18088 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Rules and Regulations

requires that the District’s program

contain adequate authorities, adequate

resources for implementation, and an

expeditious compliance schedule,

which are also requirements under part

70. Therefore, EPA is also promulgating

approval under section 112(l)(5) and 40

CFR 63.91 of San Joaquin Valley’s

program for receiving delegation of

section 112 standards that are

unchanged from the federal standards as

promulgated. This program for

delegations applies to both existing and

future standards but is limited to

sources covered by the part 70 program.

III. Administrative Requirements

A. Docket

Copies of the District’s submittal and

other information relied upon for the

final interim approval, including all

comments received on the proposal and

EPA’s responses to those comments, are

contained in docket number CA–SJV–

95–001 maintained at the EPA Regional

Office. The docket is available for public

inspection at the location listed under

the ADDRESSES section of this

document.

B. Executive Order 12866

The Office of Management and Budget

has exempted this action from Executive

Order 12866 review.

C. Regulatory Flexibility Act

The EPA’s action under section 502 of

the Act does not create any new

requirements but simply addresses the

operating permits program developed

and submitted by the San Joaquin

Valley District to meet the requirements

of 40 CFR part 70. EPA evaluated the

impact on small businesses of the title

V operating permit program as part of its

promulgation of part 70 and determined

that operating permit programs required

by part 70 would not have a significant

economic impact on a substantial

number of small business and no

Regulatory Flexibility Act analysis was

necessary.

D. Unfunded Mandates Act

Under Section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a budgetary impact statement to

accompany any proposed or final rule

that includes a federal mandate that

may result in estimated costs to state,

local, or tribal governments in the

aggregate; or to the private sector, of

$100 million or more. Under Section

205, EPA must select the most costeffective and least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval

action promulgated today does not

include a federal mandate that may

result in estimated costs of $100 million

or more to either state, local, or tribal

governments in the aggregate, or to the

private sector and therefore, no

budgetary impact statement is

necessary.

List of Subjects in 40 CFR Part 70

Environmental Protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Operating permits, Reporting

and recordkeeping requirements.

Dated: April 10, 1996.

Felicia Marcus,

Regional Administrator.

Part 70, title 40 of the Code of Federal

Regulations is amended as follows:

PART 70—[AMENDED]

1. The authority citation for part 70

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

2. Appendix A to part 70 is amended

by adding paragraph (y) to the entry for

California to read as follows:

Appendix A to Part 70—Approval

Status of State and Local Operating

Permits Programs

* * * * *

California

* * * * *

(y) San Joaquin Valley Unified APCD

(complete submittal received on July 5

and August 18, 1995); interim approval

effective on May 24, 1996; interim

approval expires May 25, 1998.

* * * * *

[FR Doc. 96–10094 Filed 4–23–96; 8:45 am]

BILLING CODE 6560–50–W

40 CFR Part 261

[SW–FRL–5461–2]

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA or Agency) today is

granting a petition submitted by

Bethlehem Steel Corporation (‘‘BSC’’),

Lackawanna, New York, to exclude (or

‘‘delist’’), on a one-time basis, certain

solid wastes contained in a landfill from

being listed hazardous wastes. This

action responds to BSC’s petition to

delist these wastes on a ‘‘generatorspecific’’ basis from the hazardous

waste lists. Based on careful analyses of

the waste-specific information provided

by the petitioner, the Agency has

concluded that BSC’s petitioned waste

will not adversely affect human health

and the environment. Accordingly, this

final rule excludes the petitioned waste

from the requirements of hazardous

waste regulations under Subtitle C of

the Resource Conservation and

Recovery Act (RCRA).

EFFECTIVE DATE: April 24, 1996.

ADDRESSES: The RCRA regulatory

docket for this final rule is located at

Crystal Gateway #1, 1st Floor, 1235

Jefferson Davis Highway, Arlington, VA,

and is available for viewing from 9 a.m.

to 4 p.m., Monday through Friday,

excluding Federal holidays. Call (703)

603–9230 for appointments. The

reference number for this docket is F–

96–B5EF–FFFFF. The public may copy

material from any regulatory docket at

no cost for the first 100 pages, and at a

cost of $0.15 per page for additional

copies.

FOR FURTHER INFORMATION, CONTACT: For

general information, contact the RCRA

Hotline, toll free at (800) 424–9346, or

at (703) 412–9810. For technical

information concerning this notice,

contact Chichang Chen, Waste

Identification Branch, Office of Solid

Waste (Mail Code 5304), U.S.

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460,

(202) 260–7392.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

Under 40 CFR 260.20 and 260.22,

facilities may petition the Agency to

remove their wastes from hazardous

waste control by excluding them from

the lists of hazardous wastes contained

in §§ 261.31 and 261.32. Specifically,

§ 260.20 allows any person to petition

the Administrator to modify or revoke

any provision of parts 260 through 265

and 268 of Title 40 of the Code of

Federal Regulations; and § 260.22

provides generators the opportunity to

petition the Administrator to exclude a

waste on a ‘‘generator-specific’’ basis

from the hazardous waste lists.

Petitioners must provide sufficient

information to EPA to allow the Agency

to determine that the waste to be

excluded does not meet any of the
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Rules and Regulations 18089

criteria under which the waste was

listed as a hazardous waste. In addition,

the Administrator must determine,

where he has a reasonable basis to

believe that factors (including

additional constituents) other than those

for which the waste was listed could

cause the waste to be a hazardous waste,

that such factors do not warrant

retaining the waste as a hazardous

waste.

B. History of This Rulemaking

Bethlehem Steel Corporation (BSC),

Lackawanna, New York, petitioned the

Agency to exclude from hazardous

waste control its ammonia still lime

sludge presently listed as EPA

Hazardous Waste No. K060. After

evaluating the petition, EPA proposed,

on December 7, 1995, to exclude BSC’s

waste from the lists of hazardous waste

under § 261.31 and § 261.32 (see 60 FR

62794). This rulemaking addresses

public comments received on the

proposal and finalizes the proposed

decision to grant BSC’s petition.

II. Disposition of Delisting Petition

Bethlehem Steel Corporation,

Lackawanna, New York

A. Proposed Exclusion

Bethlehem Steel Corporation (BSC),

located in Lackawanna, New York, was

engaged in primary metal-making and

coke-making operations prior to 1983.

BSC petitioned the Agency to exclude,

on a one-time basis, the waste contained

in an on-site landfill, presently listed as

EPA Hazardous Waste No. K060—

‘‘Ammonia still lime sludge from coking

operations’’. The listed constituents of

concern for EPA Hazardous Waste No.

K060 are cyanide, naphthalene,

phenolic compounds, and arsenic. BSC

refers to this landfill as Hazardous

Waste Management Unit No. 2 (HWM–

2). Although only a portion of the waste

in the landfill is the ammonia still lime

sludge, the entire volume of waste is

considered to be a listed waste in

accordance with § 261.3(a)(2)(iv) (i.e.,

the mixture rule). The mixture of listed

ammonia still lime sludge and solid

waste contained in HWM–2 is the

subject of this petition.

BSC petitioned the Agency to exclude

its waste because it does not believe that

the waste meets the criteria of the

listing. BSC claims that the mixture of

ammonia still lime sludge and solid

waste is not hazardous because the

constituents of concern, although

present in the waste, are present in

either insignificant concentrations or, if

present at significant levels, are

essentially in immobile forms. BSC also

believes that this waste is not hazardous

for any other reason (i.e., there are no

additional constituents or factors that

could cause the waste to be hazardous).

Review of this petition included

consideration of the original listing

criteria, as well as the additional factors

required by the Hazardous and Solid

Waste Amendments (HSWA) of 1984.

See Section 222 of HSWA, 42 U.S.C.

6921(f), and 40 CFR 260.22(d)(2)–(4).

On July 18, 1984, BSC petitioned the

Agency to exclude the waste contained

in its on-site landfill identified as

HWM–2, and subsequently provided

additional information. After evaluating

the petition, the Agency proposed to

deny BSC’s petition to exclude the

waste contained in HWM–2 on April 7,

1989 (see 54 FR 14101). The Agency’s

evaluation of the petition, which used

the ‘‘VHS’’ fate and transport model and

the analytical data provided by BSC,

indicated that the petitioned waste

exhibited significant concentrations of

leachable lead and benzo(a)pyrene.

Furthermore, the Agency considered the

sampling and analysis program

conducted in support of the petition to

be incomplete. Moreover, groundwater

monitoring data collected from wells

monitoring this on-site landfill

indicated that the landfill might have

been adversely impacting groundwater

quality at the site. On August 26, 1991,

the Agency published a final denial,

including responses to public

comments, in the Federal Register (see

56 FR 41944). On October 30, 1991, BSC

petitioned the U.S. Court of Appeals for

the District of Columbia Circuit to

overturn EPA’s denial decision.

Subsequently, BSC agreed to stay this

litigation for a re-evaluation by EPA

using a new fate and transport model

(EPA’s Composite Model for Landfills

(‘‘EPACML’’)) and updated health-based

levels, and on November 17, 1992

submitted extensive supplemental waste

characterization and groundwater

monitoring data. After reviewing the

new data in conjunction with the

existing petition information, the

Agency proposed on December 7, 1995

to withdraw its August 26, 1991 final

denial decision and to grant BSC’s

petition (see 60 FR 62794 for details).

In support of its petition, BSC

submitted: (1) Detailed descriptions and

schematics of its manufacturing process;

(2) a list of all raw materials and

Material Safety Data Sheets (MSDS) for

all trade name materials that might be

expected to have contributed to the

waste; (3) results from total constituent

analyses for the eight Toxicity

Characteristic (TC) metals listed in

§ 261.24, antimony, nickel, thallium,

and cyanide; (4) results from the

Toxicity Characteristic Leaching

Procedure (TCLP; SW–846, Method

1311) for the eight TC metals, antimony,

nickel, and thallium; (5) results from the

EP leachate procedure for the eight TC

metals, nickel, and cyanide; (6) results

from total constituent analyses for

sulfide and reactive sulfide; (7) results

from total oil and grease analyses; (8)

results from characteristics testing for

ignitability, corrosivity, and reactivity;

(9) results from total constituent

analyses for 70 volatile organic and

semivolatile organic constituents,

including the TC organic constituents

(excluding pesticides and herbicides);

(10) results from the TCLP analyses for

63 volatile organic and semivolatile

organic constituents, including the TC

organic constituents (excluding

pesticides and herbicides); and (11)

ground-water monitoring data collected

from wells monitoring the on-site

landfill.

B. Response to Public Comments

Comment: The Agency received

public comments from one interested

party (BSC) on the December 7, 1995

proposal. The commenter expressed its

strong support for the proposed rule and

urged the Agency to finalize this

rulemaking as soon as practicable. The

commenter also stated it ‘‘does not

believe that any of its comments

materially affect the Agency analyses,

evaluations and conclusions in the

proposed rule.’’ However, the

commenter recommended a slight

modification of the proposed language

for the regulatory exclusion.

Specifically, the commenter

recommended that based on its legal

survey of the landfill surface acreage

and resulting recalculation of the waste

volume contained in the unit, the

proposed exclusion language in the

Waste Description at 40 CFR part 261,

Appendix IX be modified to specify

approximately 118,000 cubic yards of

waste, in lieu of 110,000 cubic yards.

The commenter contended that such an

increase in waste volume does not affect

the Agency’s EPACML evaluation of

BSC’s waste.

Some of the other comments relate to

the conservative nature of the Agency’s

analysis and evaluation of BSC’s

petition. The commenter agreed that

EPA’s use of the EPACML model as

described in the proposal is an

appropriate means for evaluating its

petitioned waste. However, the

commenter briefly described several

conservative assumptions (pertaining to

input parameter frequency distributions,

infinite steady-state contaminant source,

and various subsurface attenuation

mechanisms including biodegradation

of organics, metal precipitation, non-
18090 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Rules and Regulations

linear non-equilibrium sorption

phenomena, etc.) inherent in the

EPACML, and believed that the model

as proposed is more appropriate for use

as a worst-case, first-stage screening tool

in a delisting evaluation. The

commenter also argued that the

Agency’s use of EP and TCLP extract

concentrations as inputs to the EPACML

tends to overstate the real-world

leaching potential of metals from wastes

that are not reasonably likely to be codisposed in a municipal landfill

environment. Moreover, the commenter

questioned the Agency’s use of the

proposed health-based levels for lead

and 1,1-dichloroethane, meaning that

they may be too stringent.

Finally, the commenter presented a

variety of clarifications and corrections,

primarily for the record, on

miscellaneous items and details

addressed in the proposed rule. The

commenter considered these to be

‘‘relatively minor’’. The commenter also

believed that any EPA statements,

comments, or interpretations pertaining

to the regulatory status of the HWM–2

landfill and BSC’s compliance

obligations are not necessary.

Response: In the December 7, 1995

proposal, the Agency determined that

disposal in any Subtitle D landfill is the

most reasonable, worst-case disposal

scenario for BSC’s petitioned waste, that

the major exposure route of concern for

any hazardous constituents would be

ingestion of contaminated groundwater,

and that the EPACML fate and transport

model is appropriate for evaluating

BSC’s petitioned waste. As further

explained in the ‘‘Docket Report on

EPACML Evaluation of Bethlehem

Steel’s Petitioned Waste’’ contained in

the public docket for the proposed rule,

the Agency used an EPACML dilution/

attenuation factor (DAF) of 48 to

evaluate the potential for groundwater

contamination due to contaminant

releases from BSC’s estimated waste

volume of 110,000 cubic yards. The

Agency notes here that this one-time

waste volume of 110,000 cubic yards

(equivalent to annual generation of

5,500 cubic yards over 20 years) actually

corresponds to an EPACML DAF of 51.

In order to account for possible

variations associated with land survey

and volume calculations, the Agency in

fact applied a slightly lower, thus more

stringent, DAF of 48 corresponding to

one-time waste volume of 120,000 cubic

yards, or 6,000 cubic yards/year x 20

years. Hence, increasing the petitioned

volume from 110,000 cubic yards to

118,000 cubic yards (less than 120,000

cubic yards) has no adverse effect on the

results of the Agency’s evaluation of the

potential impact of BSC’s waste via

groundwater route of exposure.

The small volume increase of 8,000

cubic yards (constituting only 7.3% of

110,000 cubic yards) does not adversely

affect the Agency’s air and surface water

evaluations either, for the following

reasons. As discussed in the proposed

rule, the Agency’s evaluation of the

potential hazards resulting from air and

surface water routes of exposure to

BSC’s petitioned waste quantity of

110,000 cubic yards were very

conservative. Furthermore, the

calculated airborne and surface water

release concentrations at the assumed

downgradient receptors were well

below (more than 10 times and 29 times

lower, respectively) the applicable air

emissions levels of concern and water

quality criteria for consumption of water

and organisms used for the evaluation of

BSC’s waste (see docket for the

proposed rule). Therefore, calculations

based on 118,000 cubic yards (as

compared to 110,000 cubic yards)

would result in an insignificant change

in air and surface water releases.

Consequently, the Agency is

finalizing the exclusion language in 40

CFR part 261, Appendix IX, Table 2 to

delist 118,000 cubic yards of the

petitioned waste as the commenter (i.e.,

BSC) recommended. The Agency

believes this revised volume more

accurately reflects the actual waste

quantity contained in the petitioned

HWM–2 landfill. The other issues raised

by the commenter with respect to the

conservative nature of the Agency’s

analysis and evaluation of BSC’s

petition as well as the commenter’s

clarifications and corrections for the

record do not affect EPA’s decision to

grant this petition; therefore, the Agency

is not addressing those comments in

today’s rule. The Agency would like to

refer the readers to relevant Agency

responses to some similar comments

provided in previous delisting

rulemakings, e.g., 56 FR 67197,

December 30, 1991; 58 FR 40067, July

27, 1993; 60 FR 31107, June 13, 1995.

E. Final Agency Decision

For the reasons stated in both the

proposal and this final rule, the Agency

believes that BSC’s petitioned waste

should be excluded from hazardous

waste control. The Agency, therefore, is

granting a final exclusion to Bethlehem

Steel Corporation, Lackawanna, New

York, for its ammonia still lime sludge

and other co-disposed solid wastes

contained in the on-site landfill referred

to as HWM–2, described in the petition

as EPA Hazardous Waste No. K060. This

one-time exclusion applies to 118,000

cubic yards of waste covered by BSC’s

delisting demonstration.

Although management of the waste

covered by this petition is relieved from

Subtitle C jurisdiction by this final

exclusion, the generator of the delisted

waste must either treat, store, or dispose

of the waste in an on-site facility, or

ensure that the waste is delivered to an

off-site storage, treatment, or disposal

facility, either of which is permitted,

licensed, or registered by a State to

manage municipal or industrial solid

waste. Alternatively, the delisted waste

may be delivered to a facility that

beneficially uses or reuses, or

legitimately recycles or reclaims the

waste, or treats the waste prior to such

beneficial use, reuse, recycling, or

reclamation (see 40 CFR part 260,

Appendix I).

III. Limited Effect of Federal Exclusion

The final exclusion being granted

today is issued under the Federal

(RCRA) delisting program. States,

however, are allowed to impose their

own, non-RCRA regulatory

requirements that are more stringent

than EPA’s, pursuant to section 3009 of

RCRA. These more stringent

requirements may include a provision

which prohibits a Federally-issued

exclusion from taking effect in the

States. Because a petitioner’s waste may

be regulated under a dual system (i.e.,

both Federal (RCRA) and State (nonRCRA) programs), petitioners are urged

to contact State regulatory authorities to

determine the current status of their

wastes under the State laws.

Furthermore, some States are

authorized to administer a delisting

program in lieu of the Federal program,

i.e., to make their own delisting

decisions. Therefore, this exclusion

does not apply in those authorized

States. If the petitioned waste will be

transported to and managed in any State

with delisting authorization, BSC must

obtain delisting authorization from that

State before the waste may be managed

as nonhazardous in that State.

IV. Effective Date

This rule is effective on April 24,

1996. The Hazardous and Solid Waste

Amendments of 1984 amended Section

3010 of RCRA to allow rules to become

effective in less than six months when

the regulated community does not need

the six-month period to come into

compliance. That is the case here,

because this rule reduces the existing

requirements for persons generating

hazardous wastes. In light of the

unnecessary hardship and expense that

would be imposed on this petitioner by

an effective date six months after
Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Rules and Regulations 18091

publication and the fact that a sixmonth deadline is not necessary to

achieve the purpose of Section 3010,

EPA believes that this exclusion should

be effective immediately upon final

publication. These reasons also provide

a basis for making this rule effective

immediately, upon final publication,

under the Administrative Procedure

Act, pursuant to 5 USC § 553(d).

V. Regulatory Impact

Under Executive Order 12866, EPA

must conduct an ‘‘assessment of the

potential costs and benefits’’ for all

‘‘significant’’ regulatory actions. The

effect of this rule is to reduce the overall

costs and economic impact of EPA’s

hazardous waste management

regulations. The reduction is achieved

by excluding waste from EPA’s lists of

hazardous wastes, thereby enabling the

facility to treat its waste as nonhazardous. This rule does not represent

a significant regulatory action under the

Executive Order, and no assessment of

costs and benefits is necessary. The

Office of Management and Budget

(OMB) has also exempted this rule from

the requirement for OMB review under

Section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act, 5 U.S.C. 601–612, whenever an

agency is required to publish a general

notice of rulemaking for any proposed

or final rule, it must prepare and make

available for public comment a

regulatory flexibility analysis that

describes the impact of the rule on small

entities (i.e., small businesses, small

organizations, and small governmental

jurisdictions). No regulatory flexibility

analysis is required, however, if the

Administrator or delegated

representative certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities.

This rule will not have an adverse

economic impact on any small entities

since its effect will be to reduce the

overall costs of EPA’s hazardous waste

regulations and will be limited to one

facility. Accordingly, I hereby certify

that this regulation will not have a

significant economic impact on a

substantial number of small entities.

This regulation, therefore, does not

require a regulatory flexibility analysis.

VII. Paperwork Reduction Act

Information collection and recordkeeping requirements associated with

this final rule have been approved by

the Office of Management and Budget

(OMB) under the provisions of the

Paperwork Reduction Act of 1980 (Pub.

L. 96–511, 44 U.S.C. 3501 et seq.) and

have been assigned OMB Control

Number 2050–0053.

VIII. Unfunded Mandates Reform Act

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘UMRA’’), Pub. L. 104–4, which was

signed into law on March 22, 1995, EPA

generally must prepare a written

statement for rules with Federal

mandates that may result in estimated

costs to State, local, and tribal

governments in the aggregate, or to the

private sector, of $100 million or more

in any one year. When such a statement

is required for EPA rules, under section

205 of the UMRA EPA must identify

and consider alternatives, including the

least costly, most cost-effective or least

burdensome alternative that achieves

the objectives of the rule. EPA must

select that alternative, unless the

Administrator explains in the final rule

why it was not selected or it is

inconsistent with law. Before EPA

establishes regulatory requirements that

may significantly or uniquely affect

small governments, including tribal

governments, it must develop under

section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements.

The UMRA generally defines a

Federal mandate for regulatory purposes

as one that imposes an enforceable duty

upon State, local, or tribal governments

or the private sector. EPA finds that

today’s delisting decision is

deregulatory in nature and does not

impose any enforceable duty on any

State, local, or tribal governments or the

private sector. In addition, today’s

delisting decision does not establish any

regulatory requirements for small

governments and so does not require a

small government agency plan under

UMRA section 203.

List of Subjects in 40 CFR Part 261

Hazardous waste, Recycling,

Reporting and recordkeeping

requirements.

Dated: April 4, 1996.

James R. Berlow,

Acting Director, Office of Solid Waste.

For the reasons set out in the

preamble, 40 CFR part 261 is amended

as follows:

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, and 6938.

2. In Table 2 of Appendix IX, Part 261

add the following wastestream in

alphabetical order by facility to read as

follows:

Appendix IX—Wastes Excluded Under

§§ 260.20 and 260.22

TABLE 2. WASTES EXCLUDED FROM SPECIFIC SOURCES

Facility Address Waste description

* * * * * * *

Bethlehem Steel Corporation ......... Lackawanna, New York ................. Ammonia still lime sludge (EPA Hazardous Waste No. K060) and

other solid waste generated from primary metal-making and coking

operations. This is a one-time exclusion for 118,000 cubic yards of

waste contained in the on-site landfill referred to as HWM–2. This

exclusion was published on April 24, 1996.

* * * * * * *
18092 Federal Register / Vol. 61, No. 80 / Wednesday, April 24, 1996 / Rules and Regulations

1Unless otherwise indicated, ‘‘MDS’’ includes

single channel Multipoint Distribution Service

stations and Multichannel Multipoint Distribution

Service stations.

2Report and Order, Amendment of Part 74 of the

Commission’s Rules with Regard to the

Instructional Television Fixed Service, 10 FCC Rcd

2907, 2921 (1995), 60 FR 20241 (April 25, 1995)

(‘‘ITFS Filing Procedures Order’’). A combination of

ITFS and MDS frequencies are used to provide a

video entertainment service popularly known as

‘‘wireless cable.’’ The rules for these two services

were initially developed independently. However,

with the increasing combined use of both service

frequencies to provide a single video service to

consumers and to provide a competitor to wired

cable operators, coordination of the rules and

policies for both services has been encouraged. See

Notice of Proposed Rulemaking and Notice of

Inquiry, Amendment of Parts 21, 43, 74, 78, and 94

of the Commission’s Rules, Pertaining to Rules

Governing Use of the Frequencies in the 2.1 and 2.5

GHz Bands Affecting: Private Operational-Fixed

Microwave Service, Multipoint Distribution Service,

Multichannel Multipoint Distribution Service,

Instructional Television Fixed Service, and Cable

Television Relay Service, 5 FCC Rcd 971 (1990), 55

FR 7344 (March 1, 1990).

[FR Doc. 96–10106 Filed 4–23–96; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 21

[Gen. Dockets Nos. 90–54 and 80–113, MM

Docket No. 94–131 and PP Docket No. 93–

253, FCC 96–130]

Private Operational-Fixed Microwave

Service, et. al.; 2.1 and 2.5 GHz

Frequency Use

Use of the Frequencies in the 2.1 and

2.5 GHz Affecting Private OperationalFixed Microwave Service, Multipoint

Distribution Service, Multichannel

Multipoint Distribution Service,

Instructional Television Fixed Service,

and Cable Television Relay Service;

Filing Procedures in the Multipoint

Distribution Service and in the

Instructional Television Fixed Service

and Implementation of Section 309(j) of

the Communications Act—Competitive

Bidding.

AGENCY: Federal Communications

Commission.

ACTION: Final rule; Third Order on

Reconsideration and Order to Clarify.

SUMMARY: This Third Order on

Reconsideration and Order to Clarify

resolves the issues raised in

reconsideration petitions filed against

the Second Order on Reconsideration in

Gen. Dockets No. 90–54 and 80–113.

The Second Order on Reconsideration

essentially adopted three changes. First,

it enlarged the protected service area for

Multipoint Distribution Service (MDS)

stations from 710 square-miles (the area

of a circle with a 15-mile radius) to

approximately 3,848 square-miles (the

area of a circle with a 35-mile radius).

Second, it revised the rules for serving

interference studies upon potentially

affected stations in the Instructional

Television Fixed Service (ITFS). Third,

it clarified the use of frequency offset

interference protection and the MDS

cut-off rule. In this Third Order on

Reconsideration and Order to Clarify,

the Commission also provides

clarification of provisions set forth in

the MDS Report and Order in MM

Docket No. 94–131 and PP Docket No.

93–253, including the interference study

requirements for pending ITFS

applications and the statement of

intention to be filed by some winning

bidders in the MDS auction. This

Commission action is intended to

expedite more service to the public and

enhance opportunities for wireless cable

to reach its potential as a competitor to

wired cable.

EFFECTIVE DATES: June 24, 1996, except

that the new or modified paperwork

requirements contained in Section

21.902(i), which are subject to approval

by the Office of Management and

Budget (OMB), will go into effect upon

OMB approval. The Commission will

issue at a later date a public notice with

this effective date.

FOR FURTHER INFORMATION CONTACT:

Jerianne Timmerman at (202) 416–0881

or Sharon Bertelsen at (202) 416–0892.

The complete text of the Third Order

on Reconsideration and Order to Clarify

follows. It is also available for

inspection and copying during normal

business hours in the MDS public

reference room, Room 207, at the

Federal Communications Commission,

2033 M Street, N.W., Washington, D.C.,

and it may be purchased from the

Commission’s copy contractor,

International Transcription Service,

Inc., 2100 M Street NW., Suite 140,

Washington, D.C. 20037, (202) 857–

3800.

I. Introduction and Background

1. The Commission has before it three

petitions for reconsideration of the

Second Order on Reconsideration in

Gen. Docket Nos. 90–54 and 80–113, 10

FCC Rcd 7074 (1995), 60 FR 36737 (July

18, 1995) (‘‘Second Order on

Reconsideration’’), which revised the

definition of the protected service area

of Multipoint Distribution Service

(‘‘MDS’’) 1 stations. In the Second Order

on Reconsideration, the protected

service area for MDS stations was

enlarged from 710 square-miles (the area

of a circle with a 15-mile radius) to

approximately 3,848 square-miles (the

area of a circle with a 35-mile radius).

Also revised were the rules for serving

interference studies upon potentially

affected stations in the Instructional

Television Fixed Service (‘‘ITFS’’). In

addition, clarification was provided

regarding frequency offset interference

protection and the MDS cut-off rule.

Three petitions for reconsideration of

various aspects of the Second Order on

Reconsideration were timely filed with

the Commission. The reconsideration

petitions include a request for

clarification of certain provisions of the

order and a request for reconsideration

of a Commission public notice issued

after the order was released, which cited

the order. Two oppositions were

received, and no replies were filed.

2. The petitions for reconsideration

principally raise issues regarding the

expanded protected service area for

authorized and previously proposed

MDS stations. The major factors that

prompted adoption of the expanded

protected service area in the Second

Order on Reconsideration included: (1)

the many MDS operators that have been

serving areas larger than the 710 squaremile service area formerly provided by

the MDS rules; (2) the technological

innovations in reception equipment that

have contributed to a significant

increase in the geographic area to which

reliable MDS service can be provided;

and (3) the potential overcrowding of

the MDS spectrum that would result

from continued use of the smaller

service area. See Second Order on

Reconsideration at 7077–78. We also

noted that the desirability of an

expansion of the protected service area

had been enhanced by two separate

rulemakings: a 1995 ITFS rulemaking

which established a fixed 35-mile

distance as one of several criterion for

ITFS receiver site protection,2 and the

Report and Order in Amendment of

Parts 21 and 74 of the Commission’s

Rules With Regard to Filing Procedures

in the Multipoint Distribution Service

and in the Instructional Television

Fixed Service and Implementation of

Section 309(j) of the Communications

Act–Competitive Bidding, 10 FCC Rcd

9589 (1995), 60 FR 36524 (July 17, 1995)

(‘‘MDS Report and Order’’), recon.

granted in part and denied in part,

Memorandum and Order on

Reconsideration, Amendment of Parts

21 and 74 of the Commission’s Rules

With Regard to Filing Procedures in the

Multipoint Distribution Service and in

the Instructional Television Fixed

Service and Implementation of Section