Proposed Rule on The Role of Supervisory Guidance

On Tuesday, October 20, 2020, the OCC, Federal Reserve Board, FDIC, NCUA, and CFPB (collectively, the agencies) issued a press release inviting comment on a proposed rule that would codify the Interagency Statement Clarifying the Role of Supervisory Guidance issued by the agencies on September 11, 2018; the so-called “guidance on guidance” document.

 

The proposed rule codifies the 2018 Statement, with clarifying changes, and would supersede the 2018 Statement. 

 

Clarifying changes to the 2018 Statement include the following:

 

  • The term “criticize” includes the issuance of matters requiring attention (MRAs) and other supervisory criticisms, including those communicated through matters requiring board attention, documents of resolution, and supervisory recommendations.

 

  • A statement reiterating that examiners will not base supervisory criticisms on a “violation” of or “non-compliance with” supervisory guidance, though in some situations, examiners may reference (including in writing) supervisory guidance to provide examples of safe and sound conduct, appropriate consumer protection and risk management practices, and other actions for addressing compliance with laws or regulations.

 

  • A statement reiterating that the agencies will not issue an enforcement action on the basis of a “violation” of or “non-compliance” with supervisory guidance.

 

  • Language indicating the proposed Statement is binding on each agency.

 

Comments are due 60 days after publication in the Federal Register.