Republican Congressman Blaine Luetkemeyer, a member of the House Financial Services Committee, has sent letters to six agencies asking them to issue and publish statements concerning the effect and use of “agency statements-for example, guidance documents, supervisory letters or examination manuals—that have not gone through notice and comment rulemaking.”  One such letter was sent to the Federal Reserve Board and the other letter was sent to the FDIC, NCUA, SEC, OCC and CFPB.

In the letters, Rep. Luetkemeyer requests that, in such statements, the agencies affirm that agency statements that have not gone through notice and comment rulemaking “do not establish binding legal standards, and thus shall not be the basis of enforcement actions or supervisory directives, including but not limited to the issuance of ‘Matters Requiring Attention’ or ‘Matters Requiring Immediate Attention.'”

Rep. Luetkemeyer also requests that the agencies:

  • Clarify in their statements “that any failure to adhere to guidance shall not, directly or indirectly, form the basis of any other adverse supervisory determinations, such as ratings downgrades
  • Establish a standard practice by which any subsequently issued guidance includes a statement regarding the effect of the guidance consistent with the above limitations
  • Ensure that examiners are “appropriately educated about the use and role of guidance; and held accountable when guidance is applied inappropriately”

Rep. Luetkemeyer observes in the letters that greater clarity about the appropriate use and interpretation of guidance is needed because “[o]ver the years, a significant number of agency guidance, handbooks and circulars have been issued.  Almost none has been withdrawn or rescinded; similarly, almost none went through notice and comment rulemaking or was submitted to the Congress pursuant to the Congressional Review Act.”

In his letter to the five agencies, Rep. Luetkemeyer references the determination by the Government Accountability Office (GAO) that the Fed’s leveraged lending guidance was a rule for CRA purposes but was not submitted to Congress before it took effect.  Following that determination, the GAO determined that the CFPB’s bulletin on discretionary pricing by auto dealers was also a rule for CRA purposes.  The bulletin subsequently became the first guidance document to be disapproved by Congress pursuant to a joint CRA resolution.

In a statement issued about the signing of the CRA resolution by President Trump, the CFPB stated that the resolution’s enactment “clarifies that a number of Bureau guidance documents may be considered rules for purposes of the CRA, and therefore the Bureau must submit them for review by Congress.”  The CFPB also indicated that it plans to “confer with Congressional staff and federal agency partners to identify appropriate documents for submission.”