Three agencies’ final rules on role of supervisory guidance take effect in March

Final rules published by three financial industry regulators on the role of supervisory guidance are slated to take effect March 5 and March 15, according to Federal Register notices published recently.

The proposed rule, to codify a 2018 joint statement and stipulating that supervisory guidance does not carry the force of law, was issued jointly in November by the Consumer Financial Protection Bureau (CFPB), Federal Deposit Insurance Corp. (FDIC), Federal Reserve Board, National Credit Union Administration (NCUA), and Office of the Comptroller of the Currency (OCC). All but the Fed in January announced they had finalized their rules, with effective dates to be set for 30 days after their publication in the Federal Register.

The NCUA final rule was published in the Register without change from the proposal Feb. 3. The CFPB and OCC final rules, with each agency noting some modification from the proposal, were in Friday’s Federal Register and take effect March 15.

The OCC also issued a bulletin (No. 2021-8) on the final rule Monday. In that bulletin, the agency said the rule:

  • recognizes well-settled administrative law by reaffirming that supervisory guidance, unlike statutes and regulations, does not have the force and effect of law;
  • explains that supervisory guidance can outline the OCC’s supervisory expectations or priorities and articulate the OCC’s general views regarding appropriate practices for a given subject area;
  • explains that supervisory criticisms should be specific as to practices, operations, financial conditions, or other matters that could have a negative effect on the bank’s safety and soundness, could cause consumer harm, or could cause violations of laws, regulations, final agency orders, or other legally enforceable conditions;
  • reiterates that examiners will not base supervisory criticisms on a “violation” of or “non-compliance” with supervisory guidance;
  • reaffirms that the OCC does not take enforcement actions on the basis of a “violation” of, or “non-compliance” with, supervisory guidance.

OCC Bulletin 2021-8

OCC final rule

CFPB final rule

NCUA final rule

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