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Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations interpretive rules and supervisory guidance are distinct under the APA
and its jurisprudence and are generally issued for different purposes. The OCC
believes that when it issues an interpretive rule, the fact that it is an interpretive rule is generally clear. In addition, these comments relate to clarity in drafting, rather than a matter that seems suitable for rulemaking.
In response to the two commenters opposing the Proposal, this final rule does not undermine any of the OCCs safety and soundness or other authorities. Indeed, the final rule is designed to support the OCCs ability to supervise banks effectively. In addition, the OCC notes the question of the role of guidance has been one of interest to regulated parties and other stakeholders over the past few years. The Petition and the numerous comments on the Proposal are a sign of this interest. As such, the OCC believes it will serve the public interest to reaffirm the appropriate role of supervisory guidance. There are inherent benefits to the supervisory process whenever institutions and examiners have a clear understanding of their roles, including how supervisory guidance can be used effectively within legal limits.
Therefore, the OCC is proceeding with the rule as proposed.
In response to the commenter expressing concern that language in the Statement on reducing multiple supervisory guidance documents on the same topic will limit the OCCs ability to provide valuable guidance, the OCC
assures the commenter that this language will not inhibit the OCC from issuing new supervisory guidance when appropriate.
Finally, the OCC appreciates the other comments related to other aspects of guidance or the supervisory process, but the OCC does not believe that they are best addressed in this rulemaking.
III. The Final Rule For the reasons discussed above, the final rule adopts the Proposed Rule without substantive change. However, the OCC has decided to issue a final rule that is specifically addressed to the OCC
and OCC-supervised institutions, rather than the joint version that the five agencies included in their joint Proposal. Although many of the comments were applicable to all of the agencies, some comments were specific to particular agencies or to groups of agencies. Having separate final rules has enabled agencies to better focus on explaining any agency-specific issues to their respective audiences of supervised institutions and agency employees.

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IV. Administrative Law Matters A. Paperwork Reduction Act The Paperwork Reduction Act of 1995 26 PRA states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget OMB control number. The OCC has reviewed this final rule and determined that it does not contain any information collection requirements subject to the PRA. Accordingly, no submissions to OMB will be made with respect to this final rule.
B. Regulatory Flexibility Act In general, the Regulatory Flexibility Act 27 RFA requires that in connection with a rulemaking, an agency prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the rule on small entities. Under section 605b of the RFA, this analysis is not required if an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a brief explanatory statement in the Federal Register along with its rule.
The OCC currently supervises approximately 782 small entities.28
Because the final rule will apply to all OCC-supervised depository institutions, the final rule will affect a substantial number of OCC-supervised entities.
While the final rule does clarify that the Statement is binding on the OCC, it would not impose any new mandates on the banking industry. As such, the OCC
estimates that the costs, if any, associated with the final rule will be negligible. For these reasons, the OCC
certifies that the final rule will not have a significant economic impact significant economic impact on a substantial number of small entities.
C. Plain Language Section 722 of the Gramm-LeachBliley Act 29 requires the Federal 26 44

U.S.C. 35013521.
U.S.C. 601, et seq.
28 We base our estimate of the number of small entities on the SBAs size thresholds for commercial banks and savings institutions, and trust companies, which are $600 million and $41.5
million, respectively. Consistent with the General Principles of Affiliation 13 CFR 121.103a, we count the assets of affiliated financial institutions when determining if we should classify an OCCsupervised institution as a small entity. We use December 31, 2018, to determine size because a financial institutions assets are determined by averaging the assets reported on its four quarterly financial statements for the preceding year. See footnote 8 of the U.S. Small Business Administrations Table of Size Standards.
29 Public Law 106102, section 722, 113 Stat.
1338, 1471 1999, 12 U.S.C. 4809.
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banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The OCC has sought to present the final rule in a simple and straightforward manner and did not receive any comments on the use of plain language in the Proposed Rule.
D. Unfunded Mandates Reform Act of 1995 Determination The OCC analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995
UMRA.30 Under this analysis, the OCC
considered whether the final rule includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year adjusted for inflation. The OCC has determined that the final rule will not impose new mandates on the banking industry. Therefore, the OCC concludes that the final rule will not result in an expenditure of $100 million or more annually by State, local, and Tribal governments, or by the private sector.
E. Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302a of the Riegle Community Development and Regulatory Improvement Act RCDRIA,31 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions IDIs, each Federal banking agency must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302b of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form.32 The OCC has determined that the final rule will not impose additional reporting, disclosure, or other requirements on IDIs; therefore, the requirements of the RCDRIA do not apply.
30 2

U.S.C. 1532.
U.S.C. 4802a.
32 12 U.S.C. 4802.
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