        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 64
        [WC Docket No. 17-141, CC Docket No. 96-128, WC Docket No. 16-132; FCC 17-79]
        Modernization of Payphone Compensation Rules; Implementation of the Pay Telephone Reclassification and Compensation Provisions of the Telecommunications Act of 1996; 2016 Biennial Review of Telecommunications Regulations

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:

          In this document, the Wireline Competition Bureau seeks comment on eliminating the Commission's payphone call tracking system annual audit requirement and associated reporting requirement. In light of the dramatic decline in payphone use and the high cost of compliance in proportion to payphone compensation at issue, the proposal will remove costly yet no longer necessary requirements. The Commission adopted the NPRM in conjunction with an Order waiving the 2017 and 2018 audit and associated reporting requirements while it considers the proposals in this NPRM.

          DATES:
          Comments are due on or before August 9, 2017, and reply comments are due on or before September 8, 2017. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before September 8, 2017.

          ADDRESSES:
          You may submit comments, identified by WC Docket No. 17-141, by any of the following methods:

            Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.

            Mail: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

            People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

          For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to PRA@fcc.gov and to Nicole Ongele, Federal Communications Commission, via email to Nicole.Ongele@fcc.gov.

          FOR FURTHER INFORMATION CONTACT:

          Wireline Competition Bureau, Competition Policy Division, Michele Berlove, at (202) 418-1477, michele.berlove@fcc.gov. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to PRA@fcc.gov or contact Nicole Ongele at (202) 418-2991.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WC Docket No. 17-141, adopted and released June 22, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at https://www.fcc.gov/document/modernization-payphone-compensation-rules-nprm-and-order.

        Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.

          Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/.

          Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

          People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        Synopsis
        I. Introduction
        1. In this Notice of Proposed Rulemaking (NPRM), we propose eliminating the Commission's payphone call tracking system annual audit requirement and associated reporting requirement. In light of the dramatic decline in payphone use and the high cost of compliance in proportion to payphone compensation at issue, we anticipate that our proposal will remove costly yet no longer necessary requirements.
        II. Background
        3. Section 276 of the Communications Act of 1934, as amended (the Act), which was adopted in the Telecommunications Act of 1996, directs the Commission to implement rules to ensure that payphone service providers (PSPs) are fairly compensated for all completed calls made from their payphones. Pursuant to Congress' directive, the Commission adopted rules governing payphone compensation in 1996. In doing so, the Commission noted that fair compensation to PSPs was not possible without an effective per-call tracking mechanism. It thus required that the carriers to whom coinless access code and subscriber toll-free calls are routed, known as “Completing Carriers,” “be responsible for tracking each compensable call and remitting per-call compensation to the PSP.”
        4. In 2003, the Commission revised its payphone compensation rules to require, among other things, that Completing Carriers annually must file an audit report prepared by an independent third-party auditor in order to verify ongoing compliance. Specifically, the auditor must “(1) [v]erify that no material changes have occurred concerning the Completing Carrier's compliance with the criteria of the prior year's System Audit Report; or (2) [i]f a material change has occurred . . . verify that the material changes do not affect compliance with the audit criteria set forth in paragraph (c) of this section.” Completing Carriers are required to make all documentation underlying the audit report, including working papers, available to PSPs for inspection upon request. Completing Carriers can avoid the need to comply with the audit and related requirements only by entering into alternative compensation arrangements with PSPs.
        5. Sprint and Cincinnati Bell each recently filed petitions with the Commission seeking a waiver of the annual audit requirement. The two carriers also filed comments in response to the Commission's 2016 Biennial Review Public Notice urging the Commission to consider eliminating the annual payphone call tracking system audit requirement. In both sets of pleadings, the carriers point to the tremendous decline in payphone calling, the lack of a similar decline in the cost of the annual audit, and the companies' consistent compliance with the Commission's payphone compensation rules. USTelecom, ITTA, and Puerto Rico Telephone each filed in support of the Waiver Petitions and requested that the Commission broaden the relief to encompass additional carriers.
        III. Discussion
        6. After reviewing the record in the 2016 Biennial Review proceeding, the Waiver Petitions and supporting comments, and based on our own observations of the changing communications landscape, we find that the best course is to reevaluate the necessity of the annual payphone call tracking system audit requirement and associated reporting requirement on an industrywide basis. Below, we propose to eliminate or modify this requirement and seek comment on this proposal.
        7. We propose to eliminate the annual audit requirement and associated reporting requirement embodied in section 64.1320(f) of the rules in its entirety, and we seek detailed comment on this proposal. Have circumstances changed such that the benefits of these rules in helping to ensure PSPs are fairly compensated no longer justify the costs of the rule?
        8. First, we seek comment on the assertion that the precipitous decline in payphone usage supports modernizing our compensation compliance regime by eliminating the annual audit requirement. At the peak of payphone usage in 1999, there were over 2.1 million payphones in service across the United States. Since that time, however, the rapid growth of mobile service seems to have resulted in a dramatic decline in the number of payphones in service in this country. By 2013, more than 90 percent of payphones had been disconnected, with only 192,286 remaining. Almost half of those were disconnected over the following three years, so that there were only 99,832 payphones in service at the end of 2016. Is there any reason to expect this declining trend to change in the future? We seek comment, and supporting data, on this issue.
        9. Second, we seek comment on the costs of compliance. Are Sprint and Cincinnati Bell correct that those costs have not declined over time and in fact may have increased? Is there other data or evidence establishing the costs of compliance, including evidence establishing whether those costs have increased or decreased over time? Is it the case that the costs of compliance have not declined at the same pace as the payphone business such that over time the compliance costs per payphone and per payphone call have increased?
        10. Third, we seek comment on the amount of payphone compensation that Completing Carriers pay relative to the cost of compliance. Not surprisingly, in light of declining payphone usage, the amount of compensation paid to PSPs has likewise significantly declined over time. ITTA asserts that the amount of payphone compensation paid each year has declined even more across the industry than the 97 percent decline seen by Cincinnati Bell. According to Cincinnati Bell, the annual audit cost is currently five times the amount of payphone compensation it pays annually, while Sprint projects that the cost of its annual audit will be approximately 15 percent of payphone compensation paid in 2016. We encourage commenters to provide similarly specific information. How has compensation paid to PSPs relative to the costs of compliance changed since the rule was adopted? How should we evaluate whether the audit costs relative to payphone compensation are too high? Is comparison with total payphone compensation relevant, or should we compare the costs of compliance against some other value(s)? For instance, should the costs of compliance be compared against the likely benefits of avoiding incorrect compensation payments? We believe that the existing evidence about audit costs relative to payphone compensation suggests the costs of the rule now outweigh the benefits, and we seek comment on this analysis.

        11. Fourth, we seek comment on whether section 64.1320(f) is still necessary to ensure compliance with the underlying payphone compensation requirements. What effect would elimination of this annual audit and associated reporting requirement have on Completing Carriers' compliance with our rules regarding compensation to PSPs, including, among other things, requirements to maintain a system for accurately tracking coinless access code or subscriber toll-free payphone calls to completion; to provide a quarterly sworn statement from the company's Chief Financial Officer; and, to provide quarterly reports to PSPs that contain information for identifying compensable and noncompensable calls? Importantly, relieving Completing Carriers of the audit requirement would not relieve them of their obligation to ensure that they are compensating PSPs for all compensable calls. Payphone compensation compliance issues occurred in years past, but we believe that those issues are no longer apparent. Indeed, no formal payphone compensation-related complaints have been brought to the Commission's attention since 2010, and the last informal dispute of which we are aware occurred almost four years ago. Are there any specific, recent examples of failure to appropriately compensate PSPs for coinless access code and subscriber toll-free calls originating from their payphones? Is ITTA correct that “most long-distance providers use a clearinghouse . . . to process quarterly payments to PSPs” and that the clearinghouses used by PSPs “have effective investigation and dispute resolution processes in place to address any disparities between Completing Carrier and PSP data that may arise,” and if so does the prevalence of such clearinghouses support repeal of the audit requirement? Is the infrequency of complaints, disputes, and disparities related to the existence of the audit requirement? If not, should we expect the frequency of such problems to change if we eliminate the audit requirement, or would the remaining safeguards be sufficient? If eliminating the audit requirement would increase such problems (e.g., failure to adequately compensate PSPs), we seek estimates of the likely annual costs the relevant parties would incur to resolve those increased problems or bounds around those costs.
        12. Finally, we do not believe that the option under our rules to enter into an alternative compensation agreement with each PSP, which thus removes the need to conduct an annual audit, is an economically feasible alternative. We believe that Sprint, Cincinnati Bell, and USTelecom are correct that the transaction costs of negotiating, implementing, and managing such alternative compensation arrangements with numerous PSPs would outweigh the amount of compensation to be paid. Consequently, the availability of this option under our rules appears to provide no basis to justify retention of the audit requirement. We seek comment on this issue.
        13. Alternatives. We propose simply eliminating the audit requirement and associated reporting requirement. In the alternative, should we instead eliminate the requirement but adopt some less burdensome requirement, such as a self-certification, as Sprint and Cincinnati Bell each offer to provide in lieu of the annual audit? If so, what form would such a self-certification take? Would it be sufficient for a Completing Carrier to self-certify that there have been no material changes to its payphone call tracking system, or would it also need to self-certify that there have been no changes to its network that affect the functioning or accuracy of the tracking system? Could such an annual self-certification replace the section 64.1310(a)(3) quarterly sworn statement from the CFO? If we retain the requirement of a quarterly sworn statement, we seek comment on whether we should revise the requirement to allow certification by a company official other than the company's CFO, and, if so, which officials.
        14. Additional Reforms. Finally, we seek comment on whether the changing communications landscape since 2003 warrants additional changes to our rules governing the payphone compensation process. For example, does section 64.1320(a)'s initial payphone call tracking system audit requirement, and the attendant requirements set forth in sections 64.1320(b)-(e) and (g), remain relevant today? Do new carriers still occasionally become Completing Carriers such that we should retain this requirement? How often do PSPs or clearinghouses request underlying documents pursuant to section 64.1320(g)? Are all of the remaining requirements imposed by these rules still warranted to protect PSPs' right to full compensation for coinless access code and subscriber toll-free calls originating from their payphones? Can some of these requirements be streamlined or eliminated while still affording full protection to PSPs, and if so, how?
        15. In proposing to modernize specific part 64 subpart M requirements herein, we note that other subsections regarding the provision of payphone service were intended to apply solely on an interim basis and their terms have long since expired. For example, sections 64.1301(a)-(c) set forth interim per-payphone compensation provisions that applied only from November 7, 1996 through October 6, 1997. Similarly, section 64.1301(d) set forth intermediate per-payphone compensation provisions that applied only from October 7, 1997 through April 20, 1999. We believe sections 64.1301(a)-(d), by their terms, no longer apply to any entity and can be eliminated. We further seek comment on whether additional provisions of part 64 subpart M that we have not specifically identified may similarly have expired and no longer apply to any entity, and if so, can be eliminated.
        IV. Initial Regulatory Flexibility Analysis

        16. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rule Making (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of this NPRM. The Commission will send a copy of this NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        A. Need for, and Objectives of, the Proposed Rules
        17. The NPRM proposes to eliminate a burden on carriers responsible for completing coinless access and subscriber toll-free calls originating from payphones (Completing Carriers). The changing communications landscape has altered the balance of cost to Completing Carriers versus benefit to payphone service providers. Thus, the Commission seeks comment on a proposal to eliminate the annual payphone call tracking system audit and associated reporting requirement embodied in section 64.1320(f) of the Commission's rules, whether there are other steps the Commission might take to ease the burden on Completing Carriers, and if certain subsections of part 64 subpart M have expired and can be eliminated.
        B. Legal Basis
        18. The proposed action is authorized under sections 1, 2, 4(i), 11, and 276 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 161, 276.
        C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

        19. The RFA directs agencies to provide a description and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and by the rule revisions on which the NPRM seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
        20. The proposal on which we seek comment in the NPRM will affect obligations on facilities-based carriers responsible for completing coinless access code and subscriber toll-free calls originating from payphones, including incumbent LECs, competitive LECs, and interexchange carriers.
        1. Total Small Entities
        21. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data published in 2012 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.
        2. Wireline Providers
        22. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.
        23. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined above. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. The Commission therefore estimates that most providers of local exchange carrier service are small entities that may be affected by the rules adopted.
        24. Incumbent LECs. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined above. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. Three hundred and seven (307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees.
        25. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined above. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Also, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, based on internally researched FCC data, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.

        26. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.
        27. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined above. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicates that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of IXCs are small entities that may be affected by our proposed rules.
        28. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by our proposed rules.
        29. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers as defined above. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees. Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to internally developed Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities that may be affected by rules adopted pursuant to the NPRM.

        30. Payphone Service Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to payphone service providers (PSPs). The closest applicable definition under the SBA rules is for Wired Telecommunications Carriers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's Form 499 Filer Database, 1100 PSPs reported that they were engaged in the provision of payphone services. The Commission does not have data regarding how many of these 1100 companies have 1,500 or fewer employees. The Commission does not have data specifying the number of these payphone service providers that are not independently owned and operated, and thus is unable at this time to estimate with greater precision the number of PSPs that would qualify as small business concerns under the SBA's definition. Consequently, the Commission estimates that there are 1100 or fewer PSPs that may be affected by the rules.
        31. Prepaid Calling Card Providers. The SBA has developed a definition for small businesses within the category of Telecommunications Resellers. Under that SBA definition, such a business is small if it has 1,500 or fewer employees. According to the Commission's Form 499 Filer Database, 500 companies reported that they were engaged in the provision of prepaid calling cards. The Commission does not have data regarding how many of these 500 companies have 1,500 or fewer employees. Consequently, the Commission estimates that there are 500 or fewer prepaid calling card providers that may be affected by the rules.
        3. Wireless Providers—Fixed and Mobile
        32. For wireless services subject to auctions, we note that, as a general matter, the number of winning bidders that claim to qualify as small businesses at the close of an auction does not necessarily represent the number of small businesses currently in service. Also, the Commission does not generally track subsequent business size unless, in the context of assignments and transfers or reportable eligibility events, unjust enrichment issues are implicated.
        33. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.
        34. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
        35. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions.
        36. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted, the SBA has developed a small business size standard for Wireless Telecommunications Carriers (except Satellite). Under the SBA small business size standard, a business is small if it has 1,500 or fewer employees. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, a little less than one third of these entities can be considered small.
        4. All Other Telecommunications

        37. “All Other Telecommunications” is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, we estimate that the majority of All Other Telecommunications firms are small entities that might be affected by our action.
        D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        38. The NPRM proposes and seeks comment on a rule change that will affect reporting, recordkeeping, and other compliance requirements. We expect the rule revision proposed in the NPRM to reduce reporting, recordkeeping, and other compliance requirements. The rule revision should have a beneficial reporting, recordkeeping, or compliance impact on small entities because all carriers will be subject to fewer such burdens. This change is described below.
        39. The NPRM proposes to eliminate section 64.1320(f) of the Commission's rules and, thus, the annual payphone call tracking system audit and associated reporting requirement. Should the Commission adopt this proposal, such action would result in reduced reporting, recordkeeping, or other compliance requirements for Completing Carriers, as that term is defined in section 64.1300(a) of the Commission's rules.
        E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered
        40. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

        41. The Commission proposes to eliminate the annual payphone call tracking system audit requirement for Completing Carriers. The Commission believes that its proposal upon which the NPRM seeks comment will benefit all carriers, regardless of size. The proposal would further the goal of reducing unnecessary regulatory burdens on affected carriers. We anticipate that a more modernized regulatory scheme with the associated reduction in compliance costs will allow carriers to invest their resources elsewhere to the benefit of consumers.
        F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
        42. None.
        V. Procedural Matters
        A. Ex Parte Rules

        43. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with Rule 1.1206(b). In proceedings governed by Rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        B. Initial Regulatory Flexibility Analysis

        44. Pursuant to the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this NPRM. The text of the IRFA is set forth above. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.
        C. Paperwork Reduction Act

        45. This document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
        D. Filing of Comments and Reply Comments

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

          Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/.

          Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
        Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

         All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
         Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
         U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

          People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        E. Contact Person

        47. For further information about this proceeding, please contact Michele Berlove, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C313, 445 12th Street SW., Washington, DC 20554 (202) 418-1477, Michele.Berlove@fcc.gov.

        VI. Ordering Clauses
        48. Accordingly, it is ordered that, pursuant to the authority contained in sections 1-4, 11, and 276 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 161, 276, this Notice of Proposed Rulemaking is adopted.
        49. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subjects in 47 CFR Part 64
          Common Carriers, Communications, Telecommunications, Telephone.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary.

        Proposed Rules
        For the reasons set forth in the preamble, the Federal Communications Commission proposes to amend CFR part 64 as follows:

          PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

        1. The authority citation for part 64 continues to read as follows:

          Authority:
          47 U.S.C. 154, 225, 254(k); 403(b)(2)(B), (c), 715, Pub.L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub.L. 112-96, unless otherwise noted.

          § 64.1320
          [Amended]

        2. In § 64.1320, remove paragraph (f).

      [FR Doc. 2017-14256 Filed 7-7-17; 8:45 am]
       BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; 90-day Finding and Commencement of Status Review for a Petition To List the Lower Kootenai River Burbot as Threatened or Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list lower Kootenai River burbot (Lota lota) as an endangered or threatened species pursuant to the Endangered Species Act of 1973, as amended. We find that the petition presents substantial scientific or commercial information indicating that listing the lower Kootenai River burbot may be warranted. We are initiating a status review to determine if listing this population is warranted.

          DATES:
          The finding announced in this document was made on September 14, 2001. To be considered in the 12-month finding for this petition, information and comments should be submitted to us by November 27, 2001.

          ADDRESSES:
          Information, comments, or questions concerning this petition should be submitted to the Supervisor, Upper Columbia River Basin Field Office, U.S. Fish and Wildlife Service, 11103 E. Montgomery Drive, Spokane, Washington 99206. The petition finding, supporting data, and comments are available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Scott Deeds at the above address or telephone (509) 893-8007.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species, or to revise a critical habitat designation, presents substantial scientific or commercial information to demonstrate that the petitioned action may be warranted. To the maximum extent practicable, we make this finding within 90 days of receipt of the petition and publish the finding promptly in the Federal Register. If we find that substantial information was presented, we are required to promptly commence a review of the status of the species involved. After completing the status review, we will issue an additional finding (the 12-month finding) determining whether listing is in fact warranted.

        On February 7, 2000, we received a petition, dated February 2, 2000, from American Wildlands and the Idaho Conservation League requesting the emergency listing of Kootenai River burbot (Lota lota) in Idaho as endangered and the designation of critical habitat concurrent with the listing. Accompanying the petition was supporting information relating to taxonomy, ecology, biology, threats, and past and present distribution.

        The petitioners requested listing for the Kootenai River burbot that occur only in Idaho; however, we believe that a consideration of an ecologically based delineation of the population is needed. Our analysis addressed a population of burbot that is potentially isolated in the lower Kootenai River, but has the ability to freely migrate between Kootenai Falls in Montana and Kootenay Lake in British Columbia. In all further references to burbot in this potentially isolated portion of the Kootenai basin in Montana, Idaho, and British Columbia, we identify this fish as the lower Kootenai River burbot.
        Burbot, also referred to as eelpout or ling, were first described in Europe by Linnaeus in 1758 (American Fisheries Society 1991). They are a cold-water, bottom-dwelling species and the only freshwater member of the otherwise marine cod family (Gadidae). Burbot are extremely elongate or eel-like with marbled body coloration from dark olive to brown on the back contrasted with brown or black; the sides are lighter than the back; and the belly is yellowish white (Simpson and Wallace 1982). Burbot have a distinguishing single slender barbel on the chin. In the lower Kootenai River, burbot can weigh up to 4.5 kilograms (10 pounds) and live up to 15 years (Vaughn Paragamian, Idaho Department of Fish and Game, pers. comm. 2000; Burbot Recovery Strategy [BRS], in draft).

        Burbot distribution is circumpolar. In North America, the historic range includes a majority of mainland Canada and several northern States from coast to coast (Scott and Crossman 1973; Simpson and Wallace 1982). Burbot that occur in the Kootenai River basin exhibit three life history strategies in several potentially isolated groups. The burbot that constitute the lower Kootenai River population spend a portion of their life in the South Arm of Kootenay Lake, and then migrate up the Kootenai River during the winter months to spawn in the mainstem river or tributary streams in British Columbia or Idaho (an adfluvial life form, i.e., one that migrates from lake to river and tributary streams for spawning). Kootenai Falls in Montana, present for approximately 10,000 years, physically isolates this population of burbot from the population that occurs above the falls (Paragamian et al. 1999). Burbot above the falls are believed to spend their entire lives in the river system (a fluvial life form, i.e., one that spends its entire life in the river or migrates from river to tributary streams for spawning). A burbot population also exists in Lake Koocanusa, a reservoir formed when Libby Dam was constructed near Libby, Montana, in the early 1970s. In the North Arm of Kootenay Lake is a remnant population of burbot that is believed to spend its entire life cycle within the lake ecosystem (lacustrine life form). A lacustrine population was also known to spawn in the West Arm of Kootenay Lake, but is now believed to be extirpated. Mixing is not believed to currently occur among any of these potentially isolated populations (Paragamian, pers. comm. 2000).

        Genetic studies support the belief that the adfluvial burbot that occur in Kootenay Lake and Kootenai River in Idaho and British Columbia constitute the same population, and that they are genetically dissimilar and separate from the burbot above Kootenai Falls (Paragamian et al. 1999). Tagging and telemetry studies performed on burbot from Kootenay Lake and the Kootenai River in Idaho and British Columbia also support the conclusion that these fish are likely of the same population (Paragamian 1995a). In addition, none of the more than 400 burbot that have been tagged above Kootenai Falls have ever been documented moving downstream into Idaho or British Columbia (Paragamian et al. 1999).
        Under natural conditions, burbot in the Kootenai River basin spawn under ice during the winter months in water temperatures below 4° C (39° F) (Simpson and Wallace 1982). The burbot of the lower Kootenai River that spawn in Idaho generally begin migrating up the Kootenai River in November and travel up to 120 kilometers (75 miles) to traditional spawning sites (Paragamian, in draft). Spawning commences in early February and lasts 2 to 3 weeks, as both gamete maturation and arrival to spawning sites are highly synchronous (Arndt and Hutchison, in draft; Eveson, in draft).
        Most information suggests that river spawning burbot prefer low velocity areas in main channels or in side channels behind deposition bars, with the preferred substrate consisting of fine gravel, sand, or silt (Fabricius 1954 in McPhail and Paragamian, in draft; McPail and Paragamian, in draft). Spawning is also known to occur in small tributary streams and is generally believed to take place at night (Simpson and Wallace 1982; McPhail and Paragamian, in draft).
        Female burbot are larger than males and, depending on their size, may produce between 50,000 and 1,500,000 eggs (Simpson and Wallace 1982). Male burbot typically reach sexual maturity in 3 to 4 years, with females maturing in 4 to 5 years (BRS, in draft). During spawning, burbot typically collect in a large mass referred to as a spawning ball, with one or more females in the center surrounded by many males (Simpson and Wallace 1982; McPhail and Paragamian, in draft). There is no site preparation during spawning, and eggs are broadcast into the water column well above the substrate. The eggs are semi-buoyant and eventually settle into cracks in the substrate. Newly hatched burbot drift passively in open water until they develop the ability to swim (McPhail and Paragamian, in draft). Young burbot initially select shoreline areas among rocks and debris for feeding and habitat security.
        Burbot prefer cold water and, during summer months, move to the hypolimnion (lower zone of a thermally stratified lake) areas of lakes or deep water pools of large rivers (Simpson and Wallace 1982). Feeding is mostly done at night, with adult burbot feeding almost exclusively on fish. Young burbot feed on a variety of aquatic organisms, such as insects, amphipods, snails, and small fish (Simpson and Wallace 1982). Burbot are most active in the winter when they move great distances to spawn, but are rather sedentary during the non-spawning seasons.
        In accordance with our distinct population segment (DPS) policy (61 FR 4721), three elements must be considered in decisions regarding the status of a possible DPS as endangered or threatened under the Act: (1) discreteness of the population segment in relation to the remainder of the taxon to which it belongs; (2) significance of the population segment in relation to the remainder of the taxon; and (3) conservation status of the population segment in relation to the Act's standards for listing. Criteria for all three elements must be satisfied to list a DPS.

        Discreteness refers to the separation of a population segment from other members of the taxon based on either (1) physical, physiological, ecological, or behavioral factors; or (2) international boundaries that result in significant differences in control of exploitation, habitat management, conservation status, or regulatory mechanisms. Lower Kootenai River burbot may be discrete in that (1) they are physically isolated from other burbot in the Kootenai River by a natural barrier (Kootenai Falls) and unsuitable habitats between the two populations below the falls, and are believed to be behaviorally isolated from those that occur in the North Arm of Kootenai Lake; (2) they are genetically distinct from burbot above Kootenai Falls (Paragamian et al. 1999); and (3) they may be ecologically isolated in that they have a different life history (adfluvial) than those above the falls (fluvial) and in the lake (lacustrine).

        Significance refers to the biological and ecological importance or contribution of a discrete population to the species throughout its range. Examples of significance criteria used in our DPS analysis for burbot in the lower Kootenai River basin include (1) persistence of the discrete population segment in a unique or unusual ecological setting; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of the taxon that may be more abundant elsewhere as an introduced population outside of its historic range; or (4) evidence that the discrete segment differs markedly from other populations in its genetic characteristics (61 FR 4721). Lower Kootenai River burbot may be significant in that (1) the loss of this potentially isolated population may cause a significant gap in its range in the U.S., as well as eliminate their only occurrence in Idaho; and (2) they differ genetically from burbot that occur upstream of Kootenai Falls in Montana (Paragamian et al. 1999).

        The lower Kootenai River once supported a significant number of burbot and provided an important winter fishery to the region. Although declines in burbot numbers in Idaho and British Columbia had been documented as early as 1959, they were still considered relatively stable through the 1960s. Despite fishery regulations implemented in the 1970s, the burbot fisheries in the Idaho and British Columbia portion of the basin collapsed after the construction of Libby Dam in 1972. Only 145 adult burbot have been captured in the Kootenai River in Idaho and British Columbia since 1993 (Paragamian et al. 1999). Spawning was known to occur in many tributary streams in Idaho and likely occurred in the river (BRS, in draft). However, recent studies reveal scant evidence of burbot reproduction in Idaho, as no larval fish and only one juvenile fish have been captured since 1993 (Paragamian and Whitman 1999). Currently, the only tributary known to support spawning burbot is the Goat River, which is just north of the Idaho border in British Columbia (Paragamian 1995a; Paragamian, in draft).
        Prior to the collapse of the lower Kootenai River burbot population in the 1970s, anglers reported catching more than 40 burbot a night during the winter using setlines. It was estimated that the annual harvest for the sport and commercial fishery was in the tens of thousands of kilograms or several thousand fish annually (BRS, in draft; Paragamian, pers. comm. 2000). However, the annual harvest of burbot between 1979 and 1983 was estimated at about 250 fish. In Kootenay Lake, the harvest of burbot in 1969 and 1970 was estimated to be 25,000 and 20,000 fish, respectively (BRS, in draft). These estimates represent harvest levels throughout Kootenay Lake and include the adfluvial and lacustrine lifeforms. Concurrent with the decline of burbot in Idaho was the decline in British Columbia and, despite numerous harvest regulations implemented in both Idaho and British Columbia, burbot continued to decline and both fisheries were closed in the 1990s.
        The earliest record of burbot sampling by the Idaho Department of Fish and Game (IDFG), from the winter of 1957-58, showed that 199 burbot were collected with only a few days worth of effort (Partridge 1983; Paragamian, pers. comm. 2000). The nets were reported to be full of both young and adult fish. From 1979 to 1983, IDFG personnel captured 108 burbot. They concluded that the abundance of burbot was substantially less than in the 1950s, as the effort in 1979 (8 burbot captured) was similar to that in 1957-58 (199 burbot captured). In 1993, IDFG personnel began a follow-up study to determine the abundance, distribution, reproductive success, movement, and possible limiting factors on the population in the lower Kootenai River. Extensive sampling effort over the last 7 years has resulted in the capture of only 145 adult burbot at a rate of approximately 1 burbot per 30 net days of sampling (Paragamian pers. comm. 2000)

        Declines in lower Kootenai River burbot appear to be most strongly associated with habitat modification resulting from the construction and operation of Libby Dam (Paragamian 1993; Paragamian et al. 1999). Temperature and flow changes that alter spawning patterns and poor fry survival due to a reduction in food productivity in the river are believed to be the primary threats to burbot (Paragamian 1993; Paragamian and Whitman 1998; Paragamian et al. 1999).
        Libby Dam was built for power production and flood-water control in the early 1970s. Consequently, the seasonal characteristics of water flow and velocity of the Kootenai River have changed markedly. During the winter, flows are now 300 percent higher than natural levels (Paragamian, in draft). Paragamian (in draft) reported that as a result of power production peaking within any given day, discharge from Libby Dam can range from 113 to 765 cubic meters per second, depending on power demand. Prior to the construction of Libby Dam, the natural conditions of the lower Kootenai River in Idaho and British Columbia during winter months were relatively stable, with flows ranging from roughly 125 to 200 cubic meters per second. With wintertime flows being more erratic and greatly increased as a result of power peaking and flood control, the spawning migration of burbot is disrupted. This disruption is believed to reduce spawning fitness, stamina, and spawning synchrony, as well as gamete maturation (Paragamian, in draft).
        Many studies (e.g., Paragamian 1995a; Paragamian, in draft) since 1993 have determined that burbot movement up the Kootenai River during the pre-spawning migration is significantly greater during low flow test periods (113 cubic meters per second), which were designed to replicate pre-dam conditions, than when Libby Dam is being operated for normal water management and power production (383 to 510 cubic meters per second). The studies showed that once discharge was increased to 510 cubic meters per second after the test periods, burbot drifted back to where they were previously or even further downstream (Paragamian 1995a; Paragamian, in draft).

        Laboratory studies have shown that even the largest burbot cannot maintain their position for more than 10 minutes in current velocities greater than 24 centimeters per second (Jones et al. 1974). Paragamian (1995b) determined that a discharge velocity of 24 centimeters per second in the lower Kootenai River near Copeland, Idaho, occurs when the discharge is approximately 255 cubic meters per second, indicating that when flows are greater than this, burbot may have difficulty maintaining their position or moving upstream.

        In addition to flow change, winter water temperature has increased by 2 to 3°C (4 to 5 °F) since the construction of Libby Dam. This temperature increase is believed to influence the activity level and location of burbot during the pre-spawn migration. Prior to the construction of Libby Dam, many portions of the lower Kootenai River would freeze allowing burbot to spawn under ice in water temperatures between 1 and 3 °C (34 and 37 °F) (Becker 1983 in Paragamian 1995a). Lower Kootenai River temperatures are now 4 to 5 °C (39 to 41 °F) during the winter months and many sections no longer freeze over (Paragamian 1995a). It has also documented that once burbot did ascend the Kootenai River to spawning areas in Idaho, it was after the spawning season, and water temperatures were warmer (7 °C (45 °F)) than burbot prefer for spawning. In addition, behavior indicative of spawning was not documented. Paragamian (1995b) concluded that the prolonged travel time for ripe burbot and the disparity between prevailing water temperatures and preferred spawning temperatures may preclude spawning in Idaho. Since 1994, the examination of five female and ten male burbot (all mature) caught shortly after the spawning season in the spring has indicated all were unspawned (Paragamian, pers. comm. 2000).

        The decline in the productivity of the Kootenai River and in Kootenay Lake following the construction of Libby Dam may also be linked to the decline of burbot. Sediment nutrients settle behind Libby Dam in Lake Koocanusa and reduce the nutrient loading to the river. Analyses of macrozooplankton in the lower Kootenai River indicated that there is a scarcity of important foods such as Daphnia, Diaphanosoma, and Cyclops (Paragamian 1995b).
        Considering the available information, the lower Kootenai River burbot may be discrete and significant. In addition, the extensive information regarding the population's conservation status, suggests that the lower Kootenai River burbot may satisfy the criteria for listing as a DPS.
        We have reviewed the petition and other available information, including published and unpublished agency reports, and information from our files. On the basis of this review, we find that there is sufficient information to indicate that listing the lower Kootenai River burbot as a threatened or endangered species may be warranted. Declines in lower Kootenai River burbot have been most strongly associated with the construction and operation of Libby Dam since the early 1970s. Discharges at the dam for power production and flood control have caused winter flows to increase by 300 percent. Increased water temperatures and decreased food productivity may also be factors associated with the dramatic decline of burbot. While regulatory mechanisms are in place to protect burbot from harvest in the Kootenai River in Idaho and British Columbia, and Kootenay Lake, no conservation efforts currently appear to be recovering the lower Kootenai River burbot population.
        In the information provided, the petitioners state that the lower Kootenai River burbot are at significant risk and near demographic extinction, and requested that we protect them through emergency listing. We may issue an emergency rule when an immediate threat poses a significant risk to the well-being of a species. Although the lower Kootenai River burbot appear to be in danger of extirpation, we do not believe that the threats are so great that extirpation is imminent. Upon receiving the petition, we reviewed the available information to determine if the existing and foreseeable threats posed an emergency. Consequently, we determined that an emergency listing was not warranted at this time, and we sent a letter to the petitioners on April 7, 2000, documenting this decision. However, if at any time we determine that emergency listing of lower Kootenai River burbot is warranted, we would seek to initiate an emergency listing. The petitioners also requested that critical habitat be designated for this species. The designation of critical habitat is not an action that may be petitioned under the Act. However, if the 12-month finding determines that listing the lower Kootenai River burbot is warranted, then the designation of critical habitat would be addressed in the subsequent proposed rule.
        Public Information Solicited
        When we make a finding that substantial information exists to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on burbot throughout the entire Kootenai River basin. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning the status of lower Kootenai River burbot. We are seeking information regarding historic and current distribution, habitat use and habitat conditions, biology and ecology, ongoing conservation measures for the population and its habitat, and threats to the population and its habitat. In addition, we request information relating to the designation of critical habitat for burbot in the lower Kootenai River.
        Of particular interest is information regarding whether the lower Kootenai River burbot satisfies the criteria for listing as a DPS. This includes information on the discreteness and significance of the population segment. Discreteness is the separation of a population segment from other members of the taxon based on either (1) physical, physiological, ecological, or behavioral factors; or (2) international boundaries that result in significant differences in control of exploitation, habitat management, conservation status, or regulatory mechanisms. The significance of the population segment refers to the biological and ecological importance or contribution of a discrete population to the species throughout its range. For additional information concerning the listing of DPSs under the Act, please refer to our DPS policy (February 7, 1996; 61 FR 4721).
        If you wish to comment, you may submit your comments and materials concerning this finding to the Supervisor, Upper Columbia River Basin Field Office, U.S. Fish and Wildlife Service, 11103 E. Montgomery Drive, Spokane, Washington, 99206. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold their home address, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
        References Cited

        A complete list of all references cited herein is available on request from the Upper Columbia River Basin Field Office (see ADDRESSES section).
        Author
        The primary author of this document is Scott Deeds, U.S. Fish and Wildlife Service, 11103 E. Montgomery Drive, Spokane, Washington, 99206.
        Authority

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

          Dated: September 14, 2001.
          David B. Allen,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 01-23913 Filed 9-27-01; 8:45 am]
      BILLING CODE 4310-55-P