Federal Register Vol. 81, No.98,

Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (Title XI),1 established the ASC.2 Title XI's purpose is to “provide that Federal financial and public policy interests in real estate related transactions will be protected by requiring that real estate appraisals utilized in connection with federally related transactions are performed in writing, in accordance with uniform standards, by individuals whose competency has been demonstrated and whose professional conduct will be subject to effective supervision.” 3

On July 21, 2010, the Dodd-Frank Act 4 was signed into law. Section 1473 of the Dodd-Frank Act included amendments to Title XI. Section 1117 of Title XI, Establishment of State appraiser certifying and licensing agencies, was amended by the Dodd-Frank Act to: (1) Authorize States,5 if they so choose, to register and supervise AMCs; and (2) allow States to add information about AMCs in their State to the National Registry of AMCs (AMC Registry). States electing to register and supervise AMCs under Section 1117 must implement minimum requirements in accordance with the AMC Rule.6

Title XI as amended by the Dodd-Frank Act imposes a statutory restriction that applies 36 months from the effective date of the AMC Rule (Implementation Period).7 In summary, beginning 36 months from the effective date of the AMC Rule, an AMC, as defined by Title XI, may not provide services for a Federally related transaction in a State unless the AMC is registered with a State that has established a registration and supervision program under Section 1117, or is subject to oversight by a Federal financial institutions regulatory agency.

Section 1103 of Title XI, Functions of Appraisal Subcommittee, was amended by the Dodd-Frank Act to require the ASC to maintain the AMC Registry of AMCs that are either: (1) Registered with and subject to supervision by a State that has elected to register and supervise AMCs; or (2) supervised by a Federal financial institutions regulator (Federally regulated AMCs). It is anticipated that on or before the effective date of this rule, the ASC will issue an ASC Bulletin to States that will address:

1. When the AMC Registry will be open for States; and

2. Reporting requirements (information required to be submitted by States in order to register AMCs on the AMC Registry).

Section 1109 of Title XI, Roster of State certified or licensed appraisers; authority to collect and transmit fees, was amended by the Dodd-Frank Act to require States that elect to register and supervise AMCs to collect: (1) From AMCs that have been in existence for more than a year an annual registry fee of $25 multiplied by the number of appraisers working for or contracting with such AMC in such State during the previous year; and (2) from AMCs that have not been in existence for more than a year, $25 multiplied by an appropriate number to be determined by the ASC.9 The $25 may be adjusted, up to a maximum of $50, at the discretion of the ASC, if necessary to carry out the ASC's Title XI functions.10

This proposed rule would set the annual AMC registry fee that States would collect and transmit to the ASC if they elect to register and supervise AMCs. This proposed rule sets forth the ASC's interpretation of the phrase “working for or contracting with” as used in the calculation of annual AMC registry fees.

The ASC recognizes that the time required for notice and comment rulemaking for AMC registry fees could impede States' ability to implement the fees within the Implementation Period. However, the restriction on performance of services for Federally related transactions applies to AMCs that are not registered with the State or subject to oversight by a Federal financial institutions regulatory agency. Therefore, it is the ASC's understanding that the failure of a State to collect the fees under this rule within the Implementation Period would not subject otherwise properly registered and supervised AMCs in that State to the ban on providing services for Federally related transactions in that State.

The ASC is issuing this proposal to implement Section 1109 of Title XI for collection and transmission of AMC registry fees by those States electing to register and supervise AMCs.11 The proposed rule would establish the annual AMC registry fee and interpret the phrase “working for or contracting with” in accordance with section 1109 as amended by the Dodd-Frank Act. As with appraisers, an AMC operating in more than one State that elects to register and supervise AMCs would be required to pay a registry fee in each State in order to be on the AMC Registry for each of those States.

AMC Registry. Proposed § 1102.401(a) proposes to define AMC Registry as the national registry maintained by the ASC of those AMCs that meet the Federal definition of AMC, as defined in 12 U.S.C. 3350(11), are registered by a State or are Federally regulated, and have paid the annual AMC registry fee.

AMC Rule. Proposed § 1102.401(b) proposes to define AMC Rule as the interagency final rule on minimum requirements for AMCs, 12 CFR 34.210-34.216; 12 CFR 225.190-225.196; 12 CFR 323.8-323.14; CFR 1222.20-1222.26 (2015).

ASC. Proposed § 1102.401(c) proposes to define ASC as the Appraisal Subcommittee of the Federal Financial Institutions Examination Council established under section 1102 (12 U.S.C. 3310) as it amended the Federal Financial Institutions Examination Council Act of 1978 (12 U.S.C. 3301 et seq.) by adding section 1011.

Performance of an appraisal. Proposed § 1102.401(d) proposes to define performance of an appraisal to mean the appraisal service requested of an appraiser by the AMC was provided to the AMC.

State. Proposed § 1102.401(e) proposes to define State as any State, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, the United States Virgin Islands, and American Samoa.

Terms incorporated by reference. Proposed § 1102.401(f) states that the definitions of: Appraisal management company (AMC); appraisal management services; appraiser panel; consumer credit; covered transaction; dwelling; Federally regulated AMC are incorporated from the AMC Rule by reference because the proposed rule is closely related to the AMC Rule.

Proposed § 1102.402 would establish the annual AMC registry fee for States that elect to register and supervise AMCs as follows: (1) In the case of an AMC that has been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State during the previous year; and (2) in the case of an AMC that has not been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State since the AMC commenced doing business. Performance of an appraisal means the appraisal service requested of an appraiser by the AMC was provided to the AMC.

For AMCs that have been in existence for more than a year, Section 1109 of Title XI provides that the annual AMC registry fee is based on the number of appraisers “working for or contracting with” an AMC in a State during a 12-month period multiplied by $25, up to a maximum of $50.12 The proposed rule adopts the minimum fee of $25 as set by statute and interprets the phrase “working for or contracting with” to mean those appraisers on an AMC appraiser panel that performed an appraisal for the AMC on a covered transaction 13 during the previous year in a particular State. The annual AMC registry fee for AMCs that have not been in existence for more than a year requires a determination by the ASC of an appropriate multiplier. The ASC proposes to use the same factors of $25 multiplied by the number of appraisers that performed an appraisal for the AMC on a covered transaction, but the fee would be based on the actual period of time since the AMC commenced doing business rather than 12 months.

The ASC considered three options with respect to interpreting the phrase “working for or contracting with.” Under the first option, the phrase “working for or contracting with” would have been interpreted to include every appraiser on an AMC appraiser panel during the reporting period 14 in a particular State. The multiplier in this option would have included all appraisers on an AMC's appraiser panel in a particular State, including appraisers accepted by the AMC for consideration for future appraisal assignments.

Under the second option, the phrase “working for or contracting with” would have been interpreted to include those appraisers engaged by the AMC to perform an appraisal on a covered transaction during the reporting period in a particular State. The time the appraiser would be considered in the calculation is at the point of engagement to perform a particular appraisal, regardless of whether the appraisal was fully performed during the reporting period. The ASC seeks comment in Question 3 below on whether this interpretation would be preferable for States to administer over the third option, which is set forth in the proposed rule.

Under the third option, which is set forth in the proposed rule, the phrase “working for or contracting with” would include appraisers that performed an appraisal for the AMC on a covered transaction during the reporting period in a particular State. This option would exclude appraisers accepted by the AMC for consideration for future appraisal assignments as well as appraisers who performed appraisals in the past, but did not perform any appraisals in the reporting period. The AMC registry fee is not intended to result in duplicate fees for the same appraisal, even if there are multiple drafts of an appraisal. Therefore, the AMC registry fee is to be calculated based on an appraisal one time only.

The ASC believes the third option imposes the minimum fee allowed under the statutory provisions of section 1109 and therefore imposes the least burden on AMCs. Based on the ASC's anticipated costs of overseeing States that elect to register and supervise AMCs, as well as the ASC's anticipated costs of maintaining the AMC Registry, the ASC believes the proposed annual AMC registry fee would adequately cover those costs while supporting other Title XI functions of the ASC as mandated by Congress, including further development of its grant programs, particularly for States.

Proposed § 1102.403 would implement collection and transmission of annual AMC registry fees for States that elect to register and supervise AMCs following the statutory scheme set forth in section 1117 and section 1109 as amended by the Dodd-Frank Act. The proposed rule would require AMC registry fees to be collected and transmitted to the ASC on an annual basis by States that elect to register and supervise AMCs. Only those AMCs whose registry fees have been transmitted to the ASC would be eligible to be on the AMC Registry for the 12-month period following the payment of the fee.

Under the proposed rule, States would have the flexibility to align a one-year period with any 12-month period, which may or may not be based on the calendar year. Just as many States do not use a calendar year for their existing appraiser credentialing process, the ASC believes that allowing States to set the 12-month period provides appropriate flexibility and will help States comply with the collection and transmission of AMC fees and reduce regulatory burden for State governments. States may choose to do this as they currently do for their appraisers, meaning some States have a date certain every year. Other States use, for example, the appraiser's date of birth (States could use AMC registration date similarly). The registration cycle would be left to the individual States to determine, but note that the statutory requirement in section 1109(a)(4) requires States that elect to register and supervise AMCs to submit AMC registry fees to the ASC annually.

According to the AMC Rule, Federally regulated AMCs must report to the State or States in which they operate that have elected to register and supervise AMCs the information required to be submitted by the State pursuant to the ASC's policies, including: (i) Information regarding the determination of the AMC registry fee; and (ii) information required by the AMC Rule.15

The ASC requests comment on all aspects of this proposed rule, including specific requests for comment that appear throughout the Supplementary Information above. In addition, the ASC requests comments on the following questions:

Question 1. The ASC requests comment on all aspects of the proposed annual AMC registry fee.

Question 2. The ASC requests comment on the ASC's interpretation of the phrase “working for or contracting with.”

Question 3. The ASC requests comment on the second option's interpretation of the phrase “working for or contracting with.” While the proposal defines “working for or contracting with” to include only those appraisers that performed an appraisal for the AMC during the reporting period, the second option would define “working for or contracting with” to mean “the AMC engaged an appraiser to perform an appraisal, regardless of whether the appraiser completed the appraisal during the reporting period.” The ASC is requesting comment on whether this would be an easier interpretation for the States to administer.

Question 4. The ASC requests comment on all aspects of proposed collection and transmission of annual AMC registry fees.

Question 5. The ASC requests comment on Federally regulated AMCs operating in a State that does not elect to register and supervise AMCs. Should the ASC collect information and fees directly from Federally regulated AMCs that wish to appear on the AMC Registry but operate in States that do not elect to register and supervise AMCs?

Question 6. What barriers, if any, exist that would make it difficult for a State to implement the collection and transmission of AMC registry fees?

Question 7. What costs (both direct in terms of fees and indirect in terms of administrative costs) would be associated with collection and transmission of AMC registry fees?

Question 8. What aspects of the proposed rule, if any, would be challenging for States to implement? To the extent such challenges would exist, what alternative approaches do commenters suggest that would make implementation easier, while maintaining consistency with the statute?

Certain provisions of the proposed rule contain “information collection” requirements within the meaning of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Under the PRA, the ASC may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. The information collection requirements contained in this proposed rule are being submitted to OMB for review and approval at the proposed rule stage by the ASC pursuant to section 3506 of the PRA and section 1320.11 of the OMB's implementing regulations (5 CFR part 1320). The collection of information requirements in the proposed rule are found in §§ 1102.400-1102.403. This information is required to implement section 1473 of the Dodd-Frank Act.

Title of Information Collection: Collection and Transmission of Annual AMC Registry Fees.

OMB Control Nos.: The ASC will be seeking new control numbers for these collections.

Frequency of Response: Event generated.

Affected Public: States; businesses or other for-profit and not-for-profit organizations.

States that elect to register and supervise AMCs would be required to collect and transmit annual AMC registry fees to the ASC. Section 1102.402 would establish the annual AMC registry fee for States that elect to register and supervise AMCs as follows: (1) In the case of an AMC that has been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State during the previous year; and (2) in the case of an AMC that has not been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State since the AMC commenced doing business. Performance of an appraisal means the appraisal service requested of an appraiser by the AMC was provided to the AMC.

Section 1102.403 would require AMC registry fees to be collected and transmitted to the ASC on an annual basis by States that elect to register and supervise AMCs. Only those AMCs whose registry fees have been transmitted to the ASC would be eligible to be on the AMC Registry for the 12-month period following the payment of the fee. Section 1102.403 clarifies that States may align a one-year period with any 12-month period, which may, or may not, be based on the calendar year. The registration cycle is left to the individual States to determine.

Section 1103 of Title XI, Functions of Appraisal Subcommittee, was amended by the Dodd-Frank Act to require the ASC to maintain a registry of AMCs that are either: (1) Registered with and subject to supervision by a State; or (2) Federally regulated AMCs. It is anticipated that on or before the effective date of this rule, the ASC will issue an ASC Bulletin to States that will address:

1. When the AMC Registry will be open for States; and

2. Reporting requirements (information required to be submitted by States in order to register AMCs on the AMC Registry).

Burden Estimates:

Total Number of Respondents: 500 AMCs, 55 States.

Burden Total: 500 hours.

(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;

(b) The accuracy of the agency's estimate of the burden of the collection of information;

(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., generally requires that, in connection with a notice of proposed rulemaking, an agency prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the proposed rule on small entities. However, the regulatory flexibility analysis otherwise required under the RFA is not required if an agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a brief explanatory statement in the Federal Register together with the proposed rule. Based on its analysis, and for the reasons stated below, the ASC believes that the proposed rule will not have a significant economic impact on a substantial number of small entities.

Section 1109 of Title XI provides that State appraiser certifying and licensing agencies that elect to register and supervise AMCs shall collect (1) from AMCs that have been in existence for more than a year, annual AMC registry fees in the amount of $25 (up to a maximum of $50) multiplied by the number of appraisers “working for or contracting with” an AMC in a State during the previous year; and (2) from AMCs that have not been in existence for more than a year, annual AMC registry fees in the amount of $25 (up to a maximum of $50) multiplied by an appropriate number to be determined by the ASC.16 The purpose of the statutory fee is to support the ASC's functions under Title XI. Because the ASC believes the minimum fee required by the statute would be adequate to support its functions, the proposed rule would adopt the minimum fee of $25 as set by statute. The proposed rule would also interpret the phrase “working for or contracting with” to mean those appraisers that performed an appraisal for the AMC on a covered transaction during the reporting period. For AMCs that have existed for more than a year, the formula would be $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction during the previous year. For AMCs that have not existed for more than a year, the $25 fee would be multiplied by the number of appraisers that performed an appraisal for the AMC on a covered transaction, since the AMC commenced doing business.

Regarding the proposed fee for AMCs that have been in existence for more than a year, the ASC believes the proposed rule would impose the minimum fee allowed under the statutory provisions of section 1109. The ASC proposal would not exercise statutory discretion granted to the ASC to increase the fee above $25. Further, the ASC would interpret “working for or contracting with” to mean only those appraisers who actually performed an appraisal for the AMC, as opposed to all appraisers on the AMC's panel or all appraisers engaged, regardless of whether the assignment was performed. The ASC believes this formula would result in the lowest fee allowed by the statute and the ASC would be choosing not to exercise its authority to increase this minimum fee. Therefore, any burden produced is the result of statutory and not regulatory requirements.

The ASC has also decided to propose the statutory minimum fee of $25 for AMCs that have not existed for a year. As required by statute, the ASC is proposing an appropriate number against which to multiply the $25 fee. The ASC is proposing to use the same multiple as used for AMCs that have existed for more than a year (i.e., the number of appraisers that have performed appraisal assignments for the AMC). It is possible that the ASC may have been able to propose a multiple that would result in a lower fee and would still be deemed appropriate. In this regard, the rule may create burden for AMCs that have not existed for more than a year, beyond the burden created by the statutory requirements alone.

While some burden beyond the statutory requirements may result from the rule for AMCs that have not existed for more than a year, the ASC does not believe the rule will have a significant economic impact on a substantial number of small entities. There are only approximately 500 AMCs operating in the United States. The annual regulatory burden will only apply to new AMCs that have not existed for more than a year. Given the small number of AMCs currently in operation, it is unlikely that there will be a substantial number of AMCs that commence doing business in any given year. Further, the ASC is proposing the lowest possible fee of $25. Therefore, the ASC does not believe that the exercise of its discretion in setting the fee formula for such AMCs will have a significant economic impact on a substantial number of small entities.

The collection and transmission to the ASC of AMC registry fees by the States would create some recordkeeping, reporting and compliance requirements. However, these collection and transmission requirements are imposed by the statute, not the proposed rule. Further, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts when the agency's rule directly regulates the small entities.17

Based on its analysis, and for the reasons stated above, the ASC believes that the proposed rule will not have a significant economic impact on a substantial number of small entities. Therefore, the ASC certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis is not required. The ASC requests comment on all aspects of this analysis.

The ASC has analyzed the proposed rule under the factors in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the ASC considered whether the proposed rule includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation). For the following reasons, the ASC finds that the proposed rule does not trigger the $100 million UMRA threshold. First, the mandates in the proposed rule apply only to those States that choose to establish an AMC registration and supervision system. Second, the costs specifically related to requirements set forth in statute are excluded from expenditures under the UMRA. Given that the proposed rule reflects requirements that arise from section 1473 of the Dodd-Frank Act, the UMRA cost estimate for the proposed rule is zero. For this reason, and for the other reasons cited above, the ASC has determined that this proposed rule will not result in expenditures by State, local, and tribal governments, or the private sector, of $100 million or more in any one year. Accordingly, this proposed rule is not subject to section 202 of the UMRA.

For the reasons set forth in the preamble, the ASC proposes to amend 12 CFR part 1102 as follows:

I. Legal Authority

These proposed amendments are promulgated under the authority of the TVA Act, as amended, 16 U.S.C. 831-831ee, the Archaeological Resources Protection Act, 16 U.S.C. 470aa-470mm, and the Antiquities Act of 1906, 16 U.S.C.431, 432 & 433.

This proposed rule amends TVA's regulations implementing the Archaeological Resources Protection Act of 1979 (Pub. L. 96-95, as amended by Pub. L. 100-555, Pub. L. 100-588; 93 Stat. 721; 102 Stat. 2983; 16 U.S.C. 470aa-mm) to provide for the issuance of petty offense citations by TVA's law enforcement agents for violations of ARPA or AA.

Section 10(a) of ARPA requires the Departments of Interior, Agriculture and Defense and the Tennessee Valley Authority to promulgate such uniform rules and regulations as may be necessary to carry out the purposes of ARPA. The first purpose of ARPA is “to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands.” 16 U.S.C. 470aa(b). The uniform regulations for ARPA originally were published on January 6, 1984 to implement the Act of 1979. The uniform regulations were then revised on January 26, 1995 to incorporate the amendments to ARPA promulgated by Congress in 1988.

Section 10(b) of ARPA requires each Federal land manager (FLM) to promulgate such regulations, consistent with the uniform regulations under Section 10(a), as may be appropriate for the carrying out of the FLM's functions and authorities under the Act. Thus, Section 10(b) allows individual Federal agencies to tailor the uniform regulations to suit their own particular needs with a view to effectively implementing the authorities under the Act. TVA has adopted the uniform regulations as its own. See 18 CFR part 1312 (1984 and 1995). This proposed rule amends TVA's ARPA regulations by enabling TVA's law enforcement agents to issue petty offense citations for violations of ARPA 1 or AA 2 occurring on lands owned by the United States that are entrusted to TVA.3 The issuance of such petty offense citations would be consistent with the authority granted to TVA's law enforcement agents under the TVA Act, and advance the effective prosecution of violations of ARPA and AA.

Under the TVA Act, the TVA Board of Directors “may designate employees of the Corporation to act as law enforcement agents” to “make arrests without warrant for any offense against the United States committed in the agent's presence” that occurs “on any lands or facilities owned or leased by the Corporation.” See 16 U.S.C. 831c-3. Based on this authority, the proposed rule amends TVA's regulations for protection of archaeological resources to authorize certain TVA law enforcement agents to issue petty offense citations for the violation of any provision of 16 U.S.C. 470ee or 16 U.S.C. 433. Those TVA law enforcement agents that are designated by the Director of TVA Police and Emergency Management for the purpose of conducting archaeological investigations shall have the authority to issue petty offense citations for ARPA or AA violations committed in the agent's presence on lands owned by the United States that are entrusted to TVA. For any such petty offense committed on lands entrusted to TVA, the citation may be issued at the site of the offense, or on non-TVA land (a) when the person committing the offense is in the process of fleeing the site of the offense to avoid arrest, or (b) to protect the archaeological artifacts involved in the commission of the offense.4 The citation will require the person charged with the violation to appear before a United States Magistrate Judge within whose jurisdiction the affected archaeological resource is located.5

This proposal would amend TVA's regulations for the protection of archaeological resources by providing for issuance of petty offense citations by TVA's law enforcement agents for violations of ARPA or AA. This proposal is not subject to Office of Management and Budget Review under Executive Order 12866. The proposal contains no Federal mandates for State, local, or tribal government or for the private sector. TVA has determined that these proposed amendments will not have a significant annual effect of $100 million or more or result in expenditures of $100 million in any one year by State, local, or tribal governments or by the private sector. Nor will the proposal have concerns for environmental health or safety risks that may disproportionately affect children, have significant effect on the supply, distribution, or use of energy, or disproportionally impact low-income or minority populations. Accordingly, the proposal has no implications for any of the referenced authorities. TVA will continue to appropriately review specific requests in accordance with applicable laws, regulations, and Executive Orders.

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., TVA is required to prepare a regulatory flexibility analysis unless the head of the agency certifies that the proposal will not have a significant economic impact on a substantial number of small entities. TVA's Chief Executive Officer has certified that this proposal will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. This determination is based on the finding that the proposed amendments are directed toward Federal resource management to help prevent loss or destruction of archaeological resources, with no economic impact on the public.

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act.

For the reasons set out in the preamble, we propose to amend 18 CFR part 1312 as follows:

Section 351.309 of the Department's regulations sets forth limits for the submission of case and rebuttal briefs and provides guidance on what should be contained in these documents. However, unlike other Federal Agencies (e.g., the International Trade Commission, Department of Labor, or the Internal Revenue Service Tax Court),1 the Department does not currently limit the length of such briefs. As a result, submissions may contain lengthy or duplicative arguments in antidumping and countervailing duty proceedings. The review and summarization of these lengthy submissions consumes considerable resources. To reduce the strain on limited resources and streamline the process, the Department proposes amending 19 CFR 351.309 to impose word limits on case and rebuttal briefs.

The proposed revision would set forth a limit of 25,000 words in total for each party's case and rebuttal briefs. A party may decide on the number of words it chooses to allocate among its case brief and rebuttal brief, but the combined total between the two shall not exceed 25,000 words. Each case brief must contain a certification by the filing party or its representative, indicating the number of words used in the brief, and the number of unused words remaining for the rebuttal brief. Each rebuttal brief must contain a certification by the filing party or its representative indicating the number of words used and that the total combined word limit of 25,000 words has not been exceeded. The word limit will include all attachments, headings, footnotes, endnotes, and quotations used in the document; it will not include the table of contents, table of statutes, regulations and cases cited, and summary of arguments that preface the arguments in the brief, referenced in paragraphs (c)(2) and (d)(2) of the revised regulation below. In determining the word count, a party may rely on the software program used to prepare the brief. Briefs in excess of the word count shall be rejected and shall be considered untimely.

If an interested party challenges a party's word count, such a filing must be made within 48 hours of the filing of the final version of the case or reply brief in ACCESS.2 While parties may not be able to view another party's business proprietary case brief in ACCESS and may have to rely on being served the brief by the filing party, we note that 19 CFR 351.303(f)(3)(i) contains specific rules for service of briefs. Case briefs must be served on persons on the service list 3 the same day that they are filed with the Department by personal service or by overnight mail or courier the next day which we find provides adequate time for a party's challenge to be filed within the 48-hour window. 4 The Department will evaluate challenges received and determine the proper course of action.

Where the Department finds that good cause exists, the word limit may be revised by the Department if a party makes such a request. Such requests must be received sufficiently in advance of the briefing deadlines to be considered.

The Department is issuing this proposed rule to modify the regulation at issue pursuant to Administrative Procedure Act (5 U.S.C. 553) notice and comment procedures; we invite comments from all interested parties.

The Department proposes to modify 19 CFR 351.309, to include new paragraph (e) on word limits, as indicated below and to make conforming amendments to 19 CFR 351.309(a), (b), and (c). These modifications, if adopted, are intended to establish word limits for case and rebuttal briefs, as well as the accompanying requirements for imposing word limits. This rulemaking would be effective for proceedings initiated on or after 30 days following the date of publication of the final rule. This proposed rule makes additional minor edits to § 351.309: (1) The words “or countervailing duty” are being added to § 351.309(b)(1) and (c)(1)(iii) to be consistent with § 351.214(k), and (2) the Roman numerals (i) and (ii) in current § 351.309(e), which is proposed § 351.309(f), have been amended to be Arabic numbers (1) and (2) to be consistent with the other paragraphs of the regulation.

The Department invites parties to comment on this proposed rule and the proposed effective date. Further, any party may submit comments expressing its disagreement with the Department's proposal and may propose an alternative approach.

It has been determined that this proposed rule is not significant for purposes of Executive Order 12866.

This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. A summary of the need for, objectives of and legal basis for this rule is provided in the preamble, and is not repeated here.

The entities upon which this rulemaking could have an impact include foreign exporters and producers, some of whom are affiliated with U.S. companies, and U.S. importers. Enforcement & Compliance currently does not have information on the number of entities that would be considered small under the Small Business Administration's size standards for small businesses in the relevant industries. However, some of these entities may be considered small entities under the appropriate industry size standards. Although this proposed rule may indirectly impact small entities that are parties to individual antidumping or countervailing duty proceedings, it will not have a significant economic impact on any entities.

The proposed action is merely to streamline the process contained in the current Department regulations. If the proposed rule is implemented, no entities would be required to undertake additional compliance measures or expenditures. Rather, the regulation, in this proposed rulemaking, is to reduce the burden placed on the Department and interested parties when lengthy or duplicative arguments are made in case briefs and then must be addressed. Because the proposed rule imposes limits on the submissions of case and rebuttal briefs in an antidumping or countervailing duty proceeding, it does not place a burden on or directly impact any business entities. The proposed rule merely strengthens the current regulations to better align with current Departmental practices. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small business entities. For this reason, an Initial Regulatory Flexibility Analysis is not required and one has not been prepared.

For the reasons stated, 19 CFR part 351 is proposed to be amended as follows:

Under section 409(b)(5) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 348(b)(5)), we are giving notice that we have filed a food additive petition (FAP 6B4815), submitted by Breast Cancer Fund, Center for Science in the Public Interest, Center for Environmental Health, Center for Food Safety, Clean Water Action, Consumer Federation of America, Earthjustice, Environmental Defense Fund, Improving Kids' Environment, Learning Disabilities Association of America, and Natural Resources Defense Council, c/o Mr. Thomas Neltner, 1875 Connecticut Ave. NW., Suite 600, Washington, DC 20009. The submission proposes that we amend and/or revoke specified food additive regulations under 21 CFR parts 175, 176, 177, and 178 to no longer provide for the food contact use of specified ortho-phthalates. We have filed this portion of the submission as a food additive petition. The submission also requests that we amend our regulations in 21 CFR part 181 related to prior-sanctioned uses of specified ortho-phthalates and issue a new regulation in 21 CFR part 189 prohibiting the use of eight specific ortho-phthalates. We have declined to file these portions of the submission as a food additive petition.

In accordance with the procedures for amending or revoking a food additive regulation in § 171.130 (21 CFR 171.130), the petition asks us to amend parts 175, 176, 177, and 178 to no longer provide for the food contact use of certain specified ortho-phthalates. The specified ortho-phthalates and corresponding regulations in parts 175, 176, 177, and 178 are as follows:

Butyl benzyl phthalate (CAS No. 85-68-7), Butyldecyl phthalate (CAS No. 89-19-0), Butyloctyl phthalate (CAS No. 84-78-6), Butyl phthalate butyl glycolate (CAS No. 85-70-1), Di(butoxyethyl) phthalate (CAS No.117-83-9), Dibutyl phthalate (CAS No. 84-74-2), Dicyclohexyl phthalate (CAS No. 84-61-7), Di(2-ethylhexyl)hexahydrophthalate, Di(2-ethylhexyl)phthalate (CAS No. 117-81-7), Diethyl phthalate (CAS No. 84-66-2), Dihexyl phthalate (CAS No. 84-75-3), Dihydroabietylphthalate (CAS No. 26760-71-4), Diisobutyl phthalate (CAS No. 84-69-5), Diisodecyl phthalate (CAS No. 26761-40-0), Diisooctyl phthalate (CAS No. 27554-26-3), Dimethyl phthalate (CAS No. 131-11-3), Dioctyl phthalate (CAS No. 117-84-0), Diphenyl phthalate (CAS No. 84-62-8), Ethyl phthalyl ethyl glycolate (CAS No. 84-72-0), Methyl phthalyl ethyl glycolate (CAS No. 85-71-2), Octyldecyl phthalate (CAS No. 119-07-3), and Diallyl phthalate (CAS No. 131-17-9).

Dibutyl phthalate (CAS No. 84-74-2), Diethyl phthalate (CAS No. 84-66-2), Diisooctyl phthalate (CAS No. 27554-26-3), Di(2-ethylhexyl) phthalate (CAS No. 117-81-7), and Diisodecyl phthalate (CAS No. 26761-40-0).

Butyl phthalyl butyl glycolate (CAS No. 85-70-1), Diethyl phthalate (CAS No. 84-66-2), and Ethyl phthalyl ethyl glycolate (CAS No. 84-72-0).

Butylbenzyl phthalate (CAS No. 85-68-7), Dibutyl phthalate (CAS No. 84-74-2), Dicyclohexyl phthalate (CAS No. 84-61-7), and Diallyl phthalate (CAS No. 131-17-9).

Butyl benzyl phthalate (CAS No. 85-68-7) and Diallyl phthalate (CAS No. 131-17-9).

Di(2-ethylhexyl) phthalate (CAS No. 117-81-7).

Dibutyl phthalate (CAS No. 84-74-2), Didecyl phthalate (CAS No. 84-77-5), and Dodecyl phthalate (CAS No. 21577-80-0).

Di(2-ethylhexyl) phthalate (CAS No. 117-81-7) and Dimethyl phthalate (CAS No. 131-11-3).

Castor oil phthalate with adipic acid and fumaric acid diethylene glycol polyester (CAS No. 68650-73-7), Castor oil phthalate, hydrogentated (FDA No. 977037-59-4), Dibutylphthalate (CAS No. 84-74-2), Dicyclohexyl phthalate (CAS No. 84-61-7), Di(2-ethylhexy) phthalate (CAS No. 117-81-7), Diisobutyl phthalate (CAS No. 84-69-5), and Dimethylcyclohexyl phthalate (CAS No. 1322-94-7).

Diisodecyl phthalate (CAS No. 26761-40-0).

Dioctyl phthalate (CAS No. 117-84-0).

Dimethyl orthophthalate (CAS No. 131-11-3).

Butyl benzyl phthalate (CAS No. 85-68-7), Dibutyl phthalate (CAS No. 84-74-2), and Dimethyl phthalate (CAS No. 131-11-3).

Diphenylguanidine phthalate (CAS No. 17573-13-6), Amyl decyl phthalate (CAS No. 7493-81-4), Dibutyl phthalate (CAS No. 84-74-2), Didecyl phthalate (CAS No. 84-77-5), Diisodecyl phthalate (CAS No. 26761-40-0), Dioctyl phthalate (CAS No. 117-84-0), and Octyl decyl phthalate (CAS No. 119-07-3).

Butylbenzyl phthalate (CAS No. 85-68-7), Dicyclohexyl phthalate (CAS No. 84-61-7), Diisononyl phthalate (CAS No. 28553-12-0), Dihexyl phthalate (CAS No. 84-75-3), and Diphenyl phthalate (CAS No. 84-62-8).

Diisodecyl phthalate (CAS No. 26761-40-0), Di(2-ethylhexyl) phthalate (CAS No. 117-81-7), and Diethyl phthalate (CAS No. 84-66-2).

The petitioners request FDA to consider that ortho-phthalates are a class of chemically and pharmacologically related substances, and state that there is no longer a reasonable certainty of no harm for the food contact uses of the specified ortho-phthalates. If we determine that new data are available that justify amending the specified food additive regulations in parts 175, 176, 177, and 178 so that they will no longer provide for the use of the ortho-phthalates, we will publish such an amendment of these regulations in the Federal Register, as set forth in § 171.130 and § 171.100 (21 CFR 171.100).

A portion of the submission relates to uses of five ortho-phthalates that are listed in § 181.27 as prior-sanctioned. Those five ortho-phthalates are as follows: Diethyl phthalate (CAS No. 84-66-2), Ethyl phthalyl ethyl glycolate (CAS No. 84-72-0), Butyl phthalyl butyl glycolate (CAS No. 85-70-1), Diisooctyl phthalate (CAS No. 27554-26-3), and Di(2-ethylhexyl) phthalate (CAS No. 117-81-7). FDA has not filed as part of the food additive petition the request to revoke these prior sanctions. Section 201(s) of the FD&C Act exempts prior-sanctioned materials from the definition of a food additive (21 U.S.C. 321(s)). Therefore, the request to revoke the prior-sanction for these substances is not within the scope of a food additive petition under section 409(b) of the FD&C Act (“a petition proposing the issuance of a regulation prescribing the conditions under which such [food] additive may be safety used”). We have informed petitioners that they may submit a citizen petition under 21 CFR 10.30 requesting that FDA take this action.

A portion of the submission requests that FDA prohibit the food contact use of the following eight ortho-phthalates: Diisobutyl phthalate (CAS No. 84-69-5), Di-n-butyl phthalate (CAS No. 84-74-2), Butyl benzyl phthalate (CAS No. 85-68-7), Dicyclohexyl phthalate (CAS No. 84-61-7), Di-n-hexyl phthalate (CAS No. 84-75-3), Diisooctyl phthalate (CAS No. 27554-26-3), Di(2-ethylhexyl) phthalate (CAS No. 117-81-7), and Diisononyl phthalate (CAS No. 28553-12-0). The submission requests that FDA take this action by issuing a new regulation in part 189. FDA has not filed as part of the food additive petition the request to issue the proposed regulation in part 189. Such a request is not within the scope of a food additive petition under section 409(b) of the FD&C Act (“a petition proposing the issuance of a regulation prescribing the conditions under which such [food] additive may be safety used”). We have informed petitioners that they may submit a citizen petition under 21 CFR 10.30 requesting that FDA take this action.

We also are reviewing the potential environmental impact of the petitioners' requested action. The petitioners have claimed a categorical exclusion from preparing an environmental assessment or environmental impact statement under 21 CFR 25.32(m). In accordance with regulations promulgated under the National Environmental Policy Act (40 CFR 1506.6(b)), we are placing the environmental document submitted with the subject petition on public display at the Division of Dockets Management (see ADDRESSES) so that interested persons may review the document. If we determine that the petitioners' claim of categorical exclusion is warranted and that neither an environmental assessment nor environmental impact statement is required, we will announce our determination in the Federal Register if this petition results in an amended regulation(s). If we determine that the claim of categorical exclusion is not warranted we will place the environmental assessment on public display at the Division of Dockets Management and provide notice in the Federal Register announcing its availability for review and comment.

Section 201(g) of SMCRA, 30 U.S.C. 1201(g), provides that any person may petition the Director of OSMRE to initiate a proceeding for the issuance, amendment, or repeal of any regulation adopted under SMCRA. It also specifies that the Director shall either grant or deny the petition within 90 days after receipt. OSMRE's regulations at 30 CFR 700.12 further implement this statutory provision.

Under 30 CFR 700.12(c), the Director is required to determine if the petition sets forth facts, technical justification and law which may provide a reasonable basis for issuance, amendment or repeal of a regulation. If the Director determines that the petition has a reasonable basis, a notice shall be published in the Federal Register seeking comments from the public on the proposed change specified in the petition. This Federal Register document is the notice required by the regulations.

At the close of the comment period, the Director decides to either grant or deny the petition, in whole or in part. We will publish notice of that decision in the Federal Register. If the Director grants the petition, we will then initiate rulemaking proceedings in which we again seek public comment before adopting a final rule. If the Director denies a petition, we notify the petitioner of the reasons for the decision not to initiate any rulemaking action pursuant to the petition. In accordance with 30 CFR 700.12(d), the Director's decision on a petition is a final decision for the Department, which means that the petitioner is not entitled to review by the Office of Hearings and Appeals.

On March 3, 2016, we received from WildEarth Guardians a petition for rulemaking requesting that OSMRE amend its self-bonding regulations at 30 CFR 800.23 to ensure that companies with a history of financial insolvency, and their subsidiary companies, are not allowed to self-bond coal mining operations. The petition claims that current rules allow regulatory authorities to accept self-bond guarantees from subsidiary companies that are technically insolvent due to the financial status of their parent corporations, potentially shifting the financial burden for substantial mine reclamation costs to American taxpayers in the event the companies do not have the financial resources to complete their mine reclamation obligations.

In its petition, WildEarth Guardians provides draft regulatory language that it alleges will ensure that any entity, including non-parent corporate guarantors, will be subject to appropriate financial scrutiny before being allowed to self-bond. Specifically, WildEarth Guardians requests that we revise our self-bonding regulations to define ultimate parent corporation, limit the total amount of present and proposed self-bonds to not exceed twenty-five (25) percent of the ultimate parent corporation's tangible net worth in the United States, and require that both the self-bonding applicant and its parent corporation meet any self-bonding financial conditions in 30 CFR 800.23, including the requirement that neither have filed for bankruptcy in the last five (5) years.

The petition and exhibits can be viewed and downloaded at http://www.regulations.gov. The petition has been assigned Docket ID: OSM-2016-0006. The petition and exhibits also are available for inspection at the location listed under ADDRESSES.

We are seeking comment on the merits of the petition and the requested rule changes. The energy industry is in the midst of a major transformation. Low domestic and global demand for coal, plentiful low-cost shale gas and fuel switching and coal power plant retirements by utilities, the highest coal stockpile inventories in 25 years, unsuccessful business decisions, and projections of declining coal demand have created significant challenges for the coal industry.

SMCRA allows States to accept self-bonds, but requires that the bond be sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture. 30 U.S.C. 1259(a). Eighteen States allow self-bonding under their regulations and eleven states currently have self-bonded sites. According to the most recent data from the States, outstanding self-bond obligations total approximately $3.86 billion, much of which involves non-parent guarantees.

Several large coal companies have filed for bankruptcy protection. These companies provided, and several States elected to accept, over $2.4 billion in self-bonds to ensure that lands and waters impacted by coal mining were restored. Several large coal mining companies have recently filed for bankruptcy, raising concerns for State regulators, OSMRE, the Department of the Interior, Members of Congress, citizens and many other stakeholders.

There is a concern about whether disturbed coal mines will be reclaimed by the bankrupt companies; whether the bankrupt companies will abandon their legal obligations to restore impacted lands and waters; whether the costs to restore the land and water will be shifted to taxpayers; and, whether the existing regulations are adequate to protect people, communities, and the environment as envisioned by Congress when it enacted SMCRA.

OSMRE will evaluate whether the changes proposed in the rulemaking petition are necessary or adequate to address deficiencies in the current regulations and practices. We ask all States, stakeholders and the public to consider whether the changes proposed by petitioners, or other changes beyond what the petitioners have proposed, should be made. We also request you articulate what those changes should be and why they should be made.

We will review and consider all comments submitted to the addresses listed above (see ADDRESSES) by the close of the comment period (see DATES).

Please include the Docket ID “OSM-2016-0006” at the beginning of all written comments. We cannot ensure that comments received after the close of the comment period (see DATES) or at locations other than those listed above (see ADDRESSES) will be included in the docket or considered in the development of a proposed rule.

Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

We will not hold a public hearing on the petition. The petitioner did not request a hearing and we have determined under 30 CFR 700.12(c) that no hearing is necessary.

This notice of availability is not a proposed or final rule, policy, or guidance. Therefore, it is not subject to the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or Executive Orders 12866, 13563, 12630, 13132, 12988, 13175, and 13211. We will conduct the analyses required by these laws and executive orders only if we decide to grant the petition and develop a proposed rule.

In developing this notice of availability, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554, section 15).

This notice of availability is not subject to the requirement to prepare an Environmental Assessment or Environmental Impact Statement under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), because no proposed action, as described in 40 CFR 1508.18(a) and (b), yet exists. This notice of availability only seeks public comment on whether the Director should grant the petition and initiate rulemaking. If the Director ultimately grants the petition, we will prepare the appropriate NEPA compliance documents as part of the rulemaking process.

I. Background on the Alabama Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Alabama Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15 and 901.16.

By letter dated March 18, 2016 (Administrative Record No. AL-0669), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative. Below is a summary of the changes proposed by Alabama. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Alabama proposes to revise language providing appropriate costs and expenses to any party only if a person initiated or participated in a proceeding in bad faith for the purpose of harassing or embarrassing the permittee or State Regulatory Authority.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., c.t. on June 6, 2016. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rulemaking is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

On January 29, 2016, the Breakwater Powerboat Association notified the Coast Guard that it will be sponsoring a high-speed boat race from 7:30 a.m. to 6:30 p.m. on June 18, 2016. Alternate time and date will be from 10:00 a.m. to 2:00 p.m. June 19, 2016. The boat race will take place at Ohio River mile 492.0 to 495.5 in the vicinity of Lawrenceburg, IN. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with a high- speed regatta would be a safety concern for anyone within in the regulated area.

The purpose of this rulemaking is to ensure the safety of vessels, spectators and the navigable waters within the regulated area before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a special local regulation from 7:30 a.m. to 6:30 p.m. on June 18, 2016. The special local regulation would cover all navigable waters of the Ohio River from mile 492.0 to 495.5 in Lawrenceburg, IN. The duration of the regulated area is intended to ensure the safety of vessels, spectators and these navigable waters before, during, and after the scheduled high-speed regatta. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

E.O.s 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated area, and the rule would allow vessels to seek permission to enter the regulated area.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under E.O. 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

Also, this proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321- 4370f), and have made a preliminary determination 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 proposed rule involves a special local regulation lasting less than 12 hours that would prohibit entry within the regulated area. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

I. Background

Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including RACT, for sources of emissions. Section 182(b)(2)(A) provides that for certain nonattainment areas, states must revise their SIPs to include RACT for sources of volatile organic compound (VOC) emissions covered by a CTG document issued after November 15, 1990 and prior to the area's date of attainment. EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” 44 FR 53761 (September 17, 1979). In subsequent Federal Register notices, EPA has addressed how states can meet the RACT requirements of the CAA.

CTGs are intended to provide state and local air pollution control authorities information that should assist them in determining RACT for VOCs from various sources of fiberglass boat manufacturing. EPA has not published a previous CTG for fiberglass boat manufacturing materials, but did publish an assessment of VOC emissions from fiberglass boat manufacturing in 1990. The 1990 assessment defined the nature and scope of VOC emissions from fiberglass boat manufacturing, characterized the industry, estimated per plant and national VOC emissions, and identified and evaluated potential control options. In 2001, EPA promulgated the National Emission Standards for Hazardous Air Pollutants for Boat Manufacturing, 40 CFR part 63, subpart VVVV (2001 NESHAP). The 2001 NESHAP established organic hazardous air pollutant (HAP) emissions limits based on low-HAP resins and gel coats and low-emitting resin application technology. Several of the air pollution control districts in California have specific regulations that control VOC emissions from fiberglass boat manufacturing operations as part of their regulations for limiting VOC emissions from polyester resin operations. Several other states also have regulations that address VOC emissions from fiberglass boat manufacturing as part of polyester resin operations. After reviewing the 1990 VOC assessment, the 2001 NESHAP, and existing California district and other state VOC emission reduction approaches, and after considering information obtained since the issuance of the 2001 NESHAP, EPA developed a CTG entitled Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials (Publication No. EPA 453/R-08-004; September 2008).

The CTG for fiberglass boat manufacturing materials provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. This CTG applies to facilities that manufacture hulls or decks of boats from fiberglass, or build molds to make fiberglass boat hulls or decks. EPA's 2008 CTG recommends that the following operations should be covered: Open molding resin and gel coat operations (these include pigmented gel coat, clear gel coat, production resin, tooling gel coat, and tooling resin); resin and gel coat mixing operations; and resin and gel coat application equipment cleaning operations.

EPA's 2008 CTG recommends the following VOC reduction measures: VOC emission limits for molding resins and gel coats; work practices for resin and gel coat mixing containers; and VOC content and vapor pressure limits for cleaning materials. Recommended VOC emission limits for open molding resin and gel coat operations are shown in Table 1. A more detailed explanation for determining the VOC emission limits for molding resin and gel coats can be found in the Technical Support Document (TSD) for this rulemaking under Docket ID No. EPA-R03-OAR-2016-0189 and available online at www.regulations.gov.

On March 2, 2016, the Pennsylvania Department of Environmental Protection (PADEP) submitted to EPA a SIP revision concerning implementation of RACT requirements for the control of VOC emissions from fiberglass boat manufacturing materials. Pennsylvania is adopting EPA's CTG standards for fiberglass boat manufacturing materials, including the emission limits found in Table 1. The regulation is contained in 25 Pa. Code Chapter 129 (relating to standards for sources), and this SIP revision seeks to add 25 Pa. Code section 129.74 (control of VOC emissions from fiberglass boat manufacturing materials) to the Pennsylvania SIP. In addition to adopting EPA's CTG standards, 25 Pa. Code section 129.74 includes numerous terms and definitions to support the interpretation of the measures, as well as work practices for cleaning; compliance and monitoring requirements; sampling and testing; and record keeping requirements. EPA finds the provisions in 25 Pa. Code section 129.74 identical to the CTG standards for fiberglass boat manufacturing materials and is therefore approvable in accordance with sections 172(c)(1) and 182(b)(2)(A) of the CAA. For more detailed analysis by EPA of how 25 Pa. Code section 129.74 addresses the CTG, see the TSD for this rulemaking.

This SIP revision also notes that the requirements of 25 Pa. Code section 129.74 supersede the requirements of a RACT permit issued under 25 Pa. Code sections 129.91-129.95 prior to December 19, 2015 to the owner or operator of a source subject to 25 Pa. Code section 129.74 to control, reduce, or minimize VOCs from a fiberglass boat manufacturing process, except to the extent the RACT permit contains more stringent requirements.

EPA is proposing to approve the March 2, 2016 Pennsylvania SIP revision pertaining to adding 25 Pa. Code section 129.74 to the Pennsylvania SIP because section 129.74 meets the requirement to adopt RACT for sources covered by EPA's CTG standards for fiberglass boat manufacturing materials. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

In this proposed rulemaking action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference 25 Pa. Code section 129.74 into the Pennsylvania SIP. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the EPA Region III office (see the ADDRESSES section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule concerning Pennsylvania's control of VOC emissions from fiberglass boat manufacturing materials does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

On October 15, 2014, EPA received a revision to the State of Maryland's SIP submitted by MDE. The SIP revision includes Maryland regulations which control emissions from various processes and fuel-burning equipment at Kraft pulp mills and which clarify the VOC control system and requirements for several process installations at Kraft pulp mills.

In the October 15, 2014 SIP revision, MDE's submittal included a definition for “NOX Ozone Season Allowance” which references a defunct CAA program, CAIR. EPA discussed with MDE the need to remove all references to CAIR within the definition of “NOX Ozone Season Allowance,” for EPA to approve the October 15, 2014 SIP revision.

In May 2005, EPA promulgated CAIR which required certain states to reduce emissions of sulfur dioxide (SO2) and NOX that significantly contribute to downwind nonattainment of the 1997 national ambient air quality standard (NAAQS) for fine particulate matter (PM2.5) and ozone. 70 FR 25162 (May 12, 2005). After litigation in the United States Court of Appeals for the D.C. Circuit (D.C. Circuit) which remanded CAIR to EPA, EPA promulgated the Cross State Air Pollution Rule (CSAPR) to replace CAIR and to help states reduce air pollution and attain CAA standards. 76 FR 48208 (August 8, 2011).1 In subsequent, additional litigation, CSAPR was initially vacated by the D.C. Circuit but upheld by the U.S. Supreme Court. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). EPA began implementing CSAPR in January 2015 as CAIR's replacement. See 79 FR 71663 (December 3, 2014) (interim final rulemaking issued after DC Circuit lifted stay on CSAPR).2

On September 29, 2015, EPA received a supplemental letter from MDE committing to remove all references to CAIR within the definition of “NOX Ozone Season Allowance,” as a SIP revision, no later than a year from EPA finalizing our conditional approval of the SIP submittal. Upon final approval of the revised definition of “NOX Ozone Season Allowance” as a SIP revision, EPA will convert the conditional approval of the October 15, 2014 SIP submission with the regulations and requirements for Kraft pulp mills to a full approval.

MDE's SIP revision includes amended and new regulations in order to control emissions from various processes and fuel-burning equipment at Kraft pulp mills. The SIP revision submittal includes an amendment to the Code of Maryland Regulations (COMAR) 26.11.01.01—“General Administrative Provisions” in order to add a definition for “NOX Ozone Season Allowance.” This definition was added to the COMAR by Maryland because the NOX emission limitations for the Kraft pulp mills rely on use of NOX allowances. Because the definition in COMAR 26.11.01.01 makes references to CAIR which sunset on December 31, 2014 as EPA is now implementing CSAPR, EPA cannot fully approve the definition for “NOX Ozone Season Allowance.” MDE has committed to remove references to CAIR and submit a revised definition in a separate SIP submittal. The October 15, 2014 SIP revision also seeks to add to the SIP COMAR 26.11.14.07—“Control of NOX Emissions from Fuel Burning Equipment” in order to: (1) Establish the applicability and NOX emission standards to any fuel burning equipment with a maximum design heat input capacity of greater than 250 million British thermal unit (Btu) per hour located at any Kraft pulp mill; (2) establish NOX emission limits for Kraft pulp mills including an emission rate of 0.70 pounds of NOX per million Btu, an emission limit of 947 tons of NOX during the period May 1 through September 30 of each year, and an emission rate of 0.99 pounds of NOX per million Btu during the period of October 1 through April 30 of each year; (3) establish the requirements for demonstrating compliance with the NOX limits; (4) permit pulp mills to secure up to 95 allowances for each period in which a mill exceeds the 947 ton emission cap from May through September 30 of each year; (5) specify the process of achieving compliance through the use of allowances; and (6) establish monitoring and reporting requirements. The NOX emission limitations of 0.70 pounds of NOX per million Btu from May 1 through September 30 of each year and 0.99 pounds of NOX per million Btu during the period of October 1 through April 30 of each year were previously included in COMAR 26.11.09.08 and are already included in the Maryland SIP. See 69 FR 56170 (September 20, 2004). Thus, these provisions are not new to the SIP, but merely relocated. Pursuant to the NOX SIP Call at COMAR 26.11.29 and .30, the sole Kraft pulp mill in Maryland was allocated 947 allowances for NOX emissions. COMAR 26.11.29 and .30 are in the existing Maryland SIP. With this SIP revision, Maryland seeks to include the 947 ton NOX cap in the Maryland SIP at COMAR 26.11.14.07. Thus, the October 15, 2014 SIP revision simply relocates the 947 ton NOX cap within the Maryland SIP.

The SIP revision also includes an amended COMAR 26.11.09.08—“Control of NOX Emissions for Major Stationary Sources” in order to remove from this provision subsection (C)(h) which has NOX requirements for the fuel burning equipment at non-electric generating facilities. Maryland requests removal of this subsection (C)(h) of COMAR 26.11.09.08 from the Maryland SIP because the NOX requirements for pulp mills to meet a NOX emissions rate of 0.70 pounds per million Btu during the period May 1 to September 30 of each year and 0.99 during the period October 1 through April 30 of each year have been relocated to COMAR 26.11.14.07.

Finally, the SIP revision also includes a revised COMAR 26.11.14.06—“Control of Volatile Organic Compounds” in order to: (1) Clarify that air emissions from brown stock washers are to be collected and combusted; (2) clarify that evaporators, digester blow tank systems, and brown stock wasters shall be controlled by removing 90 percent (90%) or more of the condensate VOC loading by demonstrating a VOC removal or destruction efficiency of the condensate stream stripper of 90% or greater or a system analysis of these units; and (3) specify approvable testing methods to demonstrate the collective VOC removal efficiency of the condensate steam stripper and other control systems as required. This provision will reduce VOC emissions from Kraft pulp mills and will strengthen the Maryland SIP.

A full explanation of the SIP revision and EPA's analysis of the revision are contained in the technical support document (TSD) prepared in support of this proposed rulemaking. A copy of this TSD is located in the docket of this proposed rulemaking and is available online at www.regulations.gov.

EPA is proposing to conditionally approve the Maryland October 15, 2014 SIP revision concerning the regulations and requirements to control NOX and VOC emissions from various processes and fuel-burning equipment at Kraft pulp mills as it strengthens the SIP with provisions related to controlling emissions of NOX and VOC. Pursuant to section 110(k)(4) of the CAA, EPA's proposal is to conditionally approve the October 15, 2014 SIP revision because Maryland committed in a letter dated September 29, 2015 to submit to EPA a SIP revision removing all references to CAIR, a defunct CAA program, within the definition of “NOX Ozone Season Allowance” in COMAR 26.11.01.01, no later than a year from EPA finalizing our conditional approval.

When EPA approves the revised definition of “NOX Ozone Season Allowance” in COMAR 26.11.01.01, EPA will remove the conditional nature of its approval, and the October 15, 2014 SIP revision will, at that time, receive a full approval status. Should MDE fail to meet the condition specified in this rulemaking action, the final conditional approval of the SIP revision will convert to a disapproval. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

In this proposed rulemaking action, EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference revisions to COMAR 26.11.01.01, COMAR 26.11.14.07, COMAR 26.11.09.08, and COMAR 26.11.14.06 as previously discussed. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, pertaining to the regulations and requirements for the control of emissions from various processes and fuel-burning equipment from Kraft pulp mills, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), Rules and Regulations Implementing the TCPA of 1991, CG Docket No. 02-278, FCC 16-57, adopted May 24, 2016, and released May 6, 2016. A copy of document FCC 16-57 and any subsequently filed documents in this matter will be available during regular business hours at the FCC Reference Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554, (202) 418-0270. The full text of document FCC 16-57 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. A copy of document FCC 16-57 and any subsequently filed documents in this matter may also be found by searching ECFS at: http://apps.fcc.gov/ecfs/ (insert CG Docket No. 02-278 into the Proceeding block).

Pursuant to 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using ECFS. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

Pursuant to § 1.1200 of the Commission's rules, 47 CFR 1.1200, this matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). Document FCC 16-57 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/policy.

Document FCC 16-57 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. Public Law 107-198; 44 U.S.C. 3506(c)(4).

1. In the NPRM, the Commission seeks comment on implementation of the Bipartisan Budget Act of 2015 (Budget Act) amendments. Among other things, the Commission seeks comment on a number of implementation questions, such as which calls are covered by the phrase “solely to collect,” how it should restrict the number and duration of such calls, and how to implement such restrictions.

2. At what point is a call to collect a debt a covered call? The Commission turns first to the phrase “solely to collect a debt” and seeks comment regarding the parameters of that phrase, including how the Commission should interpret “solely” and “collect.” The Commission's proposal, to ensure that debtors do not receive non-consent calls before failing to make a timely payment, is to interpret “solely to collect a debt” to mean only those calls made to obtain payment after the borrower is delinquent on a payment. The Commission seeks comment on this proposal, including how the Commission should interpret “delinquent” for these purposes, and any alternative approaches. The Commission also seeks comment on the alternative that covered calls may only be made after the debtor is in default, how the Commission should define “default,” and whether it should distinguish between default caused by non-payment and a default resulting from a different cause under the terms of the debt instrument.

3. Are debt servicing calls covered? The Commission notes that debt servicing calls may provide a valuable service by offering information about options and programs designed to keep at-risk debtors from defaulting or becoming delinquent on their loans. Helping a debtor avoid delinquency or default can preserve the person's payment history and credit rating, and help maintain eligibility for future loans. The potential value of these debt servicing calls, and the probability that servicing calls will create conditions for debtors that allow debts to be more readily collected by the United States, leads the Commission to propose that servicing calls should be included in covered calls. The Commission seeks comment on this proposal and, if adopted, how to ensure it does not result in the types of calls consumers would not want, such as marketing calls. The Commission seeks comment on what initiating event should enable a creditor or entity acting on a creditor's behalf to begin making covered calls to convey debt servicing information. Its proposal, above, is that covered calls begin when a borrower is delinquent on a payment; should delinquency also be the initiating event for debt servicing calls, or should some other event trigger a caller's ability to make servicing calls under the exception? What should the trigger event be?

4. The Commission seeks comment on the definition of “servicing” that should guide its analysis in this regard. Should servicing calls include calls informing debtors how to reduce payment amounts; consolidate, modify, or restructure loans; change payment dates; or other matters indirectly related to seeking payment? The Commission proposes that permissible “servicing” calls only refer to calls made by the creditor and those entities acting on behalf of the creditor. The Commission seeks comment on this proposal.

5. “Owed to or guaranteed by the United States.” The Commission seeks comment on the meaning of the phrase “a debt owed to or guaranteed by the United States.” What is a debt “owed to” the United States and a debt “guaranteed by” the United States? Does the phrase “owed to or guaranteed by” include debts insured by the United States? Should the Commission look to or adopt the definition of “debt” in the DCIA? Why or why not?

6. The Commission also seeks comment on whether there are any circumstances under which a party other than the federal government obtains a pecuniary interest in a debt such that the debt should no longer be considered to be “owed to . . . the United States.” Basic contract principles dictate that when an owner sells an item, it no longer belongs to the original owner, but to the purchaser. Likewise, the purchaser of a debt is owed the repayment obligation, not the prior obligee. For example, would a debt still be “owed to . . . the United States” if the right to repayment is transferred in whole or part to anyone other than the United States, or a collection agency collects the funds and then remits to the federal government a percentage of the amount collected? Are there specific types of debts that are covered or not covered by the phrase “debt owed to or guaranteed by the United States,” such as federal student loans, Small Business Administration loans, and federally guaranteed mortgages? Are there any other factors the Commission should consider in determining which types of debts should be included or excluded from this phrase for purposes of implementing the Budget Act amendments to the TCPA? If so, what are those factors? Consistent with the focus of the amended statutory language on debts “owed to or guaranteed by the United States,” should the Commission also require that the content of covered calls be limited to such debts, and that such calls not be permitted to include content concerning other debts or matters about which the caller may want to speak with the debtor? Similarly, can the Commission and should the Commission place any limits on a covered caller using or transferring (such as by sale) information (such as the debtor's location or phone number) obtained during covered calls in order to collect other debts or to address other matters?

7. Who can be called? The Commission seeks comment on the person or persons to whom covered calls may be made. The Commission believes the most reasonable way to read the phrase “solely to collect a debt” is to include only calls to the person or persons obligated to pay the debt because it appears impossible that calls to non-debtors by their nature would directly result in collection from the debtor. The Commission believes this approach will ensure that a debtor's family, friends, and other acquaintances will not be subject to non-consent robocalls seeking information about the debtor. The Commission seeks comment on this proposal and the related question of whether it should limit covered calls to the cellular telephone number the debtor provided to the creditor, e.g., on a loan application.

8. The Commission seeks comment on whether calls to persons the caller does not intend to reach, that is persons whom the caller might believe to be the debtor but is not, are covered by the exception. Parties seeking debtors' current telephone numbers often use techniques such as skip tracing, which are not guaranteed to identify the debtor. The Commission proposes to exclude such calls from the exception to encourage callers to avoid robocalling unwitting individuals who have no connection to the debtor. Similarly, and consistent with its recent robocalls decision, the Commission proposes that calls to a wireless number a debtor provided to a creditor, but which has been reassigned unbeknownst to the caller, are not covered by the exception, but have the same one-call window the Commission has found to constitute a reasonable opportunity to learn of reassignment. The Commission seeks comment on its proposals and any alternatives.

9. Who may call? The Commission next seeks comment on who may make the covered calls at issue. As amended, the relevant portion of the TCPA reads: “It shall be unlawful for any person . . . to make any call . . . using any [autodialer] or an artificial or prerecorded voice to any [wireless number] unless such call is made solely to collect a debt owed to or guaranteed by the United States.” This provision is not clear as to who may make calls covered by the exception. The Commission believes the most reasonable way to interpret this language is to include calls made by creditors and those calling on their behalf, including their agents. Is there a limiting principle to determining who should be deemed to be acting on behalf of the creditor? The Commission seeks comment on its interpretation and whether it should interpret the statute to include other callers and, if so, who. Alternatively, should the Commission interpret the statute to apply more narrowly to only the creditor or to the creditor and its agents acting within the actual scope of their authority?

10. The Commission notes that petitions pending before the Commission seek clarification regarding the meaning of “person” and whether the federal government or its agents are persons for purposes of the TCPA, among other things. The Commission seeks comment on whether the Budget Act amendments imply that the federal government is a person for TCPA purposes and whether the Commission must resolve these questions in order to complete this rulemaking. The Commission also seeks comment on whether and, if so, how the Supreme Court's recent decision in Campbell-Ewald Co. v. Gomez should inform the implementation of the Budget Act amendments to the TCPA.

11. Need for restrictions. In considering the need for restrictions on covered calls, the Commission notes the volume of consumer complaints, as set forth above. These factors, along with Congress' explicit statement that the Commission “shall prescribe regulations to implement the amendments made by” the Budget Act, and Congress' authorization that the Commission “may restrict or limit the number and duration of calls made to a telephone number assigned to a cellular telephone service to collect a debt owed to or guaranteed by the United States,” lead the Commission to propose that it does so here. The Commission seeks comment on its proposal and on what types of number and duration restrictions it should adopt for the covered calls. Apart from its specific proposals and questions below, the Commission seeks comment generally on what other actions it should consider to reduce unwanted debt collection robocalls to consumers.

12. If adopted, the nature of restrictions. The Commission seeks comment on how it should restrict or limit the number and duration of covered calls, including both collection calls and debt servicing calls. Consistent with the conditions the Commission has adopted when granting exemptions to permit certain free-to-end-user robocalls to be made without consent of the called party, and regardless of whether the caller leaves a prerecorded or artificial-voice message or whether the call is an autodialed call resulting in a live conversation, the Commission proposes to restrict the number of covered calls to three per month, per delinquency only after delinquency. The Commission believes three calls per month provides an adequate opportunity to convey necessary information about the debt, repayment, and other matters the caller wishes to communicate without the consent of the called party and, in any case, affords callers an opportunity to obtain the debtor's consent to make additional calls beyond any limit the Commission adopts. The Commission proposes that the limit on the number of calls should be for any initiated calls, even if unanswered by a person, because many consumers may choose not to answer calls from unfamiliar numbers. These limits would apply to autodialed, prerecorded, or artificial voice calls to wireless numbers. In the case of autodialed calls, the limits apply whether they use a prerecorded or artificial voice or instead attempt to connect the called debtor with a live agent. The Commission sees potential value, however, in debtors hearing from a live agent to discuss the debt and potential servicing options and seeks comment on whether and how it should encourage that approach. The Commission seeks comment on these proposals. The Commission also seeks comment on the maximum duration of a voice call, and whether the Commission should adopt different duration limits for prerecorded- or artificial-voice calls than for autodialed calls with a live caller. Should there be a limit on the length of text messages? What should that limit be? The Commission also seeks comment on how to count debt servicing calls for purposes of the proposed three-call limit per month or any other limit on the number of calls.

13. Should the Commission look to other standards or precedents for guidance? For example, should the Commission restrict calls to the hours of 8:00 a.m. to 9:00 p.m. (local time at the called party's location), similar to the rule that now applies to telemarketing calls? Should the Commission consider any limits on the number of calls pursuant to the Fair Debt Collection Practices Act if it adopts such limits here? How should the Commission take account of any limits adopted by the Consumer Financial Protection Bureau? Are there other standards or precedents, including restrictions that might exist under either federal or state debt collection laws, the Commission should consider? Are calls covered by the Budget Act exception subject to other laws and rules that more generally govern debt collection and, if so, how should the Commission harmonize any overlapping requirements?

14. Consumer ability to stop covered calls. The Commission has determined that an ability to stop unwanted calls is critical to the TCPA's goal of consumer protection. That right may be more important here, where consumers need not consent to the calls in advance in order for a caller to make the calls. The Commission proposes, therefore, that consumers should have a right to stop such calls at any point the consumer wishes. The Commission seeks comment on its proposal. For example, does the amended law allow the Commission to require that a caller limit covered calls to the first of (1) a specific number (perhaps within a set period of time) or (2) until the consumer says “stop”? The Commission proposes that stop-calling requests should apply to a subsequent collector of the same debt. The Commission seeks comment on this proposal and how it might ensure that a request to stop such calls be honored if later transferred to other collectors. Should the Commission require that callers making covered calls record any request to stop calling and provide a record of such a request to subsequent callers along with other information about the debt?

15. The Commission also proposes, so that consumers fully understand any right it adopts to stop calls, to require callers to inform debtors of their right to make such a request. The Commission seeks comment on this proposal and on when and how callers should provide such notice. For example, should the permissible ways to opt out of further calls under the TCPA—i.e., any reasonable method, including orally or in response to a text message—apply here? Should the Commission require callers making artificial- or prerecorded-voice calls to include an automated, interactive voice- and/or key press-activated opt-out mechanism for stopping future excepted calls?

16. Covered Calls to Residential Lines. The Commission noted that under its current rules, artificial- or prerecorded-voice calls to residential lines that are made for the purpose of collecting a debt are currently not subject to the prior express consent requirement. Although the TCPA allows for broad application of the prior express consent requirement to all non-emergency artificial- and prerecorded-voice calls to residential lines, the Commission has exercised its statutory exemption authority so as to apply the consent requirement only to calls that include or introduce an advertisement or constitute telemarketing. The Commission has also found that debt collection calls do not constitute telemarketing. Accordingly, the consent exception under the Budget Act currently does not appear to affect whether artificial- or prerecorded-voice calls to residential lines for the purpose of collecting a covered debt require prior express consent.

17. The Commission nonetheless proposes to revise its rule concerning artificial- or prerecorded-voice calls to residential lines to reflect the exception contained in the Budget Act. The Commission does not believe, however, that it is necessary at the present time to determine the exact contours of the statutory exception for covered calls to residential lines, including, for example, determining the specific impact of the somewhat different language in the Budget Act amendments with regard to covered calls to residential lines and to wireless numbers. The Commission seeks comment on these views, and on whether it should consider any additional issues concerning covered calls. For example, should any limits on the number and duration of covered calls also apply to covered calls to residential lines, even though such calls would not have required prior express consent even before the Budget Act amendments to the TCPA?

18. Restrictions on Calls to Cellular Telephone Service. Congress authorized the Commission to “restrict or limit the number and duration of calls made to a telephone number assigned to a cellular telephone service to collect a debt owed to or guaranteed by the United States.” Yet, the amendment to the TCPA, authorizing calls made to collect a debt owed to or guaranteed by the United States, is broader, applying to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” Considering the identical language in the prior delegation of authority in 47 U.S.C. 227(b)(2)(C), the Commission proposes that Congress delegated the Commission authority to limit the number and duration of all calls made pursuant to the debt collection exception in 47 U.S.C. 227(b)(1)(A)(iii).

19. Congress, in granting the Commission authority to limit the number and duration of calls, used identical language to the language it used in the separate delegation of authority in 47 U.S.C. 227(b)(2)(C). The identical language in these two delegations of authority indicates that Congress intended the two provisions to apply to the same services.

20. The Commission has interpreted 47 U.S.C. 227(b)(2)(C) to apply to all services mentioned in 47 U.S.C. 227(b)(1)(A)(iii). In so doing, it has interpreted “cellular telephone service” by asking whether services are functionally equivalent from the consumer perspective rather than on technical or regulatory differences, such as which spectrum block is used to provide the service. This avoids, for example, consumers receiving wireless voice service from being treated differently depending on which spectrum block their carriers use and callers having to determine which spectrum block is used for a particular consumer's service in order to know which requirements apply.

21. Applying the canon of statutory construction that Congress knows the law, including relevant agency interpretations, at the time it adopts a statute, the Commission presumes that Congress knew of the Commission's interpretation of this key language. Congress used the same language in the recent delegation of authority without taking any action to alter the Commission's interpretation of identical language elsewhere in the same statute. The Commission therefore proposes that the authority delegated to it in the new 47 U.S.C. 227(b)(2)(H) added by the Budget Act applies to all services to which amended 47 U.S.C. 227(b)(1)(A)(iii) applies. The Commission seeks comment on this proposal.

22. Application of Other TCPA Restrictions to Covered Calls. The Commission believes the most reasonable interpretation is that calls must be in compliance with all other legal requirements—for example, the requirement that artificial- or prerecorded-voice calls contain certain identifying information—in order for the Budget Act consent exception to apply. The Commission seeks comment on this proposal, as well as on whether and how compliance with other legal requirements should affect the application of the Budget Act exception.

23. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the NPRM. Written public comments are requested on the IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided on the first page of this document. The Commission will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

24. The NPRM contains proposals regarding how to modify the Commission's rules to align them with the amended statutory language of the TCPA enacted by Congress in the Bipartisan Budget Act of 2015 (Budget Act). The NPRM seeks comment generally on all entities that make autodialed or prerecorded- or artificial- voice calls to collect debts owed to or guaranteed by the United States. The NPRM seeks comment on covered calls. Specifically, the Commission seeks comment on the parameters of the phrase “solely to collect a debt.” The Commission seeks comment on whether debt servicing calls are covered. The Commission seeks comment on the meaning of the phrase “owed to or guaranteed by the United States,” including the applicability of the exception to debt insured by or purchased from the United States. The Commission seeks comment on the person or persons to whom covered calls can be made and it seeks comment on who is entitled to make calls under the exception Congress created in the Budget Act.

25. The NPRM seeks comment on limits on the number and duration of covered calls. Specifically, the Commission seeks comment on the need for restrictions on covered calls, including types of number and duration restrictions. The Commission seeks comment on the nature of the restrictions, if adopted, including looking to other standards or precedents for guidance. The Commission seeks comment on the consumer's ability to stop covered calls.

26. The NPRM seeks comment on other implementation issues. Specifically, the Commission seeks comment on the applicably of the exception to residential lines. The Commission seeks comment on whether the authority delegated to it in the new 47 U.S.C. 227(b)(2)(H) added by the Budget Act applies to all services to which amended 47 U.S.C. 227(b)(1)(A)(iii) applies. The Commission seeks comment on the application of other TCPA restrictions to covered calls. The Commission's underlying concern is to protect small businesses by giving them ample opportunity to comment on the proposed rules under consideration.

27. The Commission's rules restricting the use of automated telephone dialing equipment and artificial or prerecorded voice to call wireless numbers apply to a wide range of entities, including all entities that make such calls or texts to wireless telephone numbers to collect debts owed to or guaranteed by the federal government. Thus, the Commission expects that the proposals in this proceeding could have a significant economic impact on a substantial number of small entities in a wide range of categories.

28. The proposed and anticipated rules are authorized under sections 1-4, 201(b), 227, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201(b), 227, 303(r); and the Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584.

29. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).

30. Collection Agencies. This industry comprises establishments primarily engaged in collecting payments for claims and remitting payments collected to their clients. The SBA has determined that Collection Agencies with $15 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 4,532 establishments in this category operated throughout that year. Of those, 4,288 establishments operated with annual receipts of less than $10 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

31. Telemarketing Bureaus and Other Contact Centers. This U.S. industry comprises establishments primarily engaged in operating call centers that initiate or receive communications for others—via telephone, facsimile, email, or other communication modes—for purposes such as (1) promoting clients products or services, (2) taking orders for clients, (3) soliciting contributions for a client, and (4) providing information or assistance regarding a client's products or services. The SBA has determined that Telemarketing Bureaus and other Contact Centers with $15 million or less in annual receipts qualify as small businesses. U.S. Census data for 2007 indicate that 2,100 firms in this category operated throughout that year. Of those, 1,909 operated with annual receipts of less than $10 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

32. Commercial Banks and Savings Institutions. Commercial banks are establishments primarily engaged in accepting demand and other deposits and making commercial, industrial, and consumer loans. Commercial banks and branches of foreign banks are included in this industry. Savings institutions are establishments primarily engaged in accepting time deposits, making mortgage and real estate loans, and investing in high-grade securities. Savings and loan associations and savings banks are included in this industry. The SBA has determined that Commercial Banks and Savings Institutions with $500 million or less in assets qualify as small businesses. December 2013 Call Report data compiled by SNL Financial indicate that 6,877 firms in this category operated throughout that year. Of those, 5,533 qualify as small entities. Based on this data, the Commission concludes that a substantial number of businesses in this category are small under the SBA standard.

33. Credit Unions. This industry comprises establishments primarily engaged in accepting members' share deposits in cooperatives that are organized to offer consumer loans to their members. The SBA has determined that Credit Unions with $500 million or less in assets qualify as small businesses. The December 2013 National Credit Union Administration Call Report data indicate that 6,687 firms in this category operated throughout that year. Of those, 6,252 qualify as small entities. Based on this data, the Commission concludes that a substantial number of businesses in this category are small under the SBA standard.

34. Other Depository Credit Intermediation. This industry comprises establishments primarily engaged in accepting deposits and lending funds (except commercial banking, savings institutions, and credit unions). Establishments known as industrial banks or Morris Plans and primarily engaged in accepting deposits, and private banks (i.e., unincorporated banks) are included in this industry. The SBA has determined that Other Depository Credit Intermediation entities with $500 million or less in assets qualify as small businesses. Census data for 2007 indicate that 29 firms in this category operated throughout that year. Due to the nature of this category, the Commission concludes that a substantial number of businesses in this category are small under the SBA standard.

35. Sales Financing. This industry comprises establishments primarily engaged in sales financing or sales financing in combination with leasing. Sales financing establishments are primarily engaged in lending money for the purpose of providing collateralized goods through a contractual installment sales agreement, either directly from or through arrangements with dealers. The SBA has determined that Sales Financing entities with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 2,267 firms in this category operated throughout that year. Of those, 1,806 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

36. Consumer Lending. This U.S. industry comprises establishments primarily engaged in making unsecured cash loans to consumers. The SBA has determined that Consumer Lending entities with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 3,234 firms in this category operated throughout that year. Of those, 2,969 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

37. Real Estate Credit. This U.S. industry comprises establishments primarily engaged in lending funds with real estate as collateral. The SBA has determined that Real Estate Credit entities with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 5,791 firms in this category operated throughout that year. Of those, 5,036 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

38. International Trade Financing. This U.S. industry comprises establishments primarily engaged in providing one or more of the following: (1) working capital funds to U.S. exporters; (2) lending funds to foreign buyers of U.S. goods; and/or (3) lending funds to domestic buyers of imported goods. The SBA has determined that International Trade Financing entities with $38.5 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 125 firms in this category operated throughout that year. Of those, 118 operated with annual receipts of less than $25 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

39. Secondary Market Financing. This U.S. industry comprises establishments primarily engaged in buying, pooling, and repackaging loans for sale to others on the secondary market. The SBA has determined that Secondary Market Financing entities with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 105 firms in this category operated throughout that year. Of those, 74 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

40. All Other Nondepository Credit Intermediation. This U.S. industry comprises establishments primarily engaged in providing nondepository credit (except credit card issuing, sales financing, consumer lending, real estate credit, international trade financing, and secondary market financing). Examples of types of lending in this industry are: short-term inventory credit, agricultural lending (except real estate and sales financing), and consumer cash lending secured by personal property. The SBA has determined that All Other Nondepository Credit Intermediation entities with $38.5 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 4,590 firms in this category operated throughout that year. Of those, 4,494 operated with annual receipts of less than $25 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

41. Mortgage and Nonmortgage Loan Brokers. This industry comprises establishments primarily engaged in arranging loans by bringing borrowers and lenders together on a commission or fee basis. The SBA has determined that Mortgage and Nonmortgage Loan Brokers with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 17,702 firms in this category operated throughout that year. Of those, 17,393 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

42. Other Activities Related to Credit Intermediation. This industry comprises establishments primarily engaged in facilitating credit intermediation (except mortgage and loan brokerage; and financial transactions processing, reserve, and clearinghouse activities). The SBA has determined that Other Activities Related to Credit Intermediation entities with $7 million or less in annual receipts qualify as small businesses. Census data for 2007 indicate that 5,494 firms in this category operated throughout that year. Of those, 5,277 operated with annual receipts of less than $5 million. The Commission concludes that a substantial majority of businesses in this category are small under the SBA standard.

43. Under the current rules, all artificial or prerecorded voice calls to a wireless telephone number are prohibited without prior express consent. The NPRM contains proposals regarding how to modify the Commission's rules to align them with the amended statutory language of the TCPA enacted by Congress in the Budget Act, creating an exception that allows calls to wireless telephones made solely pursuant to the collection of a debt owed to or guaranteed by the United States.

44. The proposals under consideration could result in additional costs to regulated entities. If the Commission imposes restrictions on the number and duration of calls to wireless numbers as proposed for comment in the NPRM, then calling entities might incur some additional costs in tracking that information. For example, calling entities might need to modify software, develop tracking procedures, and train staff in order to keep within the restrictions on the number and duration of calls to wireless numbers. However, some calling entities may already track calls and call durations, and therefore, no additional compliance efforts would be required. Calling entities may also be relieved of tracking the consent of the called party, which could offset any new burdens.

45. If the Commission determines that a called party may stop future calls concerning collection of a debt owed to or guaranteed by the United States as proposed for comment in the NPRM, then calling entities might incur some additional cost in maintaining do-not-call lists for wireless numbers. Such costs could include software modification, development of procedures, and training. However, some calling entities may already have procedures in place for maintaining do-not-call lists, and therefore, no additional compliance efforts will be required.

46. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

47. The Commission believes that any economic burden these proposed rules may have on carriers is outweighed by the benefits to consumers. The compliance costs identified in Section D are small. The Commission seeks comment on how to minimize the economic impact of these proposals. For instance, the Commission seeks comment on the specific costs of the measures discussed in the NPRM and ways to mitigate any implementation costs. The Commission also seeks comment on the overall economic impact these proposed rules may have because it seeks to minimize all costs associated with these proposed rules. Finally, the Commission seeks comment on whether to consider the size of the calling entity or the type of debt being collected in determining the appropriate timeframes for implementation.

48. None.

49. Pursuant to the authority contained in sections 1-4, 227, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 227, 303(r); and the Telephone Consumer Protection Act as amended by the Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584, document FCC 16-57 is adopted.

50. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 16-57, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:

I. Background

Currently, the language in the FAR is not consistent in terms of whether offerors need to be registered in SAM prior to submitting an offer or prior to award. Per FAR clause 52.204-7 an offeror is not “registered in the SAM database” unless an offeror has completed its online annual representations and certifications. FAR 52.204-8(b) and (d) state that if clause 52.204-7 is included in the solicitation, then the offeror verifies by submission of the offer that the representations and certifications in SAM are current and accurate. While the clauses instruct offerors to complete representations and certifications by registering in SAM prior to the submission of offers, the policy at FAR 4.1102 states that SAM registration (which includes online reps and certs) must be completed by the time of award. In order to correct this inconsistency DoD, GSA, and NASA are proposing to amend FAR 4.1102 and 4.1103 to require offeror registration in SAM prior to submission of an offer.

In addition, the proposed rule will require contracting officers to use the name and physical address from the contractor's SAM registration for the provided Data Universal Numbering System (DUNS). We recognize that there is an ongoing FAR case (2015-022, Unique Identification of Entities Receiving Federal Awards) to remove the reference to the DUNS number, and once the final rule from that case is published; references to the DUNS number will be changed. This proposed rule also removes the term “division name” from the FAR text at FAR 4.1102, clause 52.204-13, and provision 52.212-4.

The proposed rule also changes the referenced Web site “acquisition.gov” to “SAM.gov” to be consistent with the rest of the FAR. “Database” is also added to “SAM” so that in the FAR it is clearly understood that the reference is to the “SAM database”.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the proposed rule would only change when an offeror must be registered in SAM. However, an initial regulatory flexibility analysis (IRFA) has been performed and is summarized as follows:

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the proposed rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-005), in correspondence.

The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The proposed rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-0159; Central Contractor Registration. GSA has submitted a request to OMB to change the name of the collection to “System for Award Management Registration.” That request is pending.

Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 2, 4, 7, 9, 12, 13, 17, 18, 19, 22, 25, 26, 28, 32, 44, and 52, as set forth below:

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Public Comments

We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for Bidens micrantha ssp. ctenophylla (kookoolau), Mezoneuron kavaiense (uhiuhi), and Isodendrion pyrifolium (wahine noho kula), that was published in the Federal Register on October 17, 2012 (77 FR 63928). In that proposed rule, we proposed to list 15 species on the Hawaiian island of Hawaii as endangered species under the Act (16 U.S.C. 1531 et seq.), to designate critical habitat for one of these species, and to designate critical habitat for two plant species that were listed as endangered species in 1986 and 1994. We finalized the listing determinations of those 15 species on October 29, 2013 (78 FR 64638). Critical habitat has not yet been finalized. We previously reopened the comment period on the proposed critical habitat twice: once for 30 days, on April 30, 2013 (78 FR 25243), and again for 60 days on July 2, 2013 (78 FR 39698).

In particular we are seeking public comment on the areas that we are considering for exclusion from the final designation of critical habitat for Bidens micrantha ssp. ctenophylla (kookoolau), Mezoneuron kavaiense (uhiuhi), and Isodendrion pyrifolium (wahine noho kula). Although we previously indicated that we were considering the possible exclusion of non-Federal lands, especially areas in private ownership, and asked for comment on the broad public benefits of encouraging collaborative conservation efforts with local and private partners, we are now offering an additional opportunity for public comment on this issue. Subsequent to the publication of the proposed rule, conservation agreements with the Service were signed by several of the landowners previously identified for possible exclusion. Furthermore, the Service has identified some additional areas considered for exclusion based on partnerships with landowners who signed conservation agreements with the Service subsequent to the publication of the proposed rule. Therefore, we are offering another opportunity for public comment on the broad public benefits of encouraging collaborative conservation efforts with local and private partners. We will consider information and recommendations from all interested parties.

We are particularly interested in comments concerning whether the benefits of excluding any particular area from critical habitat outweigh the benefits of including that area as critical habitat under section 4(b)(2) of the Act (16 U.S.C. 1533(b)(2)), after considering the potential impacts and benefits of the proposed critical habitat designation. We are considering the possible exclusion of non-Federal lands, especially areas in private ownership, and whether the benefits of exclusion may outweigh the benefits of inclusion of those areas. We, therefore, request specific information on:

• The benefits of including any specific areas in the final designation and supporting rationale.

• The benefits of excluding any specific areas from the final designation and supporting rationale.

• Whether any specific exclusions may result in the extinction of the species and why.

For non-Federal lands in particular, we are interested in information regarding the potential benefits of including such lands in critical habitat versus the benefits of excluding such lands from critical habitat. In weighing the potential benefits of exclusion versus inclusion of non-Federal lands, the Service may consider whether existing partnership agreements provide for the management of the species. This consideration may include, for example, the status of conservation efforts, the effectiveness of any conservation agreements to conserve the species, and the likelihood of the conservation agreement's future implementation. In addition, we may consider the formation or fostering of partnerships with non-Federal entities that result in positive conservation outcomes for the species, as evidenced by the development of conservation agreements, as a potential benefit of exclusion. We request comment on the broad public benefits of encouraging collaborative efforts and encouraging local and private conservation efforts.

Our final determination concerning the designation of critical habitat for Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense, and Isodendrion pyrifolium will take into consideration all written comments and information we receive during all comment periods; from peer reviewers; and during the public information meeting, as well as comments and public testimony we received during the public hearing, that we held in Kailua-Kona, Hawaii, on May 15, 2013 (see 78 FR 25243; April 30, 2013). The comments will be included in the public record for this rulemaking, and we will fully consider them in the preparation of our final determination. On the basis of peer reviewer and public comments, as well as any new information we may receive during the development of our final determination concerning critical habitat, we may find (1) that areas within the proposed critical habitat designation do not meet the definition of critical habitat, (2) that some modifications to the described boundaries are appropriate, or (3) that areas may or may not be appropriate for exclusion under section 4(b)(2) of the Act.

If you submitted comments or information on the proposed rule (October 17, 2012; 77 FR 63928) during one of the three previous open comment periods from October 17, 2012, through December 17, 2012 (77 FR 63928), April 30, 2013, through May 30, 2013 (78 FR 25243), and July 2, 2013, through September 3, 2013 (78 FR 39698), or at the public information meeting or hearing on May 15, 2013 (78 FR 25243), please do not resubmit them. We will fully consider them in the preparation of our final determinations.

You may submit your comments by one of the methods listed in ADDRESSES. We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you submit your comment via U.S. mail, you may request at the top of your document that we withhold personal information such as your street address, phone number, or email address from public review; however, we cannot guarantee that we will be able to do so.

Comments and materials we receive will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2013-0028, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

On October 17, 2012, we published a proposed rule (77 FR 63928) to list 15 species on the Hawaiian island of Hawaii as endangered species under the Act, to designate critical habitat for one of these species, Bidens micrantha ssp. ctenophylla, and to designate critical habitat for two previously listed plant species, Mezoneuron kavaiense (51 FR 24672, July 8, 1986) and Isodendrion pyrifolium (59 FR 10305, March 3, 1994). We proposed to designate 18,766 acres (ac) (7,597 hectares (ha)) on the island of Hawaii. Approximately 55 percent of the area proposed as critical habitat is already designated as critical habitat for 41plants and the Blackburn's sphinx moth (Manduca blackburni), for which critical habitat was designated on July 2, 2003 (68 FR 39624), and June 10, 2003 (68 FR 34710), respectively.

In our October 17, 2012, proposed rule (77 FR 63928), we announced a 60-day comment period, which began on October 17, 2012, and ended on December 17, 2012. On April 30, 2013, we announced the availability of the draft economic analysis on the proposed designation of critical habitat, and reopened the comment period on our proposed rule, the draft economic analysis, and amended required determinations for another 30 days, ending May 30, 2013 (78 FR 25243). On April 30, 2013, we also announced a public information meeting in Kailua-Kona, Hawaii, which we held on May 15, 2013, followed by a public hearing on that same day (78 FR 25243). On July 2, 2013, we announced the reopening of the comment period on the proposed designation of critical habitat and the draft economic analysis for an additional 60 days, through September 3, 2013 (78 FR 39698).

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency unless it is exempted pursuant to the provisions of the Act (16 U.S.C. 1536(e)-(n) and (p)). Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Consistent with the best scientific data available, the standards of the Act, and our regulations, we initially identified and proposed a total of 18,766 ac (7,597 ha) in 7 units for three plant species located on the island of Hawaii, that meet the definition of critical habitat. In addition, the Act provides the Secretary with the discretion to exclude certain areas from the final designation after taking into consideration economic impacts, impacts on national security, and any other relevant impacts of specifying any particular area as critical habitat.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, the benefits of critical habitat include public awareness of the presence of the three species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the three species due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.

In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise her discretion to exclude the area only if such exclusion will not result in the extinction of the species.

When identifying the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive due to the protection from destruction or adverse modification as a result of actions with a Federal nexus; the educational benefits of mapping essential habitat for recovery of the listed species; and any benefits that may result from a designation due to State or Federal laws that may apply to critical habitat. Additionally, continued implementation of a management plan that provides equal to or more conservation than a critical habitat designation would reduce the benefits of including that specific area in the critical habitat designation.

When identifying the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation and the continuation, strengthening, or encouragement of partnerships.

When we evaluate a management plan during our consideration of the benefits of exclusion, we assess a variety of factors, including but not limited to, whether the plan is finalized, how it provides for the conservation of the essential physical or biological features, whether there is a reasonable expectation that the conservation management strategies and actions contained in a management plan will be implemented into the future, whether the conservation strategies in the plan are likely to be effective, and whether the plan contains a monitoring program or adaptive management to ensure that the conservation measures are effective and can be adapted in the future in response to new information.

After identifying the benefits of inclusion and the benefits of exclusion, we carefully weigh the two sides to evaluate whether the benefits of exclusion outweigh those of inclusion. If our analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, we then determine whether exclusion would result in extinction of the species. If exclusion of an area from critical habitat will result in extinction, we will not exclude it from the designation.

Based on the information provided by entities seeking exclusion, as well as any additional public comments received, we will evaluate whether certain lands in proposed critical habitat Hawaii—Lowland Dry—Units 31, 32, 33, 34, and 35 are appropriate for exclusion from the final designation under section 4(b)(2) of the Act. If the analysis indicates that the benefits of excluding lands from the final designation outweigh the benefits of designating those lands as critical habitat, then the Secretary may exercise her discretion to exclude the lands from the final designation.

In our October 17, 2012, proposed rule (77 FR 63928), we identified areas in four of the proposed critical habitat units for potential exclusion from the final critical habitat designation for Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense under section 4(b)(2) of the Act. Table 1 provides approximate areas (ac, ha) of these lands that meet the definition of critical habitat but were proposed for consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule.

We are now considering whether to exclude additional areas. Table 2 below provides approximate areas (ac, ha) of the additional lands that meet the definition of critical habitat but are now under our consideration for possible exclusion under section 4(b)(2) of the Act from the final critical habitat rule. In the paragraphs that follow below, we provide a detailed analysis of our consideration of these additional lands for exclusion under section 4(b)(2) of the Act.

Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether there are permitted conservation plans covering the species in the area such as habitat conservation plans, safe harbor agreements, or candidate conservation agreements with assurances, or whether there are non-permitted conservation agreements and partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at the existence of tribal conservation plans and partnerships and consider the government-to-government relationship of the United States with tribal entities. We also consider any social impacts that might occur because of the designation.

We sometimes exclude specific areas from critical habitat designations based in part on the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships. A conservation plan or agreement describes actions that are designed to provide for the conservation needs of a species and its habitat, and may include actions to reduce or mitigate negative effects on the species caused by activities on or adjacent to the area covered by the plan. Conservation plans or agreements can be developed by private entities with no Service involvement, or in partnership with the Service.

We evaluate a variety of factors to determine how the benefits of any exclusion and the benefits of inclusion are affected by the existence of private or other non-Federal conservation plans or agreements and their attendant partnerships when we undertake a discretionary section 4(b)(2) exclusion analysis. A non-exhaustive list of factors that we will consider for non-permitted plans or agreements is shown below. These factors are not required elements of plans or agreements, and all items may not apply to every plan or agreement.

In the proposed rule (October 17, 2012; 77 FR 63928), we identified several specific areas under consideration for exclusion from critical habitat based on the landowner's conservation partnerships; these exclusions totaled approximately 4,099 ac (1,659 ha) of State land and private lands. The areas identified for potential exclusion, as detailed in our proposed rule, included lands owned or managed by Kamehameha Schools; Palamanui Global Holdings, LLC; Kaloko Properties Corp.; Lanihau Properties; SCD-TSA Kaloko Makai, LLC; TSA Corporation; and the Department of Hawaiian Homelands. We asked for public comment on the potential exclusions, and for information regarding the potential benefits of including private lands in critical habitat versus the benefits of excluding such lands from critical habitat. After publication of the proposed rule, three of these landowners (Palamanui Global Holdings, LLC; Lanihau Properties; and the Department of Hawaiian Homelands) signed memoranda of understanding with the Service covering actions beneficial to Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense, and Isodendrion pyrifolium. Furthermore, in the proposed rule we noted that exclusions in the final rule would not necessarily be limited to those we initially identified in the proposed rule. Subsequent to publication of the proposed rule, we identified additional private or non-Federal lands that we are considering for exclusion from critical habitat, based on conservation partnerships with the Service. These include lands owned or managed by Waikoloa Village Association, County of Hawaii, Hawaii Housing and Finance Development Corporation, Forest City Kona, and Queen Liliuokalani Trust. Therefore, at this time we request public comment on the following: the benefits of including any specific areas in the final designation and supporting rationale, benefits of excluding any specific areas from the final designation and supporting rationale, and whether any specific exclusions may result in the extinction of the species and why. The three of the areas originally proposed for exclusion, as well as the additional areas being considered for exclusion, are briefly described below.

In the October 17, 2012, proposed rule (77 FR 63928), we stated that we were considering the exclusion of 502 ac (203 ha) owned or managed by Palamanui Global Holdings, LLC (Palamanui). These lands fall within a portion of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33; the proposed unit is occupied by Mezoneuron kavaiense, and unoccupied but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Palamanui has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat. Under an integrated natural cultural resource management plan (INCRMP 2005) addressing preservation, mitigation, management, and stewardship measures for the natural and cultural resources at the Palamanui development, Palamanui successfully implemented the following conservation actions on their lands: (1) Fencing to protect a 55-ac (22-ha) Lowland Dry Forest Preserve (Preserve) and other endangered plant locations outside the Preserve; (2) maintenance of firebreaks to control the threat of fire at the Preserve and other endangered plant locations outside the Preserve; (3) establishment of the Palamanui Dry Forest Working Group and research partnership; and (4) partnerships with other landowners and practitioners to benefit the conservation and recovery of dry forest species and their habitat.

Subsequent to the publication of the October 17, 2012, proposed rule, Palamanui participated in a series of collaborative meetings with the Service, County of Hawaii, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in proposed Critical Habitat Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, Palamanui signed a memorandum of understanding (MOU) with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and the lowland dry ecosystem upon which they depend (Memorandum of Understanding Between Palamanui Global Holdings LLC and U.S. Department of Interior Fish and Wildlife Service 2015). In the MOU, Palamanui agreed to increase the area of fenced and managed lowland dry forest protected within the Preserve by 19 ac (7.7 ha), for a total of approximately 75 ac (30 ha). Palamanui also agreed to ensure funding for conservation actions within the Preserve for the next 20 years at a minimum of $50,000 per year. Palamanui will also contribute conservation actions valued at an additional $200,000 to benefit the recovery of the three plant species and the lowland dry ecosystem, and agreed to work cooperatively with the Service or other conservation partners to conduct activities expected to benefit Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense and their habitat. Implementation has already been initiated on the following actions agreed to in the MOU: (1) Firebreak maintenance around the Preserve; (2) fence maintenance to exclude ungulates from the Preserve and removal of ungulates that had been allowed to enter the Preserve; (3) regular weed control in the Preserve; and (4) propagation, outplanting, and maintenance of listed species in the Preserve.

In the October 17, 2012, proposed rule (77 FR 63928), we considered the exclusion of 47 ac (19 ha) of land owned/managed by Lanihau Properties. These lands fall within a portion of the 961 ac (389 ha) proposed as critical habitat in Hawaii— Lowland Dry—Unit 34; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, and Mezoneuron kavaiense, and unoccupied but essential to the conservation of Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Lanihau Properties has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat. In 2010, Lanihau Properties agreed to set aside a 4.6-ac (1.9-ha) area as a dryland forest reserve and implement conservation measures as a condition for issuance of a county grading permit associated with the construction of the Ane Keohokalole Highway (USFWS 2010, in litt.).

Subsequent to the publication of the October 17, 2012, proposed rule, Lanihau Properties participated in a series of collaborative meetings along with the Service, County of Hawaii, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in proposed Critical Habitat Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2014, Lanihau Properties signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and endangered plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Lanihau Properties and U.S. Department of Interior Fish and Wildlife Service 2014, entire). In the agreement, Lanihau Properties agreed to set aside and not undertake development in an approximately 16-ac (6-ha) area, adding 11.4 ac (4.6 ha) to the previous 4.6-ac (1.9-ha) set aside, and work cooperatively with the Service or other conservation partners to conduct activities expected to benefit the conservation of the three species and the lowland dry ecosystem for the next 20 years.

In the October 17, 2012, proposed rule (77 FR 63928), we announced we were considering the exclusion of 87 ac (35 ha) of lands owned by the Department of Hawaiian Home Lands (DHHL) out of the total 446 ac (181 ha) of DHHL land proposed as critical habitat. Based on a new MOU evidencing a more robust partnership with the Service, summarized below, and updated land ownership records that added approximately 46.5 ac (18.4 ha) to DHHL's land considered for exclusion, we are now considering the exclusion of 492 ac (199 ha) of lands owned by DHHL. These lands fall within portions of two proposed units. The DHHL owns 91 ac (30 ha) of the 1,583 ac (640 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 33; this proposed unit is occupied by Mezoneuron kavaiense, and unoccupied by but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium. The DHHL also owns 401 ac (165 ha) of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; this proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012).

The DHHL has worked in partnership with the Service to protect and restore endangered and threatened species and their habitats during the last 15 years on Hawaii Island. In December 2010, the Hawaiian Homes Commission adopted the “Aina Mauna Legacy Program,” a 100-year plan to reforest approximately 87 percent of a 56,200-ac (22,743-ha) contiguous parcel managed by DHHL on the eastern slope of Mauna Kea, Hawaii Island. Implementation of the Aina Mauna Legacy Program calls for removal of all feral ungulates from the Aina Mauna landscape and several restoration projects have been implemented to benefit endangered and threatened species and their habitats (DHHL 2009, pp. 19-21). Each of these projects received funding from the Service's Partners for Fish and Wildlife Program for 10-year landowner agreements to maintain the conservation actions, and includes multiple partners such as the State, National Wildlife Refuge System, and the Mauna Kea Watershed Alliance.

From 1996 to 2006, the DHHL acquired a total of approximately 685 ac (277 ha) at Laiopua, Kealakehe, and Keahuolu from the Hawaii Housing Finance Development Corporation (HHFDC, previously HCDCH) (Masagatani 2012, in litt.) and subsequently committed two parcels equaling approximately 40 ac (16 ha) for the development, management, and maintenance as preserves with the sole purpose of protecting of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, Mezoneuron kavaiense, and other endangered species. The three parcels included the two principal preserves of the 1999 plan and the area identified for protection of archaeological resources, for a total of 73 ac (29 ha) protected. Since 2010, the DHHL has committed approximately $1,198,052 for the development and management of the preserve areas (Masagatani 2012, in litt.). Conservation actions in the preserve areas include: (1) Fencing to exclude ungulates and prevent human trespass; (2) control and removal of nonnative plants; (3) control and prevention of the threat of fire; (4) propagation, outplanting, and care of common native and endangered plant species; and (5) promoting community volunteer and education programs that support native plant conservation.

Subsequent to the publication of the October 17, 2012, proposed rule, the DHHL participated in a series of collaborative meetings with the Service, County of Hawaii, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, the DHHL signed an MOU with the Service for a conservation agreement expected to benefit the recovery of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between the Department of Hawaiian Home Lands and U.S. Department of Interior Fish and Wildlife Service 2015). Under the agreement, the DHHL will continue to protect the 73 ac (29 ha) of existing preserves and agrees to set aside and not develop an additional 24 ac (10 ha) for a total protected area of 97 ac (39 ha) to benefit the recovery of the three plant species and the lowland dry ecosystem. The DHHL agreed in the MOU to funding conservation actions valued at $3.229 million on 44 ac (18 ha) of the existing preserves for 40 years and within the additional 24 ac (10 ha) for 20 years. The remaining 29 ac (ha) of existing preserves will not be actively managed but will remain protected from development. Conservation actions on the 68 managed acres include: (1) Fencing to exclude ungulates; (2) control and the prevention of the threat of fire; (3) control and removal of nonnative plant species; (4) propagation, outplanting, and care of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, and other rare and endangered plant species; and (5) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem. Implementation has already been initiated on the following actions agreed to in the MOU: (1) Fence and firebreak maintenance around the preserves; (2) regular weed control of the managed areas in the preserves; and (3) initiated improvements to the fences and gates in the existing Aupaka Preserve, including raising the height of the fence to exclude ungulates and removing barbed wire, which is a threat to the endangered Hawaiian hoary bat (Lasiurus cinereus semotus).

We are considering excluding 1,758 ac (711 ha) of lands from critical habitat that are owned or managed by the Waikoloa Village Association (WVA). These lands include the majority of the 1,779 ac (720) proposed as critical habitat in Hawaii—Lowland Dry—Unit 32; the proposed unit is occupied by one of the three plant species, Mezoneuron kavaiense, and is unoccupied but essential to the conservation of Bidens micrantha ssp. ctenophylla and Isodendrion pyrifolium (77 FR 63928; October 17, 2012). Since 2012, the WVA has voluntarily facilitated and supported the conservation of Isodendrion pyrifolium and Mezoneuron kavaiense and other federally listed species and their habitat in the lowland dry ecosystem, on their privately owned lands. In 2012, the WVA Board of Directors granted permission to protect and restore 275 ac (111 ha) of dry forest habitat south of Waikoloa Village for a period of 75 years by way of a license agreement with the nonprofit Waikoloa Dry Forest Initiative, Inc. The project's management program includes: (1) Construction and maintenance of a 275-ac (111-ha) fence to exclude ungulates; (2) removal of ungulates from the fenced exclosure; (3) control of nonnative plant species to reduce competition and the threat of fire; (4) integrated pest management to reduce impacts on native plant species; (5) provision of infrastructure for propagation and maintenance of outplantings; (6) establishment of common native and endangered plant species; and (7) education and community outreach activities. Furthermore, in 2014, the WVA signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Mezoneuron kavaiense, Isodendrion pyrifolium and Bidens micrantha ssp. ctenophylla and the lowland dry ecosystem upon which they depend (Memorandum of Understanding between Waikoloa Village Association and U.S. Department of Interior Fish and Wildlife Service 2014, entire). The WVA agreed not to undertake development in 60 ac (24 ha) adjacent to the Waikoloa Dry Forest Recovery Project's 275-ac (111-ha) exclosure and to work cooperatively with the Service or other conservation partners to conduct activities expected to benefit Mezoneuron kavaiense, Isodendrion pyrifolium, and Bidens micrantha ssp. ctenophylla and their habitat.

We are considering exclusion of 165 ac (67 ha) of lands owned by the State of Hawaii that are under management of the County of Hawaii (County). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). Since 2010, the County of Hawaii (County) has been involved in voluntary cooperative partnerships and conservation agreements with the Service for the conservation of rare and endangered species and their habitats. In 2010, the County helped facilitate protection of over 150 ac (61 ha) of lowland dry ecosystem habitat known to contain numerous listed plant species (USFWS 2010, in litt.).

Subsequent to the publication of the October 17, 2012, proposed rule, the County participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2015, the County signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between County of Hawaii and U.S. Department of Interior Fish and Wildlife Service 2015, entire). The County agreed to set aside and not develop approximately 30 ac (12 ha) of lands under its management, and also agreed to conduct conservation actions valued at $1.534 million on a total of 50.1 ac (20.3 ha) to benefit the recovery of the three plant species, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem, over the next 20 years. The 50.1 ac (20.3 ha) where conservation actions will occur includes 30 ac (12 ha) owned by the County, 4.2 ac (1.7 ha) owned by the Hawaii Housing Finance and Development Corporation, and 15.9 ac (6.4) owned by Lanihau Properties. Of the total 30 ac (12 ha) of County land protected from development, 22 ac (8.9 ha) are adjacent to a 4.2-ac (1.7-ha) set-aside by the Hawaii Housing Finance and Development Corporation and another 21.7-ac (8.8-ha) set-aside by the Department of Hawaiian Homelands; these three areas together create approximately 47.9 contiguous acres (19.4 ha) protected for the conservation of the three species and the lowland dry ecosystem. The remaining 8-ac (3.2-ha) set-aside is located within the proposed Kealakehe Regional Park and adjacent to an existing 3.4-ac (1.4-ha) preserve managed by County but owned by the Hawaiian Department of Land and Natural Resources. Because the conservation actions will occur in some areas jointly managed by the County and other agencies or at offsite locations, the County will work cooperatively and in partnership with these landowners. These conservation actions will include: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) control of nonnative plant species; and (4) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem.

We are considering exclusion of 30 ac (12 ha) of lands owned by the State of Hawaii that are under management of the Hawaii Housing Finance and Development Corporation (HHFDC). These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). The HHFDC has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat.

Subsequent to the publication of the proposed rule, HHFDC participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2016, HHFDC signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium and Mezoneuron kavaiense and their habitat, as well as to other rare and federally listed species and their habitat in the lowland dry ecosystem (Memorandum of Understanding Between Hawaii Housing Finance and Development Corporation and U.S. Department of Interior Fish and Wildlife Service 2016, entire). The HHFDC agreed to set aside and not develop approximately 4.2 ac (1.7 ha) of lands under its management to provide protection and management for one of the seven remaining mature individuals of Mezoneuron kavaiense in proposed Unit 35, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem, over the next 20 years. The 4.2 ac (1.7 ha) protected from development by the HHFDC are adjacent to the 22-ac (8.9-ha) set-aside by the County and another 21.7-ac (8.8-ha) set-aside by the Department of Hawaiian Homelands; these three areas together create approximately 47.9 contiguous acres (19.4 ha) protected for the conservation of the three species and the lowland dry ecosystem. Because the conservation actions will occur in some areas jointly managed by the HHFDC and other agencies, the HHFDC will work cooperatively and in partnership with these landowners and the Service. These conservation actions will include: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) control of nonnative plant species; and (4) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem.

We are considering the exclusion of 265 ac (107 ha) of lands that are owned by Forest City Kona, LLC. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012). Forest City Kona has demonstrated their willingness to work as a conservation partner by undertaking site management that provides important conservation benefits to the native Hawaiian species that depend upon the lowland dry ecosystem habitat.

Subsequent to the publication of the October 17, 2012, proposed rule, Forest City Kona participated in a series of collaborative meetings with the Service, Department of Hawaiian Homelands, Department of Land and Natural Resources, and other stakeholders in Units 31, 33, 34, and 35, to address species protection and recovery and development on a regional scale. In 2016, Forest City Kona signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense and their habitat, as well as other rare and federally listed species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Forest City Kona and U.S. Department of Interior Fish and Wildlife Service 2016, entire). Forest City Kona agreed to set aside and not undertake development in two areas, totaling 20 ac (8 ha), and to work cooperatively with the Service on approved conservation programs to conduct activities to benefit the conservation of the three species and the lowland dry ecosystem in these areas for the next 20 years. The MOU's conservation actions include: (1) Fencing to exclude ungulates; (2) control of nonnative plant species; (3) propagation, outplanting, and care of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and common native plant species; (4) control and prevention of the threat of fire; and (5) other management actions expected to benefit the recovery of listed plant species and the lowland dry ecosystem. The MOU also includes a commitment from Forest City Kona to provide $500,000 towards the implementation of on-site or off-site conservation actions within the North Kona region that will benefit the recovery of the three plant species and the lowland dry ecosystem.

In the October 17, 2012, proposed rule (77 FR 63928), we stated that we were not considering for exclusion lands owned by Queen Liliuokalani Trust (QLT) for the following reasons: (1) The conservation plans in place at the time only addressed actions related to Isodendrion pyrifolium, but did not address conservation of the other two plants with proposed critical habitat on the land, Bidens micrantha ssp. ctenophylla and Mezoneuron kavaiense; and (2) since 2005, we were unaware of efforts to outplant propagated individuals of Isodendrion pyrifolium or any current plans to conserve listed species or their habitats in the lowland dry ecosystem on the lands at Keahuolu owned by QLT. In 2014, QLT signed an MOU with the Service addressing both of these previous concerns. We are now considering exclusion of 302 ac (122 ha) of lands that are owned or managed by QLT. These lands fall within a portion of the 1,192 ac (485 ha) proposed as critical habitat in Hawaii—Lowland Dry—Unit 35; the proposed unit is occupied by Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense (77 FR 63928; October 17, 2012).

Since 2004, QLT has supported the conservation of federally listed species and their habitat in the lowland dry ecosystem, on their privately owned lands. In 2004, the QLT entered into an agreement with the Service's Partners for Fish and Wildlife Program to conduct research on the propagation of two endangered plants, Isodendrion pyrifolium and Neraudia ovata, in order to secure genetic material in ex situ storage and provide individuals of each species for reintroduction or restoration projects. In February 2014, the QLT signed an MOU with the Service wherein they agreed to implement important conservation actions beneficial to Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as other rare and listed plant species and their habitat in the lowland dry ecosystem (Memorandum of Understanding between Queen Liliuokalani Trust and U.S. Department of Interior Fish and Wildlife Service 2014, entire). The management actions included in the MOU are: (1) Fencing to exclude ungulates; (2) control and prevention of the threat of fire; (3) propagation and outplanting of Bidens micrantha ssp. ctenophylla, Isodendrion pyrifolium, and Mezoneuron kavaiense, as well as six other rare or listed plant species; (4) weed control; (5) watering and maintenance of outplanted individuals; (6) monitoring and reporting; (7) analysis of success criteria; and (8) adaptive management. The QLT also agreed to set aside and not undertake development in a separate 28-ac (11-ha) area and work cooperatively with the Service or other conservation partners to conduct activities to benefit the conservation of the three species and the lowland dry ecosystem. This area will be available for the conservation and propagation efforts for the three species and other listed and rare species of the lowland dry ecosystem.

In addition to the agreements and commitments detailed above, QLT developed a culturally based service learning program that has involved over 1,300 beneficiaries, school groups, and other community members in removing invasive species. QLT continues to spend over $12,000 per year to control invasive species, such as fountain grass (Cenchrus setaceum) and haole koa (Leucaena leucocephala). Other significant expenditures include funds spent on security in response to trespassing and vandalism on its Kona lands (QLT 2013).

We are considering exclusion of these non-Federal lands because we believe the exclusion may result in the continuation, strengthening, or encouragement of important conservation partnerships that will contribute to the long-term conservation of Bidens micrantha ssp. ctenophylla, Mezoneuron kavaiense and Isodendrion pyrifolium. The development and implementation of management plans, and ability to access private lands necessary for surveys or monitoring designed to promote the conservation of these federally listed plant species and their habitat, as well as provide for other native species of concern, would be important outcomes of these conservation partnerships.

The final designation may not exclude these areas, or be limited to these exclusions, but may also consider other exclusions as a result of continuing analysis of relevant considerations (scientific, economic, and other relevant factors, as required by the Act) and the public comment process. In particular, we solicit comments from the public on whether to make the specific exclusions we are considering, and whether there are other areas that are appropriate for exclusion.

The final decision on whether to exclude any area will be based on the best scientific data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of the designation.

The primary authors of this document are the staff members of the Pacific Islands Fish and Wildlife Office, Pacific Region, U.S. Fish and Wildlife Service.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).