The OCC, FDIC, NCUA, and CFPB have issued final rules codifying the 2018 Interagency Statement governing the use of supervisory guidance, making the Statement binding on those agencies. The regulators’ final rules implement their proposal to do so, which was published in the fall of 2020, without any substantive changes. Although the proposal was issued jointly between the OCC, FDIC, NCUA, CFPB, and the Fed, the Fed has not yet issued a final rule implementing the proposal.
As WBK previously reported here, the regulators’ adoption of the Interagency Statement affirms that supervisory guidance does not create binding, enforceable legal obligations on the public. Violations of supervisory guidance will not themselves result in enforcement actions or other adverse actions. Agencies will seek to limit “bright line” rules in supervisory guidance; seek public comment on supervisory guidance; reduce multiple supervisory guidance documents on the same topic; make the role of supervisory guidance clear in communications to examiners and supervised institutions; and encourage supervised institutions to discuss their concerns with supervisory guidance with the appropriate agency contact.