59822 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

claim does not meet the requirements of

the use and occupancy regulations. See

43 CFR 3715.7–1.

Paragraph (a)(2) of the cited section

provides, in pertinent part, that BLM

may order an immediate, temporary

suspension of a use or occupancy if

necessary to protect health, safety, or

the environment. Paragraph (a)(2)(ii)

specifies that failure to meet any of the

standards in 43 CFR 3715.3–1(b) or

3715.5(b), (c), or (d) will result in a

presumption that a risk to health, safety,

or the environment exists and issuance

of an immediate, temporary suspension.

(Emphasis added.). See 61 FR 37129,

third column. The reference to 43 CFR

3715.5(d) is incorrect. The reference

should be to 43 CFR 3715.5(e). The

preamble to final section 3715.7–1

contains the same error. See 61 FR

37123, third column, third paragraph.

The effect of this correction is to

provide that if a permanent or

temporary structure placed on public

lands fails to conform with the

applicable State or local building, fire,

or electrical codes; occupational safety

and health standards; or mine safety

standards, BLM will presume that

health, safety, or the environment is at

risk and will order the user or occupant

of the structure to immediately suspend

use or occupancy.

Under the Administrative Procedure

Act, an agency does not have to issue a

notice of proposed rulemaking when the

agency for good cause finds that notice

and public procedure are

‘‘impracticable, unnecessary, or contrary

to the public interest.’’ See 5 U.S.C.

553(b). Because the amendments

adopted today are technical corrections

to clarify the applicability of the final

rule, BLM finds that publishing the

amendments for comment would be

unnecessary. BLM adopted the rules

being amended after notice and the

opportunity for public comment. The

proposed rule did not contain the crossreference error. See proposed

§ 3715.6(b) (57 FR 41846, Sept. 11,

1992). The changes are responsive to

concerns raised with BLM relating to

ambiguity in the current language of the

rules created by use of the undefined

‘‘hardrock’’ phrases and the erroneous

cross reference. If BLM delayed making

these changes so as to allow notice and

the opportunity for comment, there is

the danger of confusion regarding the

applicability of regulations and the type

of enforcement action BLM will take if

a person fails to comply with State and

local building, fire, and electrical codes;

occupational safety and health

standards; or mine safety standards for

permanent and temporary structures

placed on public lands.

Under the Administrative Procedure

Act, an agency must publish a

substantive rule not less than 30 days

before its effective date, except as

otherwise provided by the agency for

good cause. See 5 U.S.C. 553(d). For the

same reasons described above with

respect to notice and opportunity for

comment, BLM finds that there is good

cause for having these correcting

amendments become effective

immediately on publication in the

Federal Register.

List of Subjects in 43 CFR Part 3710

Administrative practice and

procedure, Mines, Public lands-mineral

resources.

Dated: October 28, 1997.

Sylvia V. Baca,

Deputy Assistant Secretary, Land and

Minerals Management.

Accordingly, BLM is correcting 43

CFR 3710 by making the following

correcting amendments:

PART 3710—PUBLIC LAW 167; ACT

OF JULY 23, 1955

Subpart 3715—Use and Occupancy

under the Mining Laws

1. The authority citation for subpart

3715 continues to read as follows:

Authority: 18 U.S.C. 1001, 3571 et seq.; 30

U.S.C. 22, 42, 612; and 43 U.S.C. 1061 et seq.,

1201, 1457, 1732(b) and (c), 1733(a) and (g).

2. In § 3715.0–5, revise the definition

of ‘‘Mining laws’’ to read as follows:

§ 3715.0–5 How are certain terms in this

subpart defined?

* * * * *

Mining laws means all laws that apply

to mining of locatable minerals on

public lands and which make public

lands available for development of

locatable minerals. This includes, but is

not limited to, the general authorities

relating to mining of locatable minerals

or to the public lands on which this

subpart is based and case law which

interprets those authorities.

* * * * *

3. In § 3715.7–1, revise paragraph

(a)(2)(ii) to read as follows:

§ 3715.7–1 What types of enforcement

action can BLM take if I do not meet the

requirements of this subpart?

(a) * * *

(2) * * *

(ii) You fail at any time to meet any

of the standards in § 3715.3–1(b) or

§ 3715.5(b), (c), or (e).

* * * * *

[FR Doc. 97–29281 Filed 11–4–97; 8:45 am]

BILLING CODE 4310–84–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 1

[MD Docket No. 96–186; FCC 97–384]

Assessment and Collection of

Regulatory Fees for Fiscal Year 1997

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission is revising

its collection procedures for regulatory

fees in order to help assure increased

accuracy and timeliness of regulatory

fee payments. First, permittees,

licensees or other entities subject to a

regulatory fee and claiming an

exemption from regulatory fees based

upon its status as a nonprofit entity,

shall make a one-time filing with the

Secretary of the Commission written

documentation establishing the basis for

its exemption with 60 days of its coming

under the regulatory jurisdiction of the

Commission or at the time its fee

payment would otherwise be due,

whichever is sooner, or at such other

time as required by the Managing

Director. Second, for-profit purchasers

or assignees of licenses, stations or

facilities previously owned by nonprofit entities not subject to regulatory

fees must notify the Secretary of the

Commission of such purchase or

reassignment within 60 days of the

effective date of the purchase or

assignment. Third, the Commission is

requiring licensees of Commercial

Mobile Radio Service (CMRS) stations to

retain for two years, and submit to the

Commission upon request,

documentation used in calculating their

fee payments. Finally, the Commission

is delegating authority to the Managing

Director to publish annually in the

Federal Register lists of those

commercial communications firms and

businesses for commercial purposes that

have paid a regulatory fee for the

preceding fiscal year.

EFFECTIVE DATE: November 5, 1997.

ADDRESSES: Federal Communications

Commission, Room 222, 1919 M Street,

N.W., Washington, D.C. 20554.

FOR FURTHER INFORMATION CONTACT:

Regina W. Dorsey, Chief, Billings &

Collections Branch, (202) 418–1995.

SUPPLEMENTARY INFORMATION:

1. In the Further Notice of Proposed

Rulemaking in this proceeding, the

Commission proposed to adopt several

new procedures in order to more

efficiently and equitably collect the

annual regulatory fees required by
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59823

1See Attachment for a list of commenters who

responded to the FNPRM.

Section 9 of the Communications Act,

47 U.S.C. 159. See Further Notice of

Proposed Rulemaking in the Matter of

Assessment and Collection of

Regulatory Fees for Fiscal Year 1997, 62

FR 40036 (July 25, 1997)(FNPRM). We

address below the comments filed in

this proceeding and adopt the proposed

new procedures with some

modifications.1

2. Specifically, we adopt a

requirement that non-profit entities

claiming an exemption from regulatory

fees make a one-time filing of

documentation establishing their

exempt status. We also adopt a

requirement that for-profit purchasers or

assignees of stations or facilities

previously owned by non-profit entities

notify the Commission of such

reassignment or sale. Additionally, we

adopt a requirement that licensees of

Commercial Mobile Radio Services

(CMRS) maintain, and submit upon

request, documentation supporting the

calculations of their fee payments.

Finally, the amendments will authorize

the Managing Director to publish

annually in the Federal Register the

names of all fee payers.

Documentation for Non-Profit Entities

3. Section 1.1162(c) of the

Commission’s Rules currently exempts

from payment of regulatory fees those

entities possessing non-profit status

under section 501 of the Internal

Revenue Code, 26 U.S.C. 501, or

certification as a non-profit corporation

or other non-profit entity by a state or

other governmental authority. See 47

CFR 1.1162(c). The FNPRM proposed a

one-time requirement that non-profit

entities claiming exemptions from the

regulatory fee requirement submit

documentation establishing their nonprofit status. Currently, non-profit

entities are required to file such

documentation only when requested by

the Commission. In its comments, the

National Telephone Cooperative

Association (NTCA) opposed this

proposed requirement, arguing that the

FNPRM failed to demonstrate a need for

the filing requirement.

4. We are adopting the requirement

for filing non-profit documentation as

proposed. We believe this requirement

will substantially assist us in

administering the fee program.

Development of a comprehensive data

base of exempt entities will enable us to

assure that only those entities entitled to

the exemption benefit from it. It will

also help assure that we calculate fees

based upon a more accurate assessment

of the number of entities expected to

pay fees. The one-time filing

requirement will thus enable us to more

equitably establish appropriate fees for

all payers. Further, although NTCA

expresses concern regarding the burden

of the filing requirement, we believe

that duplication and mailing of a

document already retained in the

ordinary course of an entity’s business

for tax and other purposes results in

only a minimal administrative burden.

We will thus require that all entities

claiming an exemption from payment of

regulatory fees file a copy of the

documentation supporting their nonprofit status. These documents must be

submitted to the Secretary of the

Commission at a time to be established

in a public notice which will be

published in the Federal Register.

Entities claiming non-profit status must

also notify the Secretary within sixty

days of any change in their non-profit

status; and for-profit purchasers or

assignees of stations or facilities

previously owned or operated by nonprofit entities must also notify the

Secretary of the purchase or

reassignment within 60 days of the

purchase or assignment.

5. NTCA also requested that we

permit entities claiming exemption from

payment of a regulatory fee to establish

their non-profit status using types of

documentation other than their current

IRS determination letters or certification

from a state or other governmental

authority. Specifically, NTCA argues

that an entity’s Articles of Incorporation

are the best evidence of its non-profit

status and the Commission should also

accept the Articles, annual state reports

or similar documents. NTCA believes

that its proposal will lessen the

administrative burden on small entities.

We note that IRS determination letters

and state or government certifications

are generally one or two page

documents maintained as part of an

entity’s business files, which can easily

be copied and filed with the

Commission. Nevertheless, if for some

reason an entity is unable to produce

governmental certification, the amended

rules also permit submission of other

documents establishing non-profit

status, as long as the documents bear

evidence that non-profit status has been

approved by a state or other

governmental authority, consistent with

the laws or regulations of the

jurisdiction.

Documentation of CMRS Fees

6. The FNPRM proposed to require

Commercial Mobile Radio Service

(CMRS) licensees to retain documents

used in the calculation of their

regulatory fees for a period of three

years. A number of commenters argued

that the Commission should not specify

a format for those documents; that

CMRS licensees should continue to

retain flexibility in maintaining record

keeping systems; that they should not be

required to generate new or additional

paperwork; and that they should not be

required to substantiate fees in a manner

not required for other services. See

Comments filed by Bell Atlantic,

NYNEX Mobile, Inc., Rural Cellular

Association, Rural Telecommunications

Group and GTE Service Corporation

(GTE).

7. We agree that CMRS licensees

should have maximum flexibility to

determine what documents they will

use to calculate fees and that they

should not be required to generate new

or additional paperwork. Our proposal

required only that CMRS entities retain

the work papers used or developed in

the course of calculating their fees.

Thus, we were not requiring that CMRS

licensees undertake new or additional

paperwork, or utilize any particular

format for calculating their fees. Also to

the extent this proposal imposed

somewhat different requirements on

CMRS licensees, we believe those

differences were justified. We have

identified several discrepancies between

projected and actual CMRS regulatory

fees which are of concern. For example,

for FY 1996 the actual number of units

for which regulatory fees were paid was

18.1% below the total that was used to

formulate the CMRS fees. While this

disparity may result from errors in

estimating the overall number of

subscribers in the CMRS services, we

believe that closer oversight of CMRS

fee payments is prudent. Assessing

more accurate fees would also benefit,

without any significant burden, all

CMRS licensees by helping to ensure

that all CMRS fee payers fully comply

with their obligation to contribute to the

recovery of our costs of regulating

CMRS. Thus, we will require CMRS

licensees to retain, and submit to the

Commission upon request, those

documents which were actually used in

the calculation of their fee payments

and that demonstrate the accuracy of the

payment. This will enable the

Commission to efficiently audit the fee

payments of CMRS licensees without

creating any undue additional burden.

8. GTE and United States Cellular

Corporation (USCC) also argue that our

proposed requirement that CMRS

regulatees maintain their payment

records for a three year period is

unreasonable. GTE notes that our rules

require telephone companies to retain

their billing records for only eighteen
59824 Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations

2Southwestern Bell Mobil Systems also contends

that the FNPRM’s statement that regulatory fee

payments by CMRS licensees shall be calculated on

the ‘‘number of pagers, cellular telephones, or PCS

units’’ is inconsistent with the fee payment

requirements set forth in the Report and Order. We

disagree. The Report and Order established fees for

cellular telephone and PCS units in the CMRS

Mobile Services and a fee for paging units in the

CMRS Messaging Service.

3 5 U.S.C. § 603.

4See 5 U.S.C. § 604. The RFA, see 5 U.S.C. 601

et seq., has been amended by the Contract with

America Advancement Act (CWAAA), Public Law

104–121, 110 Stat. 847 (1996). Title II of the

CWAAA is ‘‘The Small Business Regulatory

Enforcement Fairness Act of 1996’’ (SBREFA).

months. See 47 CFR 42.6. We agree that

requiring CMRS licensees to retain these

records for three years is unnecessary.

We expect that any verification of fee

payments would be accomplished

within two years from the time that the

fee payments are made. Thus, we are

modifying our proposal and will require

only a two year retention period for this

documentation. Southwestern Bell

Mobile Systems, Inc. also asserts that

the fee documentation may contain

highly confidential customer

information. In this regard, CMRS

licensees with concerns about the

disclosure of sensitive information in

any submissions to the Commission

may request confidential treatment

pursuant to § 0.459 of the Rules. See 47

CFR 0.459.

Publication of Fee Data

9. In the FNPRM, we proposed to

publish in the Federal Register a list of

all commercial regulatees that have paid

their regulatory fees, along with the

amount of the fee paid by each fee

payor, and the volume or number of

units upon which the fee payment was

based.2 Many commenters opposed our

proposal, contending that publication of

fee payments and units would require

regulatees to disclose highly

confidential business information.

10. We agree that the proposal to

publish payment data could result in

the disclosure of sensitive marketing

information in some instances. We also

conclude that there is an insufficient

basis at this time to warrant disclosure

of such information. Thus, we will not

publish either fee payment information

or the unit totals upon which a fee

payment is calculated. We believe,

however, that publication of the names

of commercial fee payers may serve as

a deterrent to non-payment. Thus, we

delegate to the Managing Director

authority to issue annually a public

notice setting forth the names of

commercial regulatory fee payers and to

publish the public notice in the Federal

Register.

Final Regulatory Flexibility Analysis

11. As required by the Regulatory

Flexibility Act (RFA),3 an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in the Further Notice

of Proposed Rulemaking In the Matter of

Assessment and Collection of

Regulatory Fees for Fiscal Year 1997, 62

FR 40036 (July 25, 1997). The

Commission sought written public

comments on the proposals in its

FNPRM, including on the IRFA. This

present Final Regulatory Flexibility

Analysis (FRFA) conforms to the RFA,

as amended.4

I. Need for and Objectives of this Report

and Order

12. This rulemaking proceeding was

initiated in order to modify our

collection procedures for regulatory fees

in order to help assure increased

accuracy and timeliness of regulatory

fee payments.

II. Summary of Significant Issues Raised

by Public Comments in Response to the

IRFA

13. None.

III. Description and Estimate of the

Number of Small Entities To Which the

Proposed Rules Will Apply

14. Under the RFA, small entities may

include small organizations, small

businesses, and small governmental

jurisdictions. 5 U.S.C. 601(6). The RFA,

5 U.S.C. 601(3), generally defines the

term ‘‘small business’’ as having the

same meaning as the term ‘‘small

business concern’’ under the Small

Business Act, 15 U.S.C. 632. A small

business concern is one that: (1) Is

independently owned and operated; (2)

is not dominant in its field of operation;

and (3) meets any additional criteria

established by the Small Business

Administration (SBA).

15. The proposals adopted in this

Report and Order affect a very broad

array of small entities, including small

entities described as cable services or

systems, common carrier services and

related entities, international services,

mass media services, and wireless and

commercial mobile services. In the

rulemaking proceeding in this docket

preceding the FNPRM, we extensively

described the small entities that might

be affected by this action, and have also

described the numbers of such entities.

(See ‘‘Final Regulatory Flexibility

Analysis,’’ Attachment A of Report and

Order, MD Docket No. 96–186, FCC 97–

215, released June 26, 1997, 62 FR

37408 (July 11, 1997).) We hereby

incorporate into this FRFA, by

reference, those descriptive sections

from the previous Report and Order.

IV. Description of Projected Reporting,

Recordkeeping, and Other Compliance

Requirements

16. With certain exceptions, the

Commission’s Schedule of Regulatory

Fees applies to all Commission

licensees and regulatees. In the

rulemaking proceeding in this docket

preceding the FNPRM, we described the

methodology used by affected entities to

determine required fee amounts, the

procedures for calculating and filing fee

payments, the skills necessary to file,

and the results of not filing in

accordance with the rules. (See Report

and Order, FCC 97–215 supra. at

Attachment H and § 1.1157 through

1.1167 of the Commission’s Rules, 47

CFR 1.1157 through 1.1167.) We hereby

incorporate into this FRFA, by

reference, those descriptions. In

addition, we note that the proposals

adopted here require Commercial

Mobile Radio Service (CMRS) licensees

to maintain and make available to the

FCC, upon request, documentation

concerning the basis for their fee

payments and that these documents be

retained by the payer for two years;

require that non-profit entities exempt

from the regulatory fee requirement

submit documentation of their nonprofit status; that for-profit entities

purchasing a station from a non-profit

entity notify the Commission of the sale

or reassignment; and authorize the

Commission to publish annually, in the

Federal Register, a list of those firms

and individuals who paid a fee for the

preceding fiscal year and who engaged

in the provision of communications for

commercial purposes.

V. Steps Taken To Minimize Any

Significant Economic Impact on Small

Entities, and Significant Alternatives

Considered

17. As described in the Paragraph 16,

the Commission proposed certain

modifications to the collection

procedures for regulatory fees in order

to help assure increased accuracy and

timeliness of regulatory fee payments.

Each of the above-described proposals

that require compliance would entail

some level of economic impact, and this

impact would fall on some small

entities. We believe, however, that these

proposals, if adopted, would help

ensure the integrity of the regulatory

fees program. We have reduced the

impact as a result of public comments.

Documentation concerning the basis for

CMRS fees must be retained for only

two years rather than three, and need

not be submitted to the Commission
Federal Register / Vol. 62, No. 214 / Wednesday, November 5, 1997 / Rules and Regulations 59825

unless requested. Further, this Report

and Order authorizes the Managing

Director the option to publish only the

names of fee payers and not fee amounts

and unit counts objected to by

commenters.

Report to Congress: The Commission

shall include a copy of this Final

Regulatory Flexibility Analysis, along

with this Report and Order, in a report

to Congress pursuant to the Small

Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C.

601(a)(1)(A). A copy of this FRFA (or

summary thereof) will also be published

in the Federal Register, along with this

Report and Order.

Ordering Clauses

18. Accordingly, it is ordered, That

the rule changes as specified above and

as set forth in the Attachment are

adopted.

19. It is further ordered that the rule

changes made herein will become

effective November 5, 1997. This action

is taken pursuant to Sections 4(i), 4(j),

9 and 303(r) of the Communications Act

as amended, 47 U.S.C. 154(i), 154(j), 159

and 303(r).

Federal Communications Commission.

William F. Caton,

Acting Secretary.

Rule Changes

Part 1 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 1—PRACTICE AND

PROCEDURE

1. The authority citation for part 1

continues to read as follows:

Authority: 47 U.S.C. 151, 154, 207, 303 and

309(j) unless otherwise noted.

2. Section 1.1157 is amended by

adding a new paragraph (d) to read as

follows:

§ 1.1157 Payment of charges for

regulatory fees.

* * * * *

(d) Any Commercial Mobile Radio

Service (CMRS) licensee subject to

payment of an annual regulatory fee

shall retain for a period of two (2) years

from the date on which the regulatory

fee is paid, those business records

which were used to calculate the

amount of the regulatory fee.

3. Section 1.1159 is amended by

adding a new paragraph (e) to read as

follows:

§ 1.1159 Filing locations and receipts for

regulatory fees.

* * * * *

(e) The Managing Director may issue

annually, at his discretion, a Public

Notice setting forth the names of all

commercial regulatees that have paid a

regulatory fee and shall publish the

Public Notice in the Federal Register.

4. Section 1.1162 is amended by

adding new paragraphs (c)(1) and (c)(2)

to read as follows:

§ 1.1162 General exemptions from

regulatory fees.

* * * * *

(c) * * *

(1) Any permittee, licensee or other

entity subject to a regulatory fee and

claiming an exemption from a

regulatory fee based upon its status as

a nonprofit entity, as described above,

shall file with the Secretary of the

Commission (Attn: Managing Director)

written documentation establishing the

basis for its exemption within 60 days

of its coming under the regulatory

jurisdiction of the Commission or at the

time its fee payment would otherwise be

due, whichever is sooner, or at such

other time as required by the Managing

Director. Acceptable documentation

may include Internal Revenue Service

determination letters, state or

government certifications or other

documentation that non-profit status

has been approved by a state or other

governmental authority. Applicants,

permittees and licensees are required to

file documentation of their nonprofit

status only once, except upon request of

the Managing Director.

(2) Within sixty (60) days of a change

in nonprofit status, a licensee or

permittee previously claiming a 501(C)

exemption is required to file with the

Secretary of the Commission (Attn:

Managing Director) written notice of

such change in its nonprofit status or

ownership. Additionally, for-profit

purchasers or assignees of a license,

station or facility previously licensed or

operated by a non-profit entity not

subject to regulatory fees must notify the

Secretary of the Commission (Attn:

Managing Director) of such purchase or

reassignment within 60 days of the

effective date of the purchase or

assignment.

* * * * *

Note: The following attachment will not

appear in the Code of Federal Regulations.

Attachment

Comments were filed by the following

parties:

GTE Service Corporation

United States Cellular Corporation

Saco River Cellular Corporation

Citizens Utilities Company

Cellular XL Associates

Cellular Telecommunications Industry

Association

American Mobile Telecommunications

Association

BellSouth Corporation

PrimCo Personal Communications

Rural Cellular Association

Bell Atlantic NYNEX Mobile, Inc.

Rural Telecommunications Group

National Telephone Cooperative Association

Southwestern Bell Mobile Systems, Inc., et.

al.

Personal Communications Industry

Association

[FR Doc. 97–29176 Filed 11–4–97; 8:45 am]

BILLING CODE 6712–01–P