Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Rules and Regulations 60105 

F. In paragraph (e)(3) introductory 

text, the words ‘‘or HHA’’ are removed; 

and in paragraph (e)(3)(ii), the word 

‘‘similar’’ is added before each 

occurrence of the word ‘‘services’’, and 

the words ‘‘or HHA’’ are removed. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773 Medicare—Hospital 

Insurance) 

Dated: September 21, 2000. 

Brian P. Burns, 

Deputy Assistant Secretary for Information 

Resources Management. 

[FR Doc. 00–25497 Filed 10–6–00; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Health Care Financing Administration 

42 CFR Parts 440 and 441 

[HCFA–2010–FC] 

RIN 0938–AI67 

Medicaid Program; Home and 

Community-Based Services 

AGENCY: Health Care Financing 

Administration (HCFA), HHS. 

ACTION: Final rule with comment period. 

SUMMARY: This final rule with comment 

period expands State flexibility in 

providing prevocational, educational, 

and supported employment services 

under the Medicaid home and 

community-based services waiver 

provisions currently found in section 

1915(c) of the Social Security Act (the 

Act); and incorporates the selfimplementing provisions of section 

4743 of the Balanced Budget Act of 1997 

that amends section 1915(c)(5) of the 

Act to delete the requirement that an 

individual have prior 

institutionalization in a nursing facility 

or intermediate care facility for the 

mentally retarded before becoming 

eligible for the expanded habilitation 

services. In addition, we are making a 

number of technical changes to update 

or correct the regulations. 

DATES: Effective date: October 1, 1997. 

We will consider written comments if 

we receive them at the appropriate 

address, as provided below, no later 

than 5 p.m. on or before December 11, 

2000. 

ADDRESSES: Mail written comments (one 

original and three copies) to the 

following address: Health Care 

Financing Administration, U.S. 

Department of Health and Human 

Services, P.O. Box 9010, Attention: 

HCFA–2010–FC, 7500 Security 

Boulevard, Baltimore, MD 21244–9010. 

If you prefer, you may deliver your 

written comments (one original and 

three copies) to one of the following 

addresses: 

Room 443–G, Hubert H. Humphrey 

Building, 200 Independence Avenue, 

SW., Washington, DC 20201, or 

Room C5–09–26, 7500 Security 

Boulevard, Baltimore, MD 21244– 

1850. 

Because of staffing and resource 

limitations, we cannot accept audio, 

visual, or facsimile (FAX) copies of 

comments. In commenting, please refer 

to file code HCFA–2010–FC. Comments 

received timely will be available for 

public inspection as they are received, 

generally beginning approximately 3 

weeks after publication of a document, 

in room 443–G of the Department’s 

offices at 200 Independence Avenue, 

SW., Washington, DC, on Monday 

through Friday of each week from 8:30 

a.m. to 5 p.m. (phone: (202) 690–7890). 

FOR FURTHER INFORMATION CONTACT: 

Mary Jean Duckett, (410) 786–3294. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Medicaid program is a Federally 

supported, State-administered program 

that provides medical assistance to 

individuals that meet eligibility criteria. 

It was established in 1965 as title XIX 

of the Social Security Act (the Act). 

Section 1915(c) was added to title XIX 

of the Act by the Omnibus Budget 

Reconciliation Act of 1981 (OBRA 1981) 

(Public Law 97–35) to encourage the 

provision of cost-effective services to 

Medicaid recipients in noninstitutional 

settings. Before the enactment of OBRA 

1981, the Medicaid program provided 

limited coverage for long-term care 

services in noninstitutional settings. 

Section 1915(c) of the Act authorizes 

the Secretary to waive certain Medicaid 

statutory requirements to enable a State 

to cover a broad array of home and 

community-based services that are not 

otherwise available under a State’s 

Medicaid program. These services must 

be furnished in accordance with an 

individually written plan of care that is 

subject to approval by the State 

Medicaid agency, and may be furnished 

only to persons who, but for the 

provision of the services, would 

otherwise require the level of care 

provided in a hospital, nursing facility 

(NF), or intermediate care facility for the 

mentally retarded (ICF/MR). Coverage of 

these services enables elderly, disabled, 

and chronically ill persons, who would 

otherwise be institutionalized, to live in 

the community. 

Under section 1915(c) of the Act, a 

State could receive Federal financial 

participation (FFP) for the following 

services as home and community-based 

services: case management services, 

homemaker and home health aide 

services, personal care services, adult 

day health services, habilitation 

services, respite care, and ‘‘other’’ 

services as requested by the State and 

approved by HCFA. Section 9502(a) of 

the Consolidated Omnibus Budget 

Reconciliation Act of 1985 (Public Law 

99–272) revised section 1915(c) of the 

Act to explicitly include certain 

prevocational, educational, and 

supported employment services as 

expanded habilitation services under 

home and community-based services for 

those individuals who receive waiver 

services after discharge from an NF or 

ICF/MR. Section 1915(c)(4) of the Act 

authorizes the provision of habilitation 

services, and section 1915(c)(5) of the 

Act defines habilitation services as 

services to assist individuals in 

acquiring, retaining, and improving the 

self-help, socialization, and adaptive 

skills necessary to reside successfully in 

home and community-based settings. 

Section 1915(c)(5) of the Act was 

further amended by section 4743(a) of 

the Balanced Budget Act of 1997 (BBA) 

(Public Law 105–33), which deleted the 

requirement that an individual have 

prior institutionalization in either an NF 

or ICF/MR before becoming eligible for 

habilitation services. The regulations at 

§ 440.180(c)(1) applied this prior 

institutionalization requirement to 

expanded habilitation services. Thus, 

effective October 1, 1997, if a State 

chooses to provide these expanded 

habilitation services under its home and 

community-based waiver, it may 

provide these services to all individuals 

eligible for these services without regard 

to whether the individuals had a prior 

institutional stay in an NF or ICF/MR. 

II. Provisions of the Final Rule With 

Comment Period 

Before the enactment of the BBA, 

section 1915(c)(5) of the Act specified 

that the term ‘‘habilitation services’’ 

applies to individuals who receive 

services after discharge from an NF or 

ICF/MR. Section 4743 of the BBA 

amended section 1915(c)(5) of the Act, 

effective October 1, 1997, to remove the 

requirement that an individual be 

institutionalized before receiving 

habilitation services. 

To implement the provisions of 

section 4743 of the BBA, we are revising 

parts 440 and 441. We are also making 

a number of technical changes to update 

or correct the regulations. 


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60106 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Rules and Regulations 

In § 440.180, ‘‘Home or communitybased services,’’ we are revising the 

heading for paragraph (c) by changing 

the effective date from April 7, 1986 to 

October 1, 1997, and in paragraph (c)(1) 

we are deleting the requirement that 

recipients must have been discharged 

from a Medicaid-certified NF or ICF/MR 

to receive the services. 

In § 441.301, ‘‘Contents of request for 

a waiver,’’ our current rules at 

paragraph (a)(2) state that requests for 

waivers of the requirements of the Act 

that concern statewide application of 

Medicaid, comparability of services, and 

income and resource rules are 

applicable to individuals with spouses 

living in the community. This 

requirement incorrectly limits the 

waiver of the requirements of section 

1902(a)(10)(C)(i)(III) of the Act to 

individuals with spouses. We are 

correcting the requirement by deleting 

the phrase ‘‘with spouses’’ and adding 

‘‘medically needy’’ before the word 

‘‘individuals.’’ This revision clarifies 

that the request for a waiver is not 

limited to medically needy individuals 

with spouses. 

In § 441.302, ‘‘State assurances,’’ we 

are making a number of changes. 

Section 441.302(c)(1)(i) incorrectly cites 

hospital regulations at § 440.40, rather 

than at § 440.10. We are making this 

technical change. Section 441.302(d) 

requires States to give assurance that 

when a recipient is determined to be 

likely to require the level of care 

provided in an SNF, ICF, or ICF/MR, the 

recipient or his or her legal 

representative will be informed of the 

alternatives available under the waiver 

and given the choice of either 

institutional or home and communitybased services. We are updating the 

terminology in § 441.302(d) by removing 

the terms ‘‘SNF and ICF’’ and replacing 

them with ‘‘NF,’’ and adding the term 

‘‘hospital’’ as a conforming change to 

the regulations text. Section 

441.302(i)(2) also requires State 

assurances that services are furnished 

only to individuals who have been 

deinstitutionalized, regardless of 

discharge date from a Medicaid-certified 

NF or ICF/MR. Therefore, to conform 

the regulation to the BBA changes, we 

are removing § 441.302(i)(2) and 

redesignating § 441.302(i)(3) as 

§ 441.302(i)(2). In the redesignated 

§ 441.302(i)(2), we are also removing the 

phrase ‘‘on or after April 7, 1986.’’ 

In § 441.307, ‘‘Notification of a waiver 

termination,’’ our regulations at 

paragraph (a) require that if a State 

chooses to terminate its waiver before 

the 3-year period expires, it must notify 

HCFA in writing 30 days before 

terminating services to recipients. We 

are making a technical correction in 

paragraph (a) to state that waivers may 

be terminated during the initial 3-year 

period or 5-year renewal period. 

In § 441.310, ‘‘Limits on Federal 

financial participation (FFP),’’ we are 

making a number of changes. Section 

441.310(a)(3)(i) states that FFP is not 

available for prevocational, educational, 

or supported employment services, or 

any combination of these services, as 

part of habilitation services that are 

provided before April 7, 1986, and 

§ 441.310(a)(3)(iii) requires that 

habilitation services must be provided 

to recipients who were never 

institutionalized in a Medicaid-certified 

NF or ICF/MR. Section 441.310(b) states 

that FFP is available for expenditures 

for expanded habilitation services if the 

services are included under a waiver or 

waiver amendment approved by HCFA 

on or after April 7, 1986. Again, as the 

BBA eliminated the April 1986 date and 

also makes services available to 

medically needy recipients who have 

not been institutionalized, we are 

revising § 441.310(a)(3)(i), 

§ 441.310(a)(3)(iii), and § 441.310(b) to 

conform the regulations to the BBA 

changes. 

III. Collection of Information 

Requirements 

This document does not impose any 

information collection and 

recordkeeping requirements subject to 

the Paperwork Reduction Act of 1995 

(PRA). Consequently, it does not need to 

be reviewed by the Office of 

Management and Budget (OMB) under 

the authority of the PRA. 

IV. Response to Comments 

Because of the large number of 

comments we receive in response to a 

Federal Register publication, we are not 

able to respond to them individually. 

We will, however, consider all 

comments that we receive by the date 

and time specified in the ‘‘DATES’’ 

section of this preamble, and, if we 

publish a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

V. Waiver of Notice of Proposed 

Rulemaking 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of the 

rule take effect. However, pursuant to 5 

U.S.C. 553(b)(B), we may waive a notice 

of proposed rulemaking if we find good 

cause that notice and comment are 

impracticable, unnecessary, or contrary 

to the public interest. For good cause we 

find that it was unnecessary to 

undertake notice and comment 

procedures because these selfimplementing changes merely conform 

the regulations to the statutory language 

or make technical corrections and do 

not involve any exercise of discretion. 

Therefore, we believe it is 

unnecessary to publish a proposed rule 

and for good cause waive publication of 

a proposed regulation. We are, however, 

providing a 60-day period for public 

comment. 

VI. Waiver of Effective Date 

Under section 553(d) of the 

Administrative Procedure Act, we 

ordinarily publish a substantive rule at 

least 30 days before its effective date, 

unless for good cause we find a delay 

is impracticable, unnecessary, or 

contrary to the public interest. For good 

cause we find it unnecessary to delay 

the effective date of this rule because 

the changes are self-implementing or 

merely reflect technical corrections. 

Therefore, we are waiving the 30-day 

delay of the effective date. 

VII. Regulatory Impact Analysis 

We have examined the impact of this 

rule as required by Executive Order 

(E.O.) 12866 and the Regulatory 

Flexibility Act (RFA) (Public Law 96– 

354). E.O. 12866 directs agencies to 

assess all costs and benefits of available 

regulatory alternatives and, when 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits, including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity. 

The RFA (5 U.S.C. 601 through 612) 

requires agencies to analyze options for 

regulatory relief for small entities. 

Consistent with the RFA, we prepare a 

regulatory flexibility analysis unless we 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities. For 

purposes of the RFA, we treat most 

hospitals and most other providers, 

physicians, health care suppliers, 

carriers, and intermediaries as small 

entities, either by nonprofit status or by 

having revenues of $5 million or less 

annually. Individuals and States are not 

included in the definition of a small 

entity. 

Also, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. That analysis must conform to 

the provisions of section 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 


rmajette on DSK29S0YB1PROD with RULES
Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Rules and Regulations 60107 

a Metropolitan Statistical Area and has 

fewer than 50 beds. 

We are not preparing analyses for 

either the RFA or section 1102(b) of the 

Act because we have determined, and 

we certify, that this rule will not have 

a significant economic impact on a 

substantial number of small entities or 

a significant impact on the operations of 

a substantial number of small rural 

hospitals. This rule primarily affects 

States and individuals by expanding 

State flexibility and individual 

eligibility regarding certain services 

under Medicaid home and communitybased waivers. It does not impose any 

new, direct economic burdens on 

providers or other health care entities. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that agencies prepare an assessment of 

anticipated costs and benefits for any 

rule that may result in an expenditure 

by State, local, or tribal governments in 

the aggregate, or by the private sector, of 

$100 million in any one year. This rule 

has no mandated consequential effect 

on State, local, or tribal governments, or 

the private sector, and will not create an 

unfunded mandate. 

We do not believe publication of this 

rule will have a major impact on 

Medicaid waiver costs. According to 

States that have the expanded 

habilitation services under their 

waivers, individuals that currently are 

not receiving the expanded habilitation 

services because of no prior 

institutionalization are in day 

habilitation programs. This rule offers 

States greater flexibility. As stated above 

it should not significantly change how 

they do business because more 

individuals would shift from day 

habilitation to expanded habilitation 

programs. 

In accordance with Executive Order 

12866, this final rule with comment 

period was reviewed by OMB. 

We have reviewed this rule under the 

threshold criteria of Executive Order 

13132, Federalism. We have determined 

that this rule does not significantly 

affect the rights, roles, and 

responsibilities of States. 

List of Subjects 

42 CFR Part 440 

Grant programs-health, Health 

facilities, Health maintenance 

organizations (HMO), Medicaid, 

Medicare, Reporting and recordkeeping 

requirements. 

42 CFR Part 441 

Family planning, Grant programshealth, Infants and children, Medicaid, 

Penalties, Reporting and recordkeeping 

requirements. 

42 CFR chapter IV is amended as set 

forth below: 

PART 440—SERVICES: GENERAL 

PROVISIONS 

A. Part 440 is amended as follows: 

1. The authority citation for part 440 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

2. In § 440.180, the heading for 

paragraph (c) and paragraph (c)(1) are 

revised to read as follows: 

§ 440.180 Home or community-based 

services. 

* * * * * 

(c) Expanded habilitation services, 

effective October 1, 1997— (1) General 

rule. Expanded habilitation services are 

those services specified in paragraph 

(c)(2) of this section. 

* * * * * 

PART 441—SERVICES: 

REQUIREMENTS AND LIMITS 

APPLICABLE TO SPECIFIC SERVICES 

B. Part 441 is amended as follows: 

1. The authority citation for part 441 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

2. In § 441.301, the introductory text 

of paragraph (a) is republished and 

paragraph (a)(2) is revised to read as 

follows: 

§ 441.301 Contents of request for a waiver. 

(a) A request for a waiver under this 

section must consist of the following: 

* * * * * 

(2) When applicable, requests for 

waivers of the requirements of section 

1902(a)(1), section 1902(a)(10)(B), or 

section 1902(a)(10)(C)(i)(III) of the Act, 

which concern respectively, statewide 

application of Medicaid, comparability 

of services, and income and resource 

rules applicable to medically needy 

individuals living in the community. 

* * * * * 

§ 441.302 [Amended] 

3. In § 441.302, the following changes 

are made: 

a. Paragraph (c)(1)(i) is amended by 

removing the citation ‘‘§ 440.40’’ and 

adding ‘‘§ 440.10’’ in its place. 

b. The introductory text of paragraph 

(d) is revised, paragraph (i)(2) is 

removed, and paragraph (i)(3) is 

redesignated as paragraph (i)(2) and 

revised to read as follows: 

§ 441.302 State assurances. 

* * * * * 

(d) Alternatives—Assurance that 

when a recipient is determined to be 

likely to require the level of care 

provided in a hospital, NF, or ICF/MR, 

the recipient or his or her legal 

representative will be— 

* * * * * 

(i) * * * 

(2) Furnished as part of expanded 

habilitation services, if the State has 

requested and received HCFA’s 

approval under a waiver or an 

amendment to a waiver. 

* * * * * 

4. In § 441.307, paragraph (a) is 

revised to read as follows: 

§ 441.307 Notification of a waiver 

termination. 

(a) If a State chooses to terminate its 

waiver before the initial 3-year period or 

5-year renewal period expires, it must 

notify HCFA in writing 30 days before 

terminating services to recipients. 

* * * * * 

5. In § 441.310, the introductory text 

of paragraph (a) is republished, and 

paragraphs (a)(3) and (b) are revised to 

read as follows: 

§ 441.310 Limits on Federal financial 

participation (FFP). 

(a) FFP for home and communitybased services listed in § 440.180 of this 

chapter is not available in expenditures 

for the following: 

* * * * * 

(3) Prevocational, educational, or 

supported employment services, or any 

combination of these services, as part of 

habilitation services that are— 

(i) Provided in approved waivers that 

include a definition of ‘‘habilitation 

services’’ but which have not included 

prevocational, educational, and 

supported employment services in that 

definition; or 

(ii) Otherwise available to the 

recipient under either special education 

and related services as defined in 

section 602(16) and (17) of the 

Education of the Handicapped Act (20 

U.S.C. 1401(16) and (17)) or vocational 

rehabilitation services available to the 

individual through a program funded 

under section 110 of the Rehabilitation 

Act of 1973 (29 U.S.C. 730). 

* * * * * 

(b) FFP is available for expenditures 

for expanded habilitation services, as 

described in § 440.180 of this chapter, if 

the services are included under a waiver 

or waiver amendment approved by 

HCFA. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program). 


rmajette on DSK29S0YB1PROD with RULES
60108 Federal Register / Vol. 65, No. 196 / Tuesday, October 10, 2000 / Rules and Regulations 

1 5 U.S.C. 601 et seq. The RFA has been amended 

by the Contract With America Advancement Act of 

1996, Public Law 104–121, 110 Stat. 847 (1996) 

(‘‘CWAAA’’). Title II of the CWAAA is the Small 

Business Regulatory Enforcement Fairness Act of 

1996 (‘‘SBREFA’’). 

Dated: December 28, 1999. 

Nancy-Ann DeParle, 

Administrator, Health Care Financing 

Administration. 

Dated: March 28, 2000. 

Donna E. Shalala, 

Secretary. 

Editorial Note: This document was 

received at the Office of the Federal Register 

September 29, 2000. 

[FR Doc. 00–25496 Filed 10–6–00; 8:45 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2 and 87 

[ET Docket No. 98–197; FCC 00–353] 

Radionavigaton Service at 31.8–32.3 

GHz 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Commission’s Rules to delete the 

unused radionavigation service 

allocation from the band 31.8–32.3 GHz 

in the Non-Federal Government Table of 

Frequency Allocations and removes this 

band from the list of available 

frequencies set forth in the rules for the 

Aviation Services. This action will 

obviate concerns for interference to the 

reception of deep space 

radiocommunications in the band 31.8– 

32.3 GHz from co-channel, non-Federal 

Government radionavigation 

transmissions that could otherwise 

occur in the future. 

DATES: Effective November 9, 2000. 

FOR FURTHER INFORMATION CONTACT: Tom 

Mooring , Office of Engineering and 

Technology, (202) 418–2450. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, ET Docket No. 98–197, FCC 

00–353, adopted September 22, 2000, 

and released September 26, 2000. The 

full text of this Commission decision is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Information Center, 

Room CY–A257, 445 12th Street, SW., 

Washington, DC, and also may be 

purchased from the Commission’s 

duplication contractor, International 

Transcription Service, (202) 857–3800, 

1231 20th Street, NW Washington, DC 

20036. 

Summary of the Report and Order 

1. This Report and Order amends part 

2 of the Commission’s Rules to delete 

the unused radionavigation service 

allocation from the band 31.8–32.3 GHz 

in the Non-Federal Government Table of 

Frequency Allocations. Consequently, 

we also amend part 87 to remove this 

sub-band from the list of available 

frequencies set forth in the rules for the 

Aviation Services. We take this action in 

response to a request from the National 

Telecommunications and Information 

Administration. This action will obviate 

concerns for interference to the 

reception of deep space 

radiocommunications in the band 31.8– 

32.3 GHz from co-channel, non-Federal 

Government radionavigation 

transmissions that could otherwise 

occur in the future. This action will also 

provide adequate spectrum for future 

applications of the non-Federal 

Government radionavigation service in 

the remaining 1.1 gigahertz at 32.3–33.4 

GHz. 

2. We adopt our proposal (63 FR 

65726, November 30, 1998) to delete the 

non-Federal Government 

radionavigation service allocation from 

the band 31.8–32.3 GHz. This action 

reduces the amount of spectrum 

available to the non-Federal 

Government radionavigation service in 

this frequency range by approximately 

30%. By limiting future non-Federal 

Government radionavigation services to 

the band 32.3–33.4 GHz, NASA’s deep 

space operations in the band 31.8–32.3 

GHz will be protected and sufficient 

spectrum will be available to 

accommodate such commercial and 

private radionavigation services as may 

develop in the future. As a consequence 

of this action, we also will delete the 

band 31.8–32.3 GHz from the list of 

frequencies that are available for use by 

the aeronautical radionavigation service 

under § 87.173 of the rules for the 

Aviation Services. Since the band 32.3– 

33.4 GHz has previously been added to 

the § 87.173, we are adding a rule part 

cross-reference to part 87 in the Table of 

Frequency Allocations. 

3. Final Regulatory Flexibility 

Certification. The Regulatory Flexibility 

Act (‘‘RFA’’) 1 requires that a regulatory 

flexibility analysis be prepared for 

notice-and-comment rulemaking 

proceedings, unless the agency certifies 

that ‘‘the rule will not, if promulgated, 

have a significant economic impact on 

a substantial number of small entities.’’ 

The RFA generally defines ‘‘small 

entity’’ as having the same meaning as 

the terms ‘‘small business,’’ ‘‘small 

organization,’’ and ‘‘small governmental 

jurisdiction.’’ In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’ 

under the Small Business Act. A small 

business concern is one which: (1) 

Independently owned and operated; (2) 

is not dominant in its field of operation; 

and (3) satisfies any additional criteria 

established by the Small Business 

Administration (‘‘SBA’’). 

4. In the Notice of Proposed 

Rulemaking, we concluded that the 

proposed rules ‘‘[would] not have a 

significant economic impact on a 

substantial number of small entities.’’ 

Although no separate comments were 

received concerning this certification, 

the only commenter to the proceeding, 

Mr. Lyman C. Welch, did express 

concern that this rule change would 

prohibit commercial use. In this Report 

and Order, we have clarified that 

commercial entities may continue to 

make use of the Federal Government’s 

facility at Goldstone, and we therefore 

find that no small entities will be 

impacted by the rule change. 

Accordingly, we hereby certify that the 

deletion of the non-Federal Government 

radionavigation allocation at 31.8–32.3 

GHz will not have a significant 

economic impact on a substantial 

number of small entities. 

5. Report to Congress: The 

Commission will send a copy of this 

Report and Order, including this final 

certification, in a report to Congress 

pursuant to the Small Business 

Regulatory Enforcement Fairness Act of 

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

addition, the Report and Order and this 

certification will be sent to the Chief 

Counsel for Advocacy of the Small 

Business Administration. See 5 U.S.C. 

605(b). 

6. Pursuant to the authority contained 

in Sections 4(i), 7(a), 303(c), 303(f), 

303(g), and 303(r) of the 

Communications Act of 1934, as 

amended, 47 U.S.C. Sections 154(i), 

157(a), 303(c), 303(f), 303(g), and 303(r), 

parts 2 and 87 of the Commission’s 

Rules are amended; effective November 

9, 2000. 

List of Subjects 

47 CFR Part 2 

Communications equipment, Radio. 

47 CFR Part 87 

Air transportation, Communications 

equipment, Radio. 


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