[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.

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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 
<a href="/cdn-cgi/l/email-protection#6625203624392705050315150f040f0a0f121f260500160448010910"><span class="__cf_email__" data-cfemail="3a797c6a78657b59595f494953585356534e437a595c4a58145d554c">[email protected]</span></a>.

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.
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    \1\ See Advisory Opinions Pilot, 85 FR 37394 (June 22, 2020).
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I. Background

    Under the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(Dodd-Frank Act),<SUP>2 3</SUP> 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.
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    \2\ Public Law 111-203, 124 stat. 2081 (2010).
    \3\ See 12 U.S.C. 5511(c)(5).
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    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).
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    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).
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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\
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    \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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B. Submission and Content of Requests

    Requests for advisory opinions should be submitted via email to 
<a href="/cdn-cgi/l/email-protection#325356445b415d404b5d425b5c5b5d5c72515442501c555d44"><span class="__cf_email__" data-cfemail="c7a6a3b1aeb4a8b5bea8b7aea9aea8a987a4a1b7a5e9a0a8b1">[email protected]</span></a> 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.
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    \10\ 12 CFR part 1070.
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    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.
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    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\
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    \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.
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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.
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    \15\ 5 U.S.C. 553(b).
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    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.
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    \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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    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.
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    \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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    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\
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    \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.
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    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.
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    \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 
<a href="/cdn-cgi/l/email-protection#1c7d786a756f736e65736c75727573725c7f7a6c7e327b736a"><span class="__cf_email__" data-cfemail="dbbabfadb2a8b4a9a2b4abb2b5b2b4b59bb8bdabb9f5bcb4ad">[email protected]</span></a> 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).
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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.
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    \23\ E.g., 16 CFR 1.2-1.6 (Federal Trade Commission).
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    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 <a href="/cdn-cgi/l/email-protection#3f5e5b49564c504d46504f56515650517f5c594f5d11585049"><span class="__cf_email__" data-cfemail="721316041b011d000b1d021b1c1b1d1c32111402105c151d04">[email protected]</span></a> 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.
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    \24\ 85 FR 37394 (June 22, 2020).
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    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


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