On December 7, 2000 (65 FR 76896), the NRC published in the Federal Register a direct final rule amending its regulations in 10 CFR part 72 to allow holders of power reactor operating licenses as general licensees to store PWR design basis fuel assemblies in accordance with revised technical specifications and Maine Yankee site-specific spent fuel in the NAC-UMS. The changes proposed for Amendment No. 1 to the NAC-UMS CoC include: changes to authorized contents to allow Maine Yankee site-specific spent fuels within the PWR basket, including damaged or consolidated fuel in a Maine Yankee fuel can and burnups up to 50,000 MWd/MTU; changes to allow longer times for PWR spent fuel cask loading operations based on reduced heat loads; authorization to store, without canning, intact PWR assemblies with missing grid spacers (up to an unsupported length of 60 inches); editorial clarifications to the technical specifications (TS); and deletion of a certificate reference to the NS-4-FR trade name of the solid neutron shielding material in the VCC shield plug. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on the date noted above. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule will become effective as scheduled.

On December 5, 2000 (65 FR 75853), the NRC published in the Federal Register a direct final rule amending its regulations in 10 CFR part 72 to allow holders of power reactor operating licenses to store spent fuel in the cask Transnuclear, Inc., under revised conditions. Amendment No. 1 to the TN-32 Certificate of Compliance (CoC) includes the addition of the B&W/FCF 17×17 Mark BW assembly to the Technical Specification for “Fuel to be stored in the TN-32 Cask,” with revised bounding characteristics, and (2) a revised TS for “Site Specific Parameters and Analysis,” to allow analysis of verification of allowable seismic loads. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on the date noted above. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule will become effective as scheduled.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Airbus Model A330 and A340 series airplanes was published in the Federal Register on December 5, 2000 (65 FR 75877). That action proposed to require identifying the part and serial numbers of the pressure reducing valve on each air pressurization unit, testing pressure reducing valves and air pressurization units having affected serial numbers, and replacing faulty valves or units with new parts.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 5 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the required actions, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD on U.S. operators is estimated to be $60 per airplane. However, the FAA has been advised that all affected airplanes currently on the U.S. Register are in compliance with the actions of this AD.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 777 series airplanes was published in the Federal Register on November 15, 2000 (65 FR 68955). That action proposed to require replacement of nuts on the clevis assemblies that support the auxiliary tracks of the inboard leading edge slats.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter supports the proposed rule. Another commenter states that it is not affected by the proposed rule.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

There are approximately 121 airplanes of the affected design in the worldwide fleet. The FAA estimates that 34 airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $4,080, or $120 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

In this order, the Commission addresses a request for rehearing and clarification of Order No. 620, the Final Rule on the revisions to and electronic filing of the FERC Form No. 6 and related uniform systems of accounts, issued on December 13, 2000.1 In Order No. 620, the Commission amended Parts 352, 357, and 385 2 of its regulations in order to better meet current and future regulatory requirements and industry needs; be more consistent with current Generally Accepted Accounting Principles; and to provide for the electronic filing of FERC Form No. 6. Order No. 620 is part of the Commission's ongoing program to update and eliminate burdensome and unnecessary accounting and reporting requirements. These changes will reduce, by about 25 percent, the burden on regulated companies for maintaining and reporting information under the Commission's regulations.

For the reasons stated below, the Commission provides clarification and denies rehearing.

FERC Form No. 6, “Annual Report of Oil Pipeline Companies,” collects information on an annual basis to enable the Commission to carry out its responsibilities associated with the regulation of oil pipeline companies under the Interstate Commerce Act.

Order No. 620, among other things, revised FERC Form No. 6 page 700, “Annual Cost of Service Based Analysis Schedule.” Page 700 provides basic cost-of-service and throughput information that allows a shipper to compare proposed changes in a pipeline's rates against the change in level of the pipeline's cost of service and the change in the pipeline's average company-wide barrel-mile cost.

On January 12, 2001, the Society for the Preservation of Oil Pipeline Shippers (SPOPS) filed a timely request for rehearing and clarification of Order No. 620. SPOPS seeks rehearing of the Final Rule's requirement that pipelines report total jurisdictional revenues on Line 10 of page 700 rather than total company revenues. Also, SPOPS asks the Commission to clarify the Final Rule regarding what cost-of-service information must be reported on page 700.

Specifically, SPOPS argues that the Final Rule's requirement that oil pipelines report total jurisdictional revenues on Line No. 10 of page 700 results in a mismatch between the costs and revenues reported on this page. According to SPOPS, the Final Rule permits oil pipeline companies to exclude revenues earned from either non-carrier services or non-jurisdictional carrier services which could result in an understatement of company revenues. SPOPS also argues that pipelines will have an enhanced opportunity to engage in an allocation shell game if only jurisdictional costs and revenues are reported on page 700.

SPOPS requests that the Commission clarify what cost-of-service information is to be reported on page 700: cost-of-service data related to jurisdictional operations or total company operations including non-jurisdictional activities. SPOPS cites the instructions listed on page 700 that were effective prior to the issuance of Order No. 620 which required the total cost-of-service to be computed on a total company basis consistent with the Commission's Opinion No. 154-B, et al., methodology. SPOPS argues total company cost-of-service should be reported on page 700 although it acknowledges that pipelines have been reporting cost-of-service data on a jurisdictional basis.

The Association of Oil Pipelines (AOPL) filed an answer on January 29, 2001. AOPL essentially responds that Order No. 620, and page 700, properly focus on jurisdictional revenues.

Rule 213(a)(2) of the Commission's Rules of Practice and Procedure, 18 CFR 385.213(a)(2) (2000), prohibits answers unless otherwise ordered by the decisional authority. We find that good cause exists to allow AOPL's answer.

We disagree with SPOPS's assertion that revised page 700, “Annual Cost of Service Based Analysis Schedule,” of FERC Form No. 6 results in a mismatch between the costs and revenues reported on this schedule, or that pipelines will engage in an allocation shell game if only jurisdictional costs and revenues are reported on page 700.

In the Notice of Proposed Rulemaking (NOPR) issued in this proceeding, the Commission proposed to revise Instruction No. 3 of page 700 to require oil pipeline companies to report total company revenues so that it would be consistent with the total cost of service reported on this page.3 SPOPS had asserted in its comments to the NOPR that the Commission should require pipelines to report total company costs and total company revenues on page 700.

In its comments on the NOPR, AOPL explained that our proposed revision to Instruction No. 3 would in fact result in an inconsistency. That is, the total cost of service computed using the Opinion No. 154-B methodology does not equate to total company costs; rather it represents the aggregate cost of the pipeline's jurisdictional services. While AOPL did not object to reporting total company revenues on page 700, it argued that only jurisdictional operating revenues should be reported on this page. In the Final Rule, the Commission stated that it agreed with AOPL's comment and revised Line No. 10 of page 700 to require pipelines to report “Total Interstate Operating Revenues.”

On rehearing, SPOPS argues that by requiring pipelines to report only jurisdictional cost of service and revenues on page 700, it will give pipelines an enhanced opportunity to mis-allocate jurisdictional costs and revenues in favor of the pipelines.

The Commission never intended in the Final Rule to have a pipeline report its non-jurisdictional costs on page 700. Rather, page 700 was to be a preliminary screening tool that would permit a shipper to compare proposed changes in rates against the pipeline's jurisdictional cost of service.4 Page 700, as revised by Order No. 620, results in the proper matching of FERC jurisdictional costs and revenues for shippers to use in assessing rate proposals. Accordingly, we take this opportunity to clarify Order No. 620 that the cost-of-service and revenue data reported on page 700 will be the cost of service and revenues related to FERC jurisdictional services.

In response to SPOPS's concern that the Final Rule will enable pipelines to improperly allocate costs and revenues in determining data to be reported on page 700, we have adopted measures to ensure consistency in how a pipeline computes the information it reports on page 700. If a pipeline makes major changes in its application of the Opinion No. 154-B methodology, it must disclose on page 700 that it has done so and recalculate the prior year's cost of service data to reflect the change so that valid comparisons of data can be made from one year to the next.5

Moreover, in Order No. 620, we required pipelines to maintain workpapers that fully support the data reported on page 700 including but not limited to the total cost-of-service calculations and all of its associated components. This includes allocations of costs and revenues between carrier and non-carrier, jurisdictional and non-jurisdictional facilities/services, and between interstate and intrastate services, assumptions made for the Opinion No. 154-B calculations and cross-references to underlying source documents. In addition, Order No. 620 provides that the Commission or its staff may request that a pipeline make its workpapers available.6 Given these safeguards, SPOPS's claim of possible manipulation of data reported on page 700 is speculative at best.

SPOPS's request for rehearing of Order No. 620 is denied.

In a notice published in the Federal Register of March 2, 2000 (65 FR 11320), FDA announced that a food additive petition (FAP 0M4711) had been filed by the National Center for Food Safety and Technology, Illinois Institute of Technology, 6502 South Archer Rd., Summit-Argo, IL 60501-1933. The petition proposed to amend the food additive regulations in § 179.45 Packaging materials for use during the irradiation of prepackaged foods (21 CFR 179.45) to expand the conditions of safe use of X-radiation and electron beam energy sources for the treatment of prepackaged foods by irradiation.

FDA has evaluated the data in the petition and other relevant material. Based on this information, the agency concludes that: (1) The proposed use of the additives as sources of radiation for irradiating of prepackaged foods is safe, (2) the additives will achieve their intended technical effect, and therefore, (3) the regulations in § 179.45 should be amended as set forth below.

In accordance with § 171.1(h) (21 CFR 171.1(h)), the petition and the documents that FDA considered and relied upon in reaching its decision to approve the petition are available for inspection at the Center for Food Safety and Applied Nutrition by appointment with the information contact person listed above. As provided in § 171.1(h), the agency will delete from the documents any materials that are not available for public disclosure before making the documents available for inspection.

The agency has previously considered the environmental effects of this rule as announced in the notice of filing for FAP 0M4711. No new information or comments have been received that would affect the agency's previous determination that there is no significant impact on the human environment and that an environmental impact statement is not required.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

Any person who will be adversely affected by this regulation may at any time file with the Dockets Management Branch (address above) written objections by March 19, 2001. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provisions of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection. Three copies of all documents are to be submitted and are to be identified with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Dockets Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

The United States Government (USG) and the Government of Canada (GOC) have completed bilateral discussions on export controls that have resulted in each Government making changes to their respective regulations. The Government of Canada has made numerous changes to its export control system by law and regulation, including providing coverage for all items of the type controlled on the United States Munitions List (USML) on its control lists. Their changes also involve establishing a system that identifies and permits registration of persons who will be eligible on the basis of Canadian citizenship or permanent residence and of risk assessment to have access to USML articles exported from the United States or re-transferred within Canada without a U.S. license. Furthermore, the GOC promulgated regulations requiring USG approval prior to any re-export or retransfer of the International Traffic in Arms Regulations (“ITAR”)-controlled items either within Canada or to a third country. In response, the USG is amending Section 126.5 of ITAR to expand significantly the scope of the Canadian exemption, specifically by reflecting the Canadian registration system. The amendment makes corresponding changes to permit specified end users eligible to receive defense articles exported under this exemption. Those end users are Canadian Federal or Provincial government authorities acting in an official capacity and Canadian-registered persons. For purposes of this section only, a Canadian-registered person is any Canadian national (including Canadian business entities organized under the laws of Canada), dual national, and permanent resident registered in Canada in accordance with the Canadian Defence Production Act. Even where a Canadian business entity is so registered, this does not qualify any employee to receive items subject to this exemption unless the employee is also a national, dual national or permanent resident of Canada.

The Government of Canada published a regulatory change effective April 30, 2001, establishing a registration system that will permit Canadian firms to be registered as eligible to receive exports from the United States on May 30, 2001, the effective date of this regulatory change.

Section 126.5 is also amended to add a new defense service exemption that provides registered United States and Canadian-registered persons the ability to, without obtaining a license, work together to respond to U.S. and Canadian Government requests for a quote or a bid proposal. This amendment also permits exchanges necessary to respond to a registered U.S. company's request to produce, design, assemble, maintain or service a defense article. To utilize this amendment, U.S. exporters are advised to ensure that they can meet all the criteria prior to export and that adequate records of disclosure are maintained to verify that only the information exempt is exported.

Also, the list of items requiring a license prior to export is being amended to change the coverage. The changes include a requirement to obtain a license prior to export to Canada for all technical data and defense services for gas turbine engine hot sections covered by Categories VI(f) and VIII(b)—not to include hardware; developmental aircraft, engines and components identified in Category VIII(f); all category XII(c), except 1st- and 2nd-generation image intensification tubes and 1st- and 2nd-generation image intensification night sighting equipment and end items in Category XII(c) and related technical data limited to basic operations, maintenance and training information as authorized under exemption in Section 125.4(b)(5) when exported directly to a Canadian Government; chemical agents listed in Category XIV(a), biological agents in Category XIV(b), and equipment listed in Category XIV(c) for dissemination of the chemical agents and biological agents in (a) and (b); nuclear radiation-measuring devices manufactured to military specifications listed in XIV(d); all spacecraft in Category XV(a), except commercial communications satellites; XV(c), except end items when for use by the Federal Government of Canada; Category XV(d); certain systems, components and parts included within the coverage of XV(e); and, miscellaneous articles covered by Category XXI.

It remains the responsibility of the U.S. exporter of record to determine, in writing, the Canadian end-user, end-use, that the Canadian recipient is registered with the Canadian Government, and that the defense articles are for end-use in Canada and not for reexport or retransfer to another foreign destination. Should this information not be available or the exporter has knowledge or reason to know that the export would result in a transfer or sale to a proscribed destination (see 126.1), this exemption is not available.

As a general matter, the regulation does not affect the continuing application of requirements of this subchapter to parties utilizing this exemption, in particular § 126.1(e) which requires any person who knows or has reason to know of a prohibited activity involving a proscribed destination to immediately inform the Office of Defense Trade Controls. Specifically, too, Canadian-registered persons will be eligible recipients of ITAR-controlled items under this exemption for purposes of this regulation, except where application of U.S. law may require prohibiting (e.g., by treating a transaction as non-exempt or a Canadian-registered person as ineligible on a case-by-case basis, or more broadly) an export, reexport or transfer of such an item to a person with citizenship or nationality of a country to which U.S. defense exports are prohibited by law.

This amendment involves a foreign affairs function of the United States and therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554. It is exempt from review under Executive Order 12866 but has been reviewed internally by the Department to ensure consistency with the purposes thereof. This rule does not require analysis under the Regulatory Flexibility Act or the Unfunded Mandates Reform Act. It has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Act of 1966. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with § 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant application of Executive Order Nos. 12372 and 13123. However, interested parties are invited to submit written comments to the Department of State, Office of Defense Trade Controls, ATTN: Regulatory Change, Canadian Exemption, 13th Floor, H1304, 2401 E Street, NW., Washington, DC 20037. Such persons must be so registered with the Department of State's Office of Defense Trade Controls (DTC) pursuant to the registration requirements of § 38 of the Arms Export Control Act. Comments are welcomed and could assist both governments in joint outreach program to be conducted following this publication.

Part 210 incorporates, with certain exceptions, the ACH Rules. NACHA periodically updates the ACH Rules. Each year NACHA publishes a new rule book that reflects the changes to the ACH Rules that have been approved since the publication of the previous rule book. Part 210 currently provides that any amendment to the ACH Rules, as published in NACHA's 2000 rule book, that takes effect after September 15, 2000, will not apply to Federal government ACH entries unless we publish notice of acceptance of the amendment in the Federal Register. 31 CFR § 210.3(b)(2). NACHA recently published its 2001 rule book. We're publishing this interim rule in order to indicate which amendments to the ACH Rules we're accepting and which amendments we're rejecting.1

The ACH Rules published in NACHA's 2001 rule book reflect changes to the ACH Rules published in NACHA's 2000 rule book related to five topics 2

NACHA has adopted a rule enabling an Originator to initiate a single entry ACH debit to a consumer's account for transactions initiated over the telephone. The rule requires the Originator to receive oral authorization from the Receiver, and to retain that authorization for a period of two years from the termination or revocation of that authorization. The Originator must either tape record the authorization or provide the Receiver with written notice confirming the oral authorization prior to the settlement date of the entry. The rule permits the initiation of ACH debits by telephone in three sets of circumstances: When a consumer makes a telephone call to a company with which the consumer has an existing relationship, when a company makes a telephone call to a consumer with whom the company has an existing relationship, or when a consumer makes a telephone call to a company with which the consumer has no prior relationship. The rule change will become effective September 14, 2001.

NACHA has adopted a rule that amends the ACH Rules to shorten the time frame for the transmission of corrected returns to two banking days from the settlement date of the dishonored return. This change will make the time frame consistent with that of the contested dishonored return process. This rule change will reduce the risk to the Originator and originating depository financial institution (ODFI) because corrected returns will be received more quickly than is currently required. The rule change will become effective March 16, 2001.

NACHA has adopted a rule that is intended to establish a foundation for promoting secure Internet-initiated ACH payments. The rule establishes a new Standard Entry Class (SEC) Code, WEB, that will specifically identify consumer ACH debit transactions initiated over the Internet. Among other things, the rule requires that Originators utilize commercially reasonable fraudulent transaction detection systems to screen entries; verify that routing numbers are valid; and establish secure Internet sessions prior to and during the key entry by consumers of banking information. The rule will become effective March 16, 2001.

In 1999 NACHA adopted a short-term rule expanding the definition of the Prearranged Payment and Deposit Entry (PPD) format in the ACH Rules to allow Originators to utilize the PPD format to truncate checks received through the U.S. mail for payment of goods or services and convert them to ACH debit entries. The implementation period for the rule ended on December 15, 2000. However, in order to allow for the continuation of pilot programs testing lockbox check truncation, NACHA has issued a revised short-term rule with an implementation period from December 15, 2000 through March 14, 2002. Unlike the original short-term rule, the revised short-term rule permits truncation of items exceeding $2,500.

NACHA has amended the ACH Rules governing the transmission and receipt of cross-border entries to (1) include necessary legal protections for ACH network participants in light of modifications to the Cross-Border Payment Operating Rules that were adopted by the Cross-Border Council and (2) allow for the transmission and receipt of cross-border debit transactions. The amendment became effective September 15, 2000.

We are accepting the ACH Rules that address telephone-initiated ACH entries, corrected returns time frames, and cross-border payments. These rule changes are effective as of the effective date of this interim rule or NACHA's effective date for the rule change, whichever is later. In order to incorporate these rules in Part 210, the only change necessary to the current regulation is to replace references to the 2000 rule book with references to the 2001 rule book.

We are not accepting, at this time, the ACH Rules that address accounts receivable check truncation or Internet-initiated entries. We are currently evaluating Treasury initiatives in both of these areas and will publish a notice of proposed rulemaking in the near future in order to provide the public with an opportunity to comment before we adopt rules related to these transactions.

We are amending the definition of “applicable ACH Rules” at section 210.2(d) to reference the rules published in NACHA's 2001 rule book rather than the rules published in NACHA's 2000 rule book. We also are adding new subsection 210.2(d)(6) and (d)(7) to exclude the rules relating to accounts receivable check truncation and Internet-initiated entries from the definition of “applicable ACH Rules.”

We are amending subsection 210.3(b), “Incorporation by reference—applicable ACH Rules,” by replacing the references to the ACH Rules as published in the 2000 rule book with references to the ACH Rules as published in the 2001 rule book.

We invite comment on all aspects of the interim rule.

On June 1, 1998, the President issued a memorandum directing each agency in the Executive branch to write its rules in plain language. This directive is effective for all new proposed and final rulemaking documents issued on or after January 1, 1999. We invite comment on how to make this interim rule clearer. For example, you may wish to discuss: (1) Whether we have organized the material to suit your needs; (2) whether the requirements of this interim rule are clear; or (3) whether there is something else we could do to make this rule easier to understand.

We find that good cause exists for issuing this interim rule without prior notice and comment. Under the Administrative Procedure Act, an agency is permitted to issue a rule without prior notice and comment when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). We believe that it is important to address the publication of new ACH Rules as quickly as possible in order to mitigate the uncertainty and inconvenience to financial institutions and agencies that would result from a time lag in responding to NACHA's rule changes. When we proposed to address changes to the ACH Rules by reviewing and responding to rule changes on an annual basis, we received many comments expressing concern over the potential consequences of such a time lag.

Those consequences include uncertainty as to the rules governing government ACH transactions, as well as the inability of financial institutions to segregate the processing of those transactions. For these reasons, we find that we have good cause for issuing this interim rule without prior notice and comment.

Nevertheless, we are inviting comment and will consider the comments received.

This interim rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866.

Because notice and public comment are not required, the Regulatory Flexibility Act (5 U.S.C. 601) does not apply.

This interim rule contains no new collections of information. Therefore, the Paperwork Reduction Act does not apply.

District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety needs of the waters within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to vessels, ports, or waterfront facilities to prevent injury or damage. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Timely publication of these regulations in the Federal Register is often precluded when a regulation responds to an emergency, or when an event occurs without sufficient advance notice. However, the affected public is informed of these regulations through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the regulation. Because mariners are notified by Coast Guard officials on-going scene prior to enforcement action, Federal Register notice is not required to place the special local regulation, security zone, or safety zone in effect. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary special local regulations, security zones, and safety zones. Permanent regulations are not included in this list because they are published in their entirety in the Federal Register. Temporary regulations may also be published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The safety zones, special local regulations, drawbridge regulations and security zones listed in this notice have been exempted from review under Executive Order 12866 because of their emergency nature, or limited scope and temporary effectiveness.

The following regulations were placed in effect temporarily during the period October 1, 2000 and December 31, 2000, unless otherwise indicated.

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, the Agency's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest. The temporary 60-day delay in effective date is necessary to give Agency officials the opportunity for further review and consideration of new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001. Given the imminence of the effective date, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this rule immediately effective upon publication.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the National Flood Insurance Program, 42 U.S.C. 4001 et seq., unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register.

In addition, the Federal Emergency Management Agency has identified the special flood hazard areas in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in the identified special flood hazard area of communities not participating in the NFIP and identified for more than a year, on the Federal Emergency Management Agency's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Associate Director finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives a 6-month, 90-day, and 30-day notification addressed to the Chief Executive Officer that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications have been made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless they take remedial action.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987 Comp., p. 252.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of section 2(b)(2) of Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991 Comp., p. 309.

The Federal Emergency Management Agency makes the final determinations listed below of modified base flood elevations for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Associate Director has resolved any appeals resulting from this notification.

The modified base flood elevations are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4. National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director for Mitigation certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified base flood elevations are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified base flood elevations are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in base flood elevations are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the National Flood Insurance Program. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The Federal Emergency Management Agency (FEMA or Agency) makes final determinations listed below of base flood elevations and modified base flood elevations for each community listed. The proposed base flood elevations and proposed modified base flood elevations were published in newspapers of local circulation and an opportunity for the community or individuals to appeal the proposed determinations to or through the community was provided for a period of ninety (90) days. The proposed base flood elevations and proposed modified base flood elevations were also published in the Federal Register.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and Flood Insurance Rate Map available at the address cited below for each community.

The base flood elevations and modified base flood elevations are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Associate Director, Mitigation Directorate, certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified base flood elevations are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

This is a summary of the Commission's Order, ET Docket 98-206, FCC 00-418, adopted November 29, 2000, and released December 8, 2000. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, S.W., Washington, DC, and also may be purchased from the Commission's duplication contractor, International Transcription Service, (202) 857-3800, 1231 20th Street, N.W. Washington, DC 20036.

1. The First Report and Order (“First R&O”), permits non-geostationary satellite orbit (“NGSO”) fixed-satellite service (“FSS”) providers to operate in certain segments of the Ku-band, and adopt rules and policies to govern such operations. It also adopts technical criteria so that NGSO FSS operations can share spectrum with incumbent services without causing unacceptable interference to them and without unduly constraining future growth of incumbent services or NGSO FSS system flexibility. Finally, the Commission concludes that a new terrestrial fixed Multichannel Video Distribution and Data Service (“MVDDS”) can operate in the 12.2-12.7 GHz band on a non-harmful interference basis with incumbent Broadcast Satellite Services (“BSS”), and on a co-primary basis with the NGSO FSS. By these actions, we provide for the introduction of new advanced services to the public, consistent with our obligations under Section 706 of the 1996 Telecommunications Act, and promote increased competition among satellite and terrestrial services.

2. We find that we can permit deployment of NGSO FSS gateway earth stations and also protect the continued use and growth by terrestrial operations in the proposed bands. To accomplish this, we are limiting gateway use of the 12.75-13.25 GHz band to the 12.75-13.15 GHz and 13.2125-13.25 GHz band segments. Further, we are permitting gateway use of the 13.75-13.8 GHz band. Finally, we will permit service link, as well as gateway, use of the 14.4-14.5 GHz band. We recognize, however, that deployment of service links in the 10.7-11.7 GHz, 12.75-13.15 GHz, 13.2125-13.25 GHz, and 13.75-14.0 GHz bands could hinder future terrestrial service deployment in those bands. Therefore, to avoid the ubiquitous deployment of earth stations, we find it appropriate to allow only gateway earth station operations for NGSO FSS in those four bands. Further, because gateway earth stations will be located at sites readily identified to other users of the bands, this action increases the potential for co-frequency operation. We define NGSO FSS gateway earth stations as those earth stations that do not originate or terminate traffic, but interconnect multiple non-collocated user earth stations operating in frequency bands other than designated gateway bands, through a satellite with other primary networks, such as the public switched telephone network and Internet networks. That is, gateway earth stations will be required to operate in a manner that supports the switching and routing functions of the NGSO FSS system as a whole, as do feeder links for mobile-satellite systems or hub operations for very small aperture terminal (“VSAT”) networks.

3. Thus, we are adopting a functional definition for earth station use of this band, which should provide for various NGSO FSS system designs, regardless of what terminology is used by an applicant to describe the facility. Moreover, each NGSO gateway antenna will be required to meet an antenna performance standard of 29-25 log theta (θ) dBi in all directions, where theta (θ) is the earth station antenna off-axis angle relative to the main lobe of the antenna. We find that adopting this antenna performance standard will ensure that NGSO gateway antennas focus their signals in the desired direction without the need for minimum antenna size requirements, which could hinder innovation and flexibility. Additionally, to facilitate coordination with terrestrial facilities, we adopt our proposal requiring a single gateway complex to be located within an area of one second latitude by one second longitude. This requirement, which also applies to GSO FSS earth station sitings, facilitates earth station and terrestrial coordination in shared bands by specifying very limited areas for gateway antennas. Gateway antennas outside of these areas will be considered as separate gateway complexes for the purposes of coordination with terrestrial services and for licensing purposes. Nevertheless, these interconnected gateway antennas could be under multiple licenses, or considered as a single gateway complex.

4. We do not find it is necessary at this time to limit the number of NGSO FSS earth stations that should be allowed to use the 10.7-11.7 GHz, 12.75-13.15 GHz, 13.2125-13.25 GHz, and 13.75-14.0 GHz bands. The applications that have been filed for Ku-band NGSO FSS systems do not reflect a need for a significant number of gateway stations. Therefore, the gateway earth station definition adopted here should be sufficient to prevent ubiquitous deployment of NGSO FSS earth stations in those bands. Nevertheless, as the NGSO FSS service grows to meet increasing capacity demands, any NGSO FSS network architecture changes resulting in a significant increase in the number of gateway stations can be addressed at that time. Finally, we clarify that this gateway definition applies only to NGSO FSS earth stations and not to GSO FSS operations in these bands. Although GSO FSS systems may operate gateway or hub earth stations that have some of the same characteristics as NGSO FSS gateway earth stations, GSO FSS earth stations operating in these bands are subject to separate requirements.

5. We note that the International Telecommunications Union “ Radiocommunication Sector (“ITU-R”) studied the necessary criteria and power flux density (“PFD”) limits to allow NGSO FSS satellite downlinks to share spectrum with terrestrial fixed service (“FS”) operations. In particular, Working Party 4-9S reached agreement on a set of PFD limits in April 1999 that are adequate for the protection of the FS in the 10.7-12.75 GHz band from the aggregate of interference from GSO FSS systems and multiple NGSO FSS systems. The ITU-R studies considered various sharing issues between FS operations and NGSO FSS operations, including typical FS operation margins with automatic transmit power control (ATPC), the aggregate effect of multiple NGSO satellites, and other factors leading to interference concerns. The PFD limits agreed upon within the ITU-R for the 10.7-11.7 GHz band have been affirmed by 2000 World Radio Conference (“WRC-2000”).

6. These PFD limits were derived based on the operating characteristics of a majority of the FS links in the 10.7-12.75 GHz band. Based on the findings of the ITU-R, the decision taken at WRC-2000, and the record in this proceeding, we find that these PFD limits are adequate to protect the vast majority of terrestrial FS operations in the 10.7-11.7 GHz band from NGSO FSS satellite transmissions. Therefore, we adopt the ITU-R recommended PFD limits for NGSO FSS systems operating in the 10.7-11.7 GHz band. (See paragraph 38 of First R&O.) Additionally, we note that these PFD values are the same as those governing GSO operations in this band, except the NGSO PFD limits must be met in a 1 megahertz rather than a 4 kilohertz reference bandwidth. We are also modifying the GSO PFD limits to protect terrestrial services in § 25.208(b) of the Commission's Rules to a 1 megahertz reference bandwidth.

7. We conclude that the PFD limits adopted here do not need to be tightened to address mainbeam-to-mainbeam interference situations. Tighter PFD limits might overly constrain the NGSO FSS operations. Instead, any protection needed for the small number of FS links that might suffer from mainbeam interference can be accomplished on a case-by-case basis. For example, depending on the specific circumstances, several techniques may be used to mitigate mainbeam interference situations: (1) the FS link could be modified so that the operating margins or antennas can overcome any satellite interference; (2) NGSO FSS satellites could avoid transmitting mainbeam signals in the direction of the incumbent FS links pointed at their orbital path; (3) FS operations may be moved slightly to avoid mainbeam interference alignment; and (4) the FS link could be adjusted so that the ATPC level allows sufficient margin to overcome satellite interference.

8. In frequency bands with co-primary services, new entrants in a band must coordinate their operations with incumbent operations in order to minimize the possibility of harmful interference between the sharing services. Therefore, new NGSO FSS applicants that operate in bands used by the FS must ensure that their operations will not result in harmful interference to incumbent operations. In most cases, the PFD limits we are adopting should ensure this result. Because NGSO FSS systems will have different operational characteristics (e.g., different minimum angles of operation), each NGSO FSS licensee will have to determine whether incumbent FS operations with elevation angles more than 5 degrees above the horizon will be affected and will be responsible for avoiding interference to incumbents, including possible mainbeam to mainbeam alignments. Likewise, if FS links are to be licensed after commencement of NGSO FSS operations, the FS applicant will be responsible for designing the link to be compatible with satellite operations, including possible mainbeam to mainbeam alignments. We are particularly concerned with incumbent FS operations that are used for public and other types of safety services. For these types of services, even rare interference occurrences could create an unacceptable public or safety hazard; thus, these operations should be protected from harmful interference.

9. We conclude that coordination is important for sharing between NGSO gateway stations and terrestrial operations, and that both NGSO FSS and terrestrial interests will rely equally on coordination to protect their operations. The coordination procedures for FSS and terrestrial FS operations are specified in Parts 25 and 101 of our rules, respectively. These procedures outline the steps that an applicant must take in the coordination process, and are explained in more detail below. After reviewing the record and current coordination rules, we conclude that the current procedures, with some modification, shall be used to coordinate NGSO FSS and FS operations.

10. The coordination procedures for terrestrial FS operations with satellite operations are set forth in §§ 101.21(f) and 101.103 of the Commission's Rules. Generally, § 101.103 requires entities to complete coordination prior to filing an application for authorization. The applicant must, through appropriate analysis, select operating characteristics to avoid interference in excess of permissible levels to other spectrum users. Section 101.103 also outlines the notification and response elements of the coordination process, where applicants provide relevant information on their proposed operation to other potentially affected entities. Section 101.21(f) further outlines the coordination process for FS links sharing spectrum with satellite services. The FS applicant must first determine if its proposed link would lie within the coordination contour of existing satellite service earth stations. The applicant must also ensure that its proposed operations would not exceed the permissible level of interference allowed by our rules. We find that the information specified and the process outlined in Part 101 of our rules are adequate for coordination between FS operations and satellite operations and do not need modification.

11. We are revising some of the Part 25 coordination rules for satellite operations to accommodate new NGSO FSS systems. The Commission found that because the international coordination procedures contained in Appendix S7 of the ITU Radio Regulations (“RR”) changed frequently, it would simply reference Appendix S7 in our rules. Therefore, we amend § 25.203 to reflect that information regarding calculation of coordination information can be found in Appendix S7 of the ITU RR and to reflect the relevant NGSO gateway station coordination information that must be provided to terrestrial users.

12. Appendix S7 has been modified at WRC-2000 to account for coordination between NGSO FSS operations and FS operations. The ITU has developed modified procedures Recommendation ITU-R IS.849 (“IS.849”) to the ITU method of calculating coordination contours to account for the characteristics of NGSO versus GSO systems. If FS entities believe that changes to Appendix S7 are not sufficient to address the coordination situation in the United States, they can request that we revisit the coordination procedures for this band. Therefore, other than amending Part 25 to consider NGSO FSS sharing with FS systems, we will make no other changes in our coordination process for operations in the 10.7-11.7 GHz portion at this time.

13. Regarding the use of radio frequency (“RF”) shielding, we find that RF and terrain shielding will be useful tools in the coordination and deployment of NGSO FSS gateway stations. However, we find that mandatory shielding requirements would be unnecessarily burdensome on NGSO FSS operations. Further, although “virtual shielding” may encourage NGSO FSS entities to site their gateways to take advantage of natural terrain shielding, it would place the burden solely on the NGSO entity to provide for shielding in order to share with FS operations. Our coordination and service rules already require Commission applicants and licensees to deploy their operations in such a manner as to avoid harmful interference to other spectrum users, to cooperate fully and make reasonable efforts to resolve technical problems that may inhibit the most efficient use of the spectrum, and to avoid blocking the growth of systems as prior coordinated. Therefore, we encourage entities that wish to use the 10.7-11.7 GHz band to use various types of shielding to meet these requirements. In particular, because NGSO FSS gateway operations do not focus their signals in a single direction like FS operations, we encourage them to accept shielding by subsequent FS entrants if the FS entity agrees to pay for it, as suggested by SkyBridge.

14. We conclude that the record supports the adoption of some restrictions on NGSO FSS deployment in the 11 GHz and 13 GHz gateway bands in specified geographic areas in order to protect incumbent services use of the bands. Because any restrictions on gateway stations using downlink bands would apply as a practical matter to their corresponding uplink bands, any regulatory scheme to promote spectrum sharing between NGSO FSS gateway operations and incumbent operations needs to address the needs of incumbent operations in both the uplink and downlink bands. The record indicates that geographic protection zones will not only benefit FS operations in the 11 GHz band, including both incumbent operations and those that will relocate from other bands, but also Broadcast Auxiliary Service (“BAS”) and Cable Television Relay Service (“CARS”) operations in the 12.75-13.25 GHz band. TV stations in major metropolitan areas, for example, may need some form of protection in specified geographic areas to ensure that TV stations will be able to deploy new BAS operations to accommodate the transition to digital TV.

15. We agree with the majority of commenters that the growth zone concept, which focuses on coordination procedures to protect incumbent services within specified geographic areas, would provide a more efficient and flexible approach to band sharing than exclusion zones in most cases. We also concur with commenters that the implementation of the growth zone concept would appropriately be included in existing coordination procedures, which would not require direct Commission involvement. Nonetheless, we conclude that, based on the record here, the growth zone concept needs further analysis in order to address better the needs of all affected parties. We also must analyze whether, in order to provide equitable band sharing with mobile and temporary fixed BAS and CARS operations in the 13 GHz band, the growth zone concept has to include some exclusion areas for siting NGSO FSS gateway stations or whether other coordination methods may promote band sharing between these services. Thus, in a future separately docketed proceeding, we will evaluate methods for defining growth zones that serve all interested parties in the NGSO FSS gateway bands (10.7-11.7 GHz, 12.75-13.25 GHz, and 13.8-14.0 GHz bands).

16. We are adopting our proposals to remove the international requirement for NGSO FSS systems in the 10.7-11.7 GHz band and to permit such systems to use the entire band. These proposals were broadly supported, and the record demonstrates that the band can be shared by the NGSO FSS and FS. We also find persuasive the arguments of the FS community that expanded GSO FSS use of this band should not be permitted. We believe that FS growth could be significantly inhibited if we were to authorize domestic and international GSO FSS use of the entire band because of the large number of GSO earth stations that would likely be deployed. Further, we find that other bands that are available for FSS downlink use are adequate to ensure GSO FSS growth. Accordingly, we adopt our proposals and limit domestic and international FSS use of the entire 10.7-11.7 GHz band to NGSO FSS gateways. GSO FSS earth stations will continue to operate internationally in accordance with NG104.

17. After evaluating the extensive record in this proceeding, including the work of the ITU-R study groups and the results of the WRC-2000, we find that the compromise solutions reached in the international meetings provide the basis to allow NGSO FSS operations to share successfully with GSO FSS networks without causing unacceptable interference. The specific technical conclusions from these meetings, which are included in the record in this proceeding and have been incorporated into the Provisional Final Acts of WRC-2000, represent the most comprehensive and current studies on NGSO FSS and GSO FSS co-frequency operations to date. We conclude that these power limits, which include single-entry equivalent power flux density (“EPFD”)down limits and aggregate EPFDdown limits for NGSO FSS operations, adequately protect GSO FSS operations and we will require NGSO FSS systems to comply with each type of limit, as appropriate. In addition, we find that the single-entry and aggregate EPFD limits we are adopting also define the level of acceptable interference from a NGSO FSS system into a GSO FSS system under our rules.

18. Further, we note that WRC-2000 modified footnotes S5.441 and S5.484A to indicate that NGSO FSS applications are subject to standard ITU coordination under S9.12 with other NGSO FSS systems. These footnotes also state that NGSO FSS systems shall not claim protection from GSO systems operating in accordance with the ITU Radio Regulations and that NGSO FSS systems shall operate in such a way that any unacceptable interference that may occur during their operations shall be rapidly eliminated. We find that the modifications to footnotes S5.441 and S5.484A are consistent with our decisions in this document and, accordingly, adopt the WRC-2000 version of these footnotes in our Table of Frequency Allocations.

19. Single-entry limits define the EPFDdown limits that must be met by each NGSO FSS system resulting from emissions from all satellites in the system. There are 3 elements comprising the single-entry limits that must be met by each NGSO FSS system: (1) “validation” EPFDdown limits, as well as more stringent “validation” EPFDdown limits for specific size antennas located at high latitudes; (2) “operational” EPFDdown limits, which protect against synchronization loss (“sync loss”) in GSO FSS earth stations between 3 and 18 meters in diameter; and (3) “additional operational” EPFDdown limits, or “operational masks” for 3 meter and 10 meter GSO FSS earth stations. It is the combination of these single entry limits with the aggregate limits discussed below that provides adequate protection of GSO FSS networks from NGSO FSS interference.

20. The limits adopted by WRC-2000 were developed using the agreed upon criteria developed by the ITU-R. The JTG 4-9-11 (1) studied the characteristics of the GSO FSS systems to be protected, (2) defined protection criteria for GSO FSS systems, and (3) based on these parameters, determined the level of interference that could be accepted from NGSO FSS systems. We find, based upon the technical work adopted by the WRC-2000 and the record developed in this proceeding, that the international consensus single-entry EPFDdown limits for 0.6, 1.2, 3, and 10 meter GSO FSS receive earth station antennas are appropriate for adoption domestically. Specifically, we believe that NGSO FSS adherence to the three elements of the single entry limits (i.e., validation limits, operational limits, and additional operational limits), as well as the aggregate limits discussed below, will adequately protect GSO FSS networks. We adopt these limits as new rule §§ 25.208(g), 25.208(i), and 25.208(j) of the Commission's Rules.

21. The GSO FSS earth station antenna pattern is an important component in the assessment of interference from NGSO satellites into GSO FSS earth station receivers. The new GSO FSS reference pattern differs from the requirement currently specified in § 25.209 of the Commission's Rules. The Section 25.209 requirement was developed to facilitate GSO to GSO sharing where a constant level of interference is present. The new reference pattern, on the other hand, takes into account the transient nature of NGSO FSS interference by averaging the peaks and nulls of a GSO FSS earth station antenna, rather than conservatively specifying an envelope of the sidelobe peaks. Accordingly, we will incorporate the new GSO FSS reference antenna pattern in the rules for EPFDdown. This new pattern will be assumed whenever interference assessments between GSO FSS and NGSO FSS systems are performed. We do not see the need, however, to modify the antenna performance standards contained in § 25.209 of the Commission's Rules. This requirement remains applicable to sharing scenarios involving a constant level of interference (e.g., GSO to GSO sharing) and will continue to be the standard used for FSS earth station licensing.

22. We are adopting implementation procedures for single-entry validation limits and a separate set of procedures for operational and additional operational limits. We believe that the specific implementation measures discussed will ensure that NGSO FSS systems will indeed adhere to the applicable EPFD limits. In addition to ensuring protection of GSO FSS networks, the implementation framework will assist the Commission in its need to confirm to the ITU that the appropriate limits are being met. Further, it will enable the quick identification of any NGSO FSS operations in excess of the single-entry limits.

23. As the notifying Administration to the ITU for U.S.-licensed NGSO FSS systems, we need to be confident that the NGSO FSS system information we send to the Radiocommunications Bureau of the ITU (“ITU-BR”) is accurate and that the validation test used domestically is the same as that used by the ITU-BR and other Administrations. These assurances will provide consistency in the output of the validation test and enable these results to be reproduced by all affected Administrations. Therefore, we will require each NGSO FSS applicant to demonstrate prior to licensing that it meets the EPFDdown validation limits. Further, we agree with commenters that the software used for the validation test should be developed in accordance with the ITU software specification contained in ITU-R Recommendation BO.1503.

24. Specifically, each NGSO FSS applicant shall provide the following information, detailed in § 25.146(a)(1) of the Commission's Rules, to the Commission: (1) output of the validation test consisting of cumulative density function curves of EPFDdown as a function of percentage of time not to be exceeded; (2) comparison of output/results to “validation” EPFDdown limits; (3) PFD mask used as input parameter in simulation; (4) identification and description of assumptions and conditions used in generating the PFD mask; (5) other NGSO FSS system input parameters required for the execution of the software, and (6) actual software used by the NGSO FSS operator in implementing the ITU-R Recommendation BO.1503 software specification, including the source code and the compiled executable program. The Commission will verify this information. Once we are satisfied that the NGSO FSS applicant has demonstrated its ability to comply with the validation EPFDdown limits, we will submit the required information to the ITU-BR. As noted above, the ITU-BR will then use this information to make its own determination of compliance with the validation limits.

25. We will require each NGSO FSS licensee to demonstrate that it meets the operational and additional operational limits prior to the NGSO FSS system being placed into service. Indeed, much of the critical protection to GSO FSS networks comes from the operational and additional operational limits that will not be subject to ITU verification. We find this demonstration is necessary prior to the NGSO FSS becoming operational because it: (1) provides the FCC assurance that the NGSO FSS system will be built in accordance with FCC rules; (2) provides incumbent operators assurance that they will not receive unacceptable interference; (3) in the case of the additional operational limits, enables the Commission to make the required commitment to the ITU-BR; and (4) reduces the likelihood that the Commission would need to apply remedial measures to bring an operational system into compliance. Moreover, we believe a comprehensive demonstration of compliance with both the operational and additional operational limits is warranted due to the infancy of NGSO FSS systems. Once the Commission and industry gain experience through actual operation of these new systems, the Commission may choose to revisit the requirement for such a detailed demonstration prior to an NGSO FSS system becoming operational. Authority to operate the space station segment will be conditioned on the NGSO FSS licensee submitting to the Commission 90 days prior to the initiation of service, a demonstration that its system is expected to meet the operational and additional operational limits, see § 25.146(b) of the Commission's rules.

26. We find that there is no need for the Commission to develop additional procedures or remedies in cases where NGSO FSS systems exceed the operational and additional operational EPFDdown limits that we are adopting. NGSO FSS operations that exceed these limits will be in violation of §§ 25.208(i) and 25.208(j) of the Commission's Rules, as well as in violation of its Commission authorization. Therefore, the NGSO FSS licensee will already be subject to appropriate sanctions by the Commission.

27. We do believe, however, that in the event that a NGSO FSS satellite exceeds the operational or additional operational EPFDdown limits, it is important that GSO FSS operators have the information necessary to locate satellites in each NGSO FSS constellation at any given time. Such information will allow the GSO FSS operator to correlate any alleged interference with a specific satellite in an NGSO FSS system. This information, or ephemeris data, is already used by NGSO FSS customers to establish the communications link between the user terminal and the NGSO satellite as it moves across the horizon, and so it should not be an additional burden on NGSO FSS system operators. Therefore, we will require that NGSO FSS licensees publish their satellites' orbital elements in the North American Aerospace Defense Command (NORAD) 2-line element format on an Internet web site maintained by the NGSO FSS licensee. The 2-line element format for many existing satellites is already being generated by NORAD and distributed by NASA via the NASA Prediction Bulletin. Moreover, the 2-line element set can be used together with NORAD's Simplified General Perturbation-4 (SGP4) orbital model, or similar programs, to determine the position and velocity of the associated satellite. We recognize that the NGSO FSS constellation is constantly moving, and so we will require that the NORAD 2-line element data be updated every three days so that the most accurate information is published. These procedures are outlined in new § 25.271(e) of the Commission's Rules.

28. We find that the cumulative level of interference from all co-frequency NGSO FSS systems, (i.e. the aggregate level), is what must be limited. Therefore, we adopt aggregate validation EPFDdown limits in addition to the single-entry EPFDdown limits. These limits are contained in § 25.208(h). In fact, the single-entry EPFDdown validation limits contained in § 25.208(h) were derived from these aggregate validation EPFDdown limits using the methodology contained in ITU-R Recommendations and assuming a conversion factor of 3.5. We find use of the 3.5 conversion factor is appropriate because it takes into account the way in which interference from multiple systems aggregates into a GSO FSS earth station antenna, recognizing that the interference is not strictly additive in a linear or power sense. The ITU-R agreed that “[a] value of 3.5 for Neffective was to be used to determine the final values of single-entry EPFDdown versus percentage of time to be applied in bands currently covered under Resolution 130 (WRC-97). This value is to be used solely for the purpose of deriving single-entry EPFDdown masks from aggregate EPFDdown masks and is not a representation of the actual number of non-GSO FSS systems that can share a given frequency band.”

29. Although we agree on the importance of requiring NGSO FSS systems to meet aggregate limits, we see many practical difficulties in actually verifying compliance with aggregate limits of any kind. We will not require a demonstration of NGSO FSS compliance with the aggregate limits at this time. Rather, we will require each NGSO FSS licensee to certify to us that it will meet the limits set out in § 25.208(h). We note that this issue is the subject of further study within the ITU-R. In the future, as these studies progress, we may require each NGSO FSS applicant to demonstrate its ability to meet the aggregate EPFDdown limits contained in § 25.208(h) of the Commission's Rules. We, therefore, place NGSO FSS applicants on notice that the requirement for such a demonstration will be addressed, as necessary in the NGSO FSS to NGSO FSS rule making or in the NGSO FSS authorization itself.

30. We recognize that the ITU-R studies in this area are the most extensive to date and find the agreements to be appropriate for adoption domestically as well. Accordingly, coordination will be required between specific GSO FSS earth stations and NGSO FSS systems meeting the conditions specified in § 25.146(f).

31. While we are not adopting coordination procedures for antennas between 10 and 18 meters, as originally proposed in the NPRM, we did adopt operational EPFDdown limits which would provide protection to these GSO FSS earth stations. Information from the Commission's earth station database reveals that the number of earth station antennas greater than 10 meters in diameter is very small—approximately 20 corresponding to 0.5% of the earth stations licensed by the Commission in the 11.7-12.2 GHz band. Further, almost all of the GSO FSS earth station antennas larger than 10 meters in diameter have been in operation for many years, utilize older technology, and are likely to be phased out over time. This is because advances in satellite earth station technology have given way to today's use of smaller, less costly earth station antennas. We believe it would be detrimental to the nascent NGSO FSS service to adopt EPFDdown masks or require coordination to protect the limited number of earth stations that are between 10 and 18 meters in diameter. As recognized by the GSO FSS entities, in the unlikely event of NGSO FSS interference into this limited number of earth stations, GSO FSS operators would have the opportunity to mitigate against any interference.

32. The ITU-R concluded that no additional protection is needed for earth stations operating with GSO FSS satellites inclined up to 2.5 degrees. Operations with GSO FSS satellites inclined greater than 2.5 degrees and less than or equal to 4.5 degrees would, however, receive additional protection through the operational limits. We believe this is the appropriate approach for adoption domestically and have incorporated these operational EPFDdown limits into our Rules. Protection of operations for GSO FSS satellites inclined greater than 4.5 degrees is more difficult because inclined operations basically extend the north-south extension of the geostationary satellite orbit. However, the number of U.S. licensed satellites that continue to provide service while at inclinations greater than 4.5 degrees is extremely limited, and § 25.280 of the Commission's Rules does not provide additional protection to GSO FSS satellites beyond that provided to GSO FSS satellites that are operating without inclination. Thus, we do not adopt specific protection requirements for GSO operations inclined beyond 4.5 degrees. However, we urge both NGSO and GSO operators to make good faith efforts to coordinate their respective operations.

33. Because of the critical nature of transfer orbit operations, we adopt the proposal in the Notice of Proposed Rule Making (NPRM), 64 FR 1786 January 12, 1999, to require consultation between GSO FSS and NGSO FSS licensees to minimize the impact of interference. The impact of NGSO FSS operation on GSO FSS transfer orbit operations will be infrequent and of a short time period, therefore, these events can be coordinated ahead of time in order to avoid unacceptable interference. With respect to emergency TT&C operations, there was agreement within the ITU-R that, during emergency operations in general, any GSO or NGSO FSS operator should be allowed to use any means necessary to regain communications with the satellite. We agree with this position because the measures required to reacquire communications and regain control of the GSO satellite cannot be predetermined. Although we do not adopt any specific measures for NGSO FSS systems to protect GSO FSS systems during emergency telemetry, tracking and command (“TT&C”) operations, we urge both GSO FSS and NGSO FSS operators to coordinate with each other if such a situation were to occur. The ITU-R, however, was not conclusive with respect to the protection of the operational phase TT&C. There has not been any demonstration that leads us to believe that the telemetry downlinks will not be protected by the EPFDdown limits we adopt today. We will not, therefore, adopt specific measures for NGSO FSS protection of GSO FSS telemetry downlink operations at this time. We will closely follow, however, the ongoing work within the ITU-R and consider its conclusions in the development of conditions, if necessary, to be placed on NGSO FSS licensees.

34. We will permit NGSO FSS gateway uplink stations to operate in the 12.75-13.25 GHz band on a co-primary basis with incumbent users, except that we will not allow NGSO FSS to operate at 13.15-13.2125 GHz. We also conclude that although we will permit NGSO FSS operations in this band, we will not remove the requirement that GSO FSS operations be limited to international systems. As we discussed regarding the 10.7-11.7 GHz band, we believe that the growth of incumbent services would be significantly inhibited if we were to authorize domestic and international GSO FSS use of the 12.75-13.25 GHz band, due to the large number of GSO FSS earth stations that would likely be deployed, and we note that other bands are available for GSO FSS growth.

35. Because BAS operations have primary allocation status in the 12.75-13.25 GHz band, such incumbent operations are entitled to interference protection from NGSO FSS gateway uplinks. Further, we find that it is important to allow BAS operations to maintain flexibility in establishing temporary links and operating mobile ENG operations. As discussed, some form of geographic protection area will be developed for locating NGSO FSS gateway earth stations that should prevent NGSO FSS gateways from hindering mobile and temporary fixed BAS use of this band. We conclude that fixed BAS and CARS operations can coordinate with NGSO FSS gateway stations, and new coordination procedures for use by these services must be developed.

36. Regarding protection of mobile BAS operations, we note that § 74.602 of our rules provides for the exclusive use of channels A19, A20, B19 and B20 in the 13.15-13.2125 GHz band by TV BAS and CARS pickup operations within 50 km of the top 100 television markets. In order to permit BAS and CARS entities to continue remote pickup operations throughout the U.S., we are extending exclusive use of the 13.15-13.2125 GHz band for BAS and CARS pickup operations to all 211 TV markets, thereby precluding NGSO FSS operations from this band segment. We find that this will not have a significant impact on NGSO FSS satellite operations because of the remaining amount of gateway uplink spectrum being made available. We take this action with the expectation that BAS mobile operations, especially those in TV markets where BAS is not extensively deployed, will concentrate their mobile use on the four channels in the 13.15-13.2125 GHz band, thereby leaving the remaining portion of the 12.75-13.25 GHz band spectrum available for NGSO FSS use.

37. We conclude that NGSO FSS gateway uplink stations can operate in the 12.75-13.15 GHz and 13.2125-13.25 GHz bands on a co-primary basis with FS operations, using coordination procedures. As an initial matter, we find that Part 74 and Part 78 terrestrial fixed operations should be able to coordinate with NGSO FSS gateway stations under the coordination procedures set forth in Part 101 and Part 25. As we discussed, NGSO FSS and fixed operations in the 10.7-11.7 GHz band will be able to coordinate their operations under the procedures in Part 101 for fixed operations and Part 25 for satellite operations. The NGSO FSS and fixed operations in the 12.75-13.25 GHz band are technically similar to operations in the 11 GHz band; thus, coordination with fixed links at 13 GHz under existing procedures also is possible. Part 74 BAS operations and Part 78 CARS operations have their own coordination procedures, but these procedures do not provide for sharing with NGSO FSS operations, and existing coordination procedures for FSS operations do not address coordination between satellite and mobile or BAS and CARS operations. For example, BAS is often licensed for the entire 12.7-13.25 GHz range, providing flexibility to coordinate temporary operations locally with other licensees in the band. While these procedures have worked with regard to fixed operations because unused individual channels can be identified and made available on an informally coordinated basis to the mobile BAS operation, we believe that this type of coordination flexibility for BAS could be difficult to achieve with NGSO FSS gateway uplink stations, which may use all available frequencies in an area. Therefore, we conclude that new coordination procedures need to be developed for sharing between NGSO FSS and BAS and CARS operations in the 12.75-13.25 GHz band. Accordingly, we are deferring to a later proceeding a decision on specific coordination procedures that will be used for BAS/CARS and NGSO FSS operations in this band. Further, we will not license any NGSO FSS earth station in the 12.75-13.15 GHz and 13.2125-13.25 GHz bands until appropriate coordination rules are adopted.

38. NGSO FSS systems will have to meet the same EPFDup limit at the geostationary satellite orbit, regardless of whether the NGSO FSS system transmission emanates from a gateway or user earth station facility. In order to protect uplinks to GSO FSS satellites, we adopt the single-entry validation EPFDup limits as adopted by WRC-2000, as new rule § 25.146(h). The definition of EPFDup includes information regarding the GSO satellite receive antenna directivity for the same reason that the GSO FSS receive earth station antenna pattern is included in the EPFDdown definition. Specifically, accounting for GSO FSS satellite antenna directivity limits the number of NGSO FSS earth stations contributing interference in the direction of the GSO satellite and provides a more realistic calculation of the interference level received. Further, the reference GSO FSS space station antenna patterns contained in ITU-R Recommendation S.672 were adopted for the calculation of EPFDup. As noted by Boeing, the JTG 4-9-11 reached a consensus agreement that the provisional EPFDup limit is appropriate, even in light of the change in definition. We also find that the EPFDup limits we are adopting will also protect GSO FSS satellites operating in inclined orbits. We also find that the same implementation procedures adopted for the validation EPFDdown limits described above in the section titled “Domestic Implementation of Single-Entry Validation EPFDdown Limits” are also appropriate for adoption for the EPFDup limits.

39. We find that NGSO FSS gateway stations should be able to share the 12.75-13.15 GHz and 13.2125-13.25 GHz bands with CARS eligibles, provided those operations use technical and operational techniques such as one-way, point-to-point, narrow beam antenna transmissions, as required under existing rules, that facilitate coordination. Some issues that might affect operations in the 12.75-13.15 GHz and 13.2125-13.25 GHz bands will be deferred to a future proceeding, such as possible geographic protection areas, some coordination issues, and other NGSO FSS gateway parameters. We also note that the Commission has not yet decided whether to expand CARS eligibility to include private cable operator (“PCO”) operations in the 12.75-13.25 GHz band; this decision will be made in CS Docket No. 99-250. Nonetheless, the sharing potential between NGSO FSS and CARS depends primarily on the technical and operation characteristics of the services, not licensee eligibility. Consequently, we see no need to defer our decision regarding NGSO FSS use of this band.

40. We adopt our proposal to allow NGSO FSS Gateway uplink operations in the 13.8-14.0 GHz band and find that the agreements at WRC-2000 justify permitting NGSO FSS Gateway uplink operations in the 13.75-13.80 GHz portion as well. Although the Department of Defense (“DoD”) and the National Telecommunications and Information Administration, Department of Commerce (“NTIA”) express some reservations, they are primarily concerned about interference that may be caused to FSS operations from the radiolocation service. Further, NTIA is concerned with WRC-2000 changes to footnote S5.502 would constrain radiolocation operations by limiting the effective isotropic radiated power (“e.i.r.p”). of a radiolocation station to 59 dBW in all directions, rather than just in the direction of the geostationary orbital arch, as previously required. While these concerns continue to be an issue that will be addressed at the 2003 World Radio Conference (“WRC-2003”), we see no reason to withhold this band from NGSO FSS use. FSS entities were aware of existing high powered radiolocation operations when they requested access to this spectrum. Therefore, we believe FSS systems can design their satellites to compensate for incumbent operations and find usable spectral capacity in this spectrum. At the same time, FSS entities will not be permitted to claim protection from radiolocation operations.

41. At this time, we are not implementing the specific WRC-2000 changes to footnote S5.502 in our Table of Frequency Allocations due to concerns of NTIA. However, some aspects of the new footnote are worth adopting, such as removing the minimum power requirement on FSS operations in the 13.75-14.0 GHz band. As stated, FSS licensees are aware of the interference environment in this band due to incumbent radiolocation operations and should be permitted to operate at lower powers if they can achieve communications. Therefore, we are adopting a new footnote US356 that is the same as the old footnote S5.502 regarding limits on radiolocation operations, but it removes the minimum power requirement for FSS operations. Further, to prevent confusion, we will delete S5.502 from our Table of Frequency Allocations.

42. Regarding specific concerns with tracking data and relay satellite system (“TDRSS”) operations in the 13.75-13.80 GHz portion and the WRC-2000 changes to footnote S5.503, we note that the 51 dBW/6 megahertz e.i.r.p. density limit was developed considering TDRSS operations and should be adequate. However, NTIA indicates that the National Aeronautic and Space Administration (“NASA”) has requirements for TDRSS protection across a 10 megahertz segment at 13.77-13.78 GHz to accommodate communications with the International Space Station. We find it is important to protect TDRSS operations in this band because they support missions that include manned flight. Therefore, we will extend the e.i.r.p. density limit across the 10 megahertz segment as requested by NTIA by adopting new footnote US357 for all FSS earth stations, which accomplishes the goals of S5.503 (WRC-2000), but protects TDRSS across the 13.77-13.78 GHz band. Accordingly, we remove footnote S5.503 from our Table of Frequency Allocations. We also modify § 25.204(f) of our Rules to reflect these new power requirements for FSS operations in the 13.75-14.0 GHz band. We believe this limit will protect NASA TDRSS operations from different types of NGSO FSS systems and not only the SkyBridge specific design. Nevertheless, we maintain the requirements of US337 that earth stations in the FSS coordinate on a case-by-case basis with NTIA's Frequency Advisory Subcommittee (“FAS”) in order to minimize interference to TDRSS operations. Any further interference concerns regarding NGSO FSS and TDRSS operations can be addressed further in the coordination process.

43. We find that the technical requirements adopted are adequate to permit spectrum sharing throughout the 13.75-14.0 GHz band. Further, any additional frequency sharing concerns can be addressed in the coordination process of FSS earth stations in the 13.75-14.0 GHz band with Federal Government operations through NTIA's FAS. FAS coordination will ensure that FSS earth stations do not interfere with receiving radiolocation stations, the TDRSS forward link-to-low earth orbit satellite (“LEO”), and the TDRSS receiving earth stations located at White Sands Complex, NM and Guam. We note that FSS earth stations that share spectrum with Federal Government operations are required to coordinate with the FAS to avoid interference problems to Federal Government receiving stations. Additionally, FSS entities will not be permitted to claim protection from radiolocation operations.

44. Finally, we adopt the same EPFDup limits for the 13.75-14.0 GHz band that we adopt for the 12.75-13.25 and 14-14.5 GHz bands, as contained in § 25.208(k) of the Commission's Rules. We find these limits are equally applicable to both bands because the sharing environments between NGSO FSS and GSO FSS systems are similar.

45. We find the EPFDup limits that we are adopting for the 12.75-13.15 GHz and 13.2125-13.25 GHz bands to permit sharing between GSO FSS uplinks and NGSO FSS gateway uplinks to be equally appropriate to permit such sharing in the 14.4-14.5 GHz band. We also find that permitting NGSO FSS gateway uplink use of the 14.4-14.5 GHz band will not adversely impact secondary uses of the band. Finally, we find persuasive SkyBridge's and Loral's contentions that also permitting NGSO FSS user terminal use of the band is desirable and will not create an unacceptable interference risk to incumbent users. Accordingly, we will permit NGSO FSS uplink use of the band by both gateways and user terminals.

46. In the Report and Order in IB Docket No. 98-172, we allocated the 17.3-17.7 GHz band to the Broadcast Satellite Service (“BSS” also referred to as Direct Broadcast Satellite, or “DBS”) on a primary basis, effective April 1, 2007. BSS, by definition, is in the downlink direction only. The corresponding feeder link frequencies for BSS are in FSS uplink allocations. The terms BSS and DBS have the same meaning, and can be used interchangeably. While the Region 2 BSS allocation covers the entire 17.3-17.8 GHz band, we did not allocate the 17.7-17.8 GHz sub-band to BSS operations because of spectrum incompatibilities with existing terrestrial fixed operations in that band. We agree with EchoStar and DIRECTV that sharing of the 17.3-17.7 GHz band by ubiquitous BSS downlinks and NGSO FSS uplinks would be difficult. The resulting limitation on the location of BSS receive earth stations would be overly restrictive on ubiquitous BSS receivers. We also find that sharing of the 17.3-17.7 GHz band between the radiolocation and NGSO FSS operations would be problematic. Further, NTIA requests that the Commission not authorize any NGSO FSS operations in the 17.3-17.7 GHz band. As we noted in the NPRM, the radiolocation service and GSO BSS feeder links are able to share this band only because radiolocation systems operate at powers of less than 51 dBW in the direction of the GSO arc. Satellites in other orbits could receive higher levels of interference, as radiolocation systems will be radiating indiscriminately in directions outside of the plane of the GSO arc in a manner that is not able to be predetermined or constrained in order to fulfill the functions of the radiolocation operation. Accordingly, we decline to allocate the 17.3-17.8 GHz band to the NGSO FSS.

47. As we noted in the NPRM, the sharing scenario in the 11.7-12.2 GHz band raises issues similar to those regarding NGSO FSS gateway downlinks in the 10.7-11.7 GHz band. For the reasons discussed above, we adopt the same EPFDdown limits for NGSO FSS service downlinks in the 11.7-12.2 GHz band that we are adopting for NGSO FSS gateway downlinks in the 10.7-11.7 GHz band. While NGSO FSS service downlink stations will be ubiquitously deployed and will have different antenna characteristics than the gateway downlink stations, the EPFDdown limits were developed to address both types of operations. We also conclude that since NGSO FSS gateway stations will be operating using the same EPFDdown limits as NGSO FSS user earth station, NGSO FSS gateway earth station may operate in this 11.7-12.2 GHz band. In addition, we adopt the same coordination procedures to protect GSO FSS networks using sensitive receiving earth stations with very large antennas.

48. We note that an extensive record has been filed concerning spectrum sharing in the 12.2-12.7 GHz band by NGSO FSS, BSS and MVDDS operations, and interested parties subsequently reached a compromise solution to NGSO FSS and BSS sharing issues at a November 1999 WRC-2000 Conference Preparatory Meeting (“CPM”) which was ultimately adopted at WRC-2000. We thus find that we have an adequate record to make decisions on future NGSO FSS, MVDDS and BSS operations in the 12.2-12.7 GHz band.

49. We are allocating the 12.2-12.7 GHz band to the fixed satellite service for use by non-geostationary orbit satellite downlink operations on a co-primary basis. This action will be implemented domestically through the adoption of footnote S5.487A into our Table of Frequency Allocations. This footnote allocation for NGSO FSS operations in the 12.2-12.7 GHz band was established at the 1997 World Radio Conference (“WRC-1997”) and modified at WRC-2000, and we find that it should facilitate the delivery of advanced services to the United States, as well as to other countries.

50. We also conclude that MVDDS can operate in the 12.2-12.7 GHz band under the existing FS allocation. Under this allocation, MVDDS operations would not be permitted to cause harmful interference to the BSS and would operate on a co-primary basis to NGSO FSS. We find that the public interest would be served by allowing MVDDS operations in this band. MVDDS could be used to deliver a wide array of video programming, including local television, and data services on either a competitive or sole source basis in both urban and rural areas. While MVDDS will only be permitted to use the 12.2-12.7 GHz band for transmissions to its subscribers, we find that full two-way services can be achieved using spectrum in other bands or existing wireline networks for the return link. Terrestrial MVDDS systems would intensively reuse available spectrum, allowing for efficient use of the band. Furthermore, it is feasible to avoid or correct harmful interference situations between MVDDS and direct broadcast satellite (“DBS”) or between MVDDS and NGSO FSS. As discussed, spectrum sharing will necessitate some restrictions on MVDDS antenna locations and transmitter power levels in order to avoid interference to DBS, and could require coordination with some NGSO FSS systems.

51. We find that the single-entry and aggregate EPFDdown limits we are adopting will not unduly hinder the growth of BSS, as proposed in the NPRM. As discussed in more detail below, the ITU-R considered future BSS systems and examples of advanced technology BSS links (e.g., 8PSK digital modulation and improved receiver temperature of 80 degrees Kelvin) to develop EPFDdown limits for NGSO FSS. In addition, future BSS systems will be able to take into account the NGSO FSS interference environment.

52. We find, based upon the technical work within the ITU, and the record developed in this proceeding, that the international consensus single-entry EPFDdown limits for 30 cm, 45 cm, 60 cm, 90 cm, 120 cm, 180 cm, 240 cm and 300 cm diameter BSS earth station antennas are appropriate for protection of GSO BSS systems in the United States. Specifically, the combination of the two elements comprising these limits (i.e., validation including latitude-dependent, and operational) adequately protect the U.S. BSS systems. We adopt these limits as a new rule § 25.208(i) of the Commission's Rules.

53. A 15-year transition period will be included in our rules and the operational limits will no longer apply to NGSO FSS operators fifteen years from the effective date of the rules in this First R&O.

54. We are adopting implementation procedures for single-entry validation and latitude-dependent validation limits, and a separate set of procedures for operational limits. In addition to ensuring protection of BSS, this will assist the Commission in its need to confirm to the ITU that the appropriate limits are being met. Many of the implementation procedures we discuss are similar to the procedures we adopt to protect GSO FSS networks from NGSO FSS.

55. As with the validation limits adopted to protect GSO FSS operations, in order to receive a favorable finding internationally, each NGSO FSS system must not exceed the specified validation EPFDdown limits when analyzed using the ITU-BR software. We believe that it is imperative that NGSO FSS compliance with the single entry validation EPFDdown limits be verified during the domestic licensing process. We will also require an NGSO FSS applicant to demonstrate prior to licensing that it meets the validation EPFDdown limits to protect GSO BSS operations, and we will require the NGSO FSS applicants to use the software developed in accordance with the ITU software specification contained in the ITU-R Recommendation BO.1503. This software has been thoroughly evaluated by the ITU-R, including by U.S. participants in the ITU-R groups. The specific information we will require from the NGSO FSS applicants is described in detail in the GSO FSS section and new rule § 25.146(a)(1).

56. We will also require an NGSO FSS applicant to demonstrate prior to becoming operational that it meets the operational EPFDdown limits to protect GSO BSS operations. In addition, unlike the requirements for the operational limits with the ITU, we will require NGSO FSS applicants to demonstrate that they will meet the operational limits to protect BSS receive earth stations everywhere in Alaska, or Hawaii as appropriate, all of the time. Therefore, any NGSO FSS applicant that is found qualified to hold a space station authorization will be issued a conditional authorization. Specifically, as discussed in the GSO FSS section, each NGSO FSS licensee issued a conditional authorization must submit, 90 days prior to operation, technical information demonstrating compliance with the operational limits in the United States NGSO FSS applicants are fully aware of our requirements well in advance of their actual construction and operation. If the demonstration shows that the limits are not met, we will require NGSO FSS systems to apply all mitigation techniques necessary, including any changes necessary to their system design, to comply with the operational limits. In addition, if an NGSO FSS system exceeds the operational limits, it will be in violation of its obligations under the ITU Radio Regulation No. S22.2, as well as Commission rules. The information that we will require NGSO FSS system licensees to submit is described in detail in the GSO FSS section and in new rule § 25.146(b)(2).

57. We concluded in the GSO FSS section on aggregate EPFD down limits, it is necessary to ensure that the maximum aggregate interference level necessary to protect GSO BSS is not exceeded. Therefore, we will include in our rules the international consensus aggregate EPFDdownlimits referred to in No. S22.5K and contained in Table [RES COM 5/6]-1D. For the same reasons discussed in the GSO FSS section on aggregate EPFDdownlimits, however, we will defer a decision on whether NGSO FSS applicants should demonstrate that that they can meet the aggregate EPFDdownlimits we adopt today, to the forthcoming rule making addressing NGSO to NGSO sharing, or to the licensing proceeding itself.

58. As noted in the NPRM, the issues that are specific to the protection of GSO FSS TT&C operations are also relevant for the protection of GSO BSS TT&C operations. Therefore, we adopt the same decisions that are discussed in the section above on GSO FSS TT&C operations for the GSO BSS TT&C operations.

59. As noted in the NPRM, DIRECTV is providing DBS to antennas mounted on aircraft. We stated our belief that this type of mobile operation is consistent with the allocation because the DBS definition in the Commission's Rules does not limit transmissions to fixed receive earth stations. Nevertheless, we requested comment on whether this type of BSS operation is consistent with the Commission's Rules and whether it is appropriate to protect this type of reception. If so, we also requested comment on what EPFD limits would be appropriate to protect aircraft mobile antennas.

60. No party internationally, or in the domestic proceeding, proposed any additional specific measures or rules to protect this type of DBS receive earth station application. Based on the text of the CPM Report, and the latest round of comments, it appears that this issue has been resolved by the EPFDdownlimits that we are adopting today. Therefore, we do not find it necessary to adopt any additional measures to protect DBS service to aircraft.

61. We conclude that MVDDS can operate in the 12.2-12.7 GHz band under the existing primary allocation, which requires that a Fixed Service not cause harmful interference to the co-primary BSS. Section 2.1 of our rules defines “harmful interference” as “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service. * * * ” In some instances, spectrum sharing may result in services causing interference or degradation to or occasional outages of other services. Spectrum management decisions often address this issue by specifying operating requirements to minimize to the greatest extent possible the level to which such impacts occur. In this proceeding, we find that we can develop operating requirements for MVDDS that will ensure that DBS operations are not seriously degraded or subject to repeated interruptions due to MVDDS operations, thus avoiding any harmful interference to DBS.

62. We will permit a terrestrial point-to-multipoint video and data distribution service, which we will refer to as the MVDDS, to operate under Part 101 of our Rules in the 12.2-12.7 GHz band. We find, however, that determining an appropriate increased unavailability criterion for MVDDS must take into account the inherent differences between MVDDS and NGSO FSS operations. Because an NGSO FSS system operator cannot readily tailor its operations to BSS/DBS systems in different geographic areas, WRC-2000 developed EPFD values that reflect NGSO FSS impact on BSS/DBS systems over the whole NGSO FSS service area (in this country, the entire continental United States). By contrast, an MVDDS system operator can tailor its operations to avoid causing harmful interference to BSS systems in different areas, as well as to individual DBS subscribers in the same area. We will also require each MVDDS operator to mitigate interference to DBS subscribers within an area around each MVDDS transmitter where unavailability to such subscribers would otherwise exceed acceptable levels because of MVDDS transmissions. We recognize that using a worst case unavailability criterion to any DBS subscriber may pose significant constraints on MVDDS deployment, but we conclude that we should minimize any potential decrease in availability to DBS customers located in close proximity to MVDDS transmitters. We find that such an approach is feasible because an MVDDS operator can customize its transmitter deployment.

63. Finally, we find that, similar to the protection criteria developed by WRC-2000 to permit NGSO FSS/BSS sharing, any DBS protection criteria that MVDDS systems must meet should be based on a standard model using available historical and operational data.

64. After reviewing the extensive filings in this proceeding, we conclude that NGSO FSS and MVDDS systems can be accommodated in the 12.2-12.7 GHz band if NGSO FSS systems limit their PFD toward MVDDS receivers and the two services avoid mainbeam to mainbeam interference. We acknowledge that this sharing arrangement will require careful planning and engineering, but the public will benefit from these efforts to introduce both of these new services. Further, we note that we are making available to NGSO FSS systems an additional 500 megahertz of service downlink spectrum at 11.7-12.2 GHz that will not be encumbered by MVDDS operations. We believe that current trends in spectrum usage require us to consider more complicated and creative sharing arrangements.

65. With respect to interference that may be caused by MVDDS transmitters to NGSO FSS earth stations, such interference could occur when an earth station that is in the vicinity of an MVDDS transmitter tracks the NGSO FSS satellite into view of the transmitter, or when energy from the MVDDS transmitter enters the side and back lobes of the earth station at a sufficient signal strength to cause harmful interference. Nevertheless, we are confident that MVDDS transmitters will not threaten the viability of NGSO FSS downlink operations. MVDDS operators will be deploying their transmitters so as to avoid harmful interference.

66. Accordingly, we conclude that MVDDS and NGSO FSS can share the 12.2-12.7 GHz band on a co-primary basis. This more intensive use of the band will allow a wide variety of new services to be delivered to the public. NGSO FSS operations will enable the delivery of broadband services to anywhere in the United States, including unserved and underserved areas. MVDDS operations will deliver competition to other video distribution and data services and offer localized service that may not be possible through other services. A future NGSO FSS licensing proceeding will explore the optimal way to assign spectrum in the 12.2-12.7 GHz band to facilitate spectrum sharing between NGSO FSS systems and MVDDS systems.

67. The 14.0-14.4 GHz band is allocated on a primary basis for FSS uplinks and is heavily used by very small aperture terminal (“VSAT”) operations. Additionally, we note that the 14.2-14.4 GHz band segment is allocated on a secondary basis to the mobile service, for such operations as television pickup links for part 101 licensees. Finally, we noted that the entire 14.0-14.4 GHz band is available for secondary land mobile satellite uplink operations.

68. The NGSO FSS uplink user terminal sharing scenario in the 14.0-14.4 GHz band raises issues that are similar to those regarding NGSO FSS gateway uplinks in the 12.75-13.25 and 14.4-14.5 GHz bands. For the same reasons stated in the NGSO FSS gateway uplink section, we adopt the EPFDup limits contained in § 25.208(k) of our rules to protect GSO FSS satellites from NGSO FSS user terminal uplink operations in the 14.0-14.4 GHz band. We also conclude that NGSO FSS gateway earth stations may also operate in the 14.0-14.4 GHz band, since NGSO FSS gateway uplinks are also subject to the same EPFDup limits as NGSO FSS user terminal uplinks.

69. Consistent with our proposal in the NPRM, we will not adopt a specific rule that requires NGSO FSS systems to employ GSO arc avoidance. NGSO FSS operators may use various techniques, including GSO arc avoidance, to meet the EPFDup and EPFDdown limits we adopt today. Considering that the amount of arc avoidance needed to meet the EPFDup and EPFDdown limits is entirely dependent on the NGSO system design, we find that imposing an additional GSO arc avoidance requirement would be an unnecessary constraint on the design of NGSO FSS systems.

70. We believe that limiting the signal energy radiated by GSO FSS earth stations could be beneficial to NGSO FSS systems by placing an upper bound on the level of uplink interference that must be tolerated. However, adopting the off-axis e.i.r.p. limits proposed in the NPRM for within ± 3 degrees of the GSO would, in effect, allow GSO FSS earth stations to transmit at a higher level into adjacent GSO FSS satellites than is currently permitted under our rules and would be disruptive to the vast number of GSO FSS satellites and earth stations in operation. The same holds true for the off-axis e.i.r.p. density limits that were adopted by WRC-2000. We conclude that the Commission's existing part 25 rules are more restrictive on GSO FSS earth stations than both the limits proposed in the NPRM and the limits adopted at WRC-2000. Further, the Commission's Rules limit the signal energy radiated in all off-axis pointing directions, not just within ±3° of the GSO orbit, thus alleviating SkyBridge's and Boeing's concerns. We will continue to require compliance with existing Part 25 rules for off-axis e.i.r.p. limits and not adopt the proposed rule change. In regard to SkyBridge's and GE's suggestion that limits also be placed on NGSO FSS earth station off-axis e.i.r.p. density, we believe it is more appropriate to address this issue in a forthcoming Further Notice of Proposed Rule Making, which also addresses sharing among multiple NGSO FSS systems.

71. As we stated in the NPRM, we believe that the use of higher performance earth station antennas will maximize sharing between NGSO FSS and GSO FSS systems and use of the spectrum. However, we recognize that there are physical limitations on the amount of sidelobe suppression achievable in small earth station antennas, both GSO and NGSO. We are confident that the EPFDup limits we adopt today ensure protection of GSO FSS satellites from NGSO FSS earth station transmissions. Further, we are confident that the Further Notice of Proposed Rule Making (Further NPRM), 66 FR 7607, January 24, 2001, will result in an adequate sharing scenario between NGSO FSS user terminals and MVDDS operations. Therefore, while specifying an NGSO FSS user terminal antenna pattern is not needed for sharing with GSO FSS or with the MVDDS, it may be a factor to consider in sharing with other NGSO FSS systems. We do not see the need at this time to specify an NGSO FSS customer premise earth station reference antenna pattern and defer the issue for consideration, as necessary, in a separate Notice of Proposed Rule Making addressing sharing issues among NGSO FSS systems.

72. We believe that the use of higher performance earth station antennas will maximize inter-system sharing and efficient use of the spectrum. In addition, a higher performance antenna reference pattern will facilitate sharing with other services. For example, tighter patterns will reduce separation distances between gateway earth stations and terrestrial stations for certain azimuths around the gateway station. Earth station technology for this size antenna is advanced to the stage where it can meet this requirement. Accordingly, we will require NGSO FSS gateway earth station antennas to meet the reference pattern of 29−25 log(θ) for all directions. We have, however, reconsidered our proposal to not allow 10% of the NGSO FSS earth station sidelobe peaks to exceed the envelope. The design considerations for both GSO and NGSO FSS earth stations are similar and we will allow the same percentage of peak sidelobe exceedance.

73. We emphasize that all FCC-regulated transmitters, including the subscriber terminals used in FSS systems, are required to meet the applicable Commission guidelines regarding radiofrequency exposure limits. It is therefore incumbent upon NGSO FSS licensees to exercise reasonable care to protect users and the public from radiofrequency exposure in excess of the Commission's limits.

74. As part of the NGSO FSS licensee's obligation to exercise such reasonable care, we conclude that it must ensure that subscriber antennas are labeled to give notice of the potential radiofrequency safety hazards from these antennas. We have previously adopted labeling requirements for LMDS, MDS, ITFS, and 24 GHz service antennas, which, like NGSO FSS's antennas, can be placed at a subscriber's premises. We see no reason to make a different determination with respect to labeling for NGSO FSS's subscriber antennas than we made for these other subscriber antennas. In addition, we have recently made labeling a condition for invoking protection from restrictions that impair the installation, maintenance, or use of customer-end antennas that are used to transmit fixed wireless service, where the antenna user has a direct or indirect ownership or leasehold interest in the property. Accordingly, we are amending Table 1 in § 1.1307(b) of the Commission's rules to provide for labeling requirements for NGSO subscriber equipment.

75. Labeling information should include minimum separation distances required between users and radiating antennas to meet the Commission's radiofrequency exposure guidelines. Labels should also include reference to the Commission's applicable radiofrequency exposure guidelines. In addition, the instruction manuals and other information accompanying subscriber transceivers should include a full explanation of the labels, as well as a reference to the applicable Commission radiofrequency exposure guidelines. While we will require licensees to attach labels and provide users with notice of potentially harmful exposure to radiofrequency electromagnetic fields, we will not mandate the specific language to be used. However, we will require use of the ANSI-specified warning symbol for radiofrequency exposure.

76. In the NPRM, we proposed that the aggregate power flux density from all NGSO satellites in a constellation would have to be below −255 dBW/m2/Hz to protect Radio Astronomy Service (“RAS”) receivers in the 10.6-10.7 GHz band from harmful interference.

77. Article S29 of the ITU Radio Regulations outlines general provisions for the protection of the RAS. Specifically, Article S29 acknowledges the sensitivity of RAS operations and encourages administrations to cooperate in protecting RAS operations from interference. Article S29 also identifies various techniques that administrations may use to protect RAS, such as geographic separation, frequency separation, time sharing and power limitations. Article S29 refers to ITU-R RA.769-1, which establishes protection criteria for various radio astronomy frequency bands. ITU-R RA.769-1 also recognizes that interference to radio astronomy operations from geostationary satellites is a special interference case because the signal energy could easily be observed by the RAS receiving antenna. We find that non-geostationary satellite downlink operations also pose a significant interference risk to radio astronomy operations unless parties make an active effort to avoid interference. The interference limits set forth in ITU-R RA.769-1 provide reasonable protection against interference to RAS operations from various operations. We note that the ITU is studying a Draft New Recommendation that would specify, for interference evaluation, a separate criterion for data loss to the RAS due to interference from any one NGSO FSS network, in any frequency band which is allocated to the Radio Astronomy Service on a primary basis. Because the Draft New Recommendation regarding NGSO FSS/RAS sharing is still under consideration, we decline to adopt specific protection limits in our rules. Rather, we will require NGSO FSS applicants to coordinate and reach a mutually acceptable agreement with the RAS facilities that use the 10.6-10.7 GHz band to ensure that these facilities are adequately protected from interference. We find that requiring coordination between NGSO FSS and RAS operations presents both parties with the most flexibility to reach agreement on the protection of RAS.

78. As required by the Regulatory Flexibility Act (RFA)1 an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the Notice of Proposed Rule Making (“NPRM”) in ET Docket No. 98-206.2 The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA.3 In addition to the issues discussed below, the IRFA addressed Northpoint Technology Ltd.'s proposal to allow terrestrial operations to use the 12.2-12.7 GHz band for the provision of MVPD services and data services.

79. In this First Report and Order, we permit NGSO FSS operations in certain segments of the 10.7-14.5 GHz frequency band range, and adopt rules and policies to govern such operations. More specifically, we amend Parts 2 and 25 of our rules to permit NGSO FSS space-to-earth links (“downlinks”) to operate in the 10.7-12.7 GHz band and for NGSO earth-to-space links (“uplinks”) to operate in the 12.75-13.15 GHz, 13.2125-13.25 GHz and 13.8-14.5 GHz bands. These downlink bands are generally used by geostationary-satellite orbit (“GSO”) FSS and fixed services. The uplink bands are used by GSO FSS operations, fixed services, mobile services, and Government operations. We also permit a new terrestrial Multichannel Video Distribution and Data Service (MVDDS) to operate in the 12.2-12.7 GHz band, but defer services and technical rules for the MVDDS to our companion Further Notice of Proposed Rule Making.

80. These new satellite and terrestrial operations can increase competition and provide new advanced services to the public. Specifically, NGSO FSS systems can provide new high-speed data services and offer additional competition to other satellite services, and terrestrial wireless and wireline services. The MVDDS can provide local television and data services and provide additional competition to both cable and Direct Broadcast Satellite (DBS) systems. There is, however, extensive use of the requested frequency bands in the United States and these incumbent operations provide important and valuable services to the public that we must protect. By this action, we provide for the introduction of new advanced services to the public, while permitting incumbent services to operate without harmful interference.

81. No comments were submitted in response to the IRFA.

82. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 4 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.5 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 established by the Small Business Administration (“SBA”).6 A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” 7

83. Regarding incumbent cable television operations in the 12.75-13.25 GHz band, the SBA has developed a definition of small entities for cable and other pay television services, which includes all such companies generating $11 million or less in revenue annually. This definition includes cable systems operators, closed circuit television services, DBS services, multipoint distribution systems, satellite master antenna systems and subscription television services. According to the Census Bureau, there were 1,788 total cable and other pay television services and 1,423 had less than $11 million in revenue.

84. The Communications Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 617,000 subscribers or less totals 1,450. We did not request nor did we collect information concerning whether cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, and thus are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

85. Regarding incumbent GSO FSS satellite use and the proposed NGSO FSS use in these requested bands, the Commission has not developed a definition of small entities applicable to geostationary or non-geostationary orbit fixed-satellite service applicants or licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to Communications Services, Not Elsewhere Classified. This definition provides that a small entity is one with $11.0 million or less in annual receipts.8 According to Census Bureau data, there are 848 firms that fall under the category of Communications Services, Not Elsewhere Classified, which could potentially fall into the geostationary or non-geostationary orbit fixed-satellite service category. Of those, approximately 775 reported annual receipts of $11 million or less and qualify as small entities.9 Generally, these NGSO and GSO FSS systems cost several millions of dollars to construct and operate. Therefore the NGSO and GSO FSS companies, or their parent companies, rarely qualify under this definition as a small entity.

86. Regarding Auxiliary, Special Broadcast and other program distribution services in the Ku-band. This service involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news-gathering unit back to the station). The Commission has not developed a definition of small entities applicable to Broadcast Auxiliary Station (BAS) licensees. Therefore, the applicable definition of small entity is the definition under the Small Business Administration (SBA) rules applicable to radio broadcasting stations (SIC 4832) and television broadcasting stations (SIC 4833). These definitions provide, respectively, that a small entity is one with either $5.0 million or less in annual receipts or $10.5 million in annual receipts. 13 CFR 121.201, SIC Codes 4832 and 4833. There are currently 3,237 FM translators and boosters, and 2,964 TV translators. The FCC does not collect financial information on any broadcast facility and the Department of Commerce does not collect financial information on these auxiliary broadcast facilities. We believe, however, that most, if not all, of these auxiliary facilities could be classified as small businesses by themselves. We also recognize that most translators and boosters are owned by a parent station which, in some cases, would be covered by the revenue definition of small business entity discussed above. These stations would likely have annual revenues that exceed the SBA maximum to be designated as a small business (as noted, either $5 million for a radio station or $10.5 million for a TV station). Furthermore, they do not meet the Small Business Act's definition of a “small business concern” because they are not independently owned and operated.

87. Incumbent microwave services in the 10.7-11.7 GHz and 12.75-13.25 GHz bands include common carrier, private operational fixed, and BAS services. At present, there are 22,015 common carrier licensees, approximately 61,670 private operational fixed licensees and broadcast auxiliary radio licensees in the microwave services. Inasmuch as the Commission has not yet defined a small business with respect to microwave services, we will utilize the SBA's definition applicable to radiotelephone companies; i.e., an entity with no more than 1,500 persons. 13 CFR 121.201, SIC Code 4812. We estimate, for this purpose, that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition for radiotelephone companies.

88. We will apply the Part 25 rules governing reporting requirements for NGSO FSS systems. Specifically, licensees are required to file an annual report with the Commission describing: the status of satellite construction and anticipated launch dates, including any major delays or problems encountered; a listing of any unscheduled satellite outages for more than 30 minutes including the cause(s) of any such outages; and a detailed description of the utilization made of each satellite on each of the in-orbit satellites.

89. The Commission adopts technical rules to facilitate spectrum sharing between new NGSO FSS systems in the Ku band and existing services in this spectrum. These technical rules are intended to allow new entrants into the spectrum without causing unacceptable interference to existing and future operations of incumbent services. We acknowledge that as the radio spectrum is increasingly used, it becomes more difficult to accommodate all requests for access to the radio spectrum, however, this action applies existing frequency coordination procedures to NGSO FSS systems sharing spectrum with fixed services. Frequency coordination should ensure that new operations of either service will protect existing operations and have access to spectrum if it is technically possible.

90. The Commission also considered a proposal from the Fixed Service (FS) community to set aside some portion of the spectrum in the 10.7-11.7 GHz band for future FS deployment. The Commission declined this set aside because NGSO FSS and fixed systems should be able to coordinate operations and such an action would not lead to the most effective use of the spectrum. Additionally, in its comments and in a Petition for Rule Making, the fixed community requested that we change some aspects of the coordination and licensing procedures of FSS operations that share spectrum with fixed services. Because the issues raised by the fixed community address several spectrum bands which are not under consideration in this proceeding, we deferred on these issues to another proceeding that will address all these issues before NGSO FSS systems are licensed for this band.

91. Regarding sharing between NGSO FSS systems and broadcast auxiliary (“BAS”) operations, the Report and Order states that it will adopt some form of geographic protection areas for terrestrial operations in those bands used by NGSO FSS gateway stations. These protection areas will be defined in a future proceeding, but are intended to facilitate the growth of terrestrial operations, while not unnecessarily hindering the deployment of NGSO FSS systems. Further, to ensure BAS operations in all areas can continue to operate unencumbered by new NGSO FSS systems, the Report and Order set aside 4 BAS channels for exclusive use in all areas to ensure continued operations.

92. Report to Congress: The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of the Report and Order including FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a synopsis of the Commission's Report and Order in MM Docket No. 00-222; MM Docket No. 00-223; MM Docket No. 00-224; and MM Docket No. 00-225; adopted January 24, 2001, and released February 2, 2001. The full text of this Commission decision 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. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Service, Inc., (202) 857-3800, 1231 20th Street, NW., Washington, DC 20036.

The Commission, at the request of Iowa-Keokuk Radio (Russell Johnson, sole proprietor) allots Channel 246A at North English, Iowa, as the community's first local aural transmission service. See 65 FR 69724 (November 20, 2000). Channel 246A can be allotted at North English in compliance with the Commission's minimum distance separation requirements with a site restriction of 7.7 kilometers (4.8 miles) southwest in order to protect the signal of Station WMT-FM, Cedar Rapids, Iowa, on Channel 243C1. The coordinates for Channel 246A at North English are 41-27-15 North Latitude and 92-07-21 West Longitude.

The Commission, at the request of H. David Hedrick, allots Channel 240A at Pendleton, South Carolina, as the community's first local aural transmission service. See 65 FR 69724 (November 20, 2000). Channel 240A can be allotted to Pendleton in compliance with the Commission's minimum distance separation requirements at city reference coordinates. The coordinates for Channel 240A at Pendleton are 34-38-49 North Latitude and 82-46-37 West Longitude.

The Commission, at the request of Stargazer Broadcasting, Inc., allots Channel 299A at Hamilton, Texas, as the community's second local aural transmission service and first local FM broadcast service. See 65 FR 69724 (November 20, 2000). Channel 299A can be allotted at Hamilton in compliance with the Commission's minimum distance separation requirements with a site restriction of 11.4 kilometers (7.1 miles ) northwest, in order to protect the signal of Station KAHK(FM), Georgetown, Texas, on Channel 299C3. The coordinates for Channel 299A at Hamilton are 31-46-54 North Latitude and 98-12-08 West Longitude.

The Commission, at the request of MAREE Communications, allots Channel 270C1 at Munday, Texas, as the community's first local aural transmission service. See 65 FR 69724 (November 20, 2000). Channel 270C1 can be allotted at Munday in compliance with the Commission's minimum distance separation requirements with a site restriction of 25 kilometers (15.5 miles) northwest, in order to protect the signals of Station KWFR(FM), San Angel, Texas, on Channel 270C1 and Station KZMP-FM, Axle, Texas, on Channel 269C. The coordinates for Channel 270C1 at Munday are 33-37-48 North Latitude and 99-46-57 West Longitude.

This is a summary of the Commission's Report and Order, adopted January 24, 2001, and released February 2, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractors, International Transcription Service, Inc., 1231 20th Street, NW., Washington, DC 20036, (202) 857-3800, facsimile (202) 857-3805.

1. The Commission's Fourth Report and Order, WT Docket No. 96-86, FCC 01-10, was adopted January 11, 2001, and released on January 17, 2001. The full text of this Commission's 4th R&O 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, NW., Washington, DC 20037. The full text may also be downloaded at: http://www.fcc.gov/wtb/releases/fcc0110.doc. Alternative formats are available to persons with disabilities by contacting Martha Contee at (202) 418-0260 or TTY (202) 418-2555.

2. These actions promote and facilitate the achievement of nationwide and regional interoperability in the 700 MHz public safety band. These actions will enable and accommodate the expeditious development and deployment of public safety equipment in this band without compromising our goal of effective and efficient utilization of the spectrum. A summary of the major decisions follows.

3. The Commission concludes that the states should administer the interoperability channels, with regional planning committees (RPCs) assuming this responsibility if the states decline to do so. States have until December 31, 2001 to inform the Commission whether the states or an RPC will administer the interoperability spectrum. If states decide to administer the interoperability spectrum, they will determine the RPC's role in reviewing applications for interoperability spectrum. The Commission will not require the use of memoranda of understanding.

4. The Commission will not require states and RPCs to use a pre-coordination database at this time. The Public Safety National Coordination Committee (NCC) is directed to revisit this matter once the database is developed and operational.

5. The Commission determines that its rules allow sufficient flexibility to allow state and local governments to grant federal users access to the 700 MHz interoperability spectrum.

6. The Commission adopts blanket licensing of mobile and portable units for all public safety entities if such entities are eligible to hold a 700 MHz band license or such entities otherwise are licensed under Part 90 of our Rules.

7. The Commission rejects a mandatory trunking requirement, but permits trunking on eight interoperability channels on a secondary, non-interference basis. Under this plan, the remaining channel sets are limited to conventional interoperability operations. Licensees that use those channels for trunking must maintain continuous monitoring so that the channels can be released immediately when needed for interoperability communications.

8. The Commission affirms the band plan it adopted in the Third Memorandum Opinion and Order in this proceeding.

9. The Commission will not adopt a table of channel assignments for the interoperability channels, believing that such a table would be cumbersome and cause undue administrative burden.

10. The Commission will not codify a new priority scheme for resolving conflicts when demand for interoperability channels exceeds supply of such channels, believing that the states can determine priority use and resolve disputes.

11. The Commission does not adopt a rule requiring that all mobile units be capable of displaying an interoperability channel label, but it directs the NCC to consider the development of an industry standardized scheme for display labeling.

12. The Commission amends it rules to designate two of the 700 MHz interoperability channels as nationwide calling channels. Public safety entities, particularly those from “outside” a given public safety “system,” can use the calling channels to access the public safety communications infrastructure in the area where they are located.

13. The Commission amends its rules to adopt the Project 25 Phase I standard as the digital voice standard for interoperability channels. The Commission retains its present 4.8 kilobytes per second (kbps) per 6.25 kHz standard rather than require one voice channel per 6.25 kHz bandwidth. The Commission will revisit this issue no earlier than 2005. The Commission also determines that any migration path it adopts will allow stations planned or built prior to our final decision on this issue to operate for at least ten years from the commencement of the system's operations. In addition, we will require that such migration path include a standard that is backward compatible with the Project Phase I standard so that the achievement of interoperability will not be compromised while these systems remain in operation.

14. With respect to the General Use channels, the Commission determines that any migration path it establishes to a voice efficiency standard of one voice channel per 6.25 kHz bandwidth will allow 12.5 kHz-based systems constructed and placed in operation prior to December 31, 2005 to continue to purchase and deploy 12.5 kHz equipment for system expansion or maintenance. The Commission also determines that such 12.5 kHz systems will not be required to cease operations and convert to 6.25kHz technology prior to December 31, 2015, at the earliest. In addition, the Commission concludes that in any specific migration plan for the General Use channels, the earliest date the Commission would require new systems to have 6.25 kHz technology would be December 31, 2005.

15. The Commission amends its rules to reserve two interoperability channels for data transmission and set a standard for data transmission. The Commission concludes that the Project 25 suite of standards is the correct data interoperability standard. Finally, end user equipment can be single purpose: units designed for data-only applications are not required to be voice-capable, and voice-only applications need not have data transmission capability.

16. The Commission allows encryption on the interoperability channels, except the two nationwide calling channels. The Commission adopts TIA/EIA IS 102 AAAAA Project 25 DES encryption protocol as the encryption standard.

17. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Fourth Notice of Proposed Rule Making (Fourth Notice) of this proceeding. The Commission sought written public comment on the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

18. Our objective is to promote the early and efficient use of public safety spectrum in the frequencies at 764-776 MHz and 794-806 MHz (the 700 MHz band). Specifically, this action will: promote spectrum efficiency through allowing secondary trunking on the Interoperability channels; assist in delineating the roles of Regional Planning Committees (RPCs) and establishment of State Interoperability Executive Committees (SIECs); promote efficient administration of the Interoperability channels by state or local entities; designate calling channels; permit encryption on the Interoperability channels; and establish digital voice standards and efficiency standards for the Interoperability channels, and digital data standards and channel reservation for the Interoperability channels.

19. No comments were submitted in response to the IRFA. Some comments, however, raised issues that may be of particular concern to small entities, including Interoperability standards, migration, and administration. Other issues include equipment display characteristics. The Commission carefully considered all comments in reaching the decision set forth herein, and each decision consider any impact on small entities.

20. The RFA directs agencies to provide a description of and, where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operations; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. Nationwide, as of 1992, there were approximately 275,801 small organizations. “Small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or ninety-six percent, have populations of fewer than 50,000. The Census Bureau estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (ninety-one percent) are small entities.

21. Public Safety Radio Pool Licensees. As a general matter, Public Safety Radio Pool licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Spectrum in the 700 MHz band for public safety services is governed by 47 U.S.C. 337. Non-Federal governmental entities as well as private businesses are licensees for these services. All governmental entities with populations of less than 50,000 fall within the definition of a small entity.

22. Radio and Television Equipment Manufacturers. We anticipate that at least six radio equipment manufacturers will be affected by our decisions in this proceeding. According to the SBA's regulations, a radio and television broadcasting and communications equipment manufacturer must have 750 or fewer employees in order to qualify as a small business concern. Census Bureau data indicate that there are 858 U.S. firms that manufacture radio and television broadcasting and communications equipment, and that 778 of these firms have fewer than 750 employees and would therefore be classified as small entities. We do not have information that indicates how many of the six radio equipment manufacturers associated with this proceeding are among these 778 firms. However, Motorola and Ericsson, two of the six manufacturers, are major, nationwide radio equipment manufacturers, and, thus, we conclude that these manufacturers would not qualify as small businesses.

23. Television Stations. This proceeding will affect full service TV station licensees (Channels 60-69), TV translator facilities, and low power TV (LPTV) stations. The SBA defines a TV broadcasting station that has no more than $10.5 million in annual receipts as a small business. TV broadcasting stations consist of establishments primarily engaged in broadcasting visual programs by TV to the public, except cable and other pay TV services. Included in this industry are commercial, religious, educational, and other TV stations. Also included are establishments primarily engaged in TV broadcasting and which produce taped TV program materials. Separate establishments primarily engaged in producing taped TV program materials are classified under another SIC number.

24. There were 1,509 TV stations operating in the Nation in 1992. That number has remained fairly constant as indicated by the approximately 1,551 operating TV broadcasting stations in the Nation as of February 28, 1997. For 1992, the number of TV stations that produced less than $10.0 million in revenue was 1,155 establishments, or approximately 77 percent of the 1,509 establishments. There are currently 95 full service analog TV stations, either operating or with approved construction permits on channels 60-69. In the DTV Proceeding, we adopted a DTV Table that provides only 15 allotments for DTV stations on channels 60-69 in the continental United States. There are seven DTV allotments in channels 60-69 outside the continental United States. Thus, the rules will affect approximately 117 TV stations; approximately 90 of those stations may be considered small businesses. These estimates may overstate the number of small entities since the revenue figures on which they are based do not include or aggregate revenues from non-TV affiliated companies. We recognize that the rules may also impact minority-owned and women-owned stations, some of which may be small entities. In 1995, minorities owned and controlled 37 (3.0 percent) of 1,221 commercial TV stations in the United States. According to the U.S. Bureau of the Census, in 1987 women owned and controlled 27 (1.9 percent) of 1,342 commercial and non-commercial TV stations in the United States.

25. There are currently 4,977 TV translator stations and 1,952 LPTV stations. Approximately 1,309 low power TV and TV translator stations are on channels 60-69, which could be affected by policies in this proceeding. The Commission does not collect financial information of any broadcast facility and the Department of Commerce does not collect financial information on these broadcast facilities. We will assume for present purposes, however, that most of these broadcast facilities, including LPTV stations, could be classified as small businesses. As indicated earlier, approximately 77 percent of TV stations are designated under this analysis as potentially small businesses. Given this, LPTV and TV translator stations would not likely have revenues that exceed the SBA maximum to be designated as small businesses.

26. The Fourth Report and Order adopts rules that will entail reporting, recordkeeping, and/or third-party consultation, including the requirement that a state notify the Commission regarding the state's intentions regarding administration of the Interoperability channels. The Commission believes, however, that these requirements are the minimum needed. For example, the Fourth Report and Order requires that, while public safety entities are not required to enter into a formal Memoranda of Understanding (MOUs) with a state regarding use of Interoperability channels, applicants must secure approval from the state. To minimize any Federally-imposed paperwork burden, we have left the procedure for such an agreement up to the state. Because we are requiring monitoring of the Interoperability channels, there is the possibility that additional resources may be required. This type of monitoring may be routine for some, while others may require additional resources. In any event, we believe the impact will not be substantial.

27. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 5 U.S.C. 603.

28. The NCC, comprised of representatives from government, the public safety community, and the communications equipment manufacturing industry, was chartered by the Commission as a Federal Advisory Committee, effective February 25, 1999. The NCC made recommendations concerning various issues addressed in the Fourth Notice. We note that in several instances, to benefit all entities, including small entities, we did not propose a particular recommendation.

29. In formulating the rules in the Fourth Report and Order, we reduced economic burdens wherever possible. The regulatory burdens that we adopted are necessary to ensure that the public receives the public safety benefits of innovative new services in a prompt and efficient manner. For example, we adopted technical and operational rules that will promote competition in the equipment market. We believe that the rules must be as competitively and technologically neutral as possible, in order to allow for competing equipment designs and to avoid hindering future innovative technological developments. We note that tighter technical specifications generally allow more intense spectrum use, but may result in higher equipment costs. Conversely, although wider tolerances may allow manufacturers to use less costly component parts in transmitting equipment, they also may result in less efficient spectrum use. With these considerations in mind, we believe that the technical regulations we adopt herein provide a reasonable balance of these concerns.

30. Under the regional planning process, frequency coordination is competitive. Frequency coordination is the process by which a private organization recommends to the Commission the most appropriate frequencies for private land mobile radio service applicants. Frequency coordinators provide a valuable service to the Commission by eliminating common application errors, thereby improving the quality of the applications and resolving potential interference problems at the source. We continue to believe that the encouragement of competition among coordinators promotes cost-based pricing of coordination services and provides incentives for enhancing service quality. Therefore, we will continue to allow any of the certified public safety coordinators to provide coordination in the 700 MHz band.

31. Recognizing the budgetary constraints that public safety entities face as a matter of course, we have adopted rules that encourage broad-based efforts, such as projects on the state and regional level, to coordinate and consolidate operations that are critical to meeting the needs of public safety with cost effective, spectrally-efficient radio systems. For example, we have adopted permissive trunking on certain public safety channels in the 700 MHz band. Trunked systems provide service to many governmental entities in a specific geographic area and offer a higher degree of efficiency than some smaller, non-trunked systems. A difficulty in establishing these types of shared systems is that they require individual agencies to surrender some autonomy in return for the efficiencies and better coverage of a larger system. In addition, the funding required to develop the infrastructure necessary to support some of the newer technologies is often too great to permit small public safety agencies to participate in new, sophisticated, spectrum efficient, wireless radio systems. These same agencies, however, might be able to participate in a county-wide or state-wide system. For these, and other reasons, we encourage the use of shared systems in the public safety community.

Report to Congress: The Commission will send a copy of the Fourth Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the SBREFA, see 5 U.S.C. 801(a)(1)(A). In addition, the commission will send a copy of the Fourth Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Fourth Report and Order and FRFA (or summaries thereof) will be published in the Federal Register. See 5 U.S.C. 604(b).

Authority for the issuance of this Fourth Report and Order and Fifth Notice of Proposed Rule Making is contained in Sections 4(i), 4(j), 7(a), 302, 303(b), 303(f), 303(g), 303(r), 307(e), 332(a), and 332(c) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 157(a), 302, 303(b), 303(f), 303(g), 303(r), 307(e), 332(a), 332(c).

Part 90 of the Commission's Rules, 47 CFR Part 90 is amended as specified in the rule changes.

This Fourth Report and Order will be effective March 19, 2001.

The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Fourth Report and Order and Fifth Notice of Proposed Rule Making, including the Final and Initial Regulatory Flexibility Analyses, to the Chief Counsel for Advocacy of the Small Business Administration.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2001 A season apportionment of TAC for Atka mackerel in the Central Aleutian District is 15,540 metric tons (mt), of which no more than 7,148 mt may be harvested from Steller Sea lion protection areas (66 FR 7276, January 22, 2001). See § 679.20(a)(8)(ii)(A) and 679.22(a)(12)(iii)(B).

In accordance with § 679.22(a)(12)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the allowable harvest of Atka mackerel in the Steller Sea lion protection areas in the Central Aleutian District has been reached. Consequently, NMFS is prohibiting trawling in selected rookery and haul out sites, as defined at Table 21 to 50 CFR Part 679 in the Central Aleutian District of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid jeopardy to the continued existence of Steller sea lions constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 USC 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid jeopardy to the continued existence of Steller sea lions constitutes good cause to find that the effective date of this action cannot be delayed for 30 days.

This action is required by § 679.20 and 679.22 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2001 A season apportionment of TAC for Atka mackerel in the Western Aleutian District is 12,904 metric tons (mt), of which no more than 6,194 mt may be harvested from Steller Sea lion protection areas (66 FR 7276, January 22, 2001). See § 679.20(a)(8)(ii)(A) and 679.22(a)(12)(iii)(B).

In accordance with § 679.22 (a)(12)(iii), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the allowable harvest of Atka mackerel in the Steller Sea lion protection areas in the Western Aleutian District has been reached. Consequently, NMFS is prohibiting trawling in selected rookery and haul out sites, as defined at Table 21 to 50 CFR Part 679 in the Western Aleutian District of the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to avoid jeopardy to the continued existence of Steller sea lions constitutes good cause to waive the requirement to provide prior notice opportunity for public comment pursuant to the authority set forth at 5 USC 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to avoid jeopardy to the continued existence of Steller sea lions constitutes good cause to find that the effective date of this action cannot be delayed for 30 days.

This action is required by § 679.20 and 679.22 and is exempt from review under Executive Order 12866.