On September 11, 2018, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Bureau of Consumer Financial Protection (the “Bureau”, and, collectively, the “Agencies”) issued a statement “clarifying the role of supervisory guidance.” The release affirms that the Agencies “do not take enforcement actions based on supervisory guidance” and that such guidance “does not have the force and effect of law.” This statement continues a recent pattern in regulatory policy of downplaying the force of guidance documents, at least as they relate to enforcement actions.

The statement explains that, rather than create binding rules with the force and effect of law, guidance “outlines supervisory expectations or priorities” and/or provides examples of practices the Agencies consider acceptable under applicable legal standards, such as safety and soundness standards. Further, the Agencies state that guidance is often issued in part as a response to requests from supervised institutions to “provide insight to industry” and help “ensure consistency in the supervisory approach.”

The Agencies’ statement further clarifies a number of going-forward policies and practices related to supervisory guidance:

  • The Agencies intend to limit the use of numerical thresholds and bright-line tests in guidance (although numerical thresholds, such as an institution’s asset size, will continue to be used to tailor the applicability of guidance).
  • Examiners will not criticize institutions for a “violation” of guidance, although they may identify unsafe or unsound banking practices or risk management or other deficiencies and reference supervisory guidance to provide examples of safe and sound practices, appropriate risk management, and other actions designed to comply with laws and regulations.
  • Although the Agencies may continue to seek public comment on some guidance documents, seeking comment does not transform guidance into a rule.
  • The Agencies will limit the issuance of multiple guidance documents on the same topic.
  • The Agencies will make further efforts to clarify the role of supervisory guidance when communicating both with examiners and supervised institutions, and also encourage supervised institutions to contact the appropriate Agency if they have questions about guidance.

The statement appears to address concerns raised by Congressman Blaine Luetkmeyer, a senior member of the House Financial Services Committee, in a June 2018 letter to the Agencies and the Securities and Exchange Commission. This letter noted that members of industry believed guidance had been treated by the Agencies “as though it was a rule” and that the Agencies engaged in “regulation by enforcement.”

This Agencies’ statement is also consistent with a recent U.S. government theme of reducing the perceived role of guidance documents in regulatory oversight and enforcement. For example, Attorney General Jeff Sessions issued a memorandum in November 2017 that stated that the Department of Justice (“DOJ”) had “in the past published guidance documents . . . that effectively bind private parties without undergoing the rulemaking process” and directed the DOJ to revise its policy to “avoid circumventing the rulemaking process.” In January 2018, then-Associate Attorney General Rachel Brand issued such a revised policy “limiting use of agency guidance documents in affirmative civil enforcement cases.”

In a similar vein, the Government Accountability Office (“GAO”) has determined that multiple regulatory guidance documents are, in reality, “rules” for purposes of the Congressional Review Act (“CRA”). The CRA provides Congress with the opportunity to disapprove any rule before it takes effect.

Most notably, the GAO determined that Bureau guidance on indirect auto lending under the Equal Credit Opportunity Act and interagency guidance on leveraged lending both constituted “rules” under the CRA because the statements were “designed to implement, interpret or prescribe law or policy.” Congress later invalidated the Bureau auto lending guidance under the CRA, and testimony and other comments from banking agency leaders have called into question the practical import of the leveraged lending guidance going forward. For example, Comptroller of the Currency Joseph Otting stated at a conference in February that national banks “have the right to do what [they] want” with respect to leveraged lending “as long as it does not impair safety and soundness.”

It is unclear whether the Agencies’ statement disclaiming the binding effect of guidance will affect future GAO reviews of guidance documents under the CRA. It also remains to be seen how the Agencies’ statement will be implemented in practice as their supervisory teams conduct future examinations.

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Photo of Randy Benjenk Randy Benjenk

Randy Benjenk is a partner in Covington’s industry-leading Financial Services Group and focuses his practice on regulatory advice and advocacy. He represents domestic and foreign banks, fintech companies, and trade associations on compliance issues, corporate transactions, and public policy matters.

Chambers USA says…

Randy Benjenk is a partner in Covington’s industry-leading Financial Services Group and focuses his practice on regulatory advice and advocacy. He represents domestic and foreign banks, fintech companies, and trade associations on compliance issues, corporate transactions, and public policy matters.

Chambers USA says Randy has received “widespread praise” from clients, who describe him as “excellent” and say that “the quality of his legal work and his writing abilities were incredible” and “he’s very easy to work with, knowledgeable and efficient.”

Randy regularly advises clients on a wide range of regulatory matters, including:

  • Bank Activities and Prudential Regulation. Complex bank activities, structure, licensing, and prudential matters, often involving issues of first impression at the federal and state banking agencies.
  • Corporate Transactions. Mergers and acquisitions, spinoffs, charter conversions, debt and equity issuances, investments, strategic partnerships, de novo bank formations, and related regulatory applications and disclosures.
  • Private Equity Investments. Private equity investments in banks, bank investments in private funds, and fund structuring related to the Volcker Rule and Bank Holding Company Act.
  • Public Policy Matters. Regulatory and legislative policy matters, with an emphasis on changes arising out of U.S. banking legislation and international standards.
  • Crisis Response. Navigating extraordinary events, such as the COVID-19 pandemic and related governmental responses, and firm-specific matters.
  • Supervisory and Enforcement Matters. Compliance and safety and soundness issues that arise in the examination and enforcement contexts.