Fisheries of the Northeastern United States; Scup Fishery; Adjustment to the 2020 Winter II Quota, 56504 [2020-20202]

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: 2020-20202]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 200420-0118]
[RTID 0648-XA453]


Fisheries of the Northeastern United States; Scup Fishery; 
Adjustment to the 2020 Winter II Quota

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; in-season adjustment.

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SUMMARY: NMFS adjusts the 2020 Winter II commercial scup quota and per-
trip Federal landing limit. This action is necessary to comply with 
Framework Adjustment 3 to the Summer Flounder, Scup, and Black Sea Bass 
Fishery Management Plan that established the rollover of unused 
commercial scup quota from the Winter I to Winter II period. This 
notice is intended to inform the public of this quota and trip limit 
change.

DATES: Effective October 1, 2020, through December 31, 2020.

FOR FURTHER INFORMATION CONTACT: Laura Hansen, Fishery Management 
Specialist, (978) 281-9225; or [email protected].

SUPPLEMENTARY INFORMATION: NMFS published a final rule for Framework 
Adjustment 3 to the Summer Flounder, Scup, and Black Sea Bass Fishery 
Management Plan in the Federal Register on November 3, 2003 (68 FR 
62250), implementing a process to roll over unused Winter I commercial 
scup quota (January 1 through April 30) to be added to the Winter II 
period quota (October 1 through December 31) (50 CFR 648.122(d)). The 
framework also allows adjustment of the commercial possession limit for 
the Winter II period dependent on the amount of quota rolled over from 
the Winter I period. The Winter II period start date was changed from 
November 1 to October 1 as a part of Framework Adjustment 12 (83 FR 
17314; April 19, 2018).
    For 2020, the initial Winter II quota is 3,543,336 pounds (lb) 
(1,607 metric tons (mt)). The best available landings information 
indicates that 4,850,963 lb (2,200 mt) remain of the 10,027,597 lb 
(4,548 mt) Winter I quota. Consistent with Framework 3, the full amount 
of unused 2020 Winter I quota is being transferred to Winter II, 
resulting in a revised 2020 Winter II quota of 8,394,299 lb (3,808 mt). 
Because the amount transferred is between 4.5 and 5.0 million lb (2,041 
mt and 2,268 mt), the Federal per trip possession limit will increase 
from 12,000 lb (5.4 mt) to 24,000 lb (10.9 mt), as outlined in the 
final rule that established the possession limit and quota rollover 
procedures for this year, published on May 15, 2020 (85 FR 29345).

Classification

    NMFS issues this action pursuant to section 305(d) of the Magnuson-
Stevens Act. This action is required by 50 CFR 648.122(d), which was 
issued pursuant to section 304(b), and is exempted from review under 
Executive Order 12866.
    Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior 
notice and an opportunity for public comment on this action, as notice 
and comment would be contrary to the public interest. This action 
transfers unused quota from the Winter I Period to the Winter II Period 
to make it accessible to the commercial scup fishery. If implementation 
of this inseason action is delayed to solicit prior public comment, the 
objective of the fishery management plan to achieve the optimum yield 
from the fishery could be compromised. Deteriorating weather conditions 
during the latter part of the fishing year may reduce fishing effort, 
and could also prevent the annual quota from being fully harvested. 
This would conflict with the agency's legal obligation under the 
Magnuson-Stevens Fishery Conservation and Management Act to achieve the 
optimum yield from a fishery on a continuing basis, resulting in a 
negative economic impact on vessels permitted to fish in this fishery. 
Moreover, the rollover process being applied here was the subject of 
notice and comment rulemaking, and the range of potential trip limit 
changes were outlined in the final 2018 scup specifications that were 
published December 22, 2017; which were developed through public notice 
and comment. Based on these considerations, there is good cause under 5 
U.S.C. 553(d)(3) to waive the 30-day delayed effectiveness period for 
the reasons stated above.

    Authority:  16 U.S.C. 1801 et seq.

    Dated: September 9, 2020.
Jennifer M. Wallace,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 2020-20202 Filed 9-11-20; 8:45 am]
BILLING CODE 3510-22-P

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