Screening and
Training Requirements for Mortgage Loan Originators with Temporary
Authority, 84 FR 63791 (Nov. 19, 2019).
---------------------------------------------------------------------------
The Bureau initiated its policy for issuing advisory opinions in
response to feedback received from external stakeholders in the 2018
Guidance RFI, encouraging the Bureau to provide written guidance in
cases of regulatory uncertainty. The final Advisory Opinions Policy
supersedes the pilot Advisory Opinions Program.\7\ Similar to the
advisory opinion programs of many other federal agencies, the Advisory
Opinions Policy is intended to facilitate timely guidance by the Bureau
that enables compliance by resolving outstanding regulatory
uncertainty. The Advisory Opinions Policy supports the Bureau's
statutory purpose of ensuring consumers have access to markets for
consumer financial products and services, and that markets for consumer
financial products and services are fair, transparent, and
competitive.\8\
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\7\ Because the Advisory Opinions Policy replaces the pilot, no
further requests may be submitted for the pilot as of November 30,
2020. Requests submitted under the pilot that are pending as of that
date will continue to be considered by the Bureau.
\8\ See 12 U.S.C. 5511(a).
---------------------------------------------------------------------------
II. Final Text of the Advisory Opinions Policy
A. Overview
The primary purpose of this Advisory Opinions 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 and respond to such requests. Advisory
opinions will be interpretive rules issued to resolve regulatory
uncertainty.\9\
---------------------------------------------------------------------------
\9\ For convenience, this document uses the term ``regulatory
uncertainty'' to encompass uncertainty with respect to regulatory
or, where applicable, statutory provisions.
---------------------------------------------------------------------------
B. Submission and Content of 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 all of the information
specified in the following paragraphs.
1. Confidential information: The request must identify information
the requestor believes should be treated as confidential. If the
requestor would not normally make the information public, the Bureau
intends to withhold that information from public disclosure to the
extent permitted by the Freedom of Information Act, 5 U.S.C. 552(b),
and treat the information as confidential in accordance with the
Bureau's regulations on Disclosure of Records
[[Page 77988]]
and Information.\10\ Requests should not include sensitive personal
information, such as account numbers or Social Security numbers, or
names of individuals.
---------------------------------------------------------------------------
\10\ 12 CFR part 1070.
---------------------------------------------------------------------------
2. Identity of person or entity seeking the advisory opinion. The
request must identify the person or entity seeking the advisory
opinion, as well as the identity of any person or entity submitting the
request on behalf of a third party (i.e., one or more clients or
members). Outside counsel, a trade association, or a consumer advocacy
group, for example, may submit requests for advisory opinions on behalf
of one or more clients or members, and those entities do not need to be
identified.
3. Statement about the absence of investigation or litigation. The
request must include a statement that the issue on which the advisory
opinion is being requested is--or is not--the subject of any known or
reasonably knowable active litigation or Federal or State agency
investigation. Additionally, if the requestor is submitting a request
on behalf of an unidentified third party, the requestor must provide a
statement that the unidentified third party is--or is not--the subject
of an ongoing public Bureau enforcement action or an ongoing Bureau
enforcement investigation.
4. Specifics about the issue on which the advisory opinion is
sought. The issue raised in the request must be within the Bureau's
purview,\11\ and the request must concern actual facts or a course of
action that the requestor (or third party) is engaged in, or
considering engaging in. The request must set forth as completely as
possible, all material facts and circumstances, including detailed
specification of the legal question(s) and supporting facts with
respect to which the requestor seeks an advisory opinion. The request
must also identify the regulatory or statutory provision at issue and
the potential uncertainty or ambiguity that the proposed interpretation
would address, provide a proposed interpretation of law or regulation,
and explain why the proposed interpretation is an appropriate
resolution of that uncertainty or ambiguity.\12\ Requestors may also
choose to offer additional information, including, as applicable, an
explanation of the potential consumer benefits and risks associated
with resolution of the interpretive question and the proposed
interpretation; and an explanation of how the proposed interpretation
relates to the Bureau's statutory objectives.\13\
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\11\ Under title X of the Dodd-Frank Act (the Consumer Financial
Protection Act of 2010), the Bureau was created to regulate the
offering and provision of consumer financial products and services
under federal consumer financial laws. 12 U.S.C. 5881. The Act
enumerates several consumer laws under the Bureau's jurisdiction (in
part or whole). 12 U.S.C. 5841(12). Note that the Bureau's
Regulation J provides a separate procedure for advisory opinions
regarding certain issues under the Interstate Land Sales Full
Disclosure Act. See 12 CFR 1010.17.
\12\ The responsive advisory opinion will not necessarily adopt
the requestor's proposed interpretation. The Bureau retains the
discretion to answer requests with its own interpretation regardless
of the requestor's proposed interpretation.
\13\ Requestors should describe relevant legal provisions and
arguments with as much specificity as practicable. The Bureau
recognizes that in some cases, the requestor may lack the legal
resources to provide a detailed and complete showing. In such
circumstances, the requestor should provide the maximum
specification practicable under the circumstances and explain the
limits on further specification.
---------------------------------------------------------------------------
Alternatively, in some cases the Bureau may decide to issue an
advisory opinion based on questions the Bureau receives from the
public, through other channels, that are not requests for advisory
opinions.\14\
---------------------------------------------------------------------------
\14\ In that situation, references in this Advisory Opinions
Policy to the requestor or request are inapplicable. Note that the
Bureau may also issue interpretive rules outside the framework of
the Advisory Opinions Policy, including deciding to issue advisory
opinions on its own initiative.
---------------------------------------------------------------------------
C. Characteristics of Advisory Opinions
Advisory Opinions issued by the Bureau under the Advisory Opinions
Policy will be interpretive rules under the Administrative Procedure
Act (APA) \15\ that respond to a specific need for clarity on a
statutory or regulatory interpretive question. The Bureau will publish
advisory opinions in the Federal Register and on consumerfinance.gov,
including a summary of the material facts or covered products and the
Bureau's legal analysis of the issue.
---------------------------------------------------------------------------
\15\ 5 U.S.C. 553(b).
---------------------------------------------------------------------------
Unless otherwise stated, each advisory opinion will be applicable
to the requestor and to similarly situated parties to the extent that
their situations conform to the summary of material facts or coverage
in the advisory opinion. The scope and terms of an advisory opinion
will be set out in the advisory opinion itself, and may deviate from
the interpretation proposed by the requestor in its submission.\16\
Moreover, the Bureau will not normally investigate the underlying facts
of the requestor's situation and, as a result, an advisory opinion may
not be applicable to the requestor if the underlying facts of the
requestor's situation do not conform to the summary of material facts.
---------------------------------------------------------------------------
\16\ Thus, the initial request drafted by the requestor is not
necessarily a reliable guide to the scope and terms of the advisory
opinion.
---------------------------------------------------------------------------
If a statutory safe harbor is applicable to an advisory opinion,
the advisory opinion will explain that fact. The Truth in Lending Act
(TILA), Equal Credit Opportunity Act (ECOA), Electronic Fund Transfer
Act (EFTA), and Real Estate Settlement Procedures Act (RESPA) provide
certain protections from liability for acts or omissions done in good
faith in conformity with an interpretation by the Bureau.\17\ The Fair
Debt Collection Practices Act (FDCPA) contains similar protections,
specifically using the term ``advisory opinion.'' \18\
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\17\ See 15 U.S.C. 1640(f) (TILA); 15 U.S.C. 1691e(e) (ECOA); 15
U.S.C. 1693m(d) (EFTA); 12 U.S.C. 2617, 12 CFR 1024.4 (RESPA).
\18\ See 15 U.S.C. 1692(k)(e).
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D. Factors in Bureau Selection of Topics for Advisory Opinions
The Bureau intends to consider the following factors as part of its
consideration of whether to address requests for advisory opinions.\19\
The Bureau will prioritize open questions if they are within the
Bureau's purview that can legally be addressed through an interpretive
rule and if an advisory opinion is an appropriate tool relative to
other Bureau tools for answering the question. Initial factors weighing
for the appropriateness of an advisory opinion include: (1) The
interpretive issue has been noted during prior Bureau examinations as
one that might benefit from additional regulatory clarity; (2) the
issue is one of significant importance or one whose clarification would
provide significant benefit; and/or (3) the issue concerns an ambiguity
that the Bureau has not previously addressed through an interpretive
rule or other authoritative source. Factors weighing strongly for
presumption that an advisory opinion is not an appropriate tool
include: (1) The interpretive issue is the subject of an ongoing Bureau
investigation or enforcement action; (2) the interpretive issue is the
subject of an ongoing or planned rulemaking; (3) the issue is better
suited for notice-and-comment rulemaking; (4) the issue could be
addressed more effectively through a Compliance Aid or the RIF
function; or (5) there is clear existing Bureau or court precedent that
is available to the public on the issue.
---------------------------------------------------------------------------
\19\ The following are factors that the Bureau intends to weigh
when deciding which topics to prioritize in the Advisory Opinions
Policy, based on all of the information available to the Bureau.
Advisory opinion requests need not address these factors in order to
be fully considered by the Bureau.
---------------------------------------------------------------------------
The Bureau intends to further evaluate requests for advisory
opinions
[[Page 77989]]
based on secondary factors, including: Alignment with the Bureau's
statutory objectives; size of the benefit offered to consumers by
resolution of the interpretive issue; known impact on the actions of
other regulators; and impact on available Bureau resources. The Bureau
will primarily focus on the following statutory objectives: (1)
Consumers are provided with timely and understandable information to
make responsible decisions about financial transactions; (2) outdated,
unnecessary, or unduly burdensome regulations are regularly identified
and addressed in order to reduce unwarranted regulatory burdens; (3)
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 (4) markets for consumer financial
products and services operate transparently and efficiently to
facilitate access and innovation.\20\
---------------------------------------------------------------------------
\20\ See 12 U.S.C. 5511(b)(1), (3)-(5). The Bureau has a further
statutory objective, that consumers are protected from unfair,
deceptive, or abusive acts and practices and from discrimination. 12
U.S.C. 5511(b)(2). The Bureau considers this objective to be at
least as important as its other objectives, and it does not plan to
issue an advisory opinion that is in conflict with this objective.
But because other regulatory tools are often more suitable for
addressing UDAAPs and discrimination, the Bureau has chosen not to
highlight this objective as a primary focus when selecting issues
for the Advisory Opinions Policy.
---------------------------------------------------------------------------
The Bureau will focus primarily on clarifying ambiguities in its
regulations, although Advisory Opinions may clarify statutory
ambiguities. The Bureau will not issue advisory opinions on issues that
require, or are better addressed through, a legislative rulemaking
under the APA.\21\ For example, the Bureau does not intend to issue an
advisory opinion that would change regulation text or commentary.
Similarly, if a regulation or statute establishes a general standard
that can only be applied through highly fact-intensive analysis, the
Bureau does not intend to replace that analysis with a bright-line
standard that eliminates all of the required analysis. Highly fact-
intensive applications of general standards, such as the statutory
prohibition on unfair, deceptive, or abusive acts or practices, pose
particular challenges for issuing advisory opinions, although there may
be times when the Bureau is able to offer advisory opinions that
provide additional clarity on the meaning of such standards.
---------------------------------------------------------------------------
\21\ 5 U.S.C. 553(b).
---------------------------------------------------------------------------
E. Public Input
Advisory opinions will be issued and final upon publication in the
Federal Register. However, interested persons may provide input on
published advisory opinions at any time by sending an email to
[email protected] or through other means designated by the
Bureau. The Bureau is particularly interested in input that addresses
whether an advisory opinion would benefit from clarification or
reconsideration, with information about the factual or legal basis for
clarification or reconsideration.
III. Discussion of Comments and Changes in the Final Advisory Opinions
Policy
A. Overview
The Bureau solicited comments on the Advisory Opinions Proposal.
The Bureau received 16 unique comments, 13 of which were submitted by
industry trade associations. A consortium of 7 consumer advocacy groups
submitted a joint comment letter. The remaining comments were provided
by staff of the Administrative Conference of the United States (ACUS)
and one anonymous submitter. The Bureau has made certain changes to the
Advisory Opinions Policy based on the comments, as discussed below, as
well as other changes to the Advisory Opinions Policy for clarity.
B. General Comments
Industry commenters uniformly supported the Advisory Opinions
Proposal, as did the anonymous commenter. These commenters generally
stated that the issuance by the Bureau of advisory opinions could aid
in compliance in situations where there are statutory and regulatory
uncertainties. Conversely, the joint comment letter by certain consumer
advocacy groups generally opposed the Advisory Opinions Proposal and
argued that the Bureau should abandon it. The Bureau has carefully
considered this comment letter, but contrary to the group's assertions,
and as discussed below the Bureau concludes that issuing interpretive
rules in the form of advisory opinions is consistent with the APA or
with the Bureau's statutory authorities. The Bureau also does not agree
that advisory opinions are not an appropriate use of Bureau resources.
Advisory opinions represent a commitment of resources by the Bureau
that will help entities better understand their obligations under
Federal consumer financial law. If an advisory opinion makes clear the
law applies, it will promote compliance with the law that will prevent
consumer harm. If an advisory opinion makes clear the law does not
apply, it will avoid regulated entities incurring unnecessary
compliance costs.
C. Legality of Advisory Opinions Policy
The consumer advocacy group comments stated that issuing
interpretive rules in the form of advisory opinions are inconsistent
with the APA and with the Bureau's statutory authorities. The Bureau
disagrees with this assertion. As proposed, the advisory opinions are
interpretive rules under the APA.\22\ Nevertheless, the Bureau revised
the phrase in the proposed Advisory Opinions Policy that states that
``substantive importance or impact'' is one of a list of factors that
the Bureau intends to consider in part II.D so that it reads
``significant importance.'' This change is intended to address the
commenter's concern that the phrase might be read to suggest that the
Bureau intends to issue advisory opinions that are substantive rules
rather than interpretive rules under the APA.
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\22\ See 5 U.S.C. 552(b)(3).
---------------------------------------------------------------------------
D. Role of Public Input
The Bureau received a number of comments from stakeholders
expressing interest in a mechanism for soliciting public input on
advisory opinions, either before or after issuance. Some commenters
advocated that the Bureau obtain such input from the public before
issuing advisory opinions. The Bureau notes that there is nothing in
the Advisory Opinions Policy that would prevent the Bureau from
soliciting input on a draft advisory opinion before finalizing, if the
Bureau believes it would be appropriate for a given advisory opinion.
However, the Bureau declines to adopt this as a uniform requirement for
advisory opinions. Such a process is not typical of peer financial
regulators' advisory opinion policies.\23\ It could unnecessarily delay
the process of issuing advisory opinions, and thus inhibit the ability
of the Bureau to promptly provide clarity about its own regulations and
the statutes that it administers.
---------------------------------------------------------------------------
\23\ E.g., 16 CFR 1.2-1.6 (Federal Trade Commission).
---------------------------------------------------------------------------
However, the Bureau does agree that providing a mechanism for the
public to provide feedback after an advisory opinion is issued could be
useful. Accordingly, the Bureau has added new part II.E to the Advisory
Opinions Policy to provide that any person may comment on an advisory
opinion via email to [email protected] or through other means
designated by the
[[Page 77990]]
Bureau. The Bureau encourages any stakeholders including, but not
limited to, industry representatives and consumer advocates, to submit
such feedback in an instance where stakeholders believe the Bureau
should clarify or reconsider an advisory opinion.
E. Accuracy of Requests
Certain consumer advocacy group commenters expressed concern that
the requestor's presentation of the issue might be inaccurate or
misleading. However, the Bureau emphasizes that it expects requestors
to provide truthful submissions to the Bureau. While it is possible
that the submitting party may provide inaccurate or misleading facts,
doing so would put at great risk the benefit the requester might obtain
from an advisory opinion. The Advisory Opinions Policy specifically
explains that ``an advisory opinion may not be applicable to the
requestor if the underlying facts of the requestor's situation do not
conform to the Bureau's summary of material facts'' in the advisory
opinion. The Bureau concludes that this disincentive is sufficient to
address the concern commenters have raised. For the same reason, the
Bureau does not believe it is necessary to require requestors to
include an affirmation that the information provided is accurate, as
some commenters suggested.
F. Follow-Up by Requestors
Some commenters asked the Bureau to provide a mechanism for
requestors to modify or rescind pending advisory opinion requests. The
Bureau notes that it would be consistent with the Advisory Opinions
Policy for a requestor to amend or withdraw a pending request.
If the Bureau informs a requestor that it has not chosen to issue
an advisory opinion, some commenters advocated that the Bureau create a
specific procedure for the requestor to appeal or request
reconsideration of that decision. The Bureau does not believe adding a
specific procedure to address that possibility is necessary, because
the Advisory Opinions Policy would allow a requestor to renew its
request a subsequent time if it wants to bring new facts, law, or other
considerations to the Bureau's attention.
G. Third-Party Requests
Part II.B of the Advisory Opinions Proposal stated that the Bureau
would accept advisory opinion requests from trade associations, service
providers, and other third parties; however, the Advisory Opinions
Proposal noted that if the requestor is submitting a request on behalf
of an unidentified third party, the requestor must provide a statement
on whether the unidentified third party is the subject of an ongoing
public Bureau enforcement action or an ongoing Bureau enforcement
investigation conducted by the Bureau's Office of Enforcement.\24\ This
statement was in addition to the general requirement that any requestor
provide a statement of whether the issue on which the advisory opinion
is being requested is the subject of any known or reasonably knowable
active litigation or Federal or State agency investigations. Trade
association commenters generally supported the Bureau's proposal to
allow third parties to request advisory opinions. These commenters
stated that allowing third parties to facilitate requests would
increase access to advisory opinions, in particular for smaller
entities that might otherwise lack the resources to request an advisory
opinion.
---------------------------------------------------------------------------
\24\ 85 FR 37394 (June 22, 2020).
---------------------------------------------------------------------------
Certain consumer advocacy groups opposed the proposal to allow
requests on behalf of third parties. These commenters argued that the
Bureau would have insufficient details about the underlying facts of
the third party's situation. The Bureau agrees that it is possible for
requests on behalf of a third party, like any type of request, to
include insufficient facts for the Bureau to reach a legal conclusion.
However, that would be a potential reason for denying an individual
request, not entirely closing off this potential source of requests for
advisory opinions.
These commenters also asserted that the Bureau must know the
identity of the third party in order to avoid interference with
litigation or enforcement-related proceedings. However, the Bureau
concludes that the categorical, express representations that the
requestor would need to make under the Advisory Opinions Policy are
sufficient to alert the Bureau to those proceedings of which the Bureau
would not otherwise be aware that are likely to be relevant to a
potential advisory opinion and about which further Bureau inquiry may
be warranted. The Bureau is finalizing the required statements, with
non-substantive wording changes in part II.B of the Advisory Opinions
Policy.\25\
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\25\ One commenter suggested that the Bureau provide sample
language that requestors can use when making these required
statements. The Bureau has instead made non-substantive edits to how
the required statements are set out in part II.B of the Advisory
Opinions Policy, so that requestors can choose to comply by using
the applicable language in the Advisory Opinions Policy verbatim.
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H. Rescission of Advisory Opinions
It is, of course, possible that the Bureau may decide it is
appropriate to rescind an advisory opinion. One commenter emphasized
that, if an advisory opinion is rescinded, no action should be taken
against those institutions who acted in good faith in accordance with
the advisory opinion. The Bureau notes that several statutes provide
protections from liability for acts or omissions done in good faith in
conformity with an interpretation by the Bureau, as detailed in the
text of the Advisory Opinions Policy. And of course, in addition to any
applicable safe harbors, the Bureau would not expect to retroactively
impose punishments on persons who conformed their conduct in good faith
to an advisory opinion before the advisory opinion was rescinded. Doing
so would raise serious concerns under the Due Process Clause, which
restricts such retroactive relief.
I. Confidentiality of Material in Advisory Opinion Requests
Part II.B of the Advisory Opinions Proposal explained that where
information submitted to the Bureau is information the requestor would
not normally make public, the Bureau intends to treat it as
confidential pursuant to its rule, Disclosure of Records and
Information, to the extent applicable.\26\
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\26\ 12 CFR 1070.
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Industry commenters were broadly supportive of this approach.
However, certain consumer advocacy groups asserted that this statement
is in tension with the Freedom of Information Act (FOIA). To be clear,
the Bureau will treat information that it receives in accordance with
FOIA, including the FOIA exemption at 5 U.S.C. 552(b)(4) that applies
to confidential business information. Information that is subject to a
FOIA exemption also will be treated as confidential in accordance with
the Bureau's rule on Disclosure of Records and Information, 12 CFR part
1070. The confidentiality assurance in the proposed policy reflects the
standard for determining applicability of the exemption at 5 U.S.C.
552(b)(4), established by the United States Supreme Court in Food
Marketing Institute v. Argus Leader Media dba Argus Leader, 139 S. Ct.
2356 (2019). To make this clearer, the Bureau revises the policy to
state explicitly that the information will be treated in accordance
with FOIA.
[[Page 77991]]
J. Other Comments on Specific Implementation Issues
The Bureau received comments on a number of other subjects. These
include comments on the structure of the Bureau's internal deliberative
process for considering advisory opinion requests; timelines for
deciding advisory opinion requests; details of how the Bureau should
communicate with requestors after the Bureau receives their requests,
such as what the Bureau should say in the letters that it sends denying
requests; general outreach that commenters recommend that the Bureau
conduct with outside bodies or groups; recommendations regarding the
types of requests the Bureau should prioritize; and details of how the
Bureau should post advisory opinions on its website.
The Bureau appreciates receiving commenters' views on all aspects
of the program. However, the Bureau has decided not to expand the scope
of the Advisory Opinions Policy, which is intended to establish the
general procedures of the program, to cover these specific
implementation issue. Instead, the Bureau will consider these comments
as it proceeds with implementation of the Advisory Opinions Policy.
IV. Regulatory Requirements
This Advisory Opinions Policy is a rule of agency organization,
procedure, or practice, and it is therefore exempt from the notice-and-
comment rulemaking requirements of the APA.\27\ For the same reason, it
is not subject to the 30-day delayed effective date for substantive
rules under the APA.\28\ Because no notice of proposed rulemaking is
required, the Regulatory Flexibility Act does not require an initial or
final regulatory flexibility analysis.\29\
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\27\ 5 U.S.C. 553(b).
\28\ 5 U.S.C. 553(d).
\29\ 5 U.S.C. 603(a), 604(a).
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V. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that Federal agencies may not conduct or sponsor, and
notwithstanding any other provision of law, a person is not required to
respond to a collection of information unless it displays a currently
valid Office of Management and Budget (OMB) control number. The
information collection requirements as contained in this final Policy
and identified below have been approved by OMB and assigned the OMB
control number 3170-0072. OMB's approval will expire on November 30,
2023.
The Bureau's Advisory Opinions Proposal, published June 22, 2020,
sought comment on these information collection requirements. While the
Bureau received numerous comments on the Advisory Opinions Proposal,
which are addressed above, the Bureau received no comments specifically
regarding the burden estimates or the utility or appropriateness of
these information collections. Additional details on comments received
can be found in the Supporting Statement for the related 30-day notice
published as required under the PRA.\30\
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\30\ See https://beta.regulations.gov/docket/CFPB-2020-0019.
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A complete description of the information collection requirements,
including the burden estimate methods, is provided in the information
collection request (ICR) that the Bureau submitted to OMB under the
requirements of the PRA. The ICR submitted to OMB requesting approval
under the PRA for the information collection requirements contained
herein is available at OMB's public-facing docket at https://www.reginfo.gov/public/.
VI. Signing Authority
The Director of the Bureau, Kathleen L. Kraninger, having reviewed
and approved this document, is delegating the authority to
electronically sign this document to Grace Feola, a Bureau Federal
Register Liaison, for purposes of publication in the Federal Register.
Dated: November 30, 2020.
Grace Feola,
Federal Register Liaison, Bureau of Consumer Financial Protection.
[FR Doc. 2020-26661 Filed 12-2-20; 8:45 am]
BILLING CODE 4810-AM-P
