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As expected, the American Bankers Association (ABA) filed notice of its intention to appeal its rejected, lower court challenge of provisions of NCUA's new Chartering Manual in the U.S. Circuit Court of Appeals for the District of Columbia Circuit here May 24. The multiple-count suit, which had all counts but one dismissed (later dropped by ABA to expedite appeal) by the U.S. District Court for the District of Columbia March 30, concerns ABA claims that NCUA exceeded its statutory authority in its development of various FOM rules implementing the CU Membership Access Act (H.R. 1151). Among the Chartering Manual provisions that ABA (and the Independent Community Bankers of America (ICBA)) challenged in district court is the NCUA rule governing voluntary mergers of healthy FCUs; agency consideration of SEG applicants' lack of "desire" to form their own FCU in the over-3,000 potential member exemption process; and the rule's exemption of "immediate family and household members" in formulas used to determine if applicant SEG groups exceed statutory caps. The ABA notice must now be followed by a full appeal brief in the case, which need not be filed until late July. The ICBA, which did not join in the ABA's filing, is still considering joining the appeal. *
In a recent letter to the NCUA Board, NAFCU President Fred Becker, jr. has urged NCUA to forgo the time-consuming proposed rulemaking process for implementing its impending FOM Task Force report recommendations and immediately issue the presumed FCU-friendly recommendations as an interim final rule. The presumed CU-friendly report (see related story, page 1) is scheduled to be submitted to the NCUA Board at its June 6 regular meeting. Becker said the agency could justify the action under exceptions to the controlling Administrative Procedures Act (APA), and he cited NCUA interim final rules on member business lending and CUSOs as precedents for his proposal. Quoting the APA, Becker said the agency could invoke the exception if, "for good cause," it found that "notice and public procedure...are impracticable, unnecessary or contrary to the public interest." He maintained that such conditions apply to the present FOM circumstance, for under the current FOM manual's SEG application requirements, "many federal credit unions have had difficulty serving their members...." He said that such conditions represent "a threat to the very existence of these credit unions." As a result, Becker said, "a significant public interest exists" that would justify invoking the interim final rule exception. *
Gratified with the recent passage of the Civil Asset Forfeiture Reform Act-a law that shifts the burden of proof from the individual to the government in cases where an individual's assets, suspected of being linked to criminal activity, could be seized-House Judiciary Committee Chairman Henry Hyde (R-Ill.) commended both CUNA lobbyists in general and CUNA Vice President, Legislative Affairs John McKechnie in particular for their help. In his May letter to CUNA President Dan Mica, Hyde wrote, "I have been pursuing civil asset forfeiture reform since 1993, and this bill is one of my proudest legislative achievements. The assistance of the Credit Union National Association, and especially the hard work of John McKechnie, was a crucial factor in the bill's successful enactment." -
gmcorrigan@mindspring.com
