Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations 9103

§ 3809.3–2 Noncompliance.

* * * * *

(e) An operator or mining claimant

who compiles a record of

noncompliance is one who has been

served with a notice of noncompliance,

whose response period has passed, and

who has not commenced the actions

required by the authorized officer

within the time frames set forth in the

notice of noncompliance. An operator or

mining claimant with a record of

noncompliance will continue in

noncompliance status until the actions

required in the notice of noncompliance

have been completed. Any operator or

mining claimant with a record of

noncompliance must submit a plan of

operations within 30 days under

§ 3809.1–9 of this subpart for all existing

and subsequent operations that would

otherwise be conducted pursuant to a

notice under § 3809.1–3 of this subpart.

Operators or mining claimants with a

record of noncompliance will be

required to post financial guarantees

with the authorized officer under

§ 3809.1–9 within 90 days after

notification for all existing disturbance

for which said operators or mining

claimants are responsible. Failure to

post such financial guarantees within

the prescribed 90 days will result in the

withdrawal of approval of all existing

plans of operation, except that the

authorized officer may approve actions

proposed by an operator with a record

of noncompliance to resolve the cause

of the noncompliance or to protect

public safety or health or prevent

further unnecessary or undue

environmental degradation. Financial

guarantees held by a State will not be

acceptable for purposes of this section,

and the calculation must be certified at

the operator’s or mining claimant’s

expense by a third party professional

engineer registered to practice within

the State in which the activities are

proposed, and agreed to by the

authorized officer. The requirements of

this paragraph continue in force until

the operator or mining claimant has

come into and remained in compliance

with them and the regulations of this

subpart for a period of not less than 1

calendar year but not more than 3

calendar years. The duration of the

requirement will be determined by the

State Director.

(f)(1) Any person constituting an

operator, mining claimant, or its

authorized agent, who knowingly and

willfully violates any provision of this

subpart is subject to arrest and trial by

a United States magistrate and, if

convicted, shall be subject to a fine of

not more than $100,000, or the alternate

fine provided for in the applicable

provisions of 18 U.S.C. 3571, or

imprisoned for no more than twelve

months, or both.

(2) Any organization constituting an

operator, mining claimant, or its

authorized agent, that knowingly and

willfully violates any provision of this

subpart is subject to criminal

prosecution and, if convicted, shall be

subject to a fine of not more than

$200,000, or the alternative fine

provided for in the applicable

provisions of 18 U.S.C. 3571.

[FR Doc. 97–5016 Filed 2–27–97; 8:45 am]

BILLING CODE 4310–84–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 22

[CC Docket No. 90–6; FCC 96–56]

Amendment of Part 22 of the

Commission’s Rules To Provide for

Filing and Processing of Applications

for Unserved Areas in the Cellular

Service and To Modify Other Cellular

Rules

AGENCY: Federal Communications

Commission.

ACTION: Further memorandum opinion

and order on reconsideration.

SUMMARY: In this Memorandum Opinion

and Order on Reconsideration, the

Commission denies the petitions for

reconsideration and petitions for partial

reconsideration of the Commission’s

Third Report and Order and

Memorandum Opinion and Order on

Reconsideration 57 FR 53446,

November 10, 1992 in this Docket.

FOR FURTHER INFORMATION CONTACT:

Ramona Melson, Commercial Wireless

Division, Wireless Telecommunications

Bureau, (202) 418–7240.

SUPPLEMENTARY INFORMATION: This

Further Memorandum Opinion and

Order on Reconsideration in CC Docket

No. 90–6, adopted on February 13, 1996

and released on January 31, 1997, is

available for inspection and copying

during normal business hours in the

FCC Reference Center, Room 575, 2000

M Street N.W, Washington, D.C. The

complete text may also be purchased

from the Commission’s copy contractor,

International Transcription Service, Inc.

2100 M Street, N.W., Suite 140,

Washington, D.C. 20037, (202) 857–

3800. Synopsis of Further Memorandum

Opinion and Order on Reconsideration

I. Introduction

1. By these actions, we respond to

petitions for reconsideration and partial

reconsideration of the Third Report and

Order on Reconsideration and

Memorandum Opinion and Order on

Reconsideration 58 FR 27213, May 7,

1993 in this docket. Applicants Against

Lottery Abuses (AALA) and the

Committee for Effective Cellular Rules

(CECR) have filed petitions for

reconsideration of the Third Report and

Order, 58 FR 27213, May 7, 1993 and

Cellular Information Systems, Inc.,

Debtor in Possession (CIS), has filed a

petition for partial reconsideration (CIS

Petition) of the Third Report and Order

58 FR 27213, May 7, 1993. In addition,

we have before us five petitions for

reconsideration and three petitions for

partial reconsideration of our

Memorandum Opinion and Order on

Reconsideration 58 FR 11799, March 1,

1993. We also received a request by

PetroCom and Coastel for expedited

action on the CIS petition (PetroCom/

Coastel Request). For the reasons stated

below, we deny the requests for

reconsideration and partial

reconsideration of the Third Report and

Order and the Memorandum Opinion

and Order 58 FR 27213, May 7, 1993.

We dismiss the request for expedited

action as moot.

2. As a related matter, we note that

PetroCom and Coastel (collectively,

‘‘petitioners’’) filed petitions for review

with the United States Court of Appeals

for the District of Columbia Circuit

challenging Sections 22.903(a) and

22.903(d)(1) of the Commission’s rules.

Petitioners contend, inter alia, that the

Commission promulgated a consent

requirement for de minimis extensions

under Section 22.903(d)(1) without

providing proper notice and

opportunity for comment as required

under the Administrative Procedure Act

(APA), 5 U.S.C. § 553. On May 13, 1994,

the court denied the petition with

respect to petitioners’ claim that proper

notice and comment was not provided

because another party, CIS, had already

filed a petition for reconsideration with

the Commission alleging similar

violations and the petition had not yet

been resolved. This Further

Memorandum Opinion and Order

addresses the notice and comment

issues raised by the CIS petition and the

comments filed by petitioners in

support of the CIS petition. Other issues

raised by petitioners and the court will

be addressed in separate orders.

II. Background

3. The first licensee of a cellular radio

system authorized on a channel block in
9104 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations

each cellular market is afforded a fiveyear ‘‘build-out’’ period during which it

has the exclusive right to construct and

operate cellular facilities on its channel

block within the market. We initiated

this proceeding to adopt rules for the

acceptance, processing and selection of

applications for new cellular systems

proposing service to unserved areas. In

our First Report and Order and

Memorandum Opinion and Order on

Reconsideration 56 FR 58503,

November 20, 1991 in this docket, we

established rules and procedures for

processing and granting applications to

operate cellular systems in areas as yet

unserved upon expiration of the fiveyear ‘‘build-out’’ period. On the same

day that we adopted the First Report

and Order 56 FR 58503, November 20,

1991, we also adopted a Further Notice

of Proposed Rule Making 56 FR 58529,

November 20, 1991 in this docket which

proposed changes to various cellular

rules and requested additional

comments on a number of issues, as a

result of earlier comments filed in this

docket and not resolved by the First

Report and Order 56 FR 58503,

November 20, 1991. On April 9, 1992,

we released our Second Report and

Order 57 FR 13646, April 17, 1992 in

this docket, in which we adopted rules

to determine the boundaries of Cellular

Geographic Service Areas (CGSAs) by

the use of a mathematical formula, with

the objective of creating boundaries that

would more closely approximate actual

service to the public. The Second Report

and Order 57 FR 13646, April 17, 1992

also modified the authorizations of

existing cellular systems to redefine the

boundaries of their CGSAs in

accordance with the new standard. Our

Third Report and Order and

Memorandum Opinion and Order on

Reconsideration 58 FR 27213, May 7,

1993 in this docket dealt with a variety

of issues governing our licensing of

cellular radio facilities, specifically

those issues set forth in the Further

Notice 56 FR 58529, November 20, 1991

not previously addressed in the Second

Report and Order 57 FR 13646, April

17, 1992. The Third Report and Order

58 FR 27213, May 7, 1993 also disposed

of ten petitions for reconsideration of

our First Report and Order 56 FR 58503,

November 20, 1991. Petitions for

reconsideration of the Second Report

and Order 57 FR 13646, April 17, 1992

were addressed in the 1993

Memorandum Opinion and Order on

Reconsideration 58 FR 11799, March 1,

1993 in this docket.

III. Discussion

A. Petitions for Reconsideration of the

Third Report and Order Lottery Rules

4. In the Third Report and Order 58

FR 27213, May 7, 1993, we adopted

Sections 22.927 and 22.928 of our rules.

Under these rules, an applicant or a

petitioner may receive only the

legitimate and prudent expenses

incurred in prosecuting its application

or pleading in exchange for agreeing to

withdraw a mutually exclusive cellular

application or a pleading. AALA argues

that with a rule limiting the settlement

amount that can be paid to petitioners

seeking denial or dismissal of

applications, the Commission should at

a minimum reinstate the procedure used

in the Metropolitan Statistical Area

cellular licensing process for the

selection and ranking of multiple

selectees in cellular lotteries. AALA

contends that the settlement limitations

will remove all incentive for private

parties to assist in checking lottery

abuse. As a result, according to AALA,

the rules adopted ‘‘will deter not just

frivolous petitions, but those

meritorious petitions that have proven

helpful to the Commission in its

enforcement functions.’’ AALA argues

that ranking multiple selectees is the

only alternative which provides the

necessary incentive for private parties,

through the petition to deny process, to

assist the Commission in policing

lottery abuses. McCaw urges the

Commission to reject AALA’s proposal,

because history has shown that ranking

lottery winners will lead to the filing of

frivolous applications ‘‘submitted by

entities that figure they have nothing to

lose.’’ AALA responds to McCaw,

contending that the settlement cap

imposed on a would-be filer of a

frivolous petition would ensure that the

petitioner would have nothing to gain

because ‘‘the very best such a petitioner

could hope for is to break even.’’

5. Section 309(d) of the

Communications Act provides that any

party in interest may file with the

Commission a petition to deny

challenging the grant of an application.

The petition must contain specific

allegations of fact sufficient to show that

the petitioner is a party in interest and

that a grant of the application would be

prima facie inconsistent with the public

interest, convenience and necessity. 47

U.S.C. § 309(d). Our obligation under

the Communications Act is to provide

the forum and mechanism for the filing

of those petitions by parties with

standing. By establishing limitations on

settlements, we did not intend to

encourage or discourage the filing of

petitions to deny. Notwithstanding

limitations on settlements, we have no

basis for concluding that meritorious

petitions will not continue to be filed by

those parties desiring corrective or

appropriate action on defective or

otherwise non-grantable applications.

Further, our experience with lotteries

has taught us that ranking applicants for

initial cellular systems encourages the

filing of frivolous petitions to deny.

Moreover, in the future we intend to use

competitive bidding to select from

among mutually exclusive cellular

unserved area applications filed on or

after July 26, 1993, as well as most other

applications for Part 22 licenses. Thus,

we do not plan to make much use of

lottery procedures in the future. In light

of the foregoing, we deny AALA’s

petition.

Standards for De Minimis Extensions

6. Section 22.903(d)(1), as adopted in

the Second Report and Order 57 FR

13646, April 17, 1992, allowed an

applicant to propose Service Area

Boundary (SAB) extensions into

adjacent Metropolitan Statistical Areas

(MSAs) or Rural Service Areas (RSAs),

if such extensions were: (1) de minimis;

and (2) demonstrably unavoidable for

technical reasons of sound engineering

design. The Third Report and Order 58

FR 27213, May 7, 1993 modified Section

22.903(d)(1) to allow only those

extensions that meet the two foregoing

requirements and that do not extend

into the CGSA of any other licensee’s

cellular system on the same channel

block (unless the other licensee

consents to the extension), or into any

adjacent MSA or RSA on a channel

block for which the five year fill-in

period has expired (i.e., into areas that

are unserved and may be applied for

only pursuant to the licensing process

described in Section 22.949 of the

Commission’s rules).

7. CIS argues that the circumstances

under which de minimis extensions are

permitted under Section 22.903(d)(1)

will not serve the public interest. CIS

argues that the rule will make it more

difficult for carriers to cover their

markets and create the seamless cellular

coverage the Commission has long

encouraged. CIS claims that under the

former version of the rule section, there

was little incentive for a neighboring

carrier to challenge a de minimis

extension, unless that carrier had

‘‘specific concerns’’ or the extension

significantly affected the market. CIS

asserts that the new rule adds a layer of

negotiation, and perhaps litigation, to

most de minimis applications. Thus, CIS

argues, if a licensee wants to propose a

de minimis extension, it first must

determine whether that extension
Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations 9105

overlaps with the adjacent carrier’s

CGSA and if it does, negotiate for

consent to that extension. CIS contends

that if consent is not forthcoming, it is

possible that the carrier requesting

consent will be unable to build facilities

with de minimis extensions in that area.

According to CIS, the new rule

essentially treats extensions as mutually

exclusive with existing or proposed

CGSAs. CIS believes our adoption of

Section 22.903(d)(1) is not needed if the

principles underlying our mutual

exclusivity rules and original de

minimis extension rules were followed.

The net result of the new rule, CIS

alleges, is to favor the earlier-licensed

market over the later-licensed market

and to favor well-financed carriers over

less financially secure carriers, because

the well-financed carriers are more

likely to win the ‘‘race to the border’’

created by the new rule. CIS also

maintains that, prior to the rule

revision, extensions that overlapped a

neighbor’s CGSA did not require

consent during the first ten years of

cellular licensing, whereas such consent

now is required. CIS contends that

requiring such consent will cause some

licensees to be treated differently than

others have been treated in the past,

even though there has been no change

in the justification underlying the

Commission’s published rules and

policies concerning de minimis

extensions.

8. We find that CIS’s arguments are

not persuasive. The cellular radio

industry has matured to the point where

many licensees have CGSAs that have

reached the borders of their respective

MSAs or RSAs. In such an environment,

‘‘border wars’’ may become more

common. Nevertheless, our rules do not

favor either earlier-licensed carriers or

better-financed carriers. Rather, any

licensee, regardless of when it was

licensed or how well it is financed, is

entitled to protection within its CGSA,

and conversely, must not cause

interference by extensions into the

CGSAs of other licensees, unless the

parties agree to accept the intrusion. It

is in the interest of cellular licensees to

find mutually beneficial ways to

accommodate their respective needs in

providing service within their

respective CGSAs.

9. Our current rule requiring consent

for any SAB extensions into a licensee’s

CGSA is consistent with our previous

policies protecting a licensee’s reliable

service area. Prior to the adoption of our

Second Report and Order 57 FR 13646,

April 17, 1992, de minimis contour

extensions overlapping a neighbor’s

CGSA did not require prior consent

from the neighbor. At that time, the

CGSA was the area within an MSA or

RSA that an applicant for an initial

cellular system intended to serve, so it

was possible for contours to extend into

a neighbor’s CGSA without causing

interference to the neighbor’s reliable

service area. Furthermore, (as discussed

infra at ¶ 14), all such contour

extensions were subject to a standard

authorization condition that required a

licensee to change frequencies or ‘‘pull

back’’ its service area boundary, if a

current or future adjacent licensee

encountered interference caused by any

such extension. Pursuant to the Second

Report and Order 57 FR 13646, April

17, 1992, the CGSA now represents the

actual service area. Since the CGSA now

is the current, rather than planned,

service area, any extension into an

adjacent CGSA would amount to an

incursion into that licensee’s actual

service area. Thus, before and after the

adoption of the Second Report and

Order 57 FR 13646, April 17, 1992, a

cellular licensee’s reliable service area

has been protected from overlap with

the reliable service areas of neighboring

cellular licensees by the standard pull

back condition. The changes we made

in the Third Report and Order 58 FR

27213, May 7, 1993 allow the parties to

agree to have overlapping contours

without imposing the pull back

requirement.

10. Therefore, we conclude that the

standards set forth in Section

22.903(d)(1) of the rules concerning de

minimis SAB extensions into adjacent

MSAs and RSAs serve the public

interest and are consistent with our

previous policies protecting a licensee’s

reliable service area.

Alleged Due Process Violations and

Lack of Notice Under APA

11. In its petition, CIS argues that the

Commission provided no notice that

Section 22.903(d)(1) would be amended

by the Third Report and Order 58 FR

27213, May 7, 1993, and thus violated

the notice and comment requirements of

the Administrative Procedures Act

(APA). Similarly, PetroCom and Coastel

argue that the Initial NPRM 55 FR 4882,

February 12, 1990 and the First Report

and Order 56 FR 58503, November 20,

1991 in this proceeding stated that the

Commission was adopting no new

requirements affecting the extension

applications of existing cellular

licensees. PetroCom and Coastel claim

that no reasonable reader of the

Commission’s Initial NPRM 55 FR 4882,

February 12, 1990 could have inferred

that the Commission would change the

‘‘de minimis extension regulation as it

applied to existing cellular licensees.’’

12. In addition, CIS, PetroCom, and

Coastel contend that the only reference

to contour extensions applicable to

licensees seeking to expand their

existing system boundaries is the

proposal to codify a standard

authorization condition that requires a

licensee to change frequencies or ‘‘pull

back’’ its service area boundary, if a

current or future adjacent licensee

encounters interference caused by a de

minimis extension. The three petitioners

conclude that the Commission provided

no notice that it planned to change

existing policy by requiring a licensee

seeking to extend its contour into a

neighboring licensee’s CGSA to obtain

the neighboring licensee’s consent to

that extension. CIS also argues that the

Commission did not provide a reasoned

explanation for the obligations adopted

in the rules. CIS alleges that, by not

providing sufficient notice or a

reasonable basis for the new rule, we

have violated due process.

13. As CIS acknowledges, proposed

rules do not have to be identical to the

final adopted rules, but important

changes must be a ‘‘logical outgrowth’’

of the proceeding. Thus, courts have

taken the view that changes from the

original proposals in a rule making do

not require an additional round of

notice and comments where the final

rules represent a ‘‘logical outgrowth’’ of

the proposals. We believe that the rule

changes implemented in the Third

Report and Order 58 FR 27213, May 7,

1993 are well grounded in our previous

rules and policies, and that these

changes were an outgrowth of the issues

raised at the initiation of this

proceeding to modify the CGSAs of

existing and new cellular systems.

14. A cellular licensee’s service area

has been protected from the contour

extensions of other licensees by a

standard license condition utilized prior

to the adoption of the First Report and

Order 56 FR 58503, November 20, 1991

in this proceeding. The condition was

implemented as part of the

Commission’s longstanding policy of

protecting a cellular licensee’s actual

service area. Prior to the adoption of the

First Report and Order 56 FR 58503,

November 20, 1991, carriers granted a

de minimis extension into an adjacent

MSA or RSA had been subject to a

standard condition requiring that the

extension be ‘‘pulled back,’’ if it caused

interference to the protected service area

of the adjacent MSA or RSA. The Initial

NPRM 55 FR 4882, February 12, 1990 in

this proceeding proposed to codify this

standard condition and the First Report

and Order 56 FR 58503, November 20,

1991 adopted this condition as Section

22.902(d)(4) of the rules. Thus, both
9106 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations

prior to and after the adoption of the

Second Report and Order 57 FR 13646,

April 17, 1992, a cellular licensee’s

reliable service area was protected by

the standard pull back condition. A

reasonable reader of the Further Notice

56 FR 58529, November 20, 1991 which

proposed to establish the CGSA in the

manner ultimately adopted in the

Second Report and Order 57 FR 13646,

April 17, 1992, could have anticipated

that the Commission would continue to

protect a licensee’s service area from

interference by other licensees.

15. We believe that the changes to

Section 22.903(d)(1) reflect a logical and

necessary step in redetermining the

CGSA of each cellular licensee. In the

Second Report and Order 57 FR 13646,

April 17, 1992, we revised Section

22.903(a) to determine the CGSA based

on a licensee’s authorized service area,

because the method proposed in the

Initial NPRM 55 FR 4882, February 12,

1990 underestimated the service area

boundaries. Both the Initial NPRM 55

FR 4882, February 12, 1990 and the

Further Notice 56 FR 58529, November

20, 1991 in this proceeding explained

that a central purpose of this proceeding

was to make a licensee’s CGSA more

closely approximate its authorized

service area.

16. The modification of a licensee’s

CGSA to more closely approximate its

service area under Section 22.903(a)

means that any non-consensual

extension into a licensee’s CGSA on the

same channel block would constitute

interference from which the licensee

and its customers have a right to be

protected, pursuant to Section 22.911 of

our rules. Our modification of the text

of Section 22.903(d)(1) regarding SAB

extensions encroaching upon the CGSA

of another licensee was necessitated by

the change in methodology to determine

the CGSA and our existing interference

protection rule under Section 22.911.

Thus, we modified Section 22.903(d)(1)

to prohibit de minimis extensions into

the CGSA of a carrier on the same

channel block in an adjacent market

without the consent of the neighboring

licensee. Such changes do not violate

due process, nor were the changes

without notice, as CIS, Petrocom and

Coastel allege.

17. CIS, PetroCom, and Coastel also

assert that the Third Report and Order

58 FR 27213, May 7, 1993 mislabeled

the Commission’s modification of

Section 22.903(d)(1) of its Rules as a

‘‘clarification.’’ They claim that the

modification of the referenced rule was

more than a clarification, noting that the

term ‘‘clarification’’ implies that no

substantive change to the rule is being

made.

18. We do not dispute that our

modification of Section 22.903(d)(1)

involved a revision of that rule, and we

did not intend, by the language we used

in the Third Report and Order 58 FR

27213, May 7, 1993, to suggest

otherwise. The revision of Section

22.903(d)(1) simply reinforced a concept

which already was stated in the

introductory paragraph of Section

22.903, as revised by the Second Report

and Order 57 FR 13646, April 17, 1992,

namely, that because the method of

determining the CGSA is changed to

reflect a licensee’s authorized service

area, the CGSA is protected from

interference caused by all other

licensees, just as cellular licensees’

service areas had been protected from

interference in the past by the standard

pull back condition. Once we modified

the CGSA to be a licensee’s authorized

protected service area, no incursions

into the CGSA could be allowed under

our standard policy against interference,

unless the carrier causing the SAB

extension received consent from the

affected licensee.

19. We also had to modify Section

22.903(d)(1) to prohibit extensions into

an adjacent MSA or RSA for which the

five-year build-out period had expired,

to be consistent with our unserved area

rules. Sections 22.903(d)(3)(i) through

22.903(d)(3)(iii) provided that, with

respect to cellular systems proposed for

unserved areas, the service area

boundaries (SABs) of the proposed cells

must not extend into the CGSA of any

other licensee’s cellular system on the

same channel block, except for

permissible contract extensions, or into

any adjacent MSA or RSA where the

five-year build-out period had expired.

The same concern about interference

created by SAB extensions into adjacent

CGSAs that applies to unserved area

applicants also applies to proposed

extensions into CGSAs by existing

licensees. The rights of unserved area

applicants would be compromised if we

allowed a licensee in an adjacent MSA

or RSA to extend its service contour into

the unserved area of an MSA or RSA for

which the build-out period had expired

without complying with the unserved

area licensing procedures.

20. Therefore, we conclude that the

Commission gave adequate notice for

the changes the Third Report and Order

58 FR 27213, May 7, 1993 made in

Section 22.903(d)(1) of the rules, that

those changes were well grounded in

our previous rules and policies, and that

the changes were a logical outgrowth of

the issues raised in this proceeding.

Contour Extensions During Phase I

Processing

21. In the Third Report and Order 58

FR 27213, May 7, 1993, we modified our

policies for allowing applicants for

unserved areas to propose SAB

extensions during Phase I of our

application processing procedures for

all markets in which the five-year buildout period has expired. Specifically, we

determined that initial applications

filed in Phase I would not be allowed to

propose any extensions into adjacent

MSAs or RSAs, even if those extensions

were de minimis or contract extensions.

In prohibiting contour extensions in

these circumstances, we explained that

this restriction would simplify and

expedite our licensing process and

would remove a possible source of

litigation as to whether such extensions

were permissible. We stated that

applications proposing such extensions

would be dismissed as defective. We

added language to effectuate our policy

change to Section 22.902(b)(4)(i) of the

rules and appropriately revised the

language of Sections 22.903(d)(3)(ii)

through Sections 22.903(d)(3)(iv).

22. CECR asserts that the Commission

erred in making the foregoing rule

changes. CECR argues that the First

Report and Order 56 FR 58503,

November 20, 1991 clearly delineated

the circumstances under which contract

extensions are permissible: where a

contract exists, extensions are valid, and

if no contract exists, the extension

application is deemed defective. Thus,

claims CECR, permitting contract

extensions cannot serve as a possible

source of litigation. CECR also argues

that former Section 22.903(d)(3)(ii) of

the rules explicitly explained the

situations in which unserved area

applications can propose de minimis

extensions, and served to eliminate any

confusion over the validity of proposed

extensions, thus greatly reducing the

possibility for litigation.

23. We shall not revise our rules

concerning SAB extensions by Phase I

applicants for unserved areas. As we

stated earlier, our purpose in not

permitting Phase I requests for

extensions was to provide a simple and

expeditious means of licensing

unserved area applicants in Phase I. In

addition, we believe that our Phase I

licensing rules should be consistently

applied across all markets. Phase I of the

unserved area licensing process has

ended for most of the MSAs and many

of the RSAs. By the end of calendar year

1995, the five-year build-out period for

most RSAs will have ended. The

revisions suggested by CECR only

would confuse the unserved area
Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations 9107

licensing process by changing the rules

after many of the markets have been

subject to restricted SAB extension rules

in the Phase I unserved licensing

process.

24. We note that the prohibition

against having SAB extensions beyond

the borders of a particular MSA or RSA

only applies to initial Phase I

applications. Once a Phase I initial

unserved area application has been

granted, the licensee can file one Phase

I major modification application and

that application may propose de

minimis or contract extensions. The

application is not subject to competing

applications. In addition, Phase II

applications may propose a CGSA

covering more than one cellular market,

which includes de minimis and contract

extensions. Thus, the prohibition

against SAB extensions beyond the

borders of a particular MSA or RSA is

narrowly defined to include only initial

Phase I unserved area applications.

System Information Update Maps

25. CECR asserts that the Commission

erred by neglecting to recognize that

System Information Update (SIU) maps

are more than informational filings,

because they define the rights of third

parties, i.e., potential unserved area

applicants. CECR argues, as it did in its

petition for reconsideration of the First

Report and Order 56 FR 58503,

November 20, 1991, that the

Commission should establish

procedures by which interested parties

may challenge SIU maps prior to the

filing of unserved area applications.

McCaw argues that CECR already has

argued this issue unsuccessfully and has

shown no reason why its argument

warrants further Commission

consideration. McCaw argues that this

portion of CECR’s petition should be

dismissed as repetitive. CECR also

observes that the Third Report and

Order 58 FR 27213, May 7, 1993

provided that parties aggrieved by the

licensee’s depiction of its CGSA

informally may request the Commission

to correct the maps under Section 1.41

of the Commission’s Rules. CECR

contends that this procedure is illusory

because the Commission has no

obligation or timetable to resolve an

informal challenge, and therefore can

continue to license unserved areas

within the challenged market during the

pendency of the informal challenge.

CECR also challenges on due process

grounds the procedures established for

challenging SIU maps, stating that they

force unserved area applicants ‘‘to place

their own applications at risk in order

to challenge a licensee’s improper SIU

map.’’ Further, CECR claims that

licensees should not be allowed to base

their SIU maps on cell sites that violate

state law.

26. We find that CECR’s arguments

are not sufficiently compelling to

warrant revision to our rules. Section

22.947(c) of our rules, 47 CFR

§ 22.947(c), requires a licensee of a

cellular system to file with the

Commission 60 days before the end of

its five-year build out period a system

information update (SIU) consisting of a

full size map, a reduced map, and an

exhibit showing technical data relevant

to determining the system’s CGSA.

These materials must accurately depict

the cell locations and coverage of the

system at the end of the five-year buildout period. Although SIU materials,

especially the maps, are required so that

potential applicants may know which

areas within a particular market already

are served, it is important to note, as we

did in the Third Report and Order 58 FR

27213, May 7, 1993, that the SIU maps

are more in the nature of pictorial aids

for potential unserved area applicants.

The SIUs are not a declaration of the

cellular service rights of licensees. As

set forth in the Second Report and

Order 57 FR 13646, April 17, 1992, the

position of the CGSA boundaries

officially will be determined by the

geographical coordinates of cell sites

and the authorized facilities for the

relevant cells which are contained in

the Commission’s station license files.

Further, as we stated in the Third

Report and Order, these maps will not

require any Commission action, since

they are not submitted for approval. The

manner in which the SIU maps are

drawn is determined by the new

mathematical formula for determining

service areas set forth in Section

22.911(a) of our rules. We expect that

licensees will accurately depict their

CGSAs using the prescribed formula,

and that errors will be the exception and

not the rule.

27. It is not necessary to delay the

filing, processing, and granting of

unserved area applications in order to

afford potential litigants the opportunity

to challenge SIUs. Applicants who

believe that reported adjacent CGSAs

are in error or have been misdepicted

may file applications, pursuant to the

requirements of the unserved area rules,

for areas they believe constitute at least

130 square kilometers (50 square miles),

and state in their applications why they

disagree with the depictions or

representations of adjacent CGSAs.

Once such an applicant has become a

tentative selectee, if it has made a prima

facie case that an adjacent licensee has

misdepicted its CGSA, that licensee will

have the burden of responding to any

allegations concerning the depiction of

its CGSA, and the Commission will

resolve the dispute. Further, we have

noted that interested parties may file

informal requests for Commission action

to correct SIU maps pursuant to Section

1.41 of the Rules. As to the state law

concerns raised by CECR, if a licensee

has constructed cellular facilities that

violate relevant state law, any member

of the public can notify the appropriate

state authority, which then can impose

appropriate sanctions.

Phase I Processing Procedures

28. In the Third Report and Order 58

FR 27213, May 7, 1993, we explained

that, during Phase I of our processing

procedures for unserved area

applications, an existing licensee may

file an application to expand its existing

CGSA in any manner or, in the

alternative, apply for a new noncontiguous CGSA in an unserved

portion of its market. Either of the

applications would be considered to be

a single unserved area application.

CECR requests that we clarify that the

Third Report and Order 58 FR 27213,

May 7, 1993 allows an existing licensee

to file either an initial Phase I unserved

area application to expand its existing

CGSA, or an application specifying a

new non-contiguous CGSA within its

market, but not both. CECR’s request has

been rendered moot by the changes to

Section 22.949(a)(1)(ii) of the rules,

which became effective after the release

of the Third Report and Order 58 FR

27213, May 7, 1993. The rule section

now expressly prohibits applicants from

filing more than one Phase I initial

application for any cellular market.

B. Petitions for Reconsideration of the

Memorandum Opinion and Order

Alleged Lack of Notice Under APA

29. The Memorandum Opinion and

Order 58 FR 11799, March 1, 1993 in

this proceeding established that

interference occurs when subscriber

traffic is captured in a home market by

an adjacent market system, due to

contour extensions into the home

market’s CGSA, and that cellular

licensees are entitled to protection from

this type of interference. A cellular

licensee may continue to operate

existing facilities that produce a service

area boundary extension into a

subsequently-authorized portion of the

CGSA of another cellular system on the

same channel block until the licensee of

that system requests that the SAB

extension be removed from its CGSA.

When such a request is received, the

adjacent market system operator is

obligated to pull back the SAB
9108 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations

extensions by reducing the transmitting

power or antenna height (or both) at the

offending cell site locations, or obtain

written consent from the other licensee

to permit the SAB extension.

30. Five petitions for reconsideration

and three petitions for partial

reconsideration of the Memorandum

Opinion and Order 58 FR 11799, March

1, 1993 were filed. These petitions

allege, inter alia, that our adoption of

Section 22.903(f) of the rules, 47 CFR

22.903(f), violated the notice and

comment requirements for rule making

proceedings under Section 553 of the

APA, 5 U.S.C. § 553, and the notice and

hearing provisions of Sections 309 and

316 of the Communications Act of 1934,

47 U.S.C. §§ 309 and 316, and former

Section 22.100(b)(4) of the

Commission’s rules.

31. New Par, CIS and the Joint

Petitioners claim that the Commission

gave no public notice it was

contemplating the rule changes

incorporated in new Section 22.903(f),

and therefore the Commission did not

comply with Section 553 of the APA, 5

U.S.C. § 553, which requires an agency

to give adequate written notice and

opportunity to comment on proposals in

rule making proceedings. New Par

claims that the Commission provided no

notice that it even was considering a

change to the standard by which

interference and SAB extensions would

be evaluated. CIS also argues that there

is no mention of the new substantive

obligations imposed by Section

22.903(f) on licensees either in the

Further Notice 56 FR 58529, the First

Report and Order 56 FR 58503,

November 20, 1991, or the Second

Report and Order 57 FR 13646, April

17, 1992 in this proceeding.

32. New Par and the Joint Petitioners

assert that prior to the adoption of

Section 22.903(f), the Commission’s

rules concerning interference between

cellular licensees provided that

remedial action was required only

where actual, as opposed to theoretical,

electrical interference occurred. New

Par argues that former Section

22.100(b)(ii) stated that the Commission

‘‘will only consider complaints of

interference which significantly

interrupt or degrade a radio service,’’

and former Section 22.902(a) provided

that, in the event ‘‘harmful interference’’

occurs that two or more cellular

licensees cannot resolve themselves, the

Commission may require a licensee to

make system changes ‘‘necessary to

avoid such interference.’’ In contrast,

New Par argues, Section 22.903(f)

assumes that interference exists where

licensee SABs overlap and requires the

entire removal of SAB extensions

without regard to whether the

complaining party’s service in fact has

experienced a significant degradation

and without regard to whether the

removal of such extensions might result

in harmful effects on service to the

public in either licensee’s market.

33. We reject petitioners’ argument

that our adoption of Section 22.903(f)

did not comport with the notice and

comment requirements of the APA. We

have reasonably and consistently placed

the public on notice of our intention to

change the standards for measuring

cellular service areas in our continuing

efforts to provide seamless cellular

service with the least amount of

interference to licensed carriers. The

matters at issue in this docket

encompassed the manner in which

service area contours were to be

calculated and the implications for

existing systems if the defined contours

changed. Section 22.903(f) reflects a

logical outgrowth of this debate.

34. As previously discussed (supra at

¶ 14), the Initial NPRM 55 FR 4882,

February 12, 1990 and Further Notice 56

FR 58529, November 20, 1991 in this

proceeding made clear that we intended

to change the method by which a CGSA

is determined. Ultimately, the Second

Report and Order 57 FR 13646, April

17, 1992 established that the CGSA is

the geographic area the Commission

considers served by a cellular system

and the area within which a cellular

system is entitled to protection. A

companion issue raised in evaluating

the boundaries of the CGSA was the

potential for interference caused by the

extension of newly-redefined SABs

outside a licensee’s MSA or RSA into

the CGSA of a neighboring cellular

system on the same channel block.

Based upon the comments we received,

we concluded that capture of subscriber

traffic is a form of interference. Thus,

we were compelled to amend our rules

to provide protection to cellular

licensees against such interference.

Alleged Notice and Hearing Rights

Under the Communications Act and the

Commission’s Rules

35. The Joint Petitioners and New Par

contend that the Commission cannot

order (or allow an adjacent licensee to

require) licensees to pull back

authorized contour extensions

(including new SABs created by the

new formula adopted in the Second

Report and Order 57 FR 13646, April

17, 1992) without complying with the

notice and hearing requirements of

Sections 309 and 316 of the

Communications Act and Section

22.100(b)(4) of the Commission’s rules.

36. New Par argues that each SAB

extension authorized by the

Commission is conditioned upon the

licensee not causing interference to

adjacent licensees and that any action

requiring a licensee to withdraw its SAB

from areas where its RF signals in fact

do not significantly degrade or disrupt

other radio service is a modification of

that licensee’s authorization. According

to New Par, Sections 309 and 316 of the

Communications Act require the

Commission to conduct a hearing to

determine whether and to what extent

interference exists each time it wishes to

order an authorized contour extension

to be ‘‘pulled back.’’ New Par also

contends that Section 22.100(b)(4) of the

rules codifies the foregoing theory by

providing that the Commission may

order cellular system modifications to

eliminate alleged interference only after

notice and opportunity for hearing.

37. We reject the petitioners’

argument that the Commission must

comply with the notice and hearing

requirements of Sections 309 and 316 of

the Communications Act each time a

licensee is directed to pull back

authorized contour extensions. Those

provisions provide for a hearing process

before Commission modification of a

particular license. The sections do not

deprive the Commission of its authority

to establish rules of general applicability

to an industry through its rule making

authority.

38. It is well established that licenses

may be modified through rule making

proceedings without affording parties an

adjudicatory hearing, if the generic rules

otherwise are procedurally and

substantively valid. In WBEN Inc. v.

United States, 396 F.2d 601 (2d Cir.

1968), cert. denied, 393 U.S. 914 (1968),

the Court held that the Commission

need not engage in evidentiary hearings

required for modification of a particular

license, explaining that,

[W]hen, as here, a new policy is based

upon the general characteristics of an

industry, rational decision is not furthered by

requiring an agency to lose itself in an

excursion into detail that too often obscures

fundamental issues rather than clarifies

them.

Once a rule has been adopted, there is

no need to hold a hearing each time that

rule is applied. Our Memorandum

Opinion and Order 58 FR 11799, March

1, 1993 makes clear that Section

22.903(f)(2)(i) allows the Commission

(or an adjacent licensee) to require a

licensee to ‘‘pull back’’ an authorized

SAB extension into the adjacent

licensee’s CGSA. Thus, there is no need

for a hearing each time Section

22.903(f)(2)(i) or its replacement,

Section 22.911(d), is enforced.
Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations 9109

39. We find that the hearing

procedure under Section 22.100(b)(4) of

our rules is inapplicable to rule changes

made through our rule making

authority. Section 22.100(b)(4) requires

that interference between base stations

that have been properly authorized shall

be ‘‘resolved’’ by the licensees. The rule

section also states that if the licensees

cannot resolve the interference, the

Commission, ‘‘after notice and

opportunity for hearing,’’ may order

whatever changes in equipment or

operation it deems necessary. Hearings

under Section 22.100(b)(4) would be

involved only if the carriers could not

comply with the directive of the rule

section to resolve interference problems.

Such hearings would not be required

between cellular licensees because

cellular licensees have always been

licensed on the condition that licensees

must ‘‘pull back’’ any contour that

interferes with a neighboring cellular

system and Section 22.911(d) provides a

specific remedy for resolving the

interference problem at hand. We also

observe that the Commission has been

given the power recently to make

changes in the frequencies, authorized

power, and the times of operation of any

station without conducting a hearing.

Standards for Determining Permissible

SAB Extensions

40. The Joint Petitioners, New Par,

Sussex, and CIS argue that the adoption

of Section 22.903(f)(1) of the rules

regarding capture is inconsistent with

the Commission’s goal of achieving

nationwide seamless cellular service.

New Par, Sussex, and CIS note that the

Memorandum Opinion and Order 58 FR

11799, March 1, 1993 states that

overlapping SAB contours actually

promote a seamless environment and

that SAB extension ‘‘pullbacks’’ should

be used only as a last resort. CIS and

Sussex argue that the new rule is

contrary to basic principles of cellular

system design and will restrict the

ability of licensees to provide adequate

coverage within their markets, thus

undermining the original purpose of the

Commission’s de minimis extension

policy. CIS claims that the rule will

discourage the development of seamless

cellular coverage at the borders between

markets.

41. Joint Petitioners argue that Section

22.903(f) undermines the Commission’s

stated goals of creating a ‘‘level playing

field’’ for all cellular licensees and

devising rules and policies to encourage

informal agreements between licensees

to resolve boundary disputes. New Par,

McCaw, and the Joint Petitioners claim

that Section 22.903(f) neither requires

good faith negotiations among adjacent

licensees nor enables an extending

licensee to rebut the presumption of

interference in the form of capture of

subscriber traffic. McCaw and New Par

assert that the rule appears to conflict

with the Memorandum Opinion and

Order, 58 FR 11799, March 1, 1993

which states that progress toward

achieving the Commission’s goal of

establishing ‘‘rules and policies that will

lead to the efficient provision of

nationwide seamless cellular service to

the public’’ will depend in large part

upon the success of informal

negotiations between cellular licensees

on ‘‘mutually agreeable arrangements of

facilities that provide an efficient

juncture between adjacent systems.’’

New Par argues that later-licensed

carriers will have the ability and

incentive to force neighboring licensees

to consent to otherwise unwarranted

extensions, because of the earlierlicensed carrier’s inability to suffer the

loss of service that would result from an

SAB pull-back. Joint Petitioners

similarly conclude that existing

operators may be forced to curtail

service from previously authorized

facilities ‘‘largely at the whim’’ of

subsequent licensees.

42. New Par argues that the institution

of the presumption that subscriber

capture occurs in every case where an

SAB overlaps with a CGSA is arbitrary

and capricious and results in removing

from the Commission its statutory

obligation to resolve service issues

consistent with the public interest.

McCaw opposes the rule because it has

the practical effect of precluding SAB

extensions where no subscriber traffic

capture actually occurs. Sussex argues

that an administrative agency cannot

create a presumption which operates to

deny a fair opportunity to rebut it

without violating the due process

clauses of the Fifth and Fourteenth

Amendments. Consequently, Sussex

argues that the U.S. Constitution will

not allow the Commission to impose an

automatic requirement to remove SAB

overlap without first granting the

encroaching carrier the opportunity to

show: (1) that there is no subscriber

capture, or (2) that the capture does not

result from SAB overlap.

43. McCaw and New Par recommend

modifications to Section 22.903(f) as

follows: (1) require licensees protesting

SAB extensions to demonstrate that

these extensions cause actual

interference, prior to mandating system

modification; and (2) continue to

promote good faith negotiations of such

boundary disputes on an informal basis

prior to having to ‘‘pull back’’

authorized SAB extensions. Sprint

agrees with McCaw and New Par that

boundary questions should be settled

with good faith negotiations on an

informal basis. The Joint Petitioners also

urge that Section 22.903(f)(2)(i) be

modified to make rebuttable the

presumption of subscriber capture,

where an SAB extension has been

authorized into an adjacent licensee’s

CGSA during the latter licensee’s fiveyear fill-in period.

44. CIS also recommends that former

Section 22.903(d)(1) of the rules, setting

forth de minimis extension criteria, be

modified to allow a contour extension

when the extension is necessary to

compensate for an existing extension

from another cellular system. Sussex

recommends that the Commission allow

carriers to install cells with contour

overlaps into adjacent carriers’ CGSAs

so long as the overlaps are de minimis

and are necessary to provide service

within the overlapping carrier’s market

area, regardless of whether the carrier

consents to the extension. Further,

Sussex argues that any conflicts arising

from such overlaps be resolved through

the frequency coordination process and

the requirement of inter-carrier

cooperation. In essence, Sussex asks

that the Commission return to the

means of handling contour overlap

which existed before the adoption of

Section 22.903(f). Radiofone opposes

Sussex’s solution, fearing that

elimination of protection of CGSAs

against intrusions from neighboring

carriers would lead to ‘‘rampant

interference, endless litigation and

disservice to the public.’’

45. Before addressing the petitioners’

arguments, we emphasize that a cellular

licensee has an obligation to serve the

public wherever demand exists within

its market, and that cellular licensees

therefore have a duty to negotiate with

each other in good faith regarding

agreements for SAB overlaps. Successful

negotiations of such contracts or

agreements could be offered as evidence

of performance in the public interest

when cellular licenses are considered

for renewal, pursuant to new Section

22.940 of our Rules. Conversely, failure

to serve the public due to failure to

negotiate reasonable solutions to SAB

overlap problems with adjoining

carriers could reflect negatively on a

licensee seeking renewal.

46. The language of former Section

22.903(f)(2)(i) was somewhat

ambiguous, because the first sentence

stated that it is ‘‘presumed’’ that

subscriber traffic is captured if a service

area boundary (SAB) of one cellular

system extends into the CGSA of

another operating cellular system.

Nevertheless, New Par and Sussex’s

arguments concerning the creation of a
9110 Federal Register / Vol. 62, No. 40 / Friday, February 28, 1997 / Rules and Regulations

rebuttable presumption have been

rendered moot by the removal of the

presumption language in rule Section

22.903(f). The Part 22 Rewrite Order 59

FR 59502, November 17, 1992

transferred most of the language of

former Section 22.903(f) to current rule

Section 22.911(d) and changed some of

the introductory language in the new

rule. Section 22.911(d)(2)(i) expressly

prohibits non-consensual contour

extensions from one cellular system into

the CGSA of another cellular system.

The first sentence of Section

22.911(d)(2)(i) states: ‘‘Subscriber traffic

is captured if an SAB of one cellular

system overlaps the CGSA of another

operating cellular system’’—(emphasis

added). The new rule removes any

suggestion of a presumption created by

the prior rule.

47. We observe that current Section

22.911(d)(2)(i) of our rules is based

upon predicted service areas as defined

by an expert agency and is designed to

avoid litigation over the exact location

of actual interference. The idea of

‘‘interference free’’ service areas is a

constant in Part 22 of our rules. See,

e.g., Sections 22.351, 22.537, 22.567,

and 22.912(a) of our rules. 47 CFR

22.351, 22.537, 22.567 and 22.912(a). In

order to ensure uniformity and

simplicity in administering our rules,

and to prevent potentially endless

litigation, we must rely on objective,

rather than subjective standards for the

protection of services. Section

22.911(d)(2)(i) provides a simple,

objective standard to determine when

capture occurs, and encourages parties

to reach agreement on the resulting

effects of SAB overlap.

48. We also reject CIS’s request that

Section 22.903(d)(1) [now 22.912(a)] of

the rules be modified to allow a cellular

licensee to extend service contour into

an adjoining market to compensate for

the adjoining licensee’s extension into

the licensee’s market. Absent agreement

between the affected parties, licensees

are entitled to operate in their service

areas free from co-channel and first

adjacent channel interference and from

capture of subscriber traffic by adjacent

systems on the same channel block. 47

CFR 22.911(d) (formerly 22.903(f)).

49. Our goal is to provide nationwide

seamless cellular service to the public.

As we indicated in the Memorandum

Opinion and Order, 58 FR 11799, March

1, 1993 rather than require the total

elimination of SAB extensions, or

mandate reciprocal SAB extensions as

suggested by CIS, a better result in most

cases is some degree of SAB overlap

between systems with the location of

balanced signal strengths negotiated

informally between the adjacent

licensees on the same channel block.

We believe informal negotiations

between parties in determining

mutually agreeable arrangements

between adjacent systems will achieve

the most expeditious and effective

resolution of service boundary issues.

Thus, promoting negotiation between

parties eliminates possible protracted

administrative and court proceedings,

and provides incentives for cellular

providers to come to agreement on

boundary issues arising from the

convergence of expanding systems. In

sum, permitting market forces to drive

resolution of these issues will effectuate

seamless cellular service nationwide

more quickly than the proposals offered

by petitioners.

IV. Ordering Clause

50. Accordingly, pursuant to Sections

4(i), 303(r) and 405(a) of the

Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 303(r), and

405(a), It is ordered that the petitions for

reconsideration and partial

reconsideration of the Third Report and

Order and Memorandum Opinion and

Order on Reconsideration 58 FR 27213,

May 7, 1993 in this docket, and the

Memorandum Opinion and Order on

Reconsideration, 58 FR 11799, March 1,

1993 Are denied, and the ‘‘Request to

Expedite Action and Comments in

Support of Cellular Information

Systems, Inc.’’ Is dismissed as moot.

List of Subjects in 47 CFR Part 22

Communications common carriers,

Radio.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–4870 Filed 2–27–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1319

[STB Ex Parte No. 598]

Exemption of Freight Forwarders in the

Noncontiguous Domestic Trade From

Rate Reasonableness and Tariff Filing

Requirements

AGENCY: Surface Transportation Board.

ACTION: Final rules.

SUMMARY: The Board exempts freight

forwarders in the noncontiguous

domestic trade from tariff filing

requirements. This action eliminates an

unnecessary regulatory burden and

should provide freight forwarders with

additional flexibility to meet the needs

of their customers.

EFFECTIVE DATE: These rules are effective

March 30, 1997.

FOR FURTHER INFORMATION CONTACT:

James W. Greene, (202) 927–5612. [TDD

for the hearing impaired: (202) 927–

5721.]

SUPPLEMENTARY INFORMATION: The

Board’s decision adopting these

regulations is available to all persons for

a charge by phoning DC NEWS & DATA,

INC., at (202) 289–4357.

Small Entities

The Board certifies that this rule will

not have a significant economic effect

on a substantial number of small

entities. The rule removes an

unnecessary regulatory burden and, to

the extent that it affects small entities,

the effect should be favorable.

Environment

This action will not significantly

affect either the quality of the human

environment or the conservation of

energy resources.

List of Subjects in 49 CFR Part 1319

Exemptions, Freight forwarders,

Tariffs.

Decided: February 13, 1997.

By the Board, Chairman Morgan and Vice

Chairman Owen.

Vernon A. Williams,

Secretary.

For the reasons set forth in the

preamble, the Board adds a new part

1319 to title 49, chapter X, of the Code

of Federal Regulations to read as

follows:

PART 1319—EXEMPTIONS

Sec.

1319.1 Exemption of freight forwarders in

the noncontiguous domestic trade from

tariff filing requirements.

Authority: 49 U.S.C. 721(a) and 13541.

§ 1319.1 Exemption of freight forwarders

in the noncontiguous domestic trade from

tariff filing requirements.

Freight forwarders subject to the

Board’s jurisdiction under 49 U.S.C.

13531 are exempted from the tariff filing

requirements of 49 U.S.C. 13702.

[FR Doc. 97–4868 Filed 2–27–97; 8:45 am]

BILLING CODE 4915–00–P