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.

Rules and Regulations Federal Register

12079 

Vol. 86, No. 39 

Tuesday, March 2, 2021 

1Regulations 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). 

2See Chrysler v. Brown, 441 U.S. 281, 302 (1979) 

(quoting the Attorney General’s Manual on the 

Administrative Procedure Act at 30 n.3 (1947) 

(Attorney General’s Manual) and discussing the 

distinctions between regulations and general 

statements of policy, of which supervisory guidance 

is one form). 

3See https://www.fdic.gov/news/financialinstitution-letters/2018/fil18049.html. 

4While supervisory guidance offers guidance to 

the public on the FDIC’s approach to supervision 

under statutes and regulations and safe and sound 

practices, the issuance of guidance is discretionary 

and is not a prerequisite to the FDIC’s exercise of 

its statutory and regulatory authorities. This point 

reflects the fact that statutes and legislative rules, 

not statements of policy, set legal requirements. 

5The 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 2017–5, 

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. ACUS’s 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. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 302 

RIN 3064–AF32 

Role of Supervisory Guidance 

AGENCY: Federal Deposit Insurance 

Corporation (FDIC). 

ACTION: Final rule. 

SUMMARY: The FDIC is adopting a final 

rule that codifies the Interagency 

Statement Clarifying the Role of 

Supervisory Guidance, issued by the 

FDIC, Board of Governors of the Federal 

Reserve System (Board), Office of the 

Comptroller of the Currency, Treasury 

(OCC), 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 FDIC will continue to follow 

and respect the limits of administrative 

law in carrying out its supervisory 

responsibilities. The 2018 Statement 

reiterated well-established law by 

stating that, unlike a law or regulation, 

supervisory guidance does not have the 

force and effect of law. As such, 

supervisory guidance does not create 

binding legal obligations for the public. 

Because it is incorporated into the final 

rule, the 2018 Statement, as amended, is 

binding on the FDIC. The final rule 

adopts the rule as proposed without 

substantive changes. 

DATES: The final rule is effective on 

April 1, 2021. 

FOR FURTHER INFORMATION CONTACT: RaeAnn Miller, Senior Deputy Director, 

(202) 898–3898; Karen Jones Currie, 

Senior Examination Specialist, (202) 

898–3981; Supervisory Examinations 

Branch, Division of Risk Management 

and Supervision; Luke H. Brown, 

Associate Director, (202) 898–3842; 

David Friedman, Senior Policy Analyst, 

(202) 898–7168, Supervisory Policy, 

Division of Depositor and Consumer 

Protection; William Piervincenzi, 

Supervisory Counsel, (202) 898–6957; 

Kathryn J. Marks, Counsel, (202) 898– 

3896; Jennifer M. Jones, Counsel, (202) 

898–6768, jennjones@fdic.gov, 

Supervision and Legislation Branch, 

Legal Division, Federal Deposit 

Insurance Corporation, 550 17th Street 

NW, Washington, DC 20429. For the 

hearing impaired only, 

Telecommunication Device for the Deaf 

(TDD), (800) 925–4618. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The FDIC recognizes the important 

distinction between issuances 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 

is issued by an agency 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’ approach 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 

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 


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12080 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

6 5 U.S.C. 553(e). 

7See Petition for Rulemaking on the Role of 

Supervisory Guidance, available at https://bpi.com/ 

wp-content/uploads/2018/11/BPI_PFR_on_Role_of_

Supervisory_Guidance_Federal_Reserve.pdf. The 

Petitioners did not submit a petition to the NCUA, 

which has no supervisory authority over the 

financial institutions that are represented by 

Petitioners. The NCUA chose to join the Proposed 

Rule on its own initiative. 

8 85 FR 70512 (November 5, 2020). 

9The agencies use different terms to refer to 

supervisory actions that are similar to MRAs and 

Matters Requiring Immediate Attention (MRIAs), 

including matters requiring board attention 

(MRBAs), documents of resolution, and supervisory 

recommendations. 

10For the sake of clarification, one source of law 

among many that can serve as a basis for a 

supervisory criticism is the Interagency Guidelines 

Establishing Standards for Safety and Soundness, 

see 12 CFR part 30, appendix A, 12 CFR part. 208, 

appendix D–1, and 12 CFR part 364, appendix A. 

These Interagency Guidelines were issued using 

notice and comment and pursuant to express 

statutory authority in 12 U.S.C. 1831p–1(d)(1) to 

adopt safety and soundness standards either by 

‘‘regulation or guideline.’’ 

11The 2018 Statement contains the following 

sentence: ‘‘Examiners will not criticize a supervised 

financial institution for a ‘violation’ of supervisory 

guidance.’’ 2018 Statement at 2. As revised in the 

Proposed Rule, this sentence read as follows: 

‘‘Examiners will not criticize (including through the 

issuance of matters requiring attention, matters 

requiring immediate attention, matters requiring 

board attention, documents of resolution, and 

supervisory recommendations) a supervised 

financial institution for, and agencies will not issue 

an enforcement action on the basis of, a ‘violation’ 

of or ‘non-compliance’ with supervisory guidance.’’ 

Proposed Rule (emphasis added). As discussed 

infra in footnote 13, the Proposed Rule also 

removed the sentences in the 2018 Statement that 

referred to ‘‘citation,’’ which the Petition suggested 

had been confusing. These sentences were also 

removed to clarify that the focus of the Proposed 

Rule related to the use of guidance, not the 

standards for MRAs. 

12The Petition asserted that the federal banking 

agencies rely on 12 U.S.C. 1818(b)(1) when issuing 

MRAs based on safety-and-soundness matters. 

Through statutory examination and reporting 

authorities, Congress has conferred upon the 

agencies the authority to exercise visitorial powers 

with respect to supervised institutions. The 

Supreme Court has indicated support for a broad 

reading of the agencies’ visitorial powers. See, e.g., 

Cuomo v. Clearing House Assn L.L.C., 557 U.S. 519 

(2009); United States v. Gaubert, 499 U.S. 315 

(1991); and United States v. Philadelphia Nat. 

Bank, 374 U.S. 321 (1963). The visitorial powers 

facilitate early identification of supervisory 

concerns that may not rise to a violation of law, 

unsafe or unsound banking practice, or breach of 

fiduciary duty under 12 U.S.C. 1818. 

13The following sentences from the 2018 

Statement were not present in the Proposed Rule: 

‘‘Rather, any citations will be for violations of law, 

regulation, or non-compliance with enforcement 

orders or other enforceable conditions. During 

supervisory guidance with their agency 

contact. 

On November 5, 2018, the OCC, 

Board, FDIC, and Bureau each received 

a petition for a rulemaking (Petition), as 

permitted under the Administrative 

Procedure Act (APA),6 requesting that 

the agencies codify the 2018 Statement.7

The Petition argued that a rule on 

guidance is necessary to bind future 

agency leadership and staff to the 2018 

Statement’s terms. The Petition also 

suggested there are ambiguities in the 

2018 Statement concerning how 

supervisory guidance is used in 

connection with matters requiring 

attention, matters requiring immediate 

attention (collectively, MRAs), as well 

as in connection with other supervisory 

actions that should be clarified through 

a rulemaking. Finally, the Petition 

called for the rulemaking to implement 

changes in the agencies’ standards for 

issuing MRAs. Specifically, the Petition 

requested that the agencies limit the role 

of MRAs to addressing circumstances in 

which there is a violation of a statute, 

regulation, or order, or demonstrably 

unsafe or unsound practices. 

II. The Proposed Rule and Comments 

Received 

On November 5, 2020, the agencies 

issued a proposed rule (Proposed Rule 

or Proposal) that would have codified 

the 2018 Statement, with clarifying 

changes, as an appendix to proposed 

rule text.8 The Proposed Rule would 

have superseded the 2018 Statement. 

The rule text would have provided that 

an amended version of the 2018 

Statement is binding on each respective 

agency. 

Clarification of the 2018 Statement 

The Petition expressed support for the 

2018 Statement and acknowledged that 

it addresses many issues of concern for 

the Petitioners relating to the use of 

supervisory guidance. The Petition 

expressed concern, however, that the 

2018 Statement’s reference to not basing 

‘‘criticisms’’ on violations of 

supervisory guidance has led to 

confusion about whether MRAs are 

covered by the 2018 Statement. 

Accordingly, the agencies proposed to 

clarify in the Proposed Rule that the 

term ‘‘criticize’’ includes the issuance of 

MRAs and other supervisory criticisms, 

including those communicated through 

matters requiring board attention, 

documents of resolution, and 

supervisory recommendations 

(collectively, supervisory criticisms).9

As such, the agencies reiterated that 

examiners will not base supervisory 

criticisms on a ‘‘violation’’ of or ‘‘noncompliance’’ with supervisory 

guidance.10 The agencies noted that, in 

some situations, examiners may 

reference (including in writing) 

supervisory guidance to provide 

examples of safe and sound conduct, 

appropriate consumer protection and 

risk management practices, and other 

actions for addressing compliance with 

laws or regulations. The agencies also 

reiterated that they will not issue an 

enforcement action on the basis of a 

‘‘violation’’ of or ‘‘non-compliance’’ 

with supervisory guidance. The 

Proposed Rule reflected these 

clarifications.11

The Petition requested further that 

these supervisory criticisms should not 

include ‘‘generic’’ or ‘‘conclusory’’ 

references to safety and soundness. The 

agencies agreed that supervisory 

criticisms should continue to be specific 

as to practices, operations, financial 

conditions, or other matters that could 

have a negative effect on the safety and 

soundness of the financial institution, 

could cause consumer harm, or could 

cause violations of laws, regulations, 

final agency orders, or other legally 

enforceable conditions. Accordingly, the 

agencies included language reflecting 

this practice in the Proposed Rule. 

The Petition also suggested that 

MRAs, as well as memoranda of 

understanding, examination 

downgrades, and any other formal 

examination mandate or sanction, 

should be based only on a violation of 

a statute, regulation, or order, including 

a ‘‘demonstrably unsafe or unsound 

practice.’’ 12 As noted in the Proposed 

Rule, examiners all take steps to identify 

deficient practices before they rise to 

violations of law or regulation or before 

they constitute unsafe or unsound 

banking practices. The agencies stated 

that they continue to believe that early 

identification of deficient practices 

serves the interest of the public and of 

supervised institutions. Early 

identification protects the safety and 

soundness of banks, promotes consumer 

protection, and reduces the costs and 

risk of deterioration of financial 

condition from deficient practices 

resulting in violations of laws or 

regulations, unsafe or unsound 

conditions, or unsafe or unsound 

banking practices. The Proposed Rule 

also noted that the agencies have 

different supervisory processes, 

including for issuing supervisory 

criticisms. For these reasons, the 

agencies did not propose revisions to 

their respective supervisory practices 

relating to supervisory criticisms. 

The agencies also noted that the 2018 

Statement was intended to focus on the 

appropriate use of supervisory guidance 

in the supervisory process, rather than 

the standards for supervisory criticisms. 

To address any confusion concerning 

the scope of the 2018 Statement, the 

Proposed Rule removed two sentences 

from the 2018 Statement concerning 

grounds for ‘‘citations’’ and the 

handling of deficiencies that do not 

constitute violations of law.13


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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 12081 

examinations and other supervisory activities, 

examiners may identify unsafe or unsound 

practices or other deficiencies in risk management, 

including compliance risk management, or other 

areas that do not constitute violations of law or 

regulation.’’ 2018 Statement at 2. The agencies did 

not intend these deletions to indicate a change in 

supervisory policy. 14Of the comments received, some comments 

were not submitted to all agencies, and some 

comments were identical. Note that this total 

excludes comments that were directed at an 

unrelated rulemaking by the Financial Crimes 

Enforcement Network of the Department of the 

Treasury (FinCEN). This final rule does not 

specifically discuss those comments that are only 

potentially relevant to other agencies. 

15This final rule does not specifically discuss 

those comments that are only potentially relevant 

to other agencies. 

16The Federal banking agencies are the OCC, 

Board, and FDIC. 12 U.S.C. 1813. 

Comments on the Proposed Rule 

A. Overview 

The five agencies received 

approximately 30 unique comments 

concerning the Proposed Rule.14 The 

FDIC discusses below those comments 

that are potentially relevant to the 

FDIC.15 Commenters representing trade 

associations for banking institutions and 

other businesses, state bankers’ 

associations, individual financial 

institutions, and one member of 

Congress expressed general support for 

the proposed rule. These commenters 

supported codification of the 2018 

Statement and the reiteration by the 

agencies that guidance does not have 

the force of law and cannot give rise to 

binding, enforceable legal obligations. 

One of these commenters stated that the 

Proposal would serve the interests of 

consumers and competition by 

clarifying the law for institutions and 

potentially removing ambiguities that 

could deter the development of 

innovative products that serve 

consumers and business clients, without 

uncertainty regarding potential 

regulatory consequences. These 

commenters expressed strong support as 

well for the clarification in the Proposed 

Rule that the agencies will not criticize, 

including through the issuance of 

‘‘matters requiring attention,’’ a 

supervised financial institution for a 

‘‘violation’’ of, or ‘‘non-compliance’’ 

with, supervisory guidance. 

One commenter agreed with the 

agencies that supervisory criticisms 

should not be limited to violation of 

statutes, regulations, or orders, 

including a ‘‘demonstrable unsafe or 

unsound practice’’ and that supervisory 

guidance remains a beneficial tool to 

communicate supervisory expectations 

to the industry. The commenter stated 

that the proactive identification of 

supervisory criticism or deficiencies 

that do not constitute violations of law 

facilitates forward-looking supervision, 

which helps address problems before 

they warrant a formal enforcement 

action. The commenter noted as well 

that supervisory guidance provides 

important insight to the industry and 

ensures consistency in the supervisory 

approach and that supervised 

institutions frequently request 

supervisory guidance. The commenter 

observed that the COVID–19 pandemic 

has amplified the requests for 

supervisory guidance and interpretation 

and that it is apparent institutions want 

clarity and guidance from regulators. 

Two commenters, both public interest 

advocacy groups, opposed the proposed 

rule, suggesting that codifying the 2018 

Statement may undermine the 

important role that supervisory 

guidance can play by informing 

supervisory criticism, rather than 

merely clarifying that it will not serve 

as the basis for enforcement actions. 

One commenter stated that it is essential 

for agencies to have the prophylactic 

authority to base criticisms on 

imprudent bank practices that may not 

yet have ripened into violations of law 

or significant safety and soundness 

concerns. The commenter stated that 

this is particularly important with 

respect to large banks, where delay in 

addressing concerns could lead to a 

broader crisis. One commenter stated 

that the agencies have not explained the 

benefits that would result from the rule 

or demonstrated how the rule will 

promote safety and soundness or 

consumer protection. The commenter 

argued that supervision is different from 

other forms of regulation and requires 

supervisory discretion, which could be 

constrained by the rule. One of these 

commenters argued that the Proposal 

would send a signal that banking 

institutions have wider discretion to 

ignore supervisory guidance. 

B. Scope of Rule 

Several industry commenters 

requested that the Proposed Rule cover 

interpretive rules and clarify that 

interpretive rules do not have the force 

and effect of law. One commenter stated 

that the agencies should clarify whether 

they believe that interpretive rules can 

be binding. The commenter argued that, 

under established legal principles, 

interpretive rules can be binding on the 

agency that issues them but not on the 

public. Some commenters suggested 

that the agencies follow ACUS 

recommendations for issuing 

interpretive rules and that the agencies 

should clarify when particular guidance 

documents are (or are not) interpretive 

rules and allow the public to petition to 

change an interpretation. A number of 

commenters requested that the agencies 

expand the statement to address the 

standards that apply to MRAs and other 

supervisory criticisms, a suggestion 

made in the Petition. 

C. Role of Guidance Documents 

Several commenters recommended 

that the agencies clarify that the 

practices described in supervisory 

guidance are merely examples of 

conduct that may be consistent with 

statutory and regulatory compliance, not 

expectations that may form the basis for 

supervisory criticism. One commenter 

suggested that the agencies state that 

when agencies offer examples of safe 

and sound conduct, compliance with 

consumer protection standards, 

appropriate risk management practices, 

or acceptable practices through 

supervisory guidance or interpretive 

rules, the agencies will treat adherence 

to practices outlined in that supervisory 

guidance or interpretive rule as a safe 

harbor from supervisory criticism. One 

commenter also requested that the 

agencies make clear that guidance that 

goes through public comment, as well as 

any examples used in guidance, is not 

binding. The commenter also requested 

that the agencies affirm that they will 

apply statutory factors while processing 

applications. 

One commenter argued that guidance 

provides valuable information to 

supervisors about how their discretion 

should be exercised and therefore plays 

an important role in supervision. As an 

example, according to this commenter, 

12 U.S.C. 1831p–1 and 12 U.S.C. 1818 

recognize the discretionary power 

conferred on the Federal banking 

agencies 16 which is separate from the 

power to issue regulations. The 

commenter noted that, pursuant to these 

statutes, regulators may issue cease and 

desist orders based on reasonable cause 

to believe that an institution has 

engaged, is engaging, or is about to 

engage in an unsafe and unsound 

practice, separately and apart from 

whether the institution has technically 

violated a law or regulation. The 

commenter added that Congress 

entrusted the Federal banking agencies 

with the power to determine whether 

practices are unsafe and unsound and 

attempt to halt such practices through 

supervision, even if a specific case may 

not constitute a violation of a written 

law or regulation. 

D. Supervisory Criticisms 

Several commenters addressed 

supervisory criticisms and how they 

relate to guidance. These commenters 

suggested that supervisory criticisms 


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12082 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

17The FDIC does not issue MRAs or MRIAs. 

Rather, the FDIC issues MRBAs, which are a subset 

of supervisory recommendations. See Statement of 

the FDIC Board of Directors on the Development 

and Communication of Supervisory 

Recommendations available at https://

www.fdic.gov/about/governance/ 

recommendations.html. 

should be specific as to practices, 

operations, financial conditions, or 

other matters that could have a negative 

effect. These commenters also suggested 

that MRAs, memoranda of 

understanding, and any other formal 

written mandates or sanctions should be 

based only on a violation of a statute or 

regulation. Similarly, these commenters 

argued that there should be no 

references to guidance in written formal 

actions and that banking institutions 

should be reassured that they will not 

be criticized or cited for a violation of 

guidance when no law or regulation is 

cited. One commenter suggested that it 

would instead be appropriate to discuss 

supervisory guidance privately, rather 

than publicly, potentially during the 

pre-exam meetings or during 

examination exit meetings. Another 

commenter suggested that, while 

referencing guidance in supervisory 

criticism may be useful at times, 

agencies should provide safeguards to 

prevent such references from becoming 

the de facto basis for supervisory 

criticisms. One commenter stated that 

examiners also should not criticize 

community banks in their final written 

examination reports for not complying 

with ‘‘best practices’’ unless the 

criticism involves a violation of bank 

policy or regulation. The commenter 

added that industry best practices 

should be transparent enough and 

sufficiently known throughout the 

industry before being cited in an 

examination report. One commenter 

requested that examiners should not 

apply large bank practices to 

community banks that have a different, 

less complex and more conservative 

business model. One commenter 

asserted that MRAs should not be based 

on ‘‘reputational risk,’’ but rather on the 

underlying conduct giving rise to 

concerns and asked the agencies to 

address this in the final rule. 

Commenters that opposed the 

Proposal did not support restricting 

supervisory criticism or sanctions to 

explicit violations of law or regulation. 

One commenter expressed concern that 

requiring supervisors to wait for an 

explicit violation of law before issuing 

criticism would effectively erase the 

line between supervision and 

enforcement. According to the 

commenter, it would eliminate the 

space for supervision as an intermediate 

practice of oversight and cooperative 

problem-solving between banks and the 

regulators who support and manage the 

banking system and would also clearly 

violate the intent of the law in 12 U.S.C. 

1818(b). One commenter emphasized 

the importance of bank supervisors 

basing their criticisms on imprudent 

bank practices that may not yet have 

ripened into violations of laws or rules 

but could undermine safety and 

soundness or pose harm to consumers if 

left unaddressed. 

One commenter argued that the 

agencies should state clearly that 

guidance can and will be used by 

supervisors to inform their assessments 

of banks’ practices; and that it may be 

cited as, and serve as the basis for, 

criticisms. According to the commenter, 

even under the legal principles 

described in the Proposal, it is 

permissible for guidance to be used as 

a set of standards that may inform a 

criticism, provided that application of 

the guidance is used for corrective 

purposes, if not to support an 

enforcement action. 

According to one commenter, the 

Proposal makes fine conceptual 

distinctions between, for example, 

issuing supervisory criticisms ‘‘on the 

basis of’’ guidance and issuing 

supervisory criticisms that make 

‘‘reference’’ to supervisory guidance. 

The commenter suggested that is a 

distinction that it may be difficult for 

‘‘human beings to parse in practice.’’ 

According to the commenter, a rule that 

makes such a distinction is likely to 

have a chilling effect on supervisors 

attempting to implement policy in the 

field. According to another commenter, 

the language allowing examiners to 

reference supervisory guidance to 

provide examples is too vague and 

threatens to marginalize the role of 

guidance and significantly reduce its 

usefulness in the process of issuing 

criticisms designed to correct deficient 

bank practices. 

E. Legal Authority and Visitorial Powers 

One commenter questioned the 

Federal banking agencies’ reference in 

the Proposal to visitorial powers as an 

additional authority for early 

identification of supervisory concerns 

that may not rise to a violation of law, 

unsafe or unsound banking practice, or 

breach of fiduciary duty under 12 U.S.C. 

1818. 

F. Issuance and Management of 

Supervisory Guidance 

Several commenters made suggestions 

about how the agencies should issue 

and manage supervisory guidance. 

Some commenters suggested that the 

agencies should delineate clearly 

between regulations and supervisory 

guidance. Commenters encouraged the 

agencies to regularly review, update, 

and potentially rescind outstanding 

guidance. One commenter suggested 

that the agencies rescind outstanding 

guidance that functions as rule, but has 

not gone through notice and comment. 

One commenter suggested that the 

agencies memorialize their intent to 

revisit and potentially rescind existing 

guidance, as well as limit multiple 

guidance documents on the same topic. 

Commenters suggested that supervisory 

guidance should be easy to find, readily 

available, online, and in a format that is 

user-friendly and searchable. 

One commenter encouraged the 

agencies to issue principles-based 

guidance that avoids the kind of 

granularity that could be misconstrued 

as binding expectations. According to 

this commenter, the agencies can issue 

separate frequently asked questions 

with more detailed information, but 

should clearly identify these as nonbinding illustrations. This commenter 

also encouraged the agencies to publish 

proposed guidance for comment when 

circumstances allow. Another 

commenter requested that the agencies 

issue all ‘‘rules’’ as defined by the APA 

through the notice-and-comment 

process. 

One commenter expressed concern 

that the agencies will aim to reduce the 

issuance of multiple supervisory 

guidance documents and will thereby 

reduce the availability of guidance in 

circumstances where guidance would be 

valuable. 

Responses to Comments 

As stated in the Proposed Rule, the 

2018 Statement was intended to focus 

on the appropriate use of supervisory 

guidance in the supervisory process, 

rather than the standards for 

supervisory criticisms. The standards 

for issuing MRAs or other supervisory 

actions were, therefore, outside the 

scope of this rulemaking. For this 

reason, and for reasons discussed 

earlier, the final rule does not address 

the standards for MRAs and other 

supervisory actions. Similarly, because 

the FDIC is not addressing its approach 

to supervisory criticism in the final rule, 

including any criticism related to 

reputation risk, the final rule does not 

address supervisory criticisms relating 

to ‘‘reputation risk.’’ Nonetheless, the 

FDIC affirms that it does not issue 

supervisory recommendations, 

including MRBAs 17 solely based on 

reputation risk. 


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18See Mortgage Bankers Association, 575 U.S. at 

96. 

19Questions concerning the legal and supervisory 

nature of interpretive rules are case-specific and 

have engendered debate among courts and 

administrative law commentators. The FDIC 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) 

(‘‘[w]hether interpretive rules are supposed to be 

nonbinding is a question subject to much confusion 

that is not fully settled’’); see also ACUS, 

Recommendation 2019–1, Agency Guidance 

Through Interpretive Rules (Adopted June 13, 

2019), available at https://www.acus.gov/ 

recommendation/agency-guidance-throughinterpretive-rules (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)). 

20 Mortgage Bankers Association, 575 U.S. at 97 

(citing Shalala v. Guernsey Memorial Hospital, 514 

U.S. 87, 99 (1995)); accord Attorney General’s 

Manual at 30 n.3. 

21See Chrysler v. Brown, 441 U.S. at 302 n.31 

(quoting Attorney General’s 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). 

23Cuomo v. Clearing House Assn L.L.C., 557 U.S. 

519,536 (2009). 

23 Id. at 533. 

24Watters v. Wachovia Bank, N.A., 550 U.S. 1, 

127 (2007). 

25The commenter’s reading of the agencies’ 

examination and reporting authorities would assert 

that the agencies may examine supervised 

institutions and require reports, but not make 

findings based on such examinations and reporting, 

Continued 

With respect to the comments on 

coverage of interpretive rules, the FDIC 

agrees with the commenter that 

interpretive rules do not, alone, ‘‘have 

the force and effect of law’’ and must be 

rooted in, and derived from, a statute or 

regulation.18 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.19

Interpretive rules are typically issued by 

an agency to advise the public of the 

agency’s construction of the statutes and 

rules that it administers,20 whereas 

general statements of policy, such as 

supervisory guidance, advise the public 

of how an agency intends to exercise its 

discretionary powers.21 To this end, 

guidance generally reflects an agency’s 

policy views, for example, on safe and 

sound 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 FDIC has 

decided that the final rule will continue 

to cover supervisory guidance only. 

With respect to the question of 

whether to adopt ACUS’s 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 FDIC is not adding procedures 

for challenges to interpretive rules 

through this rulemaking. 

In response to the comment that the 

agencies treat examples in guidance as 

‘‘safe harbors’’ from supervisory 

criticism, the FDIC agrees that examples 

offered in supervisory guidance can 

provide insight about practices that, in 

general, may lead to safe and sound 

operation and compliance with 

regulations and statutes. The examples 

in guidance, however, are generalized. 

When an institution implements 

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 

create binding legal obligation for either 

the public or an agency. As such, the 

FDIC does not deem examples used in 

supervisory guidance to categorically 

establish safe harbors from supervisory 

criticism. 

In response to the comments that the 

Proposal may undermine the important 

role that supervisory guidance can play 

in informing supervisory criticism and 

by serving to address conditions before 

those conditions lead to enforcement 

actions, the FDIC agrees that the 

appropriate use of supervisory guidance 

generates a more collaborative and 

constructive regulatory process that 

supports the safety and soundness and 

compliance of 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 FDIC 

intends, therefore, to continue using 

guidance as part of the supervisory 

process. The FDIC does not view the 

final rule as weakening the role of 

guidance in the supervisory process and 

the FDIC will continue to use guidance 

to support the safety and soundness of 

banks and promote compliance with 

consumer protection laws and 

regulations. 

Further, the FDIC does not agree with 

one commenter’s assertion that the 

Proposal made an unclear distinction 

between, on the one hand, inappropriate 

supervisory criticism for a ‘‘violation’’ 

of or ‘‘non-compliance’’ with 

supervisory guidance, and, on the other 

hand, FDIC examiners’ use of 

supervisory guidance to reference 

examples of safe and sound conduct, 

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. 

With respect to the comment that 

visitorial powers do not provide the 

Federal banking agencies with authority 

to issue MRAs or other supervisory 

criticisms, the FDIC disagrees. The 

FDIC’s visitorial powers are wellestablished. The Supreme Court’s 

decision in Cuomo v. Clearing House 

Assn L.L.C. explained that the visitation 

included the ‘‘exercise of supervisory 

power.’’ 22 The Court ruled that the 

‘‘power to enforce the law exists 

separate and apart from the power of 

visitation.’’ 23 While the Cuomo 

decision involved the question of which 

powers may be exercised by state 

governments (and ruled that states 

could exercise law enforcement powers, 

but could not exercise visitorial 

powers), the decision did not dispute 

that the Federal banking agencies 

possess both these powers. The Court in 

Cuomo explained that visitorial powers 

entailed ‘‘oversight and supervision,’’ 

while the Court’s earlier decision in 

Watters v. Wachovia Bank, N.A. 

explained that visitorial powers entailed 

‘‘general supervision and control.’’ 24

Accordingly, visitorial powers include 

the power to issue supervisory 

criticisms independent of the agencies’ 

authority to enforce applicable laws or 

ensure safety and soundness. For these 

reasons, the FDIC reaffirms the 

statement in the preamble to the 

Proposed Rule that such visitorial 

powers have been conferred through 

statutory examination and reporting 

authorities, which facilitate the FDIC’s 

identification of supervisory concerns 

that may not rise to a violation of law, 

unsafe or unsound practice, or breach of 

fiduciary duty under 12 U.S.C. 1818. 

These statutory examination and 

reporting authorities pre-existed 12 

U.S.C. 1818, which neither superseded 

nor replaced such authorities. The FDIC 

has been vested with statutory 

examination and reporting authorities 

with respect to banks under its 

supervision.25


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12084 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

unless the finding is sufficient to warrant a formal 

enforcement action under the standard set out in 12 

U.S.C. 1818. This reading is inconsistent with the 

history of federal banking supervision, including as 

described in the cases cited in the Proposed Rule. 

26Am. Hosp. Ass’n 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. 

27 44 U.S.C. 3501–3521. 28 5 U.S.C. 601 et seq. 29 5 U.S.C. 605(b). 30The SBA defines a small banking organization 

as having $600 million or less in assets, where an 

organization’s ‘‘assets are determined by averaging 

the assets reported on its four quarterly financial 

statements for the preceding year.’’ See 13 CFR 

121.201 (as amended by 84 FR 34261, effective 

August 19, 2019). In its determination, the ‘‘SBA 

counts the receipts, employees, or other measure of 

size of the concern whose size is at issue and all 

of its domestic and foreign affiliates.’’ See 13 CFR 

121.103. Following these regulations, the FDIC uses 

a covered entity’s affiliated and acquired assets, 

averaged over the preceding four quarters, to 

determine whether the covered entity is ‘‘small’’ for 

the purposes of RFA. 

In response to comments regarding 

the role of public comment for 

supervisory guidance, the FDIC 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 

FDIC in some instances issues 

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 

safe and sound practices, appropriate 

consumer protection, prudent risk 

management, or other actions in 

furtherance of compliance with laws or 

regulations. Relatedly, the FDIC does 

not agree with one comment that it 

should use notice-and-comment 

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 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.’’ 26

With respect to the commenter’s 

request that the agencies affirm that they 

will apply statutory factors while 

processing applications, the FDIC 

affirms that the agency will continue to 

consider and apply all applicable 

statutory factors when processing 

applications. 

In response to the question raised by 

some commenters concerning potential 

confusion between supervisory 

guidance and interpretive rules, the 

FDIC notes that interpretive rules are 

outside the scope of the rulemaking. In 

addition, as stated earlier, interpretive 

rules do not, alone, ‘‘have the force and 

effect of law’’ and must be rooted in, 

and derived from, a statute or 

regulation. 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 FDIC 

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 commenters 

opposing the Proposal, this final rule 

does not undermine any of the FDIC’s 

safety and soundness or other 

authorities. Indeed, the final rule is 

designed to support the FDIC’s ability to 

supervise banks effectively. In addition, 

the FDIC 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 number of comments on the 

Proposal are a sign of this interest. As 

such, the FDIC 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. 

Therefore, the FDIC 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 FDIC’s ability 

to provide valuable guidance, the FDIC 

assures the commenter that this 

language will not inhibit the FDIC from 

issuing new supervisory guidance when 

appropriate. 

Finally, the FDIC appreciates the 

other comments related to other aspects 

of guidance or the supervisory process, 

but the FDIC does not believe that they 

are best addressed in this rulemaking. 

III. The Final Rule 

For the reasons discussed above, the 

final rule adopts the Proposed Rule 

without substantive changes. However, 

the FDIC has decided to issue a final 

rule that is specifically addressed to the 

FDIC and FDIC-supervised 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. 

IV. Administrative Law Matters 

A. Paperwork Reduction Act 

The Paperwork Reduction Act of 

1995 27 (PRA) states that no agency may 

conduct or sponsor, nor is the 

respondent required to respond to, an 

information collection unless it displays 

a currently valid Office of Management 

and Budget (OMB) control number. The 

FDIC has reviewed this final rule and 

determined that it does not contain any 

information collection requirements 

subject to the PRA. Accordingly, no 

submissions to OMB will be made with 

respect to this final rule. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires that, in connection 

with a final rulemaking, an agency 

prepare and make available for public 

comment a final regulatory flexibility 

analysis describing the impact of the 

final rule on small entities.28 However, 

a regulatory flexibility analysis is not 

required if the agency certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities.29 The Small 

Business Administration (SBA) has 

defined ‘‘small entities’’ to include 

banking organizations with total assets 

of less than or equal to $600 million that 

are independently owned and operated 

or owned by a holding company with 

less than or equal to $600 million in 

total assets.30 Generally, the FDIC 

considers a significant effect to be a 

quantified effect in excess of 5 percent 

of total annual salaries and benefits per 

institution, or 2.5 percent of total noninterest expenses. The FDIC believes 

that effects in excess of these thresholds 

typically represent significant effects for 

FDIC-supervised institutions. 

As of September 30, 2020, the FDIC 

supervised 3,245 institutions, of which 


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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 12085 

31FDIC Consolidated Reports of Condition and 

Income Data, September 30, 2020. 

32Public Law 106–102, section 722, 113 Stat. 

1338, 1471 (1999), 12 U.S.C. 4809. 

33 12 U.S.C. 4802(a). 

34 12 U.S.C. 4802. 

35 5 U.S.C. 801 et seq. 

36 5 U.S.C. 801(a)(3). 

37 5 U.S.C. 804(2). 

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. 

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 605(b) 

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 302(a) 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 302(b) 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. 

E. Congressional Review Act 

For purposes of Congressional Review 

Act, the OMB makes a determination as 

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 302—USE 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 302—Statement 

Clarifying the Role of Supervisory 

Guidance 

Authority: 5 U.S.C. 552; 12 U.S.C. 1818, 

1819(a) (Seventh and Tenth), 1831p–1. 

§ 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 

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. 1831p–1, to create binding legal 

obligations. 

Appendix A to Part 302—Statement 

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 FDIC’s 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 FDIC’s supervisory expectations 

or priorities and articulates the FDIC’s 

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 


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12086 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Rules and Regulations 

thresholds are exemplary only and not 

suggestive of requirements. The FDIC will 

continue to use numerical thresholds to 

tailor, and otherwise make clear, the 

applicability of supervisory guidance or 

programs to supervised institutions, and as 

required by statute. 

• Examiners will not criticize through 

supervisory recommendations (including 

matters requiring board attention) a 

supervised financial institution for, and the 

FDIC will not issue an enforcement action on 

the basis of, a ‘‘violation’’ of or ‘‘noncompliance’’ with supervisory guidance. In 

some situations, examiners may reference 

(including in writing) supervisory guidance 

to provide examples of safe and sound 

conduct, appropriate consumer protection 

and risk management practices, and other 

actions for addressing compliance with laws 

or regulations. 

• Supervisory criticisms should continue 

to be specific as to practices, operations, 

financial conditions, or other matters that 

could have a negative effect on the safety and 

soundness of the financial institution, could 

cause consumer harm, or could cause 

violations of laws, regulations, final agency 

orders, or other legally enforceable 

conditions. 

• The FDIC also has at times sought, and 

may continue to seek, public comment on 

supervisory guidance. Seeking public 

comment on supervisory guidance does not 

mean that the guidance is intended to be a 

regulation or have the force and effect of law. 

The comment process helps the FDIC to 

improve its understanding of an issue, to 

gather information on institutions’ risk 

management practices, or to seek ways to 

achieve a supervisory objective most 

effectively and with the least burden on 

institutions. 

• The FDIC will aim to reduce the issuance 

of multiple supervisory guidance documents 

on the same topic and will generally limit 

such multiple issuances going forward. 

The FDIC will continue efforts to make the 

role of supervisory guidance clear in 

communications to examiners and to 

supervised financial institutions and 

encourage supervised institutions with 

questions about this statement or any 

applicable supervisory guidance to discuss 

the questions with their appropriate agency 

contact. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on January 19, 

2021. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2021–01537 Filed 3–1–21; 8:45 am] 

BILLING CODE 6714–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2020–0905; Project 

Identifier 2019–SW–102–AD; Amendment 

39–21384; AD 2021–02–01] 

RIN 2120–AA64 

Airworthiness Directives; Airbus 

Helicopters 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The FAA is superseding 

Airworthiness Directive (AD) 2015–26– 

01, which applied to certain Airbus 

Helicopters Model AS332C1, AS332L1, 

AS332L2, EC225LP, AS–365N2, AS 365 

N3, EC 155B, and EC155B1 helicopters 

with an energy-absorbing seat. AD 

2015–26–01 required inspecting for the 

presence of labels (placards) that 

prohibit stowing anything under the 

seat, and if a label (placard) is missing 

or not clearly visible to each occupant, 

installing a label (placard). This AD 

retains all of the requirements of AD 

2015–26–01, and also adds helicopters 

to the applicability and requires a 

modification (installing new labels 

(placards)). This AD was prompted by 

the determination that additional 

helicopters are affected by the unsafe 

condition, and that new labels 

(placards) are required for all affected 

helicopters. The FAA is issuing this AD 

to address the unsafe condition on these 

products. 

DATES: This AD is effective April 6, 

2021. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain publications listed in this AD 

as of April 6, 2021. 

The Director of the Federal Register 

approved the incorporation by reference 

of certain other publications listed in 

this AD as of January 26, 2016 (80 FR 

79466, December 22, 2015). 

ADDRESSES: For service information 

identified in this final rule, contact 

Airbus Helicopters, 2701 N Forum 

Drive, Grand Prairie, TX 75052; phone: 

972–641–0000 or 800–232–0323; fax: 

972–641–3775; or at https://

www.airbus.com/helicopters/services/ 

support.html. You may view this 

referenced service information at the 

FAA, Office of the Regional Counsel, 

Southwest Region, 10101 Hillwood 

Pkwy., Room 6N–321, Fort Worth, TX 

76177. For information on the 

availability of this material at the FAA, 

call 817–222–5110. It is also available 

on the internet at https://

www.regulations.gov by searching for 

and locating Docket No. FAA–2020– 

0905. 

Examining the AD Docket 

You may examine the AD docket on 

the internet at https://

www.regulations.gov by searching for 

and locating Docket No. FAA–2020– 

0905; or in person at Docket Operations 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

The AD docket contains this final rule, 

any comments received, and other 

information. The address for Docket 

Operations is U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Arrigotti, Aviation Safety 

Engineer, Large Aircraft Section, 

International Validation Branch, FAA, 

2200 South 216th St., Des Moines, WA 

98198; phone and fax: 206–231–3218; 

email: kathleen.arrigotti@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Discussion 

The FAA issued a notice of proposed 

rulemaking (NPRM) to amend 14 CFR 

part 39 to supersede AD 2015–26–01, 

Amendment 39–18349 (80 FR 79466, 

December 22, 2015) (AD 2015–26–01). 

AD 2015–26–01 applied to certain 

Airbus Helicopters Model AS332C1, 

AS332L1, AS332L2, EC225LP, AS– 

365N2, AS 365 N3, EC 155B, and 

EC155B1 helicopters with an energyabsorbing seat. The NPRM published in 

the Federal Register on October 7, 2020 

(85 FR 63240). The NPRM was 

prompted by the discovery that required 

labels (placards) prohibiting stowage of 

any object under an energy-absorbing 

seat had not been systematically 

installed and the determination that 

additional helicopters are affected by 

the unsafe condition, and that new 

labels (placards) are required for all 

affected helicopters. The NPRM 

proposed to continue to require 

inspecting for the presence of labels 

(placards) that prohibit stowing 

anything under the seat, and if a label 

(placard) is missing or not clearly 

visible to each occupant, installing a 

label (placard), and also proposed to 

add helicopters to the applicability and 

require a modification (installing new 

labels (placards)). The FAA is issuing 

this AD to address any object stowed 

under an energy-absorbing seat, which 

could reduce the efficiency of the 

energy-absorbing function of the seat, 


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