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Rules and Regulations
Federal Register Vol. 86, No. 39
Tuesday, March 2, 2021

This section of the FEDERAL REGISTER
contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.

FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 302
RIN 3064AF32

Role of Supervisory Guidance Federal Deposit Insurance Corporation FDIC.
ACTION: Final rule.
AGENCY:

The FDIC is adopting a final rule that codifies the Interagency Statement Clarifying the Role of Supervisory Guidance, issued by the FDIC, Board of Governors of the Federal Reserve System Board, Office of the Comptroller of the Currency, Treasury OCC, National Credit Union Administration NCUA, and Bureau of Consumer Financial Protection Bureau collectively, the agencies on September 11, 2018 2018 Statement.
By codifying the 2018 Statement, with amendments, the final rule confirms that the FDIC will continue to follow and respect the limits of administrative law in carrying out its supervisory responsibilities. The 2018 Statement reiterated well-established law by stating that, unlike a law or regulation, supervisory guidance does not have the force and effect of law. As such, supervisory guidance does not create binding legal obligations for the public.
Because it is incorporated into the final rule, the 2018 Statement, as amended, is binding on the FDIC. The final rule adopts the rule as proposed without substantive changes.
DATES: The final rule is effective on April 1, 2021.
FOR FURTHER INFORMATION CONTACT: RaeAnn Miller, Senior Deputy Director, 202 8983898; Karen Jones Currie, Senior Examination Specialist, 202
8983981; Supervisory Examinations Branch, Division of Risk Management and Supervision; Luke H. Brown, Associate Director, 202 8983842;
David Friedman, Senior Policy Analyst, 202 8987168, Supervisory Policy,
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SUMMARY:

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Division of Depositor and Consumer Protection; William Piervincenzi, Supervisory Counsel, 202 8986957;
Kathryn J. Marks, Counsel, 202 898
3896; Jennifer M. Jones, Counsel, 202
8986768, jennjones@fdic.gov, Supervision and Legislation Branch, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429. For the hearing impaired only, Telecommunication Device for the Deaf TDD, 800 9254618.
SUPPLEMENTARY INFORMATION:
I. Background The FDIC recognizes the important distinction between issuances that serve to implement acts of Congress known as regulations or legislative rules and non-binding supervisory guidance documents.1 Regulations create binding legal obligations. Supervisory guidance is issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power and does not create binding legal obligations.2
In recognition of the important distinction between rules and guidance, on September 11, 2018, the agencies issued the Interagency Statement Clarifying the Role of Supervisory Guidance 2018 Statement to explain the role of supervisory guidance and describe the agencies approach to supervisory guidance.3 As noted in the 2018 Statement, the agencies issue various types of supervisory guidance to their respective supervised institutions, including, but not limited to, interagency statements, advisories, bulletins, policy statements, questions and answers, and frequently asked questions. Supervisory guidance outlines the agencies supervisory expectations or priorities and articulates the agencies general views regarding practices for a given subject area.
Supervisory guidance often provides 1 Regulations are commonly referred to as legislative rules because regulations have the force and effect of law. Perez v. Mortgage Bankers Association, 575 U.S. 92, 96 2015 citations omitted.
2 See Chrysler v. Brown, 441 U.S. 281, 302 1979
quoting the Attorney Generals Manual on the Administrative Procedure Act at 30 n.3 1947
Attorney Generals Manual and discussing the distinctions between regulations and general statements of policy, of which supervisory guidance is one form.
3 See https www.fdic.gov/news/financialinstitution-letters/2018/fil18049.html.

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examples of practices that mitigate risks, or that the agencies generally consider to be consistent with safety-andsoundness standards or other applicable laws and regulations, including those designed to protect consumers.4 The agencies noted in the 2018 Statement that supervised institutions at times request supervisory guidance and that guidance is important to provide clarity to these institutions, as well as supervisory staff, in a transparent way that helps to ensure consistency in the supervisory approach.5
The 2018 Statement restated existing law and reaffirmed the agencies understanding that supervisory guidance does not create binding, enforceable legal obligations. The 2018
Statement reaffirmed that the agencies do not issue supervisory criticisms for violations of supervisory guidance and described the appropriate use of supervisory guidance by the agencies. In the 2018 Statement, the agencies also expressed their intention to 1 limit the use of numerical thresholds in guidance; 2 reduce the issuance of multiple supervisory guidance documents on the same topic; 3
continue efforts to make the role of supervisory guidance clear in communications to examiners and supervised institutions; and 4
encourage supervised institutions to discuss their concerns about 4 While supervisory guidance offers guidance to the public on the FDICs approach to supervision under statutes and regulations and safe and sound practices, the issuance of guidance is discretionary and is not a prerequisite to the FDICs exercise of its statutory and regulatory authorities. This point reflects the fact that statutes and legislative rules, not statements of policy, set legal requirements.
5 The Administrative Conference of the United States ACUS has recognized the important role of guidance documents and has stated that 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. ACUS, Recommendation 20175, Agency Guidance Through Policy Statements at 2
adopted December 14, 2017, available at https
www.acus.gov/recommendation/agency-guidancethrough-policy-statements. ACUS also suggests that policy statements are generally better than legislative rules for dealing with conditions of uncertainty and often for making agency policy accessible. Id. ACUSs reference to policy statements refers to the statutory text of the APA, which provides that notice and comment is not required for general statements of policy. The phrase general statements of policy has commonly been viewed by courts, agencies, and administrative law commentators as including a wide range of agency issuances, including guidance documents.

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