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<p>ALEXANDRIA, Va.-NCUA filed a memo recently in support of its motion to dismiss following the rebuttal brief of the National Community Reinvestment Coalition (NCRC). The Department of Justice on behalf of the NCUA filed a motion to dismiss the lawsuit brought by NCRC alleging that the agency’s actions in repealing the Community Action Plan (CAP) were in violation of the Administrative Procedures Act. NCUA explained that after a 60-day comment period following the interim final rule, the board approved on April 18 an official final rule repealing CAP effective May 24. “In issuing this final rule, the NCUA considered the 428 comments received in response to its solicitation for comments in the interim final rule.Of these comments, 415 supported the elimination of the CAP requirement, and only 12 favored its reinstatement,” the brief read. NCUA pointed out that this result was similar to the response when the proposed rule came out in June 2000 with only seven commenters in favor of CAP and 423 opposed. “In any event the NCUA’s repeal of the CAP requirement through notice-and-comment rulemaking cures any procedural deficiency that may have existed prior to issuance of the April 24, 2002 final rule, and renders plaintiff’s lawsuit moot.” NCRC is simply chasing its own tail, according to the DOJ brief. Even if the group won the suit, NCUA would only go through notice and comment a third time and most likely repeal the rule again. The DOJ brief highlighted that the D.C. Circuit once ruled that “defects” in an agency’s rulemaking can be cured by subsequent notice and comment rulemaking (Center for Science in the Public Interest v. Regan 727 F.2d 1161,1164(D.C. Cir. 1984)). NCUA also argued that NCRC lacks standing to bring the case because they failed to prove injury. Again, NCUA said business and marketing plans are covered by Freedom of Information Act (FOIA) exemptions 4 and 8. The NCRC statement in its last brief that much of the information that would have been in CAP is already available from other sources only serves to undercut their claim. The agency also reiterated its claim that the NCRC lacks standing and that NCUA had `good cause’ to dispense with notice and comment procedures. The brief also said that CAP was “insignificant in nature and inconsequential to the industry and the public” and the board simply maintained the status quo. NCUA claimed it merely used the interim final rule repealing CAP to study the issue further. -</p> <p>[email protected]</p>

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