13022 Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations

Urban area

(constituent counties)

Wage

index GAF

0240 ...................... Allentown-Bethlehem-Easton, PA; Carbon, PA; Lehigh, PA ............................................................... 0.9925 0.9949

3040 ...................... Great Falls, MT; Cascade, MT ............................................................................................................. 0.9330 0.9536

3. On page 47156, in Table 4B—Wage

Index and Capital Geographic

Adjustment Factor (GAF) for Rural

Areas, the wage index and GAF for the

specified nonurban area is corrected to

read as follows:

Nonurban area Wage

index GAF

Vermont .................... 0.9409 0.9591

4. On page 47156 through 47157, in

Table 4C—Wage Index and Capital

Geographic Adjustment Factor (GAF) for

Hospitals that are Reclassified, the wage

indexes and GAFs for the specified

areas are added or corrected to read as

follows:

Area Wage

index GAF

Barnstable-Yarmouth, MA ....................................................................................................................................................... 1.3583 1.2333

Burlington, VT .......................................................................................................................................................................... 1.0236 1.0161

Great Falls, MT ........................................................................................................................................................................ 0.9330 0.9536

Kalamazoo-Battlecreek, MI ...................................................................................................................................................... 1.0291 1.0198

Newburgh, NY–PA ................................................................................................................................................................... 1.0317 1.0216

5. On page 47157, in Table 4D—

Average Hourly Wage for Urban Areas,

the average hourly wage for the

specified urban area is corrected to read

as follows:

Urban area

Average

hourly

wage

Allentown-Bethlehem-Easton,

PA ......................................... 21.6065

6. On pages 47160 and 47167, in

Table 5—List of Diagnosis Related

Groups (DRGs), Relative Weighting

Factors, Geometric and Arithmetic

Mean Length of Stay, the fourth column

(DRG title) is amended as follows:

a. DRG 27, ‘‘Traumatic Stupor &

Coma, Coma <1 hr’’ is corrected to read

‘‘Traumatic Stupor & Coma, Coma >1

hr.’’

b. DRG 29, ‘‘Traumatic Stupor &

Coma, Coma <1 hr Age ≤17 W/O CC’’ is

corrected to read ‘‘Traumatic Stupor &

Coma, Coma <1 hr Age> 17 W/O CC.’’

c. DRG 425, ‘‘Acute Adjustment

Reaction & Psychological Dysfunction’’

is corrected to read ‘‘Acute Adjustment

Reaction & Psychosocial Dysfunction.’’

7. On page 47171, in Table 6C—

Invalid Diagnosis Codes the following

entry is added before the first line of the

table to read as follows:

Diagnosis code Description CC MDC DRG

282.5 ................................. Anemia in chronic illness ..................................................................................... N 16 395, 396

(Catalog of Federal Domestic Assistance

Program No. 93.773 Medicare—Hospital

Insurance)

Dated: February 22, 2001.

William E. Clark,

Acting, Deputy Assistant Secretary for

Information Resource Management.

[FR Doc. 01–5107 Filed 3–1–01; 8:45 am]

BILLING CODE 4120–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 90

[PR Docket No. 93–144; RM 8117; RM 8029;

RM 8030; GN Docket No. 93–252; PP Docket

No. 93–253; FCC 01–33]

Future Development of SMR Systems

in the 800 MHz Frequency Band,

Regulatory Treatment of Mobile

Services, and Competitive Bidding

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petition for

reconsideration.

SUMMARY: In this Third Order on

Reconsideration, the Commission

answers petitions for reconsideration

filed by the American Mobile

Telecommunications Association

(‘‘AMTA’’) and Petroleum

Communications, Inc. (‘‘Petrocom’’) of

the Commission’s Memorandum

Opinion and Order on Reconsideration.

In that document, the Commission

completed the implementation of a new

licensing framework for the 800 MHz

Specialized Mobile Radio Service

(‘‘SMR’’). In this document, the

Commission denies the petition filed by

AMTA seeking interim payments for

incumbent 800 MHz licensees being

involuntarily relocated to new

frequencies by geographic licensees.

Additionally, the Commission denies

the Petrocom petition requesting that

the Commission include the Gulf of

Mexico as an additional Economic Area

(‘‘EA’’) in the then-upcoming 800 MHz

auctions for the 150 General Category

channels (Auction 34) and the Lower 80

channels (Auction 36).

FOR FURTHER INFORMATION CONTACT: Don

Johnson, Wireless Telecommunications

Bureau, Commercial Wireless Division

at (202) 418–7240.

SUPPLEMENTARY INFORMATION: This is a

summary of the Federal

Communications Commission’s (‘‘the

Commission’’) Third Order on

Reconsideration, FCC 01–33, in PR

Docket No. 93–144; RM–8117; RM–

8029; RM–8030; GN Docket No. 93–252;

PP Docket No. 93–253 was adopted

January 26, 2001, and was released

February, 2, 2001. The full text of this

Third Order on Reconsideration is

available for inspection and copying

during normal business hours in the

FCC Reference Center, Room CY–A257,

445 12th Street, SW., Washington, DC.

The complete text may be purchased

from the Commission’s copy contractor,

International Transcription Service,

Inc., 1231 20th Street, N.W.,

Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations 13023

1AMTA Petition for Reconsideration filed

January 19, 2000 (AMTA Petition).

2Petrocom Petition for Reconsideration filed

January 19, 2000 (Petrocom Petition).

3See Amendment of Part 90 of the Commission’s

Rules to Facilitate Future Development of SMR

Systems in the 800 MHz Frequency Band,

Memorandum Opinion and Order on

Reconsideration, 64 FR 71042 (pub. Dec. 20, 1999)

(MO&O on Reconsideration).

4On March 16, 2000, the Commission released a

public notice, Report No. 2395, informing parties

interested in filing comments regarding the AMTA

and Petrocom petitions that they would be due

within 15 days of the date of public notice in the

Federal Register. Notice was published in the

Federal Register on March 24, 2000. See Petitions

for Reconsideration of Action in Rulemaking

Proceedings, Report No. 2395, 65 FR 15907 (Pub.

March 24, 2000). Comments were filed by Nextel

Communications, Inc. (styled as an ‘‘Opposition’’ to

AMTA’s petition); Mobex Communications, Inc.

(urging the Commission ‘‘to embrace’’ the AMTA

proposal); and, the Personal Communications

Industry Association (PCIA) (urging the

Commission to allow progress payments). Reply

comments were filed by Nextel and AMTA.

5 Id. at 17558 (paragraph 1).

6AMTA Petition at 1. See Public Notice, Petitions

for Reconsideration of Action in Rulemaking

Proceeding, Report No. 2395 (rel. March 16, 2000),

65 FR 15907 (Mar. 24, 2000).

7AMTA Petition at 3, note 4 (citing AMTA’s

October 20, 1997 Reply to Opposition to Petitions

for Reconsideration of the 800 MHz Second Report

and Order).

8AMTA Petition at 3–4 (paragraphs 6–7).

9AMTA Petition at 4 (paragraph 7) (referring to

the costs set forth in 47 CFR 90.699(f)(4)(i)).

10AMTA Petition at 4–5 (paragraph 8), 6–7

(paragraphs 11–13).

11The cited discussion in the 800 MHz Second

Report and Order concerns cost-sharing among EA

licensees, not the payments EA licensees must

make to involuntarily relocated incumbents. See

800 MHz Second Report and Order, 12 FCC Rcd.

at 19123 (paragraph 124).

12 47 CFR 90.699(c), (d).

13 47 CFR 90.699(c)(1).

14 47 CFR 90.699(c)(2).

15 47 CFR 90.699(c)(3).

16 47 CFR 90.699(d).

17 MO&O on Reconsideration, 14 FCC Rcd. at

17584–5 (paragraph 57–8).

18 Id.

Washington, D.C. 20037. The full text

may also be downloaded at:

www.fcc.gov. Alternative formats are

available to persons with disabilities by

contacting Martha Contee at (202) 418–

0260 or TTY (202) 418–2555.

Synopsis of Third Order on

Reconsideration

I. Introduction

1. On January 19, 2000, the American

Mobile Telecommunications

Association (AMTA) 1 and Petroleum

Communications, Inc. (Petrocom) 2 filed

separate petitions for reconsideration of

the Commission’s Memorandum

Opinion and Order on

Reconsideration.3 Three parties filed

comments, and two filed reply

comments.4 In the MO&O on

Reconsideration, the Commission

completed the implementation of a new

licensing framework for the 800 MHz

Specialized Mobile Radio Service

(SMR).5 In this order, we deny the

petitions filed by AMTA and Petrocom

for the reasons discussed below.

I. Summary of Third Order on

Reconsideration

A. AMTA Petition

2. AMTA requests that the

Commission reconsider its decision

with respect to the timing of EA licensee

payments to incumbent licensees who

are involuntarily relocated to new

frequencies.6 Specifically, it urges the

Commission to require EA licensees to

make ‘‘reasonable progress payments to

the incumbent if requested.’’ 7 AMTA

argues that the MO&O on

Reconsideration’s decision to make

payments for incumbent relocation costs

due at the end of the relocation process

is unsupported by our rules or previous

decisions.8 According to AMTA, the

MO&O on Reconsideration incorrectly

relied on the 800 MHz Second Report

and Order published in the Federal

Register at 62 FR 41190 (July 31, 1997),

because the referenced discussion in the

800 MHz Second Report and Order ‘‘did

not relate to the timing of payments

from EA licensees to incumbents during

the retuning process’’ but instead

concerned the ‘‘timing of payments

among EA licensees when the relocation

of an incumbent by one EA licensee

would result in the availability of a

channel(s) to another EA licensee, one

that had not paid any of the associated

relocation costs’.’’ 9 AMTA reiterated

that the Commission’s decision not to

require progress payments to incumbent

licensees would render incumbent

licensees especially vulnerable after the

involuntary relocation period begins

because each incumbent will have lost

any bargaining power it previously

possessed vis-a ́-vis the EA licensee.10

3. Upon further review, we conclude

that AMTA is correct that neither the

800 MHz Second Report and Order nor

the MO&O on Reconsideration

adequately addressed the question of

when incumbent licensees should be

repaid for their involuntary relocation

costs.11 On reconsideration of this issue

here, however, we affirm our decision

that EA licensees should not be required

to make progress payments of an

incumbent’s relocation costs. We

believe that this policy is consistent

with the involuntary relocation

procedures established in our 800 MHz

Second Report and Order and adopted

in § 90.699(c) and (d) of the

Commission’s rules.12 Section

90.699(c)(1) requires that the EA

licensee guarantee repayment of

relocation costs, ‘‘including all

engineering, equipment, site and FCC

fees, as well as any legitimate and

prudent transaction expenses . . .’’ 13

Additionally, § 90.699(c)(2) states that

the EA licensee must ‘‘[c]omplete all

activities necessary for implementing

the replacement facilities [of the

incumbent], including all engineering

and cost analysis of relocation and, if

radio facilities are used, identifying and

obtaining, on the incumbent’s behalf,

new frequencies and frequency

coordination.’’ 14 Furthermore,

§ 90.699(c)(3) requires that EA licensees

must ‘‘build the replacement system and

test it for comparability with the

existing 800 MHz system.’’ 15 Section

90.699(d) requires that the ‘‘replacement

system’’ provided by the EA licensee to

an incumbent licensee during this

involuntary relocation process ‘‘must be

at least equivalent to the existing 800

MHz system’’ with respect to the system

itself, capacity, quality of service, and

operating costs.16

4. In view of the requirements of

§ 90.699(c) and (d) that the EA licensees

directly bear the cost of building and

testing the replacement system, it is

clear that the primary cost burden for

involuntary relocation rests on the EA

licensees, not the incumbent. To the

extent that the incumbent may incur

additional relocation costs, the rule

further requires the EA licensee to

guarantee payment of those costs.

However, because we anticipate that EA

licensees will bear most relocation costs

directly we believe that it is equitable

for the incumbent to be repaid for any

remaining costs that it has incurred after

relocation has occurred. We note that

such reimbursable costs may include

costs that reflect the time-value of

money, such as reasonable and

customary interest expenses incurred by

incumbents who must borrow or finance

the funds needed to relocate. We

pointed out previously that this

approach is unlikely to prejudice

incumbents inasmuch as EA licensees

‘‘have a large financial incentive to

relocate the incumbent licensees,

construct their facilities, and begin

operating.’’ 17 We also stated in the

MO&O on Reconsideration that ‘‘parties

are free to negotiate when

reimbursement of relocation costs will

occur, and may agree to reimbursement

as such expenses are incurred.’’ 18 Thus,

we have consistently encouraged EA

and incumbent licensees to arrange for

13024 Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations

19Opposition of Nextel Communications, Inc., to

Petition for Reconsideration of the American

Mobile Telecommunications Association, Inc., filed

on April 10, 2000, at 2 (Nextel Opposition). 20Nextel Opposition at 5. 21 Id. AMTA and PCIA agree that the relocation

process has proceeded successfully. AMTA Petition

at 2; PCIA Comments at 3. 22Amendment to the Commission’s Rules

Regarding a Plan for Sharing the Costs of

Microwave Relocation, First Report and Order and

Further Notice of Proposed Rule Making, 11 FCC

Rcd. 8825, 8838 (paragraph 23) 61 FR 29679 (June

12, 1996) (incumbent must be made ‘‘whole,’’

which includes being provided with ‘‘comparable

facilities’’). Section 101.75 requires the payment of

relocation costs to the incumbent but envisages that

this will occur after the relocation process is

completed, not according to a progress payments

system. See 47 CFR 101.75.

23AMTA Petition at 4–5 (paragraph 8), 6–7

(paragraphs 11–13).

24Petrocom Petition at 1.

25 Id.

26Auction 34 concluded on September 1, 2000,

and Auction 36 concluded on December 5, 2000.

27See In re Cellular Service and Other

Commercial Mobile Radio Services in the Gulf of

Mexico, WT Docket No. 97–112, Second Further

Notice of Proposed Rule Making, 12 FCC Rcd. 4578,

4600 (paragraph 62) (1997), 65 FR 24168 (Apr. 25,

2000) (Gulf Cellular Second Further Notice). The

Commission took notice in the Gulf Cellular Second

Further Notice of Petrocom’s petition for

rulemaking. Id. at 4600–1 (paragraph 62) (citing

Letter from Kenneth W. Burnley, Myers Keller

Communications Law Group, to David Furth, FCC,

dated February 21, 1997).

the payment of relocation costs as they

see fit, and we continue to do so.

5. AMTA does not present any new

arguments to support its current request

that the Commission require EA

licensees to make progress payments to

incumbent 800 MHz licensees during

their involuntary relocation. Moreover,

there is nothing currently before us in

the record that would prompt us to

change our decision. In its opposition,

Nextel, the predominant winner of EA

licenses in the upper 200 channel

auction, states that it has initiated

relocation discussions with over ninety

percent of the nation’s upper 200

channel incumbents and has already

reached voluntary agreements to acquire

or relocate over fifty percent of the total

number of incumbent channels that it,

as an EA licensee, will be allowed to

relocate.19 Nextel recommends that the

timing of payments for relocation

expenses should continue to be left to

the negotiation process and the common

sense of the parties ‘‘to select the

payment schedule and other terms that

meet the unique requirements of the

individual transaction.’’ 20 Nextel also

points out that neither AMTA nor PCIA

has cited any instance in which an EA

licensee did not agree to some form of

progress payments or an incumbent has

been harmed by the current rule

structure.21 We also note that the

Commission did not adopt a progress

payments method when it established

policies relocating 2 GHz microwave

licensees by PCS MTA and BTA

licensees.22 For these reasons, we deny

AMTA’s petition.

6. We also disagree with AMTA’s

contention that incumbent licensees

will be especially vulnerable after the

involuntary relocation period begins

because they will not be in a position

to negotiate with the EA licensee.23 As

our discussion above demonstrates, an

EA licensee that seeks to involuntarily

relocate an incumbent licensee assumes

a broad range of obligations to the

incumbent that must be met before the

incumbent can be required to relocate.

Because the burden of providing

comparable facilities and paying

relocation costs rests on the EA licensee,

we do not believe that an incumbent

will be prejudiced by the process.

B. Petrocom Petition

7. In its petition,24 Petrocom, which

holds site-specific SMR licenses as well

as one of the cellular licenses for the

Gulf of Mexico, requested that the

Commission include the Gulf of Mexico

as an additional Economic Area (EA) in

the then-upcoming 800 MHz auctions

for the 150 General Category channels

(Auction 34) and the Lower 80 channels

(Auction 36). Petrocom acknowledged

that it had not previously raised this

issue in the 800 MHz proceeding.25

Since Petrocom filed its petition, both

Auction 34 and Auction 36 have

concluded.26 Although neither of these

auctions provided for EA licensing in

the Gulf, we note that Petrocom has

filed a similar petition for rulemaking in

the Gulf Cellular proceeding,27 and that

we have sought comment in that

proceeding as to whether we should

establish a Gulf EA in the 800 and 900

MHz SMR services for possible future

licensing. Because this issue is before us

in the Gulf Cellular proceeding, and

because Petrocom has not raised it

previously in this proceeding, we

decline to address it here. Therefore, we

dismiss Petrocom’s petition.

III. Procedural Matters

A. Regulatory Flexibility Act

8. No Supplemental Final Regulatory

Flexibility Analysis (Supplemental

FRFA) has been prepared for this item

because this Third Order on

Reconsideration does not promulgate or

revise any rules, and our previous RFA

analyses in this proceeding remain

unchanged. Furthermore, no Regulatory

Flexibility comments were received

regarding the Memorandum Opinion

and Order on Reconsideration.

B. Paperwork Reduction Act of 1995

Analysis

9. This Third Report and Order on

Reconsideration does not contain a new

or modified information collection.

IV. Ordering Clauses

10. Pursuant to sections 4(i) and 405

of the Communications Act as 1934, as

amended, 47 U.S.C. 154(i), 405, the

petition for reconsideration filed by the

American Mobile Telecommunications

Association is denied.

11. Further, pursuant to sections 4(i)

and 405 of the Communications Act as

1934, as amended, 47 U.S.C. 154(i), 405,

the petition for reconsideration filed by

the Petroleum Communications, Inc., is

dismissed.

Federal Communications Commission.

William F. Caton,

Deputy, Secretary.

[FR Doc. 01–5041 Filed 3–1–01; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 001127331–1044–02; I.D.

102600B]

RIN 0648–AN69

Fisheries of the Northeastern United

States; Atlantic Mackerel, Squid, and

Butterfish Fisheries; 2001

Specifications and Foreign Fishing

Restrictions

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule; specifications for

2001.

SUMMARY: NMFS issues final

specifications for the 2001 fishing year

for Atlantic mackerel, squid, and

butterfish (MSB). This action also

allocates the domestic annual harvest

for Loligo squid into quarterly periods.

The intent of this final rule is to

conserve and manage the MSB resource

in compliance with the Fishery

Management Plan for the Atlantic

Mackerel, Squid, and Butterfish

Fisheries (FMP); the regulations; and the

Magnuson-Stevens Fishery

Conservation and Management Act

(Magnuson-Stevens Act).

DATES: Effective March 2, 2001, except

that the quotas for Loligo and Illex

squid, Atlantic mackerel, and butterfish