Consumer bureau Supervisory Highlights notes testing of advisory opinion program

A recap on an advisory opinion (AO) pilot program launched this June, which could be adopted in full at any time now, is provided in the summer issue of the Consumer Financial Protection Bureau (CFPB) Supervisory Highlights, published on the agency’s website last week and Thursday in the Federal Register.

The pilot program – which was subject to a public comment period that closed Aug. 21 – allows regulated entities to submit requests about a regulatory compliance matter where there is uncertainty, the bureau noted. It said pilot program’s priorities are timely, understandable information that helps consumers make responsible decisions; identifying outdated, unnecessary or unduly burdensome regulations to reduce regulatory burden; consistency in enforcement of federal consumer financial law “to promote fair competition”; and ensuring markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.

Initial factors weighing for the appropriateness of an AO, it said, include:

  • that the interpretive issue has been noted during prior CFPB examinations as one that might benefit from additional regulatory clarity;
  • that the issue is one of substantive importance or impact or one whose clarification would provide significant benefit; and/or
  • that the issue concerns an ambiguity that the Bureau has not previously addressed through an interpretive rule or other authoritative source.

“There will be a strong presumption against appropriateness of an AO for issues that are the subject of an ongoing investigation or enforcement action or the subject of an ongoing or planned rulemaking,” the agency said.

Following conclusion of the pilot, the proposed AO program “will be fully implemented after the Bureau’s review of comments received,” the agency said in Highlights. The website (search for CFPB-2020-0019-0001) notes 16 comments received; this may or may not include all comments sent.

Federal Register notice: CFPB Supervisory Highlights (Summer 2020)