Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28117

4. Section 483.360 is amended by

revising the introductory text to read as

follows:

§ 483.360 Consultation with treatment

team physician.

If a physician or other licensed

practitioner permitted by the state and

the facility to order restraint or

seclusion orders the use of restraint or

seclusion, that person must contact the

resident’s treatment team physician,

unless the ordering physician is in fact

the resident’s treatment team physician.

The person ordering the use of restraint

or seclusion must—

* * * * *

5. Section 483.362 is amended by

revising paragraphs (b) and (c) to read

as follows:

§ 483.362 Monitoring of the resident in and

immediately after restraint

* * * * *

(b) If the emergency safety situation

continues beyond the time limit of the

order for the use of restraint, a registered

nurse or other licensed staff, such as a

licensed practical nurse, must

immediately contact the ordering

physician or other licensed practitioner

permitted by the state and the facility to

order restraint or seclusion to receive

further instructions.

(c) A physician, or other licensed

practitioner permitted by the state and

the facility to evaluate the resident’s

well-being and trained in the use of

emergency safety interventions, must

evaluate the resident’s well-being

immediately after the restraint is

removed.

6. Amending section 483.364 by

revising paragraphs (c) and (d) to read

as follows:

§ 483.364 Monitoring of the resident in and

immediately after seclusion

* * * * *

(c) If the emergency safety situation

continues beyond the time limit of the

order for the use of seclusion, a

registered nurse or other licensed staff,

such as a licensed practical nurse, must

immediately contact the ordering

physician or other licensed practitioner

permitted by the state and the facility to

order restraint or seclusion to receive

further instructions.

(d) A physician, or other licensed

practitioner permitted by the state and

the facility to evaluate the resident’s

well-being and trained in the use of

emergency safety interventions, must

evaluate the resident’s well-being

immediately after the resident is

removed from seclusion.

7. Section 483.374 is amended by

adding paragraph (c) to read as follows:

§ 483.374 Facility reporting.

* * * * *

(c) Reporting of deaths. In addition to

the reporting requirements contained in

paragraph (b) of this section, facilities

must report the death of any resident to

the Health Care Financing

Administration (HCFA) regional office.

(1) Staff must report the death of any

resident to the HCFA regional office by

no later than close of business the next

business day after the resident’s death.

(2) Staff must document in the

resident’s record that the death was

reported to the HCFA regional office.

(Catalog of Federal Domestic Assistance

Program No. 93.778, Medical Assistance

Program)

Dated: May 17, 2001.

Michael McMullan,

Acting Deputy Administrator, Health Care

Financing Administration.

Dated: May 17, 2001.

Tommy G. Thompson,

Secretary.

[FR Doc. 01–13041 Filed 5–21–01; 8:45 am]

BILLING CODE 4120–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 64

[CC Docket Nos. 00–257 and 94–129; FCC

01–153]

2000 Biennial Review—Review of

Policies and Rules Concerning

Unauthorized Changes of Consumers

Long Distance Carriers

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The streamlined procedures

the Commission adopts here will

replace the current, burdensome waiver

process. The Commission’s new

procedures provide for an acquiring

carrier to simply self-certify to the

Commission, in advance of the transfer,

that the carrier will follow the required

procedures. This will protect the

interests of the affected subscribers by

giving them adequate advance notice of

the carrier change and ensuring that the

change will not cause them financial

harm.

DATES: This document contains

information collection requirements that

have not been approved by the Office of

Management Budget (OMB). The

Commission will publish a document in

the Federal Register announcing the

effective date of this final rule.

FOR FURTHER INFORMATION CONTACT:

Michele Walters, Associate Division

Chief, or Dana Walton-Bradford,

Attorney, Common Carrier Bureau,

Accounting Policy Division, (202) 418–

7400.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s First

Report and Order in CC Docket No. 00–

257 and Fourth Report and Order in CC

Docket No. 94–129 released on May 15,

2001. The full text of this document is

available for public inspection during

regular business hours in the FCC

Reference Center, Room CY–A257, 445

Twelfth Street, SW., Washington, DC,

20554.

I. Introduction

1. As part of our biennial regulatory

review effort, we are amending our

carrier change rules to provide a

streamlined process for compliance

with section 258 of the Communications

Act of 1934 (Act), as amended by the

Telecommunications Act of 1996 (1996

Act) in situations involving the carrierto-carrier sale or transfer of subscriber

bases. The streamlined procedures we

adopt in this Order will replace the

current, more burdensome waiver

process. Our new procedures provide

for an acquiring carrier to simply selfcertify to the Commission, in advance of

the transfer, that the carrier will follow

the required procedures. This will

protect the interests of the affected

subscribers, consistent with section 258

and our rules, by giving them adequate

advance notice of the carrier change and

ensuring that the change will not cause

them financial harm.

2. The Commission adopted carrier

change authorization and verification

requirements to protect consumers from

fraudulent changes in presubscribed

carriers. It has become clear, however,

that the need to obtain a waiver of these

requirements imposes undue burdens

on carriers seeking to buy, sell, or

transfer customer accounts and on the

Commission that could be avoided

without sacrificing consumer

protection. These burdens include the

time and resources required to prepare

and process the waiver petition and any

supplemental filings, the regulatory

uncertainty inherent in any waiver

process, and, oftentimes, delay. Given

the dynamic marketplace, and the

likelihood that carriers will continue to

buy, sell, and transfer customer lines in

the future, we believe it is appropriate

to streamline our carrier change rules to

ensure that they do not inadvertently

inhibit routine business transactions,

while ensuring that consumers are

protected from fraudulent carrier

changes, consistent with section 258

and our rules.

28118 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

II. Discussion

A. Overview

9. A telecommunications carrier

currently must file a request for waiver

of our carrier change authorization and

verification rules in order to acquire

part or all of a subscriber base from

another carrier without obtaining

individual subscriber consent. We

received 51 such requests for waiver in

2000, and we received 12 more in the

first four months of 2001. The

preparation of these waiver petitions

imposes burdens both on carriers and

the Commission. These burdens are not

limited to the initial filing. Often

carriers consult with Commission staff

prior to their initial waiver request, and,

on occasion, carriers supplement that

filing, a time-consuming process.

Moreover, carriers have no way of

knowing when they will receive a ruling

on their waiver requests. Although some

carriers have received grants of

emergency petitions in as little as one

week, it is more typical for carriers to

wait at least a month for a ruling

because of the heavy volume of these

filings, and several petitioners have

experienced much longer delays.

Incorporating a streamlined certification

and notification process into the current

rules will significantly reduce the

burden on carrier and Commission

resources while still protecting

consumers’ interests. Indeed, all

commenters support our proposal to

amend our rules to address the sale or

transfer of subscriber bases. All

commenters also endorse our stated

goals: to reduce regulatory burdens, and

thereby produce greater certainty in the

marketplace, while providing adequate

consumer protection consistent with

section 258 and our carrier change rules.

As discussed in greater detail, the

streamlined process for the sale or

transfer of subscriber bases adopted in

this Order achieves both of these goals.

10. We amend § 64.1120 of our rules

to establish a streamlined selfcertification process for the carrier-tocarrier sale or transfer of subscriber

bases, thereby eliminating the need to

obtain a waiver of Commission rules

prior to closing a transaction. This

process is designed to ensure that the

affected subscribers have adequate

information about the carrier change in

advance, that they are not financially

harmed by the change, and that they

will experience a seamless transition of

service from their original carrier to the

acquiring carrier. This process also will

provide the Commission with

information it needs to fulfill its

consumer protection obligations. Under

the revised rules, carriers need not

obtain individual authorization and

verification for carrier changes

associated with the carrier-to-carrier

sale or transfer of a subscriber base,

provided that, not later than 30 days

before the planned carrier change, the

acquiring carrier notifies the

Commission, in writing, of its intention

to acquire the subscriber base and

certifies that it will comply with the

required procedures, including the

provision of advance written notice to

all affected subscribers.

B. Notice to the Commission

11. We find that it is in the public

interest to adopt a carrier selfcertification process as the streamlined

procedure for notifying the Commission

prior to the sale or transfer of a

subscriber base. The acquiring carrier

must certify, at least 30 days before the

intended transaction date, that it will

comply with the requirements

established in this Order, including the

provision of reasonable advance notice

to the affected subscribers. The

Commission will be able to ensure that

consumer interests are protected if it has

advance knowledge of such transactions

and certification of compliance with the

requirements of this streamlined

process.

12. Under the streamlined process we

adopt in this Order, the acquiring carrier

will simply file a letter in CC Docket No.

00–257 with the Secretary of the

Commission, no later than 30 days prior

to the transfer of the subscriber base to

the new service provider, that includes

the names of the parties to the

transaction, the types of

telecommunications services provided

to the affected subscribers, the date of

the transfer of these subscribers to the

acquiring carrier, a certification of

compliance with the requirements of

this process, and an attached copy of the

notice sent to the affected subscribers.

In the rare case in which, after the filing

of the certification, there is a material

change to the required information,

such as a change in the date of the

subscriber transfer, the acquiring carrier

must file written notification of the

change(s) with the Commission no more

than 10 days after the transfer date

designated in the prior filing. While we

reserve the right to require the acquiring

carrier to send an additional notice to

the affected subscribers regarding such

material changes, we expect that we will

exercise this right infrequently. We

disagree with commenters who contend

that a self-certification requirement is

no less burdensome than the current

waiver process, or that this requirement

undermines our streamlining efforts.

Under this streamlined approach, in

contrast to the waiver process, the

carrier need not obtain Commission

approval in order to complete the

transaction.

13. A telecommunications carrier

must comply with this streamlined

process whenever it acquires

subscribers from another carrier through

a sale or transfer. For example, if a

carrier plans to acquire the subscriber

base of another carrier owned by the

same parent company, and if, after the

transfer, the subscribers’ preferred

carrier will have a different name,

contact number, billing address, and set

of rates, terms, and conditions, the

acquiring carrier must comply with the

procedures adopted in this Order.

However, we note that, when a carrier

is simply undergoing a name change, it

is not in fact acquiring customers

through a sale or transfer, and therefore

it need not comply with these

procedures. As another example, a

change in corporate structure that is

invisible to the affected subscribers does

not constitute a sale or transfer for

purposes of section 258 that implicates

this streamlined process.

14. The rule amendments we adopt in

this Order expressly prohibit use of the

streamlined procedure to avoid liability

for slamming rule violations by

transferring subscribers to another

corporation. We caution carriers that the

Commission will continue its vigorous

slamming enforcement efforts and will

not tolerate carrier attempts to avoid

liability for slamming rule violations by,

for example, transferring subscribers to

a sham company. The Commission’s

Enforcement Bureau will be vigilant in

monitoring subscriber transfers effected

under these procedures for indications

of fraud and will pursue enforcement

action against carriers that violate the

proscription. We believe that our

streamlined process for carrier changes

associated with sales or transfers,

coupled with vigorous enforcement of

our slamming rules, will be sufficient to

protect consumers from unscrupulous

carriers.

C. Notice to the Affected Subscribers

15. We conclude that carriers

acquiring subscribers should provide

those subscribers with reasonable

advance notice of a carrier change

associated with a sale or transfer. We

agree with those commenters that

support our proposed 30-day advance

notice period. We believe that, if an

affected subscriber receives notice of the

transaction at least 30 days before it

occurs, the subscriber will be able to

make an informed decision as to

whether to accept the acquiring carrier

as his or her preferred carrier. We are

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28119

not persuaded that a 30-day notice

requirement will be burdensome and

costly to the carriers involved. Based on

our extensive experience with waiver

petitions related to subscriber sales or

transfers, we believe that 30 days is a

reasonable notice period to provide

subscribers with sufficient opportunity

to make an informed decision without

creating a burdensome delay for the

carriers involved.

16. We conclude that the carrier

acquiring a subscriber base should be

responsible for notifying the affected

subscribers. We note that, in the absence

of a waiver or the streamlined process

adopted in this Order, the acquiring

carrier would be required by the

Commission’s carrier change

authorization and verification rules, and

by section 258, to obtain each

subscriber’s express authorization and

verification for the carrier change. We

do not agree with SBC that the acquiring

carrier will lack access to the necessary

subscriber list information. We believe

that, in most cases, sufficient subscriber

list information will be available to the

acquiring carrier and that it is unlikely

that a carrier would consummate a

purchase of a subscriber base without

having immediate access to the

subscriber list upon the closing of the

purchase agreement. We are confident

that carriers can, through normal

business negotiations, make

arrangements for the acquiring carrier to

obtain the necessary information.

17. We further find that the written

notice to the affected subscribers should

not differ based on the types of service

provided or the size of the carriers

involved. Because a change in

presubscribed service provider affects

all subscribers similarly, regardless of

the service type or the size of the

original or acquiring carrier, there is no

basis for varying the notice

requirements.

18. We decline to require the

acquiring carrier to send a second notice

to the affected subscribers. We agree

with commenters that argue that the

affected subscribers do not need to

receive a second written notice that

simply reiterates the information

provided in the first notice. We

recognize that some affected subscribers

may fail to read the notice sent prior to

the change in service providers;

however, as pointed out by several

commenters, the affected subscribers

will receive notification of the new

service provider on their bills under the

highlighting requirement of the

Commission’s truth-in-billing rules.

Moreover, we expect that most

acquiring carriers will contact the

affected subscribers after the transfer as

a matter of good business practice. We

believe that a second notice may also be

costly for carriers, especially smaller

carriers.

19. Because section 255 and the

Commission’s existing rules impose

disability accessibility requirements on

carriers, we decline to impose

additional requirements regarding

advance subscriber notices sent to blind

or visually-impaired consumers but will

incorporate by reference the existing

requirements in our amendment to

§ 64.1120. We believe that our existing

rules are sufficient to ensure that the

requirements of section 255 are met. We

will monitor the situation and, if

necessary, will take further action, as

appropriate. We also believe that

carriers should have the flexibility to

meet the needs of the disabled

community consistent with statutory

and Commission requirements.

20. We note that several incumbent

local exchange carriers have raised an

issue regarding the application of our

rules in situations where a competitive

local exchange carrier is leaving a

particular market and is required by

state law to transfer its customer base to

the incumbent. We disagree with these

commenters that the streamlined

procedures for the sale or transfer of

subscriber base adopted in this Order

should not be applied to incumbents

that must assume the subscribers of a

competitive local exchange carrier

exiting the market. We believe that the

affected subscribers of competitive local

exchange carriers are entitled to the

same protections and notice as any

other subscriber whose carrier is

changed due to a sale or transfer. To the

extent a situation arises where it is

impossible to comply precisely with the

requirements set forth in this Order, we

delegate authority to the Common

Carrier Bureau to resolve on a case-bycase basis.

21. We have carefully evaluated the

individual elements that comprise the

advance subscriber notice under our

streamlined process. We have

determined that these requirements are

necessary to ensure that the affected

subscribers have adequate information

about the carrier change, in advance,

that they will not suffer financial harm

from the involuntary change, and that

they will experience a smooth transition

to the new service provider. Not later

than 30 days before the planned carrier

change, the acquiring carrier must give

each affected subscriber written notice

of the date on which it will become the

subscriber’s new provider of

telecommunications service and of other

essential information. As discussed

more fully, the advance subscriber

notice must disclose: (1) The rates,

terms, and conditions of the service(s) to

be provided by the acquiring carrier; (2)

the fact that the acquiring carrier will be

responsible for any carrier change

charges associated with the transaction;

(3) the subscriber’s right to select a

different preferred carrier, if an

alternative carrier is available; (4) a tollfree customer service telephone number

for inquiries about the transfer; (5) the

fact that all subscribers receiving the

notice, including those who have

arranged preferred carrier freezes

through their local service providers,

will be transferred to the new carrier if

they do not select a different preferred

carrier before the transfer date; and (6)

whether the acquiring carrier will be

responsible for resolving outstanding

complaints against the selling or

transferring carrier.

1. Rates, Terms, and Conditions of the

New Service Provider

22. We conclude that the advance

subscriber notice provided by the

acquiring carrier must contain detailed

information on the rates, terms, and

conditions of the service(s) the

acquiring carrier will provide. The

notice must advise the affected

subscribers that the stated rates, terms,

and conditions will apply on the date

that the acquiring carrier becomes their

service provider, and it must also

disclose the method by which the

carrier will inform them of any posttransfer changes. We believe that having

such information in advance will enable

consumers to make an informed

decision regarding the transaction and

their choice of preferred carrier,

consistent with the goals of section 258.

23. We do not believe it appropriate

to permit carriers to simply refer the

affected subscribers to the acquiring

carrier’s website for this information, as

several commenters suggested. We

recognize that, under our detariffing

rules, long distance carriers will be

required to provide information on their

rates and service offerings on their

websites. We note, however, that not all

consumers have website access.

Moreover, we believe that the

involuntary nature of carrier changes

associated with a sale or transfer entitles

subscribers to receive direct initial

notice of the applicable rates, terms, and

conditions of the new service offerings.

For similar reasons, we reject the

proposals made by some commenters to

require the advance subscriber notice to

include only the rates of the acquiring

carrier or no information at all regarding

the new carrier’s terms or conditions of

service.

28120 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

24. We decline to require the

acquiring carrier to continue to charge

affected subscribers the same rates as

those charged by the selling or

transferring carrier for a specified period

after the transfer. Several commenters

assert that such a requirement may

prove difficult and costly, if not

impossible, and may serve as a major

impediment to these transactions in the

marketplace. We believe that such a

requirement is unnecessary because the

information the affected subscribers will

receive in the 30-day advance subscriber

notice about the acquiring carrier’s

rates, terms, and conditions for the

telecommunications services at issue,

coupled with the reminder of their right

to select a different carrier, will enable

them to make an informed decision

about who their carrier should be and

the rates they pay for these services,

consistent with the goals of section 258.

2. Notice That the Acquiring Carrier Is

Responsible for Carrier Change Charges

25. We conclude that it is appropriate,

and consistent with section 258, to

require the acquiring carrier to be

responsible for any carrier change

charges associated with the transaction.

We believe that, because carrier changes

associated with a carrier-to-carrier sale

or transfer are involuntary, subscribers

should not bear the burden of the cost

of changing service providers.

Moreover, we believe that the acquiring

carrier is in the best position to cover

carrier change charges because it has the

billing relationship with the customer

after the transfer. We modify slightly

our proposal in the Third Further

Notice, 66 FR 8093, January 29, 2001, to

require the advance subscriber notice to

state that no carrier charges will be

imposed as a result of the transaction

because we recognize that some

acquiring carriers may not be able to

prevent the assessment of a carrier

change charge. We recognize that

acquiring carriers may need the

flexibility to credit or reimburse affected

subscribers for such charges, if such

charges are imposed outside of the

acquiring carrier’s control. Our

amended rules require the acquiring

carrier to take responsibility for any

carrier change charges associated with

the transaction and to make this fact

clear in the advance subscriber notice.

3. Notice of the Subscriber’s Right To

Select a New Preferred Carrier

26. We agree with commenters that

subscribers being transferred from one

carrier to the next in a transaction must

know that they have the right to make

another preferred carrier selection, if an

alternative carrier is available. The

affected subscribers did not choose the

acquiring carrier and should receive

reasonable notice that they have the

right to select a new carrier if they do

not want to be served by the acquiring

carrier. Consistent with section 258, we

therefore require the acquiring carrier to

include such a statement in its advance

notice to each of the affected

subscribers. We recognize that transfers

may include customers who have signed

term contracts with the selling or

transferring carrier, and that such term

contracts may be viewed by the

acquiring company as a valuable

component of the transaction. While we

decline to make an exception to this

requirement for term contracts, we

conclude that a carrier may state in its

notice to an affected term contract

subscriber that the subscriber may face

termination penalties if the subscriber

selects another carrier prior to the

expiration of the term contract, if that is

the case.

4. Toll-Free Customer Service

Telephone Number

27. We further require the acquiring

carrier to include a toll-free customer

service telephone number in the

advance subscriber notice, in order to

address any questions or problems that

the subscriber may have concerning the

change in service providers. This

requirement will help ensure that the

affected subscribers experience a

seamless transition to the new service

provider. We note that this requirement

does not impose a new regulatory

burden on most carriers because the

Commission’s truth-in-billing rules

already require most carriers to provide

a toll-free inquiry and dispute

resolution number on consumers’

telephone bills. Accordingly, this aspect

of the subscriber notification

requirement merely provides

information that most subscribers would

obtain, at a minimum, upon receipt of

the first bill.

5. Notice That All Affected Subscribers,

Including Those With Preferred Carrier

Freezes, Will Be Switched to the

Acquiring Carrier Unless They Make an

Alternative Selection

28. We will require the acquiring

carrier to make clear in the advance

subscriber notice that all subscribers

receiving the notice, including those

who have arranged preferred carrier

freezes through their local service

providers on the service(s) involved in

the transfer, will be transferred to the

new carrier if they do not select a

different preferred carrier before the

transfer date. We will also require the

acquiring carrier to inform subscribers

that existing preferred carrier freezes on

the service(s) involved in the transfer

will be lifted and that, if they would like

to have freeze protection after the

transfer, they must contact their local

service providers to obtain this service.

Section 64.1190 of our rules permits

local service providers to offer their

subscribers the option of requesting a

preferred carrier freeze, an additional

measure of protection against

unauthorized carrier changes that is

consistent with section 258. With such

a freeze in place, the subscriber is

assured that his or her preferred carrier

will not be changed without the

subscriber’s express consent. Under the

circumstances involved in the sale or

transfer of a subscriber base, however, a

subscriber with a freeze could be left

without presubscribed service when the

selling or transferring carrier ceases to

provide service, if that customer failed

to give consent and was not

automatically switched to the acquiring

carrier. We believe that, under such

circumstances, it is preferable, and more

consistent with section 258, to permit

the transfer of such a subscriber to the

acquiring carrier, after adequate advance

notice, rather than risk having the

subscriber lose presubscribed service

altogether. In our experience, there has

occasionally been some confusion

regarding the status of ‘‘frozen’’

subscribers who are part of a subscriber

base being acquired by another carrier

pursuant to a sale or transfer. We

believe that it is appropriate to ensure

that subscribers with preferred carrier

freezes in place do not lose

presubscribed service even if they fail to

respond to notice of an impending

carrier change. Under the procedures

adopted in this Order, ‘‘frozen’’

subscribers who prefer not to receive

service from the acquiring carrier will

have sufficient notice of their ability to

select another provider, in a manner

consistent with section 258. In addition,

‘‘frozen’’ subscribers will have notice of

the need to contact their local service

providers if they wish to continue to

have preferred carrier freeze protection

for the service(s) involved in the transfer

after the transfer occurs.

6. Notice of Whether the Acquiring

Carrier Will Handle Complaints Against

the Selling or Transferring Carrier

29. Finally, we conclude that the

acquiring carrier must include in the

advance subscriber notice whether it

will be assuming responsibility for

handling the outstanding complaints

that the affected subscribers may have

against the selling or transferring carrier.

As part of the transaction, an acquiring

carrier may agree to assume

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28121

responsibility for outstanding

complaints against the selling or

transferring carrier. In order to provide

maximum information to affected

subscribers, we believe it is appropriate

to require the acquiring carrier to

provide information about complaint

administration to the affected

subscribers if the acquiring carrier is

assuming responsibility for such

complaints.

30. We decline to require the

acquiring carrier to handle outstanding

complaints against the selling or

transferring carrier. While some

commenters support requiring the

acquiring carrier to commit to handling

customer complaints regarding the

service of the original carrier and the

transfer itself to ensure that transferred

subscribers are not deprived of recourse

after the transfer, other commenters

strongly oppose this approach, and

some believe we should place the

liability for handling previous

complaints on the selling or transferring

carrier. We recognize that carriers often

factor the costs of complaint

administration into their transaction

agreements, and we are reluctant to

interfere with this process. We believe

that it is sufficient to require the

acquiring carrier to disclose in the

advance subscriber notice whether it

has assumed responsibility for handling

outstanding complaints against the

selling or transferring carrier.

IV. Procedural Matters

A. Final Regulatory Flexibility Analysis

31. As required by the Regulatory

Flexibility Act (RFA), an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated into the Third Further

Notice in this proceeding. The

Commission sought written public

comment on the proposals in the Third

Further Notice, including comment on

the IRFA. The comments received are

discussed. This Final Regulatory

Flexibility Analysis (FRFA) conforms to

the RFA.

1. Need for and Objectives of This

Action

32. Section 258 of the Act makes it

unlawful for any telecommunications

carrier ‘‘to submit or execute a change

in a subscriber’s selection of a provider

of telephone exchange services or

telephone toll service except in

accordance with such verification

procedures as the Commission shall

prescribe.’’ In the Section 258 Order, 64

FR 7763, February 16, 1999, the

Commission established a

comprehensive framework of rules to

implement section 258 and strengthen

its existing anti-slamming rules. Since

the release of the Section 258 Order, the

Commission has received many requests

for waiver of its carrier change and

authorization rules as a result of carriers

selling or transferring their subscriber

bases to other carriers, and the carriers

desire not to get authorization from each

affected subscriber in order to transition

in a seamless, efficient manner. The

objectives of the modified rules adopted

in this Order are to address these types

of transactions and provide for a

streamlined approach that would meet

the consumer protection goals of section

258 and also permit carriers to

efficiently transfer customers without

the need for Commission approval of a

waiver petition.

2. Summary of Significant Issues Raised

by Public Comments in Response to the

IRFA

33. The Commission received no

comments directly in response to the

IRFA.

34. Difference in Advance Notice to

Affected Subscribers Based on Types of

Service Provided and/or Size of Carrier.

The Commission specifically sought

comment on whether the subscriber

advance notice requirement should

differ in some manner based on the type

of service being provided, such as local,

intraLATA toll, or interLATA toll

service, or upon the size of the carrier(s)

involved. All commenters on this issue

agree that the advance notice

requirement should be the same for all

carriers. The Commission determined

that, because a change in presubscribed

service provider affects all subscribers

similarly, regardless of the service type

or the size of the original or acquiring

carrier, there is no basis for varying the

notice requirements.

35. Second Notice to Affected

Subscribers. The Commission invited

parties to comment on whether

acquiring carriers should be required to

provide each affected subscriber with a

second written notice after the transfer

has occurred reiterating the same

information provided in the pre-transfer

notification. Many commenters contend

that the requirement of a second notice

to the affected subscribers is overly

burdensome and costly for carriers with

little benefit to the affected subscribers.

ITAA specifically noted that a second

notice requirement would be

particularly burdensome for smaller and

midsize carriers, which would be less

able to absorb doubling the costs of the

subscriber notice requirement. These

comments are discussed in more detail.

The Commission agrees with these

commenters, and others, that affected

subscribers do not need to receive a

second written notice that simply

reiterates the information provided in

the first notice. The Commission

recognized that, while some affected

subscribers may fail to read the notice

sent prior to the change in service

providers, they will receive notification

of the new service provider on their

bills under the highlighting requirement

of the Commission’s truth-in-billing

rules. The Commission also concluded

that a second notice would be costly for

carriers, especially smaller carriers.

3. Description and Estimate of the

Number of Small Entities to Which the

Rules Will Apply

36. The RFA directs agencies to

provide a description of and, where

feasible, an estimate of the number of

small entities that may 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’’ is defined as a ‘‘small

business concern’’ under section 3 of

the Small Business Act. 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). A small

organization is generally ‘‘any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.’’ Nationwide, as of

1992, there were approximately 275,801

small organizations. ‘‘Small

governmental jurisdiction’’ generally

means ‘‘governments of cities, counties,

towns, townships, villages, school

districts, or special districts, with a

population of less than 50,000.’’ As of

1992, there were approximately 85,006

governmental entities in the United

States. This number includes 38,978

counties, cities, and towns; of these,

37,566, or 96 percent, have populations

of fewer than 50,000. The Census

Bureau estimates that this ratio is

approximately accurate for all

governmental entities. Thus, of the

85,006 governmental entities, we

estimate that 81,600 (96 percent) are

small entities. According to SBA

reporting data, there were 4.44 million

small business firms nationwide in

1992. We further describe and estimate

the number of small entity licensees and

regulatees that may be affected by the

rules.

37. The most reliable source of

information regarding the total numbers

of certain common carrier and related

providers nationwide, as well as the

28122 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

number of commercial wireless entities,

appears to be data the Commission

publishes in its Trends in Telephone

Service report. In a recent news release,

the Commission indicated that there are

4,822 interstate carriers. These carriers

include, inter alia, local exchange

carriers, wireline carriers and service

providers, interexchange carriers,

competitive access providers, operator

service providers, pay telephone

operators, providers of telephone

service, providers of telephone

exchange service, and resellers.

38. The SBA has defined

establishments engaged in providing

‘‘Radiotelephone Communications’’ and

‘‘Telephone Communications, Except

Radiotelephone’’ to be small businesses

when they have no more than 1,500

employees. We discuss the total

estimated number of telephone

companies falling within the two

categories and the number of small

businesses in each, and we then attempt

to refine further those estimates to

correspond with the categories of

telephone companies that are commonly

used under our rules.

39. We have included small

incumbent LECs in this present RFA

analysis. As noted, a ‘‘small business’’

under the RFA is one that, inter alia,

meets the pertinent small business size

standard (e.g., a telephone

communications business having 1,500

or fewer employees), and ‘‘is not

dominant in its field of operation.’’ The

SBA’s Office of Advocacy contends that,

for RFA purposes, small incumbent

LECs are not dominant in their field of

operation because any such dominance

is not ‘‘national’’ in scope. We have

therefore included small incumbent

LECs in this RFA analysis, although we

emphasize that this RFA action has no

effect on FCC analyses and

determinations in other, non-RFA

contexts.

40. Total Number of Telephone

Companies Affected. The U.S. Bureau of

the Census (‘‘Census Bureau’’) reports

that, at the end of 1992, there were

3,497 firms engaged in providing

telephone services, as defined therein,

for at least one year. This number

contains a variety of different categories

of carriers, including local exchange

carriers, interexchange carriers,

competitive access providers, cellular

carriers, mobile service carriers,

operator service providers, pay

telephone operators, covered

specialized mobile radio providers, and

resellers. It seems certain that some of

these 3,497 telephone service firms may

not qualify as small entities because

they are not ‘‘independently owned and

operated.’’ For example, a PCS provider

that is affiliated with an interexchange

carrier having more than 1,500

employees would not meet the

definition of a small business. It is

reasonable to conclude that 3,497 or

fewer telephone service firms are small

entity telephone service firms that may

be affected by the new rules.

41. Wireline Carriers and Service

Providers. The SBA has developed a

definition of small entities for telephone

communications companies except

radiotelephone (wireless) companies.

The Census Bureau reports that there

were 2,321 such telephone companies

in operation for at least one year at the

end of 1992. According to the SBA’s

definition, a small business telephone

company other than a radiotelephone

company is one employing no more

than 1,500 persons. All but 26 of the

2,321 non-radiotelephone companies

listed by the Census Bureau were

reported to have fewer than 1,000

employees. Thus, even if all 26 of those

companies had more than 1,500

employees, there would still be 2,295

non-radiotelephone companies that

might qualify as small entities. We do

not have data specifying the number of

these carriers that are not independently

owned and operated, and thus are

unable at this time to estimate with

greater precision the number of wireline

carriers and service providers that

would qualify as small business

concerns under the SBA’s definition.

Consequently, we estimate that 2,295 or

fewer small telephone communications

companies other than radiotelephone

companies are small entities that may be

affected by the new rules.

42. Local Exchange Carriers. Neither

the Commission nor the SBA has

developed a definition for small

providers of local exchange services

(LECs). The closest applicable definition

under the SBA rules is for telephone

communications companies other than

radiotelephone (wireless) companies.

According to the most recent

Telecommunications Industry Revenue

data, 1,335 incumbent carriers reported

that they were engaged in the provision

of local exchange services. We do not

have data specifying the number of

these carriers that are either dominant

in their field of operations, are not

independently owned and operated, or

have more than 1,500 employees, and

thus are unable at this time to estimate

with greater precision the number of

LECs that would qualify as small

business concerns under the SBA’s

definition. Consequently, we estimate

that 1,335 or fewer providers of local

exchange service are small entities that

may be affected by the new rules.

43. Interexchange Carriers. Neither

the Commission nor the SBA has

developed a definition of small entities

specifically applicable to providers of

interexchange services (IXCs). The

closest applicable definition under the

SBA rules is for telephone

communications companies other than

radiotelephone (wireless) companies.

According to the most recent Trends in

Telephone Service data, 204 carriers

reported that they were engaged in the

provision of interexchange services. We

do not have data specifying the number

of these carriers that are not

independently owned and operated or

have more than 1,500 employees, and

thus are unable at this time to estimate

with greater precision the number of

IXCs that would qualify as small

business concerns under the SBA’s

definition. Consequently, we estimate

that there are 204 or fewer small entity

IXCs that may be affected by the new

rules.

44. Competitive Access Providers.

Neither the Commission nor the SBA

has developed a definition of small

entities specifically applicable to

competitive access services providers

(CAPs). The closest applicable

definition under the SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies. According to the most

recent Trends in Telephone Service

data, 349 CAP/CLECs carriers and 60

other LECs reported that they were

engaged in the provision of competitive

local exchange services. We do not have

data specifying the number of these

carriers that are not independently

owned and operated, or have more than

1,500 employees, and thus are unable at

this time to estimate with greater

precision the number of CAPs that

would qualify as small business

concerns under the SBA’s definition.

Consequently, we estimate that there are

349 or fewer small entity CAPs and 60

other LECs that may be affected by the

new rules.

45. Operator Service Providers.

Neither the Commission nor the SBA

has developed a definition of small

entities specifically applicable to

providers of operator services. The

closest applicable definition under the

SBA rules is for telephone

communications companies other than

radiotelephone (wireless) companies.

According to the most recent Trends in

Telephone Service data, 21 carriers

reported that they were engaged in the

provision of operator services. We do

not have data specifying the number of

these carriers that are not independently

owned and operated or have more than

1,500 employees, and thus are unable at

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28123

this time to estimate with greater

precision the number of operator service

providers that would qualify as small

business concerns under the SBA’s

definition. Consequently, we estimate

that there are 21 or fewer small entity

operator service providers that may be

affected by the new rules.

46. Pay Telephone Operators. Neither

the Commission nor the SBA has

developed a definition of small entities

specifically applicable to pay telephone

operators. The closest applicable

definition under SBA rules is for

telephone communications companies

other than radiotelephone (wireless)

companies. According to the most

recent Trends in Telephone Service

data, 758 carriers reported that they

were engaged in the provision of pay

telephone services. We do not have data

specifying the number of these carriers

that are not independently owned and

operated or have more than 1,500

employees, and thus are unable at this

time to estimate with greater precision

the number of pay telephone operators

that would qualify as small business

concerns under the SBA’s definition.

Consequently, we estimate that there are

758 or fewer small entity pay telephone

operators that may be affected by the

new rules.

47. Resellers (including debit card

providers). Neither the Commission nor

the SBA has developed a definition of

small entities specifically applicable to

resellers. The closest applicable SBA

definition for a reseller is a telephone

communications company other than

radiotelephone (wireless) companies.

According to the most recent Trends in

Telephone Service data, 454 toll and 87

local entities reported that they were

engaged in the resale of telephone

service. We do not have data specifying

the number of these carriers that are not

independently owned and operated or

have more than 1,500 employees, and

thus are unable at this time to estimate

with greater precision the number of

resellers that would qualify as small

business concerns under the SBA’s

definition. Consequently, we estimate

that there are 454 or fewer small toll

entity resellers and 87 small local entity

resellers that may be affected by the new

rules.

48. Toll-Free 800 and 800-Like Service

Subscribers. Neither the Commission

nor the SBA has developed a definition

of small entities specifically applicable

to 800 and 800-like service (‘‘toll free’’)

subscribers. The most reliable source of

information regarding the number of

these service subscribers appears to be

data the Commission collects on the

800, 888, and 877 numbers in use.

According to our most recent data, at

the end of January 1999, the number of

800 numbers assigned was 7,692,955;

the number of 888 numbers that had

been assigned was 7,706,393; and the

number of 877 numbers assigned was

1,946,538. We do not have data

specifying the number of these

subscribers that are not independently

owned and operated or have more than

1,500 employees, and thus are unable at

this time to estimate with greater

precision the number of toll free

subscribers that would qualify as small

business concerns under the SBA’s

definition. Consequently, we estimate

that there are 7,692,955 or fewer small

entity 800 subscribers, 7,706,393 or

fewer small entity 888 subscribers, and

1,946,538 or fewer small entity 877

subscribers may be affected by the new

rules.

49. Cellular Licensees. Neither the

Commission nor the SBA has developed

a definition of small entities applicable

to cellular licensees. Therefore, the

applicable definition of small entity is

the definition under the SBA rules

applicable to radiotelephone (wireless)

companies. This provides that a small

entity is a radiotelephone company

employing no more than 1,500 persons.

According to the Census Bureau, only

twelve radiotelephone firms from a total

of 1,178 such firms which operated

during 1992 had 1,000 or more

employees. Therefore, even if all twelve

of these firms were cellular telephone

companies, nearly all cellular carriers

were small businesses under the SBA’s

definition. In addition, we note that

there are 1,758 cellular licenses;

however, a cellular licensee may own

several licenses. In addition, according

to the most recent Trends in Telephone

Service data, 806 carriers reported that

they were engaged in the provision of

either cellular service or Personal

Communications Service (PCS) services,

which are placed together in the data.

We do not have data specifying the

number of these carriers that are not

independently owned and operated or

have more than 1,500 employees, and

thus are unable at this time to estimate

with greater precision the number of

cellular service carriers that would

qualify as small business concerns

under the SBA’s definition.

Consequently, we estimate that there are

806 or fewer small cellular service

carriers that may be affected by the new

rules.

4. Description of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

50. We analyze the projected

reporting, recordkeeping, and other

compliance requirements that might

affect small entities.

51. Notice to the Commission. The

Commission concludes that adopting a

carrier self-certification process as the

streamlined procedure for notifying the

Commission prior to the sale or transfer

of a subscriber base is in the public

interest. Accordingly, the Commission

directs carriers to file a notification

letter with the Secretary of the

Commission, no later than 30 days prior

to the actual transfer of the subscriber

base to the new service provider. This

notification letter shall include the

names of the parties to the transaction,

the types of telecommunications

services provided to the affected

subscribers, the date of the transfer of

these subscribers to the acquiring

carrier, a certification of compliance

with the statutory and Commission

requirements that apply to this process,

and an attached copy of the notice sent

to the affected subscriber. This is a

minimal filing requirement for small

and large carriers in comparison to the

Commission waiver process

requirements and, unlike the waiver

process, it will not require the carriers

to obtain Commission action before

completing the transaction. The selfcertification to the Commission will

serve enforcement and consumer

information purposes through providing

the Commission with advance notice of

these transactions. Certification of these

transactions will help ensure

compliance with the Commission’s

rules and will better inform Commission

of the status of these transactions in the

marketplace so that the Commission can

better serve and provide information to

affected consumers.

52. Notice to the Affected Subscribers.

The Commission amends its carrier

change and authorization rules to

provide a streamlined procedure for all

telecommunications carriers that

purchase or transfer all or part of their

subscriber base. This streamlined

approach will benefit all carriers, small

and large, by eliminating the timeconsuming and resource-intensive

Commission waiver process. The

Commission concludes that carriers

acquiring subscribers should provide

those subscribers with reasonable

advance notice (i.e., at least 30 days) of

a carrier change associated with a sale

or transfer. The Commission states that,

based on its extensive experience with

waiver petitions related to subscriber

sales or transfers, 30 days is a

reasonable notice period to provide

subscribers with sufficient notice and

opportunity to make an informed

decision without creating a burdensome

delay for the carriers involved.

28124 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

5. Steps Taken To Minimize the

Significant Economic Impact of This

Action on Small Entities, and

Significant Alternatives Considered

53. Advance Notice to the Affected

Subscribers. The Commission has

considered whether the advance

subscriber notice requirement adopted

herein will impose significant

additional costs or administrative

burdens on small carriers. The

Commission concludes that this

requirement would not impose

significant additional costs or

administrative burdens on small

carriers. In this regard, the Commission

notes that all carriers, including small

carriers, already provide these types of

notices as part of the waiver process and

do not object to continuing to provide

them under the streamlined approach

prescribed in the Third Further Notice.

Accordingly, the Commission concludes

that the advance notice requirement is

not burdensome.

54. Second Notice to Affected

Subscribers. To minimize the

administrative burden on carriers,

particularly small carriers, the

Commission has not incorporated a

second notice to the affected subscribers

into the streamlined process. The

Commission recognizes that such a

requirement may be costly and therefore

burdensome to small carriers. In

addition, we note that consumers will

receive a de facto second notice through

the highlighting of new service

providers on telephone bills required by

the Commission’s truth-in-billing rules.

Our decision not to adopt the proposed

alternative of a required second

subscriber notice is consistent with

comments filed, including those

addressing small entity concerns.

55. Rates, Terms, and Conditions of

the New Service Provider. The

Commission has considered whether to

require the acquiring carrier to continue

to charge affected subscribers the same

rates as those charged by the selling or

transferring carrier for a specified period

after the transfer. The Commission has

determined that such a requirement is

not necessary because the information

the affected subscribers will receive in

the 30-day advance subscriber notice

about the acquiring carrier’s rates,

terms, and conditions for the

telecommunications services at issue

will enable them to make an informed

decision about the rates they pay for

these services.

6. Report to Congress

56. The Commission will send a copy

of the Order, including this FRFA, in a

report to Congress pursuant to the

Congressional Review Act. In addition,

the Commission will send a copy of the

Order, including the FRFA, to the Chief

Counsel for Advocacy of the Small

Business Administration. A copy of the

Order and FRFA (or summaries thereof)

also will be published in the Federal

Register.

B. Paperwork Reduction Act

57. The action contained herein has

been analyzed with respect to the

Paperwork Reduction Act of 1995 and

found to impose new or modified

reporting and recordkeeping

requirements or burdens on the public.

This document contains information

collection requirements that have not

been approved by the Office of

Management Budget (OMB). The

Commission will publish a document in

the Federal Register announcing the

effective date of that section.

VI. Ordering Clauses

58. Pursuant to sections 1, 4, 201–205,

255, and 258 of the Communications

Act of 1934, as amended, the policies,

rules, and requirements set forth herein

are adopted. Part 64 is amended as set

forth.

59. This document contains

information collection requirements that

have not been approved by the Office of

Management Budget (OMB). The

Commission will publish a document in

the Federal Register announcing the

effective date of that section.

60. The Commission’s Consumer

Information Bureau, Reference

Information Center, shall send a copy of

this Order, including the Final

Regulatory Flexibility Analysis, to the

Chief Counsel for Advocacy of the Small

Business Administration.

List of Subjects in 47 CFR Part 64

Communications common carriers,

Reporting and recordkeeping

requirements, Telephone.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Amended

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR Part 64 as

follows:

PART 64—MISCELLANEOUS RULES

RELATING TO COMMON CARRIERS

The authority citation for part 64

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 201, 202,

205, 218–220, and 332 unless otherwise

noted. Interpret or apply sections 201, 218,

225, 226, 227, 229, 332, 48 Stat. 1070, as

amended. 47 U.S.C. 201–204, 208, 225, 226,

227, 229, 332, 501 and 503 unless otherwise

noted.

1. Section 64.1120 is amended by

adding paragraph (e) to read as follows:

§ 64.1120 Verification of orders for

telecommunications service.

* * * * *

(e) A telecommunications carrier may

acquire, through a sale or transfer, either

part or all of another telecommunications carrier’s subscriber base without

obtaining each subscriber’s

authorization and verification in

accordance with § 64.1120(c), provided

that the acquiring carrier complies with

the following streamlined procedures. A

telecommunications carrier may not use

these streamlined procedures for any

fraudulent purpose, including any

attempt to avoid liability for violations

under part 64, subpart K of the

Commission rules.

(1) No later than 30 days before the

planned transfer of the affected

subscribers from the selling or

transferring carrier to the acquiring

carrier, the acquiring carrier shall file

with the Commission’s Office of the

Secretary a letter notification in CC

Docket No. 00–257 providing the names

of the parties to the transaction, the

types of telecommunications services to

be provided to the affected subscribers,

and the date of the transfer of the

subscriber base to the acquiring carrier.

In the letter notification, the acquiring

carrier also shall certify compliance

with the requirement to provide

advance subscriber notice in accordance

with § 64.1120(e)(3), with the

obligations specified in that notice, and

with other statutory and Commission

requirements that apply to this

streamlined process. In addition, the

acquiring carrier shall attach a copy of

the notice sent to the affected

subscribers.

(2) If, subsequent to the filing of the

letter notification with the Commission

required by § 64.1120(e)(1), any material

changes to the required information

should develop, the acquiring carrier

shall file written notification of these

changes with the Commission no more

than 10 days after the transfer date

announced in the prior notification. The

Commission reserves the right to require

the acquiring carrier to send an

additional notice to the affected

subscribers regarding such material

changes.

(3) Not later than 30 days before the

transfer of the affected subscribers from

the selling or transferring carrier to the

acquiring carrier, the acquiring carrier

shall provide written notice to each

affected subscriber of the information

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28125

specified. The acquiring carrier is

required to fulfill the obligations set

forth in the advance subscriber notice.

The advance subscriber notice shall be

provided in a manner consistent with 47

U.S.C. 255 and the Commission’s rules

regarding accessibility to blind and

visually-impaired consumers, 47 CFR

6.3, 6.5 of this chapter. The following

information must be included in the

advance subscriber notice:

(i) The date on which the acquiring

carrier will become the subscriber’s new

provider of telecommunications service,

(ii) The rates, terms, and conditions of

the service(s) to be provided by the

acquiring carrier upon the subscriber’s

transfer to the acquiring carrier, and the

means by which the acquiring carrier

will notify the subscriber of any

change(s) to these rates, terms, and

conditions.

(iii) The acquiring carrier will be

responsible for any carrier change

charges associated with the transfer,

(iv) The subscriber’s right to select a

different preferred carrier for the

telecommunications service(s) at issue,

if an alternative carrier is available,

(v) All subscribers receiving the

notice, even those who have arranged

preferred carrier freezes through their

local service providers on the service(s)

involved in the transfer, will be

transferred to the acquiring carrier,

unless they have selected a different

carrier before the transfer date; existing

preferred carrier freezes on the

service(s) involved in the transfer will

be lifted; and the subscribers must

contact their local service providers to

arrange a new freeze.

(vi) Whether the acquiring carrier will

be responsible for handling any

complaints filed, or otherwise raised,

prior to or during the transfer against

the selling or transferring carrier, and

(vii) The toll-free customer service

telephone number of the acquiring

carrier.

[FR Doc. 01–12757 Filed 5–21–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018—AF30

Endangered and Threatened Wildlife

and Plants; Final Special Regulations

for the Preble’s Meadow Jumping

Mouse

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Preble’s meadow jumping

mouse (Zapus hudsonius preblei) was

listed as a threatened species under the

Endangered Species Act (Act) of 1973,

as amended, on May 13, 1998 (63 FR

26517). At the time the Preble’s was

listed, a special rule for the conservation

of the Preble’s was not promulgated;

therefore, virtually all of the restrictions

under section 9 of the Act became

applicable to the species. A proposed

special rule was published in the

Federal Register on December 3, 1998

(63 FR 66777). This special rule is

finalized in a modified form that

includes some but not all of the

provisions previously proposed. The

rule establishes protective regulations

pursuant to section 9 of the Act. Its

duration is 36 months, during which

time more comprehensive recovery

approaches will be pursued.

DATES: This rule is effective May 22,

2001 through May 22, 2004.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours at the U.S. Fish and Wildlife

Service’s Colorado Field Office, 755

Parfet Street, Suite 361, Lakewood,

Colorado 80215.

FOR FURTHER INFORMATION CONTACT: In

Colorado—contact LeRoy Carlson, at the

above address or telephone 303/275–

2370. In Wyoming—contact Mike Long,

Field Supervisor, Cheyenne, Wyoming,

at telephone 307/772–2374.

SUPPLEMENTARY INFORMATION:

Background

The Preble’s meadow jumping mouse

(Zapus hudsonius preblei), a subspecies

of the meadow jumping mouse (Zapus

hudsonius), occurs only along the Rocky

Mountain-Great Plains Interface (the

Front Range) of eastern Colorado and

Southeastern Wyoming. The final rule

listing the Preble’s as a threatened

species under the Act was published in

the Federal Register on May 13, 1998

(63 FR 26517). Section 4(d) of the Act

(16 U.S.C. 1533 (d)) provides that,

whenever a species is listed as a

threatened species, the Secretary of the

Department of the Interior will issue

regulations deemed necessary and

advisable to provide for the

conservation of the species. This is done

in either of two ways.

First, the Act authorizes imposition of

take prohibitions to endangered species.

We, the Fish and Wildlife Service, have

issued regulations (50 CFR 17.31) that

generally apply to threatened wildlife

virtually all the prohibitions that section

9 of the Act (16 U.S.C. 1538) establishes

with respect to endangered wildlife.

These universal prohibitions, in part,

make it illegal for any person subject to

the jurisdiction of the United States to

‘‘take’’ any listed wildlife species, i.e., to

harass, harm, pursue, hunt, shoot,

wound, kill, trap, or collect any

threatened or endangered species or to

attempt to engage in any such conduct

(16 U.S.C. 1532 (19)).

Second, our regulations for threatened

wildlife also provide that a ‘‘special

rule’’ under section 4(d) of the Act can

be tailored for a particular threatened

species. In that case the general

regulations applying most section 9

prohibitions do not apply to that

species, and the special rule contains

the prohibitions (and exemptions)

necessary and appropriate to conserve

that species.

At the time the Preble’s was listed, we

did not promulgate a special section

4(d) rule; therefore, the section 9

prohibitions, including the take

prohibitions, became applicable to the

species. On December 3, 1998, a

proposed special rule identifying

specific circumstances under which

section 9 prohibitions would not apply

to the Preble’s was published in the

Federal Register (63 FR 66777). This

proposal initiated a 60-day public

comment period, which closed February

1, 1999. The public comment period

was extended for an additional 45 days

through March 5, 1999 (64 FR 4607),

and was reopened from March 16

through April 30, 1999 (64 FR 12924).

Briefly, the proposed special rule

provided exemptions from section 9

prohibitions for—(1) all activities

outside of specified Mouse Protection

Areas (areas where Preble’s had been

documented) and Potential Mouse

Protection Areas (areas judged to have

high potential to support Preble’s); (2)

rodent control, ongoing agriculture,

maintenance and replacement of

existing landscaping, and existing uses

of water anywhere within the Preble’s

range; and (3) under specified

standards, alteration of up to 4 percent

of Mouse Protection Areas and Potential

Mouse Protection Areas as approved by

State or local government. After review

of comments received, this proposed

special rule has been finalized in a

modified form, adopting only the

second exemption listed above for

rodent control, ongoing agriculture,

maintenance and replacement of

existing landscaping, and existing uses

of water anywhere within the Preble’s

range.

We anticipate that this rule will

prohibit actions that threaten the

Preble’s to the extent necessary to

provide for the conservation of the