Role of Supervisory Guidance
| Published date | 05 November 2020 |
| Citation | 85 FR 70512 |
| Record Number | 2020-24484 |
| Section | Proposed rules |
| Court | Consumer Financial Protection Bureau,Federal Reserve System,National Credit Union Administration |
Federal Register, Volume 85 Issue 215 (Thursday, November 5, 2020)
[Federal Register Volume 85, Number 215 (Thursday, November 5, 2020)]
[Proposed Rules]
[Pages 70512-70523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24484]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket No. OCC-2020-0005]
RIN 1557-AE80
FEDERAL RESERVE SYSTEM
12 CFR Part 262
[Docket No. R-1725]
RIN 7100-AF96
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 302
RIN 3064-AF32
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 791
[Docket No. NCUA-2020-0098]
RIN 3133-AF28
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1074
[Docket No. CFPB-2020-0033]
RIN 3710-AB02
Role of Supervisory Guidance
AGENCY: Office of the Comptroller of the Currency, Treasury (OCC);
Board of Governors of the Federal Reserve System (Board); Federal
Deposit Insurance Corporation (FDIC); National Credit Union
Administration (NCUA); and Bureau of Consumer Financial Protection
(Bureau).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The OCC, Board, FDIC, NCUA, and Bureau (collectively, the
agencies) are 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 (2018 Statement). By
codifying the 2018 Statement, the proposed rule is intended to confirm
that the agencies will continue to follow and respect the limits of
administrative law in carrying out their supervisory responsibilities.
The 2018 Statement reiterated well-established law by stating that,
unlike a law or regulation, supervisory guidance does not have the
force and effect of law. As such, supervisory guidance does not create
binding legal obligations for the public. The proposal would also
clarify that the 2018 Statement, as amended, is binding on the
agencies.
DATES: Comments must be received by January 4, 2021.
ADDRESSES:
OCC: You may submit comments to the OCC by any of the methods set
forth below. Commenters are encouraged to submit comments through the
Federal eRulemaking Portal or email, if possible. Please use the title
``Role of Supervisory Guidance'' to facilitate the organization and
distribution of the comments. You may submit comments by any of the
following methods:
Federal eRulemaking Portal--``Regulations.gov'': Go to
www.regulations.gov. Enter ``Docket ID OCC-2020-0005'' in the Search
Box and click ``Search.'' Click on ``Comment Now'' to submit public
comments.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov, including instructions for
submitting public comments.
Email: [email protected].
Mail: Chief Counsel's Office, Attention: Comment
Processing, Office of the Comptroller of the Currency, 400 7th Street
SW, Suite 3E-218, Washington, DC 20219.
Hand Delivery/Courier: 400 7th Street SW, Suite 3E-218,
Washington, DC 20219.
Instructions: You must include ``OCC'' as the agency name and
``Docket ID OCC-2020-0005'' in your comment.
In general, the OCC will enter all comments received into the
docket and publish the comments on the Regulations.gov website without
change, including any business or personal information that you provide
such as name and address information, email addresses, or phone
numbers. Comments received, including attachments and other supporting
materials, are part of the public record and subject to public
disclosure. Do not include any information in your comment or
supporting materials that you consider confidential or inappropriate
for public disclosure.
You may review comments and other related materials that pertain to
this rulemaking action by the following method:
Viewing Comments Electronically: Go to
www.regulations.gov. Enter ``Docket ID OCC 2020-0005'' in the Search
box and click ``Search.'' Click on ``Open Docket Folder'' on the right
side of the screen. Comments and supporting materials can be viewed and
filtered by
[[Page 70513]]
clicking on ``View all documents and comments in this docket'' and then
using the filtering tools on the left side of the screen.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov. The docket may be viewed
after the close of the comment period in the same manner as during the
comment period.
Board: You may submit comments, identified by Docket No. R-1725 and
RIN No. 7100-AF96, by any of the following methods:
Agency Website: http://www.federalreserve.gov. Follow the
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
Email: [email protected]. Include the
docket number in the subject line of the message.
Fax: (202) 452-3819 or (202) 452-3102.
Mail: Ann Misback, Secretary, Board of Governors of the
Federal Reserve System, 20th Street and Constitution Avenue NW,
Washington, DC 20551.
All public comments will be made available on the Board's
website at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons or
to remove personally identifiable information at the commenter's
request. Accordingly, your comments will not be edited to remove any
identifying or contact information. Public comments may also be viewed
electronically or in paper in Room 146, 1709 New York Avenue NW,
Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on weekdays.
FDIC: You may submit comments on the notice of proposed rulemaking
using any of the following methods:
Agency Website: https://www.fdic.gov/regulations/laws/federal. Follow the instructions for submitting comments on the agency
website.
Email: [email protected]. Include RIN 3064-AF32 on the
subject line of the message.
Mail: Robert E. Feldman, Executive Secretary, Attention:
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW,
Washington, DC 20429.
Hand Delivery: Comments may be hand delivered to the guard
station at the rear of the 550 17th Street Building (located on F
Street) on business days between 7 a.m. and 5 p.m.
Public Inspection: All comments received, including any
personal information provided, will be posted generally without change
to https://www.fdic.gov/regulations/laws/federal.
NCUA: You may submit comments to the NCUA by any of the methods set
forth below. Commenters are encouraged to submit comments through the
Federal eRulemaking Portal or email, if possible. Please use the title
``Role of Supervisory Guidance'' to facilitate the organization and
distribution of the comments. You may submit comments by any of the
following methods:
Federal eRulemaking Portal--``Regulations.gov'': Go to
www.regulations.gov. Enter ``Docket ID NCUA-[2020-0098]'' in the Search
Box and click ``Search.'' Click on ``Comment Now'' to submit public
comments.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov, including instructions for
submitting public comments.
Mail: Melane Conyers-Ausbrooks, Secretary of the Board,
National Credit Union Administration, 1775 Duke Street, Alexandria, VA.
22314.
Fax: (703) 518-6319. Include ``[Your name]--Comments on
Proposed Rule: Role of Supervisory Guidance'' with the transmittal.
Hand Delivery/Courier: Office of General Counsel, National
Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314.
You must include ``NCUA'' as the agency name and ``Docket ID NCUA-
[2020-0098]'' in your comment.
In general, the NCUA will enter all comments received into the
docket and publish the comments on the Regulations.gov website without
change, including any business or personal information that you provide
such as name and address information, email addresses, or phone
numbers. Comments received, including attachments and other supporting
materials, are part of the public record and subject to public
disclosure. Do not include any information in your comment or
supporting materials that you consider confidential or inappropriate
for public disclosure.
You may review comments and other related materials that pertain to
this rulemaking action by any of the following methods:
Viewing Comments Electronically: Go to
www.regulations.gov. Enter ``Docket ID NCUA-[2020-0098]'' in the Search
box and click ``Search.'' Click on ``Open Docket Folder'' on the right
side of the screen. Comments and supporting materials can be viewed and
filtered by clicking on ``View all documents and comments in this
docket'' and then using the filtering tools on the left side of the
screen.
Click on the ``Help'' tab on the Regulations.gov home page
to get information on using Regulations.gov. The docket may be viewed
after the close of the comment period in the same manner as during the
comment period.
Due to social distancing measures in effect, the usual
opportunity to inspect paper copies of comments in the NCUA's law
library is not currently available. After social distancing measures
are relaxed, visitors may make an appointment to review paper copies by
calling (703) 518-6540 or emailing [email protected].
Bureau: You may submit comments, identified by Docket No. CFPB-
2020-0033 or RIN 3170-AB02, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include
Docket No. CFPB-2020-0033 or RIN 3170-AB02 in the subject line of the
email.
Mail/Hand Delivery/Courier: Comment Intake, Bureau of
Consumer Financial Protection, 1700 G Street NW, Washington, DC 20552.
Please note that due to circumstances associated with the COVID-19
pandemic, the Bureau discourages the submission of comments by hand
delivery, mail, or courier.
Instructions: The Bureau encourages the early submission of
comments. All submissions should include the agency name and docket
number or Regulatory Information Number (RIN) for this rulemaking.
Because paper mail in the Washington, DC area and at the Bureau is
subject to delay and in light of difficulties associated with mail and
hand deliveries during the COVID-19 pandemic, commenters are encouraged
to submit comments electronically. In general, all comments received
will be posted without change to http://www.regulations.gov. In
addition, once the Bureau's headquarters reopens, comments will be
available for public inspection and copying at 1700 G Street NW,
Washington, DC 20552, on official business days between the hours of
10:00 a.m. and 5:00 p.m. Eastern Time. At that time, you can make an
appointment to inspect the documents by telephoning 202-435-9169.
All comments, including attachments and other supporting materials,
will become part of the public record and subject to public disclosure.
Proprietary or sensitive personal information, such as account numbers,
Social Security numbers, or names of other individuals, should not be
included. Comments will
[[Page 70514]]
not be edited to remove any identifying or contact information.
FOR FURTHER INFORMATION CONTACT:
OCC: Mitchell Plave, Special Counsel, (202) 649-5490; or Henry
Barkhausen, Counsel, Chief Counsel's Office (202) 649-5490; or Steven
Key, Associate Deputy Comptroller for Bank Supervision Policy, (202)
649-6770, Office of the Comptroller of the Currency, 400 7th Street SW,
Washington, DC 20219. For persons who are deaf or hearing impaired, TTY
users may contact (202) 649-5597.
Board: Laurie Schaffer, Deputy General Counsel, (202) 452-2272,
Benjamin McDonough, Associate General Counsel, (202) 452-2036, Steve
Bowne, Senior Counsel, (202) 452-3900, Christopher Callanan, Senior
Counsel, (202) 452-3594, or Kelley O'Mara, Counsel, (202) 973-7497,
Legal Division; Anna Lee Hewko, Associate Director, (202) 530-6260;
David Palmer, Lead Financial Institution and Policy Analyst, (202) 452-
2904, or Jinai Holmes, Lead Financial Institution and Policy Analyst,
(202) 452-2834, Division of Supervision and Regulation; Suzanne
Killian, Senior Associate Director, (202) 452-2090, Jeremy Hochberg,
Managing Counsel, (202) 452-6496, or Dana Miller, Senior Counsel, (202)
452-2751, Division of Consumer and Community Affairs; Board of
Governors of the Federal Reserve System, 20th and C Streets NW,
Washington, DC 20551. For users of Telecommunications Device for the
Deaf (TDD), (202) 263-4869.
FDIC: William Piervincenzi, Supervisory Counsel, (202) 898-6957,
Kathryn Marks, Counsel, (202) 898-3896, Jennifer M. Jones, Counsel,
(202) 898-6768, [email protected], Supervision and Legislation Branch,
Legal Division, Federal Deposit Insurance Corporation, 550 17th Street
NW, Washington, DC 20429. For the hearing impaired only,
Telecommunication Device for the Deaf (TDD), (800) 925-4618.
NCUA: Ian Marenna, Associate General Counsel, or Marvin Shaw, Staff
Attorney, Office of General Counsel, at the above address or telephone
(703) 518-6540. National Credit Union Administration, 1775 Duke Street,
Alexandria, VA 22314.
Bureau: Bradley Lipton or Christopher Shelton, Senior Counsels,
Legal Division, (202) 435-7700. Bureau of Consumer Financial
Protection, 1700 G Street NW, Washington, DC 20552. If you require this
document in an alternative electronic format, please contact
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The OCC, Board, FDIC, NCUA, and Bureau (collectively, the agencies)
recognize the important distinction between issuances that serve to
implement acts of Congress (known as ``regulations'' or legislative
rules'') and non-binding supervisory guidance documents.\1\ Regulations
create binding legal obligations. Supervisory guidance is issued by an
agency to ``advise the public prospectively of the manner in which the
agency proposes to exercise a discretionary power'' and does not create
binding legal obligations.\2\
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\1\ Regulations are commonly referred to as legislative rules
because regulations have the ``force and effect of law.'' Perez v.
Mortgage Bankers Ass'n, 575 U.S. 92, 96 (2015) (citations omitted).
\2\ See Chrysler v. Brown, 441 U.S. 281, 302 (1979) (quoting the
Attorney General's Manual on the Administrative Procedure Act at 30
n.3 (1947) (Attorney General's Manual) and discussing the
distinctions between regulations and general statements of policy,
of which supervisory guidance is one form).
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The agencies issued the Interagency Statement Clarifying the Role
of Supervisory Guidance on September 11, 2018 (2018 Statement) to
explain the role of supervisory guidance and describe the agencies'
approach to supervisory guidance.\3\ As noted in the 2018 Statement,
the agencies issue various types of supervisory guidance to their
respective supervised institutions, including, but not limited to,
interagency statements, advisories, bulletins, policy statements,
questions and answers, and frequently asked questions.\4\ Supervisory
guidance outlines the agencies' supervisory expectations or priorities
and articulates the agencies' general views regarding appropriate
practices for a given subject area. Supervisory guidance often provides
examples of practices that mitigate risks, or that the agencies
generally consider to be consistent with safety-and-soundness standards
or other applicable laws and regulations, including those designed to
protect consumers.\5\ The agencies noted in the 2018 Statement that
supervised institutions at times request supervisory guidance and that
guidance is important to provide clarity to these institutions, as well
as supervisory staff, in a transparent way that helps to ensure
consistency in the supervisory approach.\6\
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\3\ See https://www.federalreserve.gov/supervisionreg/srletters/sr1805a1.pdf; https://www.occ.gov/news-issuances/news-releases/2018/nr-ia-2018-97a.pdf.
\4\ These types of materials are not always supervisory
guidance. They may, for example, be interpretive rules addressing
regulatory requirements. The 2018 Statement does not address
interpretive rules, and interpretive rules are outside the scope of
this rulemaking, because interpretive rules are distinct from
general statements of policy (i.e. guidance) under the APA and its
jurisprudence. Interpretive rules are ``issued by an agency to
advise the public of the agency's construction of the statutes and
rules which it administers.'' Mortgage Bankers Ass'n, 575 U.S. at 97
(citing Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99
(1995)). While the APA does not define the term ``interpretive
rule,'' the APA refers to general statements of policy and
interpretive rules separately in addressing notice and comment
requirements. See 5 U.S.C. 553(b)(A) (providing that notice and
comment requirements do not apply to ``interpretive rules, general
statements of policy, or rules of agency organization, procedure, or
practice'').
The Attorney General's Manual also defines policy statements and
interpretive rules separately. The Manual defines interpretive rules
as rules or statements issued by an agency to advise the public of
the agency's construction of the statutes and rules which it
administers, whereas, as outlined earlier, general statements of
policy are defined as advising the public of how an agency may
exercise its discretionary powers. See Manual at 30 n.3; see also,
e.g., American Mining Congress v. Mine Safety & Health
Administration, 995 F.2d 1106, 1112 (DC Cir. 1993) (outlining tests
in the D.C. Circuit for assessing whether an agency issuance is an
interpretive rule).
Questions concerning the status of interpretive rules are case-
specific and have engendered debate among courts and administrative
law commentators. See, e.g., R. Levin, Rulemaking and the Guidance
Exemption, 70 Admin. L. Rev. 263 (2018) (discussing the doctrinal
differences concerning the status of interpretive rules under the
APA); see also ACUS, Recommendation 2019-1, Agency Guidance Through
Interpretive Rules (Adopted June 13, 2019), available at https://www.acus.gov/recommendation/agency-guidance-through-interpretive-rules (discussing the range of opinions concerning the ``binding''
nature of interpretive rules). For these reasons, the 2018 Statement
and this proposed rule do not address interpretive rules.
\5\ While policy statements offer guidance to the public on the
agencies' approach to supervision under statutes and regulations and
safe and sound practices, the issuance of guidance is discretionary
and is not a prerequisite to an agency's exercise of its statutory
and regulatory authorities. This point reflects the fact that
statutes and legislative rules, not statements of policy, set legal
requirements.
\6\ The Administrative Conference of the United States (ACUS)
has recognized the important role of guidance documents and has
stated that guidance can ``make agency decision-making more
predictable and uniform and shield regulated parties from unequal
treatment, unnecessary costs, and unnecessary risk, while promoting
compliance with the law.'' ACUS, Recommendation 2017-5, Agency
Guidance Through Policy Statements at 2 (adopted December 14, 2017),
available at https://www.acus.gov/recommendation/agency-guidance-through-policy-statements. ACUS also suggests that ``policy
statements are generally better [than legislative rules] for dealing
with conditions of uncertainty and often for making agency policy
accessible.'' Id. ACUS was chartered by Congress and charged with
convening expert representatives from the public and private sectors
to recommend improvements to administrative process and procedure.
See https://www.acus.gov/acus.
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The 2018 Statement restates existing law and reaffirms the
agencies' understanding that supervisory guidance does not create
binding, enforceable legal obligations. The 2018 Statement reaffirms
that the agencies do not issue supervisory criticisms for
``violations'' of supervisory guidance
[[Page 70515]]
and describes the appropriate use of supervisory guidance by the
agencies. In the 2018 Statement, the agencies also expressed their
intention to (1) limit the use of numerical thresholds in guidance; (2)
reduce the issuance of multiple supervisory guidance on the same topic;
(3) continue efforts to make the role of supervisory guidance clear in
communications to examiners and supervised institutions; and (4)
encourage supervised institutions to discuss their concerns about
supervisory guidance with their appropriate agency contact.
On November 5, 2018, the OCC, Board, FDIC, and Bureau each received
a petition for a rulemaking (Petition), as permitted under the
Administrative Procedure Act (APA),\7\ requesting that the agencies
codify the 2018 Statement.\8\ The Petition argues that a rule on
guidance is necessary to bind future agency leadership and staff to the
2018 Statement's terms. The Petition also suggests there are
ambiguities in the 2018 Statement concerning how supervisory guidance
is used in connection with matters requiring attention, matters
requiring immediate attention (collectively, MRAs), and other
supervisory actions that should be clarified through a rulemaking.
Finally, the Petition calls for the rulemaking to implement changes in
the agencies' standards for issuing MRAs. Specifically, the Petition
requests that the agencies limit the role of MRAs to addressing
circumstances in which there is a violation of a statute, regulation,
or order, or demonstrably unsafe or unsound practices.
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\7\ 5 U.S.C. 553(e).
\8\ See Petition for Rulemaking on the Role of Supervisory
Guidance, available at https://bpi.com/wp-content/uploads/2018/11/BPI_PFR_on_Role_of_Supervisory_Guidance_Federal_Reserve.pdf. The
Petitioners did not submit a petition to the NCUA, which has no
supervisory authority over the financial institutions that are
represented by Petitioners. The NCUA has chosen to join this
rulemaking on its own initiative. References in the preamble to
``agencies'' therefore include the NCUA.
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II. The Proposed Rule
The 2018 Statement's description of the appropriate parameters
concerning the use of supervisory guidance continues to reflect
accurately the agencies' policies concerning the use of supervisory
guidance. The proposed rule, therefore, would codify the 2018
Statement, with clarifying changes, as an appendix to the proposed rule
text (proposed Statement), and would supersede the 2018 Statement. The
rule text would provide that the proposed Statement is binding on each
respective agency.
Clarification of the 2018 Statement
The Petition expressed support for the 2018 Statement and
acknowledged that it addresses many issues of concern for the
Petitioners relating to the use of supervisory guidance. The Petition
expressed concern, however, that the 2018 Statement's reference to not
basing ``criticisms'' on violations of supervisory guidance has led to
confusion about whether MRAs are covered by the 2018 Statement.
Accordingly, the agencies are clarifying in the proposed Statement that
the term ``criticize'' includes the issuance of MRAs and other
supervisory criticisms, including those communicated through matters
requiring board attention, documents of resolution, and supervisory
recommendations (collectively, supervisory criticisms).\9\ As such, the
agencies reiterate that examiners will not base supervisory criticisms
on a ``violation'' of or ``non-compliance with'' supervisory
guidance.\10\ The agencies note that, 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. The agencies also reiterate that they will
not issue an enforcement action on the basis of a ``violation'' of or
``non-compliance'' with supervisory guidance. The proposed Statement
reflects these clarifications.\11\
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\9\ The agencies use different terms to refer to supervisory
actions that are similar to MRAs and Matters Requiring Immediate
Attention (MRIAs), including matters requiring board attention,
documents of resolution, and supervisory recommendations.
\10\ For the sake of clarification, one source of law among many
that can serve as a basis for a supervisory criticism is the
Interagency Guidelines Establishing Standards for Safety and
Soundness, see 12 CFR part 30, appendix A, and 12 CFR part 208,
appendix D-1. These Interagency Guidelines were issued using notice
and comment and pursuant to express statutory authority in 12 U.S.C.
1831p-1(d)(1) to adopt safety and soundness standards either by
``regulation or guideline.''
\11\ The 2018 Statement contains the following sentence:
Examiners will not criticize a supervised financial institution
for a ``violation'' of supervisory guidance.
2018 Statement at 2. As revised in the proposed Statement, this
sentence reads as follows:
Examiners will not criticize (including through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance.
Proposed Statement (emphasis added). As discussed infra in
footnote [18], the proposed Statement also removes the sentences in
the 2018 Statement that referred to ``citation,'' which the Petition
suggested had been confusing. These sentences were also removed to
clarify that the focus of the proposed Statement relates to the use
of guidance, not the standards for MRAs.
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The Petition requests further that these supervisory criticisms
should not include ``generic'' or ``conclusory'' references to safety
and soundness. The agencies agree that supervisory criticisms should
continue to be specific as to practices, operations, financial
conditions, or other matters that could have a negative effect on the
safety and soundness of the financial institution, could cause consumer
harm, or could cause violations of laws, regulations, final agency
orders, or other legally enforceable conditions. Accordingly, the
agencies have included language reflecting this practice in the
proposed Statement.
The Petition also suggests that MRAs, as well as memoranda of
understanding, examination downgrades, and any other formal examination
mandate or sanction, should be based only on a violation of a statute,
regulations, or order, including a ``demonstrably unsafe or unsound
practice.'' \12\ The agencies' examiners all take steps to identify
deficient practices before they rise to violations of law or regulation
or before they constitute unsafe or unsound banking practices. The
agencies continue to believe that early identification of deficient
practices serves the interest of the public and of supervised
institutions. Doing so protects the safety and soundness of banks,
promotes consumer protection, and reduces the costs and risk of
deterioration of financial condition from deficient practices resulting
in violations of laws or regulations, unsafe or unsound conditions, or
unsafe or unsound banking practices. Additionally, the agencies have
different supervisory processes, including for issuing supervisory
criticisms. For these reasons, the agencies are not proposing, as part
of this rulemaking, revisions to their
[[Page 70516]]
respective supervisory practices relating to supervisory criticisms.
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\12\ The Petition asserts that the federal banking agencies rely
on 12 U.S.C. 1818(b)(1) when issuing MRAs based on safety-and-
soundness matters. Through statutory examination and reporting
authorities, Congress has conferred upon the agencies the authority
to exercise visitorial powers with respect to supervised
institutions. The Supreme Court has indicated support for a broad
reading of the agencies' visitorial powers. See, e.g., Cuomo v.
Clearing House Assn L.L.C., 557 U.S. 519 (2009); United States v.
Gaubert, 499 U.S. 315 (1991); and United States v. Philadelphia Nat.
Bank, 374 U.S. 321 (1963). The visitorial powers facilitate early
identification of supervisory concerns that may not rise to a
violation of law, unsafe or unsound banking practice, or breach of
fiduciary duty under 12 U.S.C. 1818.
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The agencies also note that the 2018 Statement was intended to
focus on the appropriate use of supervisory guidance in the supervisory
process, rather than the standards for supervisory criticisms. To
address any confusion concerning the scope of the 2018 Statement, the
agencies have removed two sentences from the 2018 Statement concerning
grounds for ``citations'' and the handling of deficiencies that do not
constitute violations of law.\13\
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\13\ The following sentences from the 2018 Statement are not
present in the proposed Statement:
Rather, any citations will be for violations of law, regulation,
or non-compliance with enforcement orders or other enforceable
conditions. During examinations and other supervisory activities,
examiners may identify unsafe or unsound practices or other
deficiencies in risk management, including compliance risk
management, or other areas that do not constitute violations of law
or regulation.
2018 Statement at 2. The agencies do not intend these deletions
to indicate a change in supervisory policy.
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III. Request for Comment
1. The proposed Statement provides that 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.
Should examiners reference 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 when criticizing (through the issuance of matters
requiring attention, matters requiring immediate attention, matters
requiring board attention, documents of resolution, supervisory
recommendations, or otherwise) a supervised financial institution? Are
there specific situations where providing such examples would be
appropriate, or specific situations where providing such examples would
not be appropriate?
2. Is it sufficiently clear what types of agency communications
constitute supervisory guidance? If not, what steps could the agencies
take to clarify this?
3. Are there any additional clarifications to the 2018 Statement
that would be helpful?
4. Are there other aspects of the proposal where you would like to
offer comment?
IV. Administrative Law Matters
A. Solicitation of Comments and Use of Plain Language
Section 722 of the Gramm-Leach-Bliley Act \14\ requires the Federal
banking agencies to use plain language in all proposed and final rules
published after January 1, 2000. The agencies have sought to present
the proposed rule in a simple and straightforward manner and invite
comment on the use of plain language. For example:
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\14\ Public Law 106-102, sec. 722, 113 Stat. 1338, 1471 (1999),
12 U.S.C. 4809.
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Have the agencies organized the material to suit your
needs? If not, how could they present the proposed rule more clearly?
Are the requirements in the proposed rule clearly stated?
If not, how could the proposed rule be more clearly stated?
Do the regulations contain technical language or jargon
that is not clear? If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the regulation easier to
understand? If so, what changes would achieve that?
Would more, but shorter, sections be better? If so, which
sections should be changed?
What other changes can the agencies incorporate to make
the regulation easier to understand?
B. Paperwork Reduction Act Analysis
The Paperwork Reduction Act of 1995 \15\ (PRA) states that no
agency may conduct or sponsor, nor is the respondent required to
respond to, an information collection unless it displays a currently
valid Office of Management and Budget (OMB) control number. The
agencies have reviewed this notice of proposed rulemaking and
determined that it does not contain any information collection
requirements subject to the PRA. Accordingly, no submissions to OMB
will be made with respect to this proposed rule.
---------------------------------------------------------------------------
\15\ 44 U.S.C. 3501-3521.
---------------------------------------------------------------------------
C. Regulatory Flexibility Act Analysis
OCC: In general, the Regulatory Flexibility Act \16\ (RFA) requires
that in connection with a rulemaking, an agency prepare and make
available for public comment a regulatory flexibility analysis that
describes the impact of the rule on small entities. Under section
605(b) of the RFA, this analysis is not required if an agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities and publishes its certification
and a brief explanatory statement in the Federal Register along with
its rule.
---------------------------------------------------------------------------
\16\ 5 U.S.C. 601, et seq.
---------------------------------------------------------------------------
The OCC currently supervises approximately 782 small entities.\17\
Because the proposed rule would apply to all OCC-supervised depository
institutions, the proposed rule would affect a substantial number of
OCC-supervised entities. While the proposed rule does clarify that the
Statement is binding on the agencies, it would not impose any new
mandates on the banking industry. As such, we estimate that the costs,
if any, associated with the proposal would be negligible. For these
reasons, the OCC certifies that the proposed rule will not have a
significant economic impact significant economic impact on a
substantial number of small entities.
---------------------------------------------------------------------------
\17\ We base our estimate of the number of small entities on the
SBA's size thresholds for commercial banks and savings institutions,
and trust companies, which are $600 million and $41.5 million,
respectively. Consistent with the General Principles of Affiliation
13 CFR 121.103(a), we count the assets of affiliated financial
institutions when determining if we should classify an OCC-
supervised institution as a small entity. We use December 31, 2018,
to determine size because a ``financial institution's assets are
determined by averaging the assets reported on its four quarterly
financial statements for the preceding year.'' See footnote 8 of the
U.S. Small Business Administration's Table of Size Standards.
---------------------------------------------------------------------------
Board: The Regulatory Flexibility Act (RFA) generally requires an
agency to conduct an initial regulatory flexibility analysis (IRFA) and
a final regulatory flexibility analysis (FRFA) of any rule subject to
notice-and-comment rulemaking requirements, unless the head of the
agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.\18\ This proposed rule would not impose any obligations on
regulated entities, and regulated entities would not need to take any
action in response to this proposed rule. The Board certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.\19\ The Board requests comments on this
analysis and any relevant data.
---------------------------------------------------------------------------
\18\ 5 U.S.C. 601-612.
\19\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------
FDIC: The Regulatory Flexibility Act (RFA) generally requires that,
in connection with a proposed rulemaking, an agency prepare and make
available for public comment an initial regulatory flexibility analysis
describing the impact of the proposed rule on small entities.\20\
However, a regulatory
[[Page 70517]]
flexibility analysis is not required if the agency certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. The Small Business Administration
(SBA) has defined ``small entities'' to include banking organizations
with total assets of less than or equal to $600 million that are
independently owned and operated or owned by a holding company with
less than or equal to $600 million in total assets.\21\ Generally, the
FDIC considers a significant effect to be a quantified effect in excess
of 5 percent of total annual salaries and benefits per institution, or
2.5 percent of total non-interest expenses. The FDIC believes that
effects in excess of these thresholds typically represent significant
effects for FDIC-supervised institutions.
---------------------------------------------------------------------------
\20\ 5 U.S.C. 601 et seq.
\21\ The SBA defines a small banking organization as having $600
million or less in assets, where an organization's ``assets are
determined by averaging the assets reported on its four quarterly
financial statements for the preceding year.'' See 13 CFR 121.201
(as amended by 84 FR 34261, effective August 19, 2019). In its
determination, the ``SBA counts the receipts, employees, or other
measure of size of the concern whose size is at issue and all of its
domestic and foreign affiliates.'' See 13 CFR 121.103. Following
these regulations, the FDIC uses a covered entity's affiliated and
acquired assets, averaged over the preceding four quarters, to
determine whether the covered entity is ``small'' for the purposes
of RFA.
---------------------------------------------------------------------------
As of June 30, 2020, the FDIC supervised 3,270 institutions, of
which 2,492 were considered small for purposes of RFA.\22\ This
proposed rule, if adopted, would not impose any obligations on FDIC-
supervised entities, and FDIC-supervised entities would not need to
take any action in response to this proposed rule. For these reasons,
and under section 605(b) of the RFA, the FDIC certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small FDIC-supervised institutions. The FDIC
invites comments on all aspects of the supporting information provided
in this RFA section. In particular, would this proposed rule have any
significant effects on small entities that the FDIC has not identified?
---------------------------------------------------------------------------
\22\ FDIC Consolidated Reports of Condition and Income Data,
June 30, 2020.
---------------------------------------------------------------------------
NCUA: The Regulatory Flexibility Act (RFA) generally requires that,
in connection with a notice of proposed rulemaking, an agency prepare
and make available for public comment an initial regulatory flexibility
analysis that describes the impact of a proposed rule on small
entities. A regulatory flexibility analysis is not required, however,
if the agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities (defined by
the NCUA for purposes of the RFA to include federally insured credit
unions with assets less than $100 million) \23\ and publishes its
certification and a short, explanatory statement in the Federal
Register together with the rule. This proposed rule would not impose
any obligations on federally insured credit unions, and regulated
entities would not need to take any action in response to this proposed
rule. The NCUA certifies that the rule will not have a significant
economic impact on a substantial number of small entities. The NCUA
requests comments on this analysis and any relevant data.
---------------------------------------------------------------------------
\23\ NCUA Interpretive Ruling and Policy Statement (IRPS) 87-2,
as amended by IRPS 03-2 and 15-1, available at https://www.ncua.gov/files/publications/irps/IRPS1987-2.pdf.
---------------------------------------------------------------------------
Bureau: The Regulatory Flexibility Act (RFA) generally requires an
agency to conduct an initial regulatory flexibility analysis (IRFA) and
a final regulatory flexibility analysis (FRFA) of any rule subject to
notice-and-comment rulemaking requirements, unless the head of the
agency certifies that the rule will not, if promulgated, have a
significant economic impact on a substantial number of small
entities.\24\ The Bureau also is subject to certain additional
procedures under the RFA involving the convening of a panel to consult
with small business representatives prior to proposing a rule for which
an IRFA is required.\25\ This proposed rule would not impose any
obligations on regulated entities, and regulated entities would not
need to take any action in response to this proposed rule. Accordingly,
the Director of the Bureau certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Thus, neither an IRFA nor a small business review
panel is required for this proposed rule. The Bureau requests comments
on this analysis and any relevant data.
---------------------------------------------------------------------------
\24\ 5 U.S.C. 601-612.
\25\ 5 U.S.C. 609.
---------------------------------------------------------------------------
E. OCC Unfunded Mandates Reform Act of 1995 Determination
The OCC analyzed the proposed rule under the factors set forth in
the Unfunded Mandates Reform Act of 1995 (UMRA).\26\ Under this
analysis, the OCC considered whether the proposed rule includes a
Federal mandate that may result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of $157
million or more in any one year (adjusted for inflation). The OCC has
determined that the proposal, if implemented, would not impose new
mandates on the banking industry. Therefore, we conclude that if
implemented, the proposal would not result in an expenditure of $157
million or more annually by State, local, and Tribal governments, or by
the private sector.
---------------------------------------------------------------------------
\26\ 2 U.S.C. 1532.
---------------------------------------------------------------------------
F. Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the Riegle Community Development and
Regulatory Improvement Act (RCDRIA),\27\ in determining the effective
date and administrative compliance requirements for new regulations
that impose additional reporting, disclosure, or other requirements on
insured depository institutions (IDIs), each Federal banking agency
must consider, consistent with principles of safety and soundness and
the public interest, any administrative burdens that such regulations
would place on depository institutions, including small depository
institutions, and customers of depository institutions, as well as the
benefits of such regulations. In addition, section 302(b) of RCDRIA
requires new regulations and amendments to regulations that impose
additional reporting, disclosures, or other new requirements on IDIs
generally to take effect on the first day of a calendar quarter that
begins on or after the date on which the regulations are published in
final form.\28\ Each Federal banking agency has determined that the
proposed rule would not impose additional reporting, disclosure, or
other requirements on IDIs; therefore, the requirements of the RCDRIA
do not apply. However, the agencies invite comments that will further
inform their consideration of RCDRIA.
---------------------------------------------------------------------------
\27\ 12 U.S.C. 4802(a).
\28\ 12 U.S.C. 4802.
---------------------------------------------------------------------------
G. Bureau Matters
The Bureau issues its portion of the proposed rule based on the
Bureau's authorities under sections 1012(a)(1) and 1022(b)(1) of the
Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank
Act).\29\ Section 1012(a)(1) authorizes the Bureau to establish rules
for conducting the general business of the Bureau, in a manner not
inconsistent with title X of the Dodd-Frank Act.\30\ Section 1022(b)(1)
authorizes the Bureau to issue rules as may be necessary or appropriate
to enable the Bureau to administer and carry out the purposes and
objectives of the Federal consumer
[[Page 70518]]
financial laws.\31\ The Bureau preliminarily believes that the
additional clarity regarding the status of supervisory guidance
provided by the proposed rule will enable the Bureau to carry out its
supervisory responsibilities under Federal consumer financial law more
effectively.
---------------------------------------------------------------------------
\29\ Public Law 111-203, 124 Stat. 1376 (2010).
\30\ 12 U.S.C. 5492(a)(1).
\31\ 12 U.S.C. 5512(b)(1).
---------------------------------------------------------------------------
Consistent with section 1022(b)(2)(B) of the Dodd-Frank Act, in
developing the proposed rule, the Bureau has consulted, or offered to
consult with, the prudential regulators and the Federal Trade
Commission, including regarding consistency with any prudential,
market, or systemic objectives administered by those agencies.\32\
---------------------------------------------------------------------------
\32\ 12 U.S.C. 5512(b)(2)(B). The prudential regulators are the
OCC, Board, FDIC, and NCUA. See 12 U.S.C. 5481(24) (defining
``prudential regulators'').
---------------------------------------------------------------------------
Additionally, consistent with section 1022(b)(2)(A) of the Dodd-
Frank Act, the Bureau has considered the potential benefits, costs, and
impacts of the Bureau's portion of the proposed rule.\33\ The Bureau
requests comment on the preliminary analysis presented below as well as
submissions of additional data that could inform the Bureau's analysis
of the benefits, costs, and impacts.
---------------------------------------------------------------------------
\33\ Section 1022(b)(2)(A) of the Dodd-Frank Act, 12 U.S.C.
5512(b)(2)(A), requires the Bureau to consider the potential
benefits and costs of the regulation to consumers and covered
persons, including the potential reduction of access by consumers to
consumer financial products or services; the impact of the proposed
rule on insured depository institutions and credit unions with no
more than $10 billion in total assets as described in section 1026
of the Dodd-Frank Act, 12 U.S.C. 5516; and the impact on consumers
in rural areas.
---------------------------------------------------------------------------
Institutions Affected by the Proposed Rule. The Bureau's portion of
the proposed rule applies to supervisory guidance issued by the Bureau,
which is addressed to those institutions that are examined by the
Bureau. Accordingly, the Bureau's portion of the proposed rule may
affect those nondepository institutions that are subject to the
Bureau's examination authority under section 1024 of the Dodd-Frank
Act.\34\ It may also affect those insured depository institutions and
insured credit unions that have more than $10 billion in total assets,
together with their affiliates, which are subject to the Bureau's
examination authority under section 1025 of the Dodd-Frank Act.\35\ The
Bureau's portion of the proposed rule may additionally affect service
providers that are subject to the Bureau's examination authority.\36\
---------------------------------------------------------------------------
\34\ 12 U.S.C. 5514.
\35\ 12 U.S.C. 5515.
\36\ 12 U.S.C. 5514(e), 5515(d), 5516(e).
---------------------------------------------------------------------------
Potential Benefits and Costs to Consumers and Covered Persons. The
proposed rule would reiterate the Interagency Statement Clarifying the
Role of Supervisory Guidance, which is already the policy of the
Bureau, and make it binding on the Bureau. The Bureau evaluates its
portion of the proposed rule against a baseline in which no such rule
is adopted, and the Bureau is therefore less definitively bound to
implement the Interagency Statement in all supervisory activities.
Accordingly, the Bureau's portion of the proposed rule provides the
relevant institutions with additional assurance that the Bureau's
implementation of current and future supervisory guidance will follow
the Interagency Statement.
The proposed rule should provide the relevant institutions with
greater certainty about legal obligations that are addressed in
supervisory guidance. This in turn may reduce compliance costs. It is
not feasible, however, to quantify or monetize this benefit. The Bureau
can only speculate on the greater certainty about legal obligations and
the reduction in compliance costs if the rule is adopted as proposed.
Further, the benefit from the greater certainty about legal obligations
pertains to future as well as current supervisory guidance. The Bureau
can only speculate on the frequency of future supervisory guidance.
Supervisory guidance is issued from time to time as the need arises,
and the Bureau cannot forecast the volume and nature of future
supervisory guidance with sufficient precision to quantify or monetize
this benefit.
The Bureau's portion of the proposed rule may also indirectly
benefit those consumers that are customers of the relevant
institutions, if reduced compliance costs translate into better terms
or availability of consumer financial products and services. For the
reasons given above, this benefit cannot be quantified or monetized.
Finally, the Bureau's portion of the proposed rule does not impose
any new obligations on institutions. Thus, the proposed rule should
have no costs for institutions. The effects of the rule, as described
above, impose no clear costs on any consumers.
Impact on Depository Institutions and Credit Unions With No More
Than $10 Billion in Assets. Under section 1026 of the Dodd-Frank Act,
the Bureau has only limited examination authority with respect to those
insured depository institutions and insured credit unions that have no
more than $10 billion in total assets,\37\ and so the Bureau does not
normally address supervisory guidance to these institutions.
Accordingly, the Bureau does not expect there to be any appreciable
impact on these institutions from the Bureau's portion of the proposed
rule.
---------------------------------------------------------------------------
\37\ 12 U.S.C. 5516.
---------------------------------------------------------------------------
Impact on Access to Credit. The Bureau does not expect the Bureau's
portion of the proposed rule to affect consumers' access to credit,
except to the extent that reduced compliance costs and additional
assurance, relative to the baseline, that the Bureau will follow the
Interagency Statement in the future might indirectly make some credit
more available, as discussed above.
Impact on Consumers in Rural Areas. The Bureau does not believe
that the Bureau's portion of the proposed rule would have any unique
impact on consumers in rural areas, and so the impact on these
consumers should be similar to consumers generally.
List of Subjects
12 CFR Part 4
Administrative practice and procedure, Freedom of information,
Individuals with disabilities, Minority businesses, Organization and
functions (Government agencies), Reporting and recordkeeping
requirements, Women.
12 CFR Part 262
Administrative practice and procedure, Banks, banking, Federal
Reserve System.
12 CFR Part 302
Administrative practice and procedure, Banks, banking.
12 CFR Part 791
Administrative practice and procedure, Sunshine Act.
12 CFR Part 1074
Administrative practice and procedure.
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Chapter I
Authority and Issuance
For the reasons stated in the Supplementary Information, chapter I
of title 12 of the Code of Federal Regulations is proposed to be
amended as follows:
[[Page 70519]]
PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF
INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT
RESTRICTIONS FOR SENIOR EXAMINERS
0
1. The authority citation for part 4 continues to read as follows:
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482,
484(a), 1442, 1462a, 1463, 1464 1817(a), 1818, 1820, 1821, 1831m,
1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et
seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15
U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C.
1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506,
3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235).
0
2. Subpart F is added to part 4 to read as follows:
Subpart F--Use of Supervisory Guidance
Sec.
4.81 Purpose.
4.82 Implementation of the Interagency Statement.
4.83 Rule of construction.
Appendix A to Subpart F of Part 4--Interagency Statement Clarifying
the Role of Supervisory Guidance
Sec. 4.81 Purpose.
The OCC issues regulations and guidance as part of its supervisory
function. This subpart reiterates the distinctions between regulations
and guidance, as stated in the Interagency Statement Clarifying the
Role of Supervisory Guidance (appendix A to this subpart) (Interagency
Statement).
Sec. 4.82 Implementation of the Interagency Statement.
The Interagency Statement describes the official policy of the OCC
with respect to the use of supervisory guidance in the supervisory
process. The Interagency Statement is binding on the OCC.
Sec. 4.83 Rule of construction.
This subpart does not alter the legal status of guidelines
authorized by statute, including but not limited to, 12 U.S.C. 1831p-1,
to create binding legal obligations.
Appendix A to Subpart F of Part 4--Interagency Statement Clarifying the
Role of Supervisory Guidance
Interagency Statement Clarifying the Role of Supervisory Guidance
The Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, National Credit Union Administration,
and Office of the Comptroller of the Currency (together, the
``prudential agencies'') are responsible for promoting safety and
soundness and effective consumer protection at supervised
institutions. The Bureau of Consumer Financial Protection
(``Bureau,'' and, with the prudential agencies, the ``agencies'') is
generally responsible for regulating the offering and provision of
consumer financial products or services under the Federal consumer
financial laws. The agencies are issuing this statement to explain
the role of supervisory guidance and to describe the agencies'
approach to supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations
The agencies issue various types of supervisory guidance,
including interagency statements, advisories, bulletins, policy
statements, questions and answers, and frequently asked questions,
to their respective supervised institutions. A law or regulation has
the force and effect of law.\1\ Unlike a law or regulation,
supervisory guidance does not have the force and effect of law, and
the agencies do not take enforcement actions based on supervisory
guidance. Rather, supervisory guidance outlines the agencies'
supervisory expectations or priorities and articulates the agencies'
general views regarding appropriate practices for a given subject
area. Supervisory guidance often provides examples of practices that
the agencies generally consider consistent with safety-and-soundness
standards or other applicable laws and regulations, including those
designed to protect consumers. Supervised institutions at times
request supervisory guidance, and such guidance is important to
provide insight to industry, as well as supervisory staff, in a
transparent way that helps to ensure consistency in the supervisory
approach.
---------------------------------------------------------------------------
\1\ Government agencies issue regulations that generally have
the force and effect of law. Such regulations generally take effect
only after the agency proposes the regulation to the public and
responds to comments on the proposal in a final rulemaking document.
---------------------------------------------------------------------------
Ongoing Agency Efforts To Clarify the Role of Supervisory Guidance
The agencies are clarifying the following policies and practices
related to supervisory guidance:
The agencies intend to limit the use of numerical
thresholds or other ``bright-lines'' in describing expectations in
supervisory guidance. Where numerical thresholds are used, the
agencies intend to clarify that the thresholds are exemplary only
and not suggestive of requirements. The agencies will continue to
use numerical thresholds to tailor, and otherwise make clear, the
applicability of supervisory guidance or programs to supervised
institutions, and as required by statute.
Examiners will not criticize (through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance. 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.
Supervisory criticisms should continue to be specific
as to practices, operations, financial conditions, or other matters
that could have a negative effect on the safety and soundness of the
financial institution, could cause consumer harm, or could cause
violations of laws, regulations, final agency orders, or other
legally enforceable conditions.
The agencies also have at times sought, and may
continue to seek, public comment on supervisory guidance. Seeking
public comment on supervisory guidance does not mean that the
guidance is intended to be a regulation or have the force and effect
of law. The comment process helps the agencies to improve their
understanding of an issue, to gather information on institutions'
risk management practices, or to seek ways to achieve a supervisory
objective most effectively and with the least burden on
institutions.
The agencies will aim to reduce the issuance of
multiple supervisory guidance documents on the same topic and will
generally limit such multiple issuances going forward.
The agencies will continue efforts to make the role of
supervisory guidance clear in their communications to examiners and
to supervised financial institutions and encourage supervised
institutions with questions about this statement or any applicable
supervisory guidance to discuss the questions with their appropriate
agency contact.
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
12 CFR Chapter II
Authority and Issuance
For the reasons set forth in the preamble, the Board of Governors
of the Federal Reserve System proposes to amend part 262 to 12 CFR
chapter II as follows:
PART 262--RULES OF PROCEDURE
0
3. The authority citation for part 262 is revised to read as follows:
Authority: 5. U.S.C. 552; 12 U.S.C. 248, 321, 325, 326, 483,
602, 611a, 625, 1467a, 1828(c), 1842, 1844, 1850a, 1867, 3105, 3106,
3108, 5361, 5368, 5467, and 5469.
0
4. Section 262.7 is added to read as follows:
Sec. 262.7 Use of supervisory guidance.
(a) Purpose. The Board issues regulations and guidance as part of
its supervisory function. This subpart reiterates the distinctions
between regulations and guidance, as stated in the Interagency
Statement Clarifying the
[[Page 70520]]
Role of Supervisory Guidance (appendix A to this part) (Interagency
Statement).
(b) Implementation of the Interagency Statement. The Interagency
Statement describes the official policy of the Board with respect to
the use of supervisory guidance in the supervisory process. The
Interagency Statement is binding on the Board.
(c) Rule of construction. This subpart does not alter the legal
status of guidelines authorized by statute, including but not limited
to, 12 U.S.C. 1831p-1, to create binding legal obligations.
0
5. Appendix A is added to read follows:
Appendix A to Part 262--Interagency Statement Clarifying the Role of
Supervisory Guidance
Interagency Statement Clarifying the Role of Supervisory Guidance
The Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, National Credit Union Administration,
and Office of the Comptroller of the Currency (together, the
``prudential agencies'') are responsible for promoting safety and
soundness and effective consumer protection at supervised
institutions. The Bureau of Consumer Financial Protection
(``Bureau,'' and, with the prudential agencies, the ``agencies'') is
generally responsible for regulating the offering and provision of
consumer financial products or services under the Federal consumer
financial laws. The agencies are issuing this statement to explain
the role of supervisory guidance and to describe the agencies'
approach to supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations
The agencies issue various types of supervisory guidance,
including interagency statements, advisories, bulletins, policy
statements, questions and answers, and frequently asked questions,
to their respective supervised institutions. A law or regulation has
the force and effect of law.\1\ Unlike a law or regulation,
supervisory guidance does not have the force and effect of law, and
the agencies do not take enforcement actions based on supervisory
guidance. Rather, supervisory guidance outlines the agencies'
supervisory expectations or priorities and articulates the agencies'
general views regarding appropriate practices for a given subject
area. Supervisory guidance often provides examples of practices that
the agencies generally consider consistent with safety-and-soundness
standards or other applicable laws and regulations, including those
designed to protect consumers. Supervised institutions at times
request supervisory guidance, and such guidance is important to
provide insight to industry, as well as supervisory staff, in a
transparent way that helps to ensure consistency in the supervisory
approach.
---------------------------------------------------------------------------
\1\ Government agencies issue regulations that generally have
the force and effect of law. Such regulations generally take effect
only after the agency proposes the regulation to the public and
responds to comments on the proposal in a final rulemaking document.
---------------------------------------------------------------------------
Ongoing Agency Efforts To Clarify the Role of Supervisory Guidance
The agencies are clarifying the following policies and practices
related to supervisory guidance:
The agencies intend to limit the use of numerical
thresholds or other ``bright-lines'' in describing expectations in
supervisory guidance. Where numerical thresholds are used, the
agencies intend to clarify that the thresholds are exemplary only
and not suggestive of requirements. The agencies will continue to
use numerical thresholds to tailor, and otherwise make clear, the
applicability of supervisory guidance or programs to supervised
institutions, and as required by statute.
Examiners will not criticize (through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance. 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.
Supervisory criticisms should continue to be specific
as to practices, operations, financial conditions, or other matters
that could have a negative effect on the safety and soundness of the
financial institution, could cause consumer harm, or could cause
violations of laws, regulations, final agency orders, or other
legally enforceable conditions.
The agencies also have at times sought, and may
continue to seek, public comment on supervisory guidance. Seeking
public comment on supervisory guidance does not mean that the
guidance is intended to be a regulation or have the force and effect
of law. The comment process helps the agencies to improve their
understanding of an issue, to gather information on institutions'
risk management practices, or to seek ways to achieve a supervisory
objective most effectively and with the least burden on
institutions.
The agencies will aim to reduce the issuance of
multiple supervisory guidance documents on the same topic and will
generally limit such multiple issuances going forward.
The agencies will continue efforts to make the role of
supervisory guidance clear in their communications to examiners and
to supervised financial institutions and encourage supervised
institutions with questions about this statement or any applicable
supervisory guidance to discuss the questions with their appropriate
agency contact.
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Chapter III
Authority and Issuance
For the reasons set forth in the preamble, the Federal Deposit
Insurance Corporation proposes to add part 302 to 12 CFR chapter III,
subchapter A, to read as follows:
PART 302--USE OF SUPERVISORY GUIDANCE
Sec.
302.1 Purpose.
302.2 Implementation of the interagency statement.
302.3 Rule of construction.
Appendix A to Part 302--Interagency Statement Clarifying the Role of
Supervisory Guidance
Authority: 5. U.S.C. 552; 12 U.S.C. 1818, 1819(a) (Seventh and
Tenth), 1831p-1.
Sec. 302.1 Purpose.
The FDIC issues regulations and guidance as part of its supervisory
function. This subpart reiterates the distinctions between regulations
and guidance, as stated in the Interagency Statement Clarifying the
Role of Supervisory Guidance (appendix A to this part) (Interagency
Statement).
Sec. 302.2 Implementation of the interagency statement.
The Interagency Statement describes the official policy of the FDIC
with respect to the use of supervisory guidance in the supervisory
process. The Interagency Statement is binding on the FDIC.
Sec. 302.3 Rule of construction.
This subpart does not alter the legal status of guidelines
authorized by statute, including but not limited to, 12 U.S.C. 1831p-1,
to create binding legal obligations.
Appendix A to Part 302--Interagency Statement Clarifying the Role of
Supervisory Guidance
Interagency Statement Clarifying the Role of Supervisory Guidance
The Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, National Credit Union Administration,
and Office of the Comptroller of the Currency (together, the
``prudential agencies'') are responsible for promoting safety and
soundness and effective consumer protection at supervised
institutions. The Bureau of Consumer Financial Protection
(``Bureau,'' and, with the prudential agencies, the ``agencies'') is
generally responsible for regulating the offering and provision of
consumer financial products or services under the Federal consumer
financial laws. The agencies are issuing this statement to explain
the role of
[[Page 70521]]
supervisory guidance and to describe the agencies' approach to
supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations
The agencies issue various types of supervisory guidance,
including interagency statements, advisories, bulletins, policy
statements, questions and answers, and frequently asked questions,
to their respective supervised institutions. A law or regulation has
the force and effect of law.\1\ Unlike a law or regulation,
supervisory guidance does not have the force and effect of law, and
the agencies do not take enforcement actions based on supervisory
guidance. Rather, supervisory guidance outlines the agencies'
supervisory expectations or priorities and articulates the agencies'
general views regarding appropriate practices for a given subject
area. Supervisory guidance often provides examples of practices that
the agencies generally consider consistent with safety-and-soundness
standards or other applicable laws and regulations, including those
designed to protect consumers. Supervised institutions at times
request supervisory guidance, and such guidance is important to
provide insight to industry, as well as supervisory staff, in a
transparent way that helps to ensure consistency in the supervisory
approach.
---------------------------------------------------------------------------
\1\ Government agencies issue regulations that generally have
the force and effect of law. Such regulations generally take effect
only after the agency proposes the regulation to the public and
responds to comments on the proposal in a final rulemaking document.
---------------------------------------------------------------------------
Ongoing Agency Efforts To Clarify the Role of Supervisory Guidance
The agencies are clarifying the following policies and practices
related to supervisory guidance:
The agencies intend to limit the use of numerical
thresholds or other ``bright-lines'' in describing expectations in
supervisory guidance. Where numerical thresholds are used, the
agencies intend to clarify that the thresholds are exemplary only
and not suggestive of requirements. The agencies will continue to
use numerical thresholds to tailor, and otherwise make clear, the
applicability of supervisory guidance or programs to supervised
institutions, and as required by statute.
Examiners will not criticize (through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance. 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.
Supervisory criticisms should continue to be specific
as to practices, operations, financial conditions, or other matters
that could have a negative effect on the safety and soundness of the
financial institution, could cause consumer harm, or could cause
violations of laws, regulations, final agency orders, or other
legally enforceable conditions.
The agencies also have at times sought, and may
continue to seek, public comment on supervisory guidance. Seeking
public comment on supervisory guidance does not mean that the
guidance is intended to be a regulation or have the force and effect
of law. The comment process helps the agencies to improve their
understanding of an issue, to gather information on institutions'
risk management practices, or to seek ways to achieve a supervisory
objective most effectively and with the least burden on
institutions.
The agencies will aim to reduce the issuance of
multiple supervisory guidance documents on the same topic and will
generally limit such multiple issuances going forward.
The agencies will continue efforts to make the role of
supervisory guidance clear in their communications to examiners and
to supervised financial institutions and encourage supervised
institutions with questions about this statement or any applicable
supervisory guidance to discuss the questions with their appropriate
agency contact.
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Chapter VII
Authority and Issuance
For the reasons stated in the Supplementary Information, chapter
VII of title 12 of the Code of Federal Regulations is proposed to be
amended as follows:
PART 791--RULES OF NCUA BOARD PROCEDURE; PROMULGATION OF NCUA RULES
AND REGULATIONS; PUBLIC OBSERVATION OF NCUA BOARD MEETINGS
0
7. The authority citation for part 791 is revised to read as follows:
Authority: 12 U.S.C. 1766, 1781, 1786, 1787, 1789, and 5 U.S.C.
552b.
0
8. Subpart D is added to part 791 to read as follows:
Subpart D--Use of Supervisory Guidance
Sec.
791.19 Purpose.
791.20 Implementation of the Interagency Statement.
791.21 Rule of construction.
Appendix A to Subpart D of Part 791--Interagency Statement
Clarifying the Role of Supervisory Guidance
Sec. 791.19 Purpose.
The NCUA issues regulations and guidance as part of its supervisory
function. This subpart reiterates the distinctions between regulations
and guidance, as stated in the Interagency Statement Clarifying the
Role of Supervisory Guidance (Interagency Statement) in appendix A to
this subpart and provides that the Statement is binding on the NCUA.
Sec. 791.20 Implementation of the Interagency Statement.
The Interagency Statement describes the official policy of the NCUA
with respect to the use of supervisory guidance in the supervisory
process. The Interagency Statement is binding on the NCUA.
Sec. 791.21 Rule of construction.
This subpart does not alter the legal status of guidance that is
authorized by statute, including but not limited to 12 U.S.C. 1781,
1786, and 1789, to create binding legal obligations.
Appendix A to Subpart D of Part 791--Interagency Statement Clarifying
the Role of Supervisory Guidance
Interagency Statement Clarifying the Role of Supervisory Guidance
The Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, National Credit Union Administration,
and Office of the Comptroller of the Currency (together, the
``prudential agencies'') are responsible for promoting safety and
soundness and effective consumer protection at supervised
institutions. The Bureau of Consumer Financial Protection
(``Bureau,'' and, with the prudential agencies, the ``agencies'') is
generally responsible for regulating the offering and provision of
consumer financial products or services under the Federal consumer
financial laws. The agencies are issuing this statement to explain
the role of supervisory guidance and to describe the agencies'
approach to supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations
The agencies issue various types of supervisory guidance,
including interagency statements, advisories, bulletins, policy
statements, questions and answers, and frequently asked questions,
to their respective supervised institutions. A law or regulation has
the force and effect of law.\1\ Unlike a law or regulation,
supervisory guidance does not have the force and effect of law, and
the agencies do not take enforcement actions based on supervisory
guidance. Rather, supervisory guidance outlines the agencies'
supervisory expectations or priorities and articulates the agencies'
general views regarding appropriate practices for a given subject
area. Supervisory guidance often provides examples of
[[Page 70522]]
practices that the agencies generally consider consistent with
safety-and-soundness standards or other applicable laws and
regulations, including those designed to protect consumers.
Supervised institutions at times request supervisory guidance, and
such guidance is important to provide insight to industry, as well
as supervisory staff, in a transparent way that helps to ensure
consistency in the supervisory approach.
---------------------------------------------------------------------------
\1\ Government agencies issue regulations that generally have
the force and effect of law. Such regulations generally take effect
only after the agency proposes the regulation to the public and
responds to comments on the proposal in a final rulemaking document.
---------------------------------------------------------------------------
Ongoing Agency Efforts To Clarify the Role of Supervisory Guidance
The agencies are clarifying the following policies and practices
related to supervisory guidance:
The agencies intend to limit the use of numerical
thresholds or other ``bright-lines'' in describing expectations in
supervisory guidance. Where numerical thresholds are used, the
agencies intend to clarify that the thresholds are exemplary only
and not suggestive of requirements. The agencies will continue to
use numerical thresholds to tailor, and otherwise make clear, the
applicability of supervisory guidance or programs to supervised
institutions, and as required by statute.
Examiners will not criticize (through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance. 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.
Supervisory criticisms should continue to be specific
as to practices, operations, financial conditions, or other matters
that could have a negative effect on the safety and soundness of the
financial institution, could cause consumer harm, or could cause
violations of laws, regulations, final agency orders, or other
legally enforceable conditions.
The agencies also have at times sought, and may
continue to seek, public comment on supervisory guidance. Seeking
public comment on supervisory guidance does not mean that the
guidance is intended to be a regulation or have the force and effect
of law. The comment process helps the agencies to improve their
understanding of an issue, to gather information on institutions'
risk management practices, or to seek ways to achieve a supervisory
objective most effectively and with the least burden on
institutions.
The agencies will aim to reduce the issuance of
multiple supervisory guidance documents on the same topic and will
generally limit such multiple issuances going forward.
The agencies will continue efforts to make the role of
supervisory guidance clear in their communications to examiners and
to supervised financial institutions and encourage supervised
institutions with questions about this statement or any applicable
supervisory guidance to discuss the questions with their appropriate
agency contact.
Bureau of Consumer Financial Protection
Authority and Issuance
For the reasons set forth above, the Bureau proposes to amend 12
CFR part 1074 as set forth below:
PART 1074--RULEMAKING AND GUIDANCE
0
9. The authority citation for part 1074 continues to read as follows:
Authority: 12 U.S.C. 5492(a)(1), 5512(b).
0
10. The heading to part 1074 is revised as set forth above.
Sec. 1074.1 [Designated as Subpart A]
0
11. Designate Sec. 1074.1 as subpart A and add a heading for newly
designated subpart A to read as follows:
Subpart A--Procedure for Issuance of Bureau Rules
0
12. Add subpart B, consisting of Sec. Sec. 1074.2 and 1074.3, to read
as follows:
Subpart B--Use of Supervisory Guidance
Sec.
1074.2 Purpose.
1074.3 Implementation of the Interagency Statement.
Sec. 1074.2 Purpose.
The Bureau issues regulations and guidance as part of its
supervisory function. This subpart reiterates the distinctions between
regulations and guidance, as stated in the Interagency Statement
Clarifying the Role of Supervisory Guidance (appendix A to this part)
(Interagency Statement) and provides that the Statement is binding on
the Bureau.
Sec. 1074.3 Implementation of the Interagency Statement.
The Interagency Statement describes the official policy of the
Bureau with respect to the use of supervisory guidance in the
supervisory process. The Interagency Statement is binding on the
Bureau.
0
13. Appendix A to part 1074 is added to read as follows:
Appendix A to Part 1074--Interagency Statement Clarifying the Role of
Supervisory Guidance
Interagency Statement Clarifying the Role of Supervisory Guidance
The Board of Governors of the Federal Reserve System, Federal
Deposit Insurance Corporation, National Credit Union Administration,
and Office of the Comptroller of the Currency (together, the
``prudential agencies'') are responsible for promoting safety and
soundness and effective consumer protection at supervised
institutions. The Bureau of Consumer Financial Protection
(``Bureau,'' and, with the prudential agencies, the ``agencies'') is
generally responsible for regulating the offering and provision of
consumer financial products or services under the Federal consumer
financial laws. The agencies are issuing this statement to explain
the role of supervisory guidance and to describe the agencies'
approach to supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations
The agencies issue various types of supervisory guidance,
including interagency statements, advisories, bulletins, policy
statements, questions and answers, and frequently asked questions,
to their respective supervised institutions. A law or regulation has
the force and effect of law.\1\ Unlike a law or regulation,
supervisory guidance does not have the force and effect of law, and
the agencies do not take enforcement actions based on supervisory
guidance. Rather, supervisory guidance outlines the agencies'
supervisory expectations or priorities and articulates the agencies'
general views regarding appropriate practices for a given subject
area. Supervisory guidance often provides examples of practices that
the agencies generally consider consistent with safety-and-soundness
standards or other applicable laws and regulations, including those
designed to protect consumers. Supervised institutions at times
request supervisory guidance, and such guidance is important to
provide insight to industry, as well as supervisory staff, in a
transparent way that helps to ensure consistency in the supervisory
approach.
---------------------------------------------------------------------------
\1\ Government agencies issue regulations that generally have
the force and effect of law. Such regulations generally take effect
only after the agency proposes the regulation to the public and
responds to comments on the proposal in a final rulemaking document.
---------------------------------------------------------------------------
Ongoing Agency Efforts To Clarify the Role of Supervisory Guidance
The agencies are clarifying the following policies and practices
related to supervisory guidance:
The agencies intend to limit the use of numerical
thresholds or other ``bright-lines'' in describing expectations in
supervisory guidance. Where numerical thresholds are used, the
agencies intend to clarify that the thresholds are exemplary only
and not suggestive of requirements. The agencies will continue to
use numerical thresholds to tailor, and otherwise make clear, the
applicability of supervisory guidance or
[[Page 70523]]
programs to supervised institutions, and as required by statute.
Examiners will not criticize (through the issuance of
matters requiring attention, matters requiring immediate attention,
matters requiring board attention, documents of resolution, and
supervisory recommendations) a supervised financial institution for,
and agencies will not issue an enforcement action on the basis of, a
``violation'' of or ``non-compliance'' with supervisory guidance. 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.
Supervisory criticisms should continue to be specific
as to practices, operations, financial conditions, or other matters
that could have a negative effect on the safety and soundness of the
financial institution, could cause consumer harm, or could cause
violations of laws, regulations, final agency orders, or other
legally enforceable conditions.
The agencies also have at times sought, and may
continue to seek, public comment on supervisory guidance. Seeking
public comment on supervisory guidance does not mean that the
guidance is intended to be a regulation or have the force and effect
of law. The comment process helps the agencies to improve their
understanding of an issue, to gather information on institutions'
risk management practices, or to seek ways to achieve a supervisory
objective most effectively and with the least burden on
institutions.
The agencies will aim to reduce the issuance of
multiple supervisory guidance documents on the same topic and will
generally limit such multiple issuances going forward.
The agencies will continue efforts to make the role of
supervisory guidance clear in their communications to examiners and
to supervised financial institutions and encourage supervised
institutions with questions about this statement or any applicable
supervisory guidance to discuss the questions with their appropriate
agency contact.
Brian P. Brooks,
Acting Comptroller of the Currency.
By order of the Board of Governors of the Federal Reserve
System.
Ann E. Misback,
Secretary of the Board.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Dated at Washington, DC, on or about October 20, 2020.
James P. Sheesley,
Assistant Executive Secretary.
By the National Credit Union Administration Board on October 28,
2020.
Melane Conyers-Ausbrooks,
Secretary of the Board.
Kathleen L. Kraninger,
Director, Bureau of Consumer Financial Protection.
Dated: On or about October 29, 2020.
[FR Doc. 2020-24484 Filed 11-4-20; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 7535-01-P; 6714-01-P; 4810-AM-P
