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18173

Rules and Regulations
Federal Register Vol. 86, No. 66
Thursday, April 8, 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 RESERVE SYSTEM
12 CFR Part 262
Docket No. R1725
RIN 7100AF96

Role of Supervisory Guidance Board of Governors of the Federal Reserve System Board.
ACTION: Final rule.
AGENCY:

The Board is adopting a final rule that codifies the Interagency Statement Clarifying the Role of Supervisory Guidance, issued by the Board, Office of the Comptroller of the Currency, Treasury OCC, Federal Deposit Insurance Corporation FDIC, 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 Board will continue to follow and respect the limits of administrative law in carrying out its supervisory responsibilities.
DATES: This final rule is effective on May 10, 2021.
FOR FURTHER INFORMATION CONTACT:
Benjamin McDonough, Associate General Counsel, 202 4522036, Steve Bowne, Senior Counsel, 202 4523900, Christopher Callanan, Senior Counsel, 202 4523594, or Kelley OMara, Counsel, 202 9737497, Legal Division; Juan Climent, Assistant Director, 202 8727526; David Palmer, Lead Financial Institution and Policy Analyst, 202 4522904, or Jinai Holmes, Lead Financial Institution and Policy Analyst, 202 4522834, Division of Supervision and Regulation;
Nicole Bynum, Deputy Director, 202
7285803, Jeremy Hochberg, Managing Counsel, 202 4526496, or Dana Miller, Senior Counsel, 202 4522751, Division of Consumer and Community Affairs; Board of Governors of the
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SUMMARY:

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Federal Reserve System, 20th and C
Streets NW, Washington, DC 20551. For users of Telecommunications Device for the Deaf TDD, 202 2634869.
SUPPLEMENTARY INFORMATION:
I. Background There are important distinctions between issuances by Federal agencies 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 can be used 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 approaches 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 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 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.federalreserve.gov/
supervisionreg/srletters/sr1805a1.pdf.
4 While supervisory guidance offers guidance to the public on the Boards approach to supervision
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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 supervisory guidance with their agency contact.
On November 5, 2018, the Board, OCC, FDIC, and Bureau each received a petition for a rulemaking Petition, as permitted under the Administrative under statutes and regulations and safe and sound practices, the issuance of guidance is discretionary and is not a prerequisite to the Boards 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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