Recently, and in response to growing concerns about regulators’ overreliance on guidance, bank regulators and the BCFP importantly issued an Interagency Statement confirming that supervisory guidance does not have the force of law, and that bank examiners should not take enforcement actions based on supervisory guidance. The Interagency Statement, a promising step forward, reaffirms the status of guidance under existing law. The question is how it changes regulatory practice. To institutionalize this recognition, and particularly to promote its prompt and consistent observance by examiners and other agency personnel, the BPI and ABA are asking for regulators to formalize the Interagency Statement in the form of a binding regulation, so as to ensure it endures over time and is followed consistently across the country.
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