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Federal Register / Vol. 86, No. 28 / Friday, February 12, 2021 / Rules and Regulations
supervisory criticism for a violation of or non-compliance with supervisory guidance, and, on the other hand, Bureau examiners entirely appropriate use of supervisory guidance to reference examples of appropriate consumer protection and 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. The Bureau disagrees with the commenter that institutions and examiners are incapable of understanding this important distinction.
As one example, Bureau examiners regularly examine the compliance management systems CMS at supervised institutions. Where examiners identify a deficiency in an institutions CMS, examiners may provide a supervisory recommendation or other supervisory criticism to the institution to correct the deficiency at that institution. It is also appropriate for Bureau examiners to refer to relevant supervisory guidance as an example of appropriate CMS, if the examiners believe that an institution would find such guidance informative.
In response to the comments regarding the role of public comment for supervisory guidance, the Bureau 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 Bureau may issue 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 appropriate consumer protection, prudent risk management, or other actions in furtherance of compliance with laws or regulations. Relatedly, the Bureau does not agree with one comment that it should use notice-andcomment 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
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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. 23
In response to the question raised by some commenters concerning potential confusion between supervisory guidance and interpretive rules, the Bureau notes that interpretive rules are outside the scope of the rulemaking. In addition, as stated earlier, interpretative rules do not, alone, have the force and effect of law and must be rooted in, and derived from, the statutes and regulations those rules interpret. 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 Bureau 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 public interest advocacy groups opposing the Proposal, the Bureau does not believe that this final rule would undermine any of the Bureaus authorities. Indeed, the final rule is designed to support the Bureaus ability to supervise. In addition, the Bureau 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 numerous comments on the Proposal are a sign of this interest. As such, the Bureau 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. And in response to the concern from the veterans advocacy group that the Bureaus participation in the interagency Proposed Rule would bind the hands of a future administration, the Bureau notes that it is the nature of binding regulations that they bind an agency over time across multiple administrations. Most importantly, it does not believe that there is anything 23 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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in the final rule that would prevent the Bureau from continuing to vigorously carry out its statutory supervisory functions in the interests of consumers, while respecting legal limits. Therefore, the Bureau 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 Bureaus ability to provide valuable guidance, the Bureau assures the commenter that this language will not inhibit the Bureau from issuing new supervisory guidance when appropriate.
Finally, the Bureau appreciates the other comments related to other aspects of guidance or the supervisory process, but the Bureau does not believe that they are best addressed in this rulemaking.
IV. The Final Rule For the reasons discussed above, the final rule adopts the Proposed Rule without substantive change.
However, the Bureau has decided to issue a final rule that is specifically addressed to the Bureau and Bureausupervised 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 their respective audiences of supervised institutions and agency employees.
Relatedly, the Bureau has omitted from the final rule those specific phrases that are inapplicable to the Bureau, because they pertain to the safety-and-soundness responsibilities of the Federal banking agencies and the NCUA. The Bureau believes that this will provide greater clarity about how the rule applies to the Bureaus supervisory functions.
V. Administrative Law Matters A. Dodd-Frank Act The Bureau issues this final rule based on the Bureaus authorities under sections 1012a1 and 1022b1 of the Dodd-Frank Wall Street Reform and Consumer Protection Act Dodd-Frank Act.24 Section 1012a1 authorizes the Bureau to establish rules for conducting the general business of the Bureau, in a manner not inconsistent with title X of the Dodd-Frank Act.25 Section 24 Public 25 12

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Law 111203, 124 Stat. 1376 2010.
U.S.C. 5492a1.

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