CUA brief indicates `fatal flaw' in NCRC CAP case

<p>WASHINGTON- Last week NCUA filed a legal brief in the National Community Reinvestment Coalition’s (NCRC’s) case against the agency regarding the repeal process of the agency’s Community Action Plan (CAP). NCRC filed suit in the U.S. District Court for the District of Columbia Circuit January 2 of this year charging that NCUA did not follow the Administrative Procedures Act (APA) in repealing this rule by skipping over a public comment period and issuing an interim final rule. An official final rule is expected to surface at NCUA’s April board meeting following a comment period. According to the brief filed by NCUA last week, NCRC bases its case on the fact that it would be injured by not having the information gleaned from the CAP for its own study. However, NCUA said that it never intended to make the information available to the public, which is the charge’s “fatal flaw.” NCUA contends these records are exempted from Freedom of Information Act disclosure because they “contain trade secrets and commercial or financial information which relate to the business, personal or financial affairs of any person or organization, are furnished to NCUA, and are confidential or privileged.” 12 C.F.R. 792.11(a)(4). “Also included are records `[c]ontained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of NCUA or any agency responsible for the regulation or supervision of financial institutions.’” 12 C.F.R. 792.11(a)(8). Therefore, NCUA claims that NCRC has no standing to bring the case against NCUA and asked for its dismissal. Additionally, the agency’s brief pointed out that a Federal agency may skip a notice and comment period “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). In its interim rule, NCUA explained why the procedures were disposed of, saying, “The NCUA Board is issuing this amendment to its chartering regulation as an interim final rule because it removes a burdensome regulation. The Board believes that [this] action [is] necessary and in the public interest because of the recent and sudden increase in credit union asset growth and the current uncertainty in the national economy. Furthermore, the Board believes the amendments further the public interest in removing a potentially costly and unnecessary regulatory burden and promotes the efficient use of agency resources and staff.” 66 Fed. Reg. at 65626. NCUA thus saved community chartered credit unions from working on CAP compliance issues rather than their own stability in an uncertain economy. The CAP would have required community chartered credit unions to address in its business plan exactly how it planned to market to the entire community. NCRC has requested that the court declare NCUA in violation of the APA and that the interim final rule issued on December 20, 2001 repealing the CAP void. The organization also asks that affected credit unions be directed to comply with the CAP within 11 days of a court decision for the plaintiff, as well as payment of costs and attorneys’ fees. The lawsuit names NCUA as well as Chairman Dennis Dollar as defendants. U.S. District Court Judge Henry H. Kennedy Jr. is overseeing the case. NAFCU and CUNA will file a joint amicus curiae brief supporting the agency’s action following the NCUA board’s April 18 meeting. [email protected]</p>