65850 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

pursuant to the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act not in connection with a 

flood) may legally be provided for 

construction or acquisition of buildings 

in identified SFHAs for communities 

not participating in the NFIP and 

identified for more than a year, on 

FEMA’s initial flood insurance map of 

the community as having flood-prone 

areas (section 202(a) of the Flood 

Disaster Protection Act of 1973, 42 

U.S.C. 4106(a), as amended). This 

prohibition against certain types of 

Federal assistance becomes effective for 

the communities listed on the date 

shown in the last column. The 

Administrator finds that notice and 

public comment under 5 U.S.C. 553(b) 

are impracticable and unnecessary 

because communities listed in this final 

rule have been adequately notified. 

Each community receives 6-month, 

90-day, and 30-day notification letters 

addressed to the Chief Executive Officer 

stating that the community will be 

suspended unless the required 

floodplain management measures are 

met prior to the effective suspension 

date. Since these notifications were 

made, this final rule may take effect 

within less than 30 days. 

National Environmental Policy Act 

This rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Considerations. No 

environmental impact assessment has 

been prepared. 

Regulatory Flexibility Act 

The Administrator has determined 

that this rule is exempt from the 

requirements of the Regulatory 

Flexibility Act because the National 

Flood Insurance Act of 1968, as 

amended, 42 U.S.C. 4022, prohibits 

flood insurance coverage unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed no 

longer comply with the statutory 

requirements, and after the effective 

date, flood insurance will no longer be 

available in the communities unless 

remedial action takes place. 

Regulatory Classification 

This final rule is not a significant 

regulatory action under the criteria of 

section 3(f) of Executive Order 12866 of 

September 30, 1993, Regulatory 

Planning and Review, 58 FR 51735. 

Paperwork Reduction Act 

This rule does not involve any 

collection of information for purposes of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. 

List of Subjects in 44 CFR Part 64. 

Flood insurance, Floodplains. 

■ Accordingly, 44 CFR part 64 is 

amended as follows: 

PART 64—[AMENDED] 

■ 1. The authority citation for Part 64 

continues to read as follows: 

Authority: 42 U.S.C. 4001 et seq.; 

Reorganization Plan No. 3 of 1978, 3 CFR, 

1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 

3 CFR, 1979 Comp.; p. 376. 

§ 64.6 [Amended] 

■ 2. The tables published under the 

authority of § 64.6 are amended as 

follows: 

State and location Community 

No. 

Effective date authorization/cancellation of 

sale of flood insurance in community 

Current effective 

map date 

Date certain 

Federal assistance no longer 

available in 

SFHAs 

Region I 

Maine: Windsor, Town of, Kennebec County..230251 January 29, 1976, Emerg; February 4, 

1987, Reg; November 3, 2005, Susp.

02/04/1987 ....... 11/03/2005 

Region IV 

North Carolina: 

Jacksonville, City of, Onslow County. ... 370178 February 24, 1975, Emerg; February 15, 

1985, Reg; November 3, 2005, Susp.

11/03/2005 ....... Do. 

North Topsail Beach, Town of, Onslow 

County..

370466 June 15, 1990, Emerg; June 15, 1990, Reg; 

November 3, 2005, Susp.

......do ............... Do. 

Onslow County, Unincorporated Areas. 370340 April 7, 1975, Emerg; July 2, 1987, Reg; 

November 3, 2005, Susp.

......do ............... Do. 

Richlands, Town of, Onslow County. .... 370341 March 17, 1980, Emerg; July 3, 1986, Reg; 

November 3, 2005, Susp.

......do ............... Do. 

Swansboro, Town of, Onslow County. .. 370179 April 11, 1975, Emerg; October 18, 1983, 

Reg; November 3, 2005, Susp.

......do ............... Do. 

*do- = Ditto 

Code for reading third column: Emerg.- Emergency; Reg.- Regular; Susp- Suspension. 

Dated: October 25, 2005. 

Michael K. Buckley, 

Deputy Director, Mitigation Division, Federal 

Emergency Management Agency. 

[FR Doc. 05–21702 Filed 10–31–05; 8:45 am] 

BILLING CODE 9110–12–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 54 

[CC Docket Nos. 96–45; 02–6; WC Docket 

02–60; 03–109; FCC 05–178] 

Federal-State Joint Board on Universal 

Service 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission takes immediate steps to 

assist the victims of Hurricane Katrina 

by making available approximately $211 

million of targeted support from the 

Universal Service Fund (‘‘USF’’) for 

reconstruction and remediation relating 

to the restoration of telecommunications 

services. We expect that these measures 

will help the victims of Hurricane 

Katrina recover from the catastrophic 

damage and help the affected 

communities rebuild. 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65851 

DATES: Effective October 14, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Mika Savir, Attorney, Wireline 

Competition Bureau, 

Telecommunications Access Policy 

Division, (202) 418–7400, TTY (202) 

418–0484. For additional information 

concerning the information collection(s) 

contained in this document, contact 

Judith-B. Herman at (202) 418–0214, or 

via the Internet at JudithB.Herman@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Order, in 

CC Docket Nos. 96–45; 02–6; WC Docket 

02–60; 03–109; FCC 05–178, released 

October 14, 2005. The full text of this 

document is available for public 

inspection during regular business 

hours in the FCC Reference Center, 

Room CY–A257, 445 12th Street, SW., 

Washington, DC 20554. 

I. Introduction 

1. In this Order, we take immediate 

steps to assist the victims of Hurricane 

Katrina by making available 

approximately $211 million of targeted 

support from the Universal Service 

Fund (‘‘USF’’) for reconstruction and 

remediation relating to the restoration of 

telecommunications services. We expect 

that these measures will help the 

victims of Hurricane Katrina recover 

from the catastrophic damage and help 

the affected communities rebuild. As 

explained below, because of the exigent 

circumstances, we find good cause to 

adopt temporary order without noticeand-comment in order to assist the 

Nation’s disaster relief effort. 

II. Order 

A. Waiver Standard 

2. Generally, the Commission’s rules 

may be waived for good cause shown. 

Waiver of the Commission’s rules is 

therefore appropriate only if special 

circumstances warrant a deviation from 

the general rule, and such deviation will 

serve the public interest. As we discuss 

in more detail below, we find that the 

catastrophic damage to lives and 

property as a result of Hurricane Katrina 

in the Gulf Coast states and the need for 

expedited restoration of 

communications presents special 

circumstances for waiving certain 

universal service rules and that such a 

waiver is in the public interest. 

3. We find that it is appropriate to 

implement these rules, effective upon 

release of this Order, on a temporary 

basis to expand funding in the affected 

areas. We find that the circumstances 

caused by Hurricane Katrina create a 

special need for the Commission to use 

its discretion to provide universal 

service support to health care providers 

in the affected areas. This support is 

necessary to address the unique 

circumstances faced by health care 

providers, schools, libraries, service 

providers, and low-income consumers 

in the states of Alabama, Louisiana, and 

Mississippi, and the areas where 

evacuees have relocated. The temporary 

order represents our recognition of the 

vital role played by telecommunications 

and by telemedicine in responding to 

the needs in the communities affected 

by Hurricane Katrina. The temporary 

order also furthers the Commission’s 

core responsibility to make available a 

rapid nationwide network for the 

purpose of responding to national crisis 

situations. For all of these reasons, we 

find this interim relief to be in the 

public interest. 

B. Lifeline/Link-Up Support 

1. Need for and Description of 

Temporary Order 

4. In this Order, we adopt temporary 

modifications to the low-income 

program rules to improve the 

effectiveness of the low-income support 

mechanism at meeting the needs of 

victims of Hurricane Katrina. Since its 

inception, Lifeline/Link-Up has 

provided support for telephone service 

to millions of low-income consumers. 

Nationally, the telephone penetration 

rate is 92.4 percent, in large part due to 

the success of the Lifeline/Link-Up 

program and our other universal service 

programs. In light of the catastrophic 

damage caused by the worst natural 

disaster this country has faced, 

thousands of people remain without 

basic telephone service. Unless 

addressed, this lack of access to 

telecommunications will lengthen the 

already-long period of time anticipated 

for recovery from the damage caused by 

Hurricane Katrina. 

5. As discussed in more detail below, 

in this section, we take two steps to 

address this significant problem 

affecting thousands of people. First, 

under the Lifeline program, we provide 

for temporary support under the federal 

Lifeline program for eligible 

telecommunications carriers making 

available a wireless service consumer 

offering to victims of Hurricane Katrina. 

Second, we provide support under the 

federal Link-Up program to hurricane 

victims moving to temporary housing 

arrangements and to those who return to 

permanent residences in the affected 

areas. To ensure victims of Hurricane 

Katrina in need of help receive this 

assistance, we base the eligibility 

criteria for these initiatives on those 

used by FEMA to provide individual 

disaster housing assistance to these 

people and entities. 

6. In crafting the temporary order, we 

are informed by the principles of section 

254 and our low-income program rules. 

Section 254(b) establishes principles 

upon which the Commission shall base 

policies for the preservation and 

advancement of universal service. 

Among other things, these principles 

state that consumers in all regions of the 

Nation, including low-income 

consumers, should have access to 

telecommunications and information 

services that are reasonably comparable 

to those services provided in urban 

areas and that are available at rates that 

are reasonably comparable to rates 

charged in urban areas. These principles 

also recognize that ensuring rates are 

affordable is a national priority. In light 

of these principles, we conclude that 

modifying the low-income program by 

providing for a wireless service federal 

Lifeline consumer offering and 

providing support under the federal 

Link-Up program for connection 

charges, on a temporary basis, is 

necessary to assist the disaster recovery 

efforts related to Hurricane Katrina. 

7. Thousands of people left their 

homes because of the hurricane. Many 

of these people are in temporary shelters 

or in the process of finding interim 

housing and may be without a 

permanent home or employment for a 

period of time. To facilitate the access 

of evacuees and other displaced persons 

to telecommunications services, any 

person approved for individual FEMA 

housing assistance or determined by 

FEMA to be eligible for such individual 

housing assistance relating to the 

hurricane will be eligible for federal 

Lifeline support for a free wireless 

handset and a package of at least 300 

minutes of use, not to exceed $130 per 

household, until March 1, 2006. 

8. We find that $130 per household is 

a reasonable amount of support for the 

purchase of a handset and at least 300 

minutes based on the variety of the 

competitive plans available to 

consumers throughout the United 

States. We note that at least one wireless 

provider has indicated this amount of 

support is sufficient to serve lowincome consumers. Moreover, we find 

that a minimum of 300 minutes of use 

per household will facilitate evacuees 

and those remaining in the affected 

areas to reconnect with loved ones, and 

make living, housing, and work 

arrangements in the wake of the 

hurricane. In addition, we expect that 

upon expiration, customers will retain 

the wireless phone and in many 

instances, be able to purchase additional 

minutes at discounted rates. Such 

65852 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

support will help consumers reconnect 

to the telecommunications network as 

the disaster-struck areas are rebuilt. For 

purposes of this Order, we define 

‘‘household’’ as one adult and his/her 

dependents, living together in the same 

residence. We recognize that many 

families that normally live together as 

one household have been separated due 

to the hurricane and the evacuation 

process and may represent more than 

one household for this temporary 

Lifeline support. Our intent in 

providing this support is to assist 

hurricane victims, regardless of whether 

they are in an intact household, 

separated from family temporarily, or 

otherwise. To work within the 

parameters of the existing program, we 

will order this temporary support 

available to ETCs providing the 

supported wireless service consumer 

offering. We note that to receive the 

temporary support, wireless carriers 

cannot require consumers to enter into 

a long-term contract or require service 

beyond 300 minutes or March 1, 2006, 

whichever is shorter. 

9. We find that these modifications 

are economically reasonable and 

consistent with the existing framework 

of the program rules. Under the Lifeline 

program, low-income consumers could 

receive up to $10 per month or $120 per 

year. Under the temporary order, 

qualifying consumers would receive a 

$130 benefit, which would also include 

a handset. We note that this relief, 

combined with the action we took 

earlier with regard to waiver of the 

geographic porting requirements, would 

allow evacuees to maintain their home 

phone numbers, and promote continuity 

with regard to personal contacts, 

employment, education, and housing. 

Under the unique and devastating 

circumstances caused by the hurricane 

and its aftermath, we conclude that 

provision of this support, including a 

free wireless handset, is consistent with 

the purpose of section 254 because it is 

reasonably necessary to ensure that low 

income consumers have immediate 

access to telecommunications services. 

We further find that this support fulfills 

the Commission’s broader mandate to 

make wire and radio communication 

service available to all people of the 

United States, and to promote the safety 

of life and property. We use our 

ancillary authority under Title I to 

include a free wireless handset. 

10. We also adopt temporary order for 

the Link-Up program to pay for certain 

costs to connect victims of the hurricane 

to the network. Specifically, we will 

provide funding under the Link-Up 

program to eligible telecommunications 

carriers to receive, upon submission of 

an application and any necessary 

documentation, $30.00 per qualifying 

household for commencing 

telecommunications service for a single 

telecommunications connection at any 

temporary housing arrangements. To 

ensure this temporary support is 

targeted to those victims of Hurricane 

Katrina moving to temporary housing 

arrangements (e.g., trailer parks or other 

temporary housing facilities), we will 

make this support available from release 

of this Order through March 1, 2007. In 

addition, we will also permit, under the 

Link-Up program, eligible 

telecommunications carriers to receive 

(upon submission of an application and 

any necessary documentation to the 

Administrator) $30.00 per qualifying 

household returning to a primary 

residence in the Hurricane Katrina 

disaster area for commencing 

telecommunications service for a single 

telecommunications connection, 

including the reconnection of service 

disconnected as a result of Hurricane 

Katrina. Based on the numbers provided 

by FEMA, we estimate that up to 

370,000 households would be eligible 

for this temporary Link-Up support at 

an estimated total cost of approximately 

$12 million. 

2. Applicable Time Period 

11. Hurricane victims need access to 

telephone service, particularly in this 

emergency situation. Carriers operating 

in the disaster areas in Alabama, 

Louisiana, and Mississippi, as well as in 

any state where people have been 

temporarily relocated, e.g., Texas, 

should have the opportunity to assist 

hurricane victims and receive 

appropriate temporary USF support 

payments. Accordingly, we find that 

due to this emergency situation, good 

cause exists for adopting these 

temporary Lifeline rules, which will 

expire on March 1, 2006, specifically for 

free wireless handsets, and at least 300 

free minutes per household for 

displaced persons, whether they 

relocate within the three affected states, 

relocate to another state outside of the 

area, or return home after telephone 

service has been disconnected. We also 

find that good cause exists to adopt 

temporary Link-Up rules, as discussed 

above, which will expire on March 1, 

2007. 

12. Link-Up support funding is 

available from the release date of this 

Order until March 1, 2007. Any eligible 

application for Link-Up support 

postmarked by March 1, 2007 will 

receive the special Link-Up support 

described above. Wireless Lifeline 

support is available from the release 

date of this Order until March 1, 2006. 

Any eligible application for support 

postmarked by March 1, 2006 is eligible 

for the Wireless Lifeline support 

described above. 

3. Eligibility 

13. As discussed above, any person 

approved for FEMA disaster assistance 

or determined by FEMA to be eligible 

for individual assistance relating to the 

hurricane will be eligible for temporary 

federal Lifeline and Link-Up support, on 

a per household basis. Section 254(e) of 

the Communications Act of 1934, as 

amended, provides that ‘‘only an 

eligible telecommunications carrier 

designated under section 214(e) shall be 

eligible to receive specific Federal 

universal service support.’’ We adopt 

several conditions to ensure that this 

Lifeline and Link-Up temporary support 

is used solely to assist victims of 

Hurricane Katrina. First, this Lifeline 

and Link-Up support is only available to 

consumers approved for FEMA disaster 

housing assistance or determined by 

FEMA to be eligible for housing 

assistance relating to the hurricane. 

FEMA’s rules target housing assistance 

to individuals and households who are 

harmed by a disaster and generally have 

limited means. For example, housing 

assistance is generally not available to 

individuals who have adequate rent-free 

housing accommodations. To ensure 

this support is targeted to those 

consumers with the greatest need, we 

are making this temporary support 

available to those consumers 

determined to be eligible for FEMA 

disaster housing assistance and who do 

not have any obligation under FEMA 

rules to repay FEMA for the support. 

Because this is temporary support 

intended to assist in disaster relief and 

restoration, we limit this Link-Up 

support to one connection for temporary 

housing and one reconnection (per 

household) for hurricane victims 

determined to be eligible for individual 

assistance under FEMA rules (and who 

have no obligation to repay the funds to 

FEMA) returning to permanent 

residences in the FEMA-designated 

Hurricane Katrina disaster area. We 

limit the Lifeline support to a free 

wireless handset and at least 300 free 

minutes. Second, the temporary LinkUp support for reconnections is 

available only for circumstances where 

the consumer was disconnected from 

service because of the hurricane or 

subsequent flooding. Third, we require 

consumers qualifying for this support to 

provide documentary evidence to the 

ETC serving them to demonstrate that 

FEMA determined they were eligible for 

individual disaster housing assistance. 

Proof of FEMA’s determination of 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65853 

eligibility for individual housing 

disaster assistance without repayment 

obligations is sufficient. We anticipate 

that the households that will receive 

support under the temporary order 

would have received support under the 

existing low-income program rules if 

they obtained telephone service. We 

note, however, that our Link-Up rules 

place certain restrictions on the number 

of times at the same residence a lowincome consumer may qualify for 

support. We therefore clarify that this 

temporary Link-Up support will be 

available both for temporary housing 

arrangements and for eligible hurricane 

victims returning to permanent 

residences in the Hurricane Katrina 

disaster area. 

14. By adopting these temporary 

modifications to our Lifeline and LinkUp programs, we are working within the 

existing parameters of the low-income 

program. The Commission has long 

relied on participation in means-tested 

programs, such as participation in the 

food stamps program, to determine 

eligibility in our low-income program. 

In 2004, the Commission expanded 

eligibility for the low-income program 

when it acted upon the Federal-State 

Joint Board’s recommendation to 

expand the federal default eligibility 

criteria to include an income-based 

criterion and additional means-tested 

programs. Under the existing rules, in 

cases where a state does not mandate 

state Lifeline support, the Commission’s 

rules rely on other means-tested federal 

assistance programs (e.g., Temporary 

Assistance to Needy Families, Federal 

Public Housing Assistance, Low Income 

Home Energy Assistance Program, and 

the National School Lunch Program’s 

free lunch program) to determine 

eligibility criteria for the low-income 

program. The approach we adopt here, 

i.e., relying on FEMA determinations 

that a consumer is eligible for certain 

individual disaster assistance program, 

is consistent with our general approach 

of using federal assistance programs to 

determine consumer eligibility for our 

low-income program. By relying on 

FEMA determinations of household 

eligibility for disaster housing 

assistance, we are targeting this support 

to households struck by Hurricane 

Katrina, and we are using FEMA’s 

determinations as a need-based program 

for determining low-income programs 

eligibility. 

15. There are approximately 65 

wireless carriers designated as ETCs in 

the states of Alabama, Louisiana, and 

Mississippi. We recognize that these 

ETCs, as well as wireless carriers 

currently designated as ETCs in other 

states, may not be sufficient to 

implement the temporary order in time 

to help with Hurricane Katrina disaster 

relief or may not be certified in areas 

where they now need to provide service. 

In order to effectively and efficiently 

implement the temporary order, we 

forbear for the purposes of this special 

relief, until March 1, 2006, from section 

254(e)’s requirement that ‘‘only an 

eligible telecommunications carrier 

designated under section 214(e) shall be 

eligible to receive specific Federal 

universal service support.’’ We establish 

the following alternative designation 

process for temporary ETCs to provide 

the specific Lifeline support described 

in this Order. 

16. Section 10 of the Act requires that 

the Commission forbear from applying 

any regulation or any provision of the 

Act to telecommunications services or 

telecommunications carriers if the 

Commission determines that the three 

conditions set forth in section 10(a) are 

satisfied. We find the requirements of 

section 10(a) are met to forbear from the 

ETC requirement until March 1, 2006, 

because of the limited and temporary 

nature of the support as well as the 

narrow application of the universal 

service support to only Lifeline 

customers. Section 10(a)(1) is satisfied 

because temporary forbearance from the 

ETC requirement will enhance the 

charges and practices of 

telecommunications carriers as it relates 

to Lifeline customers because it expands 

the scope of telecommunications 

services available to these consumers. 

Without such support, many of the 

affected consumers would be left with 

limited or no access to 

telecommunications services. In 

addition, because we specifically 

include a handset and a minimum of 

300 minutes of wireless service and thus 

tailor the Lifeline support to the affected 

consumers, we do not believe that the 

additional safeguards afforded by the 

traditional ETC designation requirement 

are necessary for the protection of 

consumers. Thus, forbearance also 

satisfies section 10(a)(2). Further, under 

the alternative temporary ETC 

designation process that we establish 

herein, the Commission will review 

each offering to determine whether it 

complies with our requirements. This 

review will allow us to ensure that 

affected consumers are provided with 

affordable access to the 

telecommunications network. Finally, 

we find our actions here today to be 

most consistent with the public interest 

and determine that the additional 

safeguards afforded by ETC designation 

under section 214 work against the 

public interest in this limited 

circumstance. Under the normal 

designation process, carriers would be 

required to submit a detailed 

application that addresses not only the 

Lifeline assistance but also the other 

requirements of serving as an ETC. By 

streamlining the process, and expediting 

our review, we will enable carriers to 

provide access to telecommunications to 

affected consumers as quickly as 

possible. Thus, we find that section 

10(a)(1) through (3) are satisfied and 

temporary and conditional forbearance 

is appropriate. 

17. Carriers seeking to be designated 

a temporary ETC to offer the special 

Lifeline support described in this Order 

must submit to the Commission a 

detailed description of the plan, 

including how many and type of 

minutes offered, the brand and model of 

the handset(s), the carrier’s licensed 

service area, and any limitations or 

conditions associated with the plans. In 

addition, consistent with the 

Commission’s ETC precedent, the 

petition must include (1) a certification 

that the petitioner intends to offer 

Lifeline services to qualifying 

subscribers consistent with this Order; 

and (2) a description of how the 

petitioner intends to advertise the 

availability of the Lifeline service. Upon 

submission, the Commission will 

conduct an expedited review to ensure 

compliance with our rules. Within ten 

days, the Commission will determine 

whether the offering complies with this 

Order and whether the carrier will be 

temporarily designated as an ETC for 

purposes of providing the Lifeline 

support set out in this Order. 

18. We acknowledge that some 

FEMA-eligible subscribers may already 

possess a handset and not need an 

additional handset. In those instances, 

and at the subscriber’s discretion, the 

subscriber may opt against receiving a 

new handset and opt instead for a 

Lifeline-supported package of greater 

than 300 minutes and the ETC may still 

receive support not to exceed $130 for 

its Lifeline package. Further, it is 

acceptable for a carrier to offer a plan 

that includes a handset and a package 

of some greater amount of minutes (e.g., 

500, 750, or 1000 minutes or more) for 

the $130 in support. Additionally, a 

subscriber may opt for a plan that 

exceeds the $130 limit for a minimum 

of 300 minutes of use and a handset, but 

nevertheless use the $130 towards the 

higher minutes of use plus handset 

plan. This flexibility to the plan will 

allow eligible customers to purchase 

packages with more minutes of use, 

including packages that require the 

subscriber to pay any additional amount 

over the $130 threshold. Through this 

65854 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

temporary change to the federal 

Lifeline/Link-Up support program, it is 

our intent and purpose through this 

wireless option to give access to affected 

subscribers with no out-of-pocket costs. 

The eligible customer, however, may 

choose otherwise by, for example, 

forgoing the handset in exchange for 

more minutes of use. 

19. We balance the need for quick and 

decisive action with our overarching 

goals of protecting the program from 

waste, fraud, and abuse. For that reason, 

we require applicants for the temporary 

Lifeline support pursuant to this Order 

to certify that they were residents of 

counties that are designated by FEMA as 

eligible for individual assistance, that 

they are the head of their household, 

and that they are only receiving one 

Lifeline special support package. 

Applicants seeking Link-Up support 

must certify that they were residents of 

counties that are designated by FEMA as 

eligible for individual assistance. We 

require ETCs receiving this temporary 

support to maintain all necessary 

documentation to verify that the support 

was used for the intended purpose of 

assisting victims of Hurricane Katrina. 

We also subject all ETCs receiving this 

temporary support to potential audit, 

and we require all carriers receiving $1 

million or more of this support to 

undergo an audit or other investigatory 

review by the Commission’s OIG (or the 

Administrator working under the 

oversight of the OIG) to verify the 

accuracy of all data submitted and that 

the support was used for intended 

purposes and to validate that the 

eligible telecommunications carrier has 

not obtained double-recovery from a 

single household. 

20. We find this action necessary to 

assist in the Hurricane Katrina disaster 

relief effort. Offering temporary support 

for this wireless service consumer 

offering will not only assist in the 

recovery from the economic damages 

caused by the hurricane, but it will 

promote public safety by ensuring that 

disaster victims have ready access to 

E911 capabilities in the event of 

emergency. We stress that this 

temporary designation to operate as an 

ETC solely for this temporary support 

mechanism does not grant or otherwise 

deem the carrier an ETC for any other 

USF support mechanism. Nor does this 

temporary designation prejudge or 

suggest that any application currently 

pending or to be filed in the future with 

the state commissions or the 

Commission results in designation as an 

ETC. 

C. Health Care Support 

1. Need for and description of 

Temporary Order 

21. In light of the compelling and 

unique circumstances caused by 

Hurricane Katrina, we find that it is 

necessary to adopt temporary order, 

pursuant to section 254(h)(2)(A), to 

provide public and nonprofit health 

care providers—in both non-rural and 

rural areas—in the affected areas and in 

areas where evacuees have relocated, as 

detailed below, with a 50 percent 

discount off the monthly cost of 

advanced telecommunications and 

information services necessary for the 

provision of health care services to 

victims of Hurricane Katrina. The 

temporary order discussed below 

applies to health care providers in the 

federally declared Hurricane Katrina 

disaster areas in the states of Alabama, 

Louisiana, and Mississippi and in areas 

where evacuees have relocated as 

detailed below. Specifically, all rural 

and non-rural nonprofit and public 

health care providers, as defined in 

§ 54.601(a)(2), located within the states 

of Alabama, Louisiana, and Mississippi 

are eligible for this additional support. 

We establish different geographic 

eligibility criteria for the Health Care 

initiative because of the ability to use 

distance medicine applications to treat 

Hurricane Katrina victims. Furthermore, 

because the residents of the most 

devastated areas will likely have to 

relocate for an extended period of time, 

we expand eligibility for the purposes of 

the temporary order to the rural and 

non-rural nonprofit and public health 

care providers located in areas that are 

likely to receive most of the citizens 

evacuated from the hardest hit areas. 

Initial reports show these areas to 

include all counties in Texas and 

Arkansas that are contiguous with 

Louisiana and Mississippi; the counties 

of Escambia, Santa Rosa, Okaloosa, 

Walton, and Bay in Florida; the counties 

of Harris, Dallas, Tarrant and Bexar in 

Texas; the county of Pulaski in 

Arkansas; and the county of Shelby in 

Tennessee. In addition, we find that 

rural and non-rural health care 

providers outside of these areas may be 

eligible for support to the extent they 

serve a substantial number of the 

evacuees when compared to their usual 

number of patients. Health care 

providers that believe they are eligible 

under this standard should file a request 

with the Commission. We note that this 

temporary support does not extend to 

private or for-profit health care 

providers. 

22. American Red Cross and other 

shelters are providing food, water, 

shelter and physical and mental health 

services to evacuees. Tens of thousands 

of people displaced from their homes 

have taken refuge in shelters in several 

states. Accordingly, for the purposes of 

the temporary order, we find it in the 

public interest that American Red Cross 

or other shelters that also offer medical 

services are eligible for funds as 

community health centers or 

community mental health centers to the 

extent they serve a significant number of 

disaster victims using advanced 

telecommunications and information 

services for telemedicine applications. 

23. We also clarify that temporary or 

mobile health care providers are eligible 

for support under the 50 percent 

discount rule we adopt in this Order. As 

we noted in the Rural Health Care 

Second Report and Order, 70 FR 6365, 

February 7, 2005, mobile health care 

providers can provide essential health 

care services to underserved 

populations in remote locations. Given 

the extensive damage to many health 

care facilities due to Hurricane Katrina, 

we envision that the recovery and 

rebuilding effort will require the use of 

temporary mobile health facilities due 

to the lack of permanent health care 

facilities. Furthermore, many evacuees 

may be housed for some time in 

temporary shelters, and health care 

might be brought to these people via 

mobile health care providers. The 

receipt of universal service funding will 

better enable mobile health care 

providers to rapidly diagnose and treat 

patients in the affected areas. We find 

this rule to be in the public interest 

because it will provide maximum 

flexibility to mobile health care 

providers to use the most-effective 

technology to provide service to 

hurricane victims, whether it is satellite, 

wireline, or wireless. In the Rural 

Health Care Second Report and Order, 

we established a methodology for 

calculating support that established 

discounts for rural mobile health care 

providers at the difference between the 

rate for satellite service and the rate for 

an urban wireline service with a similar 

bandwidth. We find that such a 

calculation is not necessary here 

because, under the rules we adopt 

today, mobile health care providers will 

receive 50 percent discount off the cost 

of advanced telecommunications and 

information services. 

24. In section 254 of the 

Telecommunications Act of 1996, 

Congress sought to provide rural health 

care providers ‘‘an affordable rate for the 

services necessary for the purposes of 

telemedicine and instruction relating to 

such services.’’ Specifically, Congress 

directed telecommunications carriers 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65855 

‘‘[to] provide telecommunications 

services which are necessary for the 

provision of health care services in a 

State, including instruction relating to 

such services, to any public or nonprofit 

health care provider that serves persons 

who reside in rural areas in that State 

at rates that are reasonably comparable 

to rates charged for similar services in 

urban areas in that State.’’ Congress also 

provided the Commission with 

authority to enhance access to advanced 

telecommunications and information 

services for health care providers. 

25. The Commission implemented 

this statutory directive by adopting the 

rural health care support mechanism in 

the 1997 Universal Service Order, 62 FR 

32862, June 7, 1997. In the Rural Health 

Care Report and Order, the Commission 

provided a 25 percent discount off the 

cost of monthly Internet access for 

eligible rural health care providers 

under section 254(h)(2)(A). 

Subsequently, on December 17, 2004, 

the Commission released a Rural Health 

Care Second Report and Order, 62 FR 

32862, June 7, 1997, that, among other 

actions, changed the definition of 

‘‘rural’’ for the purposes of the rural 

health care support mechanism. The 

Commission also expanded funding for 

mobile rural health care providers by 

subsidizing the difference between the 

rate for the satellite service and the rate 

for an urban wireline service with a 

similar bandwidth. In addition, on 

reconsideration, the Commission 

revised its rules to permit rural health 

care providers in states that are 

‘‘entirely rural’’ to receive a 50 percent 

discount for advanced 

telecommunications and information 

services under section 254(h)(2)(A). 

26. As the Commission has 

recognized in the past, access to 

advanced telecommunications services 

and information services presents the 

most efficient, cost-effective way to 

provide many telemedicine services. 

Specifically, telemedicine programs 

enable patients to receive health care 

services across distances that might 

otherwise be unaffordable, or physically 

impracticable or impossible to cross. For 

example, health care providers can use 

advanced telecommunications services 

to transmit x-rays and other medical 

information in real-time to doctors 

located in other areas for diagnosis and 

recommendations. Thus, patients 

benefit from access to timely health care 

services while they are spared the 

expense of lost wages and long-distance 

travel. In this instance, residents of the 

affected areas might be unable to travel 

for health care services because, for 

example, vehicles were lost in the 

flooding or gasoline is in short supply. 

Additionally, mobile health care 

providers can deliver cutting-edge 

technology and specialty care to citizens 

who are still living in areas that were 

damaged by the hurricane. These mobile 

clinics literally can mean the difference 

between life and death for many people 

who are unable to travel to see a 

physician. Furthermore, universal 

service support for advanced 

telecommunications and information 

services will enable health care 

providers in the affected areas to utilize 

their limited resources to provide 

additional care for hurricane victims 

and other patients. 

27. We find that it is appropriate to 

adopt these rules on a temporary basis 

to expand funding to health care 

providers in the affected areas under 

section 254(h)(2)(A). As the Commission 

has determined in the past, we have the 

authority to provide funding for the 

provision of advanced 

telecommunications and information 

services under section 254(h)(2)(A). 

Section 254(h)(2)(A) allows the 

Commission to establish competitively 

neutral rules to enhance access to 

advanced telecommunications and 

information services for health care 

providers. Furthermore, section 

254(h)(2)(A) gives the Commission 

broad discretionary authority to fulfill 

this statutory mandate. In prior orders, 

we have established rules under section 

254(h)(2)(A) that further the 

Commission’s mission of funding 

telecommunications and information 

services in order to promote 

telemedicine. By adopting the 

temporary order, therefore, we are 

working within the existing parameters 

of the rural health care program. We 

find that the circumstances caused by 

Hurricane Katrina create a special need 

for the Commission to use its discretion 

to provide universal service support to 

health care providers in the affected 

areas. 

28. Section 254(h)(2)(A) allows the 

Commission to establish competitively 

neutral rules to enhance access to 

advanced telecommunications and 

information services to the extent those 

rules are technically feasible and 

economically reasonable. We find that 

providing universal service support as 

discussed herein is both technically 

feasible and economically reasonable. 

Access to these services is technically 

feasible because eligible health care 

facilities either are already being 

provided or were being provided 

advanced telecommunications and 

information services prior to the 

hurricane. In addition, the 

Commission’s actions are economically 

feasible, in light of the circumstances. 

First, the temporary support is for a 

limited amount of services used for the 

express purpose of treating disaster 

victims, i.e., advanced 

telecommunications and information 

services used in telemedicine 

applications. Second, we estimate that 

we would disburse approximately $28 

million in support under the temporary 

order. The Commission has established 

a cap of $400 million for the rural health 

care support mechanism. Given that 

currently the program is disbursing 

about $30 million a year, we do not 

envision that the additional funding 

provided for in this Order will exceed 

the Commission’s cap. We further note 

that we are not funding all 

telecommunications services, as 

provided for under 254(h)(1)(A), but 

only advanced telecommunications and 

information services that are used 

directly to provide telemedicine 

services to treat patients. Third, based 

on past experience, we believe a flat 50 

percent discount is easy to administer 

and consistent with section 254(h)(5), 

which requires a specific, sufficient and 

predictable mechanism. Fourth, the 50 

percent discount limits the amount of 

support per provider, provides 

incentives for health care providers to 

make prudent economic decisions 

concerning their telemedicine needs 

and will deter wasteful expenditures. 

Finally, we find that a 50 percent 

discount is slightly less than the average 

discount rural health care providers 

current receive for telecommunications 

services under section 254(h)(1)(A). 

29. We find that both rural and nonrural health care providers in affected 

areas should be eligible for this 

temporary support. Section 254(h)(1)(A) 

limits support to health care providers 

in ‘‘rural’’ areas. In allowing the 

Commission discretion to establish 

competitively neutral rules to enhance 

access to advanced telecommunications 

and information services under section 

254(h)(2)(A), however, Congress did not 

specifically limit such access to rural 

health care providers. Thus, we find 

that providing health care universal 

service support to public or nonprofit 

health care providers that are not 

necessarily serving ‘‘rural areas,’’ as 

defined in the 2004 Rural Health Care 

Second Report and Order, is consistent 

with federal court precedent and the 

mechanism’s goal to provide health care 

providers with access to modern 

telecommunications for medical and 

health maintenance purposes. These 

areas have experienced the destruction 

of the telecommunications network 

infrastructure and the obliteration of 

many buildings, including homes, 

65856 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

medical, and other professional 

facilities, as well as the displacement of 

a significant percentage of the 

population. Therefore, we find that, in 

light of these extraordinary 

circumstances, both rural and non-rural 

health care providers are eligible to 

receive rural health care universal 

service support to serve the medical 

needs in the affected areas. Consistent 

with the Commission’s principles of 

competitive neutrality, we find that 

eligible health care providers may 

receive discounts for any advanced 

telecommunications and information 

service, regardless of the platform as 

long as these services are used to treat 

disaster victims with telemedicine 

applications. 

30. In administering the universal 

service fund, we must ensure that the 

goals of section 254 are met while 

preventing waste, fraud, and abuse. For 

this reason, health care providers 

seeking support pursuant to this Order 

shall certify that they meet the 

eligibility requirements outlined herein. 

We also note that our rules require 

applicants to select the most costeffective, commercially available 

service. We will carefully monitor the 

use of funds disbursed to eligible 

entities under these new rules to ensure 

that all support is utilized in accordance 

with Commission rules, and to ensure 

that service providers do not charge 

unjust or unreasonable rates or seek to 

lock health care providers into longterm contracts beyond Funding Year 

2005. We reserve the right to recover 

any monies not used for their intended 

purposes or, upon review, we determine 

were used wastefully. 

2. Applicable Time Period 

31. To qualify for this support, a 

health care provider should submit 

documentation to demonstrate that it 

used advanced telecommunications and 

information services for telemedicine 

applications and to treat victims of 

Hurricane Katrina. The health care 

provider should also certify that it used 

the services for the intended purposes. 

Such health care providers should 

comply with the program’s document 

retention requirements and should 

maintain sufficient documentation to 

demonstrate the reasonableness of costs 

in light of the exigent circumstances. As 

noted above, all parties are subject to 

potential audit by the Commission’s 

OIG (or the Administrator working 

under the OIG’s oversight), and any 

party receiving more than $1 million in 

support will be automatically audited. 

32. As noted below, the temporary 

order is effective immediately upon 

release of this Order and continues 

through the end of Funding Year 2005. 

Temporary health care support funding 

is available from August 29, 2005 until 

June 30, 2006, which is the end of 

Funding Year 2005. Further, all health 

care providers eligible under these new 

rules are permitted to amend their 

Funding Year 2005 applications to 

apply for additional support, no later 

than 60 days after the release of this 

Order. Applicants seeking support to 

obtain advanced telecommunications 

and information services for 

telemedicine applications used to treat 

victims of Hurricane Katrina should 

submit their FCC Form 465 postmarked 

no later than 60 days after release of this 

Order. Applicants should comply with 

all program rules and requirements, 

including the competitive bidding 

requirements. 

D. Schools and Libraries Support 

1. Need For and Description of 

Temporary Order 

33. In this Order, we adopt temporary 

modifications to the schools and 

libraries universal service support 

mechanism to meet the needs of schools 

and libraries damaged by Hurricane 

Katrina. Approximately 600 schools and 

libraries in Alabama, Louisiana, and 

Mississippi may have been affected by 

the hurricane and subsequent flooding. 

Many schools and libraries in other 

states, although not damaged by the 

hurricane, have an influx of hurricane 

evacuee students (and library patrons). 

We are, on our own motion, waiving 

certain rules relating to the schools and 

libraries universal service support 

mechanism (commonly referred to as 

the E-rate program) on an emergency 

interim basis, as described below. 

Waiver of these rules will preserve and 

advance universal service by allowing 

schools and libraries in affected areas to 

restore quickly their ability to provide 

students and communities with needed 

telecommunications and information 

services. 

34. Specifically, we (1) re-open the 

Funding Year 2005 filing window for 

schools and libraries, and consortia of 

schools and libraries, that were directly 

or indirectly affected by Hurricane 

Katrina; (2) treat all schools and 

libraries directly affected by Hurricane 

Katrina at the highest level of priority 

for Priority Two services (i.e., 90 

percent) for Funding Years 2005 and 

2006; (3) allow affected parties in 

eligible counties/parishes in Alabama, 

Louisiana, and Mississippi to ‘‘restart 

the clock’’ for the purposes of 

calculating compliance with the ‘‘twoin-five’’ rule; (4) allow program 

participants in affected areas to 

substitute services or products in one 

broad category for another; and (5) allow 

schools and libraries serving displaced 

students and citizens to amend their 

Funding Year 2005 applications to 

account for the unexpected increase in 

population by filing a special 

supplementary FCC Form 471 request 

for additional funding. 

35. In taking these actions, we balance 

the need for quick and decisive action 

to restore the provision of 

telecommunications and information 

services to schools and libraries with 

our overarching need to protect the 

program against waste, fraud, and abuse. 

We emphasize, however, that we will 

continue to be vigilant to ensure 

program integrity and to detect and 

deter waste, fraud, and abuse, and 

pursue enforcement action when 

appropriate. Our intent is not to allow 

double recovery for damages related to 

telecommunications and information 

services equipment funded under the 

schools and libraries universal service 

support mechanism. For this reason, 

schools and libraries affected by 

Hurricane Katrina requesting funding 

for the restoration of their 

telecommunications and information 

systems pursuant to the direction 

contained in this Order shall certify that 

the school or library incurred 

substantial damage as a result of 

Hurricane Katrina and that the services 

and products sought in their 

applications will be solely used to 

restore the network to the functional 

equivalent of the pre-Katrina degree of 

functionality (i.e., prior to August 29, 

2005) and that other resources (e.g., 

insurance or public assistance monies 

provided by FEMA) are not available for 

restoration. In addition, schools and 

libraries affected by Hurricane Katrina 

shall certify that any alternative funding 

(e.g., insurance payments, FEMA 

support, community resources) in 

excess of the cost for products or 

services requested on their applications 

will be returned to the federal Universal 

Service Fund. To the extent that schools 

and libraries are handling increased 

populations of evacuees, schools and 

libraries shall certify that: (1) There are 

more than a de minimis number of 

Hurricane Katrina victims; and (2) the 

entity experienced an associated 

increase in demand for supported 

services. 

36. At the outset, we note that, in a 

number of instances, our rules explicitly 

provide participants in the schools and 

libraries program with specific 

requirements for requesting extensions 

of deadlines or waivers of certain 

Commission rules due to the occurrence 

of unforeseen events such as Hurricane 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65857 

Katrina. Thus, we emphasize that the 

actions taken here do not represent the 

entirety of the relief that may be 

available to E-rate program participants 

in affected areas. We are committed to 

addressing all requests for hurricane 

assistance in an expeditious manner. 

37. Under the Commission’s rules, 

universal service funds are available to 

fund discounts for eligible schools and 

libraries and consortia of such eligible 

entities on a first-come, first-served 

basis. Each year, the Administrator 

implements an initial filing period that 

treats all schools and libraries filing 

within that period as if their 

applications were simultaneously 

received. The initial filing period begins 

on the date that the Administrator 

begins to receive applications for 

support, and concludes on a date to be 

determined by the Administrator. 

38. In light of the extensive property 

damage, including damage to the 

telecommunications and information 

systems employed by participants in the 

schools and libraries universal service 

support mechanism, caused by 

Hurricane Katrina in the Gulf Coast 

states, we waive section 54.507(c) of our 

rules and re-open the Funding Year 

2005 filing window for schools and 

libraries, and consortia of schools and 

libraries, that were directly or indirectly 

affected by Hurricane Katrina to the 

extent set forth in this Order. The filing 

window shall be open for sixty days 

following the date of release of this 

Order. By waiving § 54.507(c) of our 

rules, and reopening the filing window 

for Funding year 2005 for schools and 

libraries affected directly by Hurricane 

Katrina, affected program participants in 

Alabama, Louisiana, and Mississippi 

can begin repairing and restoring 

needed telecommunications and 

information services quickly and 

rapidly. Moreover, as described more 

fully below, we recognize that certain 

schools and libraries may require 

additional funding to support the needs 

of students and citizens displaced by 

Hurricane Katrina although they have 

not been directly affected by these 

events. Accordingly, for the reasons 

stated above, we find that due to this 

natural disaster, good cause exists for 

waiving § 54.507(c) for these schools 

and libraries and that such waiver is in 

the public interest. 

39. Under the Commission’s rules, 

eligible schools and libraries may 

receive discounts ranging from 20 

percent to 90 percent of the prediscount price of eligible services, based 

on indicators of need. Schools and 

libraries in areas with higher 

percentages of students eligible for free 

or reduced-price lunch through the 

National School Lunch Program (or a 

federally approved alternative 

mechanism) qualify for higher discounts 

for eligible services than applicants with 

low levels of eligibility for such 

programs. Schools and libraries located 

in rural areas also generally receive 

greater discounts. The Commission’s 

priority rules provide that requests for 

telecommunications services, voice mail 

and Internet access for all discount 

categories shall receive first priority for 

the available funding (Priority One 

services). The remaining funds are 

allocated to requests for support for 

internal connections (Priority Two 

services), beginning with the most 

economically disadvantaged schools 

and libraries, as determined by the 

schools and libraries discount matrix. 

Currently, the most disadvantaged 

schools and libraries are eligible for a 90 

percent discount on eligible services, 

and thus must pay only 10 percent of 

the cost of the service. To the extent 

funds remain after discounts are 

awarded to entities eligible for a 90 

percent discount, the rules provide that 

the Administrator shall continue to 

allocate funds for discounts to 

applicants at each descending single 

discount percentage. The Commission’s 

rules also provide that if sufficient 

funds do not exist to grant all requests 

within a single discount percentage, the 

Administrator shall allocate the 

remaining support on a pro rata basis 

over that single discount percentage 

level. 

40. In light of the extensive property 

damage, including damage to the 

telecommunications and information 

systems employed by participants in the 

schools and libraries universal service 

support mechanism, caused by 

Hurricane Katrina in the Gulf Coast 

states, we find good cause to waive 

§ 54.507 of our rules and treat all 

schools and libraries directly affected by 

Hurricane Katrina at the highest level of 

priority for Priority Two services (i.e., 

90 percent) for Funding Years 2005 and 

2006. We recognize that program 

participants in Alabama, Louisiana, and 

Mississippi most affected by Hurricane 

Katrina may have need for an immediate 

indication of whether they are likely to 

receive funds for Priority Two services. 

By waiving § 54.507 of our rules, and 

treating all affected schools and libraries 

at the highest level of priority, affected 

program participants in Alabama, 

Louisiana, and Mississippi can fully 

anticipate the amount of funding they 

will receive from the universal service 

fund, and begin the task of developing 

a cogent, feasible, and sustainable plan 

to resume the provision of needed 

telecommunications and information 

services. We anticipate that treating all 

affected schools and libraries at the 

highest priority level could result in the 

disbursement of approximately $96 

million in E-rate funds for the 

approximately 600 schools and libraries 

in Alabama, Louisiana, and Mississippi 

affected by Hurricane Katrina. We note 

that these funds have already been 

collected by the Universal Service Fund, 

and would not have an impact on the 

long-term viability of the universal 

service program. Accordingly, we find 

that good cause exists for waiving 

§ 54.507 for affected entities and that 

such waiver is in the public interest. 

41. We expect that the neediest 

schools and libraries will receive 

requested funding for Funding Year 

2005 for both Priority One and Priority 

Two services. We note that, after 

applications from the disaster-struck 

schools and libraries are submitted and 

reviewed, we may be able to authorize 

funding nation-wide requests for any 

deferred requests for Priority Two 

internal connections service for Funding 

Year 2005. The Commission’s rules 

require the Administrator to report the 

amount of unused funds available from 

prior funding years on a quarterly basis. 

Based on our past experience, 

significant funds are identified as 

available for use in future funding years. 

In fact, the E-rate Coordinators from 

Alabama, Louisiana, and Mississippi 

estimate that unused funds from prior 

funding years will be available to carry 

over for Funding Year 2005 and could 

be used to fund Hurricane Katrina 

restoration. Because we are re-opening 

the funding year 2005 filing window, 

such funds previously identified as 

unused by the Administrator may be 

available to provide support to the 

disaster-struck schools and libraries. We 

recognize that demand for services from 

the schools and libraries struck by 

Hurricane Katrina may vary after these 

entities complete their internal reviews 

and prepare the necessary program 

applications. We will closely monitor 

this situation and, to the extent unused 

funds from prior funding years are 

available, we anticipate that these funds 

will be used and that Priority Two 

funding may be available for additional 

applicants. 

42. Finally, we note that the 

Commission requires that an entity must 

pay the entire undiscounted portion of 

the cost of any services it receives 

through the schools and libraries 

program. Moreover, our rules prohibit 

the provision of free services to an 

eligible entity by a service provider that 

is also providing discounted services to 

the entity. The Commission has 

65858 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

previously found that, for the purpose of 

this program, the provision of unrelated 

free services by a service provider to an 

eligible entity constitutes a rebate of the 

undiscounted portion of the costs of 

services, in violation of our rules. We 

clarify that to the extent schools and 

libraries receive FEMA assistance for 

projects, such assistance may be applied 

to the undiscounted portion of the bill. 

As part of our efforts to respond to the 

damage caused by Hurricane Katrina, 

we will continue to examine whether 

waiver of this rule is warranted to aid 

affected schools and libraries to restore 

the provision of service to students and 

communities. 

43. Under the Commission’s rules, 

eligible entities may receive 

commitments for discounts on Priority 

Two services (internal connections) no 

more than twice every five funding 

years (the ‘‘two-in-five’’ rule). For the 

purpose of determining eligibility, the 

five-year period may begin in any 

funding year in which the school or 

library receives discounted internal 

connections services other than basic 

maintenance services. 

44. We find that due to the damage to 

information and telecommunications 

systems caused by Hurricane Katrina in 

the Gulf Coast states, many participants 

in the schools and libraries universal 

service support mechanism are likely to 

need to replace their internal 

connections services, and thus will seek 

commitments for discounts on Priority 

Two services despite already receiving 

such commitments in the recent past. 

For these entities, we waive our rule 

pertaining to the frequency of discounts 

for internal connections services to 

allow affected parties in Alabama, 

Louisiana, and Mississippi to ‘‘restart 

the clock’’ for the purposes of 

calculating compliance with the ‘‘twoin-five’’ rule. For such participants, 

Funding Year 2006 will thus serve as 

the first year of the five-year period for 

determining eligibility for funding for 

these services. We recognize that 

program participants in Alabama, 

Louisiana, and Mississippi affected by 

Hurricane Katrina may need funding to 

replace damaged or destroyed internal 

connections services, and should not be 

denied support payments simply due to 

the timing and frequency of previous 

requests for funding for internal 

connections. We limit this relief to 

schools and libraries in the Hurricane 

Katrina disaster area that incurred 

substantial damage as a result of the 

hurricane. Accordingly, for the reasons 

stated above, we find that due to this 

natural disaster, good cause exists for 

waiving § 54.506(c) for affected entities 

and that such waiver is in the public 

interest. To qualify for this waiver, 

parties should submit a request 

describing the damage incurred to the 

equipment that needs to be replaced. 

45. Section 54.504(f) of the 

Commission’s rules allows the 

Administrator to grant a request by an 

applicant to substitute a service or 

product for another where the service or 

product has the same functionality; the 

substitution does not violate any 

contract provisions or state or local 

procurement laws; the substitution does 

not result in an increase in the 

percentage of ineligible services or 

functions; and the applicant certifies 

that the requested change is within the 

scope of the controlling FCC Form 470. 

On our own motion, we waive the 

requirement that, for purposes of 

§ 54.504(f), the substituted service or 

product must have the same 

functionality as the service it is 

replacing. Thus, program participants in 

affected areas may substitute services in 

one broad category (e.g., 

telecommunications service, Internet 

access, and internal connections) for 

those in another. Along these same 

lines, we will permit the use of 

approved funds for any facilities or 

services that need to be replaced due to 

the natural disaster to the extent that 

they were initially funded under the 

program. We recognize that program 

participants in Alabama, Louisiana, and 

Mississippi affected by Hurricane 

Katrina may seek needed funding to 

replace damaged or destroyed services 

and equipment, and that it is in the 

public interest to allow the replacement 

of such services and equipment with 

funds previously granted for other 

services and equipment. Accordingly, 

we find that due to this natural disaster, 

good cause exists for waiving § 54.504(f) 

for affected entities and that such 

waiver is in the public interest. For any 

eligible school, library or consortium in 

affected areas, such service substitutions 

will be limited to funds received from 

applications from Funding Year 2005. 

46. Certain schools, although not 

directly affected by Hurricane Katrina, 

may have been indirectly impacted 

nonetheless due to the influx of 

displaced students into their district. 

For example, additional students may 

make use of school services and 

resources in a manner originally 

unanticipated when the schools’

technology plans were developed and 

funding requested, thereby taxing 

information and telecommunication 

services beyond their usual capability. 

In some instances, the addition of 

students displaced due to Hurricane 

Katrina may cause a school to become 

eligible for a higher discount level due 

to an increase in the percentage of the 

student body eligible for the National 

School Lunch Program. To provide an 

opportunity for schools to handle the 

unforeseen consequences of Hurricane 

Katrina and the influx of new students 

and patrons, we will allow schools and 

libraries serving displaced students and 

citizens to amend their Funding Year 

2005 applications to account for the 

unexpected increase in population by 

filing a special supplementary FCC 

Form 471 request for additional 

funding. In accordance with our 

direction here, such schools may amend 

their original funding requests. We 

instruct the Schools and Libraries 

Division (‘‘SLD’’) of the Administrator 

to accept and immediately process 

requests for additional funding from 

such schools for sixty days following 

the date of this Order. We recognize that 

certain schools and libraries may need 

to adjust their requests for USF support 

in light of Hurricane Katrina even 

though they have not been directly 

damaged by these events. Accordingly, 

we find that due to this catastrophic 

natural disaster, good cause exists for 

waiving § 54.507(c) for these schools 

and libraries and that such waiver is in 

the public interest. Schools and libraries 

affected by Hurricane Katrina requesting 

additional funding to support the needs 

of displaced citizens shall submit a 

certification indicating the approximate 

number of additional students or 

citizens expected to be served by the 

telecommunications and information 

services, and that the services and 

products sought in their applications are 

necessary to serve these additional, 

unanticipated needs. We estimate that 

this increase in funding will be 

approximately $36 million. We note that 

these funds have already been collected 

and should not have an impact on the 

long-term viability of the universal 

service program. 

47. Because we want to ensure the 

schools and libraries harmed by 

Hurricane Katrina receive targeted 

support, we direct the Administrator, in 

reviewing revised or supplemented 

requests for E-rate support, to determine 

whether the impact of Hurricane Katrina 

was de minimis (e.g., a small number of 

students or patrons that necessitates no 

increased demand for supported 

services). Schools and libraries should 

not submit revised applications if they 

are getting a de minimis increase in 

students or patrons as a result of 

Hurricane Katrina. We recognize that 

this determination may depend upon 

specific facts and circumstances. Thus, 

applicants should submit the number of 

increased students and library patrons 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65859 

(both pre-Hurricane Katrina and postHurricane Katrina) and certify that the 

number is accurate. We also require 

schools and libraries to maintain 

documentation in support of these 

increased numbers. We authorize the 

state E-rate coordinators for Alabama, 

Louisiana, and Mississippi to review erate applications to ensure that schools 

and libraries were substantially 

damaged and that their requests will be 

free of waste, fraud, and abuse. In 

addition, for those schools and libraries 

handling increased students/patron 

evacuees, we authorize these E-rate 

coordinators to review whether the 

schools/libraries are handling more than 

a de minimis number of increased 

students/patrons. We note that the state 

E-rate coordinators for Alabama, 

Mississippi, and Louisiana will 

coordinate the application process to 

limit the potential for waste, fraud, and 

abuse. We authorize this additional 

oversight review activity. We expect 

such review efforts would include 

verifying that schools and libraries in 

their states seeking this temporary relief 

meet the de minimis standard. We will 

carefully monitor the use of funds 

disbursed to ensure that all support is 

utilized in accordance with Commission 

rules, and to ensure that service 

providers do not charge unjust or 

unreasonable rates. We reserve the right 

to recover any monies not used for their 

intended purposes or, upon review, we 

determine were used wastefully. 

2. Eligibility 

48. The temporary order adopted and 

waivers granted herein apply to schools, 

libraries, and consortia of schools and 

libraries in the federally-declared 

Hurricane Katrina disaster areas in the 

states of Louisiana, Mississippi, and 

Alabama and in surrounding areas, for 

the counties/parishes designated by 

FEMA as eligible for individual 

assistance. Furthermore, because the 

residents of the most devastated areas 

will likely have to relocate for an 

extended period of time, we expand 

eligibility of funds from the schools and 

libraries support mechanism to schools 

and libraries (and consortia of eligible 

schools and libraries) located in areas 

that receive citizens evacuated from the 

hardest hit areas. Initial reports show 

these areas to include all counties in 

Texas and Arkansas that are contiguous 

with Louisiana and Mississippi; the 

counties of Escambia, Santa Rosa, 

Okaloosa, Walton, and Bay in Florida; 

the counties of Harris, Dallas, Tarrant 

and Bexar in Texas; the county of 

Pulaski in Arkansas; and the county of 

Shelby in Tennessee. Schools and 

libraries that believe they are eligible 

under this standard should retain 

documentation of the number of 

additional students and citizens to be 

supported by telecommunications and 

information services. 

49. The E-rate Funding Year 2005 

application window is reopened for 

certain schools, libraries, and consortia 

directly and indirectly affected by the 

hurricane, as set out above. The window 

reopens on the release date of this Order 

and closes 60 days after. Any 

application or amended application 

from an eligible school, library, or 

consortium, as discussed above, that is 

postmarked by 60 days after the release 

date of this Order will be deemed 

accepted as timely filed within the 

Funding Year 2005 window. For 

Funding Years 2005 and 2006, all 

eligible schools, libraries, or consortia, 

as discussed above, will be treated at the 

highest level of priority, or 90 percent, 

for Priority Two services. For all eligible 

schools, libraries, or consortia, as 

discussed above, the clock shall be 

restarted in terms of applying the twoin-five rule of receiving Priority Two 

services. Therefore, applicants that 

qualify for Priority Two services under 

this Order will be deemed to have 

Funding Year 2006 as their first funding 

year, for purposes of the two-in-five 

calculation. For any eligible school, 

library or consortium, as discussed 

above, service substitutions will be 

limited to funds received from 

applications from Funding Year 2005. 

E. High-Cost Support 

50. The high-cost program provides 

support to carriers (incumbent LECs as 

well as competitive carriers) operating 

in high-cost and rural areas. Under the 

Commission’s rules, rural carriers 

receive support based on their 

embedded costs and non-rural carriers 

receive support based on forwardlooking economic costs, as determined 

by the Commission’s cost model. 

Federal high-cost model support is 

provided to non-rural carriers in states 

where costs exceed a nationwide cost 

benchmark. After the amount of support 

available in a state is determined, that 

support is ‘‘targeted’’ to high-cost wire 

centers. Section 254(e) of the Act 

provides that carriers receiving federal 

universal service support ‘‘shall use that 

support only for the provision, 

maintenance, and upgrading of facilities 

and services for which the support is 

intended.’’ The Commission has 

previously declined to establish 

‘‘elaborate rules for compliance with 

section 254(e)’’ but, rather, has relied on 

the states, through the certification 

process, to ensure that carriers are using 

support for the purposes in which it is 

intended. Indeed, the Commission has 

stated that as long as the uses prescribed 

by the state are consistent with section 

254(e), states should have the flexibility 

to decide how carriers use support 

provided by the federal non-rural highcost mechanism. 

51. The rules for the high-cost 

program therefore do not explicitly 

address the use of high-cost funds for 

disaster relief and restoration purposes 

but, instead, codify section 254(e)’s 

requirement that carriers shall use 

universal service support only for the 

provision, maintenance, and upgrading 

of facilities and services for which the 

support is intended. Here we determine 

such costs to be a purpose for which 

high-cost support is intended. In 

addition, we find that high-cost carriers 

currently operating in the disaster area 

are coping with enormous challenges. 

More than 200,000 customer lines 

remain out of service. Carriers sustained 

significant damage to their outside plant 

facilities and switching equipment, in 

some cases losing entire central offices. 

Because commercial power is not fully 

available, many carriers continue to 

operate on back-up power. We conclude 

that these carriers are now operating in 

an area like a high-cost area. We 

conclude that a clarification of the use 

restrictions in our rules is appropriate 

given the overwhelming public interest 

in assisting those high-cost areas struck 

by the worst natural disaster in the 

nation’s history. This action does not 

provide additional support to high-cost 

carriers harmed by Hurricane Katrina 

and thus will not affect the size of the 

fund. It will, however, provide high-cost 

carriers with the flexibility to use some 

of their support to assist in disaster 

restoration. We therefore clarify that 

using high-cost support to repair and 

rebuild facilities and services damaged 

by Hurricane Katrina is consistent with 

the statutory directive contained in 

section 254(e). Alternatively, we waive 

Commission Rule 54.7 for the limited 

purposes discussed herein. To the 

extent necessary and for only the relief 

provided herein, we also forbear from 

section 254(e). 

52. Carriers getting this support 

should certify that: (1) the carrier is 

serving in the area; and (2) the carrier 

incurred substantial damage as a result 

of Hurricane Katrina. 

F. Other Issues 

53. As we note in the sections above, 

we are working within the existing 

parameters of the low-income, health 

care, E-rate, and high-cost USF 

programs. Except where noted herein, 

we expect to apply all existing processes 

and procedures to those applying for 

65860 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 

benefits. For example, schools and 

libraries would need to prepare 

technology plans, submit applications, 

and maintain documentation. Similarly, 

carriers seeking support for providing 

the supported wireless service 

consumer offering will seek 

reimbursement pursuant to the 

Commission’s existing low-income 

rules. Those programs that have caps 

specified in the Commission’s rules—

i.e., the $2.25 billion E-rate program and 

the $400 million rural health care 

program—will continue to operate 

under the existing caps and applicable 

rules. In addition, we take no steps to 

modify or change the Administrator’s 

disbursement processes. All carriers and 

service providers receiving USF monies 

remain subject to audit, and we may 

recover funds that we later determine 

were used improperly. At this time, we 

do not anticipate a need to adopt any 

specific forms because of the temporary 

nature of these support initiatives; 

parties receiving benefits are required, 

however, to maintain all documentation 

needed to verify the accuracy of their 

applications and the amount of monies 

received. Nor do we anticipate requiring 

the Administrator to revise its quarterly 

filings, although the Commission may 

require supplemental or additional 

information on an as-needed basis 

consistent with our standard operating 

procedures. We also adopt safeguards 

tailored to these temporary support 

programs, including certification 

requirements, document retention 

requirements, eligibility criteria relying 

on FEMA determinations, and audits of 

disbursed funds. 

54. On September 21, 2005, the 

Administrator filed a letter with the 

Commission, detailing certain 

implementation concerns regarding 

relief related to Hurricane Katrina. We 

note that many of the issues raised in 

that letter are addressed in the scope of 

this Order. Because we are applying the 

USF programs’ existing processes and 

procedures to these initiatives, we do 

not anticipate significant administrative 

issues to implement. We recognize, 

however, that some implementation 

issues may arise. We therefore require 

the Administrator to work with the 

Wireline Competition Bureau to resolve 

any such issues (e.g., the content of 

certifications) expeditiously. We note 

that the proposal of the E-rate 

coordinators from Alabama, Louisiana 

and Mississippi does not address 

schools and libraries affected by 

evacuees. We direct the Wireline 

Competition Bureau to coordinate with 

the E-rate coordinators of the states 

eligible for relief as a result of a 

substantial number of evacuees to 

develop review process comparable to 

that of the E-rate coordinators for 

Alabama, Louisiana and Mississippi. 

55. In this Order, we adopt a number 

of measures to safeguard the USF from 

misuse of funds. In particular, we rely 

on the FEMA disaster designation and 

application processes to determine 

eligibility for the temporary support 

initiatives, and the checks and balances 

built into FEMA’s internal controls and 

procedures to ensure parties that are 

ineligible for support are rejected. 

Similarly, we target the temporary 

support to the counties, parishes, and 

individuals that suffered the most from 

the worst natural disaster in the 

Nation’s history. We also adopt specific 

certification and document retention 

requirements pertaining to this 

temporary support. In addition, all 

beneficiaries and service providers 

receiving these monies are subject to 

potential audit, and those that receive 

more than $1 million will automatically 

be audited by the Administrator to 

ensure the funds are used for their 

intended purposes. All eligible 

telecommunications carriers, service 

providers, or beneficiaries requesting 

support under this temporary order 

shall be subject to audit or investigation 

by the Commission’s Office of Inspector 

General (‘‘OIG’’), or other authorized 

federal or state governmental agency 

and, upon request, must make available 

any documentation and records 

necessary to verify compliance with 

these rules. For the E-rate program, we 

also rely on the representations of the Erate coordinators for Alabama, 

Mississippi, and Louisiana that they 

will coordinate the application process 

to limit the potential for waste, fraud, 

and abuse, and we authorize this 

additional oversight review activity. 

Finally, this support is temporary and 

limited for the purposes specified in 

this Order. 

56. We also rely, however, on the 

existing safeguards and measures in the 

USF programs. Thus, to the extent 

recovery is sought from USF 

stakeholders, and such stakeholders do 

not make payments, they will be subject 

to our ‘‘red light’’ rule. Parties must still 

submit applications and maintain 

appropriate documentation, as required 

by the existing program rules. The 

Administrator will subject all 

applications to the normal review 

processes so that E-rate applications, for 

example, will go through the Program 

Integrity Assurance (‘‘PIA’’) review 

process and selective review procedures 

pursuant to the Administrator’s 

standard operating procedures. All 

information collection efforts, document 

retention, and certification requirements 

that normally apply to applications for 

low-income, rural health care, high-cost, 

or E-rate support will continue to apply 

for these temporary USF support 

initiatives. We recognize that we have 

already initiated a proceeding to 

examine these procedures to determine 

what additional measures can be taken 

to further safeguard the USF from waste, 

fraud, and abuse. 

57. We are committed to ensuring that 

the funds disbursed as a result of these 

temporary support initiatives are used 

for their intended purposes and that 

unscrupulous persons do not seek to 

gain from these disaster relief measures. 

Therefore, to the extent we find through 

audits or other means that funds were 

not used properly, we will require the 

Administrator to recover such funds 

through its normal processes. For the Erate program, for example, we will 

continue to apply the recovery standard 

adopted in the Schools and Libraries 

Fifth Report and Order, 69 FR 55097, 

September 13, 2004. Thus, amounts 

disbursed ‘‘in violation of the statute or 

a rule that implements the statute or a 

substantive program goal’’ will be 

recovered in full. We emphasize that we 

retain the discretion to evaluate the uses 

of USF monies and to determine on a 

case-by-case basis that waste, fraud, or 

abuse of USF monies occurred and that 

recovery is warranted. 

III. Effective Date 

58. The waivers granted herein shall 

be effective upon the release date of this 

Order. The rule modifications or 

additions adopted herein shall be 

effective upon the release date of this 

Order. Pursuant to section 553(d)(3) of 

the Administrative Procedure Act, we 

find good cause to make these rule 

modifications or additions effective 

upon release of this Order. As explained 

above, Hurricane Katrina caused 

significant damage in Alabama, 

Louisiana, and Mississippi including 

flooding in some areas of these states 

and significant property damage and 

personal injury. The rule changes 

promulgated in this Order represent a 

critical step in facilitating the Nation’s 

response to the disaster wrought by 

Hurricane Katrina. We note, moreover, 

that this Order does not mandate new 

burdens or obligations. Accordingly, no 

entity will be adversely affected by 

making the Order effective at the earliest 

possible date. We delegate authority to 

the Wireline Competition Bureau to 

work with the Universal Service 

Administrator to make the necessary 

programmatic changes to implement 

this Order. 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Rules and Regulations 65861 

59. Given the urgent need, the rules 

set forth herein shall take effect 

immediately upon release, and without 

prior public notice and comment. 

Section 553 of the Administrative 

Procedures Act (APA) permits any 

agency to implement a rule without 

public notice and opportunity for 

comment ‘‘when the agency for good 

cause finds * * * that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ Commission rules permit us to 

render an Order effective upon release 

where good cause warrants. As a general 

matter, we firmly believe that public 

notice requirements are an essential 

component of our rulemaking process. 

We find, however, that while receipt of 

public comment clearly is necessary to 

the formulation of final rules, the 

devastation caused by Hurricane Katrina 

and the need for prompt attention for 

the victims of Hurricane Katrina present 

good cause to make this Order effective 

immediately upon release of this Order. 

IV. Congressional Review Act 

60. The Commission will send a copy 

of this Order in a report to Congress and 

the Government Accountability Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A). For the 

reasons stated herein, we find good 

cause for the rule changes made by this 

Order to take effect upon the release of 

this Order, see 5 U.S.C. 808(2). 

V. Procedural Matters 

61. This Order contains new and 

modified information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. Pursuant to 5 CFR 

1320.18(d), the Office of Management 

and Budget (OMB) has granted the 

Commission a temporary waiver of the 

PRA requirements for this rulemaking. 

Accordingly, this Order will not be 

submitted to OMB for review. 

VI. Ordering Clauses 

62. Pursuant to the authority 

contained in sections 4(i), 4(j), 10, 201–

205, 214, 254, 303(r), and 403 of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i), 154(j), 

160, 201–205, 214, 254, 303(r), and 403 

this Order is adopted, and the 

temporary Order shall become effective 

immediately upon release of this Order, 

pursuant to 5 U.S.C. 408, 553(d)(3), 47 

U.S.C. 408, 553(d)(3). 

63. Pursuant to 4(i) and 251(e) of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 154(i) and 251(e), 

and §§ 1.1 and 1.3 of the Commission’s 

rules, 47 CFR 1.1 and 1.3, that our 

procedural rules relating to the 

universal service fund are waived to the 

extent herein described. 

64. Pursuant to sections 1, 4(i), 

251(b)(2), and 251(e) of the 

Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i), 

251(b)(2) and 251(e), and § 1.3 of the 

Commission’s rules, 47 CFR 1.3, that 

§ 54.603(b)(3) of the Commission’s rules 

is waived to the extent herein described. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 05–21728 Filed 10–31–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 050302053–5120–03; I.D. 

042605G] 

RIN 0648–AT38 

Fisheries Off West Coast States and in 

the Western Pacific; Pacific Coast 

Groundfish Fishery; Spiny Dogfish; 

Open Access; Routine Management 

Measure; Closure Authority 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Emergency rule and extension 

of expiration date. 

SUMMARY: This action extends an 

emergency rule, now in effect, that 

establishes routine management 

measure authority, under the Pacific 

Coast Groundfish Fishery Management 

Plan (Pacific Coast Groundfish FMP), to 

reduce trip limits to incidental levels in 

the open access fishery for groundfish 

before the sector has taken its full target 

groundfish species’ allocations, to 

minimize impacts on overfished 

species. The mechanism established by 

this action is necessary to quickly 

restrict the directed open access 

groundfish fishery if NMFS estimates 

that the incidental catch of an 

overfished species is too high. 

DATES: The amendments in this rule are 

effective November 1, 2005, through 

May 1, 2006, except for § 660.383(f), 

which is effective November 1, 2005. 

The expiration date of the emergency 

rule published on May 5, 2005 (70 FR 

23804) is extended until May 1, 2006. 

ADDRESSES: Copies of the Final 

Environmental Impact Statement (FEIS) 

for the harvest specifications and 

management measures for the 2005–

2006 groundfish fisheries are available 

from Donald McIsaac, Executive 

Director, Pacific Fishery Management 

Council (Council), 7700 NE Ambassador 

Place, Portland, OR 97220, phone: 503–

820–2280. Copies of the Record of 

Decision, final regulatory flexibility 

analysis (FRFA), and the Small Entity 

Compliance Guide for the groundfish 

harvest specifications for 2005–2006 are 

available from D. Robert Lohn, 

Administrator, Northwest Region 

(Regional Administrator), NMFS, 7600 

Sand Point Way, NE, Seattle, WA 

98115–0070. 

FOR FURTHER INFORMATION CONTACT: 

Yvonne deReynier (Northwest Region, 

NMFS), phone: 206–526–6129; fax: 206–

526–6736 and; e-mail: 

yvonne.dereynier@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This rule is accessible via the Internet 

at the Office of the Federal Register’s 

Web site at http://www.access.gpo.gov/ 

suldocs/aces/aces140.html. 

Background information and documents 

are available at the NMFS Northwest 

Region Web site at http://www/ 

nwr.noaa.gov/1sustfsh/gdfsh01.htm and 

at the Council’s Web site at http:// 

www.pcouncil.org. 

Background 

On May 5, 2005, NMFS published an 

emergency rule (70 FR 23804) 

establishing bycatch limits of 1.0 mt of 

canary rockfish and 0.6 mt of yelloweye 

rockfish for the directed open access 

fishery for groundfish. If those limits 

were estimated to be achieved inseason, 

the trip limit levels for the open access 

fishery would be reduced via NMFS 

automatic action at § 660.370(d) to a 

level that would accommodate 

incidental catch in the non-directed 

open access fishery. This emergency 

rule implemented a provision setting 

the incidental trip limit level for the 

open access fishery at 200 lb (90.7 kg) 

of groundfish per month. 

The impetus for this emergency rule 

was a high capacity freezer-longliner 

announcing its intent to join the open 

access fishery for spiny dogfish. 

Historical data indicated that traditional 

dogfish longliners operating off the 

Washington coast have had incidental 

catch of canary and yelloweye rockfish 

that concerned the agency. When 

applied to the expected catch of spiny 

dogfish by that a high-capacity vessel 

inexperienced with operating in 

northern West Coast waters, these 

bycatch rates could have jeopardized 

the optimum yields (OYs) for these