Safety Zone; Corpus Christi Ship Channel, Corpus Christi, TX, 56504 [2020-19854]

Download as PDF 56504 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. Sfmt 4700 E:\FR\FM\14SER1.SGM at 668. 14SER1

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: 2020-19854]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0543]
RIN 1625-AA00


Safety Zone; Corpus Christi Ship Channel, Corpus Christi, TX

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters of the Corpus Christi Ship Channel within the 
Inner Harbor from position 27[deg]49'7.80'' N, 097[deg]28'28.69'' W to 
position 27[deg]49'0.12'' N, 097[deg]27'54.09'' W. The safety zone is 
needed to protect personnel, vessels, and the marine environment from 
potential hazards created by the salvage of the Dredge WAYMON BOYD 
adjacent to the channel. Entry of vessels into this zone is permitted 
with restrictions: Vessels shall not over take or pass other vessels 
within the zone, and vessels must operate at a slowbell only.

DATES: This rule is effective without actual notice from September 14, 
2020 through 12 noon on September 15, 2020. For the purposes of 
enforcement, actual notice will be used from August 23, 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-
2020-0543 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 salvage of Dredge WAYMON BOYD.

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) has 
determined that potential hazards associated with the salvage of Dredge 
WAYMON BOYD. The purpose of this rule is to ensure safety of vessels 
and persons on these navigable waters in the safety zone.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from August 23, 2020 
through 12 noon September 15, 2020, and will be enforced during dredge 
salvage operations. Entry of vessels into this zone is permitted with 
restrictions: Vessels shall not over take or pass other vessels within 
the zone, and vessels must operate at a slowbell only.
    Persons or vessels transiting the safety zone should check-in with 
the Harbormaster's Office 30 minutes prior to transit on VHF Channel 12 
or 361-882-1773 to allow diving operations to safely secure if needed.

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 the 
navigable waters of the Corpus Christi Ship Channel within the Inner 
Harbor from position 27[deg]49'7.80'' N, 097[deg]28'28.69'' W to 
position 27[deg]49'0.12'' N, 097[deg]27'54.09'' W for the purposes of 
protecting personnel and the environment from dangers created by the 
salvage of Dredge WAYMON BOYD. 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 the navigable waters of the Corpus Christi Ship Channel within 
the Inner Harbor from position 27[deg]49'7.80'' N, 097[deg]28'28.69'' W 
to position 27[deg]49'0.12'' N, 097[deg]27'54.09'' W. The safety zone 
is needed to protect personnel, vessels, and the marine environment 
from potential hazards created by salvage Dredge WAYMON BOYD. 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.T08-0543 to read as follows:


Sec.  165.T08-0543  Safety Zone; Corpus Christi Ship Channel, Corpus 
Christi, TX

    (a) Location. The following area is a safety zone: The navigable 
waters of the Corpus Christi Ship Channel within the Inner Harbor from 
position 27[deg]49'7.80'' N, 097[deg]28'28.69'' W to position 
27[deg]49'0.12'' N, 097[deg]27'54.09'' W.
    (b) Effective period. The section is effective from August 23, 2020 
through 12 noon on September 15, 2020.
    (c) Regulations. (1) According to the general regulations in Sec.  
165.23 of this part, Entry of vessels into this zone is permitted with 
restrictions: Vessels shall not over take or pass other vessels within 
the zone, and vessels must operate at a slowbell only.
    (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. 2020-19854 Filed 9-11-20; 8:45 am]
BILLING CODE 9110-04-P