        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 64
        [CC Docket Nos. 00-257 and 94-129; FCC 00-451]
        2000 Biennial Regulatory Review—Review of Policies and Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Notice of proposed rule.

          SUMMARY:
          In this document, the Commission proposes modifications to its carrier change authorization and verification rules in situations when a telecommunications carrier sells or transfers its subscriber base to another carrier. The Commission proposes and seeks comment on expedited procedures for handling the sale or transfer of subscribers that will adequately protect consumers as a part of its biennial regulatory review.

          DATES:

          Comments are due on or before February 20, 2001 and reply comments are due on or before March 1, 2001. Written comments by the public on the proposed and/or modified information collections discussed in this Third Further Notice of Proposed Rulemaking (FNPRM) are due on or before February 20, 2001. Written comments by the Office of Management and Budget (OMB) on the proposed and/or modified information collections are due on or before March 30, 2001.

          ADDRESSES:
          Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Secretary, a copy of any comments on the information collection(s) contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to jboley@fcc.gov and to Edward C. Springer, OMB Desk Officer, 10236 NEOB, 725 17th Street, NW., Washington, DC 20503, or via the Internet to vhuth@omb.eop.gov. Parties should also send three paper copies of their filings to Sheryl Todd, Accounting Policy Division, Common Carrier Bureau, Federal Communications Commission, 445 12th Street, SW., Room 5-B540, Washington, DC 20554. Parties who choose to file by paper should also submit their comments on diskette. These diskettes should be submitted to Sheryl Todd, Accounting Policy Division, Common Carrier Bureau, Federal Communications Commission, 445 12th Street, SW., Room 5-B540, Washington, DC 20554. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20037.

          FOR FURTHER INFORMATION CONTACT:
          William Cox, Attorney, Common Carrier Bureau, Accounting Policy Division, (202) 418-7400.

        SUPPLEMENTARY INFORMATION:
        This is a summary of the Commission's Third Further Notice of Proposed Rulemaking in CC  Docket Nos. 00-257 and 94-129 released on January 18, 2001. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.
        This FNPRM contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding.
        Paperwork Reduction Act
        The FNPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection(s) contained in this FNPRM, as required by the PRA, Public Law 104-13. Public and agency comments on the proposed and/or modified information collections discussed in this FNPRM are due on or before February 20, 2001. Written comments by the Office of Management and Budget (OMB) on the proposed and/or modified information collections are due on or before March 30, 2001.
        Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

          OMB Control Number: None.

          Title: Proposed Rules Governing the Sale or Transfer of Subscriber Base to Another Carrier.

          Form No.: N/A

          Type of Review: Proposed new collections.

          Respondents: Business or other for-profit.

            Title
            Number of respondents

            Est. time per response
            Total annual burden

            1. Proposed Pre-Transfer Subscriber Notification
            75
            6
            450

            2. Proposed Post-Transfer Subscriber Notification
            75
            3
            225

            3. Proposed Pre-Transfer Notification and Certification To Commission
            75
            1
            75

          Total Annual Burden: 750.

          Cost to Respondents: $0.

          Needs and Uses: The Commission proposes modifications to its carrier change authorization and verification rules in situations when a telecommunications carrier sells or transfers its subscriber base to another carrier. The Commission proposes and seeks comment on expedited procedures for handling the sale or transfer of subscribers that will adequately protect consumers as a part of its biennial regulatory review. The information will be used to implement Section 258 of the Act. This information will expedite procedures for handling the sale or transfer of subscribers, while adequately protecting consumers.
        Synopsis of FNPRM
        I. Introduction
        1. In this Third Further Notice of Proposed Rulemaking, we propose modifications to our carrier change authorization and verification rules in situations when a telecommunications carrier sells or transfers its subscriber base to another carrier. We propose and seek comment on expedited procedures for handling the sale or transfer of subscribers that will adequately protect consumers as a part of our biennial regulatory review.
        II. Discussion
        2. Our carrier change authorization and verification requirements were adopted to protect consumers from fraudulent activities. We believe that the process of seeking a waiver of the authorization and verification requirements potentially is burdensome to carriers seeking to sell or acquire customer accounts. Given the dynamic marketplace, and the likelihood that carriers will continue to buy, sell, and transfer customer lines in the future, we think it is time to reexamine our rules in this limited situation to ensure that we do not inadvertently inhibit routine business transactions. In conjunction with our biennial regulatory review effort, we propose to modify the authorization and verification requirements of the Commission’s carrier change rules to reduce regulatory burdens in situations involving the purchase or transfer of customer lines, while adequately protecting consumers. We invite comment on whether the Commission's carrier change authorization and verification rules should be amended to provide a streamlined procedure for carriers desiring to transfer the presubscribed customers of another carrier to their own customer bases.
        3. We tentatively conclude that the following principles should underlie any expedited procedures for handling the sale or transfer of a subscriber base. First, the affected subscribers should receive reasonable advance notice of the carrier change associated with the sale or transfer. Second, we believe that subscribers should be told that they have the right to make another preferred carrier selection, if alternative carriers are available, and of the charges, rates, terms, and conditions they may expect when they are moved from one carrier to another as a result of the sale or transfer of a subscriber base. Finally, we believe that it is in the public interest for the Commission to receive notice prior to the sale or transfer of a subscriber base. The Commission will be better able to ensure that consumer interests will be protected if it has advance knowledge of such transactions. We seek comment on these tentative conclusions.
        4. We propose the following expedited process for the sale or transfer of subscriber bases. We seek comment on whether to amend § 64.1120 of our rules to eliminate the need for authorization and verification of a carrier change to effect any sale or transfer of a subscriber base, provided that, not later than 30 days before the closing of the transaction, the acquiring carrier gives each affected subscriber written notice of the following information: (1) The acquiring carrier will be the new provider of telecommunications service for the subscriber; (2) the rates, terms, and conditions of the services offered by the purchasing carrier; (3) no carrier change charges will be imposed as a result of the transaction; and (4) the subscriber has the right to select a different preferred carrier. We also seek comment on whether to require the acquiring carrier to provide each subscriber with another written notice reiterating this information after the transfer has occurred. Insofar as these notices directly affect the provision of a subscriber's telephone service, we seek comment on the need for acquiring carriers to provide these notices in accessible formats to people who are blind or visually impaired. In addition, we seek comment on whether to require the acquiring carrier to notify the Commission of a sale or transfer not later than 30 days before the closing of the transaction and to certify its compliance with the Commission's rules and any outstanding Commission order, including the provision of reasonable notice to the affected customers regarding the transaction and the customers' subsequent rights. We seek comment on whether 30 days is the appropriate length of time for notifying subscribers and/or certifying compliance with Commission requirements. We also invite comment on whether such certification should include copies of sample notification letters. We seek comment on these proposals and any other alternative proposals that would minimize regulatory burdens, while adequately protecting consumers.
        5. We ask commenters to address whether this proposed expedited process properly balances our obligation under section 258 to protect subscribers from the unauthorized change of their preferred carrier with the goal of ensuring that our rules do not unnecessarily impede marketplace transactions involving the sale or transfer of customer lines or accounts from one carrier to another. We also invite parties to comment on whether notice requirements should differ depending upon the type of telecommunications service being provided, such as local, intraLATA toll, or interLATA toll service, or upon the size of the carriers involved. We also seek comment on whether any additional obligations should be imposed on the carriers. For example, should the acquiring carrier be required to provide a toll-free customer service number to the affected subscriber in order to address any questions or problems that the subscriber may have concerning the change in service providers? Should the acquiring carrier be required to continue to charge affected subscribers the same rates as those charged by the original carrier for a specified period after the transfer? Should the carriers commit to handling customer complaints regarding the service of the original carrier to ensure that transferred subscribers are not deprived of recourse after the transfer? We also seek comment on whether we should adopt specific measures to protect consumers from unscrupulous carriers that may attempt to sell their customer bases to evade the repercussions of Commission enforcement actions.
        III. Procedural Matters
        A. Initial Regulatory Flexibility Analysis

        6. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared the present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant impact on small entities by the policies and rules proposed in this FNPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadline for comments on the FNPRM provided in the Comment Filing Procedures section. The Commission will send a copy of the FNPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the FNPRM and IRFA (or summaries thereof) will be published in the Federal Register.
        1. Need for and Objectives of This Order and the Rules Proposed Herein

        7. The goal of section 258 of the Act is to eliminate the illegal practice of slamming—the unauthorized change of a subscriber's preferred carrier. The Commission, in its efforts to protect consumers from the unauthorized selection of preferred carriers, is issuing this FNPRM. The Commission seeks comment on the proposed amendments to the authorization and verification of subscriber preferred carrier changes associated with the sale or transfer of a subscriber base from one carrier to another.
        8. Under the Act and the proposed rules, a small entity that violates the Commission's preferred carrier change authorization and verification rules may be liable for damages. Small entities may be affected by the proposals for modifying the Commission's rules with regard to the sale or transfer of customer base from one carrier to another.
        2. Legal Basis
        9. This FNPRM is adopted pursuant to sections 1, 4(i), 4(j), 201-205, 258, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 201-205, 258, 303(r).
        3. Description and Estimates of the Number of Small Entities to Which Rules Will Apply
        10. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” “small governmental jurisdiction,” and “small business concern” under Section 3 of the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (96 percent) are small entities. According to SBA reporting data, there were 4.44 million small business firms nationwide in 1992. We further describe and estimate the number of small entity licensees and regulatees that may be affected by the proposed rules, if adopted.

        11. The most reliable source of information regarding the total numbers of certain common carrier and related providers nationwide, as well as the number of commercial wireless entities, appears to be data the Commission publishes in its Trends in Telephone Service report. In a recent news release, the Commission indicated that there are 4,144 interstate carriers. These carriers include, inter alia, local exchange carriers, wireline carriers and service providers, interexchange carriers, competitive access providers, operator service providers, pay telephone operators, providers of telephone service, providers of telephone exchange service, and resellers.
        12. The SBA has defined establishments engaged in providing “Radiotelephone Communications” and “Telephone Communications, Except Radiotelephone” to be small businesses when they have no more than 1,500 employees. We discuss the total estimated number of telephone companies falling within the two categories and the number of small businesses in each, and we then attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

        13. We have included small incumbent LECs in this present RFA analysis. As noted, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.
        14. Total number of telephone companies affected. The U.S. Bureau of the Census (“Census Bureau”) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. This number contains a variety of different categories of carriers, including local exchange carriers, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, covered specialized mobile radio providers, and resellers. It seems certain that some of these 3,497 telephone service firms may not qualify as small entities because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It is reasonable to conclude that 3,497 or fewer telephone service firms are small entity telephone service firms that may be affected by the new rules.
        15. Wireline carriers and service providers. The SBA has developed a definition of small entities for telephone communications companies except radiotelephone (wireless) companies. The Census Bureau reports that there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to the SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities. We do not have data specifying the number of these carriers that are not independently owned and operated, and thus are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that 2,295 or fewer small telephone communications companies other than radiotelephone companies are small entities that may be affected by the new rules.
        16. Local exchange carriers. Neither the Commission nor the SBA has developed a definition for small providers of local exchange services (LECs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Telecommunications Industry Revenue data, 1,348 incumbent carriers reported that they were engaged in the provision of local exchange services. We do not have data specifying the number of these carriers that are either dominant in their field of operations, are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of LECs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that 1,348 or fewer providers of local exchange service are small entities that may be affected by the new rules.
        17. Interexchange carriers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 171 carriers reported that they were engaged in the provision of interexchange services. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of IXCs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 171 or fewer small entity IXCs that may be affected by the new rules.
        18. Competitive access providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive access services providers (CAPs). The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 212 CAP/CLECs carriers and 10 other LECs reported that they were engaged in the provision of competitive local exchange services. We do not have data specifying the number of these carriers that are not independently owned and operated, or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of CAPs that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 212 or fewer small entity CAPs and 10 other LECs that may be affected by the new rules.
        19. Operator service providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of operator services. The closest applicable definition under the SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 24 carriers reported that they were engaged in the provision of operator services. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of operator service providers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 24 or fewer small entity operator service providers that may be affected by the new rules.
        20. Pay telephone operators. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to pay telephone operators. The closest applicable definition under SBA rules is for telephone communications companies other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 615 carriers reported that they were engaged in the provision of pay telephone services. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of pay telephone operators that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 615 or fewer small entity pay telephone operators that may be affected by the new rules.
        21. Resellers (including debit card providers). Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to resellers. The closest applicable SBA definition for a reseller is a telephone communications company other than radiotelephone (wireless) companies. According to the most recent Trends in Telephone Service data, 388 toll and 54 local entities reported that they were engaged in the resale of telephone service. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of resellers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 388 or fewer small toll entity resellers and 54 small local entity resellers that may be affected by the new rules.
        22. Toll-free 800 and 800-like service subscribers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to 800 and 800-like service (“toll-free”) subscribers. The most reliable source of information regarding the number of these service subscribers appears to be data the Commission collects on the 800, 888, and 877 numbers in use. According to our most recent data, at the end of January 1999, the number of 800 numbers assigned was 7,692,955; the number of 888 numbers that had been assigned was 7,706,393; and the number of 877 numbers assigned was 1,946,538. We do not have data specifying the number of these subscribers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of toll free subscribers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 7,692,955 or fewer small entity 800 subscribers, 7,706,393 or fewer small entity 888 subscribers, and 1,946,538 or fewer small entity 877 subscribers that may be affected by the new rules.
        23. Cellular licensees. Neither the Commission nor the SBA has developed a definition of small entities applicable to cellular licensees. Therefore, the applicable definition of small entity is the definition under the SBA rules applicable to radiotelephone (wireless) companies. This provides that a small entity is a radiotelephone company employing no more than 1,500 persons. According to the Census Bureau, only twelve radiotelephone firms from a total of 1,178 such firms, which operated during 1992, had 1,000 or more employees. Therefore, even if all twelve of these firms were cellular telephone companies, nearly all cellular carriers were small businesses under the SBA's definition. In addition, we note that there are 1,758 cellular licenses; however, a cellular licensee may own several licenses. In addition, according to the most recent Telecommunications Industry Revenue data, 808 carriers reported that they were engaged in the provision of either cellular service or Personal Communications Service (PCS) services, which are placed together in the data. We do not have data specifying the number of these carriers that are not independently owned and operated or have more than 1,500 employees, and thus are unable at this time to estimate with greater precision the number of cellular service carriers that would qualify as small business concerns under the SBA's definition. Consequently, we estimate that there are 808 or fewer small cellular service carriers that may be affected by the new rules.
        4. Summary of Projected Reporting, Recordkeeping, and Other Compliance Requirements
        24. There are no certain projected reporting, recordkeeping, or other compliance requirements at this time. In the event the Commission amends its rules to address situations involving the transfer of a customer base from one carrier to another, acquiring carriers may be required to provide written notice to the affected subscribers of the transaction both before and after its completion and provide some form of certification to the Commission regarding the transaction.
        5. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered
        25. 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. 5 U.S.C. 603(c).
        26. If this FNPRM results in the promulgation of new rules to address the sale or transfer of subscriber bases, the Commission will actively consider the economic impact on small entities and significant alternatives that would be less burdensome for small entities. The intent of this FNPRM is to propose rule changes that would reduce regulatory burdens associated with the sale or transfer of subscriber bases for all telecommunications carriers, including small entities. Specifically, the Commission is considering amending § 64.1120 of our rules to eliminate the requirement that carriers obtain each affected subscriber's authorization and verification of a carrier change in order to effect the sale or transfer of a subscriber base, provided that, within a specified time period, the purchasing carrier gives each affected subscriber written notice of certain information. This proposed amendment would also eliminate the need to obtain a waiver of our carrier change authorization and verification rules, which can be particularly burdensome for some carriers. In addition, in examining the proposals and comments received, the Commission will consider other measures that might give small carriers more relief from regulatory requirements. For example, in determining whether to require carriers to certify to the Commission that they have provided certain notifications to customers, the Commission may consider whether the certification requirement should only apply to the sale or transfer of subscriber bases of a minimum threshold size. As another example, in considering whether to require a purchasing carrier to continue to charge affected subscribers the same rates as those charged by the selling carrier for a specified period after the transfer, the Commission may consider whether small carriers should be exempt from such a requirement when acquiring customers through a sale or transfer. A third example is that the Commission may consider whether small carriers should be permitted to provide notification to the affected subscribers and/or the Commission in less than the proposed time period of 30 days.
        6. Federal Rules That May Overlap, Duplicate, or Conflict With the Proposed Rules
        27. None.
        B. Ex Parte Presentations

        28. This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required.
        C. Comment Dates and Filing Procedures

        29. We invite comment on the issues and questions set forth. Pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, interested parties may file comments as follows: Comments are due February 20, 2001 and reply comments are due March 1, 2001. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121, May 1, 1998.

        30. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit electronic comments by Internet e-mail. To receive filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

        31. Parties who choose to file by paper should also submit their comments on diskette to Sheryl Todd, Accounting Policy Division, Common Carrier Bureau, Federal Communications Commission, 445 12th Street, SW., Room 5-B540, Washington, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM-compatible format using Microsoft Word 97 for Windows or a compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read-only” mode. The diskette should be clearly labeled with the commenter's name, proceeding, including the lead docket number in the proceeding (CC Docket No. 00-257), type of pleading (comment or reply comment), date of submission, and the name of the electronic file on the diskette. The label should also include the following phrase (“Disk Copy Not an Original.”) Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's copy contractor, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20037.
        IV. Ordering Clauses

        32. Pursuant to the authority contained in sections 1, 4, 201-205, and 258 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154, 201-205, and 258, that this Third Further Notice of Proposed Rulemaking is adopted, that comments are requested as described, and that notice is hereby given of proposed amendments to part 64 of the Commission's rules, 47 CFR part 64, as described.

        33. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Third Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subject in 47 CFR Part 64
          Communications common carriers, Reporting and recordkeeping requirements, Telephone.

          Federal Communications Commission.
          Magalie Roman Salas,
          Secretary.

      [FR Doc. 01-2378 Filed 1-26-01; 8:45 am]
      BILLING CODE 6712-01-U


        DEPARTMENT OF DEFENSE
        Defense Acquisition Regulations System
        48 CFR Parts 215 and 217
        [Docket DARS-2019-0004]
        RIN 0750-AJ72
        Defense Federal Acquisition Regulation Supplement: Undefinitized Contract Actions (DFARS Case 2018-D008)

          AGENCY:
          Defense Acquisition Regulations System, Department of Defense (DoD).

          ACTION:
          Proposed rule.

          SUMMARY:
          DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2017 and a section of the National Defense Authorization Act for Fiscal Year 2018 to revise requirements for definitizing undefinitized contract actions.

          DATES:
          Comments on the proposed rule should be submitted in writing to the address shown below on or before April 16, 2019, to be considered in the formation of a final rule.

          ADDRESSES:
          Submit comments identified by DFARS Case 2018-D008, using any of the following methods:
          ○ Federal eRulemaking Portal: http://www.regulations.gov. Search for “DFARS Case 2018-D008.” Select “Comment Now” and follow the instructions provided to submit a comment. Please include “DFARS Case 2018-D008” on any attached documents.

          ○ Email: osd.dfars@mail.mil. Include DFARS Case 2018-D008 in the subject line of the message.
          ○ Fax: 571-372-6094.
          ○ Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD(A&S)DPC/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

          Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

          FOR FURTHER INFORMATION CONTACT:
          Ms. Amy Williams, telephone 571-372-6106.

        SUPPLEMENTARY INFORMATION:
        I. Background
        DoD is proposing to revise the DFARS to implement section 811 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328) and section 815 of the NDAA for FY 2018 (Pub. L. 115-91). Section 811 modifies restrictions on undefinitized contractual actions (UCA) regarding risk based profit, time for definitization, and foreign military sales. Section 815 establishes limitations on unilateral definitizations of UCAs over $50 million.
        II. Discussion and Analysis
        This rule proposes to make the following amendments to DFARS:
        • If a UCA is definitized after the end of the 180-day period beginning on the date the contractor submits a qualifying proposal, the head of the agency shall ensure profit reflects the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal.
        • The definitization of a UCA may not be extended by more than 90 days beyond the maximum 180-day definitization schedule negotiated in the UCA without a written determination by the Secretary of the military department concerned, the head of the defense agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment, that it is in the best interests of the military department, the defense agency, the combatant command, or the Department of Defense, respectively, to continue the action.
        • Contracting officers of the Department of Defense may not enter into a UCA for a foreign military sale unless the contract action provides for definitization within 180 days and the contracting officer obtains approval from the head of the contracting activity. The head of the agency may waive this requirement if necessary to support a contingency or humanitarian or peacekeeping operation.
        • Contracting officers may not unilaterally definitize a UCA with a value greater than $50 million until—
        ○ The end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal to definitize the contractual terms, specifications, and price; or the date on which the amount of funds expended under the contractual action is equal to more than 50 percent of the negotiated overall not-to-exceed price for the contractual action;
        ○ The service acquisition executive for the military department that awarded the contract or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a defense agency or other component of the Department of Defense, approves the definitization in writing;
        ○ The contracting officer provides a copy of the written approval to the contractor; and
        ○ A period of 30 calendar days has elapsed after the written approval is provided to the contractor.
        • The definition of “qualifying proposal” is being amended to align with the statutory definition at 10 U.S.C. 2306, which is a proposal that contains sufficient information to enable DoD to conduct a “meaningful audit” instead of a “complete and meaningful audit.”
        III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and Contracts for Commercial Items, Including Commercially Available Off-the-Shelf Items
        This rule does not propose to create any new provisions or clauses or impact any existing provisions or clauses.
        IV. Executive Orders 12866 and 13563
        Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
        V. Executive Orders 13771
        This rule is not expected to be an E.O. 13771 regulatory action, because this rule is not significant under E.O. 12866.
        VI. Regulatory Flexibility Act

        DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:
        DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to modify requirements on undefinitized contractual actions (UCAs) regarding calculations of risk-based profit objectives, timing for definitizations, foreign military sales, and limitations on unilateral definitizations of UCAs over $50 million, in accordance with recently enacted statutory requirements.
        The objective is to implement section 811 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328) and section 815 of the NDAA for FY 2018 (Pub. L. 115-91).
        With regard to potential profit impacts, DoD estimates that this rule will impact approximately 470 contracts per year, primarily awarded to other than small entities, where definitization is extended beyond 180 days after receipt of a qualifying proposal.
        The proposed rule does not include additional reporting or record keeping requirements.
        The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches to the rule that would meet the requirements.
        DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

        DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2018-D008), in correspondence.

        VII. Paperwork Reduction Act
        The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

          List of Subjects in 48 CFR Parts 215 and 217
          Government procurement.

          Jennifer Lee Hawes,
          Regulatory Control Officer, Defense Acquisition Regulations System.

        Therefore, 48 CFR parts 215 and 217 are proposed to be amended as follows:
        1. The authority citation for 48 CFR parts 215 and 217 continues to read as follows:

          Authority:
          41 U.S.C. 1303 and 48 CFR chapter 1.

          PART 215—CONTRACTING BY NEGOTIATION

        2. In section 215.404-71-3, revise paragraph (d)(2)(i) to read as follows:

          215.404-71-3
          Contract type risk and working capital adjustment.

          (d)  * * *
          (2)  * * *
          (i) The contracting officer shall assess the extent to which costs have been incurred prior to definitization of the contract action (also see 217.7404-6(a) and 243.204-70-6). When costs have been incurred prior to definitization, generally regard the contract type risk to be in the low end of the designated range. If a substantial portion of the costs have been incurred prior to definitization, the contracting officer may assign a value as low as 0 percent, regardless of contract type. However, if a contractor submits a qualifying proposal to definitize an undefinitized contract action and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal (as defined in 217.7401(c)), the profit allowed on the contract shall accurately reflect the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal.

          PART 217—SPECIAL CONTRACTING METHODS

            217.7401
            [Amended]

        3. In section 217.7401, amend paragraph (c) introductory text by removing “complete and”.

          217.7402
          [Amended]

        4. Amend section 217.7402 by—
        a. Removing paragraph (a)(1);
        b. Redesignating paragraphs (a)(2) through (4) as paragraphs (a)(1) through (3); and
        c. In the newly redesignated paragraphs (a)(1) and (2), remove the semicolons and replace them with periods.
        5. Revise section 217.7404 to read as follows:

          217.7404
          Limitations.
          See PGI 217.7404 for additional guidance on obtaining approval to authorize use of an undefinitized contact action, documentation requirements, and other limitations on their use.
          (a) Foreign military sales contracts. (1) A contracting officer may not enter into a UCA for a foreign military sale unless—
          (i) The contract action provides for agreement upon contractual terms, specifications, and price by the end of the 180-day period beginning on the date on which the contractor submits a qualifying proposal; and
          (ii) The contracting officer obtains approval from the head of the contracting activity to enter into a UCA in accordance with 217.7404-1.
          (2) The head of an agency may waive the requirements of paragraph (a)(1) of this section, if a waiver is necessary in order to support any of the following operations:
          (i) A contingency operation.
          (ii) A humanitarian or peacekeeping operation.
          (b) Unilateral definitization by a contracting officer. Any UCA with a value greater than $50 million may not be unilaterally definitized until—
          (1) The earlier of—
          (i) The end of the 180-day period, beginning on the date on which the contractor submits a qualifying proposal to definitize the contractual terms, specifications, and price; or
          (ii) The date on which the amount of funds expended under the contractual action is equal to more than 50 percent of the negotiated overall not-to-exceed price for the contractual action;
          (2) The service acquisition executive for the military department that awarded the contract or the Under Secretary of Defense for Acquisition and Sustainment if the contract was awarded by a defense agency or other component of the Department of Defense, approves the definitization in writing;
          (3) The contracting officer provides a copy of the written approval to the contractor; and
          (4) A period of 30 calendar days has elapsed after the written approval is provided to the contractor.

        6. Amend section 217.7404-3 by revising paragraph (a)(1) to read as follows:

          217.7404-3
          Definitization schedule.
          (a)  * * *
          (1) The date that is 180 days after the contractor submits a qualifying proposal. This date may not be extended beyond an additional 90 days without a written determination by the Secretary of the military department concerned, the head of the defense agency concerned, the commander of the combatant command concerned, or the Under Secretary of Defense for Acquisition and Sustainment that it is in the best interests of the military department, the defense agency, the combatant command, or the Department of Defense, respectively, to continue the action; or

          217.7404-5
          [Amended]

        7. Amend section 217.7404-5, in paragraph (b) introductory text, by removing “217.7404-2” and adding “217.7404(a), 217.7404-2” in its place.
        8. Amend section 217.7404-6 by revising paragraph (a) to read as follows:

          217.7404-6
          Allowable profit.

          (a) Any reduced cost risk to the contractor for costs incurred during contract performance before negotiation of the final price. However, if a contractor submits a qualifying proposal to definitize a UCA and the contracting officer for such action definitizes the contract after the end of the 180-day period beginning on the date on which the contractor submitted the qualifying proposal, the profit allowed on the contract shall accurately reflect the cost risk of the contractor as such risk existed on the date the contractor submitted the qualifying proposal;

      [FR Doc. 2019-02530 Filed 2-14-19; 8:45 am]
      BILLING CODE 5001-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 635
        [Docket No. 110520295-1295-01]
        RIN 0648-BA64
        Atlantic Highly Migratory Species; Vessel Monitoring Systems; Correction

          AGENCY:
          Commerce, National Oceanic and Atmospheric Administration (NOAA), National Marine Fisheries Service (NMFS).

          ACTION:
          Proposed rule; correction.

          SUMMARY:

          The National Marine Fisheries Service (NMFS) published a proposed rule in the Federal Register of June 21, 2011, concerning modifications to Vessel Monitoring System requirements in Atlantic HMS fisheries. The document contained an incorrect time for a public hearing in Atlantic City, New Jersey. This document corrects that error. All other information contained in the proposed rule has not been changed.

          FOR FURTHER INFORMATION CONTACT:
          Greg Fairclough, (phone: 727-824-5399, fax: 727-824-5398) or Michael Clark (phone: 301-713-2347, fax: 301-713-1917).
          Correction
          In the Federal Register of June 21, 2011, in FR Doc 2011-15325, on page 36073, the third row of the table is corrected to read:

              Location
              Date
              Time
              Address

              *         *         *         *         *         *         *

              Atlantic City, NJ
              July 28, 2011
              3:30-6:30 p.m.
              Atlantic County Library System, Brigantine Branch, 201 15th St. South, Brigantine, NJ 08203.

            Authority:
             16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

            Dated: June 24, 2011.
            John Oliver,
            Deputy Assistant Administrator for Operations, National Marine Fisheries Service.

      [FR Doc. 2011-16331 Filed 6-28-11; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 216
        [Docket No. 051110296-5296-01; I.D. 102405A]
        RIN 0648-AU02
        Protecting Spinner Dolphins in the Main Hawaiian Islands From Human Activities that Cause “Take,” as Defined in the Marine Mammal Protection Act and Its Implementing Regulations, or To Otherwise Adversely Affect the Dolphins

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:

          NMFS is considering whether to propose regulations to protect wild spinner dolphins (Stenella longirostris) in the main Hawaiian Islands from “take,” as defined in the Marine Mammal Protection Act (MMPA) and its implementing regulations, or to otherwise adversely affect the dolphins. The scope of this advance notice of proposed rulemaking (ANPR) encompasses the activities of any person or conveyance that may result in the unauthorized taking of spinner dolphins and/or that may diminish the value to the dolphins of habitat routinely used by them for resting and/or that may cause detrimental individual-level and population-level impacts. The proposed regulation would apply only to the main Hawaiian Islands and only to spinner dolphins. NMFS requests comments on whether—and if so, what type of— conservation measures, regulations, and, if necessary, other measures would be appropriate to protect spinner dolphins in the main Hawaiian Islands from the effects of these activities.

          DATES:

          Comments must be received at the appropriate address (see ADDRESSES) no later than January 11, 2006.

          ADDRESSES:
          You may submit comments by any of the following methods:
          • E-mail: 0648-AU02.NOA@noaa.gov. Include in the subject line the following document identifier: 0648-AU02-NOA.
          • Federal e-rulemaking Portal: http://www.regulations.gov.

          • Mail: Marine Mammal Branch Chief, Protected Resources Division, Pacific Islands Regional Office, National Marine Fisheries Service, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814.

          FOR FURTHER INFORMATION CONTACT:
          Chris Yates or Jennifer Sepez, Pacific Islands Regional Office, 808-944-2105; or Trevor Spradlin, Office of Protected Resources, 301-713-2322.

        SUPPLEMENTARY INFORMATION:
        Background

        Viewing wild marine mammals in Hawaii is a popular recreational activity for both tourists and residents alike. In the past, most recreational viewing focused on humpback whales (Megaptera novaeangliae) during the winter months when the whales migrate from their feeding grounds off the coast of Alaska to Hawaii's warm and protected waters to breed and calve. However, in recent years, recreational activities have increasingly focused on viewing small cetaceans, with a particular emphasis on spinner dolphins (Stenella longirostris), which are routinely found close to shore in shallow coves and bays and other areas throughout the main Hawaiian Islands. NMFS is concerned that some of these activities cause unauthorized taking of dolphins, diminish the value to the dolphins of habitat routinely used by them for resting, and cause detrimental individual-level and population-level impacts.

        The biology and behavior of Hawaiian spinner dolphins has been well documented in the scientific literature. Hawaiian spinner dolphins are identified as a race of Pacific spinner dolphins found in and around the Hawaiian Islands, including both the main Islands of Hawaii and the Northwestern Hawaiian Islands (Norris et al. 1994, page 17). Hawaiian spinner dolphins routinely utilize shallow coves and bays and other areas close to shore during the day to rest, care for their young and avoid predators before traveling to deeper water at night to hunt for food (Würsig et al. 1994, Norris 1994). As the dolphins begin or end their resting period, they engage in aerial spinning and leaping behaviors that are noticeable from shore (Würsig et al. 1994). However, when they are in a period of deep rest, their behavior consists of synchronous dives and extended periods swimming in quiet formation along the shallow bottom (see: Norris and Dohl 1980, Norris et al. 1985, Wells and Norris 1994, Würsig et al. 1994).

        Scientific research studies have documented human disturbance of Hawaiian spinner dolphins during their resting periods along the west coast of the Big Island of Hawaii, most notably in and around Kealakekua Bay. Norris and Dohl (1980) noted that “cruise boats” would seek out and run through groups of spinner dolphins during an initial study of the dolphins in 1970, and in follow up research, Norris et al. (1985) found that spinner dolphins were particularly sensitive to disturbance during the early stage of their entry into the bay. Forest (2001) compared sightings records of spinner dolphins in Kealakekua Bay from 1979-1980 and 1993-1994, and found that the dolphins were utilizing the bay and engaging in aerial behaviors less frequently than before, and suggested increasing human disturbance as a cause. Courbis (2004) reported high levels of vessel and swimmer traffic in Kealakekua Bay and neighboring Honaunau Bay and Kauhako Bay, and found that spinner dolphins exhibited decreased aerial activity during their entry and exit into Kealakekua Bay when compared to previous studies, as well as increased aerial activity during mid-day when dolphins typically rest. Spinner dolphins in Kealakekua Bay also appeared to have shifted their preferred resting area in response to vessel and swimmer presence. In Kauhako Bay, dolphins were documented avoiding swimmers and leaving the bay in response to being followed, while in Honaunau Bay, dolphins were documented to spend more time at the mouth of the bay or in deep water at the center of the bay when swimmers were present. Östman-Lind et al. (2004) found that human disturbance was highest in mid-morning when spinner dolphins begin their rest period, and that secondary resting areas with less vessel traffic were utilized more than had been previously observed, and suggested the dolphins have been displaced from their primary resting areas. In addition, Ross (2001) found that Hawaiian spinner dolphins around Midway Atoll in the Northwest Hawaiian Islands exhibited short-term behavioral changes in response to vessels at distances of 300 meters and 100 meters.
        NMFS is concerned that displacement from primary resting areas has the potential for adverse impacts on the dolphins for a number of reasons, including that these secondary resting areas may not provide for the same quality of rest and protection that primary areas do and that the activities that displaced the dolphins from primary areas are likely to follow them. NMFS scientists are concerned about the potential for individual-level and population-level effects because of anthropogenic activities. NMFS has received an increasing number of complaints from constituents alleging that spinner dolphins in the main Hawaiian Islands are routinely being disturbed by people attempting to closely approach and interact with the dolphins by vessel (motor powered or kayak) or in the water (“swim-with-wild-dolphin” activities). Concerns have been expressed by officials from the Hawaii Department of Land and Natural Resources and the U.S. Marine Mammal Commission, as well as representatives of the Native Hawaiian community, scientific researchers, wildlife conservation organizations, public display organizations, and some commercial tour operators.

        Additionally, there are growing public safety concerns associated with human-dolphin interactions. Although there are no known reports of Hawaiian spinner dolphins injuring humans, people have been seriously injured while trying to interact with various species of marine mammals in the wild, including species of dolphins (Webb 1978, Shane et al. 1993, NMFS 1994, Wilson 1994, Orams et al. 1996, Seideman 1997, Christie 1998, Santos 1997, Samuels and Bejder 1998, Samuels and Bejder 2004, Samuels et al. 2000). In addition, researchers have documented Hawaiian spinner dolphins behaving aggressively towards people in the water by charging and making threat displays (Norris et al. 1985, Johnson and Norris 1994). There is also a potential risk of shark attack, since sharks prey upon spinner dolphins and often are seen with them along the coast (Johnson and Norris 1994, Norris 1994). In June 2003, an adult male swimmer was attacked by a shark while trying to swim with spinner dolphins off the coast of Oahu. The man suffered injuries to his leg, which required medical attention (Hoover and Espanol 2003).
        NMFS encourages members of the public to view and enjoy spinner dolphins in the main Hawaiian Islands in ways that are consistent with the provisions of the MMPA, and supports responsible wildlife viewing as articulated in agency guidelines (see Web citations below). NMFS is concerned that some activities occurring in Hawaii are not in accordance with these guidelines, and cause unauthorized taking of spinner dolphins, diminish the value to the dolphins of habitat routinely used by them for resting, or cause detrimental individual-level and population-level impacts to these dolphins.
        Current MMPA Prohibitions and NMFS Guidelines and Regulations
        The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., generally prohibits the “take” of marine mammals. Section 3(13) of the MMPA defines the term “take” as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” Except with respect to military readiness activities and certain scientific research activities, the MMPA defines the term “harassment” as “any act of pursuit, torment, or annoyance which—(i) has the potential to injure a marine mammal or marine mammal stock in the wild, [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
        In addition, NMFS regulations implementing the MMPA further describe the term “take” to include: “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild” (50 CFR 216.3). The MMPA provides limited exceptions to the prohibition on “take” for activities such as scientific research, public display, and incidental take in commercial fisheries. Such activities require a permit or authorization, which may be issued only after a thorough agency review.
        Although Hawaiian spinner dolphins are not a listed species under the Endangered Species Act (ESA), there are specific regulations for some ESA-listed marine mammals which address interactions with humans in the wild. These regulations prohibit approaches within 3 nautical miles (5.5 km) of particular Steller sea lion rookeries in the Aleutian Islands and Gulf of Alaska (50 CFR 223.202), approaches closer than 100 yards (91.4 m) to humpback whales in Hawaii, approaches closer than 100 yards (91.4 m) to humpback whales in Alaska, and approaches closer than 500 yards (460 m) to right whales in the North Atlantic (50 CFR 224.103). Documentation for these latter two regulations (66 FR 29502, May 31, 2001, and 62 FR 6729, February 13, 1997) cites rulemaking authority under both the ESA and the MMPA.

        For both ESA-listed species and for MMPA-protected species, wildlife viewing must be conducted in a manner that does not cause “take.” This is consistent with the philosophy of responsible wildlife viewing advocated by many federal agencies to unobtrusively observe the natural behavior of wild animals in their habitats without causing disturbance (see http://www.watchablewildlife.org/ and http://www.watchablewildlife.org/publications/marine_wildlife_viewing_guidelines.htm).

        Each of the six NMFS Regions has developed recommended viewing guidelines to educate the general public on how to responsibly view marine mammals in the wild and avoid causing a “take.” These guidelines are available on line at: http://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.html. The guidelines developed by the NMFS Pacific Islands Regional Office for marine mammals in Hawaii are also available at: http://www.nmfs.noaa.gov/prot_res/MMWatch/hawaii.htm. The Regional Office viewing guidelines for Hawaii recommend that people view wild dolphins from a safe distance of at least 50 yards (45 m) and refrain from trying to chase, closely approach, surround, swim with, or touch the animals. To support the guidelines in Hawaii, NMFS has partnered with the State of Hawaii and the Hawaiian Islands Humpback Whale National Marine Sanctuary over the past several years to promote safe and responsible wildlife viewing practices through the development of outreach materials, training workshops and public service announcements. NMFS’ education and outreach efforts have also been supported by a partnership with the Watchable Wildlife program, a consortium of Federal and State wildlife agencies and wildlife interest groups that encourages passive viewing of wildlife from a distance for the safety and well-being of both animals and people (Duda 1995, Oberbillig 2000).
        However, despite the regulations, guidelines and outreach efforts, interactions through swim-with-dolphins programs continue to occur and are increasing in Hawaii. Advertisements on the Internet and in local media in Hawaii promote activities that contradict the NMFS guidelines. NMFS has received letters from the Marine Mammal Commission (MMC), members of the scientific research community, environmental groups, the public display community, and members of the general public expressing the view that swimming with and other types of interactions with wild marine mammals have the potential to harass and/or disturb the animals by causing injury or disruption of normal behavior patterns. NMFS has also received inquiries from members of the public and commercial tour operators requesting clarification on NMFS’ policy on these matters.
        The MMC sponsored a literature review by Samuels et al. (2000) to compile information regarding human interactions with wild dolphins. Upon review of the report, the MMC stated:

          The information and analyses in the report provide compelling evidence that any efforts to interact intentionally with dolphins in the wild are likely to result in at least Level B harassment and, in some cases, could result in the death or injury of both people and marine mammals.

        The MMC subsequently recommended that NMFS “promulgate regulations specifying that any activity intended to enable in-water interactions between humans and dolphins in the wild constitutes a taking and is prohibited” (Letter from MMC to NMFS dated May 23, 2000).
        In 2002, NMFS published an ANPR requesting comments from the public on what types of regulations and other measures would be appropriate to prevent harassment of marine mammals in the wild caused by human activities directed at the animals (67 FR 4379, January 30, 2002). The 2002 ANPR was national in scope and covered all species of marine mammals under NMFS’ jurisdiction (whales, dolphins, porpoises, seals and sea lions), and requested comments on ways to address concerns about the public and commercial operators closely approaching, swimming with, touching or otherwise interacting with marine mammals in the wild. Several potential options were proposed for consideration and comment, including: (1) Codifying the current NMFS Regional marine mammal viewing guidelines into regulations; (2) codifying the guidelines into regulations with additional improvements; (3) establishing minimum approach rules similar to the ones under the ESA regulations for humpback whales in Hawaii and Alaska and North Atlantic right whales; and (4) restricting activities of concern similar to the MMPA regulation prohibiting the public from feeding or attempting to feed wild marine mammals. The 2002 ANPR specifically mentioned the concerns about Hawaiian spinner dolphins and increasing human interactions. Over 500 comments were received on the 2002 ANPR regarding human interactions with wild marine mammals in United States waters and along the nation's coastlines. A portion of the comments specifically addressed Hawaii concerns and recommended a wide spectrum of measures from no action to restricting swim with activities through regulations or time-area closures.
        Request for Comments
        NMFS is requesting comments on whether —and if so, what type of—conservation measures, regulations, and, if necessary, other measures would be appropriate to protect spinner dolphins in the main Hawaiian Islands from human activities that result in the unauthorized taking of spinner dolphins and/or that may diminish the value to the dolphins of habitat routinely used by them for resting and/or that may cause detrimental individual-level and population-level impacts. If a rule were proposed, the agency could further delineate the definition of “take” in the Code of Federal Regulations for situations involving Hawaiian spinner dolphins, focusing on the take of individual dolphins. The agency could also design regulations to address possible adverse effects at the population level, where repeated intrusions into resting areas cumulatively have the potential to disrupt the behavioral patterns within the population of dolphins and/or have the potential to injure the stock as a whole through displacement of animals from their preferred habitat. The agency could also act to protect essential habitats, including mating grounds and areas of similar significance to the dolphins.
        NMFS offers several possible options for consideration and comment:

          Codify the current NMFS Pacific Islands Regional Office's marine mammal viewing guidelines—Codifying the guidelines as regulations would make them requirements rather than recommendations, and would provide for enforcement of these provisions and penalties for violations.

          Codify the current NMFS Pacific Islands Regional Office's marine mammal viewing guidelines with improvements—The current guidelines could be revised to more clearly address specific activities of concern, such as those discussed below, and then codified as enforceable regulations.

          Establish minimum approach rule—Similar to the minimum approach rules for humpback whales in Hawaii and Alaska, and right whales in the North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit could be established by regulation to accommodate a reasonable level of dolphin viewing opportunities while minimizing the potential detrimental impacts from humans. If establishing a minimum approach rule is appropriate, then NMFS would have to consider whether the current guideline of 50 yards is appropriate for this regulation. NMFS would consider exceptions for situations in which marine mammals approach vessels or humans as well as other situations in which approach is not reasonably avoidable.

          Restrict individual activities of concern—Similar to the prohibition on feeding wild marine mammals (50 CFR 216.3), a regulation further delineating the definition of “take” for the case of Hawaiian spinner dolphins could clarify which specific activities are prohibited. Such activities could include actions engaged in by individuals, e.g., swimming with, touching (either directly or with an object), or otherwise acting on or with a Hawaiian spinner dolphin in the wild. It could also include operating a vessel or providing other platforms from which such interactions are conducted or supported.

          Restrict vessel activities of concern—Activities of concern engaged in by vessels could also be prohibited through a regulation further delineating the definition of “take” for the case of Hawaiian spinner dolphins. These activities of concern could include actions engaged in by vessels, e.g., the use of vessels to herd dolphins, surround dolphins, or otherwise prevent a reasonable means of escape, to “leapfrog” dolphins by positioning in their predictable paths, separate calves from attending adults, approach at or above specified speeds, or to “run through” a group of dolphins in order to elicit bow-wake riding.

          Establish time-area closures in resting bays—Similar to the prohibitions used to protect fish stocks or habitat, a regulation restricting human access to specific areas could be established. These restrictions could be for full-time, or limited to certain times of the day when dolphins have the most potential to be present. They could: restrict all human entry to the area; restrict only specified types of activities; restrict human access to an entire area or a particular zone within an area; or a closure could be any combination of the above parameters.
        NMFS also recognizes that the most appropriate regulations may be some combination of the above measures, or that additional possibilities may exist.

        The geographic scope of these regulations, if proposed, would be the near shore habitats off the main Hawaiian Islands, including the Big Island of Hawaii, Maui, Kohoolawe, Lanai, Molokai, Oahu, Kauai, and Niihau, and their nearby land or land-like masses (e.g., Molokini, Kaohiakipu, etc.). These are the locations where activities of concern are concentrated. The Northwestern Hawaiian Islands (NWHI) do not currently have a significant level of activities of concern, and NMFS feels the remoteness of these islands makes it unlikely that they will develop at significant levels in the future. In addition, a marine sanctuary is contemplated which would encompass the NWHI. NMFS requests comments on the geographic scope of this ANPR, including whether the agency should be considering a larger or smaller overall geographic scope to protect Hawaiian spinner dolphins.
        NMFS invites comment on the above options and other possible measures that will help the agency decide what type of regulations, if any, would be most appropriate to consider for protecting spinner dolphins in the main Hawaiian Islands from human activities that cause unauthorized taking of spinner dolphins, diminish the value to the dolphins of habitat routinely used by them for resting, or cause detrimental individual-level and population-level impacts to these dolphins.
        Classification
        This advance notice of proposed rulemaking was determined to be significant for purposes of E.O. 12866.

          Dated: December 6, 2005.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        References

          Christie, S. 1998. Learning to live with giants: Elephant seals get the right of way at Piedras Blancas. California Coast & Oceans, 14(1):11-14.

          Courbis, S.S. 2004. Behavior of Hawaiian spinner dolphins (Stenella longirostris) in response to vessels/swimmers. Masters Thesis, San Francisco State University. 209 pp.
          Duda, Mark D. 1995. Watching Wildlife: Tips, Gear and Great Places for Enjoying America's Wild Creatures. Falcon Press Publishing Co., Helena and Billings, MT. 117 pp.
          Forest, A. 2001. The Hawaiian spinner dolphin, Stenella longirostris: Effects of tourism. Masters Thesis, Texas A&M University. 91 pp.
          Johnson, C.M. and K.S. Norris. 1994 Social Behavior. In: K.S. Norris, B. Würsig , R.S. Wells and M. Würsig (Eds.), The Hawaiian Spinner Dolphin. University of California Press, Berkeley. Pp. 14-30.
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      [FR Doc. 05-23928 Filed 12-9-05; 8:45 am]
      BILLING CODE 3510-22-P