Safety Zone; Victoria Barge Canal, Victoria, TX, 56504 [2020-19853]
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Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Rules and Regulations
In opposing the proposal, the ABA
stated that defining a CSA as a ‘‘single
local community’’ is unreasonable and
unlawful. The ABA largely relied on the
District Court opinion, which was
unanimously reversed by the Circuit
Court. The ABA provided examples of
CSAs that it believes might not be a
WDLC and contended that CSAs have a
‘‘daisy-chain nature’’ in which opposite
ends have little connection. It then
stated that the Circuit Court indicated
that some CSAs might not be a WDLC
and thus could be challenged on an ‘‘as
applied’’ basis. The ABA further stated
that the term ‘‘local community’’ should
not automatically include a CSA.
Rather, it stated that any presumption
that a CSA is a local community should
be rebuttable. The ABA further stated
that the Board should not adopt these
provisions while litigation remains
pending, including the possibility of an
appeal to the Supreme Court.
After reviewing the comments in light
of the unanimous Circuit Court decision
to affirm the Board’s adoption of a CSA
as a presumptive community, the Board
has determined that it is appropriate
and consistent with the Act to amend
the Chartering Manual to allow a CSA
to be re-established as a presumptive
WDLC. Much of the ABA’s argument
relied on the District Court decision that
was unanimously rejected by the threejudge Circuit Court panel. In applying
Chevron, the Circuit Court stated: ‘‘We
appreciate the District Court’s
conclusions, made after a thoughtful
analysis of the Act. But we ultimately
disagree with many of them. In this
facial challenge, we review the rule not
as armchair bankers or geographers, but
rather as lay judges cognizant that
Congress expressly delegated certain
policy choices to the NCUA. After
considering the Act’s text, purpose, and
legislative history, we hold the agency’s
policy choices ‘entirely appropriate’ for
the most part. Chevron, 467 U.S. at
865.’’ 63 With respect to CSAs, the
Circuit Court, in rejecting the District
Court’s analysis, stated:
khammond on DSKJM1Z7X2PROD with RULES
In addition to being consistent with the
Act’s text, the Combined Statistical Area
definition rationally advances the Act’s
underlying purposes. In the 1998
amendments, Congress made two relevant
findings about purpose. First, legislators
found ‘‘essential’’ to the credit-union system
a ‘‘meaningful affinity and bond among
63 Am. Bankers Ass’n, 934 F.3d at 656. See also
with respect to CSAs: ‘‘The NCUA possesses vast
discretion to define terms because Congress
expressly has given it such power. But the authority
is not boundless. The agency must craft a
reasonable definition consistent with the Act’s text
and purposes; that is central to the review we apply
at Chevron’s second step. Here, the NCUA’s
definition meets the standard.’’ Id. at 664.
VerDate Sep<11>2014
17:41 Sep 11, 2020
Jkt 250001
members, manifested by a commonality of
routine interaction [;] shared and related
work experiences, interests, or activities [;] or
the maintenance of an otherwise wellunderstood sense of cohesion or identity.’’
§ 2, 112 Stat. at 914. Second, Congress
highlighted the importance of ‘‘credit union
safety and soundness,’’ because a credit
union on firm financial footing ‘‘will enhance
the public benefit that citizens receive.’’ 64
The Circuit Court explicitly rejected
the ABA’s assertion that CSAs have a
‘‘daisy chain’’ nature, linking multiple
metropolitan areas that have nothing to
do with those at opposite ends of the
chain. As the court stated:
[T]he NCUA’s definition does not readily
create general, widely dispersed regions. Cf.
First Nat’l Bank III, 522 U.S. at 502
(indicating that community credit unions
may not be ‘composed of members from an
unlimited number of unrelated geographical
units’. Combined Statistical Areas are
geographical units well-accepted within the
government. See [81 FR at 88414]. Because
they essentially are regional hubs, the
Combined Statistical Areas concentrate
around central locations. . . . The NCUA
rationally believed that such ‘real-world
interconnections would qualify as the type of
mutual bonds suggested by the term ‘local
community.’ . . . Thus, the agency
reasonably determined that Combined
Statistical Areas ‘‘simply unif[y], as a single
community,’’ already connected neighboring
regions. [See 81 FR at 88,415.] 65
The ABA’s misinterpretation of the
Chevron doctrine was further
repudiated by the entire Circuit Court,
which rejected the ABA’s petition for a
rehearing en banc. The Board
emphasizes that the ABA repeatedly
misstates the regulatory framework for
approving a presumptive community,
both in its court filings and in its
comment letter on the proposed rule.
Under the regulatory provisions in the
Chartering Manual, established by
notice-and-comment rulemaking, there
is no automatic approval of an
application based on a CSA. Rather, an
applicant would have to establish in its
application that it can serve the entire
community, as documented in its
business and marketing plan. A further
constraint on any such CSA or portion
thereof is that its population cannot
exceed 2.5 million people. As the
Circuit Court noted:
We might well agree with the District Court
that the approval of such a geographical area
would contravene the Act. But even so, the
Association would need much more to
mount its facial pre-enforcement challenge in
this case. As the Supreme Court repeatedly
has held, ‘‘the fact that petitioner can point
to a hypothetical case in which the rule
might lead to an arbitrary result does not
64 Id.
65 Id.
PO 00000
at 665–66.
at 666–67.
Frm 00034
Fmt 4700
render the rule’’ facially invalid. Am. Hosp.
Ass’n v. NLRB, 499 U.S. 606, 619 (1991); see
also EPA v. EME Homer City Generation, L.P.
(EME Homer), 572 U.S. 489, 524 (2014) (‘‘The
possibility that the rule, in uncommon
particular applications, might exceed [the
agency]’s statutory authority does not
warrant judicial condemnation of the rule in
its entirety.’’); INS v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. 183, 188
(1991) (‘‘That the regulation may be invalid
as applied in s[ome] cases . . . does not
mean that the regulation is facially invalid
because it is without statutory authority.’’);
cf. Barnhart v. Thomas, 540 U.S. 20, 29
(2003) (‘‘Virtually every legal (or other) rule
has imperfect applications in particular
circumstances.’’).
Here, the Association’s complaint and
the District Court’s accompanying worry
strike us as too conjectural. The NCUA
must assess the ‘‘economic advisability
of establishing’’ the proposed credit
union before approving it, [12 U.S.C.
1754], and as part of the assessment, the
organizers must propose a ‘‘realistic’’
business plan showing how the
institution and its branches would serve
all members in the local community, see
[12 CFR. part 701, app. B, ch. 1 section
IV.D.] The Association has failed to
demonstrate the plausibility of a local
community that is defined like the
hypothetical narrow, multi-state strip
and accompanies a realistic business
plan. And if the agency were to receive
and approve such an application, a
petitioner can make an as-applied
challenge. See, e.g., EME Homer, 572
U.S. at 523–24; Buongiorno, 912 F.2d at
510.66
Thus, existing regulatory provisions
guard against the extreme examples
posited by the ABA, which claims
incorrectly that the Board must approve
them under the Chartering Manual. The
Board agrees with the ABA and the
Circuit Court that any application for a
presumptive community, including one
based on a CSA, can be challenged on
an as applied, case-by-case basis. Given
this regulatory framework, which is
subject to judicial review, the Board
agrees with the Circuit Court’s reasoning
in concluding that re-establishing the
CSA as a presumptive community is
entirely consistent with the express
authority delegated to the Board by
Congress. This provision also advances
the Act’s dual purposes of promoting
common bonds while addressing safety
and soundness considerations by
ensuring that FCUs remain
economically viable.
66 Id.
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]]>Agencies
[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Rules and Regulations]
[Page 56504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19853]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2020-0525]
RIN 1625-AA00
Safety Zone; Victoria Barge Canal, Victoria, TX
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone for
parts of the navigable waters of the Victoria Barge Canal from
approximate position 28[deg]30'49'' N, 096[deg]48'08'' W to approximate
position 28[deg]31'48'' N, 096[deg]48'172'' W. The safety zone is
needed to protect personnel, vessels, and the marine environment from
potential hazards associated with SH-35 bridge fender repair
operations. Entry of vessels or persons into this zone is prohibited
unless specifically authorized by the Captain of the Port Sector Corpus
Christi.
DATES: This rule is effective without actual notice from September 14,
2020 through 5 p.m. on September 19, 2020. For purposes of enforcement,
actual notice will be used 7 a.m. on August 31, 2020 through September
14, 2020.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0525 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Lieutenant Commander Margaret Brown, Sector Corpus
Christi Waterways Management Division, U.S. Coast Guard; telephone 361-
939-5130, email [email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. We must
establish this safety zone immediately and lack sufficient time to
provide a reasonable comment period and then consider those comments
before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with the damaged fenders on the SH-35 Bridge.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Corpus Christi (COTP) is
establishing a temporary safety zone for parts of the navigable waters
of the Victoria Barge Canal from approximate position 28[deg]30'49'' N,
096[deg]48'08'' W to approximate position 28[deg]31'48'' N,
096[deg]48'172'' W. The safety zone is needed to protect personnel,
vessels, and the marine environment from potential hazards associated
with SH-35 bridge fender repair operations.
IV. Discussion of the Rule
This rule establishes a temporary safety zone August 31, 2020
through September 19, 2020, from 7 a.m. through 12 p.m. and 1 p.m.
through 5 p.m. each day, Monday through Saturday and will be enforced
during SH-35 bridge fender repairs. No vessel or person is permitted to
enter the temporary safety zone during the enforcement period without
obtaining permission from the COTP or a designated representative.
Persons or vessels seeking to enter the safety zone must request
permission from the COTP or a designated representative on VHF-FM
channel 16 or by telephone at 361-939-0450. If permission is granted,
all persons and vessels shall comply with the instructions of the COTP
or designated representative.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the size,
location, and duration of the safety zone. This safety zone covers an
area of the navigable waters of the Victoria Barge Canal from
approximate position 28[deg]30'49'' N, 096[deg]48'08'' W to approximate
position 28[deg]31'48'' N, 096[deg]48'172'' W for the purposes of SH-35
bridge fender repairs August 31, 2020 through September 19, 2020, from
7 a.m. through 12 p.m. and 1 p.m. through 5 p.m. each day, Monday
through Saturday. Moreover, the Coast Guard will issue Local Notices to
Mariners, Safety Marine Information Broadcasts, and Broadcast Notice to
Mariners via VHF-FM marine channel 16 about the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A above, this rule will not have a significant economic impact on any
vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.
C. Collection of Information
This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
D. Federalism and Indian Tribal Governments
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have
determined that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves establishment of a temporary safety
zone for navigable waters of Victoria Barge Canal from approximate
position 28[deg]30'49'' N, 096[deg]48'08'' W to approximate position
28[deg]31'48'' N, 096[deg]48'172'' W. The safety zone is needed to
protect personnel, vessels, and the marine environment from potential
hazards associated with SH-35 bridge fender repair operations. It is
categorically excluded from further review under paragraph L60(a) in
Table 3-1 of U.S. Coast Guard Environmental Planning Implementing
Procedures 5090.1. A Record of Environmental Consideration supporting
this determination is available in the docket where indicated under
ADDRESSES.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
0
2. Add Sec. 165.T08-0525 to read as follows:
Sec. 165.T08-0525 Safety Zone; Victoria Barge Canal, Victoria, TX.
(a) Location. The following area is a safety zone: All navigable
waters of the Victoria Barge Canal from approximate position
28[deg]30'49'' N, 096[deg]48'08'' W to approximate position
28[deg]31'48'' N, 096[deg]48'172'' W. The safety zone is needed to
protect personnel, vessels, and the marine environment from potential
hazards associated with SH-35 bridge fender repair operations.
(b) Effective period. The section is effective August 31, 2020
through September 19, 2020, from 7 a.m. through 12 p.m. and 1 p.m.
through 5 p.m. each day, Monday through Saturday.
(c) Regulations. (1) According to the general regulations in Sec.
165.23 of this part, entry into this temporary safety zone is
prohibited unless authorized by the Captain of the Port Sector Corpus
Christi (COTP) or a designated representative.
(2) Persons or vessels seeking to enter the safety zone must
request permission from the COTP on VHF-FM channel 16 or by telephone
at 361-939-0450.
(3) If permission is granted, all persons and vessels shall comply
with the instructions of the COTP or designated representative.
(d) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and date for this
safety zone through Broadcast Notices to Mariners, Local Notices to
Mariners, and/or Safety Marine Information Broadcasts as appropriate.
Dated: September 1, 2020.
J.B. Gunning,
Captain, U.S. Coast Guard, Acting Captain of the Port Sector Corpus
Christi.
[FR Doc. 2020-19853 Filed 9-11-20; 8:45 am]
BILLING CODE 9110-04-P
