Today, CUNA filed a comment letter in support of an
interagency proposal to codify a 2018 Statement on the role of supervisory
guidance. By codifying the Statement, the proposed rule is intended to confirm
that the federal financial regulatory agencies will continue to follow and
respect the limits of administrative law in carrying out their 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.
We believe it is critical that the NCUA appreciate the
significant differences between regulation and guidance. 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.
It is important that the NCUA refrain from using supervisory
guidance as a basis for an adverse finding during an examination. Examiners
must clearly identify where a requirement or prohibition is in an established
law or regulation. With that said, we urge the NCUA to continue examiner
engagement in productive discussions with credit union staff regarding
supervisory guidance.