16470 Federal Register / Vol. 77, No. 55 / Wednesday, March 21, 2012 / Rules and Regulations 

if both of the following conditions are 

met: 

(1) The current MLR reporting year 

and each of the two previous MLR 

reporting years included experience of 

at least 1,000 life-years; and 

(2) Without applying any credibility 

adjustment, the issuer’s MLR for the 

current MLR reporting year and each of 

the two previous MLR reporting years 

were below the applicable MLR 

standard for each year as established 

under § 158.210 in this subpart. 

Dated: October 11, 2011. 

Donald M. Berwick, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: November 3, 2011. 

Kathleen Sebelius, 

Secretary. 

[FR Doc. 2012–6359 Filed 3–16–12; 4:15 pm] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WT Docket No. 05–211; FCC 12–12] 

Implementation of the Commercial 

Spectrum Enhancement Act and 

Modernization of the Commission’s 

Competitive Bidding Rules and 

Procedures 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Communications 

Commission removes two modifications 

to its competitive bidding rules 

pursuant to a mandate by the U.S. Court 

of Appeals for the Third Circuit. 

DATES: Effective March 21, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Wireless Telecommunications Bureau, 

Auctions and Spectrum Access 

Division: Audrey Bashkin at (202) 418– 

0660. 

SUPPLEMENTARY INFORMATION: This is a 

summary of an Order released on 

February 1, 2012. The complete text of 

the Order, including an attachment and 

related Commission documents, is 

available for public inspection and 

copying from 8 a.m. to 4:30 p.m. Eastern 

Time (ET) Monday through Thursday or 

from 8 a.m. to 11:30 a.m. ET on Fridays 

in the FCC Reference Information 

Center, 445 12th Street SW., Room CY– 

A257, Washington, DC 20554. The 

Order and related Commission 

documents also may be purchased from 

the Commission’s duplicating 

contractor, Best Copy and Printing, Inc. 

(BCPI), 445 12th Street SW., Room CY– 

B402, Washington, DC 20554, telephone 

202–488–5300, fax 202–488–5563, Web 

site http://www.BCPIWEB.com. When 

ordering documents from BCPI, please 

provide the appropriate FCC document 

number, for example, FCC 12–12. The 

Order and related documents also are 

available on the Internet at the 

Commission’s Web site: http:// 

wireless.fcc.gov/auctions, or by using 

the search function for WT Docket No. 

05–211 on the Commission’s Electronic 

Comment Filing System (ECFS) Web 

page at http://www.fcc.gov/cgb/ecfs/. 

I. Background 

1. In Council Tree Communications, 

Inc. v. FCC, 619 F.3d 235 (3d Cir. 2010), 

cert. denied, 131 S. Ct. 1784 (2011), the 

U.S. Court of Appeals for the Third 

Circuit vacated two modifications the 

Federal Communications Commission 

(Commission) had made in 2006 to its 

competitive bidding rules for designated 

entities on the ground that the 

Commission had failed to provide the 

public an adequate opportunity for 

notice and comment. The Commission 

removes the two modifications in 

accordance with the Third Circuit’s 

mandate. 

2. The Third Circuit held that the 

Commission’s impermissible material 

relationship rule in 47 CFR 

1.2110(b)(3)(iv)(A) and its extension of 

the unjust enrichment period from five 

years to ten years in 47 CFR 1.2111(d)(2) 

had been adopted without the notice 

and opportunity for comment required 

by the Administrative Procedure Act. 

The Court thus vacated the 

impermissible material relationship rule 

and ordered reinstatement of the 

Commission’s previous five year unjust 

enrichment payment schedule. The 

Court also denied Council Tree’s 

petition for review with respect to the 

attributable-material-relationship rule 

articulated in 47 CFR 1.2110(b)(1) and 

(b)(3)(iv)(B). 

II. Discussion 

3. The Order conforms Part 1 of the 

Commission’s rules to the Court’s 

mandate by amending 47 CFR 1.2110 to 

remove paragraph (b)(3)(iv)(A) and 47 

CFR 1.2111 by removing paragraph 

(d)(2)(i) as no longer applicable and 

reinstating the previous version of the 

payment schedule in 47 CFR 

1.2111(d)(2). The Order also conforms 

other Part 1 rules, as necessary, to 

remove several references to 

impermissible material relationships. 

4. The Commission finds that notice 

and comment are unnecessary for these 

rule amendments under 5 U.S.C. 

Section 553(b), because this is a 

ministerial order issued at the direction 

of the United States Court of Appeals for 

the Third Circuit. 

III. Congressional Review Act 

5. The Commission will send a copy 

of the Order to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

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

List of Subjects in 47 CFR Part 1 

Administrative practice and 

procedures, Auctions, Licensing, 

Telecommunications. 

Federal Communications Commission. 

Bulah P. Wheeler, 

Deputy Manager. 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 1 as 

follows: 

PART 1—PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 1 

continues to read as follows: 

Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 

151, 154(j), 160, 201, 225, 303, and 309. 

■ 2. Section 1.2110 is amended by 

removing paragraph (b)(3)(iv)(A) and 

redesignating paragraphs (b)(3)(iv)(B) 

and (C) as paragraphs (b)(3)(iv)(A) and 

(B) and by revising newly redesignated 

paragraph (b)(3)(iv)(B) and revising 

paragraph (j) to read as follows: 

§ 1.2110 Designated entities. 

* * * * * 

(b) * * * 

(3) * * * 

(iv) * * * 

(B) Grandfathering (1) Licensees. An 

attributable material relationship shall 

not disqualify a licensee for previously 

awarded benefits before April 25, 2006, 

based on spectrum lease or resale 

(including wholesale) arrangements 

entered into before April 25, 2006. 

(2) Applicants. An attributable 

material relationship shall not 

disqualify an applicant seeking 

eligibility in an application for a license, 

authorization, assignment, or transfer of 

control or for partitioning or 

disaggregation filed before April 25, 

2006, based on spectrum lease or resale 

(including wholesale) arrangements 

entered into before April 25, 2006. Any 

applicant seeking eligibility in an 

application for a license, authorization, 

assignment, or transfer of control or for 

partitioning or disaggregation filed after 

April 25, 2006, or in an application to 

participate in an auction in which 

bidding begins on or after June 5, 2006, 

need not attribute the material 


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Federal Register / Vol. 77, No. 55 / Wednesday, March 21, 2012 / Rules and Regulations 16471 

relationship(s) of those entities that are 

its affiliates based solely on paragraph 

(c)(5)(i)(C) of this section if those 

affiliates entered into such material 

relationship(s) before April 25, 2006, 

and are subject to a contractual 

prohibition preventing them from 

contributing to the applicant’s total 

financing. 

* * * * * 

(j) Designated entities must describe 

on their long-form applications how 

they satisfy the requirements for 

eligibility for designated entity status, 

and must list and summarize on their 

long form applications all agreements 

that affect designated entity status such 

as partnership agreements, shareholder 

agreements, management agreements, 

spectrum leasing arrangements, 

spectrum resale (including wholesale) 

arrangements, and all other agreements 

including oral agreements, establishing 

as applicable, de facto or de jure control 

of the entity or the presence or absence 

of attributable material relationships. 

Designated entities also must provide 

the date(s) on which they entered into 

of the agreements listed. In addition, 

designated entities must file with their 

long-form applications a copy of each 

such agreement. In order to enable the 

Commission to audit designated entity 

eligibility on an ongoing basis, 

designated entities that are awarded 

eligibility must, for the term of the 

license, maintain at their facilities or 

with their designated agents the lists, 

summaries, dates and copies of 

agreements required to be identified and 

provided to the Commission pursuant to 

this paragraph and to § 1.2114. 

* * * * * 

■ 3. Section 1.2111 is revised by 

removing paragraph (d)(2)(i) and 

redesignating paragraphs (d)(2)(ii) and 

(iii) as paragraphs (d)(2)(i) and (ii) and 

by revising them to read as follows: 

§ 1.2111 Assignment or transfer of control: 

unjust enrichment. 

* * * * * 

(d) * * * 

(2) Payment schedule. (i) The amount 

of payments made pursuant to 

paragraph (d)(1) of this section will be 

reduced over time as follows: 

(A) A transfer in the first two years of 

the license term will result in a 

forfeiture of 100 percent of the value of 

the bidding credit (or in the case of very 

small businesses transferring to small 

businesses, 100 percent of the difference 

between the bidding credit received by 

the former and the bidding credit for 

which the latter is eligible); 

(B) A transfer in year 3 of the license 

term will result in a forfeiture of 75 

percent of the value of the bidding 

credit; 

(C) A transfer in year 4 of the license 

term will result in a forfeiture of 50 

percent of the value of the bidding 

credit; 

(D) A transfer in year 5 of the license 

term will result in a forfeiture of 25 

percent of the value of the bidding 

credit; and 

(E) For a transfer in year 6 or 

thereafter, there will be no payment. 

(ii) These payments will have to be 

paid to the United States Treasury as a 

condition of approval of the assignment, 

transfer, ownership change or reportable 

eligibility event (see § 1.2114). 

* * * * * 

■ 4. Section 1.2112 is amended by 

revising paragraphs (b)(1)(iii) and 

(b)(2)(iii) to read as follows: 

§ 1.2112 Ownership disclosure 

requirements for applications. 

* * * * * 

(b) * * * 

(1) * * * 

(iii) List and summarize all 

agreements or instruments (with 

appropriate references to specific 

provisions in the text of such 

agreements and instruments) that 

support the applicant’s eligibility as a 

small business under the applicable 

designated entity provisions, including 

the establishment of de facto or de jure 

control or the presence or absence of 

attributable material relationships. Such 

agreements and instruments include 

articles of incorporation and by-laws, 

partnership agreements, shareholder 

agreements, voting or other trust 

agreements, management agreements, 

franchise agreements, spectrum leasing 

arrangements, spectrum resale 

(including wholesale) arrangements, 

and any other relevant agreements 

(including letters of intent), oral or 

written; 

* * * * * 

(2) * * * 

(iii) List and summarize all 

agreements or instruments (with 

appropriate references to specific 

provisions in the text of such 

agreements and instruments) that 

support the applicant’s eligibility as a 

small business under the applicable 

designated entity provisions, including 

the establishment of de facto or de jure 

control or the presence or absence of 

attributable material relationships. Such 

agreements and instruments include 

articles of incorporation and by-laws, 

partnership agreements, shareholder 

agreements, voting or other trust 

agreements, management agreements, 

franchise agreements, spectrum leasing 

arrangements, spectrum resale 

(including wholesale) arrangements, 

and any other relevant agreements 

(including letters of intent), oral or 

written; 

* * * * * 

[FR Doc. 2012–6946 Filed 3–20–12; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Pipeline and Hazardous Materials 

Safety Administration 

49 CFR Parts 191, 192, 193 and 195 

[Docket No. PHMSA–2012–0001] 

Pipeline Safety: Implementation of the 

National Registry of Pipeline and 

Liquefied Natural Gas Operators 

AGENCY: Pipeline and Hazardous 

Materials Safety Administration 

(PHMSA), DOT. 

ACTION: Issuance of Advisory Bulletin. 

SUMMARY: This notice advises owners 

and operators of pipeline facilities of 

PHMSA’s plan for implementing the 

national registry of pipeline and 

liquefied natural gas operators. This 

notice provides updates to the 

information contained in a PHMSA 

Advisory Bulletin published on January 

13, 2012 (77 FR 2126). 

FOR FURTHER INFORMATION CONTACT: 

Jamerson Pender, Information Resources 

Manager, 202–366–0218 or by email at 

Jamerson.Pender@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 26, 2010, PHMSA 

published a final rule in the Federal 

Register (75 FR 72878) titled: ‘‘Pipeline 

Safety: Updates to Pipeline and 

Liquefied Natural Gas Reporting 

Requirements.’’ That final rule added 

two new sections, 49 CFR 191.22 and 

195.64, to the pipeline safety regulations 

that concerned the establishment of a 

national registry of pipeline and 

liquefied natural gas (LNG) operators. 

New operators use the national registry 

to obtain an Operator Identification 

(OPID) Number and existing operators 

use it to notify PHMSA of certain 

actions, including company name 

changes, certain construction activities, 

and project planning. 

The national pipeline operator 

registry became effective on January 1, 

2012. In compliance with the Paperwork 

Reduction Act requirements, PHMSA 

issued a 60-day Federal Register notice 

on December 13, 2010 (75 FR 77694), 

and a 30-day Federal Register notice on 


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