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Federal Register / Vol. 86, No. 118 / Wednesday, June 23, 2021 / Rules and Regulations CFPA. The Bureau asserted that Congress confined the Bureaus authority to assess compliance to Federal consumer financial law and not compliance with other laws; that Congress intended not to confer examination authority with respect to the MLA, since it did not add the MLA
to the definition of Federal consumer financial law; and that the Bureau would be circumventing Congresss intentions by conducting examinations related to the MLA.
The Bureau no longer accepts this argument, because the argument relies on assumptions about Congresss intentions that are not expressed anywhere in the statutory text or any legislative history. There is nothing in the statute to suggest that risks to consumers can never include violations of law. Indeed, in the case of the MLA, Congress enacted it precisely because there were risks to active-duty servicemembers and their families.
Moreover, to the extent it is appropriate to speculate about Congress choice to not amend the definition of Federal consumer financial law, it is understandable why Congress would not have added the MLA to that definition. As noted above, the Bureau has general rulemaking authority with respect to Federal consumer financial law, but Congress gave the Department of Defense, not the Bureau, general rulemaking authority for the MLA.
Adding the MLA to the definition of Federal consumer financial law would have led to potential confusion about which agency, or both, has this significant rulemaking authority. Lastly, to assert that the Bureau is circumventing Congresss intentions is conclusory. Again, had Congress wished to more closely circumscribe . . .
agency discretion, it would not have used the capacious terms that it did.42
Second, the Bureaus prior interpretation was informed by the fact that Congress conferred authority on the Bureau to enforce the MLA through subtitle E of the CFPA, by incorporating TILAs enforcement scheme, without specifically addressing the Bureaus supervisory authority under section 1024. According to this line of argument, this specific conferral of certain enforcement authorities implies an unstated exclusion of supervisory authority. But the Supreme Court has rejected just such an argument. The Court has recognized that where financial regulators have formal enforcement powers regarding a specific subject but also broad statutory authority to supervise financial 42 City
of Arlington, 569 U.S. at 296.

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institutions, there is nothing that prevents the regulators from invoking less formal means of supervision of financial institutions, given that there is no prohibition against the use of supervisory mechanisms not specifically set forth in statute or regulation. 43 This is particularly true here, where Congress has expressly authorized the Bureau to rely upon any other applicable authorities available to the Bureau to enforce the MLA, and where TILAs enforcement regime likewise authorizes the Bureau to exercise any other authority conferred on it by law to aid in its enforcement of that statute.44 Thus, there is no reason to infer that Congresss conferral of certain specific enforcement authorities foreclosed the use of other authorities to ensure conformity with the MLA and securing its protections for servicemembers and their families.
Moreover, when Congress incorporated TILAs enforcement scheme into the MLA in 2013, there had been forty years of consistent history of regulators taking this kind of approach in the TILA
contextusing their generally-framed authorities to examine supervised institutions in order to supplement the formal enforcement measures that section 108 of TILA specifically references.
Third, the Bureaus prior interpretation was influenced by a concern that reading the phrase risks to consumers in sections 1024b1C to include those risks to consumers that arise from conduct that violates the MLA might lead to a similar reading with respect to other statutes that, like the MLA, are not covered by sections 1024b1A. But, as already explained, there is nothing in the statutory text to suggest that risks to consumers are somehow limited to conduct that is lawful and that risks to consumers can never include conduct that violates the law. It is also appropriate to step back and recognize that this is a slippery slope argument. Like all slippery-slope arguments, the . . . point can be inverted with equal logical force. 45 Not exercising the Bureaus authority to identify these important risks to active-duty servicemembers and their families would be a slippery slope towards making the authority that Congress expressly conferred on the Bureau, to seek out risks to consumers, a dead letter. As discussed above, the Bureau believes that the very 43 United States v. Gaubert, 499 U.S. 315, 31920, 32930 1991.
44 10 U.S.C. 987f6; 15 U.S.C. 1607b.
45 B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725
F.3d 293, 317 3d Cir. 2013.

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harmful conduct that Congress sought to prevent in the MLA, which the Bureau has the authority to remedy through its other authorities specifically enforcement action, sits within the core of this authority. There could doubtless be debate about the outer limits of the authority, but that is simply because Congress chose to frame it in such flexible terms, and that is not a reason for the Bureau to boycott this core application of the authority.
The Bureau would note, in conclusion, that a common feature of the above arguments against the Bureaus authority is that they do not dispute the plain fact that conduct that violates the MLA presents risks to consumers. Instead, the arguments all implicitly rely on variations of a mistaken premise: that Congress could not have meant what it said when it used the words risks to consumers to confer examination authority on a consumer protection agency in the aftermath of a financial crisis. But it is a fundamental principle of statutory interpretation that absent provisions cannot be supplied by the courts. This principle applies not only to adding terms not found in the statute, but also to imposing limits on an agencys discretion that are not supported by the text. 46
IV. Analysis of Section 1025b1C
Very Large Banks and Credit Unions Section 1025b1C of the CFPA
authorizes the Bureau, in relevant part, to conduct examinations of very large banks and credit unions for purposes of detecting and assessing risks to consumers that are associated with activities subject to Federal consumer financial laws. This requirement that there be an association with activities subject to Federal consumer financial laws is present in section 1025b1C
but not section 1024b1C, which narrows section 1025b1C in comparison to section 1024b1C.
The Bureau previously assumed that MLA-related issues could not be associated risks to consumers under section 1025b1C. But as explained above, the activity of extending consumer credit under the MLA is a subset of the activity of extending consumer credit under TILA. Indeed, violations of the MLA can overlap with violations of TILAs disclosure requirements, as well as the CFPAs prohibition on deceptive acts or practices or other violations of Federal 46 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2381 2020
Thomas, J. internal citations, brackets, and quotation marks omitted.

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