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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations
in the statutes and regulations those rules interpret. As for identification of these documents, the NCUA generally does, identify guidance and interpretive rules and will continue to do so going forward.
In response to the two commenters opposing the Proposal, this final rule does not undermine any of the NCUAs safety and soundness authorities.
Indeed, the final rule is designed to solidify the NCUAs ability to enforce the very matters of most importance. In addition, the NCUA 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 is evidence of this interest.
As such, the NCUA believes it will serve the public interest to reaffirm the appropriate role of supervisory guidance. Therefore, the NCUA is proceeding with the rule as proposed.
One credit union commenter stated that examiners should only use regulatory requirements as the basis to assess credit union operations, and afford credit unions the opportunity to demonstrate that their practices, which may deviate from the examples provided in supervisory guidance, nonetheless constitute safe and sound practices that meet regulatory requirements. The NCUA notes that the final rule clearly indicates that examiners will not criticize a supervised financial institution for, and the NCUA
will not issue an enforcement action on the basis of, a violation of or noncompliance with supervisory guidance.
Nevertheless, examiners may reference supervisory guidance to provide examples of safe and sound practices, appropriate consumer protection and risk management practices, and other actions for addressing compliance with laws or regulations.
Another commenter requested that all supervisory guidance be published for public comment before being issued.
The commenter argued that this process would reinforce the nature of the guidance and provide credit unions a role in helping to achieve vetted guidance that is useful to their operations. The NCUA does not agree with this comment as publishing each supervisory guidance for public comment would prevent it from being issued timely to provide examples of safe and sound practices, appropriate consumer protection and risk management practices, and other actions for addressing compliance with laws or regulations where applicable. As stated in response to other comments, the NCUAs position is the underlying legal principal of guidance is that it does not create a binding legal
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obligation for either the public or an agency.
One comment stated that the NCUA
should include a notice in each supervisory guidance indicating that it is nonbinding. The NCUA believes such a notice is not necessary, given that the final rule reflects the NCUAs position that the underlying legal principal of supervisory guidance is that it does not created binding legal obligation for either the public or an agency.
One comment recommended identifying existing and future issuances of NCUA Interpretive Rules and Policy Statements IRPS as either a covered supervisory guidance or an exempt interpretive rule to provide clarity for credit unions. The NCUA reiterates that interpretive rules are outside the scope of this rulemaking. However, as stated in the proposed rule, while both guidance and interpretive rules serve different purposes, both lack the force and effect of law. As for identification of NCUA IRPS issuances, the NCUA
generally does identify guidance and interpretive rules and will continue to do so going forward.
Comments Beyond the Scope of the Rulemaking Most comments by credit union affiliated commenters were beyond the scope of the rulemaking, including the need for coordination with other Federal and State regulatory authorities, consistency in applying guidance, the examination cycle, the need for an appeals process, and the need for the Board to issue more guidance on various topics. Given that these comments addressed issues not relevant to the guidance rulemaking, the NCUA has determined that it is more appropriate to assess them outside the context of this rulemaking. Nevertheless, the Board agrees with the commenters that is important to enhance coordination with other regulatory authorities and apply guidance consistently.
III. The Final Rule For the reasons discussed above, the final rule adopts the Proposed Rule without change. However, the NCUA
has decided to issue a final rule that is specifically addressed to the NCUA and NCUA-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
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their respective audiences of supervised institutions and agency employees.
IV. Administrative Law Matters A. Paperwork Reduction Act Analysis The Paperwork Reduction Act of 1995 29 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 NCUA 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 Analysis The Regulatory Flexibility Act RFA
generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of a proposed rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities defined by the NCUA for purposes of the RFA to include federally insured credit unions with assets less than $100
million 30 and publishes its certification and a short, explanatory statement in the Federal Register together with the rule. This rule will not impose any obligations on federally insured credit unions, and regulated entities will not need to take any action in response to this rule. The NCUA
certifies that the rule will not have a significant economic impact on a substantial number of small entities.
The NCUA received no comments in response to its request for comments on this analysis.
C. Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 35025, voluntarily complies with the executive order. This rule will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the 29 44

U.S.C. 35013521.
Interpretive Ruling and Policy Statement IRPS 872, as amended by IRPS 032
and 151, available at https www.ncua.gov/files/
publications/irps/IRPS1987-2.pdf.
30 NCUA

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