38214 Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Rules and Regulations

Source of flooding and location

#Depth in

feet above

ground.

*Elevation

in feet

(NGVD).

Maps are available for inspection at the Upper Guadalupe River Authority, 125

Lehmann Drive, Kerrville,

Texas.

Maps are available for inspection at the City of

Kerrville, 800 Junction Highway, Kerrville, Texas.

WASHINGTON

Clark County (Unincorporated Areas) (FEMA

Docket No. 7250)

East Fork Lewis River:

Approximately 17,000 feet

downstream of Daybreak

Road .................................. *32

Approximately 400 feet

downstream of Daybreak

Road .................................. *75

Maps are available for inspection at the Clark County

Department of Community

Development, Development

Services Division, Office of

Engineering Review, 1408

Franklin Street, Vancouver,

Washington.

(Catalog of Federal Domestic Assistance No.

83.100, ‘‘Flood Insurance.’’)

Dated: June 14, 2000.

Michael J. Armstrong,

Associate Director for Mitigation.

[FR Doc. 00–15503 Filed 6–19–00; 8:45 am]

BILLING CODE 6718–04–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 51

[CC Docket No. 96–98; FCC 00–183]

Clarification of the Commission’s

Rules Regarding Use of Combinations

of Unbundled Network Elements To

Provide Exchange Access Service

AGENCY: Federal Communications

Commission.

ACTION: Final rule; clarification.

SUMMARY: This document clarifies

certain requirements regarding the

obligation of incumbent local exchange

carriers to provide combinations of

unbundled network elements to

competitive telecommunications

carriers for the provision of exchange

access service. This action is needed to

clarify the requirements that the

Commission adopted in the

Supplemental Order in this docket, and

is also intended to provide the

telecommunications industry with more

clearly defined standards for using such

combinations.

DATES: Effective June 20, 2000.

FOR FURTHER INFORMATION CONTACT:

Jodie Donovan, Attorney Advisor,

Policy and Program Planning Division,

Common Carrier Bureau, (202) 418–

1580.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s

Supplemental Order Clarification in CC

Docket No. 96–98, FCC 00–183, adopted

May 19, 2000 and released June 2, 2000.

On November 5, 1999, the Commission

released the Third Report and Order and

Fourth Further Notice of Proposed

Rulemaking (FNPRM) in this docket (65

FR 2367, Jan. 14, 2000; 65 FR 2542, Jan.

18, 2000). On November 24, 1999, the

Commission released a Supplemental

Order (65 FR 2367, 2368, Jan. 14, 2000;

65 FR 2542, 2547, Jan. 18, 2000) that

modified the Third Report and Order

and Fourth FNPRM with regard to the

ability of requesting carriers to use

combinations of unbundled network

elements to provide exchange access

service prior to resolution of the Fourth

FNPRM. The Supplemental Order

Clarification clarifies certain

requirements contained in the

Supplemental Order. The complete text

of the Supplemental Order Clarification

is available for inspection and copying

during normal business hours in the

FCC Reference Information Center,

Courtyard Level, 445 12th Street, SW,

Washington, DC, and also may be

purchased from the Commission’s copy

contractor, International Transcription

Services (ITS, Inc.), CY–B400, 445 12th

Street, SW, Washington, DC. It is also

available on the Commission’s website

at http://www.fcc.gov.

Synopsis of the Supplemental Order

Clarification

1. The Commission adopts a

Supplemental Order Clarification in CC

Docket No. 96–98 regarding the

obligation of incumbent local exchange

carriers (LECs) to provide access by

competitive LECs to unbundled looptransport combinations for the provision

of exchange access service. This order is

needed to clarify certain requirements

that the Commission adopted in the

Supplemental Order in this docket (65

FR 2542, 2547, Jan. 18, 2000).

2. In particular, this document

extends the temporary constraint

identified in the Supplemental Order in

CC Docket No. 96–98 while the

Commission compiles an adequate

record in the Fourth FNPRM (65 FR

2367, Jan. 14, 2000) regarding the ability

of requesting carriers to use unbundled

loop-transport combinations as a

substitute for the incumbent LECs’

special access service. Until the

Commission resolves the issues in the

Fourth FNPRM, interexchange carriers

(IXCs) may not substitute an incumbent

LEC’s unbundled loop-transport

combinations for special access services

unless they provide a significant

amount of local exchange service, in

addition to exchange access service, to

a particular customer. This temporary

constraint does not apply to stand-alone

loops. By issuing the Supplemental

Order Clarification, the Commission

does not decide any of the substantive

issues contained in the Fourth FNPRM.

3. The primary issue on which the

Commission must build an adequate

record concerns its identification of the

network elements that ‘‘should be made

available’’ for purposes of 47 U.S.C.

section 251(d)(2). In considering

whether loop-transport combinations

meet the ‘‘impair’’ standard in section

251(d)(2), the Commission must

determine whether the local exchange

and exchange access markets, although

legally distinct, are otherwise

interrelated from an economic and

technological perspective, such that a

finding that a network element meets

the ‘‘impair’’ standard for the local

exchange market would itself entitle

competitors to use that network element

solely or primarily in the exchange

access market. Unless the Commission

finds that these markets are inextricably

interrelated in these other respects, it is

unlikely that Congress intended to

compel the Commission, once it

determines that a network element

meets the ‘‘impair’’ standard for the

local exchange market, to grant

competitors access—for that reason

alone, and without further inquiry—to

that same network element solely or

primarily for use in the exchange access

market.

4. The Commission extends the

temporary constraint so that it may take

into account the market effects of its

new unbundling rules (65 FR 2542, Jan.

18, 2000) as it conducts its ‘‘impair’’

analysis for special access service, and

must allow a meaningful period of time

to elapse from the date on which those

new rules became effective. The

Commission will therefore issue a

Public Notice in early 2001 to gather

evidence on this issue so that it may

then resolve it expeditiously. In

addition, the Commission and the

parties need more time to evaluate the

issues raised in the record in the Fourth

FNPRM.

5. To reduce uncertainty for

incumbent LECs and requesting carriers

and to maintain the status quo while the

Commission reviews the issues

Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Rules and Regulations 38215

contained in the Fourth FNPRM, it

defines more precisely the ‘‘significant

amount of local exchange service’’ that

a requesting carrier must provide in

order to obtain unbundled looptransport combinations. These

definitions provide a safe harbor that

allows the Commission to preserve the

status quo while it examines the issues

in the Fourth FNPRM in more detail,

while still allowing carriers to use

combinations of unbundled loop and

transport network elements to provide

local exchange service.

6. The Commission finds that a

requesting carrier is providing a

‘‘significant amount of local exchange

service’’ to a particular customer if it

meets one of three alternative

definitions. The Commission notes that

traffic is considered to be local under

these definitions if it is defined as such

in a requesting carrier’s state-approved

local exchange tariff and/or it is subject

to a reciprocal compensation

arrangement between the requesting

carrier and the incumbent LEC: (1) The

requesting carrier certifies that it is the

exclusive provider of an end user’s local

exchange service. The loop-transport

combinations must terminate at the

requesting carrier’s collocation

arrangement in at least one incumbent

LEC central office. This option does not

allow loop-transport combinations to be

connected to the incumbent LEC’s

tariffed services, or (2) The requesting

carrier certifies that it provides local

exchange and exchange access service to

the end user customer’s premises and

handles at least one third of the end

user customer’s local traffic measured as

a percent of total end user customer

local dialtone lines; and for DS1 circuits

and above, at least 50 percent of the

activated channels on the loop portion

of the loop-transport combination have

at least 5 percent local voice traffic

individually, and the entire loop facility

has at least 10 percent local voice traffic.

When a loop-transport combination

includes multiplexing (e.g., DS1

multiplexed to DS3 level), each of the

individual DS1 circuits must meet this

criteria. The loop-transport combination

must terminate at the requesting

carrier’s collocation arrangement in at

least one incumbent LEC central office.

This option does not allow looptransport combinations to be connected

to the incumbent LEC’s tariffed services,

or (3) The requesting carrier certifies

that at least 50 percent of the activated

channels on a circuit are used to

provide originating and terminating

local dialtone service and at least 50

percent of the traffic on each of these

local dialtone channels is local voice

traffic, and that the entire loop facility

has at least 33 percent local voice traffic.

When a loop-transport combination

includes multiplexing (e.g., DS1

multiplexed to DS3 level), each of the

individual DS1 circuits must meet this

criteria. This option does not allow

loop-transport combinations to be

connected to the incumbent LEC’s

tariffed services. Under this option,

collocation is not required.

7. The Commission clarifies that the

definitions described above provide a

reasonable threshold for determining

whether a carrier has taken affirmative

steps to provide local service. There

may be extraordinary circumstances

under which a requesting carrier is

providing a significant amount of local

exchange service but does not qualify

under any of the three definitions. In

such a case, the requesting carrier may

always petition the Commission for a

waiver of the safe harbor requirements

under its existing rules.

8. The Commission does not eliminate

the prohibition on ‘‘co-mingling’’ (i.e.

combining loops or loop-transport

combinations with tariffed special

access services) in the local usage

definitions discussed. It is not

persuaded on this record that removing

this prohibition would not lead to the

use of unbundled network elements by

interexchange carriers solely or

primarily to bypass special access

services. The Commission also

emphasizes that the co-mingling

determinations that it makes in this

order do not prejudge any final

resolution on whether unbundled

network elements may be combined

with tariffed services. The Commission

will seek further information on this

issue in the Public Notice that we will

issue in early 2001.

9. The Commission also clarifies that

incumbent LECs must allow requesting

carriers to self-certify that they are

providing a significant amount of local

exchange service over combinations of

unbundled network elements. The

Commission also states that it continues

to believe that the Access Service

Request process that incumbent LECs

use to provision access circuits will

allow requesting carriers to avoid

material provisioning delays and

unnecessary costs to integrate

unbundled loop-transport combinations

into their networks, and expect that

carriers will use this process for circuit

conversions.

10. In order to confirm reasonable

compliance with the local usage

requirements in the Supplemental Order

Clarification, the Commission also finds

that incumbent LECs may conduct

limited audits only to the extent

reasonably necessary to determine a

requesting carrier’s compliance with the

local usage definitions. Incumbent LECs

requesting an audit should hire and pay

for an independent auditor to perform

the audit, and competitive LECs should

reimburse the incumbent if an audit

uncovers non-compliance with the local

usage definitions. Incumbent LECs must

provide at least 30 days written notice

to a carrier that it will conduct an audit,

and may not conduct more than one

audit of the carrier in any calendar year

unless an audit finds non-compliance.

At the same time that an incumbent LEC

provides notice of an audit to the

affected carrier, it should send a copy of

the notice to the Commission. The

Commission expects that carriers will

maintain appropriate records that they

can use to support their local usage

certification, and emphasizes that an

audit should not impose an undue

financial burden on smaller requesting

carriers that may not keep extensive

records. In the event of an audit of these

smaller carriers, the incumbent LEC

should verify compliance using the

records that the carriers keep in the

normal course of business.

Procedural Issues: Final Regulatory

Flexibility Certification

11. The Regulatory Flexibility Act

(RFA) requires that regulatory flexibility

analyses be prepared for notice and

comment rulemaking proceedings,

unless the agency certifies that ‘‘the rule

will not, if promulgated, have a

significant economic impact on a

substantial number of small entities.’’

See 5 U.S.C. 605(b). The RFA generally

defines ‘‘small entity’’ as having the

same meaning as the terms ‘‘small

business,’’ ‘‘small organization,’’ and

‘‘small governmental jurisdiction.’’ See

5 U.S.C. 601(6). In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act. See 5

U.S.C. 601(3). A small business concern

is one which: (1) Is independently

owned and operated; (2) is not

dominant in its field of operation; and

(3) satisfies any additional criteria

established by the Small Business

Administration (SBA). See 15 U.S.C.

section 632. SBA rules provide that for

establishments providing ‘‘Telephone

Communications Except

Radiotelephone,’’ which is Standard

Industrial Classification (SIC) Code

4813, a small entity is one employing no

more than 1,500 persons.

12. This Clarification of the

Supplemental Order in CC Docket No.

96–98 sets out the criteria under which

a requesting carrier may use

combinations of unbundled network

38216 Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Rules and Regulations

elements to provide exchange access

services. The criteria is consistent with

several of the Commission’s findings in

the Supplemental Order. It also extends

the date by which the Commission will

resolve its Fourth FNPRM from June 30,

2000. Until resolution of the Fourth

FNPRM, IXCs are prohibited from

converting special access services that

they purchase from the Bell Operating

Companies or other incumbent local

exchange carriers to combinations of

unbundled loops and transport network

elements unless they meet the

designated criteria. This clarification

therefore pertains directly to IXCs, and

indirectly to Bell Operating Companies

(BOCs), other incumbent local exchange

carriers, competitive local exchange

carriers, and competitive access

providers.

13. The Commission certifies that this

clarification of the Supplemental Order

will not have a significant economic

impact on a substantial number of small

entities because it maintains the status

quo regarding the ability of IXCs to

purchase special access services for a

longer period of time. It also maintains

the status quo for any small incumbent

local exchange carriers from which

interexchange carriers purchase special

access services. The clarification also

allows some limited auditing by

incumbent local exchange carriers to

determine whether IXCs that use

combinations of unbundled network

elements meet the established criteria in

the Order. This limited auditing will not

have a significant economic impact on

a substantial number of small entities

because any incumbent LEC that

chooses to voluntarily exercise its

limited auditing rights will bear all

expenses associated with any resulting

audit. The Commission has also

required that audits be conducted based

on the records that a small carrier keeps

in the normal course of business. The

Commission will send a copy of the

Supplemental Order Clarification,

including a copy of this final

certification, in a report to Congress

pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996, see 5 U.S.C. 801(a)(1)(A). In

addition, the Supplemental Order

Clarification and this certification will

be sent to the Chief Counsel for

Advocacy of the Small Business

Administration, and will be published

in the Federal Register. See 5 U.S.C.

605(b).

Ordering Clauses

14. Pursuant to authority contained in

sections 1,3,4,201–205, 251, 256, 271,

and 303(r) of the Communications Act

of 1934, as amended, 47 U.S.C. 151, 153,

154, 201–205, 251, 252, 256, 271, 303(r),

the Commission clarifies the

Supplemental Order discussed.

15. The requirements in this order

will become effective immediately upon

publication in the Federal Register.

16. The Commission’s Consumer

Information Bureau, Reference

Information Center, SHALL SEND a

copy of this Supplemental Order

Clarification, including the Final

Regulatory Flexibility Certification, to

the Chief Counsel for Advocacy of the

Small Business Administration.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 00–15576 Filed 6–19–00; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[I.D. 022500C]

RIN 0648–AM29

Fisheries of the Exclusive Economic

Zone Off Alaska; Rebuilding

Overfished Fisheries

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Approval of fishery

management plan amendment.

SUMMARY: NMFS announces the

approval of Amendment 11 to the

Fishery Management Plan for Bering

Sea/Aleutian Islands King and Tanner

Crabs (FMP). This amendment is

necessary to implement a plan to

rebuild the overfished stock of Bering

Sea Tanner crab (Chionoecetes bairdi).

This action is intended to ensure that

conservation and management measures

continue to be based on the best

scientific information available and is

intended to achieve, on a continuing

basis, the optimum yield from the

affected crab fisheries.

DATES: The amendment was approved

on June 8, 2000.

ADDRESSES: Copies of Amendment 11 to

the FMP, and the Environmental

Assessment (EA) prepared for the

amendment are available from the

Sustainable Fisheries Division, Alaska

Region, NMFS, P.O. Box 21668, Juneau,

AK 99802–1668, Attn: Lori Gravel.

FOR FURTHER INFORMATION CONTACT:

Gretchen Harrington, 907-586-7228 or

gretchen.harrington@noaa.gov.

SUPPLEMENTARY INFORMATION: NMFS

declared the Bering Sea stock of Tanner

crab overfished on March 3, 1999,

because the spawning stock biomass

was below the minimum stock size

threshold defined in Amendment 7 to

the FMP (64 FR 11390). Amendment 7

specified objective and measurable

criteria for identifying when all of the

crab fisheries covered by the FMP are

overfished or when overfishing is

occurring. NMFS notified the North

Pacific Fishery Management Council

(Council) once NMFS determined that

the stock was overfished (64 FR 15308,

March 31, 1999). The Council then took

action to develop a rebuilding plan

within 1 year. Amendment 11, the

rebuilding plan, is an FMP amendment

that accomplishes the purposes outlined

in the national standard guidelines to

rebuild the overfished stock.

Amendment 11 specifies a time period

for rebuilding the stock that satisfies the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act).

The rebuilding plan is estimated to

allow the Bering Sea Tanner crab stock

to rebuild, with a 50 percent probability,

in 10 years. The stock will be

considered ‘‘rebuilt’’ when the stock

reaches the maximum sustainable yield

stock size level in 2 consecutive years.

The Council’s rebuilding plan

incorporates the harvest strategy

developed by the Alaska Department of

Fish and Game and adopted by the

Alaska Board of Fisheries. Section 8.0 of

the FMP defers to the State of Alaska the

authority to develop harvest strategies,

with oversight by NMFS and the

Council. The rebuilding harvest strategy

should result in more spawning biomass

because fishery and bycatch mortality

would be reduced. This higher

spawning biomass is expected to

produce large year-classes when

environmental conditions are favorable.

An EA was prepared for Amendment

11 that describes the management

background, the purpose and need for

action, the management alternatives,

and the environmental and the socioeconomic impacts of the alternatives. A

copy of the EA can be obtained from

NMFS (see ADDRESSES).

A notice of availability for the

proposed Amendment 11 to the FMP,

which described the proposed

amendment and invited comments from

the public, was published in the Federal

Register on March 7, 2000 (65 FR

11973). Comments were invited until

May 8, 2000. NMFS received no public

comments on Amendment 11.

NMFS determined that Amendment

11 to the FMP is consistent with the

Magnuson-Stevens Act and other