27600 Federal Register / Vol. 66, No. 97 / Friday, May 18, 2001 / Rules and Regulations

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

amended by the Contract With America

Advancement Act of 1996, Public Law 104–121,

110 Stat. 847 (1966) (CWAAA). Title II of the

CWAAA is the Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA).

2 5 U.S.C. 605(b).

3 5 U.S.C. 601(6).

4 5 U.S.C. 601(3) (incorporating by reference the

definition of ‘‘small business concern’’ in the Small

Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C.

601(3), the statutory definition of a small business

applies ‘‘unless an agency, after consultation with

the Office of Advocacy of the Small Business

Administration and after opportunity for public

comment, establishes one or more definitions of

such term which are appropriate to the activities of

the agency and publishes such definition(s) in the

Federal Register.’’

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2 and 68

[GEN Docket No. 98–68; FCC 01–141]

Streamlining the Equipment

Authorization Process; Implementation

of Mutual Recognition Agreements and

the GMPCS MOU

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document responds to

the Petition for Reconsideration filed by

Motorola. The petition requested

clarification of the Report and Order in

this proceeding regarding the handling

of confidential information by

‘‘Telecommunication Certification

Bodies.’’

DATES: Effective June 18, 2001.

FOR FURTHER INFORMATION CONTACT:

Hugh Van Tuyl, Office of Engineering

and Technology, (202) 418–7506.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s

Memorandum Opinion and Order, GEN

Docket No. 98–68, FCC 01–141, adopted

April 24, 2001, and released April 30,

2001. The full text of this Commission

decision is available on the

Commission’s Internet site at

www.fcc.gov. It 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 Memorandum Opinion

and Order

1. The Report and Order, 64 FR 4984,

February 2, 1999, in this proceeding,

established a process through which

private sector organizations could be

designated to approve radio frequency

devices and telephone terminal

equipment in essentially the same

manner as the Commission. These

organizations are called

Telecommunication Certification Bodies

(TCBs). The rules we adopted specify

the criteria that an organization must

meet to be eligible for designation as a

TCB, the designation procedure, the

scope of responsibility of TCBs, and the

requirements that TCBs must follow

after issuing equipment approvals.

Motorola, Inc. (Motorola) filed a petition

requesting a clarification of the

confidentiality of applications filed with

TCBs. By this action, we clarify the

confidentiality requirements in Parts 2

and 68 of the rules that TCBs must

follow in certifying radio frequency

devices and telephone terminal

equipment as compliant with the

Commission’s rules.

2. Equipment authorization

applications and related materials are

not routinely available for public

inspection prior to the effective date of

the authorization. Upon grant of an

application, the application file is

routinely available for public

inspection. However, the party filing an

application for equipment authorization

may request that the Commission hold

certain exhibits confidential. Those

exhibits for which confidentiality have

been requested and granted are not

routinely available for public inspection

even after grant of the application. The

factors that the Commission considers

in determining whether to grant

confidentiality include, among others,

whether the material contains

information that is commercial,

financial, privileged or a trade secret,

and whether disclosure of the

information could result in substantial

competitive harm.

3. When the requirements for TCBs

were established, one of the rules

adopted states that, upon request from

the Commission, a TCB shall provide a

copy of an application file to the

Commission accompanied by a request

for confidentiality for any information

that qualifies as trade secrets. This

requirement is intended to ensure the

appropriate handling of materials filed

with a TCB that are not routinely

available for public inspection. Just as

similar materials filed with the

Commission are not routinely available

for public inspection, TCBs are

obligated to safeguard the

confidentiality of information obtained

in the course of their certification

activities.

4. In its petition, Motorola requests

that we clarify § 2.962(g)(4) of the rules

regarding the handling of confidential

information by TCBs. Specifically,

Motorola is concerned about the use of

the term trade secrets in this section to

identify confidential materials. It states

that this term as construed by the courts

refers to a process that a business does

not disclose publicly. Thus, it contends,

this wording of the rule provides less

protection to material included with

applications filed with TCBs than those

filed with the Commission. It believes

that the rules for TCBs we adopted in

this proceeding should refer more

broadly to material that qualifies for

confidential treatment under the

Commission’s rules rather than to trade

secrets.

5. Motorola is correct that our rules

permit material besides trade secrets to

be held as confidential. We find that its

recommended change to the rules we

adopted in this proceeding more clearly

reflects the intent of the rules, which is

to ensure that applications processed by

TCBs are treated in the same manner as

applications processed by the

Commission. We are therefore adopting

this change. Motorola only specifically

requested that we change § 2.962(g)(4) of

the rules, which applies to the

authorization of radio frequency devices

by TCBs. However, on our own motion

we are also making this change to

§ 68.162(g)(4) of the rules which applies

to authorization of telephone terminal

equipment by TCBs because the same

confidentiality requirements that apply

to radio frequency devices apply to

telephone terminal equipment. This

change will ensure consistent treatment

of applications for both types of

equipment.

Final Regulatory Flexibility

Certification

6. The Regulatory Flexibility Act of

1980, as amended (RFA),1 requires that

a regulatory flexibility analysis be

prepared for rulemaking proceedings,

unless the agency certifies that ‘‘the rule

will not have a significant economic

impact on a substantial number of small

entities.’’ 2 The RFA generally defines

the term ‘‘small entity’’ as having the

same meaning as the terms ‘‘small

business,’’ ‘‘small organization,’’ and

‘‘small governmental jurisdiction.’’ 3 In

addition, the term ‘‘small business’’ has

the same meaning as the term ‘‘small

business concern’’ under the Small

Business Act.4 A small business concern

is one which: (1) Is independently

owned and operated; (2) is not

dominant in its field of operation; and

(3) satisfies any additional criteria

Federal Register / Vol. 66, No. 97 / Friday, May 18, 2001 / Rules and Regulations 27601

5 13 FCC Rcd 24737 (1999).

6See 5 U.S.C. 801(a)(1)(A).

7See 5 U.S.C. 605(b).

established by the Small Business

Administration.

7. The Report and Order, 64 FR 4984,

February 2, 1999, established a process

through which private sector

organizations could be designated to

approve radio frequency devices and

telephone terminal equipment. These

TCBs were required under the Report

and Order to keep ‘‘trade secret’’

information confidential. A Final

Regulatory Flexibility Analysis was

incorporated in the Report and Order.5

Following publication of the Report and

Order, Motorola filed its petition

seeking clarification of the

confidentiality of applications filed with

TCBs. In this Memorandum Opinion

and Order we are amending the rules to

indicate that confidentiality should

apply to ‘‘any material that qualifies for

confidential treatment under the

Commission’s Rules.’’

8. This amendment to the rules will

affect the 15 to 20 TCBs in operation;

and it is the Commission’s belief that

most of the TCBs are small businesses.

Most applications filed with TCBs do

not require that any information be held

confidential. Where material does

require confidential treatment it is

predominantly because the materials are

‘‘trade secrets.’’ Systems for determining

and storing ‘‘trade secrets’’ are already

in place. The small amount of

additional material required to be stored

because it is ‘‘material considered to be

confidential by the Commission’’ is

insignificant. Therefore, we expect that

the increased burden on TCBs caused by

this amendment is nominal and does

not rise to the level of a ‘‘significant

economic burden.’’ Therefore, we certify

that the amendments included in this

Memorandum Opinion and Order will

not have a significant economic impact

on a substantial number of small

entities.

9. The Commission will send a copy

of the Memorandum Opinion and

Order, including a copy of this final

certification, in a report to Congress

pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996.6 In addition, the Memorandum

Opinion and Order and this certification

will be sent to the Chief Counsel for

Advocacy of the Small Business

Administration.7

10. The petition for clarification filed

by Motorola is granted. It is further

ordered that Parts 2 and 68 of the

Commission’s Rules are amended June

18, 2001. Pursuant to the authority

contained in sections 4(i), 303(f), 303(g)

and 303(r) of the Communications Act

of 1934, as amended, 47 U.S.C. 154(i),

303(f), 303(g) and 303(r).

11. The Commission’s Consumer

Information Bureau, Reference

Information Center, shall send a copy of

the Memorandum Opinion and Order,

including the Final Regulatory

Flexibility Certification, to the Chief

Counsel for Advocacy of the Small

Business Administration.

List of Subjects in 47 CFR Parts 2 and

68

Communications equipment,

Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rules Changes

For the reasons discussed in the

preamble, parts 2 and 68 of title 47 of

the Code of Federal Regulations is

amended as follows:

PART 2—FREQUENCY ALLOCATIONS

AND RADIO TREATY MATTERS;

GENERAL RULES AND REGULATIONS

1. The authority citation for part 2

continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303 and

336, unless otherwise noted.

2. Section 2.962 is amended by

revising paragraph (g)(4) to read as

follows:

§ 2.962 Requirements for

Telecommunication Certification Bodies.

* * * * *

(g) * * *

(4) Where concerns arise, the TCB

shall provide a copy of the application

file to the Commission within 30

calendar days of a request for the file

made by the Commission to the TCB

and the manufacturer. Where

appropriate, the file should be

accompanied by a request for

confidentiality for any material that may

qualify for confidential treatment under

the Commission’s Rules. If the

application file is not provided within

30 calendar days, a statement shall be

provided to the Commission as to why

it cannot be provided.

* * * * *

PART 68—CONNECTION OF

TERMINAL EQUIPMENT TO THE

TELEPHONE NETWORK

3. The authority citation for part 68

continues to read as follows:

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

4. Section 68.162 is amended by

revising paragraph (g)(4) to read as

follows:

§ 68.162 Requirements for

Telecommunication Certification Bodies.

* * * * *

(g) * * *

(4) Where concerns arise, the TCB

shall provide a copy of the application

file to the Commission within 30

calendar days of a request for the file

made by the Commission to the TCB

and the manufacturer. Where

appropriate, the file should be

accompanied by a request for

confidentiality for any material that may

qualify for confidential treatment under

the Commission’s Rules. If the

application file is not provided within

30 calendar days, a statement shall be

provided to the Commission as to why

it cannot be provided.

* * * * *

[FR Doc. 01–12609 Filed 5–17–01; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 23

RIN 1018–AH63

Changes in List of Species in

Appendices to the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

(CITES, or ‘‘the Convention’’) regulates

international trade in certain animals

and plants. Species for which such trade

is controlled are listed in Appendices I,

II, and III to the Convention. This final

rule announces decisions made by the

eleventh meeting of the Conference of

the Parties to CITES (COP11) in April

2000 on amendments to Appendices I

and II, and incorporates those decisions

in 50 CFR 23.23. This rule also

discusses the issue of entering of

reservations by the United States on any

of the amendments. The effect of a

reservation would be to exempt the

United States from implementing CITES

for a particular species. The United

States has entered no reservations. The

CITES amendments to Appendices I and

II described in this rule entered into

effect on July 19, 2000, unless

specifically indicated otherwise.