Biden administration issues memorandum to executive departments and agencies on reviewing new or pending rules, which could include the Office of the Comptroller of the Currency’s rule on access to banking services finalized this month. Editor’s note: This article is available for members only.
1/22/2021 11:00
In a memorandum from Ronald Klain, assistant to the president and chief of staff, federal agency leaders are asked to take the following steps for new or pending rules:
1. Subject to any exceptions the director of the Office of Management and Budget allows for emergency situations or other urgent circumstances relating to health, safety, environmental, financial, or national security matters, or otherwise, propose or issue no rule in any manner—including by sending a rule to the Office of the Federal Register (OFR)—until a department or agency head appointed or designated by the president after noon on Jan. 20, 2021, reviews and approves the rule. The department or agency head may delegate this power of review and approval to any other person so appointed or designated by the president, consistent with applicable law.
2. With respect to rules that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval as described in paragraph one, subject to the exceptions. This withdrawal must be conducted consistent with OFR procedures.
This may impact the Office of the Comptroller of the Currency’s Fair Access to Financial Services Rule, which was finalized Jan. 14 but has not been published in the Federal Register. At this time, it is set to take effect April 1, ACA International previously reported.
3. With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum, consistent with applicable law and subject to the exceptions described in paragraph one, for the purpose of reviewing any questions of fact, law, and policy the rules may raise. For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules. As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.
ACA advocated for passage of the OCC Fair Access to Financial Services rule on behalf of members over the last several years and will continue to support the rule.
Former Treasury Department Official Michael Barr is Biden’s expected pick to lead the OCC. Any actions taken by federal agencies in response to this memorandum are required to be in compliance with the Administrative Procedures Act. Notably, the OCC and the Consumer Financial Protection Bureau are independent agencies, so they are not necessarily subject to executive orders or memorandums.
ACA is engaged with staff at both the OCC and the CFPB to learn more about any future plans in this area.