The Consumer Financial Protection Bureau (CFPB) announced a new pilot program that allows businesses to seek clarity on regulatory compliance obligations through a request for an advisory opinion (AO). The pilot program is intended to address regulatory uncertainty, where AOs will be made public to ensure broad benefit of the Bureau’s analysis, although certain information can be made confidential upon request. The requests for an AO will also inform the Bureau of outdated, unnecessary, or unduly burdensome regulations, but will not change the regulations themselves nor will they be issued in cases that would be better addressed through notice and comment procedures.
There are a number of stipulations on issues that may be eligible or ineligible for an advisory opinion. For example, issues that would benefit from an AO include:
- Issues that the Bureau has previously indicated would benefit from additional clarity;
- Issues of substantive importance or impact; and,
- Issues that have not been previously addressed through an interpretive rule or authoritative source.
Issues that would likely be ineligible for an AO include:
- Issues that are the subject of an ongoing Bureau investigation or enforcement action;
- Issues that are the subject of an ongoing or planned rulemaking; or,
- Issues that would be better suited for a formal notice-and-comment process or other compliance aid.
Notably, the AOs will have a statutory safe harbor providing certain protections from liability for acts and omissions done in good faith in conformity with the interpretation requested if the issue falls under certain laws such as the Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA), Electronic Fund Transfer Act (EFTA), and the Equal Credit Opportunity Act (ECOA), for example.
The CFPB will also be seeking feedback on the pilot program, which will inform them of changes to implement to the AO program at the end of the pilot. Stay tuned to nar.realtor/respa for the latest updates.