Federal Register / Vol. 66, No. 91 / Thursday, May 10, 2001 / Rules and Regulations 23861

State and local officials was not

necessary.

Environmental Impact Statement

We have analyzed this final rule for

purposes of compliance with the

National Environmental Policy Act of

1969 (42 U.S.C. 4321 et seq.) and have

concluded that under the categorical

exclusions provision in section 4.05 of

Maritime Administrative Order

(‘‘MAO’’) 600–1, ‘‘Procedures for

Considering Environmental Impacts,’’

50 FR 11606 (March 22, 1985), the

preparation of an Environmental

Assessment, and an Environmental

Impact Statement, or a Finding of No

Significant Impact for this final rule is

not required. This final rule involves

administrative and procedural

regulations that have no environmental

impact.

Executive Order 13175

MARAD does not believe that this

final rule will significantly or uniquely

affect the communities of Indian tribal

governments when analyzed under the

principles and criteria contained in

Executive Order 13175 (‘‘Consultation

and Coordination with Indian Tribal

Governments’’). Therefore, the funding

and consultation requirements of this

Executive Order would not apply.

Unfunded Mandates Reform Act of 1995

This final rule does not impose an

unfunded mandate under the Unfunded

Mandates Reform Act of 1995. It does

not result in costs of $100 million or

more, in the aggregate, to any of the

following: State, local, or Native

American tribal governments, or the

private sector. This final rule is the least

burdensome alternative that achieves

the objective of the rule.

Paperwork Reduction Act

This final rule does not contain

information collection requirements

covered by 5 CFR Part 1320 (specifically

5 CFR 1320.3(c)) in that appellants

choose the information to be provided

in their appeal and may choose to

interpret the collection of information

differently.

Regulation Identifier Number (RIN)

The Department of Transportation

assigns a regulation identifier number

(RIN) to each regulatory action listed in

the Unified Agenda of Federal

Regulations. The Regulatory Information

Service Center publishes the Unified

Agenda in April and October of each

year. The RIN number is contained in

the heading of this document to crossreference this action with the Unified

Agenda.

List of Subjects in 46 CFR Part 205

Administrative practice and

procedure, Government contracts.

Accordingly, 46 CFR part 205 is

revised to read as follows:

PART 205—AUDIT APPEALS; POLICY

AND PROCEDURE

Sec.

205.1 Purpose.

205.2 Policy.

205.3 Procedure.

205.4 Finality of decisions.

205.5 Contracts containing disputes article.

Authority: Sec. 204, 49 Stat. 1987, 1998,

2004, 2011; 46 U.S.C. 1114, 1155, 1176, 1212.

§ 205.1 Purpose.

This part establishes the policy and

procedure for parties to use when

seeking redress and appeals of audit

decisions involving contracts with the

Maritime Subsidy Board or the Maritime

Administration (MARAD, we, our, or

us). A party to a contract (you or your)

may appeal MARAD’s findings,

interpretations, or decisions of annual

or special audits.

§ 205.2 Policy

If you disagree with audit findings

and fail to settle any differences with

the appropriate Office Director, you may

ask the appropriate office Associate

Administrator to review the audit

findings. If you disagree with the

Associate Administrator, you may

appeal to the Maritime Administrator

(Administrator).

§ 205.3 Procedure.

(a) You have 90 days from the date

you receive the initial audit findings to

file a written request for review of the

audit findings with the appropriate

Associate Administrator. Your written

request must state the legal or factual

bases for your disagreement. The

appropriate Associate Administrator

will issue a written determination.

(b) You have 30 days following the

Associate Administrator’s final audit

determination to submit your appeal in

writing to the Administrator. Your

written appeal must set forth the legal

and factual bases for your appeal. The

Administrator may, at his or her

discretion, extend the time limitation in

the case of extenuating circumstances.

(c) We will notify you, in writing, if

you must submit additional facts for our

consideration of the appeal. We will

notify you, in writing, once the

Administrator has made a decision

regarding your appeal.

§ 205.4 Finality of decisions.

The Administrator’s decision will be

the final administrative action on all

audit appeals.

§ 205.5 Contracts containing disputes

article.

When a contract contains a disputes

article, the disputes article will govern

the bases for negotiating disputes

regarding audit findings, interpretations,

or decisions made by MARAD and any

appeals.

Dated: May 2, 2001.

By Order of the Acting Deputy Maritime

Administrator.

Joel C. Richard,

Secretary, Maritime Administration.

[FR Doc. 01–11578 Filed 5–9–01; 8:45 am]

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FEDERAL COMMUNICATIONS

COMMISSION

47 CFR PART 73

[MM Docket No. 99–25; FCC 01–100]

Creation of a Low Power Radio Service

AGENCY: Federal Communications

Commission

ACTION: Final rule.

SUMMARY: This document amends our

Low Power Radio Service (‘‘LPFM’’)

regulations to implement section 632(a)

of the ‘‘Making Appropriations for the

Government of the District of Columbia

for FY 2001’’ Act (the ‘‘Act’’).

Specifically, the Second Report and

Order codifies the Act’s requirements

that the Commission prescribe LPFM

station third adjacent channel

interference protection standards and

prohibit the grant of an LPFM station

license if the applicant has engaged in

the unlicensed operation of a station in

violation of section 301 of the

Communications Act of 1934, as

amended. This document also defines

the scope of permissible minor

amendments that may be filed by LPFM

applicants outside window filing

periods.

DATES: Effective June 11, 2001.

FOR FURTHER INFORMATION CONTACT:

Peter Doyle, Federal Communications

Commission, Mass Media Bureau,

Audio Services Division, 445 12 Street,

SW., Washington, DC 20554 (202) 418–

2700, Internet address: pdoyle@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Second

Report and Order, adopted March 22,

2001, and released April 2, 2001. The

complete text of the Second Report and

23862 Federal Register / Vol. 66, No. 91 / Thursday, May 10, 2001 / Rules and Regulations

1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601, has

been amended by the Contract with America

Advancement Act of 1996, Public Law No. 104–121,

110 Stat. 847 (1996) (‘‘CWAAA’’). Title II of the

CWAAA is the Small Business Regulatory

Enforcement Fairness Act of 1996 (‘‘SBREFA’’).

Order is available for inspection and

copying during normal business hours

in the FCC Reference Center (Room CY–

A257), 445 12 Street, SW., Washington,

DC, and also may be purchased from the

Commission’s copy contractor,

International Transcription Service,

(202) 857–3800, 1231 20th Street, NW.,

Washington, DC 20036. The

Commission believes that these actions

are exempt from the notice and

comment requirements of section 553 of

the Administrative Procedure Act, and

that the minor amendment rule is a rule

of procedure to which notice and

comment requirements are inapplicable.

Synopsis of Order

1. With this Second Report and Order,

the Commission implements the Act’s

requirement that the Commission

prescribe LPFM station third adjacent

channel interference protection

standards. We accomplish this

requirement by including in our rules

minimum distance separations which

LPFM applicants must meet with

respect to full power FM and FM

translator stations on third adjacent

channels. We also, in accordance with

the Act, prohibit any applicant from

obtaining an LPFM station license if the

applicant has engaged in the unlicensed

operation of a station in violation of

section 301 of the Communications Act

of 1934, as amended.

2. The third adjacent channel

protection standards affect 652

otherwise technically acceptable LPFM

applications that were filed in the first

two LPFM filing windows, rendering

them short-spaced to existing full power

FM and/or FM translator stations

operating on third adjacent channels.

Under well-established processing

policies, only minor amendments may

be filed outside the window period.

Although the LPFM rules define the

permissible scope of minor changes in

authorized facilities, they do not define

the scope of minor amendments to

pending applications, an issue now

critical to the large group of newly

short-spaced applicants. The Second

Report and Order adds new rule

§ 73.871 to permit LP100 applicants to

file minor change technical

amendments for site relocations of less

than two kilometers and to permit LP10

applicants to file minor change

technical amendments for site

relocations of less than one kilometer.

Section 73.871 will permit the filing

after the close of the pertinent filing

window of non-technical minor

amendments that do not improve an

applicant’s comparative position.

Amendments adversely affecting an

applicant’s comparative position will be

accepted and considered as part of the

mutually exclusive application selection

procedures. Ownership amendments

will be limited to changes where the

original parties to an application retain

more than a fifty percent ownership

interest in the application as originally

filed.

3. Applications impacted by the new

third adjacent channel spacing

requirements are listed in Appendices A

and B of the Second Report and Order.

Appendix A lists those applications

which involve short spacings of less

than two kilometers. These applicants

may be able to file minor amendments

to eliminate the prohibited short

spacings. The staff is prepared to assist,

if requested, each of these applicants to

determine whether a feasible site exists

which would meet both the

Commission’s distance separation

requirements and the applicant’s service

needs. Curative minor amendments (site

relocations of less than two kilometers)

must be filed within thirty days of the

publication of this Summary in the

Federal Register. Appendix B lists those

applications that have third adjacent

short spacings of two or more

kilometers. These cannot be cured by

permissible minor amendments filed

outside an LPFM window. The

Commission therefore directs the staff to

open an additional remedial filing

window following the completion of the

currently scheduled window process for

those applicants listed in Appendices A

and B. We will retain these applications

in pending status. The remedial filing

window will provide these applications

with the opportunity to submit major

amendments specifying technical

facilities that meet the new spacing

requirements.

4. Appendix C of the Second Report

and Order lists those LPFM applications

that stated that either the applicant and/

or any party to the application engaged

in the unlicensed operation of any

station in violation of section 301 of the

Communications Act of 1934, as

amended. Prior to the Second Report

and Order, the Commission’s rules

permitted the grant of an LPFM station

application if the party engaged in

illegal broadcast operations but certified

that it ceased such unlicensed

operations within 24 hours of a

Commission directive to do so or, in the

alternative, that it voluntarily ceased

engaging in such operations if no

directive was issued no later than

February 26, 1999. The Second Report

and Order modifies § 73.854 of the

LPFM rules and instructs the staff to

modify FCC Form 318 to conform the

statutory language prohibiting any

applicant from obtaining an LPFM

license if the applicant engaged in any

manner in the unlicensed operation of

any station in violation of section 301 of

the Communications Act of 1934, as

amended. All applications responding

‘‘No’’ to FCC Form 318, Section III,

Question 8(a) will be dismissed.

5. The Commission does not believe

that the notice and comment

requirements of section 553 of the

Administrative Procedure Act (‘‘APA’’)

apply to the rule revisions adopted

herein. We find that the amendments of

the interference protection and

unlicensed operations rules are exempt

from notice and comment under the

APA’s ‘‘good cause’’ exemption. The

third adjacent channel protection

requirements adopted were proposed in

the LPFM NPRM, are consistent with

current full power FM station third

adjacent channel protection levels, and

implement a Congressional requirement.

Amendment of the unlicensed operation

rule is a non-discretionary action

codifying a Congressional requirement.

The minor amendment rule is one of

procedure to which notice and comment

requirements are inapplicable.

Supplemental Final Regulatory

Flexibility Analysis

The Regulatory Flexibility Act

(‘‘RFA’’) 1 requires that an agency

prepare a regulatory flexibility analysis

for notice-and-comment rulemaking

proceedings. In the Notice of Proposed

Rulemaking, Report and Order, and

Memorandum Opinion and Order, the

Commission included, respectively, an

Initial Regulatory Flexibility Analysis,

Final Regulatory Flexibility Analysis,

and Supplemental Final Regulatory

Flexibility Analysis. Creation of Low

Power Radio Service, MM Docket No.

99–25, Notice of Proposed Rule Making,

64 FR 7577 (February 16, 1999), 14 FCC

Rcd 2471 (1999); Report and Order, 65

FR 7616 (February 15, 2000), 15 FCC

Rcd 2205 (2000); Memorandum Opinion

and Order, 65 FR 67289 (November 9,

2000), l FCC Rcd l (2000). In this

Order, however, the rule changes

adopted on our own motion in response

to the Act’s mandate do not require a

regulatory flexibility analysis.

Minimizing Impact on Small Business

LPFM Applicants

LP100 and LP10 stations will be

noncommercial, educational stations,

and so will not compete with small

Federal Register / Vol. 66, No. 91 / Thursday, May 10, 2001 / Rules and Regulations 23863

business commercial broadcasters for

advertising revenue.

Need For and Objectives of the

Memorandum Opinion and Order

In the Report and Order, the

Commission established technical

standards based on minimum distance

requirements to co-channel, first and

second-adjacent channel, and IF

channel spacings to full power FM and

FM translator stations, and co-channel

and first adjacent channel spacings to

other LPFM stations. The Report and

Order also provided to a limited extent

that applicants previously engaging in

unlicensed operations in violation of

section 301 of the Communications Act

of 1934, as amended, would be able to

receive grant of their applications. The

Act modifies the Commission’s prior

approach, requiring that the LPFM rules

be expanded to provide protection to

third adjacent channel full power FM

and FM translator stations and that the

rules be modified to reject any relief to

applicants previously in violation of the

unlicensed station provisions of section

301 of the Communications Act.

Significant Alternative Considered

The Commission considered an

alternative to its rule governing the

amendment of pending LPFM

applications that such applicants be

permitted to amend their technical

proposals to specify a different channel

that might resolve conflicts with co and

first adjacent channel LPFM new station

applications filed in the same filing

window. This alternative was rejected

in the interest of administrative

orderliness. The expeditious processing

of the hundreds of applications filed in

the initial LPFM windows requires a

relatively fixed database of technical

proposals. Providing the opportunity to

amend to different channels after the

close of a window makes staff

determinations of mutual exclusivity

and the administration of the selection

procedure for these applications

inherently subject to duplicative

reevaluations.

Report to Congress

The Commission will send a copy of

the Second Report and Order to

Congress pursuant to the Congressional

Review Act. See 5 U.S.C. 801(a)(1)(A).

In addition, the Commission will send

a copy of this Second Report and Order,

to the Chief Counsel for Advocacy of the

Small Business Administration. A copy

of the Second Order and Order (or

summary thereof) will also be published

in the Federal Register pursuant to 5

U.S.C. 604(b).

List of Subjects in 47 CFR Parts 73

Radio broadcasting.

Federal Communications Commission

Magalie Roman Salas,

Secretary.

Regulatory Text

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR part 73 as

follows:

PART 73—RADIO BROADCAST

SERVICES

1. The authority citation for part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

2. Section 73.807 is amended by

revising the last sentence in the

introductory text as set forth and by

revising the fourth column headings of

the tables in paragraphs (a), (b), (c), and

(d) which previously read ‘‘Secondadjacent channel minimum separation

(km) required’’ to read ‘‘Second- and

third-adjacent channel minimum

separation (km) required.’’

§ 73.807 Minimum distance separation

between stations.

* * * For second- and third-adjacent

channels and IF channels, the required

minimum distance separation is

sufficient to avoid interference received

from other stations.

* * * * *

3. Section 73.854 is revised to read as

follows:

§ 73.854 Unlicensed operations.

No application for an LPFM station

may be granted unless the applicant

certifies, under penalty of perjury, that

neither the applicant, nor any party to

the application, has engaged in any

manner including individually or with

persons, groups, organizations or other

entities, in the unlicensed operation of

any station in violation of Section 301

of the Communications Act of 1934, as

amended, 47 U.S.C. 301.

4. Add § 73.871 to subpart G to read

as follows:

§ 73.871 Amendment of LPFM broadcast

station applications.

(a) New and major change

applications may be amended without

limitation during the pertinent filing

window.

(b) Amendments that would improve

the comparative position of new and

major change applications will not be

accepted after the close of the pertinent

filing window.

(c) Only minor amendments to new

and major change applications will be

accepted after the close of the pertinent

filing window. Subject to the provisions

of this section, such amendments may

be filed as a matter of right by the date

specified in the FCC’s Public Notice

announcing the acceptance of such

applications. For the purposes of this

section, minor amendments are limited

to:

(1) Site relocations of less than one

kilometer for LP10 stations;

(2) Site relocations of less than two

kilometers for LP100 stations;

(3) Changes in ownership where the

original party or parties to an

application retain more than a 50

percent ownership interest in the

application as originally filed; and

(4) Other changes in general and/or

legal information.

(d) Unauthorized or untimely

amendments are subject to return by the

FCC’s staff without consideration.

[FR Doc. 01–11763 Filed 5–9–01; 8:45 am]

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