Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 49335 

FY 2010 PROCESSING AND FILING FEE TABLE—Continued 

Document/action FY 2010 fee 

Protest ................................................................................................................................................................. 60 

* To record a mining claim or site location, you must pay this processing fee along with the initial maintenance fee and the one-time location 

fee required by statute. 43 CFR part 3833 

PART 3200—GEOTHERMAL 

RESOURCE LEASING 

■ 3. The authority citation for part 3200 

continues to read as follows: 

Authority: 30 U.S.C. 1001–1028; 43 U.S.C. 

1701 et seq.; and Pub. L. 109–58. 

Subpart 3216—Transfers 

■ 4. Amend § 3216.14 by revising the 

third sentence of the first paragraph to 

read as follows: 

§ 3216.14 What filing fees and forms does 

a transfer require? 

* * * For example, if you are 

transferring record title for three leases, 

submit three times the fee for 

‘‘Assignment and transfer of record title 

or operating rights’’ in the fee schedule 

in § 3000.12 of this chapter. * * * 

[FR Doc. E9–23268 Filed 9–25–09; 8:45 am] 

BILLING CODE 4310–84–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 27 

[WT Docket No. 03–66; FCC 09–70] 

Facilitating the Provision of Fixed and 

Mobile Broadband Access, 

Educational and Other Advanced 

Services in the 2150–2162 and 2500– 

2690 MHz Bands 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission addresses two issues with 

respect to two petitions for 

reconsideration filed in response to the 

Fourth Memorandum Opinion and 

Order. First, the Commission changes its 

policy regarding the ‘‘start date’’ of 

Educational Broadband Service (EBS) 

excess capacity lease agreements. 

Second, the Commission amends its 

rules to permit BRS 1 and 2/2A 

licensees to simultaneously operate, 

post-transition, in the 2.1 GHz band and 

in the 2.5 GHz band. The Commission 

makes these changes to facilitate the 

provision of the broadband and other 

new and innovative wireless services in 

the 2.5 GHz band, to ensure that the 

spectrum is put in use, and to promote 

rapid service to the public. 

DATES: Effective October 28, 2009. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Nancy M. Zaczek, Wireless 

Telecommunications Bureau, 

Broadband Division, Federal 

Communications Commission, 445 12th 

Street, SW., Washington, DC 20554, at 

(202) 418–0274 or via the Internet to 

Nancy.Zaczek@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Fifth 

Memorandum Opinion and Order, FCC 

09–70, adopted on September 8, 2009 

and released on September 11, 2009. 

The full text of this document, 

including attachments and related 

documents is available for public 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Room CY–A257, 

445 12th Street, SW., Washington, DC 

20554. The complete text of these 

documents and related Commission 

documents may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc. (BCPI), 

Portals II, 445 12th Street, SW., Room 

CY–B402, Washington, DC 20554, (202) 

488–5300 or (800) 378–3160, contact 

BCPI at its Web site: http:// 

www.bcpiweb.com. When ordering 

documents from BCPI, please provide 

the appropriate FCC document number, 

for example, FCC 09–70. The complete 

text of these documents is also available 

on the Commission’s Web site at 

http://wireless.fcc.gov/edocs_public/

attachment/FCC-09-70A1doc. This full 

text may also be downloaded at: 

http://wireless.fcc.gov/releases.html. 

Alternative formats (computer diskette, 

large print, audio cassette, and Braille) 

are available by contacting Brian Millin 

at (202) 418–7426, TTY (202) 418–7365, 

or via e-mail to bmillin@fcc.gov. 

Summary 

I. Introduction 

1. In this Fifth Memorandum Opinion 

and Order, the Commission grants, in 

part, two petitions for reconsideration of 

the Broadband Radio Service (BRS)/ 

Educational Broadband Service (EBS) 

Fourth Memorandum Opinion and 

Order adopted on March 18, 2008 and 

released on March 20, 2008, 73 FR 

26032 (May 8, 2008). 

2. The first issue we address on 

reconsideration concerns how the 

Commission should implement the 15- 

year term limit for grandfathered EBS 

leases (i.e. leases entered into before 

January 10, 2005) that it established in 

the BRS/EBS Fourth MO&O. The item 

adopts an unopposed compromise 

proposal negotiated between the 

National EBS Association (NEBSA)— 

which represents educational interests 

that hold EBS licenses—and the 

Wireless Communications Association 

International, Inc. (WCA)—which 

represents commercial operators that 

lease spectrum from EBS licensees. Our 

adoption of the NEBSA/WCA Proposal 

balances the concerns of both educators 

and commercial lessees. 

3. The second issue we address on 

reconsideration concerns whether the 

Commission should permit BRS 1 and 

2/2A licensees to simultaneously 

operate, post-transition, in the 2.1 GHz 

band and in the 2.5 GHz band until all 

of their customers have migrated to the 

2.5 GHz band. This determination is 

consistent with the Commission’s 

decision in the BRS/EBS Fourth 

Memorandum Opinion and Order to 

permit such simultaneous operation 

pre-transition in order to avoid 

requiring BRS operators to flash cut 

subscribers to the new band plan. 

II. Issues on Reconsideration 

A. Grandfathered EBS Leases 

4. Background. The Commission 

established the Instructional Television 

Fixed Service (ITFS) in the 2500–2690 

MHz band in 1963 and later adopted 

rules for the Multipoint Distribution 

Service (MDS). ITFS was generally used 

for one-way video service for students. 

MDS was generally used to provide 

wireless cable service to subscribers. In 

1983, noting that the ITFS was being 

underutilized, the Commission 

permitted ITFS licensees to lease excess 

channel capacity to commercial MDS 

operators. In 2004, the Commission 

renamed ITFS as the Educational 

Broadband Service (EBS) and MDS as 

the Broadband Radio Service (BRS). 

5. The Commission’s policy regarding 

the length of EBS leases has evolved 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
49336 Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 

since it first permitted ITFS (now EBS) 

licensees to lease excess capacity in 

1983. Originally, the Commission’s 

policy prohibited an ITFS licensee from 

executing a lease agreement with 

commercial operators that extended 

beyond the 10-year ITFS license term 

because such provisions were viewed as 

inconsistent with the terms of the 

license. In 1995, however, the 

Commission changed its policy to 

permit an ITFS licensee to enter into a 

10-year lease agreement without regard 

to the duration of the licensee’s license 

term, but required the lease to note that 

such an extension was contingent on the 

renewal of the license. In 1998, in the 

Two-Way Order, the Commission again 

changed its policy and permitted an 

ITFS licensee, as of the effective date of 

that order, which was January 25, 1999, 

to enter into a 15-year lease agreement, 

but continued to require that, to the 

extent the lease extended beyond the 

current license term, the lease specify 

that such an extension be subject to the 

renewal of the underlying license. The 

Commission also grandfathered existing 

ITFS excess capacity leases entered into 

before March 31, 1997. In 2000, in the 

Two-Way Order on Further 

Reconsideration, the Commission 

further grandfathered ITFS excess 

capacity leases entered into before 

March 31, 1997 that contained an 

automatic renewal clause that would be 

effective after March 31, 1997, provided 

that the total term of the lease did not 

exceed 15 years. 

6. In 2004, in the BRS/EBS R&O, the 

Commission adopted a number of 

revisions to ITFS and MDS, and 

renamed ITFS as the Educational 

Broadband Service (EBS) and MDS as 

the Broadband Radio Service (BRS). Of 

particular relevance here, the 

Commission applied the spectrum 

leasing rules established in the 

Secondary Markets proceeding to EBS 

(formerly ITFS) excess capacity leases 

for new leases entered into after the 

effective date of that order (which was 

January 10, 2005), while grandfathering 

existing leases under the previous ITFS 

rules, which limited such leases to a 

term of no more than fifteen years. In 

2006, in the BRS/EBS Third MO&O, the 

Commission modified the application of 

the spectrum leasing rules and policies 

of the Secondary Markets proceeding to 

EBS leases, while reaffirming that 

excess capacity leases entered into 

before January 10, 2005 were 

grandfathered under the previous ITFS 

leasing framework. 

7. In the BRS/EBS Fourth MO&O 

adopted in March 2008, the Commission 

provided additional clarification 

regarding grandfathered leases, holding 

that they ‘‘are grandfathered after 

January 10, 2005 if they have an 

automatic renewal clause effective after 

January 10, 2005, only to the extent that 

such leases do not exceed 15 years in 

total length (including the automatic 

renewal period(s)).’’ The Commission 

stated that leases executed before 

January 10, 2005 are limited to a term 

of 15 years ‘‘from the date of 

execution.’’ 

8. On June 9, 2008, WCA and Gateway 

Access Solutions, Inc. asked the 

Commission to reconsider its decision 

in the BRS/EBS Fourth MO&O that 

limited grandfathered excess capacity 

leases entered into before January 10, 

2005 to a term of 15 years, starting from 

the date of execution. C&W Enterprises, 

Clarendon Foundation, and a 

Commercial Coalition comprised of 

Sprint Nextel Corp., Clearwire Corp., 

Xanadoo, Inc., NextWave, and WCA 

support WCA’s petition. NEBSA, the 

ITFS/2.5 GHz Mobile Wireless 

Engineering & Development Alliance, 

the Hispanic Information and 

Telecommunications Network, Inc., and 

Texas State Technical College— 

Sweetwater opposed the petitions for 

reconsideration. Notwithstanding the 

disagreements between educational 

licensees and commercial lessees on 

this issue, both sides expressed a 

willingness to work out a compromise 

on this issue. On October 16, 2008, 

NEBSA and WCA submitted a joint 

proposal that reflects a compromise 

agreement between them regarding the 

maximum permissible lease term for 

grandfathered leases, which they assert 

is ‘‘fair and reasonable’’ in addressing 

their different concerns. 

9. We conclude that the public 

interest would best be served by 

adopting the NEBSA/WCA Proposal. 

The NEBSA/WCA Proposal ensures the 

stability of existing viable relationships 

between educators and commercial 

lessees. We therefore adopt the 

compromise proposal as follows. Every 

grandfathered lease entered into before 

January 10, 2005, is limited to a term of 

15 years commencing from its start date, 

which remains the date of execution 

except under certain circumstances. For 

earlier leases, i.e., grandfathered excess 

capacity leases executed before January 

25, 1999, the start date is the date on 

which it was executed unless the 

existing lease provided for a later start 

date, and: (1) the lease actually started 

before March 20, 2008—as 

demonstrated by documentary evidence 

(including that the EBS licensee/lessor 

has been paid on or after the 

commencement of the lease)—in which 

case the lease will be deemed to have 

started on the start date contained in the 

lease; or (2) the lease did not start before 

March 20, 2008, but the parties have 

agreed in writing to continue with the 

existing lease, in which case the start 

date is deemed to be March 20, 2008. 

For later leases, i.e., grandfathered 

leases executed on or after January 25, 

1999, but before January 10, 2005, the 

start date is the date on which the lease 

was executed unless the existing lease 

provided for a later start date. 

10. We find that the NEBSA/WCA 

Proposal addresses the concerns of the 

other parties that have taken positions 

on the term of grandfathered leases. We 

find that the NEBSA/WCA Proposal 

appropriately balances the needs of the 

commercial lessee—to have a significant 

length of time in which to build out its 

service—with the needs of the 

educational licensee/lessor not to be 

tied indefinitely to lease agreements that 

have not provided it with educational 

services or lease revenues. We have 

granted relief with respect to one-way 

analog video leases entered into prior to 

the Two-Way Order. Further, with 

respect to leases involving broadband 

services, the rule changes we have made 

in this proceeding have been designed 

to facilitate the provision of broadband 

services. We decline to adopt the 

alternative proposals offered by the 

parties to this proceeding. 

B. Simultaneous Operation on Old and 

New BRS Channels 1 and 2/2A 

11. Background. In the BRS/EBS R&O, 

the Commission not only restructured 

the 2500–2690 MHz band, but also 

designated the 2495–2500 MHz band for 

use in connection with the 2500–2690 

MHz band. In the BRS/EBS R&O, the 

Commission proceeded to relocate BRS 

Channels 1 and 2/2A to new channel 

locations in the 2495–2690 MHz band. 

Specifically, BRS Channel 1 would be 

relocated from 2150–2156 MHz (which 

was redesignated for Advanced Wireless 

Service (AWS)) to 2496–2502 MHz and 

Channel 2/2A would be relocated from 

2156–2160/62 MHz (also redesignated 

for AWS) to 2618–2624 MHz. In the 

BRS/EBS Third MO&O, the Commission 

discussed the relationship between the 

transition within the 2.5 GHz band and 

the relocation of the BRS Channels No. 

1 and No. 2/2A incumbents currently 

operating at 2150–2156 MHz and 2156– 

2160/62 MHz. In that regard, the 

Commission held that licensees on these 

channels may operate in either 2150– 

2156 or 2496–2500 MHz (for BRS 

Channel 1) or 2156–2160/62 or 2686– 

2690 MHz band (for BRS Channel 2/2A) 

pre-transition, but not in both bands. In 

the BRS/EBS Fourth MO&O, the 

Commission, in response to a petition 

for reconsideration filed by WCA, found 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 49337 

that BRS Channels 1 and 2/2A licensees 

may operate simultaneously in their old 

locations at 2150–2156 MHz and 2156– 

2160/62 MHz and their temporary, pretransition locations at 2496–2500 MHz 

(BRS Channel 1) and 2686–2690 MHz 

(BRS Channel 2) until every subscriber 

is relocated to the 2.5 GHz band, at 

which point the licensees must cease all 

operations in the 2150–2160/62 MHz 

band. 

12. In the WCA Petition, WCA asks 

the Commission to confirm that even 

after a Basic Trading Area has been 

transitioned, BRS Channels 1 and 2/2A 

licensees may simultaneously operate in 

both the 2.1 GHz band and the 2.5 GHz 

band until all of their subscribers have 

been successfully migrated to the 2.5 

GHz band. 

13. We agree with WCA that it is not 

in the public interest to permit 

simultaneous operations, pre-transition, 

but prohibit them post-transition prior 

to the migration of subscribers. Thus, 

we conclude that BRS Channels 1 and 

2/2A operators may simultaneously 

operate, post-transition, in their old 

channel locations at 2150–2156 MHz 

and 2156–2160/62 MHz and their new 

channel locations at 2496–2502 MHz or 

2618–2624 MHz until such time as all 

of their subscribers have been migrated 

to the 2.5 GHz band. Advanced Wireless 

Service (AWS) licensees must relocate 

existing BRS operations at 2150–2156 

MHz and 2156–2160/62 MHz if 

necessary in order to commence AWS 

operations in the band under 

circumstances specified in the 

Commission’s rules. Since the BRS rules 

do not explicitly allow simultaneous 

operation, post-transition, on both the 

old and new channel locations, we 

amend §§ 27.5(i)(2)(i) and (iii) of the 

Commission’s rules to add such 

authorization. 

III. Procedural Matters 

14. Paperwork Reduction Analysis. 

This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

IV. Final Regulatory Flexibility Act 

Certification of BRS/EBS Fifth MO&O 

15. For the reasons described below, 

we now certify that the policies and 

rules adopted in the BRS/EBS Fifth 

MO&O will not have a significant 

economic impact on a substantial 

number of small entities. 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 U.S. Small Business 

Administration (SBA). 

16. In this BRS/EBS Fifth MO&O, the 

Commission permits BRS Channels 1 

and 2/2A licensees to simultaneously 

operate in their old channel locations at 

2150–2160/62 MHz and their new 

channel locations at 2496–2502 MHz or 

2618–2624 MHz, post-transition, until 

all of their subscribers have been 

migrated to the 2.5 GHz band. In the 

BRS/EBS Fourth MO&O, the 

Commission permitted BRS Channels 1 

and 2/2A operators to simultaneously 

operate in their old channel locations 

and their temporary channel locations at 

2496–2500 MHz or 2686–2690 MHz, 

pre-transition. 

17. We find that our actions will not 

affect a substantial number of small 

entities because it affects only BRS 

Channels 1 and 2/2A operators that are 

actually operating and that will migrate 

subscribers post-transition to the 2.5 

GHz band. Furthermore, our actions 

provide such entities with additional 

flexibility to operate simultaneously in 

their old and new channel positions 

while transitioning their systems to the 

new band plan. Therefore, we certify 

that the requirements of the BRS/EBS 

Fifth MO&O will not have a significant 

economic impact on a substantial 

number of small entities. 

V. Report to Congress 

18. The Commission will send a copy 

of this Fifth Memorandum Opinion and 

Order, including a copy of this Final 

Regulatory Flexibility Certification, in a 

report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Small Business 

Regulatory Enforcement Fairness Act of 

1996, see 5 U.S.C. 801(a)(1)(A). 

VI. Ordering Clauses 

19. Accordingly, it is ordered, that 

pursuant to section 4(i) and 405 of the 

Communications Act of 1934, 47 U.S.C. 

154(i), 405, and § 1.429 of the 

Commission’s rules, 47 CFR 1.429, the 

Petitions for Reconsideration filed by 

the Wireless Communications 

Association International, Inc. and 

Gateway Access Solutions, Inc. on June 

9, 2008, are granted in part and are 

otherwise denied. 

20. It is further ordered, pursuant to 

section 4(i) of the Communications Act 

of 1934, 47 U.S.C. 154(i), and § 1.44(e) 

of the Commission’s rules, 47 CFR 

1.44(e), that the Petition for Stay of 

Wireless Communications Association 

International, Inc. filed on June 9, 2008, 

is dismissed as moot. 

21. It is further ordered, pursuant to 

section 4(i) of the Communications Act 

of 1934, 47 U.S.C. 154(i), that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Fifth Memorandum Opinion and 

Order, including the Final Regulatory 

Certification, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. 

List of Subjects in 47 CFR Part 27 

Communications common carriers, 

Communications equipment, Equal 

employment opportunity, Radio, 

Reporting and recordkeeping 

requirements, Satellites, Securities, 

Telecommunications. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 27 as 

follows: 

PART 27—MISCELLANEOUS 

WIRELESS COMMUNICATIONS 

SERVICES 

■ 1. The authority citation for part 27 

continues to read as follows: 

Authority: 47 U.S.C. 154, 301, 302, 303, 

307, 309, 332, 336, and 337 unless otherwise 

noted. 

■ 2. Amend § 27.5 by revising 

paragraphs (i)(2)(i) and (i)(2)(iii) to read 

as follows: 

§ 27.5 Frequencies. 

* * * * * 

(i) * * * 

(2) * * * 

(i) Lower Band Segment (LBS): The 

following channels shall constitute the 

Lower Band Segment: 

BRS Channel 1: 2496–2502 MHz or 

2150–2156 MHz 

EBS Channel A1: 2502–2507.5 MHz 

EBS Channel A2: 2507.5–2513 MHz 

EBS Channel A3: 2513–2518.5 MHz 

EBS Channel B1: 2518.5–2524 MHz 

EBS Channel B2: 2524–2529.5 MHz 

EBS Channel B3: 2529.5–2535 MHz 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
49338 Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 

EBS Channel C1: 2535–2540.5 MHz 

EBS Channel C2: 2540.5–2546 MHz 

EBS Channel C3: 2546–2551.5 MHz 

EBS Channel D1: 2551.5–2557 MHz 

EBS Channel D2: 2557–2562.5 MHz 

EBS Channel D3: 2562.5–2568 MHz 

EBS Channel JA1: 2568.00000– 

2568.33333 MHz 

EBS Channel JA2: 2568.33333– 

2568.66666 MHz 

EBS Channel JA3: 2568.66666– 

2569.00000 MHz 

EBS Channel JB1: 2569.00000– 

2569.33333 MHz 

EBS Channel JB2: 2569.33333– 

2569.66666 MHz 

EBS Channel JB3: 2569.66666– 

2570.00000 MHz 

EBS Channel JC1: 2570.00000– 

2570.33333 MHz 

EBS Channel JC2: 2570.33333– 

2570.66666 MHz 

EBS Channel JC3: 2570.66666– 

2571.00000 MHz 

EBS Channel JD1: 2571.00000– 

2571.33333 MHz 

EBS Channel JD2: 2571.33333– 

2571.66666 MHz 

EBS Channel JD3: 2571.66666– 

2572.00000 MHz 

* * * * * 

(iii) Upper Band Segment (UBS): The 

following channels shall constitute the 

Upper Band Segment: 

BRS Channel KH1: 2614.00000– 

2614.33333 MHz. 

BRS Channel KH2: 2614.33333– 

2614.66666 MHz. 

BRS Channel KH3: 2614.66666– 

2615.00000 MHz. 

EBS Channel KG1: 2615.00000– 

2615.33333 MHz. 

EBS Channel KG2: 2615.33333– 

2615.66666 MHz. 

EBS Channel KG3: 2615.66666– 

2616.00000 MHz. 

BRS Channel KF1: 2616.00000– 

2616.33333 MHz. 

BRS Channel KF2: 2616.33333– 

2616.66666 MHz. 

BRS Channel KF3: 2616.66666– 

2617.00000 MHz. 

BRS Channel KE1: 2617.00000– 

2617.33333 MHz. 

BRS Channel KE2: 2617.33333– 

2617.66666 MHz. 

BRS Channel KE3: 2617.66666– 

2618.00000 MHz. 

BRS Channel 2: 2618–2624 MHz or 

2156–2162 MHz. 

BRS Channel 2A: 2618–2624 MHz or 

2156–2160 MHz. 

BRS/EBS Channel E1: 2624–2629.5 

MHz. 

BRS/EBS Channel E2: 2629.5–2635 

MHz. 

BRS/EBS Channel E3: 2635–2640.5 

MHz. 

BRS/EBS Channel F1: 2640.5–2646 

MHz. 

BRS/EBS Channel F2: 2646–2651.5 

MHz. 

BRS/EBS Channel F3: 2651.5–2657 

MHz. 

BRS Channel H1: 2657–2662.5 MHz. 

BRS Channel H2: 2662.5–2668 MHz. 

BRS Channel H3: 2668–2673.5 MHz. 

EBS Channel G1: 2673.5–2679 MHz. 

EBS Channel G2: 2679–2684.5 MHz. 

EBS Channel G3: 2684.5–2690 MHz. 

* * * * * 

[FR Doc. E9–23330 Filed 9–25–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 599 

[Docket No. NHTSA–2009–0120] 

RIN 2127–AK61 

Requirements and Procedures for 

Consumer Assistance To Recycle and 

Save Program 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

regulation implementing the Consumer 

Assistance to Recycle and Save (CARS) 

Program, published on July 29, 2009 in 

the Federal Register, under the CARS 

Act. The rule adds an exception process 

for registered dealers who were 

prevented from submitting an 

application for reimbursement for a 

qualifying transaction prior to the 

announced August 25, 2009 deadline 

due to problems associated with the 

CARS electronic transaction system. 

DATES: This final rule is effective 

September 28, 2009. A request for an 

exception must be postmarked no later 

than October 13, 2009. 

ADDRESSES: A request for exception 

must be made in writing and mailed by 

United States mail to the NHTSA 

Administrator, 1200 New Jersey Ave., 

SE., Washington, DC 20590. 

FOR FURTHER INFORMATION CONTACT: For 

questions, you may call David Bonelli, 

NHTSA Office of Chief Counsel, 

telephone (202) 366–5834. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule amends the regulation 

implementing the Consumer Assistance 

to Recycle and Save (CARS) Program, 

published on July 29, 2009 (74 FR 

37878), with a previous amendment 

published on August 5, 2009 (74 FR 

38974), under the CARS Act (Pub. L. 

111–32). The rule adds an exception 

process for registered dealers who were 

unable to submit an application for 

reimbursement for a qualifying 

transaction prior to August 25, 2009, 8 

pm EDT, NHTSA’s announced deadline 

for the program. As detailed below, this 

exception process is available only 

where the delay is attributable to action 

or inaction by NHTSA. 

Due to the enormous popularity of the 

CARS program, the available Federal 

funds were depleted in a short period of 

time. Based on daily projections of 

transactions, NHTSA determined that it 

was necessary to declare an August 24, 

2009, 8 pm EDT deadline for completing 

CARS deals and an August 25, 2009, 8 

pm EDT deadline for submitting 

applications for reimbursement. The 

agency received an overwhelming 

number of inquiries to the CARS hotline 

from dealers and consumers during the 

course of the program, and especially 

during the days immediately prior to the 

announced deadline. From these 

inquiries, we learned that dealers 

encountered problems in submitting 

applications for reimbursement as a 

result of problems caused by the 

agency’s transaction system. Because 

the agency was unable to respond to and 

resolve some of these problems prior to 

the application deadline, some dealers 

who had made qualifying CARS deals 

and extended credits to consumers in 

accordance with the provisions of the 

rule were prevented from completing 

and submitting applications for 

reimbursement. 

We are aware that some of these 

difficulties arose because of a feature 

that automatically locks a dealer out of 

the CARS transaction system and 

prevents the dealer from being able to 

re-enter the system without the agency’s 

assistance. This occurred, for example, 

when a dealer inaccurately entered its 

account password into the system 

multiple times. Ordinarily, the dealer’s 

password could be reset through a 

simple telephone call to the agency for 

technical assistance. However, due to 

the volume of transactions and 

inquiries, some dealers may have been 

unsuccessful in their attempts to get 

their passwords reset prior to the 

deadline. 

We are aware also that some dealers 

were unable to submit an electronic 

application because of an automatic 

feature that precluded a submission 

with a State identification number, a 

trade-in vehicle’s vehicle identification 

number (VIN), or a new vehicle’s VIN 


CPrice-Sewell on DSKGBLS3C1PROD with RULES