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Banking Agencies Adopt Joint Rulemaking on Role of Supervisory Guidance

The OCC, Federal Reserve Board ("FRB"), FDIC, National Credit Union Administration ("NCUA") and CFPB (collectively, the "Agencies") adopted a rule codifying a 2018 Interagency Statement Clarifying the Role of Supervisory Guidance (the "2018 Statement"). In the final rule, the Agencies codified administrative law restrictions applicable to the execution of their supervisory duties.

The Agencies clarified, among other things, that:

  • the 2018 Statement covers the issuance of matters requiring immediate attention (or "MRAs"), as well as other "supervisory criticisms" communicated through matters requiring board attention and supervisory recommendations;

  • supervisory criticisms and enforcement actions will not be issued on the basis of a "violation" of, or "non-compliance" with, supervisory guidance; and

  • supervisory guidance may be referenced by examiners to provide "examples of safe and sound conduct, appropriate consumer protection and risk management practices."

The Agencies adopted the final rule as it was proposed (see previous coverage of the proposal).

The final rule will go into effect 30 days after publication in the Federal Register.

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