11382 Federal Register / Vol. 62, No. 48 / Wednesday, March 12, 1997 / Rules and Regulations

ownership associated with the

equipment under applicable state and

local law.

(d) * * * Cable operators may impose

reasonable insurance requirements on

leased access programmers. Cable

operators shall bear the burden of proof

in establishing reasonableness.

* * * * *

(f) (1) A cable operator shall provide

billing and collection services for

commercial leased access cable

programmers, unless the operator

demonstrates the existence of third

party billing and collection services

which in terms of cost and accessibility,

offer leased access programmers an

alternative substantially equivalent to

that offered to comparable non-leased

access programmers.

* * * * *

(g) Cable operators shall not

unreasonably limit the length of leased

access contracts. The termination

provisions of leased access contracts

shall be commercially reasonable and

may not allow operators to terminate

leased access contracts without a

reasonable basis.

(h) Cable operators may not prohibit

the resale of leased access capacity to

persons unaffiliated with the operator,

but may provide in their leased access

contracts that any sublessees will be

subject to the non-price terms and

conditions that apply to the initial

lessee, and that, if the capacity is resold,

the rate for the capacity shall be the

maximum permissible rate.

4. Section 76.975 is amended by

revising paragraphs (b), (c), (d) and (e)

to read as follows:

§ 76.975 Commercial leased access

dispute resolution.

* * * * *

(b) (1) Any person aggrieved by the

failure or refusal of a cable operator to

make commercial channel capacity

available or to charge rates for such

capacity in accordance with the

provisions of Title VI of the

Communications Act, or our

implementing regulations, §§ 76.970

and 76.971, may file a petition for relief

with the Commission. Persons alleging

that a cable operator’s leased access rate

is unreasonable must receive a

determination of the cable operator’s

maximum permitted rate from an

independent accountant prior to filing a

petition for relief with the Commission.

(2) Parties to a dispute over leased

access rates shall have five business

days to agree on a mutually acceptable

accountant from the date on which the

programmer provides the cable operator

with a written request for a review of its

leased access rates. Parties that fail to

agree on a mutually acceptable

accountant within five business days of

the programmer’s request for a review

shall each be required to select an

independent accountant on the sixth

business day. The two accountants

selected shall have five business days to

select a third independent accountant to

perform the review. Operators of

systems subject to small system relief

shall have 14 business days to select an

independent accountant when an

agreement cannot be reached. For these

purposes, systems subject to small

system relief are systems that either:

(i) Qualify as small systems under

§ 76.901(c) and are owned by a small

cable company as defined under

§ 76.901(e); or

(ii) Have been granted special relief.

(3) The final accountant’s report must

be completed within 60 days of the date

on which the final accountant is

selected to perform the review. The final

accountant’s report must, at a minimum,

state the maximum permitted rate, and

explain how it was determined without

revealing proprietary information. The

report must be signed, dated and

certified by the accountant. The report

shall be filed in the cable system’s local

public file.

(4) If the accountant’s report indicates

that the cable operator’s leased access

rate exceeds the maximum permitted

rate by more than a de minimis amount,

the cable operator shall be required to

pay the full cost of the review. If the

final accountant’s report does not

indicate that the cable operator’s leased

access rate exceeds the maximum

permitted rate by more than a de

minimis amount, each party shall be

required to split the cost of the final

accountant’s review, and to pay its own

expenses incurred in making the review.

(5) Parties may use alternative dispute

resolution (ADR) processes to settle

disputes that are not resolved by the

final accountant’s report.

(c) A petition must contain a concise

statement of the facts constituting a

violation of the statute or the

Commission’s Rules, the specific

statute(s) or rule(s) violated, and certify

that the petition was served on the cable

operator. Where a petition is based on

allegations that a cable operator’s leased

access rates are unreasonable, the

petitioner must attach a copy of the final

accountant’s report. In proceedings

before the Commission, there will be a

rebuttable presumption that the final

accountant’s report is correct.

(d) Where a petition is not based on

allegations that a cable operator’s leased

access rates are unreasonable, the

petition must be filed within 60 days of

the alleged violation. Where a petition

is based on allegations that the cable

operator’s leased access rates are

unreasonable, the petition must be filed

within 60 days of the final accountant’s

report, or within 60 days of the

termination of ADR proceedings.

Aggrieved parties must certify that their

petition was filed within 60 days of the

termination of ADR proceedings in

order to file a petition later than 60 days

after completion of the final

accountant’s report. Cable operators

may rebut such certifications.

(e) The cable operator or other

respondent will have 30 days from the

filing of the petition to file a response.

If a leased access rate is disputed, the

response must show that the rate

charged is not higher than the maximum

permitted rate for such leased access,

and must be supported by the affidavit

of a responsible company official. If,

after a response is submitted, the staff

finds a prima facie violation of our

rules, the staff may require a respondent

to produce additional information, or

specify other procedures necessary for

resolution of the proceeding.

* * * * *

5. Section 76.977 is amended by

revising the last sentence of paragraph

(a) to read as follows:

§ 76.977 Minority and educational

programming used in lieu of designated

commercial leased access capacity.

(a) * * * The channel capacity used

to provide programming from a

qualified minority programming source

or from any qualified educational

programming source pursuant to this

section may not exceed 33 percent of

the channel capacity designated

pursuant to 47 U.S.C. 532 and must be

located on a tier with more than 50

percent subscriber penetration.

* * * * *

[FR Doc. 97–5897 Filed 3–11–97; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 1

[(OST) Docket No. 1; Amdt. 1–284]

Organizations and Delegation of

Powers and Duties; Delegation to the

Commandant, United States Coast

Guard and Administrator, Maritime

Administration

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

SUMMARY: This rule revises in part the

delegations of Secretarial authority
Federal Register / Vol. 62, No. 48 / Wednesday, March 12, 1997 / Rules and Regulations 11383

under the Deepwater Port Act of 1974,

as amended. The Secretary reserves the

authority to issue, amend, or transfer a

deepwater port license. The rule

delegates certain functions under the

Act to the Administrator of the Maritime

Administration and provides for

coordination between the Maritime

Administration and the United States

Coast Guard in processing applications

for licenses for construction and

operation of deepwater ports. The rule

also delegates to the Commandant of the

Coast Guard additional Secretarial

authority under the Oil Pollution Act of

1990. The rule does not change the

previous delegation of Deepwater Port

Act authority to the Administrator of the

Research and Special Programs

Administration.

EFFECTIVE DATE: This rule is effective

March 12, 1997.

FOR FURTHER INFORMATION CONTACT: Paul

B. Larsen, Office of the Assistant

General Counsel for Environmental,

Civil Rights, and General Law at (202)

366–9161 Department of Transportation,

400 7th Street SW., Washington, DC

20590.

SUMMARY INFORMATION: This rule revises

the Secretary’s delegations of authority

under the Deepwater Port Act, as

amended. The Secretary reserves the

authority to issue, amend, or transfer a

license for the construction and

operation of a deepwater port (33 U.S.C.

1503(b)). The rule provides for effective

service to the public through

coordination between the Administrator

of the Maritime Administration

(MARAD) and the Commandant of the

United States Coast Guard for the

processing of applications for the

issuance, transfer, or amendment of a

license for the construction and

operation of a deepwater port. The

Secretary delegates to the Administrator

of MARAD several authorities under the

Deepwater Port Act which the Secretary

had previously reserved in 46 CFR

1.44(o).

The rule also delegates to the

Commandant of the Coast Guard the

Secretary’s authority under the Oil

Pollution Act of 1990 to prescribe

regulations to lower the liability limits

of deepwater ports (33 U.S.C.

2704(d)(2)(C)).

The rule does not change the

Secretary’s previous delegation of

Deepwater Port Act authority to the

Administrator of the Research and

Special Programs Administration in 49

CFR 1.53(a)(3) for establishment,

enforcement, and review of regulations

concerning the safe construction,

operation or maintenance of pipelines

on Federal lands and the Outer

Continental Shelf (33 U.S.C. 1520).

Since this amendment is ministerial

and relates only to departmental

management, organization, procedure,

and practice, it is exempt from prior

notice and comment requirements

under 5 USC 553 (b)(3)(A). The

Department has determined that notice

and comment on it are unnecessary and

impractical. The changes will not have

substantive impact and the Department

does not expect meaningful comments

on them. Therefore there is good cause

under 5 USC 553(d)(3) to make this rule

effective in fewer than 30 days after

publication in the Federal Register.

List of Subjects in 49 CFR Part 1

Authority delegations (Government

agencies), Organization and functions

(Government agencies).

In consideration of the foregoing, Part

1 of Title 49, Code of Federal

Regulations, is amended to read as

follows:

PART 1—[AMENDED]

1. The authority citation for Part 1

continues to read as follows:

Authority: 49 U.S.C. 322; Pub. L. 101–552,

28 U.S.C. 2672, 31 U.S.C. 3711(a)(2).

2. Section 1.44(o) is revised to read as

follows:

§ 1.44 Reservation of authority.

* * * * *

(o) Deepwater ports. The authority to

issue, transfer, or amend a license for

the construction and operation of a

deepwater port (33 U.S.C. 1503(b)).

* * * * *

3. Section 1.46(s) is revised to read as

follows:

§ 1.46 Delegations to Commandant of the

Coast Guard.

* * * * *

(s) Carry out the following powers and

duties vested in the Secretary by the

Deepwater Port Act of 1974, as amended

(33 U.S.C. 1501–1524):

(1) The authority to process

applications for the issuance, transfer or

amendment of a license for the

construction and operation of a

deepwater port (33 U.S.C. 1503(b)) in

coordination with the Administrator of

the Maritime Administration.

(2) Carry out other functions and

responsibilities vested in the Secretary

by the Deepwater Port Act of 1974, as

amended (33 U.S.C. 1501–1524), except

as reserved by § 1.44(o) and delegated

by §§ 1.53(a)(3) and 1.66(aa).

* * * * *

4. Section 1.46(ll) is amended by

inserting after the word ‘‘sections’’, the

phrase ‘‘1004(d)(2)(C).’’

5. Section 1.66(aa) is added to read as

follows:

§ 1.66 Delegation to Maritime

Administrator.

* * * * *

(aa) Carry out the following powers

and duties vested in the Secretary by the

Deepwater Port Act of 1974, as amended

(33 U.S.C. 1501–1524):

(1) The authority to process

applications for the issuance, transfer,

or amendment of a license for the

construction and operation of a

deepwater port (33 U.S.C. 1503(bb)) in

coordination with the Commandant of

the Coast Guard.

(2) Approval of fees charged by

adjacent coastal States for use of a

deepwater port and directly related

land-based facilities (33 U.S.C.

1504(h)(2)).

(3) In collaboration with the Assistant

Secretary for Aviation and International

Affairs and the Assistant Secretary for

Transportation Policy, consultation with

the Secretary of State relating to

international actions and cooperation in

the economic, trade and general

transportation policy aspects of the

ownership and operation of deepwater

ports (33 U.S.C. 1510).

(4) Submission of notice of the

commencement of a civil suit (33 U.S.C.

1515(b)(2)).

(5) Intervention in any civil action to

which the Secretary is not a party (33

U.S.C. 15150).

(6) Authority to request the Attorney

General to seek the suspension or

termination of a deepwater port license

and to initiate a proceeding before the

Surface Transportation Board (33 U.S.C.

1507, 1511(a)).

Issued in Washington, DC on March 3,

1997.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 97–6175 Filed 3–11–97; 8:45 am]

BILLING CODE 4910–62–P