This information is courtesy of AFR member the National Consumer Law Center:

In the debate over the Consumer Financial Protection Agency (CFPA), some have argued that an independent CFPA might issue rules that jeopardize bank safety and soundness.

However, as with other agencies whose actions to protect public safety can have an impact on important industries, the Administrative Procedure Act (APA) ensures that the CFPA will properly consider bank safety and soundness.

The CFPA bill requires the agency to consider the impact of a rule on safety and soundness. The APA also requires the agency to take seriously any significant concerns raised in comments on its proposed rules. If the agency fails in either task, and issues a rule without adequately considering serious impacts on safety and soundness, the rule will be challenged and will be subject to judicial reversal under the APA.

Rulemaking and Judicial Review Under the APA

The APA permits agencies to issue rules only after “consideration of the relevant matter presented” by interested parties.1 An affected party can challenge a rule, and the reviewing court can set it aside if, among other grounds, the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;” or “without observance of procedure required by law.”2
Court decisions over the years have made these provisions “extremely demanding”: “To have any reasonable prospect of obtaining judicial affirmance of a major rule, an agency must… respond[] to all major criticisms contained in the comments on its proposed rule.”3 It is not merely a matter of a perfunctory response:

“If a comment criticizes in detail some characteristic of the agency’s proposed rule, …and the agency retains that characteristic in the final rule without including in its statement of basis and purpose a relatively detailed response to that criticism, a reviewing court is likely to hold the rule unlawful on the grounds that the statement of basis and purpose is inadequate and the rule is arbitrary and capricious.”4

1 5 U.S.C. § 553(c).
2 5 USC §§ 706(2)(A), (C), (D).
3 Richard J. Pierce, Jr. Administrative Law Treatise, Vol. I at 593 (5th ed. 2010).
4 Id. at 594.