Amer Bnkr Assn v. Natl Crdt Un Admin ( 2001 )


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  •                   United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued September 5, 2001   Decided November 9, 2001
    No. 00-5195
    American Bankers Association,
    Appellant
    v.
    National Credit Union Administration, et al.,
    Appellees
    Appeal from the United States District Court
    for the District of Columbia
    (No. 99cv00042)
    Eric Mogilnicki argued the cause for appellant.  With him
    on the briefs were Christopher R. Lipsett, Jonathan M.
    Mastrangelo, John J. Gill and Michael F. Crotty.  Kimberly
    A. Parker entered an appearance.
    Michael E. Robinson, Attorney, U.S. Department of Jus-
    tice, argued the cause for appellees.  With him on the brief
    were Kenneth L. Wainstein, U.S. Attorney, Jacob M. Lewis,
    Attorney, U.S. Department of Justice, and John K. Ianno,
    Counsel, National Credit Union Administration.
    William J. Donovan, David M. Cherubin, Paul J. Lam-
    bert, Gerard P. Finn and Robert M. Krasne were on the joint
    brief for intervenors-appellees Credit Union National Associ-
    ation, National Association of Federal Credit Unions, and
    State Employees Federal Credit Union.  Theodore W. Ruger
    and Peter S. Leyton entered appearances.
    Before:  Randolph, Rogers and Tatel, Circuit Judges.
    Opinion for the Court filed by Circuit Judge Tatel.
    Tatel, Circuit Judge:  The American Bankers Association
    challenges a National Credit Union Administration rule gov-
    erning chartering and membership standards for federal
    credit unions.  According to the ABA, the rule violates the
    Credit Union Membership Access Act of 1998, pursuant to
    which the Administration issued the rule.  Except for one
    claim that we dismiss as moot and another as unripe, we find
    the ABA's arguments without merit and affirm the district
    court's dismissal of the case.
    I.
    The Federal Credit Union Act (FCUA), 12 U.S.C. ss 1751-
    1795k, provides for the establishment of federal credit unions
    and governs their operations.  A credit union is a "coopera-
    tive association organized in accordance with the provisions of
    [the FCUA] for the purpose of promoting thrift among its
    members and creating a source of credit for provident or
    productive purposes."  Id. s 1752(1).  The National Credit
    Union Administration "may prescribe rules and regulations
    for the ... administration of the [FCUA]," id. s 1766(a), and
    charters, examines, and supervises federal credit unions, see
    id. ss 1753, 1754, 1756.
    As originally enacted, the FCUA limited credit union mem-
    bership to "groups having a common-bond of occupation or
    association, or to groups within a well-defined neighborhood,
    community, or rural district."  FCUA, Pub. L. No. 73-467,
    s 9, 
    48 Stat. 1216
    , 1219 (1934) (codified at former 12 U.S.C.
    s 1759 (amended 1998)).  Starting in 1982, the Administra-
    tion began permitting multiple occupational groups, i.e.,
    groups with different common bonds, to combine into one
    "multiple common-bond credit union."  Interpretative Ruling
    and Policy Statement (IRPS) 82-1, 
    47 Fed. Reg. 16,775
    ,
    16,775 (Apr. 20, 1982).  In 1998, the Supreme Court, affirm-
    ing a decision of this court, held that the FCUA prohibited
    such credit unions.  See Nat'l Credit Union Admin. v. First
    Nat'l Bank & Trust Co., 
    522 U.S. 479
    , 499-501 (1998).  Later
    that year, however, Congress overruled the Supreme Court,
    amending the FCUA to authorize multiple common-bond
    credit unions.  Credit Union Membership Access Act, Pub. L.
    No. 105-219, s 2, 
    112 Stat. 913
    , 914-15 (1998) (amending 12
    U.S.C. s 1759(b)).
    As amended, the FCUA permits three types of credit
    unions, each defined by a different "membership field":  sin-
    gle common-bond credit unions, comprised of one group
    having a common occupational or associational bond;  multiple
    common-bond credit unions, comprised of more than one such
    group;  and community credit unions.  12 U.S.C.
    s 1759(b)(1)-(3).  Pursuant to what the parties call a "grand-
    father clause," the FCUA exempts certain previously existing
    "members and groups" from the new membership field provi-
    sions.  
    Id.
     s 1759(c)(1).  The FCUA also imposes several
    limitations and conditions on multiple common-bond credit
    union formation and growth, including:  (1) restricting multi-
    ple common-bond credit unions to groups with less than 3,000
    members, 
    id.
     s 1759(d)(1), unless certain exceptions apply,
    including where a larger group "could not feasibly or reason-
    ably" form its own credit union, 
    id.
     s 1759(d)(2)(A);  (2)
    directing that the Administration "encourage" a group seek-
    ing to join an existing credit union to form its own separately
    chartered credit union instead, 
    id.
     s 1759(f)(1)(A);  (3) requir-
    ing that in order to be added to an existing credit union a
    group be within "reasonable proximity" of that credit union,
    
    id.
     s 1759(f)(1)(B);  and (4) requiring that where an existing
    credit union seeks to include an additional group, the credit
    union must satisfy certain "approval criteria" concerning its
    financial soundness and administrative capabilities, and that
    any harmful effect the expansion will have on any other credit
    union must be "clearly outweighed in the public interest by
    the probable beneficial effect of the expansion," 
    id.
    s 1759(f)(2).  Finally, the 1998 Amendments added the word
    "local" to the community credit union definition, thus confin-
    ing such credit unions to "well-defined local communit[ies],
    neighborhood[s], or rural district[s]."  
    Id.
     s 1759(g)(1).
    Following notice and comment, the Administration issued a
    final rule implementing the 1998 Amendments.  See IRPS
    99-1, 
    63 Fed. Reg. 71,998
     (Dec. 30, 1998).  Several of the
    rule's provisions regarding multiple common-bond credit un-
    ions are at issue in this case.  First, although the rule allows
    the immediate family and household of a group member, as
    well as "[p]ersons retired as pensioners and annuitants," to
    join the group's multiple common-bond credit union, the rule
    does not count these persons toward the 3000-member limit.
    Id. at 72,002, 72,037.  Second, in determining whether a
    group with 3000 or more members "could not feasibly or
    reasonably" form its own credit union, 12 U.S.C. s 1759(d)(2),
    the Administration considers the group's "desire and intent,"
    63 Fed. Reg. at 72,002.  Third, while the rule requires groups
    with 3000 or more members to "demonstrate why they cannot
    satisfactorily form a separate credit union if they want to be
    added to another credit union," it requires groups with fewer
    than 3000 members to "demonstrate why they can successful-
    ly operate a credit union" in order to be separately chartered.
    Id. at 72,001.  Fourth, the rule permits healthy multiple
    common-bond credit unions comprised of groups with fewer
    than 3000 members to merge with each other "without regard
    to the statutory analysis that is required when [such groups]
    ... seek to join an existing credit union."  Id. at 72,003.
    Also at issue in this case are the rule's provisions imple-
    menting the FCUA's grandfather clause, "reasonable proxim-
    ity" requirement, and "well-defined local community" stan-
    dard.  See 63 Fed. Reg. at 71,998, 72,003, 72,015, 72,037-38.
    Under the rule, the grandfather clause covers not just indi-
    viduals who were members of a group at the time the FCUA
    was amended, but also those who subsequently become mem-
    bers of the group.  Id. at 72,015.  The rule provides that a
    group is within "reasonable proximity" of a credit union if it is
    within the "service area of a service facility of the credit
    union";  a service facility includes a "credit union owned
    electronic facility" other than an automated teller machine.
    Id. at 72,002-03.  Finally, the rule establishes criteria to
    implement the statute's "well-defined local community" stan-
    dard and adopts a presumption that certain areas, defined by
    political jurisdiction and population, meet that standard.  Id.
    at 72,037-38.
    Alleging that these provisions of the rule violate the FCUA,
    appellant, the American Bankers Association (ABA), filed suit
    in the United States District Court for the District of Colum-
    bia pursuant to the Administrative Procedure Act.  See 5
    U.S.C. s 706.  Underlying all of the ABA's claims is its belief
    that the rule is too permissive with respect to credit union
    formation and growth.  Except for the provision regarding
    pensioners, which the district court found the ABA's amended
    complaint failed to challenge, the district court concluded that
    each of the challenged provisions reflects a reasonable inter-
    pretation of the FCUA and dismissed the amended complaint
    pursuant to Federal Rule of Civil Procedure 12(b)(6).
    Renewing the arguments it made in the district court, the
    ABA appeals.  Three organizations representing credit un-
    ions intervened to defend the rule.  We review the district
    court's Rule 12(b)(6) dismissal de novo.  See, e.g., Brown v.
    Plaut, 
    131 F.3d 163
    , 167 (D.C. Cir. 1997).
    II.
    Before considering the merits of the ABA's claims, we must
    deal with its preliminary argument that the district court
    erred by failing to direct the Administration to produce the
    administrative record.  According to the ABA, the district
    court needed the administrative record in order to consider
    its "claims under the APA, challenging NCUA's rule and
    certain expansions on the ground that the agency's actions
    were 'arbitrary, capricious, an abuse of discretion, or other-
    wise not in accordance with the law.' "  Appellant's Opening
    Br. at 17 (quoting amended complaint).  Having reviewed the
    amended complaint, however, we agree with the district court
    that the ABA's argument that the challenged provisions
    violate the FCUA can be resolved with nothing more than the
    statute and its legislative history.  See Am. Bankers Ass'n v.
    Nat'l Credit Union Admin., 
    93 F. Supp. 2d 35
    , 48-49 (D.D.C.
    2000);  see also Sierra Club v. United States Fish & Wildlife
    Serv., 
    245 F.3d 434
    , 440 n.37 (5th Cir. 2001) ("Although the
    administrative record for the regulation is not before this
    Court, that is of no moment.  Our review is limited to
    interpreting the extent to which the regulation is consistent
    with the statute--a task which we are competent to perform
    without the administrative record.") (citing INS v. Cardoza-
    Fonseca, 
    480 U.S. 421
    , 447 (1987)).  Although the ABA now
    hints that it also asserted a challenge to the Administration's
    rule-making process, we can find no such claim in the amend-
    ed complaint.  Nor, and again contrary to what the ABA
    says, can we find any challenge to the manner in which the
    Administration has applied the rule in specific cases that does
    not depend entirely on the argument that the rule itself
    violates the statute.  Should the ABA have concerns about
    the Administration's application of the rule to specific cases, it
    remains free to bring an as-applied challenge.
    Because the ABA argues that the provisions of the rule it
    challenges violate the FCUA, a statute the Administration is
    charged with enforcing, we proceed in accordance with Chev-
    ron's familiar two-part test.  See Chevron U.S.A., Inc. v.
    Natural Res. Def. Council, Inc., 
    467 U.S. 837
     (1984).  Al-
    though Chevron step one analysis begins with the statute's
    text, we must not "confine [ourselves] to examining a particu-
    lar statutory provision in isolation.  The meaning--or ambi-
    guity--of certain words or phrases may only become evident
    when placed in context."  FDA v. Brown & Williamson
    Tobacco Corp., 
    529 U.S. 120
    , 132 (2000).  We must also
    "exhaust the traditional tools of statutory construction," Nat-
    ural Res. Def. Council, Inc. v. Browner, 
    57 F.3d 1122
    , 1125
    (D.C. Cir. 1995) (internal quotation marks and citation omit-
    ted), including examining the statute's legislative history to
    "shed new light on congressional intent, notwithstanding stat-
    utory language that appears superficially clear," 
    id. at 1127
    (internal quotation marks and citation omitted).  And, of
    course, "we must be guided to a degree by common sense as
    to the manner in which Congress is likely to delegate a policy
    decision ... to an administrative agency."  Brown & Wil-
    liamson, 
    529 U.S. at 121
    .  If, applying these principles, we
    find that "Congress has directly spoken to the precise ques-
    tion at issue ... that is the end of the matter;  for the court,
    as well as the agency, must give effect to the unambiguously
    expressed intent of Congress."  Chevron, 
    467 U.S. at 842-43
    .
    Only if we find the statute either silent or ambiguous with
    respect to "the precise question at issue" do we proceed to
    Chevron's second step, asking "whether the agency's answer
    is based on a permissible construction of the statute."  Chev-
    ron, 
    467 U.S. at 842-44
    .  But not in this case.  Although the
    district court resolved all issues on the basis of Chevron step
    two analysis, Am. Bankers, 
    93 F. Supp. 2d at 40
    , the ABA
    rests its appeal entirely on Chevron step one.  Throughout its
    opening brief, the ABA uses only Chevron step one language:
    "the District Court misapplied Chevron ... by upholding
    actions that are contrary to the clearly expressed intent of
    Congress," Appellant's Opening Br. at 11;  "the language of
    the FCUA expressly rejects NCUA's policy choice," id. at 26;
    "Congress makes plain," id.;  "it is clear that Congress did
    not intend," id. at 28;  "[the Administration] decided it could
    evade the plain meaning of [the statute]," id. at 29;  "[the rule
    is unlawful] as a matter of simple English," id. at 35.  More-
    over, the brief never uses the word "unreasonable" nor any
    other language suggesting a Chevron step two argument.
    Even after the Administration and Intervenors responded
    with Chevron step one and two defenses, the ABA confined
    its reply brief to straightforward Chevron step one argu-
    ments:  "policy considerations cannot trump the clearly ex-
    pressed intent of Congress," Appellant's Reply Br. at 7;  "[the
    Administration's] argument is contrary to the plain lan-
    guage," id. at 9;  "Congress did express an intent," id. at 12;
    "there is no basis to believe that Congress's concern did not
    apply," id. at 14.  Accordingly, we will evaluate the ABA's
    claims under Chevron step one standards alone.
    We begin with the ABA's challenge to the Administration's
    method for calculating the size of a common-bond group.
    Under the statute, the "membership field" of a multiple
    common-bond credit union is limited to groups comprised of
    persons sharing a common bond, 12 U.S.C. s 1759(b)(2), and
    "only a group with fewer than 3,000 members shall be eligible
    to be included in the field of membership category of a
    [multiple common-bond] credit union...."  12 U.S.C.
    s 1759(d)(1).  Under the rule, the Administration counts only
    "primary potential members," 63 Fed. Reg. at 72,000, 72,002,
    i.e., persons sharing the occupational or associational bond
    that defines the group, toward the 3000-member limit.  Al-
    though "by virtue of their close relationship to a common-
    bond group," certain other persons "may be included ... in
    the field of membership" of a common-bond credit union--
    that is, they may join the credit union--such persons are not
    counted toward the 3000-member limit.  Id. at 72,037.  These
    persons include immediate family and household members of
    primary potential members, as well as pensioners and annui-
    tants.  Id.  We consider each category in turn.
    Family Members
    Calling the rule's failure to count family members toward
    the 3000-member limit a "serious misreading of the Act,"
    Appellant's Opening Br. at 21, the ABA argues that individu-
    als are eligible to join a common-bond credit union only if
    they share the common bond.  Therefore, the ABA claims, if
    family members are eligible for common-bond credit union
    membership, then they are necessarily group members and
    must be counted.  The ABA also points out that subsection
    1759(c) contains two "[e]xceptions" to subsection (b), the
    "membership field" provision--one for "grandfathered mem-
    bers and groups" and another for "underserved areas"--
    neither of which pertains to family and household members.
    12 U.S.C. s 1759(c).
    The ABA focuses too narrowly.  Subsection 1759(b) ex-
    pressly states that it is "subject to the other provisions of
    [Section 1759]," 12 U.S.C. s 1759(b), and section 1759 con-
    tains a provision relating to family and household members:
    the "Additional membership eligibility provisions," 12 U.S.C.
    s 1759(e).  This subsection states:
    No individual shall be eligible for membership in a credit
    union on the basis of the relationship of the individual to
    another person who is eligible for membership in the
    credit union, unless the individual is a member of the
    immediate family or household ... of the other person.
    12 U.S.C. s 1759(e)(1).  Though phrased as a limitation,
    subsection 1759(e) links credit union membership eligibility
    for family and household members to the personal relation-
    ship between such persons and group members (or other
    persons eligible for credit union membership), rather than to
    group membership.  Moreover, the fact that this provision
    speaks of individuals' eligibility for credit union membership,
    while the 3000-member limit provision, 12 U.S.C.
    s 1759(d)(1), speaks of "group ... eligibil[ity] to be included
    in ... a [multiple common-bond] credit union," indicates that
    credit union members and group members do not entirely
    overlap. Under these circumstances, we have no basis for
    concluding that the FCUA unambiguously requires the Ad-
    ministration to count family and household members toward
    the 3000-member limit.
    The ABA insists that "the history of the statute" supports
    its view that section 1759(e)(1) provides no basis for family
    and household credit union membership eligibility other than
    sharing the common bond.  Appellant's Opening Br. at 21.
    Specifically, it argues that prior to the 1998 Amendments, the
    Administration treated family and household members as
    part of the common-bond group, and that in the district court
    the Administration conceded that Congress "merely 'endorsed
    the agency's longstanding policy' " regarding these persons.
    Appellant's Opening Br. at 21-22 (quoting Admin. Mem. In
    Supp. Motion to Dismiss at 51 (internal quotation marks and
    citation omitted)).  Although the ABA cites some evidence
    that supports this characterization of the Administration's
    prior policy, see 
    44 Fed. Reg. 43,737
    , 43,739 (July 26, 1979)
    (proposed rule characterizing family members as "additional
    persons [who] ... share a common bond with the basic
    group") (cited in Appellant's Opening Br. at 21-22), other
    evidence indicates that the matter is not so clear.  For
    example, a 1994 Final Interpretive Ruling and Policy State-
    ment describes family members as "secondary or derivative"
    members included in the field of membership "by virtue of
    their close relationship to a common bond group."  
    59 Fed. Reg. 29,066
    , 29, 093 (June 3, 1994) (cited in Intervenors' Br.
    at 13 n.6).  Such conflicting evidence cannot clarify ambigu-
    ous statutory language.  See Ayuda, Inc. v. Thornburgh, 
    880 F.2d 1325
    , 1345 (D.C. Cir. 1989) ("[E]ither the plain language
    of the statute must be clear, or the legislative history and
    design of the act must illustrate a specific intent despite
    arguably ambiguous statutory language.") (citations omitted),
    vacated on other grounds, 
    498 U.S. 1117
     (1991).
    Pensioners
    Unlike the FCUA's express provision for family and house-
    hold members, the statute never mentions pensioners or
    annuitants.  According to the ABA, this silence means that its
    argument that anyone eligible for multiple common-bond
    credit union membership must be counted toward the 3000-
    member limit applies even more forcefully in the case of
    pensioners.  The district court concluded that the ABA had
    failed to raise this claim because the amended complaint
    mentions only family and household members in the relevant
    count.  Am. Bankers, 
    93 F. Supp. 2d at
    41 n.3.  We agree.
    In its original complaint, the ABA made only one allegation
    with respect to the Administration's method for calculating
    common-bond group size:  that the rule unlawfully fails to
    count family and household members.  See Complaint p p 40-
    42.  The complaint never mentioned pensioners.  In its
    amended complaint, the ABA continues to focus on family
    members, although pensioners are mentioned.  The amended
    complaint describes how the rule permits certain persons
    whom the Administration does not count as group members--
    "persons in the immediate families or households of the credit
    unions [sic] members;  pensioners and annuitants of a quali-
    fied business;  spouses of persons who died when in the credit
    union's field of membership;  and employees of the credit
    union"--to be eligible for credit union membership, Amended
    Complaint p 24, and alleges that "if the persons listed in [this]
    section of the rule ... do not share the common bond, then
    they cannot be eligible for membership in a common-bond
    credit union," id. p 28.  The amended complaint further alleg-
    es that the Administration's approval of a certain credit
    union's application to add an occupational common-bond
    group violated the statute because the Administration failed
    to count "members of the employees' immediate families,
    persons [who] retired as pensioners or annuitants ... and
    [s]pouses of persons who died" as group members.  Id. p 27
    (internal quotation marks omitted).  Like the original com-
    plaint, however, the amended complaint challenges only the
    failure to count family and household members.  For exam-
    ple, immediately after describing the rule's failure to count
    pensioners and annuitants, among others, the amended com-
    plaint alleges that the rule is unlawful because it "excludes
    family members" and "counts only ... primary members."
    Id. p p 25, 26 (internal quotation marks omitted).  Likewise,
    Count One objects to the rule's failure to count "certain
    members of the common bond, including family and house-
    hold members," id. p 69;  neither Count One nor any of the
    other sixteen counts mentions pensioners.  Under these cir-
    cumstances, we doubt the Administration could have known
    that the ABA intended to challenge the rule's application to
    pensioners and annuitants.  See Fed. R. Civ. P. 8(a)(2);
    Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957) (setting forth notice
    pleading rule).
    III.
    The FCUA's grandfather clause provides:  "(i) any person
    or organization that is a member of any Federal credit union
    as of August 7, 1998 may remain a member of the credit
    union after August 7, 1998";  and "(ii) a member of any group
    whose members constituted a portion of the membership of
    any Federal credit union as of August 7, 1998 shall continue
    to be eligible to become a member of that credit union, by
    virtue of membership in that group after August 7, 1998."  12
    U.S.C. s 1759(c)(1)(A)(i) and (ii).  The Administration inter-
    prets the grandfather clause to permit persons who are
    members of a group that was part of a credit union as of
    August 7, 1998, the date the 1998 Amendments were enacted,
    to join the credit union even if they didn't become group
    members until after that date.  See 63 Fed. Reg. at 72,015
    (grandfather provision applies to "a member, or subsequent
    new member, of any group, whose membership constituted a
    portion of the membership of any federal credit union at the
    date of enactment").  Disagreeing, the ABA argues that the
    clause's plain language permits only persons who were group
    members as of August 7, 1998, to join because only they could
    "continue to be eligible" to become credit union members.  12
    U.S.C. s 1759(c)(1)(A)(ii).
    The ABA's interpretation is certainly plausible.  But when
    we read the grandfather clause in its entirety, as we must, see
    Brown and Williamson, 
    529 U.S. at 120
     (noting that statuto-
    ry words and phrases should be read in context), its meaning
    is not so clear.  The grandfather clause's first part--referring
    to "a member of any group whose members constituted a
    portion of the membership of any Federal credit union as of
    August 7, 1998," 12 U.S.C. s 1759(c)(1)(A)(ii)--suggests, as
    the Administration argues, that its scope turns not on wheth-
    er the individual was a group member as of August 7, 1998,
    but on whether the group was part of a credit union as of that
    date. Indeed, if individuals needed to be group members on
    the date the FCUA was amended, the phrase "as of August 7,
    1998" would follow the words "a member of any group."
    According to the ABA, the Administration's interpretation
    of the grandfather clause "has the effect of reading the word
    'continue' out of the statute."  Appellant's Reply Br. at 16.
    We disagree. The Administration plausibly interprets this
    word to refer to any member of a group that was part of a
    credit union as of August 7, 1998.  To use the statute's
    language, if a group's "members constituted a portion of the
    membership of any federal credit union as of August 7, 1998,"
    12 U.S.C. s 1759(c)(1)(A)(ii), then the group's members,
    whether they became members before or after August 7,
    1998, shall "continue" to be eligible for credit union member-
    ship.
    Faced with two plausible interpretations of the grandfather
    clause, we may examine its legislative history, see Browner,
    
    57 F.3d at 1126-29
     (considering legislative history at Chevron
    step one), and that history definitively resolves the debate
    over the grandfather clause's meaning in the Administration's
    favor.  The House Report explains that the "broad grandfa-
    ther" clause "covers all persons or organizations or successors
    who were members of a federal credit union on the date of
    enactment of this Act, as well as anyone who is or becomes a
    member of a group representing a portion of the credit
    union's membership," H.R. Rep. No. 105-472, at 19 (1998),
    and "[the provision] grandfathers all current members as well
    as current groups contained within the membership of a
    credit union as of the date of enactment of this legislation.
    The grandfather [provision] will permit such groups to contin-
    ue accepting new members," id. at 11.  The Senate Report
    makes the same point, stating that the clause includes "all
    current members as well as current groups....  The grand-
    father provision also permits such groups to continue adding
    new members."  S. Rep. No. 105-193, at 3-4 (1998).  As the
    district court put it, this legislative history is "pellucid" on the
    issue.  Am. Bankers Ass'n v. Nat'l Credit Union Admin., 
    38 F. Supp. 2d 114
    , 134 (D.D.C. 1999).
    IV.
    The ABA's next challenge focuses on the FCUA's require-
    ment that in order for a group to be added to a credit union,
    the group must be within "reasonable proximity" of that
    credit union.  12 U.S.C. s 1759(f)(1)(B).  The rule defines
    "reasonable proximity" as "within the service area of a service
    facility of the credit union."  63 Fed. Reg. at 72,002.  Al-
    though the rule defines a "service facility" as "a credit union
    owned electronic facility" at which the credit union member is
    "able to deposit funds, apply for a loan, and obtain funds on
    approved loans," the rule "excludes ... ATMs."  Id. at
    72,003.  Claiming that an "electronic facility" is similar to an
    ATM, and that the legislative history of the 1998 Amend-
    ments shows that "Congress did not intend for devices similar
    to ATMs to be considered 'service facilities,' " Appellant's
    Opening Br. at 37, the ABA argues that the Administration's
    definition violates the statute.  Defending its rule, the Admin-
    istration argues that the legislative history deals with the
    term "facility" in the context of a different statutory provi-
    sion, that Chevron step two applies because the FCUA no-
    where defines "reasonable proximity," and that the agency's
    interpretation is reasonable.
    Although the parties obviously feel strongly about this
    issue--they devoted nine pages of briefing to it--not one has
    identified an "electronic facility" that is not also an ATM.
    The rule doesn't define "electronic facility";  the briefs never
    define it;  and when asked at oral argument, neither counsel
    could define it, much less tell us whether non-ATM electronic
    facilities even exist.  Under these circumstances, this issue is
    plainly unripe for judicial review.  See Abbott Labs. v. Gard-
    ner, 
    387 U.S. 136
    , 148-49 (1967) (ripeness requires that issue
    be fit for judicial decision);  Louisiana Envtl. Action Network
    v. United States Envtl. Prot. Agency, 
    172 F.3d 65
    , 69 (D.C.
    Cir. 1999) (issue not fit for judicial decision where its "[c]on-
    sideration ... would benefit from a more concrete setting").
    V.
    The ABA raises several other challenges to the rule's
    provisions governing multiple common-bond credit unions.
    None has merit.
    First, the ABA argues that the Administration's criteria for
    determining when a group with 3000 or more members "could
    not feasibly or reasonably establish a new single common-
    bond credit union," 12 U.S.C. s 1759(d)(2)(A), and may there-
    fore join an existing credit union, violate the FCUA because
    the Administration considers the group's "desire and intent"
    to be "[i]mportant" and "key" in this analysis, 63 Fed. Reg. at
    72,002, 72,010.  According to the ABA, the statutory phrase
    "feasibly or reasonably" requires the Administration to deter-
    mine independently whether the group could operate its own
    credit union, but the rule "essentially ... allows the group
    itself to decide whether it will be allowed to join an existing
    credit union."  Appellant's Opening Br. at 25.  The rule
    specifies, however, that "the intent of the group ... [is] not
    the sole factor[ ].  The final decision must be based on an
    independent regulatory analysis in consideration of the re-
    maining factors in the regulation." 63 Fed. Reg. at 72,002
    (emphasis added).  Those remaining factors include "the vol-
    unteers and resources to support the efficient and effective
    operations of the credit union, whether the group meets the
    economic advisability criteria and the demographics of the
    group."  Id. at 72,010.
    Second, the ABA challenges the portion of the rule that
    permits voluntary mergers between healthy multiple com-
    mon-bond credit unions comprised of groups with fewer than
    3000 members "without regard to the statutory requirements
    for non-affiliated groups of [this size] ... seeking to join an
    existing credit union."  63 Fed. Reg. at 72,003.  These re-
    quirements, which apply to multiple common-bond credit
    union "expansions," include a provision directing the Adminis-
    tration to "encourage the formation of separately chartered
    credit unions," the "reasonable proximity" requirement, and
    the "approval criteria" for credit unions seeking to include
    new groups.  12 U.S.C. s 1759(f).  The ABA argues that
    these requirements "apply on their face whenever a credit
    union seeks to expand its field of membership by adding new
    groups--including when it does so through merger."  Appel-
    lant's Opening Br. at 30.  This argument suffers from an
    obvious defect:  Several of the requirements set forth in the
    "expansions" subsection make no sense in the case of merg-
    ers.  For example, how can the Administration "encourage
    the formation of separate credit unions," since mergers, by
    definition, bring together already-formed credit unions?  Or
    why would Congress have written the "approval criteria" in
    the singular--"the credit union has not engaged in any unsafe
    or unsound practice," "is adequately capitalized," and "has the
    administrative capability ... and the financial resources ...
    to serve the new membership group," 12 U.S.C.
    s 1759(f)(2)--if it had intended them to apply to mergers of
    two credit unions?  Contrary to the ABA's argument, there-
    fore, subsection 1759(f) does not unambiguously apply to
    mergers.
    Third, the ABA challenges the requirement that groups
    with fewer than 3000 members "demonstrate why they can
    successfully operate a credit union" in order to obtain a
    separate charter.  63 Fed. Reg. at 72,001.  According to the
    ABA, this provision violates the FCUA's requirement that the
    Administration "encourage the formation of separately char-
    tered credit unions."  12 U.S.C. s 1759(f)(1)(A).  Yet the
    statute only requires the Administration to encourage groups
    to form their own credit unions "whenever practicable and
    consistent with reasonable standards for the safe and sound
    operation of the credit union." Id. Requiring that smaller
    groups show they can operate their own credit unions safely
    is entirely consistent with this requirement.
    VI.
    We turn finally to the ABA's challenges to the Administra-
    tion's approach to the chartering of community credit unions.
    Pointing out that Congress added the word "local" to the
    "well-defined community, neighborhood, or rural district"
    community credit union definition, the ABA argues that al-
    though Congress intended the Administration to take a more
    restricted approach to community credit union charters, the
    new rule is either the same as, or in some instances, less
    restrictive than, the prior rule.  In support of this proposi-
    tion, the ABA cites two provisions of the rule:  the criteria for
    determining whether a community qualifies for a charter,
    described by the ABA as substantially unchanged, compare
    63 Fed. Reg. at 72,038 (new rule listing political jurisdictions,
    major trade areas, shared/common facilities, organiza-
    tions/clubs, newspapers/other periodicals, maps designating
    community to be served, common characteristics and back-
    ground of residents, and other documentation demonstrating
    common interests or interaction) with 59 Fed. Reg. at 29,077
    (former rule listing political jurisdictions, major trade areas,
    shared/common facilities, organizations/clubs, newspa-
    pers/other periodicals, census tracts, common characteristics
    and background of residents, history of area, and other
    evidence of what distinguishes chosen area and its residents);
    and the new "presumptive community" standard, pursuant to
    which certain areas defined by political jurisdiction and popu-
    lation--namely, a recognized political jurisdiction with no
    more than 300,000 residents, or multiple contiguous political
    jurisdictions with no more than 200,000 residents--are sub-
    ject to less demanding documentation requirements than
    would ordinarily apply, 63 Fed. Reg. at 72,013, 72,037-38.
    Keeping in mind that the ABA limits this appeal to Chev-
    ron step one, we have little difficulty rejecting this argument.
    To begin with, the Administration acknowledges in the rule
    itself that the addition of the word "local" reflects congres-
    sional intent that it take "a more circumspect and restricted
    approach to chartering community credit unions."  63 Fed.
    Reg. at 72,012.  Moreover, although the Administration left
    the community credit union criteria substantially unchanged,
    it has made clear that it intends to apply them more strin-
    gently.  Specifically, where a community tests the limits of
    the statutory standard, the Administration will require it "to
    demonstrate more definitively how it meets the local require-
    ment."  Id. at 72,012;  see also id. at 72,037-38 (more docu-
    mentation required for larger or more densely populated
    areas).  And although the Administration adopted a new
    presumption, the rule not only requires documentation "de-
    scribing how the area meets the standards for community
    interaction or common interests," but also makes clear that
    the Administration reserves the right to request additional
    evidence of community interaction or common interests when
    the community's initial submission falls short.  See id. at
    72,038.  At least on its face, therefore, the rule adopts a more
    circumspect method for applying the community credit union
    criteria.
    The ABA also argues that because the rule provides that
    the Administration will consider an area's "primary ethnic
    composition" in determining whether it qualifies as a "well-
    defined local community," 63 Fed. Reg. at 72,038, the rule
    violates the Fifth Amendment, the FCUA, and the Equal
    Credit Opportunity Act, 15 U.S.C. s 1691(a)(3).  The district
    court dismissed this claim, concluding that the ABA, having
    failed to allege injury to itself, lacked Article III standing.  In
    the alternative, the court held that the consideration of eth-
    nicity in the chartering process violates none of the cited
    statutory or constitutional provisions.  See Am. Bankers, 
    93 F. Supp. 2d at 48
    .  The Administration argues that this issue
    has now become moot because it deleted the ethnicity provi-
    sion from the rule during the pendency of this appeal.  Com-
    pare 63 Fed. Reg. at 72,038 (final rule) with 
    66 Fed. Reg. 15,619
    , 15,620 (March 20, 2001) (amending final rule).  Al-
    though the ABA insists that we should nonetheless "declare
    [the] policy unlawful to prevent the [Administration] from
    returning to it," Appellant's Reply Br. at 21, we think the
    Administration has met its burden to show mootness:  It has
    eliminated the allegedly unlawful provision and "there is no
    indication [it] will revert to its past [policy]."  Arizona Pub.
    Serv. Co. v. EPA, 
    211 F.3d 1280
    , 1295-96 (D.C. Cir. 2000)
    (holding that challenge to EPA rule was moot where agency
    issued clarification modifying challenged provision);  see Nat'l
    Mining Ass'n v. United States Dep't of Interior, 
    251 F.3d 1007
    , 1011 (D.C. Cir. 2001) (holding that challenge to National
    Mining Association regulations was moot where agency
    adopted new regulations eliminating challenged provisions);
    Motor & Equip. Mfrs. Ass'n v. Nichols, 
    142 F.3d 449
    , 458-59
    (D.C. Cir. 1998) (holding that EPA met " 'heavy' burden" to
    show that challenge to EPA waiver for state regulatory
    program was moot to extent state had eliminated allegedly
    unlawful regulations) (quoting County of Los Angeles v.
    Davis, 
    440 U.S. 625
    , 631 (1979)).
    VII.
    The ABA's challenge to the "reasonable proximity" require-
    ment is dismissed as unripe.  Its challenge to the ethnicity
    provision is dismissed as moot.  In all other respects, the
    decision of the district court is affirmed.
    So ordered.