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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations
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In response to comments regarding the role of public comment for supervisory guidance, the FDIC notes that it has made clear through the 2018
Statement and in this final rule that supervisory guidance including guidance that goes through public comment does not create binding, enforceable legal obligations. Rather, the FDIC in some instances issues supervisory guidance for comment in order to improve its understanding of an issue, gather information, or seek ways to achieve a supervisory objective most effectively. Similarly, examples that are included in supervisory guidance including guidance that goes through public comment are not binding on institutions. Rather, these examples are intended to be illustrative of ways a supervised institution may implement safe and sound practices, appropriate consumer protection, prudent risk management, or other actions in furtherance of compliance with laws or regulations. Relatedly, the FDIC does not agree with one comment that it should use notice-and-comment procedures, without exception, to issue all rules as defined by the APA, which would include supervisory guidance. Congress has established longstanding exceptions in the APA
from the notice and comment process for certain rules, including for general statements of policy like supervisory guidance and for interpretive rules. As one court has explained, Congress intended to accommodate situations where the policies promoted by public participation in rulemaking are outweighed by the countervailing considerations of effectiveness, efficiency, expedition and reduction in expense. 26
With respect to the commenters request that the agencies affirm that they will apply statutory factors while processing applications, the FDIC
affirms that the agency will continue to consider and apply all applicable statutory factors when processing applications.
In response to the question raised by some commenters concerning potential confusion between supervisory guidance and interpretive rules, the FDIC notes that interpretive rules are outside the scope of the rulemaking. In addition, as stated earlier, interpretive unless the finding is sufficient to warrant a formal enforcement action under the standard set out in 12
U.S.C. 1818. This reading is inconsistent with the history of federal banking supervision, including as described in the cases cited in the Proposed Rule.
26 Am. Hosp. Assn v. Bowen, 834 F.2d 1037, 1045
D.C. Cir. 1987. The specific contours of these exceptions are the subject of an extensive body of case law.

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rules do not, alone, have the force and effect of law and must be rooted in, and derived from, a statute or regulation. 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. The FDIC
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 FDICs safety and soundness or other authorities. Indeed, the final rule is designed to support the FDICs ability to supervise banks effectively. In addition, the FDIC 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 number of comments on the Proposal are a sign of this interest. As such, the FDIC 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 FDIC 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 FDICs ability to provide valuable guidance, the FDIC
assures the commenter that this language will not inhibit the FDIC from issuing new supervisory guidance when appropriate.
Finally, the FDIC appreciates the other comments related to other aspects of guidance or the supervisory process, but the FDIC 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 changes. However, the FDIC has decided to issue a final rule that is specifically addressed to the FDIC and FDIC-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
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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.
IV. Administrative Law Matters A. Paperwork Reduction Act The Paperwork Reduction Act of 1995 27 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 FDIC 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 The Regulatory Flexibility Act RFA
generally requires that, in connection with a final rulemaking, an agency prepare and make available for public comment a final regulatory flexibility analysis describing the impact of the final rule on small entities.28 However, a regulatory flexibility analysis is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.29 The Small Business Administration SBA has defined small entities to include banking organizations with total assets of less than or equal to $600 million that are independently owned and operated or owned by a holding company with less than or equal to $600 million in total assets.30 Generally, the FDIC
considers a significant effect to be a quantified effect in excess of 5 percent of total annual salaries and benefits per institution, or 2.5 percent of total noninterest expenses. The FDIC believes that effects in excess of these thresholds typically represent significant effects for FDIC-supervised institutions.
As of September 30, 2020, the FDIC
supervised 3,245 institutions, of which 27 44

U.S.C. 35013521.
U.S.C. 601 et seq.
29 5 U.S.C. 605b.
30 The SBA defines a small banking organization as having $600 million or less in assets, where an organizations assets are determined by averaging the assets reported on its four quarterly financial statements for the preceding year. See 13 CFR
121.201 as amended by 84 FR 34261, effective August 19, 2019. In its determination, the SBA
counts the receipts, employees, or other measure of size of the concern whose size is at issue and all of its domestic and foreign affiliates. See 13 CFR
121.103. Following these regulations, the FDIC uses a covered entitys affiliated and acquired assets, averaged over the preceding four quarters, to determine whether the covered entity is small for the purposes of RFA.
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