Quiero saber acerca de...

Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations With respect to the comments on coverage of interpretive rules, the FDIC
agrees with the commenter that interpretive rules do not, alone, have the force and effect of law and must be rooted in, and derived from, a statute or regulation.18 While interpretive rules and supervisory guidance are similar in lacking the force and effect of law, interpretive rules and supervisory guidance are distinct under the APA
and its jurisprudence and are generally issued for different purposes.19
Interpretive rules are typically issued by an agency to advise the public of the agencys construction of the statutes and rules that it administers,20 whereas general statements of policy, such as supervisory guidance, advise the public of how an agency intends to exercise its discretionary powers.21 To this end, guidance generally reflects an agencys policy views, for example, on safe and sound risk management practices. On the other hand, interpretive rules generally resolve ambiguities regarding requirements imposed by statutes and regulations. Because supervisory guidance and interpretive rules have different characteristics and serve different purposes, the FDIC has decided that the final rule will continue to cover supervisory guidance only.
With respect to the question of whether to adopt ACUSs procedures for allowing the public to request reconsideration or revision of an 18 See
Mortgage Bankers Association, 575 U.S. at
jbell on DSKJLSW7X2PROD with RULES

96.
19 Questions concerning the legal and supervisory nature of interpretive rules are case-specific and have engendered debate among courts and administrative law commentators. The FDIC takes no position in this rulemaking on those specific debates. See, e.g., R. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263 2018
discussing the doctrinal differences concerning the status of interpretive rules under the APA; see also Nicholas R. Parillo, Federal Agency Guidance and the Powder to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. Reg 165, 168 n.6 2019
whether interpretive rules are supposed to be nonbinding is a question subject to much confusion that is not fully settled; see also ACUS, Recommendation 20191, Agency Guidance Through Interpretive Rules Adopted June 13, 2019, available at https www.acus.gov/
recommendation/agency-guidance-throughinterpretive-rules noting that courts and commentators have different views on whether interpretive rules bind an agency and effectively bind the public through the deference given to agencies interpretations of their own rules under Auer v. Robbins, 519 U.S. 452 1997.
20 Mortgage Bankers Association, 575 U.S. at 97
citing Shalala v. Guernsey Memorial Hospital, 514
U.S. 87, 99 1995; accord Attorney Generals Manual at 30 n.3.
21 See Chrysler v. Brown, 441 U.S. at 302 n.31
quoting Attorney Generals Manual at 30 n.3; see also, e.g., American Mining Congress v. Mine Safety & Health Administration, 995 F.2d 1106, 1112 D.C.
Cir. 1993 outlining tests in the D.C. Circuit for assessing whether an agency issuance is an interpretive rule.

VerDate Sep<11>2014

16:15 Mar 01, 2021

Jkt 253001

interpretive rule, this rulemaking, again, does not address interpretive rules. As such, the FDIC is not adding procedures for challenges to interpretive rules through this rulemaking.
In response to the comment that the agencies treat examples in guidance as safe harbors from supervisory criticism, the FDIC agrees that examples offered in supervisory guidance can provide insight about practices that, in general, may lead to safe and sound operation and compliance with regulations and statutes. The examples in guidance, however, are generalized.
When an institution implements examples, examiners must consider the facts and circumstances of that institution in assessing the application of those examples. In addition, the underlying legal principle of supervisory guidance is that it does not create binding legal obligation for either the public or an agency. As such, the FDIC does not deem examples used in supervisory guidance to categorically establish safe harbors from supervisory criticism.
In response to the comments that the Proposal may undermine the important role that supervisory guidance can play in informing supervisory criticism and by serving to address conditions before those conditions lead to enforcement actions, the FDIC agrees that the appropriate use of supervisory guidance generates a more collaborative and constructive regulatory process that supports the safety and soundness and compliance of institutions, thereby diminishing the need for enforcement actions. As noted by ACUS, guidance can make agency decision-making more predictable and uniform and shield regulated parties from unequal treatment, unnecessary costs, and unnecessary risk, while promoting compliance with the law. The FDIC
intends, therefore, to continue using guidance as part of the supervisory process. The FDIC does not view the final rule as weakening the role of guidance in the supervisory process and the FDIC will continue to use guidance to support the safety and soundness of banks and promote compliance with consumer protection laws and regulations.
Further, the FDIC does not agree with one commenters assertion that the Proposal made an unclear distinction between, on the one hand, inappropriate supervisory criticism for a violation of or non-compliance with supervisory guidance, and, on the other hand, FDIC examiners use of supervisory guidance to reference examples of safe and sound conduct, appropriate consumer protection and
PO 00000

Frm 00005

Fmt 4700

Sfmt 4700

12083

risk management practices, and other actions for addressing compliance with laws or regulations. This approach appropriately implements the principle that institutions are not required to follow supervisory guidance in itself but may find such guidance useful.
With respect to the comment that visitorial powers do not provide the Federal banking agencies with authority to issue MRAs or other supervisory criticisms, the FDIC disagrees. The FDICs visitorial powers are wellestablished. The Supreme Courts decision in Cuomo v. Clearing House Assn L.L.C. explained that the visitation included the exercise of supervisory power. 22 The Court ruled that the power to enforce the law exists separate and apart from the power of visitation. 23 While the Cuomo decision involved the question of which powers may be exercised by state governments and ruled that states could exercise law enforcement powers, but could not exercise visitorial powers, the decision did not dispute that the Federal banking agencies possess both these powers. The Court in Cuomo explained that visitorial powers entailed oversight and supervision, while the Courts earlier decision in Watters v. Wachovia Bank, N.A.
explained that visitorial powers entailed general supervision and control. 24
Accordingly, visitorial powers include the power to issue supervisory criticisms independent of the agencies authority to enforce applicable laws or ensure safety and soundness. For these reasons, the FDIC reaffirms the statement in the preamble to the Proposed Rule that such visitorial powers have been conferred through statutory examination and reporting authorities, which facilitate the FDICs identification of supervisory concerns that may not rise to a violation of law, unsafe or unsound practice, or breach of fiduciary duty under 12 U.S.C. 1818.
These statutory examination and reporting authorities pre-existed 12
U.S.C. 1818, which neither superseded nor replaced such authorities. The FDIC
has been vested with statutory examination and reporting authorities with respect to banks under its supervision.25
23 Cuomo v. Clearing House Assn L.L.C., 557 U.S.
519,536 2009.
23 Id. at 533.
24 Watters v. Wachovia Bank, N.A., 550 U.S. 1, 127 2007.
25 The commenters reading of the agencies examination and reporting authorities would assert that the agencies may examine supervised institutions and require reports, but not make findings based on such examinations and reporting,
E:FRFM02MRR1.SGM

Continued
02MRR1