12272 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

parties have implemented all 

appropriate response actions as 

specified in the Unilateral 

Administrative Orders and Action 

Memorandums and no further response 

action by responsible parties is 

appropriate other than continued 

maintenance of institutional controls. 

EPA and MDEQ have also determined 

through the Five-Year Review that all 

response actions have been completed 

such that any release from the block 

placement area where waste has been 

left in place poses no significant threat 

to public health or the environment and, 

therefore, taking of remedial measures is 

not appropriate. 

The State, through MDEQ, has 

concurred on the proposed deletion and 

provided such concurrence in writing. 

EPA also provided the State 30 working 

days for review of the partial deletion 

notice prior to its publication in the 

Federal Register. 

V. Partial Deletion Action 

The EPA, with concurrence of the 

State through the MDEQ, has 

determined that all appropriate 

response actions under CERCLA, other 

than operation and maintenance and 

five-year reviews, have been completed. 

Therefore, EPA is deleting the surface 

and subsurface soils component of the 

Mouat Industries Superfund Site from 

the NPL. 

Because EPA considers this action to 

be non-controversial and routine, EPA is 

taking it without prior publication. This 

action will be effective May 26, 2009, 

unless EPA receives adverse comments 

by April 23, 2009. If adverse comments 

are received within the 30-day public 

comment period, EPA will publish a 

timely withdrawal of this direct final 

notice of partial deletion before the 

effective date of the deletion and it will 

not take effect and, EPA will prepare a 

response to comments and continue 

with the deletion process on the basis of 

the notice of intent to partially delete 

and the comments already received. 

There will be no additional opportunity 

to comment. 

List of Subjects in 40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

Waste, Hazardous substances, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

Dated: March 10, 2009. 

Carol Rushin, 

Acting Regional Administrator, Region 8. 

■ For the reasons set out in this 

document, 40 CFR part 300 is amended 

as follows: 

PART 300—[AMENDED] 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 

9601–9657; E.O. 12777, 56 FR 54757, 3 CFR. 

1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 

3 CFR, 1987 Comp., p. 193. 

Appendix B—[Amended] 

■ 2. Table 1 of Appendix B to Part 300 

is amended by revising the entry under 

Montana for ‘‘Mouat Industries 

Superfund Site’’ to read as follows: 

Appendix B to Part 300—National 

Priorities List 

TABLE 1—GENERAL SUPERFUND

SECTION

State Site name City/county Notes a

* * * * * 

MT Mouat Industries.Columbus .... *** P 

* * * * * 

a * * *. 

***P = sites with deletion(s). 

[FR Doc. E9–6142 Filed 3–23–09; 8:45 am] 

BILLING CODE 6560–50–P 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Part 102–72 

[FMR Amendment 2009–03; FMR Case 

2009–102–1; Docket 2009–0002; Sequence 

2] 

RIN 3090–AI86 

Federal Management Regulation; FMR 

Case 2009–102–1, Delegation of 

Authority To Perform Ancillary Repair 

and Alteration Work in Federally 

Owned Buildings Under the 

Jurisdiction, Custody or Control of the 

General Services Administration 

AGENCY: Office of Governmentwide 

Policy, General Services Administration 

(GSA). 

ACTION: Final rule. 

SUMMARY: GSA is amending the Federal 

Management Regulation (FMR) to 

delegate to Executive agencies the 

authority to perform ancillary repair and 

alteration work in federally owned 

buildings under the jurisdiction, 

custody or control of GSA in accordance 

with the terms, conditions and 

limitations set forth in sections 102– 

72.66 through 102–72.69. 

DATES: Effective Date: April 23, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley C. Langfeld, Director, 

Regulations Management Division, 

Office of Governmentwide Policy, 

General Services Administration, at 

(202) 501–1737, or by e-mail at 

stanley.langfeld@gsa.gov, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat, Room 4041, GS Building, 

Washington, DC 20405, (202) 501–4755. 

Please cite FMR Amendment 2009–03, 

FMR Case 2009–102–1. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSA Federal Acquisition Service 

established Ancillary Repair and 

Alterations as a Special Item Number 

(SIN) in the GSA Multiple Award 

Schedule. The SIN provides for the 

acquisition of ancillary repair and 

alteration services when it is a minor 

part of a project and is required to 

support a product or service that is 

purchased under the same GSA 

Multiple Award Schedule from the 

same vendor. 

An Executive agency may not perform 

ancillary repair and alteration work in a 

federally owned building under the 

jurisdiction, custody or control of GSA 

using this SIN without first obtaining a 

delegation of authority from the 

Administrator of General Services. To 

promote efficiency and economy, 41 

CFR sections 102–72.66 through 102– 

72.69 delegate such ancillary repair and 

alteration authority to all Executive 

agencies in accordance with the terms, 

conditions and limitations set forth in 

those sections. 

B. Executive Order 12866 

The GSA has determined that this 

final rule is not a significant regulatory 

action for the purposes of Executive 

Order 12866. 

C. Regulatory Flexibility Act 

This final rule is not required to be 

published in the Federal Register for 

comment. Therefore, the Regulatory 

Flexibility Act does not apply. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FMR do not impose information 

collection requirements that require the 

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Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 12273 

approval of the Office of Management 

and Budget under 44 U.S.C. 3501–3521. 

E. Small Business Regulatory 

Enforcement Fairness Act 

This final rule is exempt from 

Congressional review under 5 U.S.C. 

801, since it relates solely to agency 

management and personnel. 

List of Subjects in 41 CFR Part 102–72 

Delegation of authority. 

Dated: January 23, 2009. 

Paul F. Prouty, 

Acting Administrator of General Services. 

■ For the reasons set forth in the 

preamble, GSA amends 41 CFR part 

102–72 as set forth below: 

PART 102–72—DELEGATION OF 

AUTHORITY 

■ 1. The authority citation for 41 CFR 

part 102–72 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c), 40 U.S.C. 

3305, 40 U.S.C. 3314. 

■ 2. Add sections 102–72.66 through 

102–72.69 to read as follows: 

§ 102–72.66 Do Executive agencies have a 

delegation of authority to perform ancillary 

repair and alteration projects in federally 

owned buildings under the jurisdiction, 

custody or control of GSA? 

Yes. Executive agencies, as defined in 

§ 102–71.20, are hereby delegated the 

authority to perform ancillary repair and 

alteration work in federally owned 

buildings under the jurisdiction, 

custody or control of GSA in accordance 

with the terms, conditions and 

limitations set forth in §§ 102–72.67 

through 102–72.69. 

§ 102–72.67 What work is covered under 

an ancillary repair and alteration 

delegation? 

(a) For purposes of this delegation, 

ancillary repair and alteration projects 

are those— 

(1) Where an Executive agency has 

placed an order from a vendor under a 

GSA Multiple Award Schedule and 

ancillary repair and alteration services 

also are available from that same vendor 

as a Special Item Number (SIN); 

(2) Where the ancillary repair and 

alteration work to be performed is 

associated solely with the repair, 

alteration, delivery, or installation of 

products or services also purchased 

under the same GSA Multiple Award 

Schedule; 

(3) That are routine and non-complex 

in nature, such as routine painting or 

carpeting, simple hanging of drywall, 

basic electrical or plumbing work, 

landscaping, and similar non-complex 

services; and 

(4) That are necessary to be performed 

to use, execute or implement 

successfully the products or services 

purchased from the GSA Multiple 

Award Schedule. 

(b) Ancillary repair and alteration 

projects do not include— 

(1) Major or new construction of 

buildings, roads, parking lots, and other 

facilities; 

(2) Complex repair and alteration of 

entire facilities or significant portions of 

facilities; or 

(3) Architectural and engineering 

services procured pursuant to 40 U.S.C. 

1101–1104. 

§ 102–72.68 What preconditions must be 

satisfied before an Executive agency may 

exercise the delegated authority to perform 

an individual ancillary repair and alteration 

project? 

The preconditions that must be 

satisfied before an Executive agency 

may perform ancillary repair and 

alteration work are as follows: 

(a) The ordering agency must order 

both the products or services and the 

ancillary repair and alteration services 

under the same GSA Multiple Award 

Schedule from the same vendor; 

(b) The value of the ancillary repair 

and alteration work must be less than or 

equal to $100,000 (for work estimated to 

exceed $100,000, the Executive agency 

must contact the GSA Assistant 

Regional Administrator, Public 

Buildings Service, in the region where 

the work is to be performed to request 

a specific delegation); 

(c) All terms and conditions 

applicable to the acquisition of ancillary 

repair and alteration work as required 

by the GSA Multiple Award Schedule 

ordering procedures must be satisfied; 

(d) The ancillary repair and alteration 

work must not be in a facility leased by 

GSA or in any other leased facility 

acquired under a lease delegation from 

GSA; and 

(e) As soon as reasonably practicable, 

the Executive agency must provide the 

building manager with a detailed scope 

of work, including cost estimates, and 

schedule for the project, and such other 

information as may be reasonably 

requested by the building manager, so 

the building manager can determine 

whether or not the proposed work is 

reasonably expected to have an adverse 

effect on the operation and management 

of the building, the building’s structural, 

mechanical, electrical, plumbing, or 

heating and air conditioning systems, 

the building’s aesthetic or historic 

features, or the space or property of any 

other tenant in the building. The 

Executive agency must obtain written 

approval from the building manager 

prior to placing an order for any 

ancillary repair and alteration work. 

§ 102–72.69 What additional terms and 

conditions apply to an Executive agencies’ 

delegation of ancillary repair and alteration 

authority? 

(a) Before commencing any ancillary 

repair and alteration work, the 

Executive agency shall deliver, or cause 

its contractor to deliver, to the building 

manager evidence that the contractor 

has obtained at least $5,000,000 

comprehensive general public liability 

and property damage insurance policies 

to cover claims arising from or relating 

to the contractor’s operations that cause 

damage to persons or property; such 

insurance shall name the United States 

as an additional insured. 

(b) The Executive agency shall agree 

that GSA has no responsibility or 

liability, either directly or indirectly, for 

any contractual claims or disputes that 

arise out of or relate to the performance 

of ancillary repair and alteration work, 

except to the extent such claim or 

dispute arises out of or relates to the 

wrongful acts or negligence of GSA’s 

agents or employees. 

(c) The Executive agency shall agree 

to administer and defend any claims 

and actions, and shall be responsible for 

the payment of any judgments rendered 

or settlements agreed to, in connection 

with contract claims or other causes of 

action arising out of or relating to the 

performance of the ancillary repair and 

alteration work. 

(d) For buildings under GSA’s 

custody and control, GSA shall have the 

right, but not the obligation, to review 

the work from time to time to ascertain 

that it is being performed in accordance 

with the approved project requirements, 

schedules, plans, drawings, 

specifications, and other related 

construction documents. The Executive 

agency shall promptly correct, or cause 

to be corrected, any non-conforming 

work or property damage identified by 

GSA, including damage to the space or 

property of any other tenant in the 

building, at no cost or expense to GSA. 

(e) The Executive agency shall remain 

liable and financially responsible to 

GSA for any and all personal or 

property damage caused, in whole or in 

part, by the acts or omissions of the 

Executive agency, its employees, agents, 

and contractors. 

(f) If the cost or expense to GSA to 

operate the facility is increased as a 

result of the ancillary repair and 

alteration project, the Executive agency 

shall be responsible for any such costs 

or expenses. 

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12274 Federal Register / Vol. 74, No. 55 / Tuesday, March 24, 2009 / Rules and Regulations 

(g) Disputes between the Executive 

agency and GSA arising out of the 

ancillary repair and alteration work 

will, to the maximum extent practicable, 

be resolved informally at the working 

level. In the event a dispute cannot be 

resolved informally, the matter shall be 

referred to GSA’s Public Buildings 

Service. The Executive agency agrees 

that, in the event GSA’s Public 

Buildings Service and the Executive 

agency fail to resolve the dispute, they 

shall refer it for resolution to the 

Administrator of General Services, 

whose decision shall be binding. 

[FR Doc. E9–6427 Filed 3–23–09; 8:45 am] 

BILLING CODE 6820–14–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MM Docket No. 95–31; FCC 08–219] 

Reexamination of the Comparative 

Standards for Noncommercial 

Educational Applicants 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the 

Commission addresses eight petitions 

for reconsideration of the Second Report 

& Order, in the closed ‘‘mixed groups’’ 

proceeding. The ‘‘mixed groups’’ 

proceeding sought to establish rules for 

resolving the situation when an 

application for an NCE broadcast station 

is mutually exclusive with an 

application for a commercial broadcast 

station. The Second Report & Order 

decided to accept applications for NCE 

stations on non-reserved channels in 

‘‘closed, mixed groups,’’ but to dismiss 

those applications if they are mutually 

exclusive with applications for 

commercial stations. This document 

now affords a discrete group of pending 

applicants for NCE stations on nonreserved channels in closed, mixed 

groups that have been pending since the 

date of the Second Report & Order, a 

one-time opportunity to amend their 

applications to apply for a commercial 

broadcast station in order to avoid 

dismissal of their applications. This 

document reaffirms the other decisions 

in the Second Report & Order. 

DATES: Effective April 23, 2009. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Room TW–A325, Washington, DC 

20554. For additional information, see 

the SUPPLEMENTARY INFORMATION section 

of this document. 

FOR FURTHER INFORMATION CONTACT: For 

additional information on this 

proceeding, contact Evan Baranoff, of 

the Media Bureau, Policy Division at 

Evan.Baranoff@fcc.gov, 418–7142. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

Memorandum Opinion and Third Order 

on Reconsideration, MM Docket No. 95– 

31, FCC 08–219, adopted on September 

24, 2008 and released on December 2, 

2008. The full text of this document is 

available on the Internet at the 

Commission’s Web site: http:// 

hraunfoss.fcc.gov/edocs_public/ 

attachmatch/FCC-08-219A1.doc . It is 

also available for inspection and 

copying during regular business hours 

in the FCC Reference Information 

Center, Portals II, 445 12th Street, SW., 

Room CY–A257, Washington, DC 20554. 

The complete text may be purchased 

from the Commission’s copy and 

duplicating contractor, Best Copy & 

Printing, Inc. (BCPI), 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554. BCPI can be contacted at 202– 

488–5300 (phone), 202–488–5563 

(facsimile), or http:// 

www.BCPIWEB.com. Please be prepared 

to provide the appropriate FCC 

document number (FCC 08–219). To 

request this document in accessible 

formats (computer diskettes, large print, 

audio recording, and Braille), send an email to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Summary of the Memorandum Opinion 

& Third Order on Reconsideration 

I. Introduction 

1. In this Memorandum Opinion & 

Third Order on Reconsideration, we 

resolve eight petitions for 

reconsideration of the Second Report & 

Order, 68 FR 26220, May 15, 2003. The 

Second Report & Order, among other 

things, established ‘‘new policies for 

licensing spectrum that the Commission 

has not reserved for the exclusive use of 

broadcast stations that provide or intend 

to provide noncommercial educational 

(NCE) service.’’ These new policies 

included the decision to permit 

applicants for NCE stations to apply for 

non-reserved channels, but to dismiss 

such applications should they conflict 

with applications for commercial 

stations. One petitioner seeks 

reconsideration of this decision, which 

was codified in § 73.5002(b) of the 

Commission’s rules. For the reasons 

discussed below, we decline to 

reconsider establishment of this rule 

and affirm our decision to dismiss 

applicants for NCE stations for nonreserved channels that conflict with 

applications for commercial stations. 

Several other petitioners seek 

reconsideration of our decision not to 

accept any amendments to a discrete 

group of long-pending NCE 

applications, including amendments to 

change an applicant’s status from NCE 

to commercial, and request that we not 

dismiss this specific group of 

applicants. For the reasons discussed 

below, we will reconsider the 

immediate dismissal of this discrete 

group of applicants for NCE stations, 

and will afford them a one-time 

opportunity to amend their longpending applications to apply for 

commercial stations to avoid dismissal. 

Accordingly, we grant reconsideration 

of our decision not to accept any 

amendments to the discrete group of 

long-pending applications for NCE 

stations, but otherwise deny the 

petitions and reaffirm our earlier 

conclusions. 

II. Background 

2. The Second Report & Order 

established standards to resolve the 

situation when an application for an 

NCE broadcast station is mutually 

exclusive with an application for a 

commercial broadcast station (i.e. , 

‘‘mixed groups’’). NCE stations can 

operate both on (1) channels reserved by 

the Commission specifically for NCE 

service and (2) non-reserved channels, 

which are also available to applicants 

for commercial stations. The 

Commission has long used different 

standards to resolve application 

conflicts for reserved channels, on the 

one hand, and non-reserved channels, 

on the other. 

3. The Commission initiated this 

proceeding in 1995 to revise the criteria 

it used to select among competing 

applicants for new NCE stations. 

Subsequently, the Balanced Budget Act 

of 1997, Public Law 105–33, 111 Stat. 

251 (1997) amended section 309(j) of the 

Communications Act of 1934 (the Act), 

to require the Commission to use 

competitive bidding to resolve 

application conflicts, but exempted NCE 

stations from this process, see 47 U.S.C. 

309(j) (exempting stations described in 

Section 397(6) of the Act). As a result, 

the Commission in the Report & Order, 

65 FR 36375, June 8, 2000, decided to 

use a non-auction, point system to 

resolve application conflicts for 

reserved channels, and use competitive 

bidding to resolve conflicts for nonreserved channels. In National Public 

Radio, Inc. v. FCC, 254 F.3d 226, 229 

(D.C. Cir. 2001), parties challenged the 

procedures for non-reserved channels, 

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