The National Credit Union Administration (NCUA) submitted a notice containing a general policy outline of its new approach to reporting criminally liable offenses to Office of Management and Budget (OMB) Director Russ Vought.
Among other things, the notice included a list of factors the NCUA plans to consider when determining whether to refer violations to the Department of Justice (DOJ) for criminal enforcement. These factors will include the following:
- the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense;
- the potential gain to the putative defendant that could result from the offense;
- whether the putative defendant held specialized knowledge, expertise, or was licensed in an industry related to the rule or regulation at issue; and
- evidence, if any is available, of the putative defendant's general awareness of the unlawfulness of his conduct as well as his knowledge or lack thereof of the regulation at issue.
The notice follows similar policy statements from the Consumer Financial Protection Bureau and the Federal Deposit Insurance Corp., stemming from Executive Order 14294, “Fighting Overcriminalization in Federal Regulations.” The order instructed federal agencies to develop formal processes for identifying and referring criminal regulatory offenses.
According to the notice, the NCUA will provide the OMB with a report containing: (1) a list of all criminal regulatory offenses enforceable by the NCUA or the DOJ; and (2) for each such criminal regulatory offense, the range of potential criminal penalties for a violation and the applicable mens rea standard for the criminal regulatory offense.
The report will be due to the OMB by May 9, 2026.