59704 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

designated for use in areas of Alaska not 

accessible by the Federal Aid Highway 

System, and is used in areas of Alaska 

not accessible by the Federal Aid 

Highway System, is exempt from the 

sulfur standard of 40 CFR 80.29(a)(1), 

the dye provisions of 40 CFR 80.29(a)(3) 

and 40 CFR 80.29(b), and the motor 

vehicle diesel fuel standards under 40 

CFR 80.520 and associated 

requirements, provided that: 

(1) The exempt fuel is not used in 

2007 and later model year highway 

vehicles and engines, 

(2) The exempt fuel is segregated from 

nonexempt highway diesel fuel from the 

point of such designation; and 

(3) On each occasion that any person 

transfers custody or title to the exempt 

fuel, except when it is dispensed at a 

retail outlet or wholesale purchaserconsumer facility, the transferor must 

provide to the transferee a product 

transfer document stating: 

‘‘This fuel is for use only in those areas of 

Alaska not accessible by the FAHS’’. 

(4) The exempt fuel must meet the 

labeling requirements under § 80.570, 

except the following language shall be 

substituted for the language on the 

labels: 

‘‘HIGH SULFUR DIESEL FUEL (may be 

greater than 15 Sulfur ppm) 

WARNING 

Federal Law prohibits use in model year 

2007 and later highway diesel vehicles and 

engines. Its use may damage these vehicles 

and engines.’’

(e) Beginning on the following 

implementation dates, motor vehicle 

diesel fuel that is designated for use in 

areas of Alaska not accessible by the 

Federal Aid Highway System, or is used 

in areas of Alaska not accessible by the 

Federal Aid Highway System, is subject 

to the applicable provisions of 40 CFR 

part 80, subpart I, except as provided 

under 40 CFR 69.52(c), (d), and (e) for 

commingled motor vehicle and nonmotor vehicle diesel fuel: 

(1) June 1, 2010 for diesel fuel 

produced or imported by any refiner or 

importer, 

(2) August 1, 2010 at all downstream 

locations, except at retail facilities and 

wholesale-purchaser consumers, 

(3) October 1, 2010 at retail facilities 

and wholesale-purchaser consumers, 

and 

(4) December 1, 2010 at all locations. 

3. Section 69.52 is amended as 

follows: 

a. By adding paragraph (a)(4). 

b. By revising paragraphs (c)(1) and 

(c)(2). 

c. By revising paragraphs (f) and (g). 

d. By adding paragraph (h). 

§ 69.52 Non-motor vehicle diesel fuel. 

(a) * * * 

(4) Heating oil has the meaning given 

in 40 CFR 80.2. 

* * * * * 

(c) * * * 

(1) NRLM diesel fuel and heating oil 

referred to in paragraphs (b) and (g) of 

this section are exempt from the red dye 

requirements, and the presumptions 

associated with the red dye 

requirements, under 40 CFR 

80.520(b)(2) and 80.510(d)(5), (e)(5), and 

(f)(5). 

(2) NRLM diesel fuel and heating oil 

referred to in paragraphs (b) and (g) of 

this section are exempt from the marker 

solvent yellow 124 requirements, and 

the presumptions associated with the 

marker solvent yellow 124 

requirements, under 40 CFR 80.510(d) 

through (f). 

* * * * * 

(f) Non-motor vehicle diesel fuel and 

heating oil that is intended for use and 

used only in areas of Alaska not 

accessible by the Federal Aid Highway 

System, are excluded from the 

applicable provisions of 40 CFR Part 80, 

Subpart I and 40 CFR Part 60, Subpart 

IIII until the implementation dates 

specified in paragraph (g) of this 

section, except that: 

(1) All model year 2011 and later 

nonroad and stationary diesel engines 

and equipment must be fueled only 

with diesel fuel that meets the 

specifications for NR fuel in 40 CFR 

80.510(b) or (c); 

(2) The following language shall be 

added to any product transfer 

document: ‘‘This fuel is for use only in 

those areas of Alaska not accessible by 

the FAHS;’’ and 

(3) Pump labels for such fuel that does 

not meet the specifications of 40 CFR 

80.510(b) or 80.510(c) shall contain the 

following language: 

‘‘HIGH SULFUR DIESEL FUEL (may be 

greater than 15 Sulfur ppm) 

WARNING 

Federal Law prohibits use in model year 

2007 and later highway diesel vehicles and 

engines, or in model year 2011 and later 

nonroad diesel engines and equipment. Its 

use may damage these vehicles and engines.’’

(g) NRLM standards. (1) Beginning on 

the following implementation dates, 

NRLM diesel fuel that is used or 

intended for use in areas of Alaska not 

accessible by the Federal Aid Highway 

System is subject to the provisions of 40 

CFR part 80, subpart I, except as 

provided in paragraphs (c), (d), (e), and 

(g)(2) of this section: 

(i) June 1, 2010 or diesel fuel 

produced or imported by any refiner or 

importer, 

(ii) August 1, 2010 at all downstream 

locations, except at retail facilities and 

wholesale-purchaser consumers, 

(iii) October 1, 2010 at retail facilities 

and wholesale-purchaser consumers, 

and 

(iv) December 1, 2010 at all locations. 

(2) The per-gallon sulfur content 

standard for all LM diesel fuel shall be 

15 ppm maximum. 

(3) Diesel fuel used in new stationary 

internal combustion engines regulated 

under 40 CFR Part 60 Subpart IIII shall 

be subject to the fuel-related provisions 

of that subpart beginning December 1, 

2010. 

(h) Alternative labels to those 

specified in paragraphs (e)(3) and (f)(2) 

of this section may be used as approved 

by the Administrator. 

[FR Doc. 05–20519 Filed 10–12–05; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[ET Docket No. 04–295; RM–10865; 

FCC 05–153] 

Communications Assistance for Law 

Enforcement Act and Broadband 

Access and Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Communications 

Commission (Commission) initiates this 

rulemaking to explore whether the 

Communications Assistance for Law 

Enforcement Act (CALEA) should apply 

to providers of voice over Internet 

Protocol (VoIP) services that are not 

interconnected, meaning VoIP services 

that do not allow users generally to 

receive calls originating from and to 

terminate calls to the public switched 

telephone network (PSTN). This 

rulemaking will also explore the 

appropriateness of requiring something 

less than full CALEA compliance for 

certain classes or categories of providers 

of facilities-based broadband Internet 

access services. This rulemaking will 

enhance public safety and ensure that 

the surveillance needs of law 

enforcement agencies continue to be 

met as Internet-based communications 

technologies proliferate. 

DATES: Comments are due on or before 

November 14, 2005, and reply 

comments are due on or before 

December 12, 2005. 

ADDRESSES: You may submit comments, 

identified by ET Docket No. 04–295, by 

any of the following methods: 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 59705 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Agency Web Site: http:// 

www.fcc.gov. Follow the instructions for 

submitting comments on http:// 

www.fcc.gov/cgb/ecfs/. 

• E-mail: ecfs@fcc.gov, and include 

the following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Mail: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

• Hand Delivery/Courier: 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. 

Instructions: All submissions received 

must include the agency name and 

docket number for this rulemaking. All 

comments received will be posted 

without change to http://www.fcc.gov/ 

cgb/ecfs/, including any personal 

information provided. For detailed 

instructions on submitting comments 

and additional information on the 

rulemaking process, see the ‘‘Public 

Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Docket: For access to the docket to 

read background documents or 

comments received, go http:// 

www.fcc.gov/cgb/ecfs/. 

FOR FURTHER INFORMATION CONTACT: 

Carol Simpson, Attorney-Advisor, 

Competition Policy Division, Wireline 

Competition Bureau, at (202) 418–2391. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Further 

Notice of Proposed Rulemaking in ET 

Docket No. 04–295, FCC 05–153, 

adopted August 5, 2005, and released 

September 23, 2005. The complete text 

of this FNPRM is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC, 20554. This document 

may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone (800) 

378–3160 or (202) 863–2893, facsimile 

(202) 863–2898, or via e-mail at http:// 

www.bcpiweb.com. It is also available 

on the Commission’s Web site at http:// 

www.fcc.gov. 

Public Participation 

Comments may be filed using: (1) The 

Commission’s Electronic Comment 

Filing System (ECFS), (2) the Federal 

Government’s eRulemaking Portal, or (3) 

by filing paper copies. See Electronic 

Filing of Documents in Rulemaking 

Proceedings, 63 FR 24121, May 1, 1998. 

• Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://www.fcc.gov/ 

cgb/ecfs/ or the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Filers should follow the instructions 

provided on the Web site for submitting 

comments. 

• For ECFS filers, if multiple docket 

or rulemaking numbers appear in the 

caption of this proceeding, filers must 

transmit one electronic copy of the 

comments for each docket or 

rulemaking number referenced in the 

caption. In completing the transmittal 

screen, filers should include their full 

name, U.S. Postal Service mailing 

address, and the applicable docket or 

rulemaking number. Parties may also 

submit an electronic comment by 

Internet e-mail. To get filing 

instructions, filers should send an email to ecfs@fcc.gov, and include the 

following words in the body of the 

message, ‘‘get form.’’ A sample form and 

directions will be sent in response. 

• Paper Filers: Parties who choose to 

file by paper must file an original and 

four copies of each filing. If more than 

one docket or rulemaking number 

appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail 

(although we continue to experience 

delays in receiving U.S. Postal Service 

mail). All filings must be addressed to 

the Commission’s Secretary, Office of 

the Secretary, Federal Communications 

Commission. 

• The Commission’s contractor will 

receive hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary at 236 

Massachusetts Avenue, NE., Suite 110, 

Washington, DC 20002. The filing hours 

at this location are 8 a.m. to 7 p.m. All 

hand deliveries must be held together 

with rubber bands or fasteners. Any 

envelopes must be disposed of before 

entering the building. 

• Commercial 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. 

All filings must be addressed to the 

Commission’s Secretary, Marlene H. 

Dortch, Office of the Secretary, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554. 

Parties should also send a copy of their 

filings to Janice Myles, Competition 

Policy Division, Wireline Competition 

Bureau, Federal Communications 

Commission, Room 5–C140, 445 12th 

Street, SW., Washington, DC 20554, or 

by e-mail to janice.myles@fcc.gov. 

Parties shall also serve one copy with 

the Commission’s copy contractor, Best 

Copy and Printing, Inc. (BCPI), Portals 

II, 445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, (202) 488–5300, 

or via e-mail to fcc@bcpiweb.com. 

Synopsis of the Further Notice of 

Proposed Rulemaking 

1. In this Further Notice of Proposed 

Rulemaking (FNPRM), we seek 

comment on two aspects of the 

conclusions reached in the Order 

accompanying this FNPRM, which is 

published elsewhere in this issue of the 

Federal Register. In the Order, we 

conclude that providers of facilitiesbased broadband Internet access 

services and providers of interconnected 

VoIP services—meaning VoIP service 

that allows a user generally to receive 

calls originating from and to terminate 

calls to the PSTN—must comply with 

CALEA. In the FNPRM, we first ask, 

with respect to interconnected VoIP, 

whether we should extend CALEA 

obligations to providers of other types of 

VoIP services. Specifically, are there any 

types of ‘‘managed’’ VoIP service that 

are not covered by today’s Order, but 

that should be subject to CALEA? 

2. Second, some commenters in this 

proceeding have argued that certain 

classes or categories of facilities-based 

broadband Internet access providers—

notably small and rural providers and 

providers of broadband networks for 

educational and research institutions—

should be exempt from CALEA. We 

reach no conclusions in the Order 

accompanying this FNPRM about the 

merits of these arguments, as we believe 

that additional information is necessary 

before reaching a decision. In this 

FNPRM, we seek comment on what 

procedures, if any, the Commission 

should adopt to implement CALEA’s 

exemption provision. In addition, we 

seek comment on the appropriateness of 

requiring something less than full 

CALEA compliance for certain classes 

or categories of providers, as well as the 

best way to impose different compliance 

standards. 

3. Section 102(8)(C)(ii) of CALEA 

provides the Commission with authority 

to grant exemptions from CALEA for 

entities that would otherwise fall within 

the definition of ‘‘telecommunications 

carrier’’ under section 102(8)(A) or (B). 

Specifically, section 102(8)(C)(ii) 

excludes from CALEA’s definition of 

59706 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

telecommunications carrier ‘‘any class 

or category of telecommunications 

carriers that the Commission exempts 

by rule after consultation with the 

Attorney General.’’ The Commission has 

never exempted telecommunications 

carriers under this provision, nor has it 

adopted specific procedures for doing 

so. We therefore seek comment on what 

procedures, if any, the Commission 

should adopt for exempting entities 

under section 102(8)(C)(ii). In particular, 

we seek comment on how the phrase 

‘‘by rule’’ should be interpreted. In 

addition, CALEA’s exemption provision 

requires ‘‘consultation with the 

Attorney General.’’ The Commission has 

implemented other statutory provisions 

requiring consultation with the Attorney 

General and we ask commenters to 

consider whether we should interpret 

‘‘consultation’’ for purposes of CALEA 

in a similar manner considering the 

unique expertise of the Attorney 

General’s office in combating crime, 

supporting homeland security, and 

conducting electronic surveillance. 

4. To the extent that the Commission 

determines that a class or category of 

providers is exempt under section 

102(8)(C)(ii), does that mean the class or 

category of telecommunications carriers 

is exempted indefinitely from CALEA 

compliance? Can or should the 

Commission limit the exemption for a 

certain period of time, requiring 

exempted entities to demonstrate that 

continued exemption is warranted at 

some future time? Commenters should 

consider these and any other issues that 

may be relevant to granting an 

exemption request. 

5. Commenters addressing 

exemptions from CALEA 

understandably focused on section 

102(8) of CALEA, which authorizes the 

Commission to exclude providers from 

the definition of telecommunications 

carrier. But our examination of the 

record has made us curious about the 

possibility of taking a different approach 

to this issue. Specifically, we seek 

comment on whether it might be 

preferable to define the requirements of 

CALEA differently for certain classes of 

providers, rather than exempting those 

providers from CALEA entirely. Does 

the Commission have authority to create 

different compliance requirements for 

different types of providers? Would this 

approach be consistent with the 

language of the statute? Would it satisfy 

the needs of law enforcement, as well as 

the classes of providers seeking 

exemptions? What advantages and 

disadvantages would this approach have 

compared to granting exemptions under 

section 102(8)(C)? 

Initial Paperwork Reduction Act of 

1995 Analysis 

6. This document does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, therefore, it does not contain 

any new or modified ‘‘information 

collection burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Initial Regulatory Flexibility Analysis 

7. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), the Commission has prepared the 

present Initial Regulatory Flexibility 

Analysis (IRFA) of the possible 

significant economic impact on small 

entities that might result from today’s 

FNPRM. Written public comments are 

requested on this IRFA. Comments must 

be identified as responses to the IRFA 

and must be filed by the deadlines for 

comments on the FNPRM provided 

above. The Commission will send a 

copy of the FNPRM, including this 

IRFA, to the Chief Counsel for Advocacy 

of the Small Business Administration. 

1. Need for, and Objectives of, the 

Proposed Rules 

8. In the FNPRM, we seek comment 

on two aspects of the conclusions 

reached in the Order accompanying this 

FNPRM. First, with respect to 

interconnected VoIP, we seek comment 

on whether we should extend CALEA 

obligations to providers of other types of 

VoIP services. Specifically, we ask 

whether there any types of ‘‘managed’’

VoIP service that are not covered by 

today’s Order, but that should be subject 

to CALEA. Second, some commenters in 

this proceeding have argued that certain 

classes or categories of facilities-based 

broadband Internet access providers—

notably small and rural providers and 

providers of broadband networks for 

educational and research institutions—

should be exempt from CALEA. We 

reach no conclusions in today’s Order 

about the merits of these arguments, as 

we believe that additional information 

is necessary before reaching a decision. 

However, the Commission seeks 

comment on what procedures, if any, 

the Commission should adopt to 

implement CALEA’s exemption 

provision. In addition, the Commission 

seeks comment on the appropriateness 

of requiring something less than full 

CALEA compliance for certain classes 

or categories of providers, as well as the 

best way to impose different compliance 

standards. Our objective is to adopt 

streamlined exemption procedures, 

which will ultimately benefit both large 

and small entities alike and is also a 

concerted effort by the Commission to 

adopt any other rules that will reduce 

CALEA burdens on small entities or 

other categories of telecommunications 

carriers. 

2. Legal Basis 

9. The legal basis for any action that 

may be taken pursuant to the FNPRM is 

contained in sections 1, 4(i), 7(a), 229, 

301, 303, 332, and 410 of the 

Communications Act of 1934, as 

amended, and section 102 of the 

Communications Assistance for Law 

Enforcement Act, 18 U.S.C. 1001. 

3. Description and Estimate of the 

Number of Small Entities To Which the 

Proposed Rules May Apply 

10. 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. 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. 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). This FNPRM 

might, in theory, reach a variety of 

industries; out of an abundance of 

caution, we have attempted to cast a 

wide net in describing categories of 

potentially affected small entities. We 

would appreciate any comment on the 

extent to which the various entities 

might be directly affected by our action. 

a. Telecommunications Service Entities 

11. Wireline Carriers and Service 

Providers. We have included small 

incumbent local exchange carriers in 

this present RFA analysis. As noted 

above, 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 local 

exchange carriers are not dominant in 

their field of operation because any such 

dominance is not ‘‘national’’ in scope. 

We have therefore included small 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 59707 

incumbent local exchange carriers in 

this RFA analysis, although we 

emphasize that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

12. Incumbent Local Exchange 

Carriers (LECs). Neither the Commission 

nor the SBA has developed a small 

business size standard specifically for 

incumbent local exchange services. The 

appropriate size standard under SBA 

rules is for the category Wired 

Telecommunications Carriers. Under 

that size standard, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 1,303 

carriers have reported that they are 

engaged in the provision of incumbent 

local exchange services. Of these 1,303 

carriers, an estimated 1,020 have 1,500 

or fewer employees and 283 have more 

than 1,500 employees. Consequently, 

the Commission estimates that most 

providers of incumbent local exchange 

service are small businesses that may be 

affected by our action. In addition, 

limited preliminary census data for 

2002 indicate that the total number of 

wired communications carriers 

increased approximately 34 percent 

from 1997 to 2002. 

13. Competitive Local Exchange 

Carriers, Competitive Access Providers 

(CAPs), ‘‘Shared-Tenant Service 

Providers,’’ and ‘‘Other Local Service 

Providers.’’ Neither the Commission nor 

the SBA has developed a small business 

size standard specifically for these 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 769 carriers have 

reported that they are engaged in the 

provision of either competitive access 

provider services or competitive local 

exchange carrier services. Of these 769 

carriers, an estimated 676 have 1,500 or 

fewer employees and 93 have more than 

1,500 employees. In addition, 12 

carriers have reported that they are 

‘‘Shared-Tenant Service Providers,’’ and 

all 12 are estimated to have 1,500 or 

fewer employees. In addition, 39 

carriers have reported that they are 

‘‘Other Local Service Providers.’’ Of the 

39, an estimated 38 have 1,500 or fewer 

employees and one has more than 1,500 

employees. Consequently, the 

Commission estimates that most 

providers of competitive local exchange 

service, competitive access providers, 

‘‘Shared-Tenant Service Providers,’’ and 

‘‘Other Local Service Providers’’ are 

small entities that may be affected by 

our action. In addition, limited 

preliminary census data for 2002 

indicate that the total number of wired 

communications carriers increased 

approximately 34 percent from 1997 to 

2002. 

14. Payphone Service Providers 

(PSPs). Neither the Commission nor the 

SBA has developed a small business 

size standard specifically for payphone 

services providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 654 carriers have 

reported that they are engaged in the 

provision of payphone services. Of 

these, an estimated 652 have 1,500 or 

fewer employees and two have more 

than 1,500 employees. Consequently, 

the Commission estimates that the 

majority of payphone service providers 

are small entities that may be affected 

by our action. In addition, limited 

preliminary census data for 2002 

indicate that the total number of wired 

communications carriers increased 

approximately 34 percent from 1997 to 

2002. 

15. Interexchange Carriers (IXCs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for providers of 

interexchange services. The appropriate 

size standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 316 carriers have 

reported that they are engaged in the 

provision of interexchange service. Of 

these, an estimated 292 have 1,500 or 

fewer employees and 24 have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of IXCs are small entities that may be 

affected by our action. In addition, 

limited preliminary census data for 

2002 indicate that the total number of 

wired communications carriers 

increased approximately 34 percent 

from 1997 to 2002. 

16. Operator Service Providers (OSPs). 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for operator 

service providers. The appropriate size 

standard under SBA rules is for the 

category Wired Telecommunications 

Carriers. Under that size standard, such 

a business is small if it has 1,500 or 

fewer employees. According to 

Commission data, 23 carriers have 

reported that they are engaged in the 

provision of operator services. Of these, 

an estimated 20 have 1,500 or fewer 

employees and three have more than 

1,500 employees. Consequently, the 

Commission estimates that the majority 

of OSPs are small entities that may be 

affected by our action. In addition, 

limited preliminary census data for 

2002 indicate that the total number of 

wired communications carriers 

increased approximately 34 percent 

from 1997 to 2002. 

17. Prepaid Calling Card Providers. 

Neither the Commission nor the SBA 

has developed a small business size 

standard specifically for prepaid calling 

card providers. The appropriate size 

standard under SBA rules is for the 

category Telecommunications Resellers. 

Under that size standard, such a 

business is small if it has 1,500 or fewer 

employees. According to Commission 

data, 89 carriers have reported that they 

are engaged in the provision of prepaid 

calling cards. Of these, 88 are estimated 

to have 1,500 or fewer employees and 

one has more than 1,500 employees. 

Consequently, the Commission 

estimates that all or the majority of 

prepaid calling card providers are small 

entities that may be affected by our 

action. 

18. Wireless Telecommunications 

Service Providers. Below, for those 

services subject to auctions, we note 

that, as a general matter, the number of 

winning bidders that qualify as small 

businesses at the close of an auction 

does not necessarily represent the 

number of small businesses currently in 

service. Also, the Commission does not 

generally track subsequent business size 

unless, in the context of assignments or 

transfers, unjust enrichment issues are 

implicated. 

19. Wireless Service Providers. The 

SBA has developed a small business 

size standard for wireless firms within 

the two broad economic census 

categories of ‘‘Paging’’ and ‘‘Cellular and 

Other Wireless Telecommunications.’’

Under both SBA categories, a wireless 

business is small if it has 1,500 or fewer 

employees. For the census category of 

Paging, Census Bureau data for 1997 

show that there were 1,320 firms in this 

category, total, that operated for the 

entire year. Of this total, 1,303 firms had 

employment of 999 or fewer employees, 

and an additional 17 firms had 

employment of 1,000 employees or 

more. Thus, under this category and 

associated small business size standard, 

the majority of firms can be considered 

small. For the census category Cellular 

and Other Wireless 

Telecommunications, Census Bureau 

data for 1997 show that there were 977 

firms in this category, total, that 

operated for the entire year. Of this 

total, 965 firms had employment of 999 

or fewer employees, and an additional 

59708 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

12 firms had employment of 1,000 

employees or more. Thus, under this 

second category and size standard, the 

majority of firms can, again, be 

considered small. In addition, limited 

preliminary census data for 2002 

indicate that the total number of paging 

providers decreased approximately 51 

percent from 1997 to 2002. In addition, 

limited preliminary census data for 

2002 indicate that the total number of 

cellular and other wireless 

telecommunications carriers increased 

approximately 321 percent from 1997 to 

2002. 

20. Cellular Licensees. The SBA has 

developed a small business size 

standard for wireless firms within the 

broad economic census category 

‘‘Cellular and Other Wireless 

Telecommunications.’’ Under this SBA 

category, a wireless business is small if 

it has 1,500 or fewer employees. For the 

census category Cellular and Other 

Wireless Telecommunications firms, 

Census Bureau data for 1997 show that 

there were 977 firms in this category, 

total, that operated for the entire year. 

Of this total, 965 firms had employment 

of 999 or fewer employees, and an 

additional 12 firms had employment of 

1,000 employees or more. Thus, under 

this category and size standard, the great 

majority of firms can be considered 

small. Also, according to Commission 

data, 437 carriers reported that they 

were engaged in the provision of 

cellular service, Personal 

Communications Service (PCS), or 

Specialized Mobile Radio (SMR) 

Telephony services, which are placed 

together in the data. We have estimated 

that 260 of these are small, under the 

SBA small business size standard. 

21. Common Carrier Paging. The SBA 

has developed a small business size 

standard for wireless firms within the 

broad economic census category, 

‘‘Cellular and Other Wireless 

Telecommunications.’’ Under this SBA 

category, a wireless business is small if 

it has 1,500 or fewer employees. For the 

census category of Paging, Census 

Bureau data for 1997 show that there 

were 1,320 firms in this category, total, 

that operated for the entire year. Of this 

total, 1,303 firms had employment of 

999 or fewer employees, and an 

additional 17 firms had employment of 

1,000 employees or more. Thus, under 

this category and associated small 

business size standard, the majority of 

firms can be considered small. In the 

Paging Third Report and Order, we 

developed a small business size 

standard for ‘‘small businesses’’ and 

‘‘very small businesses’’ for purposes of 

determining their eligibility for special 

provisions such as bidding credits and 

installment payments. A ‘‘small 

business’’ is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues not 

exceeding $15 million for the preceding 

three years. Additionally, a ‘‘very small 

business’’ is an entity that, together with 

its affiliates and controlling principals, 

has average gross revenues that are not 

more than $3 million for the preceding 

three years. The SBA has approved 

these small business size standards. An 

auction of Metropolitan Economic Area 

licenses commenced on February 24, 

2000, and closed on March 2, 2000. Of 

the 985 licenses auctioned, 440 were 

sold. Fifty-seven companies claiming 

small business status won. Also, 

according to Commission data, 375 

carriers reported that they were engaged 

in the provision of paging and 

messaging services. Of those, we 

estimate that 370 are small, under the 

SBA-approved small business size 

standard. 

22. Wireless Communications 

Services. This service can be used for 

fixed, mobile, radiolocation, and digital 

audio broadcasting satellite uses. The 

Commission established small business 

size standards for the wireless 

communications services (WCS) 

auction. A ‘‘small business’’ is an entity 

with average gross revenues of $40 

million for each of the three preceding 

years, and a ‘‘very small business’’ is an 

entity with average gross revenues of 

$15 million for each of the three 

preceding years. The SBA has approved 

these small business size standards. The 

Commission auctioned geographic area 

licenses in the WCS service. In the 

auction, there were seven winning 

bidders that qualified as ‘‘very small 

business’’ entities, and one that 

qualified as a ‘‘small business’’ entity. 

23. Wireless Telephony. Wireless 

telephony includes cellular, personal 

communications services (PCS), and 

specialized mobile radio (SMR) 

telephony carriers. As noted earlier, the 

SBA has developed a small business 

size standard for ‘‘Cellular and Other 

Wireless Telecommunications’’ services. 

Under that SBA small business size 

standard, a business is small if it has 

1,500 or fewer employees. According to 

Commission data, 437 carriers reported 

that they were engaged in the provision 

of wireless telephony. We have 

estimated that 260 of these are small 

under the SBA small business size 

standard. 

24. Broadband Personal 

Communications Service. The 

broadband Personal Communications 

Service (PCS) spectrum is divided into 

six frequency blocks designated A 

through F, and the Commission has held 

auctions for each block. The 

Commission defined ‘‘small entity’’ for 

Blocks C and F as an entity that has 

average gross revenues of $40 million or 

less in the three previous calendar 

years. For Block F, an additional 

classification for ‘‘very small business’’

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.’’ These standards 

defining ‘‘small entity’’ in the context of 

broadband PCS auctions have been 

approved by the SBA. No small 

businesses, within the SBA-approved 

small business size standards bid 

successfully for licenses in Blocks A 

and B. There were 90 winning bidders 

that qualified as small entities in the 

Block C auctions. A total of 93 small 

and very small business bidders won 

approximately 40 percent of the 1,479 

licenses for Blocks D, E, and F. On 

March 23, 1999, the Commission reauctioned 347 C, D, E, and F Block 

licenses. There were 48 small business 

winning bidders. On January 26, 2001, 

the Commission completed the auction 

of 422 C and F Broadband PCS licenses 

in Auction No. 35. Of the 35 winning 

bidders in this auction, 29 qualified as 

‘‘small’’ or ‘‘very small’’ businesses. 

Subsequent events, concerning Auction 

35, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. 

b. Cable Operators 

25. Cable and Other Program 

Distribution. This category includes 

cable systems operators, closed circuit 

television services, direct broadcast 

satellite services, multipoint 

distribution systems, satellite master 

antenna systems, and subscription 

television services. The SBA has 

developed small business size standard 

for this census category, which includes 

all such companies generating $12.5 

million or less in revenue annually. 

According to Census Bureau data for 

1997, there were a total of 1,311 firms 

in this category, total, that had operated 

for the entire year. Of this total, 1,180 

firms had annual receipts of under $10 

million and an additional 52 firms had 

receipts of $10 million or more but less 

than $25 million. Consequently, the 

Commission estimates that the majority 

of providers in this service category are 

small businesses that may be affected by 

the rules and policies adopted herein. 

26. Cable System Operators (Rate 

Regulation Standard). The Commission 

has developed its own small business 

size standard for cable system operators, 

for purposes of rate regulation. Under 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 59709 

the Commission’s rules, a ‘‘small cable 

company’’ is one serving fewer than 

400,000 subscribers nationwide. The 

most recent estimates indicate that there 

were 1,439 cable operators who 

qualified as small cable system 

operators at the end of 1995. Since then, 

some of those companies may have 

grown to serve over 400,000 subscribers, 

and others may have been involved in 

transactions that caused them to be 

combined with other cable operators. 

Consequently, the Commission 

estimates that there are now fewer than 

1,439 small entity cable system 

operators that may be affected by the 

rules and policies adopted herein. 

27. Cable System Operators (Telecom 

Act Standard). The Communications 

Act of 1934, as amended, also contains 

a size standard for small cable system 

operators, which is ‘‘a cable operator 

that, directly or through an affiliate, 

serves in the aggregate fewer than 1 

percent of all subscribers in the United 

States and is not affiliated with any 

entity or entities whose gross annual 

revenues in the aggregate exceed 

$250,000,000.’’ The Commission has 

determined that there are 67,700,000 

subscribers in the United States. 

Therefore, an operator serving fewer 

than 677,000 subscribers shall be 

deemed a small operator, if its annual 

revenues, when combined with the total 

annual revenues of all its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, the 

Commission estimates that the number 

of cable operators serving 677,000 

subscribers or fewer, totals 1,450. The 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million, and therefore are 

unable, at this time, to estimate more 

accurately the number of cable system 

operators that would qualify as small 

cable operators under the size standard 

contained in the Communications Act of 

1934. 

c. Internet Service Providers 

28. Internet Service Providers. The 

SBA has developed a small business 

size standard for Internet Service 

Providers (ISPs). ISPs ‘‘provide clients 

access to the Internet and generally 

provide related services such as web 

hosting, web page designing, and 

hardware or software consulting related 

to Internet connectivity.’’ Under the 

SBA size standard, such a business is 

small if it has average annual receipts of 

$21 million or less. According to Census 

Bureau data for 1997, there were 2,751 

firms in this category that operated for 

the entire year. Of these, 2,659 firms had 

annual receipts of under $10 million, 

and an additional 67 firms had receipts 

of between $10 million and 

$24,999,999. Consequently, we estimate 

that the majority of these firms are small 

entities that may be affected by our 

action. In addition, limited preliminary 

census data for 2002 indicate that the 

total number of Internet service 

providers increased approximately five 

percent from 1997 to 2002. 

4. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

29. In the FNPRM, we seek comment 

on whether we should extend CALEA 

obligations to providers of other types of 

VoIP services. We also seek comment on 

what procedures, if any, the 

Commission should adopt to implement 

CALEA’s exemption provision. In 

addition, we seek comment on the 

appropriateness of requiring something 

less than full CALEA compliance for 

certain classes or categories of 

providers, as well as the best way to 

impose different compliance standards. 

These proposals do not impose 

reporting or recordkeeping requirements 

that would be subject to the Paperwork 

Reduction Act. Therefore, we have not 

attempted here to provide an estimate in 

terms of burden hours. Rather, we are 

asking commenters to provide the 

Commission with reliable information 

and comments on any costs and burdens 

on small entities. 

5. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

30. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

(among others) the following four 

alternatives: (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. 

31. In the FNPRM, with respect to 

interconnected VoIP, we seek comment 

on whether we should extend CALEA 

obligations to providers of other types of 

VoIP services. Specifically, we invite 

comment as to whether there are any 

types of ‘‘managed’’ VoIP service that 

are not covered by today’s Order, but 

that should be subject to CALEA. For 

purposes of this IRFA, we specifically 

seek comment from small entities on 

these issues, in particular, on the extent 

to which any ‘‘managed’’ VoIP service 

that the Commission may find subject to 

CALEA could impact them 

economically. 

32. In the FNPRM, the Commission 

also considers and asks questions about 

two alternative approaches to requiring 

full CALEA compliance to address the 

impact of CALEA applicability on small 

entities. First, it addresses an exemption 

process. Next, it addresses the 

possibility of requiring something less 

than full CALEA compliance for small 

entities. Finally, it asks commenters to 

propose any other alternatives that have 

not been considered or identified. 

33. The FNPRM seeks comment on 

what procedures, if any, the 

Commission should adopt to implement 

CALEA’s exemption provision. Section 

102(8)(C)(ii) excludes from CALEA’s 

definition of telecommunications carrier 

‘‘any class or category of 

telecommunications carriers that the 

Commission exempts by rule after 

consultation with the Attorney 

General.’’ In addition, we seek comment 

on the appropriateness of requiring 

something less than full CALEA 

compliance for certain classes or 

categories of providers, as well as the 

best way to impose different compliance 

standards. Our goal is to adopt 

streamlined exemption procedures or 

any other rules that will ultimately 

assist the Commission in reducing 

burdens on small entities or other 

categories of telecommunications 

carriers. 

34. With respect to the exemption 

provision, the Commission has never 

exempted telecommunications carriers 

under this provision, nor has it adopted 

specific procedures for doing so. We 

seek comment on what procedures, if 

any, the Commission should adopt for 

exempting entities under section 

102(8)(C)(ii). In the FNPRM, the 

Commission evaluates how to properly 

interpret the provision. We seek 

comment, for example, on how the 

phrase ‘‘by rule’’ should be interpreted, 

as we recognize that the Commission’s 

interpretation of this phrase could 

create burdens for small entities. 

35. In addition, we seek comment on 

the appropriateness of requiring 

something less than full CALEA 

compliance for certain classes or 

categories of providers, as well as the 

best way to impose different compliance 

standards. The Commission seeks 

comment on significant alternatives and 

recommends that small entities file 

comments in response to the FNPRM. 

We anticipate that the record will be 

developed concerning alternative ways 

59710 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Proposed Rules 

in which the Commission could lesson 

the burden on classes of carrier or 

entities and will most likely benefit 

small entities more, relative to large 

entities. 

6. Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

36. None. 

Ordering Clauses 

37. It is ordered that that pursuant to 

sections 1, 4(i), 7(a), 229, 301, 303, 332, 

and 410 of the Communications Act of 

1934, as amended, and section 102 of 

the Communications Assistance for Law 

Enforcement Act, 18 U.S.C. 1001, the 

Further Notice of Proposed Rulemaking 

in ET Docket No. 04–295 is adopted. 

38. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Further Notice of Proposed 

Rulemaking, including the Initial 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 05–20607 Filed 10–12–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 21 

RIN 1018–AI97 

Migratory Bird Permits; Educational 

Use Permits 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We are soliciting public 

comments to help us develop permit 

regulations governing possession of live 

migratory birds and eagles for 

educational use. 

DATES: Written comments should be 

submitted by December 12, 2005, to the 

address below. 

ADDRESSES: You may mail or deliver 

comments to the Division of Migratory 

Bird Management, U.S. Fish and 

Wildlife Service, 4401 North Fairfax 

Drive, MBSP 4107, Arlington, Virginia 

22203. You also may submit comments 

via the Internet to: 

MB_education@fws.gov. See 

SUPPLEMENTARY INFORMATION for file 

formats and other information about 

electronic filing. 

FOR FURTHER INFORMATION CONTACT: 

Brian Millsap, Chief, Division of 

Migratory Bird Management, U.S. Fish 

and Wildlife Service; (703) 358–1714. 

SUPPLEMENTARY INFORMATION: Please 

submit Internet comments as an ASCII 

file avoiding the use of special 

characters and any form of encryption. 

Please also include your name and 

return address in your Internet message. 

If you do not receive a confirmation that 

we have received your message, contact 

us directly at (703) 358–1714. 

Background 

This scoping notice is intended to 

help the U.S. Fish and Wildlife Service 

(the Service) gather information and 

suggestions about current practices and 

public views regarding educational use 

of live migratory birds and eagles, in 

anticipation of drafting new permit 

regulations for possession of migratory 

birds and eagles for educational 

purposes. Feedback from this notice 

will enable us to propose regulations 

that will already have benefited from 

input from the regulated community. 

(The proposed regulations will then be 

subject to the standard public notice 

and comment for purposes of crafting 

final regulations.) 

The Migratory Bird Treaty Act 

(MBTA) (16 U.S.C. 703 et seq.) prohibits 

possession of any bird listed under 

treaties between the United States and 

Canada, Mexico, Japan, and Russia. 

Birds protected by the MBTA are 

referred to as ‘‘migratory birds.’’ In order 

to possess migratory birds or their parts 

or feathers for use in educational 

programs, you must obtain a permit 

from the Service (unless you are an 

institution exempted from the permit 

requirement under 50 CFR 21.12(b)). 

The Service issues such permits to 

authorize educational programs and 

exhibits that use nonreleasable or 

captive-bred migratory birds to teach 

people about migratory bird 

conservation and ecology. Permits are 

also required to possess migratory bird 

parts and feathers for educational use; 

however, at this time, we seek input 

only on issues pertaining to possession 

of live migratory birds and eagles for 

educational use. 

Currently, because no regulations 

pertain specifically to educational use 

permits, educational activities that 

involve migratory birds are authorized 

by issuance of a special purpose permit 

under 50 CFR 21.27. That miscellaneous 

permit category is used to authorize 

activities not specifically addressed in 

existing migratory bird permit 

regulations. In the absence of specific 

regulations addressing educational 

activities using migratory birds, the 

terms and requirements governing 

educational activities using migratory 

birds are currently promulgated via a 

list of standard conditions that are 

issued with each permit. Approximately 

1200 permits for possession of live birds 

(including eagles) for educational use 

are currently active. 

In a future rulemaking, we intend to 

propose a new permit regulation that 

will incorporate many of the 

longstanding policies and practices that 

are the basis of the current special 

purpose—education permit conditions. 

However, those conditions have never 

been the subject of notice and comment 

and may benefit from revision as a 

result of public input. Also, the special 

purpose—education permit conditions 

are not specific enough to provide 

sufficient guidance to the Service or to 

permittees to address many of the issues 

that arise in the regulation of possession 

of migratory birds for educational 

purposes. By creating a new permit 

category specifically for this purpose, 

the Service hopes to bring specificity 

and clarity to this area of migratory bird 

use. 

As part of that same rulemaking, we 

intend to revise permit regulations 

governing exhibition of bald and golden 

eagles for educational purposes. Eagle 

permits are addressed through separate 

regulations from those governing 

educational use of other migratory birds 

because, in addition to the MBTA, 

eagles are further protected by the Bald 

and Golden Eagle Protection Act 

(BGEPA) (16 U.S.C. 668), which 

contains different, more restrictive 

provisions than the MBTA. We 

anticipate that the new proposed eagle 

exhibition regulations will incorporate 

by reference the regulations proposed 

for non-eagle migratory bird educational 

use, but with some variations that will 

be necessary to comply with the 

BGEPA. 

Despite the differences between the 

MBTA and the BGEPA, many of the 

same issues arise in developing 

educational use regulations for eagles as 

for other migratory birds. Most of the 

questions we pose in this scoping notice 

are not addressed directly by either the 

MBTA or the BGEPA. For this reason, 

we are soliciting input regarding both 

eagles and other migratory birds on each 

question, except where specifically 

noted. 

Regarding what the educational use 

permits will or will not authorize, some 

longstanding Service positions are wellestablished, based on traditional and/or 

existing precedents, while other issues