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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 2,434 were considered small for purposes of RFA.31 This final rule does not impose any obligations on FDICsupervised entities, and FDICsupervised entities do not need to take any action in response to this rule. For these reasons, and under section 605b of the RFA, the FDIC certifies that the final rule will not have a significant economic impact on a substantial number of small FDIC-supervised institutions.
C. Plain Language Section 722 of the Gramm-LeachBliley Act 32 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has sought to present the final rule in a simple and straightforward manner and did not receive any comments on the use of plain language in the Proposed Rule.
D. Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302a of the Riegle Community Development and Regulatory Improvement Act RCDRIA,33 in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions IDIs, each Federal banking agency must consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, section 302b of RCDRIA requires new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form.34 The FDIC has determined that the final rule will not impose additional reporting, disclosure, or other requirements on IDIs; therefore, the requirements of the RCDRIA do not apply.

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E. Congressional Review Act For purposes of Congressional Review Act, the OMB makes a determination as 31 FDIC Consolidated Reports of Condition and Income Data, September 30, 2020.
32 Public Law 106102, section 722, 113 Stat.
1338, 1471 1999, 12 U.S.C. 4809.
33 12 U.S.C. 4802a.
34 12 U.S.C. 4802.

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to whether a final rule constitutes a major rule.35 If a rule is deemed a major rule by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication.36
The Congressional Review Act defines a major rule as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in A an annual effect on the economy of $100,000,000 or more; B a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions, or C significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets.37 As required by the Congressional Review Act, the FDIC
will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.
List of Subjects in 12 CFR Part 302
Administrative practice and procedure, Banks, banking.
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Chapter III
Authority and Issuance For the reasons set forth in the preamble, the FDIC adds part 302 to 12
CFR chapter III, subchapter A, to read as follows:

PART 302USE OF SUPERVISORY
GUIDANCE
Sec.
302.1 Purpose.
302.2 Implementation of the Statement Clarifying the Role of Supervisory Guidance.
302.3 Rule of construction.
Appendix A to Part 302Statement Clarifying the Role of Supervisory Guidance Authority: 5 U.S.C. 552; 12 U.S.C. 1818, 1819a Seventh and Tenth, 1831p1.
302.1

Purpose.

The FDIC issues regulations and guidance as part of its supervisory function. This subpart reiterates the distinctions between regulations and guidance, as stated in the Statement Clarifying the Role of Supervisory 35 5

U.S.C. 801 et seq.
U.S.C. 801a3.
37 5 U.S.C. 8042.
36 5

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Guidance appendix A to this part Statement.
302.2 Implementation of the Statement Clarifying the Role of Supervisory Guidance.

The Statement describes the official policy of the FDIC with respect to the use of supervisory guidance in the supervisory process. The Statement is binding on the FDIC.
302.3

Rule of construction.

This subpart does not alter the legal status of guidelines authorized by statute, including but not limited to, 12
U.S.C. 1831p1, to create binding legal obligations.
Appendix A to Part 302Statement Clarifying the Role of Supervisory Guidance Statement Clarifying the Role of Supervisory Guidance The FDIC is issuing this statement to explain the role of supervisory guidance and to describe the FDICs approach to supervisory guidance.
Difference Between Supervisory Guidance and Laws or Regulations The FDIC issues various types of supervisory guidance, including interagency statements, advisories, policy statements, questions and answers, and frequently asked questions, to its supervised institutions. A
law or regulation has the force and effect of law.1 Unlike a law or regulation, supervisory guidance does not have the force and effect of law, and the FDIC does not take enforcement actions based on supervisory guidance. Rather, supervisory guidance outlines the FDICs supervisory expectations or priorities and articulates the FDICs general views regarding appropriate practices for a given subject area. Supervisory guidance often provides examples of practices that the FDIC generally considers consistent with safety-and-soundness standards or other applicable laws and regulations, including those designed to protect consumers. Supervised institutions at times request supervisory guidance, and such guidance is important to provide insight to industry, as well as supervisory staff, in a transparent way that helps to ensure consistency in the supervisory approach.
Ongoing Efforts To Clarify the Role of Supervisory Guidance The FDIC is clarifying the following policies and practices related to supervisory guidance:
The FDIC intends to limit the use of numerical thresholds or other bright-lines in describing expectations in supervisory guidance. Where numerical thresholds are used, the FDIC intends to clarify that the 1 Government agencies issue regulations that generally have the force and effect of law. Such regulations generally take effect only after the agency proposes the regulation to the public and responds to comments on the proposal in a final rulemaking document.

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