Fort Dodge Animal Health, Division of Wyeth, 800 Fifth St. NW., Fort Dodge, IA 50501, filed supplements to NADA 97-222 that revise labeling of CEFA-LAK (cephapirin sodium) and TODAY (cephapirin sodium) Intramammary Infusion administered to lactating cows for the treatment of mastitis. The application is approved as of December 20, 2007, and the regulations are amended in 21 CFR 526.365 to reflect the approval and a current format.

Approval of these supplemental NADAs did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.

FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

On December 27, 2006, the NPS published in the Federal Register proposed revised special regulations for the NPS-administered areas in Alaska. Each park area in Alaska has a compendium consisting of the compiled designations, closures, openings, permit requirements, and other provisions established by the Superintendent under the discretionary authority granted in 36 CFR 1.5 and elsewhere in regulations. It is the policy of the NPS to review these provisions on a regular basis for possible addition to the general and special park regulations in part 13. The provisions in this final rule are additions or changes to individual park regulations in part 13, subparts H-W. Where these provisions have applicability to several or all Alaska park areas, they generally are included as additions to part 13, subparts A-F.

Most of the following regulations have resulted from the current review of compendium provisions. Additionally, several changes to the part 13 regulations unrelated to the compendium review are included as indicated. We are consolidating all routine changes in a single rulemaking document for administrative efficiency and the convenience of the public. Comments received and the corresponding NPS response are summarized below. Modifications to the proposed rule are listed under Changes to the Final Rule. As used within this document, the terms “we,” “our,” and “us” refer to the National Park Service.

The proposed rule was published for public comment on December 27, 2006 (71 FR 77657), with the comment period lasting until February 26, 2007. The National Park Service received 12 timely written responses. All of the responses were either separate letters or e-mail messages. Of the 12 written responses, one was from the State of Alaska, five were from non-governmental organizations (including one consolidated response from seven signatory groups), and six were submitted by individuals. Many proposed changes either received supporting comments or no comments. These sections are being adopted as proposed unless noted otherwise below. The proposed sections that did receive substantive comments are discussed below.

1. The NPS received two comments critical of the public notice provided for the proposed rule. One of the two also objected to the timing of the Federal Register notice during the holiday season, and the other said the 60-day comment period was too short.

NPS Response: One of the commenters appears to have confused this rulemaking with another NPS initiative to prepare a users' guide for inholder access. This rulemaking does not change the current rules applicable to inholder access. Concerning the timing of public notice and the length of the comment period, publication in the Federal Register with a 60-day comment period is standard. In situations where the standard comment period appears insufficient, it can be extended. However, the number and range of comments received for this rulemaking indicates that the notice and comment period resulted in sufficient public involvement.

2. The NPS received five comments opposing the removal of the definition for the term “adequate and feasible” from Part 13.

NPS Response: The commenters opposing the removal of this phrase mistakenly believe that inclusion of the term in Part 13 has a substantive effect regarding access to inholdings in NPS areas. The term “adequate and feasible” is no longer used in the NPS Part 13 regulations and, consequently, does not have any effect on managing access to inholdings. The Department of the Interior moved the regulations for access to inholdings from the NPS regulations to Departmental multi-agency regulations at 43 CFR 36.10 in 1986. A slightly revised definition for “adequate and feasible” was adopted by the Department at that time as 43 CFR 36.10(a)(1). It is this definition as used in the Departmental regulations that applies to access to inholdings in Alaska park areas. The NPS definition was inadvertently left in Part 13 in 1986 when the other regulations were removed. The current proposal to remove it from Part 13 is a nonsubstantive administrative correction of this omission.

3. The NPS received six comments concerning this section. One commenter asserted that use of timber for a house should be a one-time-only authorization. Two commenters, an individual and a corporation, supported the change to allow cutting dead timber for house logs. The individual's support was qualified by a need for NPS management oversight of harvest levels. Three commenters (a single comment plus a joint comment by two individuals) felt that deletion of the word “live” in section (a) for cutting timber will create confusion concerning the section (b) allowance for gathering dead timber for firewood without a permit. Also, the joint comment suggested that the word change in section (b) suggests a possible intent to charge a fee or possibly to eliminate subsistence use of timber. As an alternative to deleting “live” in section (a), the joint comment proposed deleting “for firewood” in section (b) to achieve the same result. Finally, the joint comment urged retention of the definition of “temporarily” and suggested that the proposed change in section (c) makes the section less clear and may be a pretext to permanent closure of some areas to subsistence use of timber. A residents' group commented that the proposed change in section (a) to read, “Unless otherwise provided”, will cause section (b) to supersede section (a), while the proposed deletion of the word “live” in section (a) suggests that section (a) is intended to have some application to section (b) gathering of firewood. The group also stated that the proposed changes will cause confusion about the relationship between the general timber gathering provisions of section 13.35 and the proposed changes for subsistence in section 13.485. Finally, the residents' group opposed the broader management discretion proposed for temporary closures in section (c).

NPS Response: The NPS does not agree that the cutting of timber for house logs should be limited to one-time use. Circumstances could arise where additional house logs would be needed. The current NPS timber cutting and gathering regulations and the proposed changes are focused on allowing customary and traditional use with an appropriate level of oversight to protect park unit purposes and values. NPS has no intent to eliminate or charge a fee for subsistence use of timber.

We appreciate the concern regarding the distinction between section (a) timber cutting and section (b) timber gathering. While the suggestion to delete the firewood limitation in section (b) rather than “live” in section (a) would achieve some of the same results, we believe the value of maintaining the current distinction between cutting and gathering is a more important consideration.

The comment opposing the deletion of the definition of “temporarily” in subsection (c) brought to light an unintended change to this section. The intended change was only to the introductory text of paragraph (c), not to paragraph (c)(1). The definition of “temporarily” was not intended to be proposed for change and will be retained.

The NPS does not intend to permanently close areas to subsistence use of timber and plant materials as suggested by several comments. The expanded description of circumstances in which temporary closures might be considered is intended to clarify the parameters of the management options in section (c). Modifying subsection (c) as proposed will allow managers additional flexibility to protect park unit resources while allowing subsistence uses of timber and plant material.

Finally, we note that the proposed change in the introductory sentence of section (a), “Unless otherwise provided for in this section”, was intended as an administrative clarification that would not change the meaning of the sentence. It is now apparent, as suggested by several comments, that the proposal would change the meaning of the sentence. For that reason, this change will not be adopted and the original text, “Notwithstanding any other provision of this part”, will remain unchanged.

4. The NPS received eight comments on this proposed change, seven of which were supportive. One commenter opposed allowing solid waste disposal sites to be located less than a mile from visitor campgrounds, centers, or similar sites. Two commenters requested the NPS clarify that landowners remain free to dispose of solid waste on private lands within the park. The State of Alaska suggested the exceptions be extended to all park units in Alaska.

NPS Response: In many areas in Alaska, it would not be practical or possible to locate sites more than one mile from certain visitor facilities for environmental, economic, or other reasons. Therefore, the NPS is making a limited exception to this provision so long as it would not degrade park resources. Regarding disposal of solid waste on private property, landowners remain free to dispose of solid waste on their own private property within park boundaries in compliance with other State and Federal regulations. The NPS proposed this provision in part to provide an alternative to landowners disposing of waste on their property and combat unlawful dumping on park lands. The regulation was not extended to all park areas in Alaska because it is not anticipated to be necessary in the foreseeable future.

5. The NPS received four comments on these provisions, of which two were critical. One comment called the conditions difficult to assess and enforce. The other comment recommended a 250-yard limit requirement rather than 50 yards.

NPS Response: The NPS appreciates the comment regarding assessing and enforcing the distance requirements; however, these distance conditions are necessary to mitigate the impacts associated with human activity in close proximity to wildlife while accommodating park visitors in these park areas. With respect to the proposal on engaging in photography within 50 yards of a bear in Katmai, Aniakchak, and Alagnak, the NPS has determined that additional time is needed to consider this proposal and it has therefore been removed from this final rule.

6. The NPS received one comment on the pet restrictions in Kenai Fjords and Glacier Bay. While generally supportive, the commenter recommended more areas for closure and, with respect to Kenai Fjords, that the closure be extended to year round.

NPS Response: While the NPS appreciates the support for these provisions, the NPS does not believe further closures are necessary at this point to protect park resources.

7. The NPS received one comment in support of the proposed regulation.

NPS Response: The NPS appreciates the support. Significant expansion of the trail network and resource impacts have required that ORV use in Glacier Bay National Preserve be limited to designated locations. This restriction complies with the criteria in ANILCA section 205 and implementing regulations at 36 CFR 13.40(c). This regulation applies to individuals using ORVs for commercial fishing as well as for subsistence, recreation, and other purposes.

8. The NPS received one comment in support of this provision and further stating that firearms should be allowed in all Alaskan parks for personal protection from big game.

NPS Response: The NPS appreciates the support for this provision. Expanding the authorization, however, to carry loaded firearms in the remaining Alaska park areas where it is prohibited is not currently warranted.

9. The NPS received one comment from the State of Alaska on this provision. The State questioned whether NPS really intended to make the closure year round, whereas the current compendium closure is only applicable in the summer.

NPS Response: The NPS appreciates the comment. This oversight has been corrected.

10. The NPS received one comment on bicycle use in Kenai Fjords. One commenter stated that the provision is not necessary because these areas are already closed to bicycle use.

NPS Response: The NPS appreciates the confusion between the applicability of the NPS general regulations and Alaska-specific provisions. For this reason, the NPS is delineating specific areas within the Exit Glacier Developed Area where bicycles are allowed and where they are prohibited.

11. The NPS received one comment on the proposed snowmachine regulation for Kenai Fjords. While the commenter agreed with the end result of the provision, the commenter requested that the NPS clarify that the regulation does not infer that recreational snowmachining is authorized under ANILCA section 1110(a).

NPS Response: We appreciate the confusion between the applicability of the NPS general regulations and NPS regulations specific to Alaska. Nationwide NPS regulations in 36 CFR part 2 prohibit the use of snowmachines except on designated routes and water surfaces that are used by motor vehicles or motorboats during other seasons. The regulations further direct that routes and water surfaces designated for snowmachine use be promulgated as special regulations. In Alaska, snowmachines are also allowed for traditional activities and for travel to and from villages and homesites under ANILCA section 1110(a). This provision does not address whether recreational snowmachining is or is not a traditional activity under section 1110(a) in Kenai Fjords. While recreational use of snowmachines is not a traditional activity in the former Mt. McKinley National Park pursuant to 36 CFR 13.950, this term has not been defined for Kenai Fjords. When other Alaska parks begin the process of identifying traditional activities, the NPS will look to the circumstances specific to each park area. To address public safety concerns and visitor conflicts in the Exit Glacier Developed Area (EGDA), the NPS is delineating specific areas within the EGDA where snowmachines may be operated and where they are prohibited.

Based on the preceding comments and responses, the NPS has made the following changes to the proposed rule language:

• Subpart P, 13.1304 Exit Glacier Developed Area. For clarity the NPS is reorganizing § 13.1304. This change will make Subpart P easier to use by introducing new sections and eliminating the levels of subdivision in § 13.1304.

• 13.550, 13.604, and 13.1206 Wildlife Distance Conditions. The NPS has decided to drop the requirement that individuals cease engaging in photography within 50 yards of a bear. The NPS is still considering this provision for future regulation, but needs more time to evaluate it.

• 13.485 Subsistence Use of Timber and Plant Material. The proposed language “Unless otherwise provided” in paragraphs (a) and (c) has been changed back to “Notwithstanding any other provision of this part.” The NPS is also correcting an unintended change to subsection (c)(1). The proposed change was meant to be in the introductory text of paragraph (c) rather than replacing (c)(1).

• 13.1109 Off-Road Vehicle Use in Glacier Bay National Preserve. The proposed regulation referred to this area as the Dry Bay area. Because this is not a defined term, it has been changed to Glacier Bay National Preserve. This change is not considered substantive as it is intended to refer to the same area, but only in a more exact way.

• 13.1308 Harding Icefield Trail. The proposed language has been changed to limit the trailside camping closure from March 1 through November 1, consistent with the 2007 compendium.

• 13.1604 Solid Waste Disposal. Paragraph (c) was changed and paragraph (d) was added to be consistent with section 13.1912 applicable to Wrangell-St. Elias National Park and Preserve.

This document is not a significant rule and has not been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. A qualitative cost/benefit analysis was conducted to examine specific costs and benefits associated with the proposed rule. That analysis concludes that positive net benefits would be generated by each component of the proposed regulatory action, and hence by the regulatory action overall. Further, governmental processes in NPS-administered areas in Alaska would be improved. Therefore, it is anticipated that economic efficiency would be improved by this proposed regulatory action.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This is an agency-specific rule that will not interfere with other agencies or local government plans, policies, or controls. The proposals included with this rulemaking apply to areas managed by the National Park Service and do not conflict with other federal regulations. Several proposals are specifically intended to improve consistency between State and NPS areas. The review process used to develop the rulemaking proposals included consultation with the State of Alaska to seek views of appropriate officials and to provide consistency with state rules on adjacent lands as well as active participation where NPS is proposing variation from similar state regulations.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs, or the rights and obligations of their recipients. No grants or other forms of monetary supplements are involved.

(4) This rule does not raise novel legal or policy issues. This rule implements existing legislative enactments, judicial interpretations, and regulatory provisions. It is not a completely new proposal, but rather a continuation of the rulemaking process begun in 1980 to promulgate only those regulations necessary to interpret the law and to provide for the health and safety of the public and the environment. This process is intended to increase participation and cooperation in the evolution of NPS regulations for Alaska.

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ). The economic effects of this rule are local in nature and positive or negligible in scope. This rule either implements rules unrelated to business activity or makes permanent various temporary and emergency rules under which area businesses have been operating. This rule will have no effect or in some cases a salutary effect by eliminating year to year uncertainty for park visitors.

A qualitative Regulatory Flexibility threshold analysis was conducted to examine potential impacts to small entities. The analysis concludes that, since no significant costs are anticipated for any component of the rule, significant economic impacts would not be imposed on a substantial number of small entities.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more. Expenses related to compliance with various provisions of this proposed rule are slight. No new user fees or charges are proposed. Any incidental costs from this rule would be small and generally would not be additional to those already associated with visiting park areas.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. The provisions of this rule will generally continue existing rules and use patterns for the park areas in Alaska.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The various provisions of this rule do not apply differently to U.S.-based enterprises and foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq. ):

a. This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. This rule is an agency-specific rule and imposes no other requirements on small governments. Several of the provisions are based on State of Alaska statutes. This consistency between the State of Alaska and the National Park Service is a benefit to visitors.

b. This rule will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with Executive Order 12630, the rule does not have significant takings implications. A takings implications assessment is not required because no taking of property will occur as a result of this final rule.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The rule is limited in effect to federal lands and waters administered by the NPS and does not have a substantial direct effect on state and local government in Alaska. The rule was initiated in part at the request of the State of Alaska and was developed in close consultation with the State of Alaska and, as such, promotes the principles of federalism.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

This regulation does not require an information collection under the Paperwork Reduction Act.

We have analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The rule has generally been determined to be categorically excluded from further NEPA analysis in accordance with Departmental Guidelines in 516 DM 6 (49 FR 21438), and NPS procedures in Reference Manual-12.3.4.A(8), and, other than as noted below, there are no applicable exceptions to categorical exclusions (516 DM 2, Appendix 2; RM-12.3.5). A categorical exclusion does not apply to the special regulation (§ 13.1109) designating off-road vehicle routes at Glacier Bay National Preserve, for which an environmental assessment has been prepared. The categorical exclusion and environmental assessment, are available at the Alaska Regional Office, 240 West 5th Avenue, Anchorage, Alaska, 99501, 907-644-3533 or can be viewed at http://parkplanning.nps.gov/projectHome.cfm?parkId=12&projectId=15909.

In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249); the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); the Department of the Interior-Alaska Policy on Government-to-Government Relations with Alaska Native Tribes dated January 18, 2001; part 512 of the Departmental Manual, Chapter 2 “Departmental Responsibilities for Indian Trust Resources”; and various park consultation agreements with tribal governments, the potential effects on federally-recognized Indian tribes have been evaluated, and it has been determined that there are no potential effects.

While the consultation agreements noted above have not resulted in findings of potential effects, review of this rule has been facilitated by the relationships established through government-to-government consultation.

Drafting Information: The principal contributors to this rule are: Jim Ireland, Kenai Fjords National Park; Vic Knox, Jay Liggett, Chuck Passek, Jane Hendrick, Andee Sears and Paul Hunter, Alaska Regional Office; and Jerry Case, Regulations Program Manager, NPS, Washington, DC.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information is arranged as follows:

EPA is approving revisions to the Maryland State Implementation Plan (SIP), which were submitted by the Maryland Department of the Environment (MDE). These changes, which include amendments to Regulation .01 and new Regulation .05-1 under COMAR 26.11.24 Stage II Vapor Recovery at Gasoline Dispensing Facilities amend Maryland's existing Stage II regulatory requirements. Specifically, the amendments and additions will allow MDE to utilize inspections of Stage I and Stage II systems by a certified inspector under COMAR 26.10.03.10. During one calendar year, approximately one-third of those stations required to be inspected would be inspected by certified inspectors. Based upon the inspections reports, MDE will be able to better target state-conducted inspections.

MDE revised its Stage II requirements in order to enhance its inspection efficiency. EPA is approving these revisions as necessary for attainment and maintenance of the ozone standard in the State of Maryland.

Maryland's SIP revisions (#07-02) were submitted by MDE on February 15, 2007. EPA evaluated MDE's revised Stage II requirements to verify that the revisions were consistent with the previously approved Stage II regulations for the State and met the requirements found in EPA's Stage II enforcement and technical documentation. The revisions were also reviewed for compliance with the CAA.

EPA is approving a SIP revision request submitted by MDE that allows for use of third party inspectors of Stage I and Stage II systems.

We are publishing this rule without prior proposal because the Agency views this as a non-controversial amendment and anticipates no adverse comment. However, in the “Proposed Rules'' section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 17, 2008 without further notice unless EPA receives adverse comment by February 19, 2008. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving revisions to Maryland's Stage II regulations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information is arranged as follows:

EPA is approving revisions to the Commonwealth of Pennsylvania State Implementation Plan (SIP), which were submitted on November 21, 2006 by PADEP. These changes to Allegheny County's Article XXI Air Pollution Control Rules and Regulations amend the existing Stage II regulatory requirements to conform with 25 PA Code, Chapter 129, Standards for Sources, section 129.82, Control of volatile organic compounds (VOCs) from gasoline dispensing facilities. Specifically, the revisions incorporate revised compliance dates for Allegheny County, and make other minor technical amendments. The revised Stage II compliance dates are all now in the past, so gasoline dispensing facilities with throughputs greater than 10,000 gallons per month are subject to these regulations. In the case of independent small business marketers, as defined in Section 324 of the CAA, the regulation does not apply if the throughput is less than 50,000 gallons per month. Allegheny County has also revised its regulations to establish functional testing and certification requirements, as well as recordkeeping requirements consistent with EPA's regulations. The regulation also establishes a 95% efficiency for Stage II vapor recovery systems in Allegheny County, consistent with EPA requirements.

EPA is approving these SIP revisions to the Commonwealth of Pennsylvania SIP. The Allegheny County Health Department (ACHD) revised its Stage II VOC control requirements in order to follow revisions to Stage II requirements that were made at the State level. EPA is approving these revisions as necessary for attainment and maintenance of the ozone standard in Southwest Pennsylvania.

The Commonwealth of Pennsylvania's SIP revisions were submitted by the Pennsylvania Department of Environmental Protection (PADEP) on November 21, 2006. EPA evaluated the Commonwealth's revised Stage II requirements for Allegheny County to verify that the revisions were consistent with the previously approved Stage II regulations for the Commonwealth and met the requirements found in EPA's Stage II enforcement and technical documentation. The revisions were also reviewed for compliance with the CAA.

EPA is approving a SIP revision request submitted by PADEP that makes compliance schedule changes and minor technical amendments to Allegheny County's Article XXI Air Pollution Control Rules and Regulations amending the existing Stage II regulatory requirements, controlling the emission of VOCs from gasoline dispensing facilities.

We are publishing this rule without prior proposal because the Agency views this as a non-controversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today’s Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 17, 2008 without further notice unless EPA receives adverse comment by February 19, 2008. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2008 . Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, approving revisions to Allegheny County's Stage II regulations, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that the rules were adopted or amended by the local air agency and submitted by the California Air Resources Board (CARB).

Table of Contents I. What Action Is EPA Taking? II. What Is the Regulatory History of CAMR? III. What Are the General Requirements of CAMR State Plans? IV. How Can States Comply With CAMR? V. Analysis of Missouri's CAMR State Plan Submittal A. State Budgets B. CAMR State Plan VI. Statutory and Executive Order Reviews I. What Action Is EPA Taking?

EPA is taking final action to approve Missouri's State Plan, submitted on May 18, 2007, and revisions submitted on September 6, 2007. In its State Plan, Missouri has met CAMR by requiring certain coal-fired EGUs to participate in the EPA-administered cap-and-trade program addressing Hg emissions. EPA proposed to approve Missouri's request to amend the State's Plan on September 27, 2007 (72 FR 54872). No comments were received. EPA is finalizing the approval as proposed based on the rationale stated in the proposal and in this final action.

CAMR was published by EPA on May 18, 2005 (70 FR 28606, “Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Final Rule”). In this rule, acting pursuant to its authority under section 111(d) of the Clean Air Act (CAA), 42 U.S.C. 7411(d), EPA required that all States and the District of Columbia (all of which are referred to herein as States) meet Statewide annual budgets limiting Hg emissions from coal-fired EGUs (as defined in 40 CFR 60.24(h)(8)) under CAA section 111(d). EPA required all States to submit State Plans with control measures that ensure that total, annual Hg emissions from the coal-fired EGUs located in the respective States do not exceed the applicable statewide annual EGU mercury budget. Under CAMR, States may implement and enforce these reduction requirements by participating in the EPA-administered cap-and-trade program or by adopting any other effective and enforceable control measures.

CAA section 111(d) requires States, and along with CAA section 301(d) and the Tribal Air Rule (40 CFR part 49) allows Tribes granted treatment as States (TAS), to submit State Plans to EPA that implement and enforce the standards of performance. CAMR explains what must be included in State Plans to address the requirements of CAA section 111(d). The State Plans were due to EPA by November 17, 2006. Under 40 CFR 60.27(b), the Administrator will approve or disapprove the State Plans.

CAMR establishes Statewide annual EGU Hg emission budgets and is to be implemented in two phases. The first phase of reductions starts in 2010 and continues through 2017. The second phase of reductions starts in 2018 and continues thereafter. CAMR requires States to implement the budgets by either: (1) Requiring coal-fired EGUs to participate in the EPA-administered cap-and-trade program; or (2) adopting other coal-fired EGU control measures of the respective State's choosing and demonstrating that such control measures will result in compliance with the applicable State annual EGU Hg budget.

Each State Plan must require coal-fired EGUs to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Each State Plan must also show that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75.

Each State Plan must impose control requirements that the State demonstrates will limit Statewide annual Hg emissions from new and existing coal-fired EGUs to the amount of the State's applicable annual EGU Hg budget. States have the flexibility to choose the type of EGU control measures they will use to meet the requirements of CAMR. EPA anticipates that many States will choose to meet the CAMR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAMR cap-and-trade program. EPA also anticipates that many States may choose to control Statewide annual Hg emissions for new and existing coal-fired EGUs through an alternative mechanism other than the EPA-administered CAMR cap-and-trade program. Each State that chooses an alternative mechanism must include with its plan a demonstration that the State Plan will ensure that the State will meet its assigned State annual EGU Hg emission budget.

A State submitting a State Plan that requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program may either adopt regulations that are substantively identical to the EPA model Hg trading rule (40 CFR part 60, subpart HHHH) or incorporate by reference the model rule. CAMR provides that States may only make limited changes from the model rule if the States want to participate in the EPA-administered trading program. A State Plan may deviate from the model rule only by altering the allowance allocation provisions to provide for State-specific allocation of Hg allowances using a methodology chosen by the State. A State's alternative allowance allocation provisions must meet certain allocation timing requirements and must ensure that total allocations for each calendar year will not exceed the State's annual EGU Hg budget for that year.

In this action, EPA is taking final action to approve Missouri's State Plan that adopts the annual EGU Hg budgets established for the State in CAMR, i.e., 1.393 tons for EGU Hg emissions in 2010-2017 and 0.55 tons for EGU Hg emissions in 2018 and thereafter. Missouri's State Plan sets these budgets as the total amount of allowances available for allocation for each year under the EPA-administered CAMR cap-and-trade program.

The Missouri State Plan requires coal-fired EGUs to participate in the EPA-administered CAMR cap-and-trade program. The State Plan incorporates by reference the EPA model Hg trading rule but has adopted an alternative allowance allocation methodology. States may establish in their State Plan submissions a different Hg allowance allocation methodology that will be used to allocate allowances to sources in the States if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative Hg allowance allocation methodologies, States have flexibility with regard to:

1. The cost to recipients of the allowances, which may be distributed for free or auctioned;

2. The frequency of allocations;

3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and

4. The use of allowance set-asides and, if used, their size.

In Missouri's alternative allowance methodology, Missouri has chosen to distribute Hg allowances directly based upon Table I in 10 CSR 10-6.368. The table permanently allocates to designated units the entirety of Missouri's mercury allowances for both phases of the program. Accordingly, Missouri has not provided allowances for the establishment of set-aside accounts.

Missouri's State Plan requires coal-fired EGUs to comply with the monitoring, recordkeeping, and reporting provisions of 40 CFR part 75 concerning Hg mass emissions. Missouri's State Plan also demonstrates that the State has the legal authority to adopt emission standards and compliance schedules necessary for attainment and maintenance of the State's annual EGU Hg budget and to require the owners and operators of coal-fired EGUs in the State to meet the monitoring, recordkeeping, and reporting requirements of 40 CFR part 75. Missouri cites Section 643.050 and 643.055 of the Missouri Air Conservation Law, as containing the legal authority for the Missouri Air Conservation Commission to adopt the State's rule that allows for Missouri's participation in the nationwide cap-and-trade program.

EPA's review of Missouri's State Plan has found that it meets the requirements of CAMR. As a result, EPA is taking final action to approve Missouri's State Plan.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action also does not have Tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard. It does not alter the relationship or the distribution of power and responsibilities established in the CAA. This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a State rule implementing a Federal standard.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requires Federal agencies to consider the impact of programs, policies, and activities on minority populations and low-income populations. EPA guidance  1 states that EPA is to assess whether minority or low-income populations face risk or a rate of exposure to hazards that is significant and that “appreciably exceed[s] or is likely to appreciably exceed the risk or rate to the general population or to the appropriate comparison group.” (EPA, 1998) Because this rule merely approves a state rule implementing the Federal standard established by CAMR, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations. However, EPA has already considered the impact of CAMR, including this Federal standard, on minority and low-income populations. In the context of EPA's CAMR published in the Federal Register on May 18, 2005, in accordance with Executive Order 12898, the Agency has considered whether CAMR may have disproportionate negative impacts on minority or low income populations and determined it would not.

In reviewing State Plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State Plan for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State Plan submission, to use VCS in place of a State Plan submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ).

The Congressional Review Act, 5 U.S.C. 801, et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a summary of the Commission's Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Report and Order and Declaratory Ruling ( 2007 TRS Cost Recovery Order ), document FCC 07-186, adopted October 26, 2007, and released November 19, 2007, in CG Docket No. 03-123. Document FCC 07-186 addresses issues arising from the Commission's Further Notice of Proposed Rulemaking, Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities (2006 TRS Cost Recovery FNPRM), CG Docket No. 03-123, FCC 06-106, published at 71 FR 54009, September 13, 2006. The full text of document FCC 07-186 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Document FCC 07-186 and copies of subsequently filed documents in this matter also may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's duplicating contractor at its Web site http://www.bcpiweb.com or by calling 1-800-378-3160. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). Document FCC 07-186 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/trs.html.

Document FCC 07-186 contains modified information collection requirements subject to the PRA of 1995. It will be submitted to OMB for review under section 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the modified information collection requirements contained in this proceeding. Public and agency comments are due March 17, 2008. In addition, the Commission notes pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4), that the Commission previously sought specific comment on how it may “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. In the 2006 TRS Cost Recovery FNPRM, the Commission sought comment on four issues concerning the compensation of relay providers from the Fund. First, the Commission sought comment on the adoption of an alternative cost recovery methodology for traditional TRS, STS services, and IP Relay services based on the Multi-state Average Rate Structure (MARS) plan, under which the compensation rate would be based on a weighted average of competitively bid intrastate rates. The Commission sought comment on whether adoption of the MARS plan would result in a more efficient provision of service and a fairer, more reasonable compensation rate, as well as on how the MARS plan would be implemented and whether the rates for those TRS forms should continue to be set for a one-year period or for longer.

2. Second, the Commission sought comment on the adoption of an alternative cost recovery methodology for VRS. The Commission emphasized the need for a cost recovery methodology that would result in more predictable rates that more closely approximate the reasonable actual costs of providing VRS services. Accordingly, the Commission sought comment on whether changes should be made to the existing cost recovery methodology, or whether a new methodology should be adopted. The Commission proposed various new methodologies, including compensating each provider based on the provider's actual, reasonable costs, seeking competitive bids, or using a “true-up” based on each provider's reasonable actual costs. The Commission also sought comment on whether the VRS compensation rate should be set for a two-year period, rather than a one-year period.

3. Third, the Commission sought comment on the extent to which certain types of costs—including marketing and outreach expenses, overhead costs, legal and lobbying expenses, start-up expenses, and executive compensation—are compensable from the Fund. Finally, the Commission sought comment on the steps it might take to ensure the integrity of the Fund and that compensation is paid consistent with the statute. Specifically, the Commission sought comment on the oversight of the Fund administrator, presently the National Exchange Carrier Association (NECA), the oversight of the providers, and ways to deter waste, fraud, and abuse.

4. The 2007 TRS Cost Recovery Order resolves the issues on which the Commission sought comment in the 2006 TRS Cost Recovery FNPRM. First, the Commission adopts the MARS plan as the cost recovery methodology for interstate traditional TRS, interstate STS, interstate CTS, and interstate and intrastate IP CTS. Presently, the compensation rates are based on a weighted average of the providers' projected minutes of use of the service, and their projected costs of providing these minutes, for a future two-year period. Because the current methodology is based on projections only, it does not result in rates that satisfactorily correlate to the providers' actual costs. Adopting the MARS plan, in contrast, will produce a rate that better approximates actual costs, and therefore will promote the efficient recovery of all costs. It also will eliminate the costs, burdens, and uncertainties associated with evaluating, correcting, and re-evaluating provider data.

5. The Commission will calculate one MARS rate applicable to both interstate traditional TRS and interstate STS based on state rates for intrastate TRS and STS, and adopt a separate MARS rate for interstate CTS and IP CTS based on state rates for intrastate CTS. Regardless, for both rates, the rate calculation mechanism will be the same. Generally, each January, the Fund administrator will request that the following information be filed on a per-state basis for the previous calendar year: (1) The per-minute compensation rate(s) for intrastate traditional TRS, intrastate STS, and intrastate CTS; (2) whether the rate applies to session or conversation minutes; (3) the number of session and conversation minutes for intrastate traditional TRS, intrastate STS, and intrastate CTS, (4) other amounts paid to the provider(s) for the relevant calendar year, if the per-minute compensation rate does not reflect the total costs paid by the state to the provider(s) for the relay service(s); and (5) other factors bearing on the rate averages, such as mid-year rate changes.

6. The Fund administrator will multiply each state's respective intrastate traditional TRS and intrastate STS, and intrastate CTS, rates by the number of either intrastate session minutes or conversation minutes, whichever the state rates are based upon, and then total each state's total dollar amount for each rate. The Fund administrator will then divide the total dollar amount(s) for all the states (including costs not reflected in the rate) by the applicable total of all states' intrastate conversation minutes (even if some states do not base their rate on conversation minutes) for each service ( e.g. , intrastate traditional TRS and intrastate STS in one calculation, intrastate CTS in the other).

7. The Fund administrator will file the MARS plan rate(s), as calculated, with the Commission by May 1st of each year, and the proposed MARS rate for each service and an explanation of how it was calculated will be placed on public notice. The Commission will then release by June 30 of each year an order adopting the compensation rate for the following July 1st to June 30th Fund year. The Commission will monitor the implementation of the MARS plan and, if necessary, take further steps to ensure that the MARS rate compensates providers for their reasonable costs of providing service.

8. Beginning March 1, 2008, and for the remainder of the 2007-08 Fund year, the MARS plan per-minute rate of $1.592 shall apply for interstate traditional TRS and interstate STS. This rate is a result of the calendar 2006 intrastate TRS and STS data filed by 49 states and Puerto Rico, which show that a total of $100,738,030 was spent to pay for 63,275,205 conversation minutes, which translates to $1.592 per minute.

9. The Commission believes that this rate is reasonable because it is based on competitively bid state rates. For interstate STS, however, the Commission will add an additional $1.131 per minute, resulting in a total of $2.723, because of concerns that outreach efforts toward the STS community have not been effective. Each STS provider must allocate this additional $1.131 per minute toward outreach efforts directed at the STS community. For interstate CTS and interstate and intrastate IP CTS, the Commission adopts a 2007-2008 compensation rate of $1.629 per minute. This rate is based on calendar 2006 intrastate captioned telephone service data from the 39 states that provided this service in 2006, which shows that $15,867,338, was spent to pay for 9,739,138 conversation minutes, which translates to $1.629 per minute.

10. Second, for IP Relay, the Commission declines to adopt a cost recovery methodology based on the MARS plan because there are no state rates for this service. Instead, the Commission adopts a cost recovery methodology based on price caps. As a general matter, the price cap plan adjusts a base rate upward for inflation and other, additional costs not reflected in the inflation adjustment, then downward for improved efficiencies. In so doing, the price cap plan applies three factors—an Inflation Factor, an Efficiency (or “X”) Factor, and Exogenous Costs—to a base rate. The Inflation Factor will be the Gross Domestic Product—Price Index (GDP-PI)). The Efficiency Factor will be set as a figure equal to the Inflation Factor, less 0.5 percent (or 0.005) to account for productivity gains.

11. The Exogenous Costs will be those costs beyond the control of the IP Relay providers that are not reflected in the inflation adjustment, such as additional costs that they incur to satisfy new, Commission-adopted service requirements. As a result of the basic price cap plan formula, which multiplies the base rate by a factor that reflects an increase due to inflation, and then offsets it by a decrease due to efficiencies, the rate for a particular year generally will equal the rate for the previous year, reduced by 0.5 percent ( i.e. , Rate Year Y = Rate Year Y −1 (1−0.005)). Adopting this methodology for IP Relay will encourage IP Relay providers to become more efficient in providing the service.

12. The Commission adopts the price cap plan for three years, with the first rate period being the 2007-2008 Fund year. The rates will then continue, with annual adjustments for productivity gains, through the 2009-2010 Fund Year. The Commission will then assess what the base rate should be for the following three year period.

13. Beginning March 1, 2008, the per-minute rate of $1.293 shall apply for inter- and intrastate IP Relay. NECA presented IP Relay rates ranging between $1.16 and $1.28, the latter reflecting both 2006 actual costs adjusted for inflation and a rate based on providers' projected minutes of use and costs, unadjusted. The Commission believes that the current rate reasonably compensates providers based on the cost data and the rates proposed by NECA, and that adopting the base rate for a three year period will add additional stability and predictability to the IP Relay rates. This rate shall continue through the 2009-2010 Fund year, subject to annual adjustment under the price cap plan.

14. Third, for VRS, the Commission adopts a tiered-rate cost recovery methodology which compensates VRS providers at different per-minute rates for monthly call minutes that fall within predetermined total call volume ranges. The VRS rates will be based on the providers' projected costs and minutes of use, and other data the VRS providers submit to the Fund administrator, subject to appropriate review and, where necessary, disallowances. Specifically, this tiered-rate approach is intended to reflect likely cost differentials between small providers (including new entrants); mid-level providers who are established but who do not hold a dominant market share; and large, dominant providers who are in the best position to achieve cost synergies.

15. This tiered-rate approach will allow providers that handle a relatively small amount of minutes and therefore have relatively higher per-minute costs to receive compensation on a monthly basis more likely to accurately correlate to their actual costs. Conversely, providers that handle a larger number of minutes, and therefore have lower per-minute costs, will also receive compensation on a monthly basis more likely to accurately correlate to their actual costs. Furthermore, under the tiered approach, all providers would be compensated on a “cascading” basis, such that providers would be compensated at the same rate for the minutes falling within a specific tier. In other words, all providers will be compensated at the highest rate for those minutes falling within the first tier; at the middle rate for those minutes falling within the middle tier, and at the lower rate for all additional minutes.

16. The Commission will set the tiers and their corresponding per-minute rates for a three-year period, and will reduce the rates annually by 0.5 percent while allowing providers to seek exogenous cost adjustments for new costs imposed that are beyond the providers' control. The 0.5 percent annual downward adjustment will reduce Fund expenditures and encourage VRS providers to gain efficiencies in providing VRS services. The Commission believes that these tiers are appropriate to promote competition, and ensure that the newer providers are compensated for their actual costs and that the larger, more established providers are not overcompensated.

17. Beginning March 1, 2008, the three following call volume tiers and their corresponding per-minute rates shall apply for VRS: For the first 50,000 monthly minutes, $6.77; for monthly minutes between 50,001 and 500,000, $6.50; and for monthly minutes exceeding 500,000, $6.30. Those tiers, the number and size of which will be reevaluated every three years, are based on the data regarding total monthly VRS minutes that the various providers have submitted to NECA. That data indicates, first, that the newer providers generally provide less than 50,000 minutes per month. For those providers offering a relatively small number of minutes, it is appropriate to base the rate on the providers' projected costs and minutes of use. As NECA's filing data reflects, the rate based on the providers' projected demand and cost data, without any disallowances, is $6.77.

18. The Commission believes that this rate fairly reflects the actual reasonable costs of the newer or smaller providers offering VRS in compliance with all non-waived mandatory minimum standards. Second, the NECA filing data indicates that more established providers provide monthly minutes ranging in the low hundreds of thousands. For those established but non-dominant providers, the Commission believes it is appropriate to base the rate on the $6.77 rate noted above, less marketing and certain undisputed cost disallowances. The resulting rate is $6.50. Finally, the NECA filing data shows that the dominant provider provides minutes ranging in the millions. Such call volumes lead to economies of scale that result in lower per-minute costs. Accordingly, the Commission adopts a rate of $6.30 for this third and final tier. This rate will encourage providers with large numbers of minutes to become more efficient.

19. Fourth, in addition to adopting new cost recovery methodologies and compensation rates, the Commission clarifies the extent to which certain cost categories are compensable from the Fund. Specifically, the Commission concludes that indirect overhead costs are not reasonable costs of providing TRS; accordingly, to be compensable, overhead costs must be directly related to, and directly support, the provision of relay service. The Commission also concludes that, to encourage competition in the VRS market, entry costs or start-up expenses of new entities seeking to provide VRS are compensable, but must be amortized in accordance with generally accepted accounting principles so that they are recovered over time and will not skew the rate in a particular year. Also, executive compensation is compensable to the extent that it is reasonable and is for services that “directly support the provision of TRS.” In determining what constitutes reasonable compensation, the Commission will consider bonuses, stock options, and other forms of compensation.

20. With respect to other, miscellaneous costs, financial transaction costs or fees unrelated to the provision of relay service, such as those relating to the sale or change in ownership or structure of a relay service entity, are not compensable expenses. Also, costs attributable to consumer premises equipment such as relay hardware and software used by the consumer, including installation, maintenance costs, and testing, are not compensable. The Commission will scrutinize the providers' submitted costs to ensure that such consumer premises equipment costs are not directly or indirectly included.

21. Finally, with respect to management and oversight of the Fund, the Commission reaffirms the role that the TRS Advisory Council may play in the oversight of TRS—including in the development of new cost recovery guidelines and compensation rate proposals, and further addressing of the compensability of certain cost categories—and expresses that the Council also can address other matters as assigned by the Commission. In addition, the Commission announces its intention of additional and more comprehensive auditing of TRS providers to ensure Fund integrity, by, for example, reviewing the underlying documentation supporting submitted cost and demand data, as well as minutes submitted for compensation.

22. The Commission also concludes that there should be more transparency to the rate setting process. The Commission realizes, however, that the interest in transparency must be balanced against the providers' interest in the confidentiality of their cost and demand data, an interest reflected in the Commission's rules. The Commission believes the MARS plan will make more transparent the determination of the traditional TRS, STS, CTS, and IP CTS rates. Not only does the Commission anticipate listing the State rates used in calculating the MARS rates and setting forth the final calculation that divides total costs by total minutes to determine the rate, but there are no cost adjustments to provider specific data in the determination of these rates, which furthers the goal of transparency.

23. In the Declaratory Ruling portion of the 2007 TRS Cost Recovery Order, the Commission reiterates its prior rulings that a TRS provider may not offer any direct or indirect, financial or other tangible, incentive to a TRS user or third party to encourage TRS users to make TRS calls that they would not otherwise make, including calls designed to elicit customer feedback on quality of service. Nor may a relay provider condition a user's ongoing use or possession of relay equipment, or the receipt of different or upgraded equipment, on the user making relay calls through its service or the service of any other provider. In other words, providers cannot give consumers equipment as part of outreach efforts or for other purposes, and then require that the equipment be relinquished if the consumer fails to maintain a certain call volume. Not only do such practices likely require the impermissible use of the providers' call database, and the impermissible monitoring of consumers' calls, they also constitute impermissible financial incentives.

24. In addition, relay providers may not use a consumer or call database to contact relay users for lobbying or any other purpose. The Commission has made clear that TRS customer profile information cannot be used for any purpose other than handling relay calls. Therefore, for example, a provider may not contact its customers, by an automated message, postcards, or otherwise, to inform them about pending TRS compensation issues and urge them to contact the Commission about the compensation rates. Similarly, a provider may not use call data to monitor the TRS use by its customers (or the customers of other providers) and to determine whether they are making a sufficient number of calls to warrant further benefits from the provider.

25. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. 605(b). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3). 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). Small Business Act, 15 U.S.C. 632.

26. The 2007 TRS Cost Recovery Order addresses issues related to cost recovery methodologies for various forms of TRS. The 2007 TRS Cost Recovery Order adopts a single cost recovery methodology based on the “MARS” plan for interstate traditional TRS, interstate STS, interstate CTS, and interstate and intrastate IP CTS. Beginning with the 2007-2008 Fund year, a single MARS rate will be calculated and will apply to interstate traditional TRS and interstate STS, interstate CTS, and IP CTS. Because states generally negotiate and pay separate rates for captioned telephone service, a separate MARS rate will be calculated and will apply to interstate captioned telephone service.

27. The Commission concludes that the MARS methodology, as proposed, cannot be applied to IP Relay because there are no state rates for these services. The Commission, therefore, continues to use a cost recovery methodology for IP Relay based on the providers' projected demand and cost data that reasonably compensates the providers for the provision of IP Relay service. The Commission also concludes that adopting the proposed price cap plan for IP Relay will encourage IP Relay providers to become more efficient in providing the service. The Commission believes that the price cap plan for IP Relay will not have a significant economic impact on a substantial number of small businesses.

28. The Commission concludes that adoption of the MARS plan for Interstate Traditional TRS, Interstate STS, Interstate CTS, and IP CTS for setting the rate eliminates the need to file the much more voluminous cost and demand data that providers presently must submit under the current cost recovery methodology to the Fund administrator. The Commission, therefore, concludes that the effect of the adoption of the MARS plan would be to lessen the reporting burden on small businesses. Accordingly, the Commission does not believe that these actions will have a significant economic impact on a substantial number of small businesses.

29. The Commission further believes that the decision to set a standard for how “reasonable” costs should be compensable under the present cost recovery methodology for all forms of TRS, as well as a standard for what “reasonable” costs should include, will provide guidance for the providers, and therefore, benefits small businesses in two ways. This includes setting a standard for whether, and to what extent, marketing and outreach expenses, overhead costs, and executive compensation are compensable from the Fund. First, it provides predictability, and secondly, it eliminates uncertainties with whether the costs submitted would be compensable or not. Eliminating uncertainties will lessen the reporting burden on small businesses. The Commission therefore concludes that the requirements of the 2007 TRS Cost Recovery Order will not have a significant economic impact on a substantial number of small entities.

30. The Commission expressed concern, based on comparisons of VRS providers' cost and demand projections with their actual historical data, that some VRS providers have received compensation significantly in excess of their actual costs. The Commission has also observed that providers' demand forecasts for VRS generally have been lower than actual demand, resulting in overcompensation to providers for completed minutes under the current per-minute cost recovery scheme.

31. The Commission, therefore, adopts three compensation rate tiers for VRS. These tiers are intended to reflect likely cost differentials between small providers; mid-level providers who are established but who do not hold a dominant market share; and large, dominant providers who are in the best position to achieve cost synergies. As a general matter, the three-tiered approach is based on market data reflecting the number of monthly minutes submitted to NECA by the various providers. The data reflects that the newer providers generally provide less than 100,000 minutes per month; that other, more established providers (with the exception of the dominant provider) generally provide monthly minutes ranging in the low hundreds of thousands; and that the dominant provider provides minutes ranging in the millions. The Commission, therefore, believes that using three tiers is appropriate to ensure both that, in furtherance of promoting competition, the newer providers will cover their costs, and the larger and more established providers are not overcompensated due to economies of scale.

32. By adopting a tiered approach, providers that handle a relatively small number of minutes and therefore have relatively higher per-minute costs will receive compensation on a monthly basis that will likely more accurately correlate to their actual costs. Conversely, providers that handle a larger number of minutes, and that therefore have lower per-minute costs, will also receive compensation on a monthly basis that likely more accurately correlates to their actual costs. Furthermore, the Commission concludes that under such a tiered approach, all providers will be compensated on a “cascading” basis, such that providers will be compensated at the same rate for the minutes falling within a specific tier. In other words, all providers will be compensated at the highest rate for those minutes falling within the first tier; at the middle rate for those minutes falling within the middle tier, and at the lower rate for all additional minutes. The Commission believes that using tiered rates, rather than a single, weighted average rate, will more fairly compensate all providers for their reasonable actual costs of providing service. Since fair compensation will benefit all providers equally, imposing no separate and adverse impact on smaller entities, the Commission further concludes that its tiered rates will not have a significant economic impact on a substantial number of small entities.

33. Because the Commission recognizes that potential STS users are not being made aware of the availability of STS, the Commission adds an additional amount to the STS compensation rate for outreach efforts. The Commission also requires that STS providers file a report annually with NECA and the Commission on their specific outreach efforts directly attributable to the additional support for STS outreach. Since STS providers will be compensated an additional amount for outreach, the Commission concludes that requiring STS providers to file an annual report will not have a significant economic impact on a substantial number of small entities.

34. Finally, in order to be compensated for the costs of providing TRS, the providers are required to meet the applicable TRS mandatory minimum standards as required in 47 CFR 64.604. See generally 47 CFR 64.604(c)(5)(iii)(E). Reasonable costs of compliance with the 2007 TRS Cost Recovery Order are compensable from the Fund. Thus, because the providers will recoup the costs of compliance within a reasonable period, the Commission asserts that the providers will not be detrimentally burdened. Therefore, the Commission certifies that the requirements of the 2007 TRS Cost Recovery Order will not have a significant economic impact on a substantial number of small entities.

35. The Commission also notes that, with specific regard to the issue of whether a substantial number of small entities will be affected, of the 13 providers affected by the ruling adopted herein, there are only three small entities that will be affected by the Commission's action. The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such firms having 1,500 or fewer employees. 13 CFR 121.201, NAICS code 517110. Currently, thirteen providers are providing various forms of TRS and being compensated from the Interstate TRS Fund: Ameritech; AT&T Corp.; CapTel, Inc.; Communication Access Center for the Deaf and Hard of Hearing, Inc.; GoAmerica; Hamilton Relay, Inc.; Hands On; Healinc; Nordia Inc.; Snap Telecommunications, Inc.; Sorenson; Sprint and Verizon. The Commission notes that 3 of 13 providers noted above are small entities under the SBA's small business size standard. Because three of the affected providers will be promptly compensated within a reasonable period for complying with the 2007 TRS Cost Recovery Order, the Commission concludes that the number of small entities affected by the Commission's decision in the 2007 TRS Cost Recovery Order is not substantial.

36. Therefore, for all of the reasons stated above, the Commission certifies that the requirements of the 2007 TRS Cost Recovery Order will not have a significant economic impact on these small entities.

37. The Commission will send a copy of the 2007 TRS Cost Recovery Order, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the 2007 TRS Cost Recovery Order and this final certification will be sent to the Chief Counsel for Advocacy of the SBA.

The Commission will send a copy of the 2007 TRS Cost Recovery Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Pursuant to Sections 1, 2, and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and 225, the 2007 TRS Cost Recovery Order IS ADOPTED.

An annual compensation rate shall apply to interstate traditional TRS and interstate STS based on the MARS plan and the intrastate traditional TRS and STS rate(s) paid by the states, as provided in the 2007 TRS Cost Recovery Order.

An annual compensation rate shall apply to interstate CTS and interstate and intrastate IP CTS based on the MARS plan and the intrastate CTS rate paid by the states, as provided in the 2007 TRS Cost Recovery Order.

A compensation rate shall apply to interstate and intrastate IP Relay based on price caps, and the rate shall be set for three-year periods, subject to adjustment, beginning with the 2007-2008 Fund year, as provided in the 2007 TRS Cost Recovery Order.

Tiered compensation rates shall apply to interstate and intrastate VRS based on minutes of use, and the rates shall be set for three-year periods, subject to adjustment, beginning with the 2007-2008 Fund year, as provided in the 2007 TRS Cost Recovery Order.

Effective March 1, 2008, the following per-minute compensation rates shall apply, as provided herein: for interstate traditional TRS: $1.592; for interstate STS: $2.723; for interstate CTS and interstate and intrastate IP CTS: $1.629; for interstate and intrastate IP Relay: $1.293; and for interstate and intrastate VRS: (1) For the first 50,000 monthly minutes: $6.77; (2) for monthly minutes between 50,001 and 500,000: $6.50; and (3) for monthly minutes above 500,000: $6.30.

The amendment to section 64.604 of the Commission's rules is adopted.

The 2007 TRS Cost Recovery Order shall be effective February 19, 2008, except § 64.604 (c)(5)(iii)(C) of the Commission's rules, which contains information collection requirements that are not effective until approved by OMB. The Commission will publish a separate document in the Federal Register announcing the effective date of the rule.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the 2007 TRS Cost Recovery Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

The Federal Communications Commission has received OMB approval for the rule changes published at 70 FR 39182, July 7, 2005. Through this document, the Commission announces that it received this approval on August 30, 2005.

In a Second Order on Reconsideration, released on March 17, 2005, FCC 05-75, and published in the Federal Register on July 7, 2005, 70 FR 39182, the Federal Communications Commission adopted rules which contained information collection requirements subject to that Paperwork Reduction Act. On August 30, 2005, the Office of Management and Budget approved the information collection requirements contained in 47 CFR 73.870(a) and 73.871(c). This information collection is assigned OMB Control Number 3060-0920. This publication satisfies the requirement that the Commission publish a document announcing the effective date of the rule changes requiring OMB approval.

This is a summary of the Commission's Third Report and Order , FCC 07-204, adopted on November 27, 2007, and released on December 11, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In March 2005, the Commission released a Second Order on Reconsideration (Second Order), 70 FR 39182, July 7, 2005 and Further Notice of Proposed Rulemaking (FNPRM), 70 FR 39217, July 7, 2005 as part of its ongoing efforts to promote the operation and expansion of the low power FM (LPFM) service. In the Second Order , the Commission made minor changes to the LPFM rules. The accompanying FNPRM sought comment on a number of issues related to ownership and eligibility restrictions for LPFM licensees, as well as technical matters related to the LPFM service. This Third Report and Order resolves the issues raised in the FNPRM . In so doing, this Order advances the Commission's goal “to ensure that we maximize the value of LPFM service without harming the interests of full-power FM stations or other Commission licensees.” In light of changed circumstances since we last considered the issue of protection rights for LPFM stations from subsequently authorized full-service stations, we also find it necessary to consider certain rule changes to avoid the potential loss of LPFM stations. Accordingly, we issue a Second Further Notice of Proposed Rulemaking ( Second FNPRM ) to seek comment on these changes.

2. In January 2000, the Commission adopted rules to establish two classes of LPFM facilities: (a) The LP100 class, consisting of stations with a maximum power of 100 Watts effective radiated power (ERP) at 30 meters antenna height above average terrain (HAAT), providing an FM service radius (1 mV/m or 60 dBμ) of approximately 3.5 miles (5.6 kilometers); and (b) the LP10 class, consisting of stations with a maximum of 10 Watts ERP at 30 meters HAAT, providing an FM service radius of approximately one to two miles (1.6 to 3.2 kilometers). The Report and Order , 65 FR 7615, February 15, 2000 announcing those classes imposed separation requirements for LPFM stations to protect full-power FM stations operating on the co-, first-, and second-adjacent channels, as well as stations operating on intermediate frequency (IF) channels. The Report and Order concluded, however, that imposition of a third-adjacent channel separation requirement would restrict unnecessarily the number of LPFM stations that could be authorized, and therefore declined to impose that requirement.

3. The Report and Order also established ownership and eligibility rules for the LPFM service. The Commission restricted LPFM service to noncommercial educational (NCE) operations, restricted licensee eligibility to applicants with no attributable interests in any other broadcast station or other media subject to our ownership rules, and prohibited the assignment or transfer of LPFM stations. The Commission also determined that, during the two years following the first LPFM filing window, no entity would be permitted to own more than one LPFM station and that ownership should be restricted to local entities. To choose among entities filing mutually exclusive applications for LPFM licenses, the Report and Order set forth a point system that favors local ownership and locally-originated programming, with ties between competing applicants resolved by either voluntary time-sharing agreements between such applicants or, in the event that they cannot so agree, the imposition of “involuntary time-sharing,” with each tied and grantable applicant awarded an equal, successive and non-renewable license term of no less than one year, for a combined total eight-year term. Finally, the Report and Order directed the then-Mass Media Bureau to establish filing windows for LP100 applications.

4. The Commission revised and clarified some of its LPFM rules in a September 2000 Memorandum Opinion and Order on Reconsideration (Reconsideration Order), 65 FR 67289, November 9, 2000. The Reconsideration Order declined to adopt the more restrictive channel separation requirements urged by certain petitioners. Instead, the Commission adopted complaint and license modification procedures to address unexpected third-channel interference problems caused by LPFM stations. The Reconsideration Order modified spacing standards to require LPFM stations to protect radio reading services. Beyond the issue of interference, the Commission increased ownership flexibility for universities, state and local governments, and entities operating public safety or transportation services. Finally, the Reconsideration Order addressed a number of technical and ownership issues and clarified the eligibility rules for certain groups.

5. After the Commission declined to impose third-adjacent channel separation requirements in the Reconsideration Order , Congress directed the agency to do so in the Making Appropriations for the Government of The District of Columbia for FY 2001 Act (2001 DC Appropriations Act). In that legislation, Congress instructed the Commission to prescribe third-adjacent channel spacing standards for LPFM stations and to deny LPFM applications of applicants that previously had engaged in the unlicensed operation of a radio station. The 2001 DC Appropriations Act also directed the Commission to evaluate the likelihood of interference to existing FM stations if LPFM stations were not subject to the third-adjacent channel spacing requirement.

6. As a result of the spacing requirement imposed by the 2001 DC Appropriations Act, a number of facilities proposed in otherwise technically grantable applications became short-spaced to existing full-power FM stations or translators, leading to the eventual dismissal of those applications. To evaluate the likelihood of interference in the absence of a third-adjacent channel separation requirement, the Commission selected an independent third party—the Mitre Corporation—to conduct field tests. The Commission then sought public comment on Mitre's reported findings. In February 2004, the Commission submitted its report to Congress, recommending that, based on the Mitre study, Congress “modify the statute to eliminate the third-adjacent channel distan[ce] separation requirements for LPFM stations.”

7. In the March 2005 Second Order , the Commission reexamined some of the rules governing the LPFM service, noting that the rules might need adjustment in light of the experiences of LPFM applicants and licensees. The Commission also took into account comments made at a February 2005 forum on LPFM that had addressed “achievements by LPFM stations and the challenges faced as the service mark[ed] its fifth year.” The Second Order clarified that “local program origination,” as that term is used in § 73.872(b)(2) of the Commission's rules, does not include the airing of satellite-fed programming. The Second Order also modified slightly the definitions of “minor change” and “minor amendment.”

8. In the accompanying FNPRM , the Commission sought comment on a number of issues with respect to LPFM ownership restrictions and eligibility. The Commission asked whether LPFM licenses should be assignable or transferable and whether the temporary restrictions on multiple ownership of LPFM stations and on non-local ownership should be extended or allowed to sunset. Because “introducing some level of transferability to the LPFM service is critical,” the Commission delegated to the Media Bureau the authority to waive the prohibition on the assignment or transfer of a LPFM station contained in § 73.865 of the rules on a case-by-case basis and cited examples of circumstances in which the grant of such a waiver might be appropriate:

9. The Commission also proposed certain changes to the rules governing the formation and duration of voluntary and involuntary time-sharing arrangements among mutually exclusive LPFM applicants. The FNPRM also considered a number of changes to the LPFM technical rules. The Commission proposed to extend the construction period for LPFM stations and to allow time-sharing applicants greater flexibility to amend their applications to relocate the transmitter to a central location. The FNPRM also sought comment on the relationship between the LPFM and full-power FM services. Noting that thousands of FM translator applications remained pending from the 2003 filing window, the Commission froze the processing of those applications and sought comment on possible adjustments to the co-equal status of LPFM stations and FM translators with regard to interference between them. The Commission also sought comment on whether LPFM stations should be protected from interference from subsequently authorized FM stations. Finally, the Commission denied a request by the Media Access Project (MAP) to schedule “regular” filing windows for LPFM new station applications and major modification applications.

10. During the seven years since we created the LPFM service, that service has flourished for the most part, but also has encountered unique obstacles. To date, the Media Bureau has received 3236 applications for new LPFM construction permits, of which 1,286 have been granted. Currently, there are 809 LPFM stations operating throughout the country. At the same time, the Media Bureau was compelled to cancel 17 station licenses and 95 construction permits for failure by the holder to satisfy certain procedural and/or technical requirements. In view of this practical experience with LPFM service, we now turn to the issues raised in the FNPRM . In resolving those issues, we seek to increase the number of LPFM stations that are on the air and providing service to the public, and to promote the continued operation of LPFM stations already broadcasting, while avoiding interference to existing FM service.

11. Section 73.865 of the rules provides that “[a]n LPFM authorization may not be transferred or assigned except for a transfer or assignment that involves: (1) Less than a substantial change in ownership or control; or (2) An involuntary assignment of license or transfer of control.” The Reconsideration Order clarified that the gradual change of a licensee's governing board or membership body is a permissible “insubstantial change,” even if the majority of current members joined after the station's authorization was granted. As the FNPRM noted, however, “[o]ur rules * * * do not permit a sudden change in the board or membership of an LPFM licensee, which would constitute an impermissible transfer of control.” Panelists at the February 2000 LPFM forum and other parties concerned with the viability of LPFM stations remarked that the proscription of sudden changes in governing board membership causes unnecessary complications for LPFM licensees. Responding to that concern, the FNPRM proposed to amend our rules to permit sudden changes of more than 50 percent of the membership of governing boards.

12. As commenters have since observed, frequent elections and changes in governing board membership are common among volunteer organizations and other entities that operate LPFM stations. As LPFM station KVLP-LP noted, experience on the board of an LPFM station can confer valuable leadership experience to community members, leading community groups to encourage frequent shuffling of board membership. Unsurprisingly, then, most commenters favor amending our rules to permit transfers of control in the case of a sudden change in a majority of a governing board's membership so long as the overall mission of the organization remains unchanged.

13. We agree. In crafting our LPFM rules, the Commission intended to preserve the integrity of the LPFM service and of the local organizations operating LPFM stations. We did not intend, however, to hamper the customary governance procedures of those organizations or to make LPFM less “accessible to community groups.” To the extent that our rules have blocked that access, we now remove that inadvertent barrier and adopt the FNPRM 's proposal to allow sudden changes of more than 50 percent of the membership of governing boards. Accordingly, we will amend § 73.865 of our rules to clarify that transfers of control involving a sudden change of more than 50 percent of an LPFM licensee's governing board shall not be deemed “a substantial change in ownership and control.”

14. The FNPRM sought comment on whether the rules should permit the sale of LPFM authorizations, for some or no consideration, and whether they should impose a holding period by the initial permittee and licensee. Noting that at least 221 construction permits have lapsed due to the permittee's failure to construct facilities, REC Networks (REC) argues that an LPFM permittee or licensee should be able to convey its authorization when doing so would prevent the loss of the permit. Indeed, most commenters support amending the rules to permit sales in at least some circumstances, although they express diverse views with respect to when such transactions should be allowed. At one extreme are those commenters who maintain that LPFM stations should be transferable without restriction because there is little risk of manipulation or take-over in the “market” for LPFM authorizations. At the opposite end of the spectrum are those who contend that transfers of control or assignments should be limited to those situations in which the assignee or transferee “represents the community” and no consideration is involved. Prometheus argues that the Commission should not allow transfers or assignments to be made in exchange for consideration, as such a rule could lead to speculation by those with substantial resources, at the expense of local community groups that lack funding.

15. The for-profit sale of LPFM authorizations to any buyer is fundamentally inconsistent with the Commission's desire to promote local, community based use and ownership of LPFM stations. Transfers of control or assignments for consideration will create a market for LPFM licenses and may facilitate trafficking in licenses by those who have no interest in providing LPFM services to the public. Such a state of affairs would likely interfere with, rather than spur development of, community-based programming and hamper the ability of community-based entities to obtain LPFM authorizations. Therefore, we will not permit the sale of LPFM licenses for consideration exceeding the depreciated fair market value of the physical equipment and facilities of the station, and will not allow under any circumstances the transfer or assignment of construction permits.

16. With respect to the imposition of eligibility restrictions on a transferee or assignee of an LPFM license, some commenters suggest that we permit the sale of an LPFM authorization to any willing buyer. Others suggest that we limit the universe of eligible assignees and transferees to other local nonprofits. We conclude that the appropriate balance is struck by requiring the assignee or transferee of an LPFM license to satisfy ownership and eligibility criteria existing at the time of the assignment or transfer. That restriction will prevent entities from using intermediaries to circumvent our LPFM eligibility requirements and will further address our concern about potential trafficking in LPFM authorizations by ensuring that future LPFM licensees meet the Commission's criteria for LPFM service. At the same time, permitting assignments or transfers among qualified parties will allow newly-“merged” local entities, consisting of several eligible organizations, to pool their resources to provide the necessary financial support for quality local programming when, standing alone, those entities would be otherwise incapable of constructing and operating an LPFM station.

17. For all transfers and assignments, we will require a three year holding period from the issuance of license, during which a licensee cannot transfer or assign the license, and must operate the station, as suggested by Prometheus. That restriction will prevent entities from using the LPFM assignment and transfer process to undermine the Commission's LPFM policies and will ensure that the benefits to the public which were the basis for the license grant will be realized.

18. The FNPRM asked what procedures would be appropriate to allow assignments and transfers while ensuring the integrity of the LPFM service. Because many LPFM permittees and licensees are entities that do not issue ownership shares, the Commission drew attention to the Non-Stock Transfer NOI for guidance in establishing the procedures for transfers of control of such licensees. The Non-Stock Transfer NOI proposed to treat a sudden change of a governing board's majority as an insubstantial transfer for which approval must be sought on an FCC Form 316 (short form) broadcast application. The FNPRM sought comment on adopting a similar approach for changes in the governing boards of LPFM permittees and licensees that are non-stock entities. The FNPRM also sought comment on the process by which LPFM stations should seek approval of assignments and transfers of control.

19. Few commenters addressed the issue of the appropriate procedures for transfers of control or assignments of LPFM authorizations. Christian Community Broadcasters proposed using a modified FCC Form 318 LPFM construction permit application to cover all instances of ownership changes or changes in board membership. Limestone Community Radio suggested instead that entities use a modified FCC Form 316 for “typical” changes in station ownership. Still other commenters suggest that the Commission should take a more active role in overseeing any LPFM ownership changes to ensure “ethical use” of LPFM licenses.

20. We will use existing FCC forms for the conveyance of LPFM licenses, rather than adopting new forms and filing procedures. We see no reason to depart from the filing procedures that currently are used for other broadcasting services. Accordingly, we direct LPFM licensees to use modified FCC Forms 314 and 315 for assignments and transfers of control, respectively, and FCC Form 316 for pro forma changes in ownership. We will apply the Non-Stock Transfer NOI to appropriate LPFM licensees, and thus, will interpret a sudden change of a governing board's majority as an insubstantial transfer for which approval must be sought on an FCC Form 316 (“short form”) broadcast application. Use of these forms offers many advantages, particularly to smaller entities that have few resources to dedicate to the application process, such as the ability to retrieve and submit the forms electronically.

21. As discussed above, the rules required that, during the two years following the first LPFM filing window, no entity was permitted to own more than one LPFM station, and ownership was restricted to local entities. The rules gradually relaxed these restrictions. Currently, the rules limit the number of LPFM stations a single entity may own up to ten stations and the rule that allows only local entities to apply for LPFM licenses has sunsetted. As we explained in the FNPRM , the Commission's intention in gradually increasing the ownership limitation from one to ten stations and in allowing the local entity restriction to sunset “was to make it more likely that local entities would operate this service, but to ensure that if no local entities came forward, the available spectrum would not go unused.” In connection with its query of whether to allow the sale of LPFM stations, the FNPRM asked if either the ownership limitation or the restriction to local entities should be extended or reinstated.

22. Several organizations urge the Commission to maintain “strict local and multiple ownership requirements,” to ensure that LPFM service continues to advance the public's interest in localism and diversity. According to some of these commenters, any relaxation of either the multiple ownership restriction or the locality-based restriction is fundamentally at odds with the “community radio” rationale that justifies the existence of LPFM stations. Prometheus Radio Project argues that, even when no local entity applies for an LPFM authorization, non-local entities should be barred from applying, because “LPFM is not a goal in itself, rather it is a means to promote localism.”

23. We agree. As emphasized in our Report and Order , our two primary goals in establishing the LPFM service were to “create opportunities for new voices on the airwaves and to allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests.” The Report and Order also stated that the potential benefit of allowing multiple ownership—increased efficiency—was clearly outweighed by “the benefit to a community of multiple community-based voices.” By amending the rules to permanently limit LPFM eligibility, we protect the public interest in localism and foster greater diversity of programming from community sources. Thus, we will reinstate the prohibition on the ownership of more than one LPFM station.

24. In addition, we agree with those parties that suggest that we reinstate the local ownership restrictions. Although growing in both usage and recognition, LPFM service is still in its nascence and doing away with the locality restriction could threaten its predominantly local character, in particular the hallmark of a LPFM station's local character, its local origination of programming. In upholding the local origination selection criterion for mutually exclusive applications, our Second Order emphasized that local origination is “intended to encourage licensees to maintain production facilities and a meaningful staff presence within the community served by the station.” Even outside the limited context of mutually exclusive applications, we view local origination as a central virtue of the LPFM service and therefore will reinstate the eligibility restriction contained in § 73.853(b) of the rules to encourage local origination. We also wish to clarify our definition of local origination. According to Prometheus, a licensee could theoretically create one program, continually repeat it on a tape loop, and still claim it meets the definition of local origination. Prometheus asserts that in order to meet the local origination requirement, programming cannot be automated, including randomized songs or long blocks of locally produced programming run multiple times, and cannot be aired more than two times. We agree that there is room for abuse here, and as such, we clarify that repetitious automated programming does not meet the local origination requirement. We will only allow a program to be broadcast twice in order to meet the local origination requirement. After its initial broadcast a program can be rebroadcast once and still meet our requirement. After that, the program cannot count toward the local origination requirement.

25. Finally, we adopt the suggestion by Prometheus that we extend the local standard for rural markets. Pursuant to § 73.853(b) of the rules, an LPFM applicant is deemed local if it is physically headquartered or has a campus within ten miles of the proposed LPFM transmitter site, or if 75 percent of its board members reside within ten miles of the proposed LPFM transmitter site. The ten-mile limit was adopted based on the “station's likely effective reach.” Prometheus' comments express concern that this ten-mile local entity standard is difficult to meet for rural applicants, especially in finding board members who reside within ten miles of the proposed transmitter site. Prometheus states that people in rural communities often listen to and participate in stations that are outside of their home coverage area, because they listen to the station while driving to and from work. As such, Prometheus requests modifying the ten-mile requirement to twenty miles for all LPFM applicants for proposed facilities in other than the top fifty urban markets, for both the distance from transmitter and residence of board member standards. We agree with Prometheus that applicants for stations located in rural communities find it particularly challenging to meet the current ten-mile standard. We also agree that the concept of “local” should be more expansive in rural areas. Accordingly, we will revise § 73.853(b) of the rules to reflect Prometheus' proposal.

26. The Report and Order established a comparative point system for determining which among mutually exclusive LPFM applicants should receive the authorization that they commonly seek. If such applicants have the same point total, two or more of the tied applicants may propose to share use of the LPFM frequency by submitting a time-share proposal within 30 days of the release of a public notice announcing their tie. If the tie among the applicants is not resolved through a voluntary time-sharing agreement, the tied applicants submitting grantable applications are placed in an involuntary time-sharing arrangement, and granted equal, successive, non-renewable license terms for the applied-for facility of no less than one year each, for a total combined term of eight years. The FNPRM proposed amending the rules governing mutually exclusive LPFM applications in two key respects. First, in response to a request by MAP, the FNPRM proposed to extend, from 30 to 90 days, the period allowed for applicants to submit a voluntary time-sharing agreement. Second, the FNPRM proposed to amend the rules to permit the renewal of licenses granted under the involuntary time-sharing successive licensing procedures. We address those proposals in turn.

27. In its Petition for Reconsideration of the Report and Order , MAP observed that “LPFM applicants are largely comprised of small organizations with few administrative resources,” and that few applicants “have access to the expertise of professional engineers.” Accordingly, few applicants are able to identify mutually exclusive applications before receiving notice from the Commission that they are tied with others, leaving them only 30 days to contact the other applicants, complete negotiations and execute and file their agreements with the Commission. Because those negotiations likely will be conducted by inexperienced volunteers, MAP argues, reaching a successful compromise within that time frame is very unlikely. Finding MAP's argument persuasive, the FNPRM proposed to extend to 90 days the time period within which mutually exclusive LPFM applicants must reach and file a voluntary time-sharing arrangement.

28. All commenters who addressed the issue favor adoption of the proposal to so extend the negotiation and filing period to 90 days. NPR, “recogniz[ing] the fundamental importance of a diversity of programming services and station ownership,” observes that allowing LPFM applicants more time to enter into voluntary time-sharing arrangements will promote that diversity. Similarly, REC contends that 30 days is not enough time in which to reach and file a viable time-sharing agreement. REC sought to assist applicants with negotiations of universal settlements, but found that often basic contact information supplied on the applications was inaccurate. Drawing from that experience and similar considerations, REC urges the Commission to extend the period of time in which mutually exclusive applicants may negotiate and file time-sharing agreements.

29. We agree with the views of NPR, REC, and others, and therefore adopt the FNPRM 's proposal to extend the negotiating and filing period to 90 days. Mutually exclusive LPFM applicants should be given every opportunity to arrive at a negotiated time-sharing arrangement before the LPFM rules impose a successive-term licensing scheme on the applicants. To the extent that the 30-day time period in § 73.872 of the rules has impeded the successful negotiation of time-sharing arrangements, we remove that impediment and hope that this will reduce considerably the likelihood that involuntary time-sharing arrangements with multiple successive license terms will be necessary.

30. Section 73.872(d) of the rules provides that an LPFM authorization issued under involuntary time-sharing arrangements, under which mutually exclusive applicants are granted successive license terms, is not renewable. The FNPRM also proposed that we change this provision and make such authorizations renewable. The FNPRM sought comment on how the renewal process should operate, given that increased flexibility in the rules governing assignments and transfers of control may lead licensees under such arrangements to negotiate voluntary time-sharing agreements among themselves.

31. REC is one of the few commenters to respond to our queries about involuntary time-sharing arrangements. In its submission, REC suggests that if licensees under an involuntary time-sharing arrangement “come up with a universal settlement to engage in a conventional time-share arrangement * * * the Commission should grant such an arrangement and remove the non-renewable condition of the permit and/or license.” REC further proposes that, at the end of the eight-year term, all licensees in a successive license term group should each be permitted to file a renewal application.

32. The FNPRM tentatively proposed to make renewable all viable licenses under both voluntary and involuntary time-sharing arrangements. Making renewable only the authorizations of those organizations that can reach a mutually acceptable agreement with respect to scheduling, however, will provide a powerful incentive to licensees that thus far have been unable to reach such agreement. This will lead to more efficient use of the spectrum. Accordingly, we agree with REC that when organizations subject to an involuntary time-sharing arrangement reach a “universal settlement” with respect to the allocation of time on the relevant frequency, the non-renewable condition of their authorizations should be removed.

33. For the same reasons, we also agree with REC that stations subject to involuntary time-sharing under successive license terms that subsequently enter into a voluntary time-sharing agreement should be permitted to file a renewal application. However, we are not persuaded that we should accommodate those licensees with successive license terms that fail to reach a universal voluntary agreement with the ability to renew. By doing this, we would be rewarding such applicants' unwillingness or inability to reach such agreements. We note that, of the more than 1,200 construction permits granted in the LPFM service, currently no stations hold authorizations for involuntary time sharing. In this Order, we have extended the 30-day time period in § 73.872 of the rules for applicants to negotiate and file universal voluntary time-share agreements to 90 days. We have also enabled those applicants originally issued involuntary time-share permits that reach such agreements to ultimately acquire renewable licenses. We believe that these measures will greatly reduce the likelihood that involuntary time-sharing arrangements will be necessary. Therefore, we decline to provide a renewal expectancy for involuntary time-share licensees. We strongly encourage any such permittees and licensees and future mutually exclusive applicants to enter into universal voluntary time-share agreements.

34. Making renewable the authorizations of parties who time-share who have reached voluntary time-sharing agreements raises a number of practical questions with respect to how and when those arrangements will supersede involuntary ones. First, we must determine when a voluntary time-sharing agreement should replace the successive-term structure of the involuntary arrangement. As we noted in the FNPRM , it is likely that licensees will reach universal time-sharing agreements prior to seeking renewal. We will therefore construe the superseding agreement as a “minor change,” allowing the licensees who seek to operate under a universal voluntary time-sharing agreement to file the minor change application as soon as the agreement is reached, rather than having to wait for a filing window. Expediting our approval of voluntary time-sharing arrangements in this manner will encourage prompt negotiations among licensees operating under involuntary time-sharing arrangements and, it is hoped, promote a more efficient use of scarce LPFM spectrum than that under the successive licensing terms that apply to involuntary time-sharing arrangements. Accordingly, we will revise the rules to facilitate those voluntary agreements. We stress, however, that voluntary time-sharing agreements must be genuinely universal, involving all permittees and licensees of a particular LPFM facility. That is, to give rise to a renewal expectancy, all of those in a time-share group must be parties to the time-sharing agreement.

35. To ensure that voluntary time-sharing arrangements will result in the most efficient use of LPFM spectrum, we also must address how to apportion unused airtime among licensees in a time-share group. This circumstance may arise in a number of ways. For example, a permittee in that group could fail to construct its facilities, decide to cease operations, or have its authorization revoked for a serious violation of the rules. There might also be situations in which no permittee or licensee has come forward requesting to operate during a certain part of the day or week. REC points to an example in Visalia, California, where one licensee, KFSC-LP, broadcasts from 5 to 9 a.m. Monday through Saturday and a second licensee, KQOF-LP, broadcasts from 5 to 9 p.m. Monday through Saturday. No licensee broadcasts other than those times. REC proposes that, prior to the opening of a new filing window, new entrants who can reach a universal settlement with existing stations should be allowed to do so. REC also argues that new entrants should be allowed to apply for periods of unused time once a window for new applications has opened.

36. We agree with REC that, during filing windows for new applications, new parties should be permitted to apply for unused and unwanted time on a particular frequency. We will not entertain such applications outside of an open filing window, however, even when the potential new entrant could successfully negotiate a universal settlement with existing licensees. Aside from the administrative burden that such out-of-window filings could create, allowing a new entrant to act before a formally-announced filing window could prejudice unfairly other potential applicants who, under the comparative criteria set forth in § 73.872(b) of the rules, would be entitled to a preference over the would-be new entrant's mutually exclusive application. Restricting applications for unwanted time to new filing windows does raise a potential concern in that the restriction will leave periods of time on a particular frequency vacant until the Commission elects to open a filing window for new applications. To alleviate that concern, and to promote a more efficient use of available LPFM frequency, we will allow existing stations in a voluntary time-share group to apportion among themselves any time that, for any reason, becomes unused. As with the negotiation and execution of voluntary time-sharing agreements by parties in an involuntary time-share arrangement, we will deem amendments to a voluntary time-sharing agreement to account for unused time requests to be minor modifications that may be filed at any time.

37. The Report and Order established an 18-month construction period for all LPFM facilities, stating that deadlines would be strictly enforced. However, as a temporary measure, the FNPRM adopted an interim waiver policy to allow permittees with soon-to-expire permits to request additional time to construct their facilities. Under that policy, the Media Bureau has the authority to consider and grant requests for an additional 18 months to construct facilities, upon a showing that the permittee reasonably can be expected to complete construction within the extended period.

38. As a permanent solution, the FNPRM proposed extending the construction period for LPFM stations to 36 months, the construction period afforded to all other broadcast permittees. During the six years since the release of the 2000 Report and Order , our assumption that LPFM facilities would require significantly less time to build than that required to construct full-power FM facilities has proven to be overly optimistic. LPFM licensees have encountered varying difficulties in locating suitable transmitter sites, raising sufficient funds for the proposed facilities, and obtaining the necessary zoning permits. The FNPRM thus proposed extending the construction period in order “to maximize the likelihood that LPFM permittees will get on the air.”

39. Many commenters favor extending the construction period. Some state that the blanket adoption of a 36-month construction period has administrative advantages over a conditional extension or case-by-case review of individual waiver requests. Moreover, extending the construction period to 36 months would put the LPFM and full-power FM services on equal footing and avoid disenfranchising able, willing, but inexperienced, LPFM permittees. Prometheus Radio Project and others contend that the better approach is to grant an 18-month extension to complete construction, but only upon demonstration of good cause. Prometheus argues that such a procedure would give able and willing LPFM permittees a total of 36 months to construct their facilities but prevent unable or unwilling LPFM permittees from warehousing valuable spectrum, without service to the public, for an extended period of time.

40. We seek to encourage permittees to construct their facilities within 18 months, and therefore, decline to adopt a blanket 36-month construction period for LPFM. We agree with Prometheus that this approach will prevent unwilling/unable applicants from sitting on valuable spectrum. We recognize, however, that some permittees may face difficulties in meeting this deadline. Therefore, we will amend the rules to allow all permittees, including current ones whose construction permits have yet to expire, the opportunity to seek an 18-month extension to complete construction of their facilities upon a showing of good cause. Because any such extension should account adequately for the delays resulting from the potential inexperience of the permittee, as well as for potential obstacles that may arise during the zoning or permitting processes, that extended construction deadline will be strictly enforced, as it is with all other radio broadcast stations; we do not expect to entertain, and most likely will not grant, waiver requests or those for further extensions.

41. Section 73.871 of the rules limits the ability of applicants to propose site changes by minor amendment to relocations of 3.2 kilometers or less for an LP10 station, and 5.6 kilometers or less for an LP100 station. That rule prevents time-sharing applicants from relocating their transmitters to a central location unless the site falls within those distance limits. To increase flexibility for time-sharing applicants and thereby promote voluntary time-sharing agreements, the FNPRM proposed to allow time-sharing applicants to file minor amendments to relocate their transmitters to a central location, notwithstanding the site relocation limits imposed by § 73.871 of the rules.

42. Few commenters have responded to our queries about technical amendments by time-sharing applicants under § 73.871 of the rules. In 2001, UCC requested that we amend the rules to allow applicants that submit a voluntary time-share agreement to relocate the transmitter to a central location, provided that one is available. The Commission has a long-standing policy of providing mutually exclusive applicants with maximum flexibility to enter into time-share agreements in order to facilitate rapid licensing in the service. For instance, in 2003, the Commission by public notice waived § 73.871 of the rules for a time to permit all LPFM settling applicants the ability to file major change amendments specifying new FM channels. Permitting parties to file time-share agreements to specify a “central location” beyond the current minor amendment distance limitations would remove one more potential impediment to such agreements. Accordingly, we amend § 73.871 of the rules to permit time-sharing applicants to specify a central transmitter location with a minor amendment without regard to the respective 3.2 and 5.6 kilometer limitations on such amendments. These agreements, which permit a number of different organizations to reach local audiences, promote diversity. Providing applicants additional flexibility and the opportunity to avoid the construction of duplicate facilities also serves the public interest. For the same reason, we amend that rule to allow permittees and licensees that reach a voluntary time-sharing agreement after their permits have been granted to submit such site change applications by minor submission. We anticipate that this rule change will encourage time-share applicants, permittees and licensees to consolidate transmission and studio facilities.

43. The FNPRM identified several possible ways to modify the LPFM-FM translator interference protection requirements. Currently, stations in these two services operate on a substantially co-equal basis, with a facility proposed in an application having “priority” over one specified in any subsequently filed application. The FNPRM sought comment on whether, and if so, under what circumstances LPFM applications should be treated as having priority status over prior-filed FM translator applications and granted authorizations. In particular, the Commission sought comment on how to overcome the significant preclusive impact of the 2003 Auction No. 83 translator filing window, asking among other things whether all pending applications for new FM translator stations filed during the window should be dismissed. The FNPRM explained that the staff already had granted approximately 3,500 new station construction permit applications from the singleton filings, “a number nearly equal to the total number of FM translator stations licensed and operating prior to the filing window,” that 7,000 applications remained on file, that very few opportunities for LPFM stations in major markets remained prior to the 2003 translator filing window, and that the Auction No. 83 filing would have a “significant preclusive impact on future LPFM licensing opportunities.” The voluminous comments submitted in response to the priority issue focus on two possible theories supporting modification of the current rule: (1) That LPFM provides a “preferred” radio service to that offered by translators; and (2) that priority status for LPFM applications is necessary to overcome the preclusive impact of the over 13,000 technical proposals filed during the 2003 Auction No. 83 FM translator window.

44. LPFM advocates contend that their service is preferable to translator service. They note that the rules require LPFM stations to be locally owned and permit local program origination. They note that, in contrast, many translators merely rebroadcast satellite-distributed national programming. Some LPFM advocates request priority status for only those LPFM stations that originate programming. Others request priority status over all “distant” translators, i.e. , translators that rebroadcast the signals of non-local stations.

45. NAB, NPR, the various state broadcast associations, and virtually all full-service commercial and NCE broadcasters support retention of the current interference protection rules. They argue that there are no simple ways to distinguish preferred stations or programming. They also claim that there is no such thing as a typical LPFM or FM translator station. They reject as unfounded the contention that program origination or local ownership correlates to more desirable programming. They note that LPFM licensees have limited service responsibilities with regard to their communities of license: LPFM stations need not originate programming; many serve the needs of niche interest groups rather than their entire communities of license; they are not required to maintain a main studio or public file; and they are required to operate for only 35 hours per week. Many broadcasters contend that, because the LPFM service is still in its infancy, it is premature to reassess the “co-equal” status of LPFM and FM translator stations. NCE and public radio broadcasters argue that giving LPFMs priority over operating FM translator stations would significantly disrupt established and valued translator service to millions of listeners, particularly those in rural areas and in situations in which broadcasters rely on “chains” of translators to distribute programming. The public radio commenters note that translators are a critical component of the public radio infrastructure. A number of other commenters urge that a “fill-in” translator should be treated as the equivalent of its associated primary full-service station and, therefore, always preferred to an LPFM station.

46. With regard to the potentially preclusive impact of the over 13,000 FM translator applications filed in 2003, some commenters argue that the LPFM service is not entitled to any special consideration because LPFM applicants had the first opportunity during the 2000-2001 national LPFM windows to apply for new stations. Translator advocates note that their last opportunity for non-reserved band FM translators occurred in 1997. Edgewater Broadcasting, Inc. (Edgewater) submits an extensive analysis of the preclusive impact of the construction permits issued out of the 2003 translator filing window and the more limited impact of the over 1,000 permits issued to it and its commonly-owned Radio Assist Ministries. Edgewater contends that the preclusive impact has been “miniscule,” notes that the Commission received no LPFM applications to serve many of the areas specified in its translator filings, and argues that its studies demonstrate that vast areas in the country remain available for new LPFM stations. REC also submits both national and market-specific analyses and identifies several communities in which 2003 window filings have allegedly precluded or diminished LPFM station licensing opportunities.

47. The Station Resource Group, an alliance of 45 public radio broadcasters that operate 168 radio stations, contends that the chief contributor to LPFM station preclusion is a “maxed out spectrum situation” which prevents any broadcasters, NCE or commercial, translators or LPFM stations, from obtaining new licenses in virtually all major markets and many medium-sized markets. Several commenters argue that the statutory third-adjacent channel LPFM protection requirement blocks many otherwise-licensable LPFM opportunities.

48. A number of commenters argue that the Commission's concern is misdirected. They urge the Commission to instead move vigorously against alleged FM translator filing abuses, speculators, and deficient application filings. They suggest imposing numerical application filing limits, either on a prospective basis or with regard to the still-pending translator applications. Several contend that the high demand for new FM translators is unsurprising, given the extended freeze on non-reserved band licensing.

49. As demonstrated by the comments filed on this issue, the LPFM and FM translator services are each valuable components of the nation's radio infrastructure. We agree with the advocates for each of these services regarding the important programming that these stations can provide to their local communities. We do not reach the merits of the priority rules between these two services here. Instead, we seek further comment in the attached Second FNPRM to develop a better record on whether and how our current rule affects our core goals of localism, diversity and competition. The current rules will remain in effect until the Commission resolves the issue in that proceeding.

50. We also must consider the question of whether Auction No. 83 filing activity has adversely impacted our goal to provide to both LPFM and translator applicants reasonable access to limited FM spectrum in a manner which promotes the “fair, efficient, and equitable distribution of radio service * * *. ” This issue has taken on much greater significance over the past few years as demand for new radio stations has increased dramatically while the spectrum for such stations has become increasingly scarce, particularly in many mid-sized communities and in virtually all urbanized areas. Station Resource Group is correct—the primary licensing impediment is the nation's “maxed out” spectrum situation. New Jersey LPFM licensing activity is illustrative of the limited new station opportunities in spectrum-congested areas. Only 29 New Jersey LPFM applications were filed during that state's June 2001 window. Of those submissions, the Media Bureau has issued only eleven construction permits and only one additional authorization possibly may be granted. Only seven LPFM stations are currently operating in the state. We find these statistics more probative of the LPFM service's growth potential than the studies completed by Edgewater because LPFM stations, due to their limited service area potential, generally require higher population densities to be viable. It seems unlikely that the availability of spectrum in the vast rural portions of the nation will generate significant levels of LPFM station licensing.

51. Demand for radio spectrum is, if anything, increasing. The number of applications filed during the AM new and major change windows jumped from 258 in 2000 to more than 1,300 in 2004. Competitive bidding activity for FM new station construction permits has been robust since the commencement of open FM auctions in 2004. The 2003 FM translator window provides further evidence of this trend, especially when compared to historic licensing levels for this service. As of September 30, 1990, a total of 1,847 licensed FM translators and (co-channel) boosters operated throughout the nation. As of December 31, 1997, shortly after the date on which the Commission imposed a freeze on new non-reserved band translator filings (but not on new boosters or new reserved band stations), a total of 2,881 FM translators operated nationally. The number of licensed stations continued to grow modestly over the next six years, chiefly as a result of ongoing reserved band filing activity. A total of 3,818 licensed stations were in operation in March 2003 when the Commission opened the FM translator window, a total of 3,897 licensed stations when the Commission imposed the Auction No. 83 construction permit freeze in March 2005.

52. Measured against this historical licensing record, Auction No. 83 window filing activity was significant. Proposals exceeded authorized stations by a factor of three in a service in which little licensing was done before the 1980s. The 2003 window already has nearly doubled the total number of authorized stations. To date, three times more translator stations have been authorized out of this one window than LPFM stations authorized through the initial LPFM window filing process. Approximately 7,000 translator applications remain pending. The Commission faces two chief difficulties in trying to balance spectrum allocations for LPFM stations and translators. First, FM translators are licensed under substantially more flexible technical rules. Thus, some of the Auction No. 83 filing activity involves spectrum which is unavailable for LPFM use. By the same token, LPFM station proponents have far fewer licensing opportunities in spectrum-congested markets because LPFM technical rules are substantially less flexible. Second, it is impossible to accurately predict future demand for LPFM station licenses. While engineering studies can identify areas in which additional licensing is technically permissible, the interest of local organizations to apply for, construct, and operate new LPFM stations can only be determined at the time a window is opened.

53. Although precise preclusionary calculations are not possible, we believe that processing all of the approximately remaining 7,000 translator applications would frustrate the development of the LPFM service and our efforts to promote localism. Several factors support the adoption of some remedial measures. The sheer volume of Auction No. 83 filings, when compared to historic translator and LPFM licensing levels, is a significant concern. We recognize that LPFM proponents had the “first” opportunity to file for the spectrum which Auction No. 83 filers now propose to use. However, it is apparent that the translator filings have precluded or diminished LPFM filing opportunities in many communities. For example, a REC national study found that 16 percent of all census designated communities that otherwise would have LPFM channels available in their communities have been precluded by the translator filings and that the greatest preclusionary impact has been in the largest such communities. Moreover, the Media Bureau has found that its efforts to identify alternative channels for LPFM stations either causing or receiving interference have been significantly limited in numerous cases by the requirement to protect pending FM translator applications and authorizations granted out of the 2003 window. The licensing asymmetries between these two services also support this finding. Translator filings can materially impact LPFM new station options which are far more limited than FM translator filing opportunities. In contrast, it is unlikely that LPFM filings will materially affect translator licensing options. FM translator contour-based station licensing is substantially more flexible than the strict distance separation requirements which LPFM stations must satisfy. This difference is tied in part to the fact that unlike an LPFM station, an FM translator station must cease broadcast operations if it is causing “actual interference” to any authorized broadcast station. In short, any translator station construction is at the risk of the permittee. The level of Auction No. 83 filing activity and the fact that many applications were filed for facilities in the top 100 markets both illuminate the significant difference in the licensing opportunities between these two services. The next LPFM window may provide the last meaningful opportunity to expand the LPFM service in spectrum-congested areas. In contrast, we expect significant filing activity in many future translator windows.

54. Certain equitable considerations also tilt in favor of adopting remedial measures to limit the preclusive impact of Auction No. 83 filings. Each applicant filing in Auction No. 83 submitted one Form 175 Application to Participate in an FCC Auction and a separate Form 349 “Tech Box” for each translator proposal. 861 filers submitted 13,377 such proposals in the window. Applicant filing activity divided between the hundreds of applicants who filed a limited number of applications and a very small number of applicants who filed for hundreds or thousands of construction permits. For example, approximately half the filers submitted one or two proposals. Approximately 80 percent of filers submitted 10 or fewer proposals. 97 percent filed 50 or fewer proposals. In contrast, the two most active filers, commonly-owned Radio Assist Ministries and Edgewater (collectively, RAM), filed 4,219 proposals, constituting almost one-third of all Auction No. 83 filings. The fifteen most active filers were responsible for one-half of all Tech Box submissions.

55. We are concerned that the heavily skewed filing activity in Auction No. 83 raises concerns about the integrity of our FM translator licensing procedures. Even if lawful, it is fair to question whether the acquisition of unprecedented numbers of FM translator authorizations by a handful of entities through our window filing application procedures promotes either diversity or localism. The rapid flipping of hundreds of permits acquired through the window process for substantial consideration does suggest that our current procedures may be insufficient to deter speculative conduct. Some commenters have been critical of RAM's business strategy. “The [National Translator Association] considers those applicants who intend to obtain construction permits and then sell those permits to be simply speculators for profit.” Most fundamentally, it appears that our assumption that our competitive bidding procedures would deter speculative filings has proven to be unfounded in the Auction No. 83 context. RAM, alone, has sought to assign more than 50 percent of the 1,046 construction permits it has been awarded through the window and has consummated assignments for over 400 of all such permits.

56. In order to further our twin goals of increasing the number of LPFM stations and promoting localism, we find it necessary to take action. Accordingly, we will limit further processing of applications submitted during the Auction No. 83 filing window to ten proposals per applicant. Applicants with more than ten proposals pending will be provided an opportunity to identify those applications which they wish to have processed and those for which they seek voluntary dismissal. The Media Bureau is directed to complete its processing of the approximately 100 pending but frozen singleton long-form applications without regard to the ten application limit. However, construction permits granted from this group will count toward the limit for future Auction No. 83 licensing purposes. This cap will only apply to short-form applications, and will not impact the ability of Auction No. 83 filers with granted construction permits or pending long-form applications to obtain licenses to cover. This limit will not have an adverse impact on the more than 80 percent of those who filed ten or fewer proposals in the Auction No. 83 filing window. It will require certain filers to identify priority proposals. This cut-off will limit the preclusive impact of Auction No. 83 filings on LPFM licensing opportunities by barring the processing of thousands of applications filed by a very small number of applicants, without impacting the approximately 80 percent of filers who filed ten or fewer applications. Although we recognize the equitable interests of the remaining 20 percent of filers in the processing of all of their short-form applications, on balance we conclude that the public interest requires a bar on the processing of more than ten applications per filer. We are hopeful that as a result of this cap the Media Bureau will be able to shorten the period between windows for both new LPFM and FM translator stations. We direct the Media Bureau to issue a public notice announcing the opening of the settlement window required by §§ 73.5002(c) and (d) of the rules. Applicants must select the ten applications they wish to preserve before the settlement window opens. With the imposition of this cap, we direct the Media Bureau to resume the processing of Auction No. 83 filings. Specifically, the Media Bureau is to expeditiously process the applications of any applicant that is now in compliance or brings itself into compliance with the ten proposal cap.

57. We are mindful of the expenses that translator applicants have incurred in preparing their non-feeable Form 175 short-form applications and Form 349 Tech Box submissions but believe that the imposition of this cap treats all applicants equitably. We have attempted to accommodate applicants to the greatest extent possible, consistent with statutory requirements and competing Commission goals. All applicants will benefit from expedited processing and the Media Bureau's ability to open future windows more quickly. Thus, this action is entirely consistent with Commission's rules and precedent for the dismissal of pending applications as a necessary adjunct of efficient and effective rulemaking. Finally, we note that there is ample precedent for the mass dismissal of applications based on a rule or policy change. This procedural change is a reasonable exercise of the Commission's administrative discretion. Accordingly, we conclude that the imposition of a cap in these circumstances is lawful.

58. Background. The Report and Order establishing the LPFM service set minimum distance separation requirements to ensure that LPFM stations protect existing commercial and NCE full-service FM stations, as well as FM translator and booster stations. The Report and Order also concluded that existing full-service stations would not be required to protect proposed LPFM facilities. Moreover, “operating LPFM stations will not be protected against interference from subsequently authorized full-service facility modifications, upgrades, or new FM stations.” Conversely, an LPFM station is not permitted to cause interference within the 3.16 mV/m (70 dBμ) contour of a full-service FM station. An LPFM station generally may continue to operate within that contour so long as it can demonstrate that actual interference is unlikely to occur. Section 73.809 of the rules sets forth detailed complaint procedures to resolve disputes over the likelihood of actual interference and the sufficiency of actions taken by LPFM stations to eliminate that interference.

59. In September 2000, the Commission dismissed a motion to reconsider the regulatory status of LPFM stations. In the FNPRM, however, the Commission stated that “it would be useful to consider whether to limit the § 73.809 interference procedures to situations involving co- and first-adjacent channel predicted interference, where the predicted interference areas are substantially greater than for second and third-adjacent channel interference.” The Commission also asked whether an LPFM station should be permitted to remain on the air if the full-power FM station did not serve the area of predicted interference prior to the facilities modification (in the case of an existing station) or the grant of the construction permit (in the case of a new station). Similarly, the Commission sought comment on whether an LPFM station should be permitted to remain on the air if the full-service station's community of license would not be subject to interference. Finally, the Commission asked whether an amendment to § 73.809 of the rules would be consistent with Congress' directive mandating third-adjacent channel interference protection from LPFM stations.

60. Although, to date, only one LPFM station has been forced off the air pursuant to the requirements of § 73.809 of the rules, some commenters believe that numerous LPFM stations are under a significant threat of such “encroachment.” On March 5, 2007, the Commission received a petition for rulemaking requesting: (1) Immediate issuance of a moratorium on the displacement of licensed LPFM stations and Class D Educational stations by new, relocating and/or upgrading full-power radio stations, and (2) a proposed rule permanently prohibiting or otherwise restricting such displacement. See Petition for Rulemaking of the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media, Providence Community Radio and Nickolaus E. Leggett N3NL at 1. In light of the discussion herein, we dismiss this petition. In 2005, REC released a study claiming that 134 LPFM construction permits and licenses were then at risk of being cancelled due to pending full-power station modification applications for vacant allotments. The study also claimed that hundreds of LPFM stations faced less significant levels of increased interference. REC has updated this analysis to assess the impact of applications filed under the recently-adopted rules that established streamlined community of license modification procedures. This study claims that 257 LPFM stations could suffer at least some signal degradation as a result of these facility changes and that 38 of these LPFM stations might be required to cease operations. Prometheus and other commenters call for the Commission to grant LPFM stations co-equal protection status with full-power stations. Alternatively, they suggest that a full-power station proposing to eliminate or seriously degrade the listening area of an LPFM station be required to receive full Commission approval for such a modification. At a minimum, these commenters request that impacted LPFM stations be provided with the ability to make major engineering changes to preserve service.

61. Conversely, many other commenters believe that no changes to § 73.809 of the rules are warranted. Instead, NAB proposes that flexible procedures be put in place to encourage LPFM stations to relocate. NPR contends that the Commission should maintain the current interference protections between FM and LPFM stations. Indeed, NPR and others suggest that the Commission lacks statutory authority to eliminate second and third-adjacent channel protections. Educational Media Foundation states that relaxing § 73.809 of the rules would be harmful to listener-supported NCE stations. Finally, NSBA contends that there is a strong likelihood of harmful interference to full-service FM stations if the rule is changed and that harm outweighs any speculative benefit to the public interest that would result from a rule change.

62. Discussion. In the Report and Order, we declined to provide LPFM stations with an interference protection right that could prevent a full-service station from seeking to modify its transmission facilities or could foreclose future new full-service radio station licensing opportunities. Our experience to date confirms our belief that in most instances the interests of both full-service and LPFM stations can be accommodated. We applaud those full-service stations that have provided technical and/or financial assistance to LPFM stations that have been required to undertake facility modifications to remain on the air. We are particularly appreciative of those broadcasters that have consented to short-spacings to avoid LPFM station displacements. We urge licensees seeking community of license modifications or other changes that could lead to LPFM displacement or signal degradation to continue these cooperative efforts on a going-forward basis. The Media Bureau also has played an important role in crafting technical solutions to preserve LPFM stations potentially at risk from new station and facility modification proposals. It already has taken action on dozens of LPFM modification applications that were filed to eliminate or reduce caused interference to or received interference from a full-service FM station. We direct the Media Bureau to continue to attempt to resolve conflicts between full-service and LPFM stations in ways that accommodate the interests of both services.

63. Circumstances have changed considerably since we last considered the issue of protection rights for LPFM stations from subsequently authorized full-service stations. Most importantly, the January 2007 lifting of the freeze on the filing of FM community of license modification proposals combined with the implementation of new streamlined licensing procedures resulted in a one-time flurry of filing activity, with approximately 100 FM community of license modification proposals submitted in the first week of the new rules. In all, over 200 community of license modification applications have been filed under the new rules. Increased filings under the new rules and the arguments of LPFM advocates persuade us that the Commission should put policies in place to address current and future LPFM station displacement threats. The Media Bureau has identified approximately 40 LPFM stations that could be forced to cease operations. In these circumstances, we find that the rules should be amended to limit § 73.809 interference procedures to situations involving co- and first-adjacent channel interference.

Thus, § 73.809 will no longer apply to situations involving predicted second-adjacent channel interference. We encourage full-service and LPFM stations to work cooperatively to minimize or eliminate the impact of the full-service station proposal on both stations. In this regard, we encourage each “encroaching” full-service station to provide technical and financial assistance to any LPFM station at risk from a full-service station facility proposal and to identify and facilitate the implementation of measures to ameliorate any potential increase in received interference by the LPFM station. As described in more detail below, second-adjacent channel interference to a full service station is generally predicted to occur only in the immediate vicinity of the LPFM station transmitter site. Predicted interference to listeners can be substantially reduced or eliminated in these situations by various techniques, e.g., increasing LPFM antenna height, relocating LPFM transmission facilities away from populated areas, etc.

64. The Media Bureau has identified for many of the stations now at risk of displacement alternate channels that would require waivers of § 73.807 of the rules because operations on the new channels would be short-spaced to full service stations operating on second-adjacent channels. Based on the potential harm to this small but not insignificant number of LPFM stations, we believe that it would be beneficial to establish a procedural framework for the consideration of showings from LPFM stations that may seek such waivers to avoid displacement, as well as to avoid unnecessary disruption of LPFM service to the public during such consideration. This procedure will apply to both pending applications and those filed, but not disposed of, prior to the effective date of any rule changes proposed in the Second FNPRM. The clarification of our second-adjacent channel LPFM waiver standards set forth below is intended to avoid the unwarranted loss of many LPFM stations while the Commission considers certain rule changes set forth in a Second FNPRM that we also adopt today. The interim procedural protections we establish in connection with such waiver standards are designed to safeguard the interests of all affected parties and to aid the Commission in identifying those situations in which strict compliance with our rules would not serve the public interest. We also provide guidance below regarding processing standards that the Commission will apply to full-service station modification applications where the modification would place an LPFM station at risk of displacement and no alternate channel is available. In such circumstances, we will consider waiving the Commission's rule making LPFM stations secondary to subsequently-authorized full-service stations and denying the modification application to protect an LPFM station that is demonstrably serving the need of the public from being required to cease operations.

65. In evaluating whether the public interest would be served by grant of a waiver of § 73.807 of the rules for a second-adjacent channel short-spacing to an LPFM station at risk of displacement, the Commission must balance the potential for new interference to the full-service station against the potential loss of an LPFM station. An LPFM station operating within the 60 dBμ contour of a second-adjacent channel full-service station would cause interference to the full-service station in the immediate vicinity of the LPFM transmitter site. Based on desired-to-undesired (D/U) signal strength ratio calculations, in most circumstances interference would be predicted to extend from ten to two hundred meters from the LPFM station antenna. Clearly, it will be advantageous to an LPFM applicant's waiver showing to propose modifications that minimize the area of predicted interference, e.g. , by proposing maximum possible antenna heights above average terrain, and by selecting transmitter sites not located near densely populated areas. We encourage the encroaching full-service station licensee to provide technical assistance to LPFM stations to develop modification proposals that would avoid impacting current radio listening patterns.

66. The following procedures will be limited to those situations in which implementation of the full-service new station or modification, including community of license, proposal would result in the full-service and LPFM stations operating at less than the minimum distance separations set forth in § 73.807 of the rules. In addition, implementation of the full-service proposal must result in either an increase in interference caused to the LPFM station or result in the displacement, i.e., the suspension or termination of LPFM station operations pursuant to § 73.809 of the rules, of the LPFM station. These procedures will not be available where an alternate, fully-spaced, and rule-compliant channel is available for the LPFM licensee or permittee. Finally, Special Temporary Authorizations (STA) will be available pursuant to these procedures only if the LPFM station is proposing a waiver (or waivers) of LPFM second-adjacent channel spacing requirements.

67. We direct the Media Bureau to contact LPFM stations that are currently, or in the future may become, eligible to seek facility modifications under these procedures. To receive consideration, an LPFM station must file promptly an application on Form 318 and include a § 73.807 of the rules waiver request and showing. If the Media Bureau determines that the request falls within the scope of these procedures, it will issue an order to show cause to the potentially impacted full-service station(s) as to why the modification of such station license(s) to allow a second-adjacent channel short-spacing would not be in the public interest. In the event that the Media Bureau concludes that the public interest would be better served by waiving § 73.807 of the rules, it will retain the LPFM station's application in pending status and issue an STA for the proposed LPFM station modifications. STAs issued pursuant to these procedures will be subject to any action taken by the Commission in the Second FNPRM. The Commission will withhold final determination of the waiver request until action on the Second FNPRM proposals. We encourage each “encroaching” full-service station to provide technical and financial assistance to any LPFM station which avails itself of these procedures. We also direct the Media Bureau to include a condition, as appropriate, in the “encroaching” full-service station's construction permit requiring such station to provide technical assistance and assume financial responsibility for all direct expenses associated with resolving actual interference complaints, e.g., the purchase of radio filters, etc.

68. In certain circumstances no alternative channel will be available for an LPFM station at risk of displacement. With regard to full-service modification applications filed after the release of this Third Report and Order, we provide the following guidance on the standards that the Commission will use to determine whether grant of such applications are in the public interest. Generally, the Commission will favor grant of the full-service station modification application. However, we believe that it is appropriate to apply a presumption that the public interest would be better served by a waiver of the Commission's rule making LPFM stations secondary to subsequently authorized full-service stations and the dismissal of an “encroaching” community of license reallotment application when the threatened LPFM station can demonstrate that it has regularly provided at least eight hours per day of locally originated programming, as that term is defined for the LPFM service. This presumption will apply only when implementation of a community of license modification would result in the displacement of an LPFM station or result in such a significant increase in caused interference to the LPFM station such that continued operations are infeasible, i.e. , when the LPFM transmitter site is located within the interfering contour of a co- or first-adjacent channel community of license modification proposal. This presumption will also be limited to those situations in which no “suitable” alternate channel is available for the LPFM station. This presumption will not apply where opportunities are available for the impacted LPFM station to alter operations in order to avoid conflict with a full-service station.

69. Our evaluation of these competing demands for scarce spectrum will take into account the benefits of the move-in proposal under section 307(b) of the Communications Act of 1934, as amended, the amount of locally originated programming by the LPFM station, the extent to which other LPFM stations are licensed to and/or provide service to the area currently served by the threatened LPFM station, the extent to which other noncommercial educational (NCE) radio stations are providing locally originated programming to listeners in the LPFM station's service area, the number of LPFM stations at risk of displacement from the proposed community of license modification proposal, and any other public interest factors raised by the full-service and LPFM station applicants or other parties. LPFM stations that wish to make a showing under this waiver standard must file an informal objection to the “encroaching” community of license modification application within sixty days of the Federal Register notice of such application filing. Oppositions and replies may be filed in accordance with § 1.45 of the rules. This presumption is rebuttable and does not bind the Commission to a particular result. We caution parties that even if the required showing is made, the Commission in the exercise of its discretion may conclude that denial of the full-service station application and grant of the waiver would not serve the public interest.

70. We intend to narrowly limit this policy to the class of LPFM stations that are demonstrably serving the needs of local listeners. Moreover, this policy will not apply in a situation in which a full-service station proposes a facility change to improve service to its current community of license. We emphasize that we will dismiss a community of license modification proposal only when no technically reasonable accommodation is available and the LPFM station makes the requisite waiver showing. We conclude that this processing policy appropriately balances the interests of full-service and LPFM stations, and recognizes the role that each service plays in promoting diversity and localism. The Commission is seeking comment on the presumption in the attached Second FNPRM and may modify it based on the comments received in response thereto.

71. We believe that § 73.807 of the rules and LPFM displacement standards will effectively balance the interests of LPFM and full-service broadcasters while the Commission considers the Second FNPRM proposals. While REC has identified many LPFM stations that ultimately may be required to modify their facilities as a result of encroachment, we do not see this as a threat to the viability of the LPFM service, especially with the additional protections and procedures we adopt herein. REC's claim that many LPFM stations face interference merely describes a basic feature of the service in today's congested FM broadcast radio spectrum. Opportunities exist for many LPFM stations to change locations, reduce power, or change channels in the event that a conflict arises with a full-service station. Furthermore, the majority of the stations identified as “less significant risks” by REC solely exist today because of the flexible nature of the spacing rules under § 73.807 of the rules. Section 73.807 clearly identifies the distance separations necessary for LPFM stations to avoid received interference but does not require LPFM stations to meet this stringent standard. This rule fully protects nearby full-power FM stations while also allowing interference to LPFM stations in some instances. Therefore, LPFM stations at distances less than those specified in § 73.807 of the rules in the column labeled “for no interference received from max. class facility” can expect to receive interference.

72. The rules and policies adopted herein will promote the continued operation and expansion of LPFM service. Our actions today further the public interest and ensure that we maximize the value of LPFM service without harming the interests of full-power FM stations or other Commission licensees. To further these goals, we also recommend to Congress that it remove the requirement that LPFM stations protect full-power stations operating on third adjacent channels.

73. Final Regulatory Flexibility Analysis . The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “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 the term “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 operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

74. As required by the Regulatory Flexibility Act, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Third Report and Order.

75. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the FNPRM in this proceeding. The Commission sought written public comment on the proposals in the FNPRM , including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

76. The policies and rules set forth herein are required to ensure that the Commission advances the goal of maximizing the value of LPFM service without harming the interests of full-power FM stations or other Commission licensees. In this Third Report and Order, the Commission (1) eases the paperwork burdens on LPFM licensees, by clarifying that transfers of control involving a sudden change of more than 50 percent of an LPFM licensee's governing board shall not be deemed “a substantial change in ownership and control”, as LPFM boards can be subject to substantial turnover; (2) allows for the transfer and assignment of LPFM stations subject to certain conditions, such as: a cap on the sale price to the depreciated fair market value of the physical assets of the facility; (3) the imposition of a three year holding period during which the initial licensee must operate the station, a requirement that the assignee or transferee of an LPFM license is required to satisfy the ownership and eligibility criteria existing at the time of the assignment or transfer, and a prohibition on the assignment or transfer of construction permits; (4) reinstates the LPFM local ownership eligibility restriction; (5) allows an 18 month extension for good cause of the LPFM construction period; and (6) provides for additional technical amendments, such as allowing time-sharing applications to seek authority to place their transmitter at a central location, limiting the processing of applications submitted during the Auction No. 83 filing window to ten proposals per applicant, amending the rules to limit § 73.809 interference procedures to situations involving co- and first-adjacent channel interference, and a procedural framework for the consideration of showings from LPFM stations that may seek waivers of § 73.807 of the rules to avoid displacement, as well as to avoid unnecessary disruption of LPFM service to the public.

77. None.

78. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.” In addition, the term “small business” has the same meaning as the term “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 operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

79. LPFM Radio Stations. The proposed rules and policies potentially will apply to all low power FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. As of the date of release of this Third Report and Order , the Commission's records indicate that more than 1,225 LPFM construction permits have been granted. Of those permits, approximately 820 stations are on the air, serving mostly mid-sized and smaller markets. It is not known how many entities ultimately may seek to obtain low power radio licenses. Nor do we know how many of these entities will be small entities. We expect, however, that due to the small size of low power FM stations, small entities would generally have a greater interest than large ones in acquiring them.

80. The rules adopted in this Third Report and Order will impose different reporting or recordkeeping requirements on existing LPFM stations. First, the clarification that transfers of control involving a sudden change of more than 50 percent of an LPFM licensee's governing board shall not be deemed “a substantial change in ownership and control,” will ease paperwork burdens upon licensees. The Third Report and Order will also involve additional paperwork burdens. First, as this Third Report and Order will allow for the transfer and assignment of LPFM licenses, the Commission will require the collection of information necessary for the purposes of processing such applications. Second, this Third Report and Order clarifies the renewal process for time-sharing entities, and the process for the administration of such applications. Third, Auction 83 applicants that filed more than 10 applications must select the ten applications they wish to preserve, versus those that will be automatically dismissed, after the Media Bureau issues a Public Notice on this subject. There is no disproportionate impact on small entities as these additional reporting and recordkeeping requirements since these requirements are imposed equally on large and small entities.

81. 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.

82. Consideration of alternatives methods to reduce the impact on small entities is unnecessary. The Third Report and Order decreases existing burdens on small entities and increases their flexibility. First, the clarification that transfers of control involving a sudden change of more than 50 percent of an LPFM licensee's governing board shall not be deemed “a substantial change in ownership and control,” will ease paperwork burdens upon LPFM station, many of which are small entities. Further, the changes in the ownership rules will allow greater flexibility for LFPM licensees. Finally, the changes in the technical rules will allow more small entity LPFM stations to exist. In addition, the Third Report and Order does not impose different burdens on large and small entities. The record keeping requirements will help facilitate the transfer and assignment of licenses and clarifies the renewal process for time-sharing entities, including the administration of such applications.

83. LPFM service has created and will continue to create significant opportunities for new small businesses by allowing small businesses to develop LPFM service in their communities. In addition, the Commission generally has taken steps to minimize any burdensome regulation on existing small broadcasters. To the extent that the Third Report and Order imposes any burdens on small entities, these burdens are only incident to the benefits conferred: greater flexibility of LPFM stations in transferring, assigning and renewing LPFM stations.

84. The Commission will send a copy of the Third Report and Order , including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Third Report and Order , including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Third Report and Order , and FRFA (or summaries thereof) will also be published in the Federal Register .

85. This Third Report and Order contains new and modified information collection requirements which were proposed in the FNPRM , and are subject to the Paperwork Reduction Act of 1995 (PRA).

86. We have assessed the effects of requiring documentation in relation to: (1) the proposed changes to Forms 314, 315 and 316 for the transfer and/or assignment of LPFM licenses; and (2) the proposed changes to Form 318 for the relocation of transmitter sites for voluntary time-share applicants. We find that to the extent that this Third Report and Order imposes any burdens on small entities, the resulting impact on small entities is favorable because the rules expand opportunities for LPFM applicants, permittees, and licensees to transfer and assign licenses, relocate transmitter sites, and extend construction deadlines. These information collection requirements were submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. In addition, the general public and other Federal agencies were invited to comment on these information collection requirements in the FNPRM . We further note that pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” We received no comments concerning these information collection requirements. On August 25 and 30, 2005, the Commission obtained OMB approval for these information collection requirements, encompassed by OMB Control Nos. 3060-0031 (Forms 314-315), 3060-0009 (Form 316) and 3060-0920 (Form 318). This Third Report and Order adopts portions of the above information collection requirements, as proposed. Additional changes are necessary to Forms 314, 315, 316 and 318, and will be submitted to OMB for approval.

87. This document contains modified and new information collection requirements. In this Third Report and Order , we require documentation in relation to: (1) An optional 18-month extension of a construction permit upon a showing of good cause; (2) the voluntary withdrawal of Form 349 tech box proposals in order to come into compliance with the cap of 10 proposals; (3) the voluntary filing of a request, on Form 318, for waiver of § 73.807 of the rules for a second-adjacent short-spacing to an LPFM station at risk of displacement by a full-service station; and (4) the voluntary filing of waiver of the Commission rule making LPFM stations secondary to subsequently authorized full-service stations, where an LPFM station at risk of displacement by a full-service station can demonstrate that it provides at least eight hours a day of locally originated programming and that no suitable alternate channel is available. As discussed above, additional changes are necessary to Forms 314, 315, 316 and 318, and will be submitted to OMB for review and approval under section 3507(d) of the PRA. The Commission will publish a separate Federal Register notice seeking these comments from the public. OMB, the general public, and other Federal agencies are invited to comment on the modified and new information collection requirements contained in this proceeding.

88. The Commission will send a copy of this Third Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

89. For additional information on this proceeding, please contact Peter Doyle, Audio Division, Media Bureau, at (202) 418-2700, or Holly Saurer, Policy Division, Media Bureau, at (202) 418-7283. For PRA-related questions, please contact Cathy Williams, at (202) 418-2918 or via e-mail at Cathy.Williams@fcc.gov .

90. It is ordered that, pursuant to the authority contained in sections 1, 2, 4(i), 303, 403 and 405 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 403, and 405, this Third Report and Order is adopted .

91. It is further ordered that, pursuant to the authority contained in Sections 1, 2, 4(i), 303, 303(a), 303(b), and 307 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 303(a), 303(b), and 307, the Commission's rules are hereby amended as set forth in Appendix B. It is our intention in adopting these rule changes that, if any provision of the rules is held invalid by any court of competent jurisdiction, the remaining provisions shall remain in effect to the fullest extent permitted by law.

92. It is further ordered that the rules as revised in Appendix B shall be effective March 17, 2008. Changes to FCC Forms 314, 315, 316 and 318 will be effective 60 days after Federal Register publication of OMB approval of the forms. With respect to renewal applications, we will evaluate compliance with these requirements in applications filed in the next renewal cycle. Licensee performance during any portion of the renewal term that predates the effective date of the rules in the Third Report and Order will be evaluated under current rules, and licensee performance that post-dates the effective date of the revised rules will be judged under the new provisions.

93. It is further ordered that, pursuant to §§ 0.201 through .204 of the Commission's rules, 47 CFR 0.201 through .204, and section 5(c)(1) of the Communications Act of 1934, as amended, 47 U.S.C. 155(c)(1), the Chief, Media Bureau, is delegated authority to act as described in paragraphs 40, 56, 62 and 67 herein.

94. It is further ordered that the Petition for Rulemaking filed by the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media, Providence Community Radio, and Nickolaus E. Leggett N3NL is hereby dismissed .

95. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Third Report and Order and Second Further Notice of Proposed Rulemaking , including the Initial Regulatory Flexibility Analysis and the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

96. It is further ordered that the Commission shall send a copy of this Third Report and Order and Second Further Notice of Proposed Rulemaking in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

The final rule that is the subject of this correction was published Thursday, January 3, 2008 (73 FR 406). The final rule. That final rule contains an amendatory instruction that is no longer needed. Amendatory instruction 9 removes the last sentence of paragraph (a)(2) in § 622.9, however, a final rule published on December 27, 2007 (72 FR 73270) revises this same paragraph. Therefore, on page 410, in the last column, amendatory instruction 9 is removed. All other information remains unchanged and will not be repeated in this correction.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management 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.

In accordance with § 679.20(a)(8)(iii)(A), owners and operators of vessels using trawl gear for directed fishing for Atka mackerel in the HLA are required to register with NMFS. Four vessels have registered with NMFS to fish in the A season HLA fisheries in areas 542 and/or 543. In accordance with § 679.20(a)(8)(iii)(B), the Administrator, Alaska Region, NMFS, has randomly assigned each vessel to the HLA directed fishery for Atka mackerel for which they have registered and is now notifying each vessel of its assignment.

For the Amendment 80 cooperative, the vessel authorized to participate in the first HLA directed fishery in area 542 and the second HLA directed fishery in area 543 in accordance with § 679.20(a)(8)(iii) is as follows: Federal Fishery Permit number (FFP) 3835 Seafisher.

For the Amendment 80 limited access sector, vessels authorized to participate in the first HLA directed fishery in area 542 and in the second HLA directed fishery in area 543 in accordance with § 679.20(a)(8)(iii) are as follows: Federal Fishery Permit number (FFP) 4093 Alaska Victory and FFP 3819 Alaska Spirit.

For the Amendment 80 limited access sector, the vessel authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 in accordance with § 679.20(a)(8)(iii) is as follows: FFP 3423 Alaska Warrior.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary. This notice merely advises the owners of these vessels of the results of a random assignment required by regulation. The notice needs to occur immediately to notify the owner of each vessel of its assignment to allow these vessel owners to plan for participation in the A season HLA fisheries in area 542 and area 543.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

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