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Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations rooted in, and derived from, a statute or regulation.14 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.15
Interpretive rules are typically issued by an agency to advise the public of the agencys construction of the statutes and rules that it administers,16 whereas general statements of policy, such as supervisory guidance, advise the public of how an agency intends to exercise its discretionary powers.17 To this end, guidance generally reflects an agencys policy views, for example, on 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 Bureau 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 interpretive rule, this rulemaking, again, does not address interpretive rules. As such, the Bureau is not adding procedures for challenges to interpretive rules through this rulemaking.
The Bureau is also not adopting the comment from an association of 14 See
Mortgage Bankers Association, 575 U.S. at
96.
15 Questions
concerning the legal and supervisory nature of interpretive rules are case-specific and have engendered debate among courts and administrative law commentators. The Bureau 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, 84 FR 38927 Aug. 8, 2019 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.
16 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.
17 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.

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community banks that the category of supervisory guidance be expanded to include the small entity compliance guides that the Bureau provides for small entities, which the commenter described as extremely helpful. The Bureau normally designates its small entity compliance guides as compliance aids, pursuant to the its Policy Statement on Compliance Aids.18
Compliance aids do not rise to the level of supervisory guidance, because they are not general statements of policy and they do not concern the Bureaus supervisory powersneither do they rise to the level of interpretive rules, because they are not interpretive.19
Instead, the Policy Statement on Compliance Aids outlines how compliance aids simply present the requirements of rules and statutes in a manner that is useful for compliance professionals, other industry stakeholders, and the public;
compliance aids also sometimes include practical suggestions for how entities might choose to go about complying with those rules and statutes.20
Interested parties can consult the Policy Statement on Compliance Aids for a comprehensive explanation of how the Bureau views its compliance aids.
The Bureau also notes the comment from an association in the debtcollection industry that encouraged the Bureau to issue small entity compliance guides, frequently asked questions, and advisory opinions to explain compliance expectations. The Bureau observes that these particular materials are outside the scope of this particular rulemaking. This is because the Bureaus small entity compliance guides and frequently asked questions are generally designated as compliance aids and not supervisory guidance under the Policy Statement on Compliance Aids,21
while the Bureaus advisory opinions are classified as interpretive rules under the Bureaus Advisory Opinion Policy.22
However, the Bureau agrees that the appropriate Bureau use of compliance aids and advisory opinions, like supervisory guidance, is useful for helping entities in the debt-collection 18 Policy Statement on Compliance Aids, 85 FR
4579 Jan. 27, 2020.
19 Id. at 4579 n.4 explaining that Bureau compliance aids that satisfy the policy statement do not rise to the level of rules as defined by the Administrative Procedure Act and that general statements of policy and interpretive rules are examples of rules.
20 Id. at 4579.
21 Id.
22 Advisory Opinions Policy, 85 FR 77987, 77988
Dec. 3, 2020 explaining that Bureau advisory opinions are interpretive rules under the Administrative Procedure Act and explaining limitations on advisory opinions.

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and other industries to fully comply with Federal consumer financial laws.
In response to the comment that the agencies should treat examples in guidance as safe harbors, the Bureau agrees that examples offered in supervisory guidance can provide insight about practices that, in general, may lead to compliance with regulations and statutes. The examples in guidance, however, are generalized.
When an institution chooses to implement such 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 created binding legal obligation for either the public or an agency. As such, the Bureau does not deem examples in supervisory guidance to categorically establish safe harbors.
The Bureau has also considered the comment that was specifically directed to the Bureau, from an association of credit unions, which stated that the Bureau should refrain from issuing supervisory guidance that adds requirements not explicitly stated in the statute or regulation. Although the Bureau does not agree that it would be appropriate to limit the Bureaus efforts to assist entities in complying with their legal obligations to situations where the law is already explicit, the Bureau fully agrees that it is not the role of supervisory guidance to create legal requirements. Those must be located in a statute or regulation.
In response to the comments that the Proposal may undermine the important role that supervisory guidance can play in informing supervisory criticism and in serving to address conditions before those conditions lead to enforcement actions, the Bureau agrees that the appropriate use of supervisory guidance generates a more collaborative and constructive regulatory process that supports compliance by 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 Bureau does not view the final rule as weakening the role of guidance in the supervisory process and the Bureau will continue to use guidance in a robust way to promote compliance by its supervised institutions.
Further, the Bureau does not agree with one commenters assertion that the Proposal made an unclear distinction between, on the one hand, inappropriate
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