Notices. Notice; solicitation of applications

72,109 words·~328 min read·/register/2007/07/09/07-4302

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Highway Administration Announcement of Solicitation and Application Procedure for State Participation in the Surface Transportation Project Delivery Pilot Program AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice; solicitation of applications. SUMMARY: Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) provided FHWA the authority to allow up to five States to assume the Secretary's responsibilities for the environmental review, consultation, and other actions pertaining to the review or approval of highway projects.

In selecting States for the five available slots in the pilot program, Congress gave priority to the selection of the States of Alaska, California, Ohio, Oklahoma, and Texas. However, at this time, two States, Ohio and Texas, have declined to participate in the pilot program. Accordingly, this notice solicits applications from all other States for participation in this pilot program. DATES: Letters that indicate interest by the State to be considered for participation in the pilot program should be sent to the FHWA Division Office no later than September 7, 2007.

ADDRESSES: The FHWA Division Office locations can be found at the following URL: *http://www.fhwa.dot.gov/field.html#fieldsites.* FOR FURTHER INFORMATION CONTACT: Ms. Ruth Rentch, Office of Project Delivery and Environmental Review, (202)-366-2034, *Ruth.Rentch@dot.gov* , or Mr. Michael Harkins, Office of the Chief Counsel,

(202)366-4928, *Michael.Harkins@dot.gov* , Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access An electronic copy of this notice may be downloaded from the Office of the Federal Register's home page at *http://www.archives.gov* and the Government Printing Office's Web site at *http://www.access.gpo.gov* . Background Section 6005 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (codified at 23 U.S.C. 327) established a pilot program to allow up to five States to assume the Secretary of Transportation's responsibilities for environmental review, consultation, or other actions under any Federal environmental law pertaining to the review or approval of highway projects. In order to be selected for the pilot program, a State must submit an application to the Secretary. In selecting States for the five available slots in the pilot program, Congress gave priority to the selection of the States of Alaska, California, Ohio, Oklahoma, and Texas. On February 12, 2007, the FHWA published a final rule at 72 FR 6464 establishing requirements concerning the information required to be contained in an application by the State for the pilot program. These regulations, contained in 23 CFR Part 773, required the States of Alaska, California, Ohio, Oklahoma, and Texas to submit a statement of interest to the FHWA by May 14, 2007, in order to retain their priority status. If any of these States failed to submit a statement of interest to the FHWA by May 14, or decline to participate, another State may be selected. In response to this requirement, the FHWA has received statements of interest from California, Oklahoma, and Alaska indicating that they wish to participate in the pilot program. FHWA received letters from Ohio and Texas declining the opportunity to participate in the pilot program. Accordingly, the FHWA currently has two open slots for other State departments of transportation (State DOT). These slots will be awarded on a competitive basis based on such factors as legislative authority to waive the State's sovereign immunity, financial and personnel capabilities to assume responsibilities, and description of plan and processes for carrying out assumed roles and responsibilities. If any State DOT has an interest in applying for this program, that State DOT should contact the FHWA Division Administrator in that State and should begin working with the FHWA in developing its application in accordance with the regulations found at 23 CFR Part 773. Authority: Section 6005 of Pub. L. 109-59; 23 U.S.C. 315 and 327; 49 CFR 1.48 Issued on: June 28, 2007. J. Richard Capka, Federal Highway Administrator. [FR Doc. E7-13149 Filed 7-6-07; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration [Docket No. FMCSA-2007-28479] Definition of Commercial Motor Vehicle: The EI Group, Inc., Application for Exemption AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of application for exemption; request for comments. SUMMARY: The FMCSA announces that it has received an application from The EI Group, Inc.

(EI)seeking an exemption from classifying a specific motor vehicle as a commercial motor vehicle (CMV), for purposes of driver licensing requirements. Under the exemption, EI employees would not be required to comply with commercial driver's license requirements when operating a specifically-listed truck and trailer in combination, in interstate commerce. EI is requesting the exemption on behalf of all EI employees, and those contracted by EI, who operate its CMVs. EI states that approximately three EI drivers will be allowed to operate the subject equipment under the requested exemption. FMCSA requests public comment on EI's application for exemption. DATES: Comments must be received on or before August 8, 2007. ADDRESSES: You may submit comments identified by DOT DMS Docket No. FMCSA-2007-28479 using any of the following methods: • *Web Site:* Go to *http://dmses.dot.gov/submit.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590. • *Hand Delivery:* Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or Room W12-140, Ground Floor of West Building, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The DMS is available 24 hours each day, 365 days each year. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page that appears after submitting comments on-line. FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations: Telephone: 202-366-4009. E-mail: *MCPSD@dot.gov.* SUPPLEMENTARY INFORMATION: Background Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from the motor carrier safety regulations. On August 20, 2004, FMCSA published a final rule (69 FR 51589) on section 4007. Under the regulations, FMCSA must publish a notice of each exemption request in the **Federal Register** (49 CFR 381.315(a)). FMCSA must provide the public with an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted, and it must provide an opportunity for public comment on the request. FMCSA reviews the safety analyses and the public comments and determines whether granting the exemption would achieve a level of safety equivalent to or greater than the level that would be achieved absent the exemption (49 CFR 381.305). FMCSA's decision must be published in the **Federal Register** (49 CFR 381.315(b)). If FMCSA denies the request, it must state the reason for doing so. If FMCSA grants the exemption, the notice must specify the person or class of persons receiving the exemption and the regulatory provision or provisions from which exemption is being granted. The notice must also specify the effective period of the exemption (up to 2 years) and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)). Request for Exemption EI is requesting an exemption from the definition of a commercial motor vehicle

(CMV)in 49 CFR 383.5: Commercial Motor Vehicle means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle—

(a)Has a gross combination weight rating of 11,794 kilograms or more (26,001 pounds or more) inclusive of a towed unit(s) with a gross vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or

(b)Has a gross vehicle weight rating of 11,794 or more kilograms (26,001 pounds or more); or

(c)Is designed to transport 16 or more passengers, including the driver; or

(d)Is of any size and is used in the transportation of *hazardous materials* as defined in this section. EI currently owns a truck-trailer combination used to provide audiometric (hearing) testing services at industrial and commercial sites. The truck, a 2006 Ford F450, has a gross vehicle weight rating

(GVWR)of 16,000 pounds. The trailer, a 2007 Cimarron, has a GVWR of 14,000 pounds. Together these units have a combined GVWR of 30,000 pounds. EI states these units are never operated in a configuration that would exceed a gross vehicle weight

(GVW)of 26,000 pounds. According to EI: a. The truck has a fifth wheel coupling device and no bed or other means of carrying cargo when coupled to the trailer; b. The trailer is configured with test booths, furniture and electronic test equipment, and operating parameters are never varied in a way that would substantially alter the actual weight of the trailer; c. Company procedures prohibit the transportation of persons or cargo in the testing trailer when it is in motion; and d. The combination of units has been weighed in full operating configuration and does not exceed 22,000 pounds. Under current regulations this combination vehicle must be operated by a driver holding a commercial driver's license

(CDL)and must meet all other applicable Federal Motor Carrier Safety Regulations (FMCSR). EI currently employs three drivers who may be required to drive this vehicle. These drivers do not have a CDL and are unable to legally operate this vehicle combination over public highways. EI currently employs a contract driver with a CDL to drive the vehicle. The persons covered by the exemption would include all drivers of the vehicle who are employed or contracted by EI. EI states that public safety would not be impacted by granting this exemption. EI advises that it operates two other testing vehicles. One is a single unit truck with a GVWR of 24,500 pounds. The second is a truck-trailer combination with a combined GVWR of 24,500 pounds. According to EI, these vehicles are operated by EI drivers under strict supervision. EI states the subject vehicle would also be operated at a GVW less than 26,000 pounds and, therefore, would not pose a hazard that is unique or different from those inherent in operating the other two vehicles currently owned and operated by EI. EI states it would continue to monitor drivers, require them to undergo regular DOT physical examinations, and maintain all other aspects of the EI driver safety program. EI advises that if FMCSA does not grant the exemption: A. Current EI drivers not holding or unable to obtain a CDL could not operate the subject vehicle combination, reducing flexibility in scheduling and possibly affecting their continued employment; B. EI would need to hire or contract new CDL drivers, at a higher rate, to operate this vehicle combination; and C. EI would be subject to additional overhead and administrative requirements of maintaining a full CDL driver program as required by the FMCSRs. A copy of EI's application for exemption, along with supporting documentation, is available for review in the docket for this notice. Request for Comments In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests public comment on EI's application for exemption from 49 CFR 383.5. FMCSA will consider all comments received by close of business on August 8, 2007. Comments will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. FMCSA will file comments received after the comment closing date in the public docket and will consider them to the extent practicable. In addition to late comments, FMCSA will also continue to file in the public docket relevant information that becomes available after the comment closing date. Interested persons should monitor the public docket for new material. Issued on: June 29, 2007. Larry W. Minor, Acting Associate Administrator, Policy and Program Development. [FR Doc. E7-13277 Filed 7-6-07; 8:45 am] BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-32 (Sub-No. 53X); STB Docket No. AB-355 (Sub-No. 5X)] Boston and Maine Corporation—Abandonment Exemption—in Essex County, MA; Springfield Terminal Railway Company—Discontinuance of Service Exemption—in Essex County, MA Boston and Maine Corporation (B&M) and Springfield Terminal Railway Company

(ST)(collectively, applicants) jointly have filed a notice of exemption under 49 CFR Part 1152 Subpart F— *Exempt Abandonments and Discontinuances of Service* for B&M to abandon, and for ST to discontinue service over, approximately 1.47 miles of railroad known as the Georgetown Branch, extending from milepost 4.66 to milepost 6.13 in Haverhill, Essex County, MA. The line traverses United States Postal Service Zip Code 01830. B&M and ST have certified that:

(1)No local traffic has moved over the line for at least 2 years;

(2)there is no overhead on the line;

(3)no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and

(4)the requirements of 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met. As a condition to these exemptions, any employee adversely affected by the abandonment or discontinuance shall be protected under *Oregon Short Line R. Co.—Abandonment—Goshen,* 360 I.C.C. 91 (1979). To address whether this condition adequately protects affected employees, a petition for partial revocation under 49 U.S.C. 10502(d) must be filed. Provided no formal expression of intent to file an offer of financial assistance

(OFA)has been received, these exemptions will be effective on August 8, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues, 1 formal expressions of intent to file an OFA under 49 CFR 1152.27(c)(2), 2 and trail use/rail banking requests under 49 CFR 1152.29 must be filed by July 19, 2007. Petitions to reopen or requests for public use conditions under 49 CFR 1152.28 must be filed by July 30, 2007, with: Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. 3 1 The Board will grant a stay if an informed decision on environmental issues (whether raised by a party or by the Board's Section of Environmental Analysis

(SEA)in its independent investigation) cannot be made before the exemptions' effective date. *See Exemption of Out-of-Service Rail Lines,* 5 I.C.C.2d 377 (1989). Any request for a stay should be filed as soon as possible so that the Board may take appropriate action before the exemptions' effective date. 2 Each OFA must be accompanied by the filing fee, which currently is set at $1,300. *See* 49 CFR 1002.2(f)(25). 3 Without further explanation, applicants state that, prior to the effective date of these exemptions, title to the line will be acquired by third parties. Applicants are advised that they cannot transfer the title until the exemptions become effective or until they obtain appropriate Board authority. A copy of any petition filed with the Board should be sent to applicants' representative: Michael Q. Geary, Esq., Boston & Maine Corporation, Iron Horse Park, North Billerica, MA 01862. If the verified notice contains false or misleading information, the exemptions are void *ab initio.* B&M and ST have filed an environmental and historic report which addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. SEA will issue an environmental assessment

(EA)by July 13, 2007. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at

(202)245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service

(FIRS)at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public. Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision. 4 4 On February 27, 2007, the City of Haverhill, Massachusetts (the City) submitted a request for issuance of a notice of interim trail use and for imposition of a public use condition. However, this request could not be processed until after the June 19, 2007 filing of the involved notice of exemption. As noted the Board will address the City's trail use and public use requests and any others that may be filed in a subsequent decision. Pursuant to the provisions of 49 CFR 1152.29(e)(2), B&M shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by B&M's filing of a notice of consummation by July 9, 2008, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire. Board decisions and notices are available on our Web site at: *http://www.stb.dot.gov.* Decided: June 29, 2007. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. E7-13077 Filed 7-6-07; 8:45 am] BILLING CODE 4915-01-P 72 130 Monday, July 9, 2007 Proposed Rules Part II Federal Communications Commission 47 CFR Part 73 Third Periodic Review of the Commission’s Rules and Policies Affecting the Conversion to Digital Television; Proposed Rule FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 07-91; FCC 07-70] Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document begins the Commission's third periodic review of the transition of the nation's broadcast television system from analog to digital television. It provides a progress report on the DTV transition and considers the procedures and rule changes necessary to ensure that broadcasters timely complete their transitions. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals, and may no longer transmit analog signals. This document considers how to ensure that broadcasters complete construction of their final, post-transition (digital) facilities by the statutory deadline. DATES: Comments are due on or before August 8, 2007; reply comments are due on or before August 23, 2007. ADDRESSES: You may submit comments, identified by MB Docket No. 07-91, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.* Filers should follow the instructions provided on the website for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. • *E-mail: ecfs@fcc.gov.* To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Mail:* Filings can be sent by commercial overnight courier or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. • *Hand Delivery/Courier:* Filings can be sent by hand or messenger delivery. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • *Accessibility Information:* Contact the FCC to request information in accessible formats (computer diskettes, large print, audio recording, and Braille) by sending an e-mail to *fcc504@fcc.gov* or calling the FCC's Consumer and Governmental Affairs Bureau at

(202)418-0530 (voice),

(202)418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format

(PDF)at: *http://www.fcc.gov.* *Instructions:* All submissions received must include the agency name and docket number for this rulemaking. Comments, reply comments, and ex parte submissions will be available for public inspection 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. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Evan Baranoff, Evan.Baranoff@fcc.gov of the Media Bureau, Policy Division,

(202)418-2120 or Eloise Gore, *Eloise.Gore@fcc.gov* , of the Media Bureau, Policy Division,

(202)418-2120; Gordon Godfrey, *Gordon.Godfrey@fcc.gov* , of the Media Bureau, Engineering Division,

(202)418-7000; Nazifa Sawez, *Nazifa.Sawez@fcc.gov* , of the Media Bureau, Video Division,

(202)418-1600; or Alan Stillwell, *Alan.Stillwell@fcc.gov* , of the Office of Engineering and Technology,

(202)418-2470. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Notice of Proposed Rulemaking* , FCC 07-70, adopted on April 25, 2007, and released on May 18, 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). Initial Paperwork Reduction Act of 1995 Analysis This document has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”), and contains proposed new and modified information collection requirements, including the following proposals:

(1)Applications detailing stations' plans for completing their transitions;

(2)Applications to construct or modify post-transition facilities (using FCC Forms 301 and 340);

(3)Requests to reduce analog TV service;

(4)Requests to terminate analog TV service;

(5)Requests to flash cut;

(6)Requests for STA to use analog translators to offset loss of analog service;

(7)Requests for extension of time to construct (using FCC Form 337), or to toll the construction deadline for, DTV facilities;

(8)Requests to transition early to their post-transition channel;

(9)Requests for STA to temporarily remain on their in-core pre-transition DTV channel;

(10)Requests for STA to build less than full, authorized post-transition facilities by the deadline;

(11)Applications for a license to cover post-transition facilities (using FCC Form 302 DTV); and

(12)PSIP requirement to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (“OMB”) to comment on the proposed information collection requirements contained in this document, as required by the PRA. Written comments on the PRA proposed information collection requirements must be submitted by the public, the OMB, and other interested parties on or before September 7, 2007. Comments should address:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's burden estimates;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In addition to filing comments with the Office of the Secretary, a copy of any comments on the proposed information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th St, SW., Room 1-C823, Washington, DC 20554, or via the Internet to *Cathy.Williams@fcc.gov* ; and also to Jasmeet Seehra, OMB, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503, or via Internet to *Jasmeet_K._Seehra@omb.eop.gov* , or via fax at 202-395-5167. If you would like to obtain a coy of this information collection, you may do so by visiting the FCC's PRA webpage at *http://www.fcc.gov/omd/pra.* *Further Information.* For additional information concerning the PRA proposed information collection requirements contained in this document, contact Cathy Williams at 202-418-2918, or via the Internet to *Cathy.Williams@fcc.gov* or *PRA@fcc.gov* . *OMB Control Number:* 3060-0027. *Title:* Application for Construction Permit for Commercial Broadcast Station, FCC Form 301. *Form Number:* FCC Form 301. *Type of Review:* Revision of a currently approved collection. *Respondents:* Business or other for-profit entities. *Number of Respondents:* 4,278. *Frequency of Response:* On occasion reporting requirement; Third party disclosure requirement. *Estimated Time Per Response:* 2 to 4 hours. *Total Annual Burden:* 10,513 hours. *Total Annual Costs:* $51,350,347. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking (NPRM), In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70. The NPRM proposes that commercial television stations must use the proposed revised FCC Form 301 when applying for post-transition facilities, when requesting to reduce analog TV service and when requesting to transition early to their post-transition channel. FCC Form 301 is being revised to accommodate the filing of post-transition applications. FCC Form 301 is used to apply for authority to construct a new commercial AM, FM, or TV broadcast station, to make changes in existing facilities of such a station, and may be used to request a change of a station's community of license by AM and non-reserved band FM permittees and licensees. In addition, FM licensees or permittees may request, by filing an application on FCC Form 301, upgrades on adjacent and co-channels, modifications to adjacent channels of the same class, and downgrades to adjacent channels. *OMB Control Number:* 3060-0029. *Title:* Application for TV Broadcast Station License, FCC Form 302 TV; Application for DTV Broadcast Station License, FCC Form 302-DTV, Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station, FCC Form 340; Application for Authority to Construct or Make Changes in an FM Translator or FM Booster Station, FCC Form 349. *Form Number(s):* FCC Form 302 TV; FCC Form 302-DTV; FCC Form 340; FCC Form 349. *Type of Review:* Revision of a currently approved collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions; State, local or tribal government. *Number of Respondents:* 4,325. *Frequency of Response:* On occasion reporting requirement; Recordkeeping requirement; Third party disclosure requirement. *Estimated Time per Response:* 2 to 4 hours. *Total Annual Burden:* 12,150 hours. *Total Annual Costs:* $21,091,625. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking (NPRM), In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70, to consider the procedures and rule changes necessary to complete the nation's transition to DTV, including how best to ensure that broadcasters complete construction of their facilities on their final, post-transition (digital) channel by the statutory deadline. The NPRM proposes that Noncommercial Education

(NCE)television stations must use the proposed revised FCC Form 340 when applying for authority to construct or modify post-transition facilities; when requesting to reduce analog TV service and when requesting to transition early to their post-transition channel. Therefore, FCC Form 340 is being revised to accommodate the filing of applications to construct or modify post-transition facilities. The NPRM also proposes that stations that have applied to construct or modify post-transition facilities must use the Form 302—DTV to obtain a new or modified station license to cover those post-transition facilities. In addition, the Commission is consolidating information collection OMB Control Number 3060-0837 (Application for DTV Broadcast Station License, FCC 302-DTV) into this collection OMB Control Number 3060-0029. FCC Forms 302-TV, 302-DTV and 349 remain unchanged. *OMB Control Number:* 3060-0407. *Title:* Application for Extension of Time to Construct a Digital Television Broadcast Station, FCC Form 337; Section 73.3598, Period of Construction. *Form Number:* FCC Form 337. *Type of Review:* Revision of a currently approved collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions. *Number of Respondents:* 160. *Frequency of Response:* On occasion reporting requirement; Recordkeeping requirement. *Estimated Time Per Response:* 0.25 to 3 hours. *Total Annual Burden:* 263 hours. *Total Annual Costs:* $37,000. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking in the matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70, to consider the procedures and rule changes necessary to complete the nation's transition to DTV, including how best to ensure that broadcasters complete construction of their facilities on their final, post-transition (digital) channel by the statutory deadline. The NPRM proposes that stations requesting an extension of time to construct DTV facilities with construction deadlines occurring prior to February 17, 2009, the station must use the Form 337 in accordance with 47 CFR 73.624(d)(3). The NPRM proposes to revise Form 337 to accommodate these filings. Also, for stations with construction deadlines occurring on February 17, 2009 and later, the station must make a letter filing in accordance with 47 CFR 73.3598. In addition, the Commission is consolidating information collection OMB Control Number 3060-1001 (Application for Extension of Time to Construct a Digital Television Broadcast Station, FCC Form 337) into this collection OMB Control Number 3060-0407 (Section 73.3598, Period of Construction). *OMB Control Number:* 3060-0386. *Title:* Section 73.1635, Special Temporary Authorizations (STAs). *Form Number:* Not applicable. *Type of Review:* Revision of a currently approved collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions. *Number of Respondents:* 2,350. *Frequency of Response:* On occasion reporting requirement. *Estimated Time Per Response:* 1 to 4 hours. *Total Annual Burden:* 2,800 hours. *Total Annual Costs:* $1,403,150. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking, In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70, to consider the procedures and rule changes necessary to complete the nation's transition to DTV, including how best to ensure that broadcasters complete construction of their facilities on their final, post-transition (digital) channel by the statutory deadline. For purposes of the DTV transition, the NPRM proposes that stations may file requests for Special Temporary Authorities

(STAs)to use analog translators to offset the loss of analog service when seeking to reduce or terminate analog service prior to the transition deadline (i.e., February 17, 2009); to temporarily remain on their in-core pre-transition DTV channel after the DTV transition deadline (i.e., February 17, 2009), and to build less than full, authorized post-transition facilities by the transition deadline (i.e., February 17, 2009). *OMB Control Number:* 3060-0216. *Title:* Informal Requests to Discontinue Only One Service and Informal Requests to Flash Cut; Section 73.3538, Application To Make Changes in an Existing Station, Section 73.1690(e) Modification of Transmission Systems. *Form Number:* Not Applicable. *Type of Review:* Revision of a currently approved collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions. *Number of Respondents:* 700. *Frequency of Response:* On occasion reporting requirement; Recordkeeping requirement. *Estimated Time Per Response:* 0.50—3 hours. *Total Annual Burden:* 1,125 hours *Total Annual Costs:* None. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking, In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70, to consider the procedures and rule changes necessary to complete the nation's transition to DTV, including how best to ensure that broadcasters complete construction of their facilities on their final, post-transition (digital) channel by the statutory deadline. The NPRM proposes to allow stations to request Commission approval to discontinue analog TV service prior to the end of the DTV transition. To obtain such approval from the Commission, the NPRM proposes to allow stations to make such requests by sending a letter to the Video Division of the Media Bureau and sending an e-mail to *analog@fcc.gov* in lieu of filing an application for construction permit (e.g., Form 301 or Form 340). The NPRM also considers whether to allow stations to request Commission approval to return their currently assigned, pre-transition-only DTV channel (i.e., a DTV channel that is not their final, post-transition channel) and flash cut at or before the transition deadline from their current analog channel to their final, post-transition channel. Section 73.1690(e) of the Commission's rules requires AM, FM and TV station licensees to prepare an informal statement or diagram describing any electrical and mechanical modification to authorized transmitting equipment that can be made without prior Commission approval provided that equipment performance measurements are made to ensure compliance with FCC rules. This informal statement or diagram must be retained at the transmitter site as long as the equipment is in use. This requirement is approved in OMB Control Number 3060-0374, but is being consolidated into this collection (3060-0216). Section 73.3538 requires broadcast stations to file an informal application to modify or discontinue the obstruction marking or lighting of an antenna supporting structure. The NPRM does not affect this requirement. It has already been approved by OMB. *OMB Control Number:* 3060-XXXX. *Title:* Digital TV Transition Status Report. *Form Number:* FCC Form 387. *Type of Review:* New Collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions. *Number of Respondents:* 1,812. *Frequency of Response:* One-time reporting requirement. *Estimated Time per Response:* 2 hours. *Total Annual Burden:* 3,624 hours. *Total Annual Costs:* $1,268,400. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking, In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70. This is a review of the transition of the nation's broadcast television system from analog to digital television. This NPRM, among other things, proposes to require all full-power television stations to file a form (FCC Form 387) with the Commission detailing their transition status on or before December 1, 2007. *OMB Control Number:* 3060-XXXX. *Title:* Section 73.682(d), TV Transmission Standards. *Form Number:* Not applicable. *Type of Review:* New Collection. *Respondents:* Business or other for-profit entities; Not-for-profit institutions. *Number of Respondents:* 1,812. *Frequency of Response:* Weekly reporting requirement; Third party disclosure requirement. *Estimated Time Per Response:* 0.50 hours. *Total Annual Burden:* 47,112 hours. *Total Annual Costs:* None. *Nature of Response:* Required to obtain or retain benefits. *Confidentiality:* No need for confidentiality required. *Privacy Impact Assessment:* No impact(s). *Needs and Uses:* On April 25, 2007, the Commission adopted a Notice of Proposed Rulemaking, In the Matter of the Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television, MB Docket No. 07-91, FCC 07-70. The NPRM proposes to update Section 73.682(d) of the Commission's rules, 47 CFR 73.682(d), to reflect revisions to the Advanced Television Systems Committee Inc's

(ATSC)Program System Information Protocol

(PSIP)standard. The revised ATSC PSIP standard requires broadcasters to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available. In other words, it requires broadcasters to provide detailed programming information when transmitting their broadcast signal. Currently, under version A/65-B, many broadcasters provide only general information in the EIT tables. Summary of the NPRM of Proposed Rulemaking I. Introduction 1. Congress has mandated that after February 17, 2009, full-power broadcast stations must transmit only in digital signals, and may no longer transmit analog signals. With this *Notice of Proposed Rule Making (“NPRM”),* we begin our third periodic review of the transition of the nation's broadcast television system from analog to digital television (“DTV”). The Commission has conducted two prior periodic reviews: the first in MM Docket No. 00-39 and the second in MB Docket No. 03-15. We conduct these periodic reviews in order to assess the progress of the transition and make any necessary adjustments to the Commission's rules and policies to facilitate the introduction of DTV service and the recovery of spectrum at the end of the transition. Here, we consider how to ensure that broadcasters complete construction of their final, post-transition (digital) facilities by the statutory deadline. II. Executive Summary 2. In this Third DTV Periodic Review, we

(1)provide a progress report on the transition;

(2)describe the status and readiness of existing stations to complete the transition;

(3)analyze and propose the procedures and rule changes necessary to complete the transition; and

(4)address other issues related to the transition. Stations that have not completed construction of their post-transition channels must focus their full attention on the construction efforts necessary to move from analog to digital transmission no later than the February 17, 2009 deadline established by Congress. Specifically, we propose the following actions to facilitate the transition for full-power television stations (We note that the statutory transition deadline applies only to full-power stations; see 47 U.S.C. 309(j)(14) and 337(e). We will address the digital transition for low power television (“LPTV”) stations in a separate proceeding. The Commission previously determined that it has discretion under 47 U.S.C. 336(f)(4) to set the date by which analog operations of stations in the low power and translator service must cease. Accordingly, the Commission decided not to establish a fixed termination date for the low power digital television transition until it resolved the issues concerning the transition of full-power television stations): • We tentatively conclude that February 17, 2009 will be the construction deadline for stations that are building digital facilities based on their new channel allotments in the new DTV Table of Allotments (“DTV Table”) and accompanying Appendix B (“new DTV Table Appendix B”), which will be established by an order in the Commission's DTV proceeding, MB Docket No. 87-268 ( *i.e.* , stations whose DTV channel for pre-transition operation is not their channel for post-transition use). The Commission proposed channel assignments and reference facilities for stations' post-transition operations in a 2006 Notice of Proposed Rule Making in MB Docket No. 87-268. *See Advanced Television Systems and Their Impact upon the Existing Television Broadcast Service,* MB Docket No. 87-268, Seventh Further Notice of Proposed Rule Making, 71 FR 66592-01 (Nov. 15, 2006) ( *“Seventh FNPRM”* ). The *Seventh FNPRM* sets forth a channel for each eligible broadcast TV station in the proposed new DTV Table. The details of each station's channel assignment, including technical facilities and predicted service and interference information, are set forth in the proposed new DTV Table. [Section V.C.1. and proposed rule 47 CFR 73.624(d)(1)(v)] • We propose that stations whose post-transition channel is the same as their pre-transition DTV channel, who are not facing unique technical challenges, and who are granted either an extension in the *Construction Deadline Extension Order* or a waiver in the Use-or-Lose Order must complete construction of their DTV facilities by the deadline established in those orders ( *i.e.* , six months from the release date of the orders). These stations have had their post-transition channel assignments for several years. [Section V.C.2.] • We propose that February 17, 2009 will be the construction deadline for stations facing unique technical challenges, such as those with side-mounted digital antennas or similar situations in which the operation of their analog service prevents the completion of their full, authorized digital facilities. [Section V.C.3.] • We tentatively conclude that stations that have not completed construction of full, authorized facilities on their pre-transition channel may be excused from completion of construction if this is not their post-transition channel. Our proposal applies to stations that have pending construction permits (“CPs”), that have requested CP extensions, that have been granted CP extensions, that have been granted waivers of the use-or-lose deadlines, and that have waivers for their checklist facility deadline. These stations will be permitted to carry-over protection to their full, authorized facilities. [Section V.C.1.] • We propose to restrict the situations in which grants of an extension of time to construct digital facilities will be considered for construction deadlines prior to the end of the transition. In addition, beginning February 17, 2009, we propose to apply the existing “tolling” standard applied to analog stations to requests for additional time to construct digital facilities and will toll the construction deadline only in limited and unavoidable circumstances. [Section V.C.4. and proposed rule 47 CFR 73.624(d)(3)] • We propose to require all full-power television stations to file a form with the Commission detailing their current transition status, additional steps necessary in order to be prepared for digital-only operation on February 17, 2009, and a timeline for making those steps. [Section V., paragraph 35] • We consider whether and, if so, under what circumstances we should accept new requests by stations to return their pre-transition-only DTV channel ( *i.e.* , a DTV channel that is not their final, post-transition channel) before the end of the transition and “flash cut” from their analog channel to their post-transition channel. [Section V.B.] • We examine the circumstances in which a station may be allowed to reduce or terminate its analog service to facilitate construction of its final, DTV facility on its post-transition channel. [Section V.A.] • We propose to allow stations to operate on newly allotted post-transition facilities before the transition deadline provided they would not interfere with existing, pre-transition service. [Section V.C.5.] • We request comment on additional proposals to provide stations with regulatory flexibility to facilitate stations' construction of their post-transition facilities by the statutory deadline. [Section V.C.6.] • We propose to offer expedited processing to a station applying for a CP to build its post-transition channel, provided that its application

(i)does not seek to expand the station's noise-limited service contour in any direction beyond that established by the new DTV Table Appendix B;

(iii)is filed within 45 days of the effective date of Section 73.616 of the rules adopted in the Report and Order in this proceeding. We propose to revise FCC Forms 301 and 340 accordingly. [Section V.D.] • We tentatively conclude that we will not accept applications to expand post-transition facilities until we have completed processing the applications to build authorized facilities, but we seek comment on ways to consider expansion applications sooner without delaying the transition. [Section V.E.] • We tentatively conclude to adopt a new 0.5 percent interference standard to apply to maximizations and to new channel allotments after the transition. [Section V.F. and proposed rule 47 CFR 73.616] • We propose to update the Commission's rules to reflect any revisions to the ATSC standards concerning DTV transmission and PSIP since the adoption of the *Second DTV Periodic Report and Order.* [Sections V.G.1. and V.G.2. and proposed rule 47 CFR 73.882(d)] • We seek comment on whether the Commission can and should revise Section 73.624(g) to require DTV stations that are permittees operating pursuant to a DTV STA or other FCC authorization for DTV transmission to file FCC Form 317 and pay fees on any revenue derived from feeable ancillary or supplementary services in the same way required of DTV licensees. [Section V.G.3.] • We invite comment on whether further amendments are needed to the station identification rules and, in particular, whether the current rules provide for appropriate identification of multicast channels. [Section V.G.4.] • We invite comment on whether coordination is needed between broadcasters and MVPDs to ensure a smooth transition, whether this coordination is underway, and what actions the Commission should take to assist broadcasters with their coordination efforts. [Section V.G.6.] III. Background 3. Congress specifically requires the Commission to evaluate the progress of the nation's transition to digital television. The first DTV periodic review began in March 2000 and the second in January 2003. In addition to these periodic reviews, the Commission has continued to conduct its DTV proceeding, through which it has developed new channel allotments and assignments. The Commission established the initial DTV Table of Allotments in 1997. *See Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service,* MM Docket No. 87-268, Sixth Report and Order, 62 FR 26684-01 (May 14, 1997) ( *“Sixth Report and Order”* ). The details of each station's channel assignment under the initial DTV Table, including technical facilities and predicted service and interference information, were set forth in the initial Appendix B of the *Sixth Report and Order.* The initial Appendix B was amended in 1998. Simultaneous with the adoption of the *Sixth Report and Order,* the Commission announced DTV channel assignments for eligible licensees in the Fifth Report and Order, 62 FR 26966-02 (May 16, 1997), in the same docket. The Commission recently issued a *Seventh FNPRM* in connection with the DTV proceeding. 4. The *Second Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television,* MB Docket No. 03-15, Report and Order, 69 FR 59500 (October 4, 2004) ( *“Second DTV Periodic Report and Order”* ) established a three-round channel-election process through which eligible broadcast licensees and permittees (collectively, “licensees”) selected their post-transition channels inside the core TV spectrum ( *i.e.* , channels 2-51). The Commission received 11 petitions for reconsideration of the *Second DTV Periodic Report and Order,* raising a number of issues, most of which have been rendered moot by the completion of the channel election process . At the start of this process, licensees proposed their post-transition facilities. (In November 2004, licensees filed certifications via FCC Form 381 in order to define their proposed post-transition facilities. In these certifications, licensees chose whether to

(1)replicate their allotted facilities,

(2)maximize to their currently authorized facilities, or

(3)reduce to a currently authorized smaller facility. Stations that did not submit certification forms by the deadline were evaluated based on replication facilities.) After each channel election round, the Commission announced proposed post-transition channels—called tentative channel designations (“TCDs”). 5. The channel election process culminated in the adoption of the *Seventh FNPRM,* which proposed a new DTV Table. (Comments on the proposed new DTV Table were due January 25th and replies were due February 26th.) The proposed new DTV Table provides eligible stations with channels for post-transition operations inside the core TV spectrum. The DTV Table is based on the TCDs announced for stations, as well as the Commission's efforts to promote overall spectrum efficiency and ensure that broadcasters provide the best possible service to the public, including service to local communities. The proposed DTV Table will ultimately replace the current DTV Table. (The *Seventh FNPRM* proposes to codify the new DTV Table in 47 CFR 73.622(i). The current DTV Table, which is contained in 47 CFR 73.622(b), will become obsolete at the end of all authorized interim DTV operations. The current NTSC Table, which is contained in 47 CFR 73.606(b), will become obsolete at the end of the transition, when all full-power analog operations must cease.) 6. In early 2006, Congress enacted significant statutory changes to the DTV transition in the Digital Television and Public Safety Act of 2005 (“DTV Act”). (The DTV Act is Title III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4

(2006)(“DRA”), and is codified at 47 U.S.C. 309(j)(14) and 337(e).) Most importantly, it set February 17, 2009, as the date certain for the end of the DTV transition, at which time all full-power television broadcast stations must cease their analog transmissions. (The DTV Act amends 47 U.S.C. 309(j)(14)(A) to establish February 17, 2009 as a new hard deadline for the end of analog transmissions by full-power stations and directs the Commission to “take such actions as are necessary

(1)to terminate all licenses for full-power television stations in the analog television service, and to require the cessation of broadcasting by full-power stations in the analog television service, by February 18, 2009; and

(2)to require by February 18, 2009, * * * all broadcasting by full-power stations in the digital television service, occur only on channels between channels 2 and 36, inclusive, or 38 and 51, inclusive (between frequencies 54 and 698 megahertz, inclusive).”) The DTV Act does not provide for waivers or extensions of this deadline for cessation of analog broadcasts. (Previously, 47 U.S.C. 309(j)(14) provided an exception to the earlier December 31, 2006 transition deadline if the Commission determined that less than 85 percent of the television households in a licensee's market were capable of receiving the signals of DTV broadcast stations through various means ( *i.e.* , via over-the-air reception, cable or satellite, or digital-to-analog conversion technology). Congress eliminated the statutory provisions authorizing market-specific extensions of the DTV transition, including the 85 percent benchmark for DTV reception. This new hard deadline obviates the need for any further discussion of how to interpret and implement the former Section 309(j)(14)(B) of the Act, an issue previously deferred by the *Second DTV Periodic Report and Order.* ) The DTV Act also requires broadcast licensees to cease operations outside the core spectrum after February 17, 2009 in order to make that spectrum available for public safety and commercial wireless uses. Full-power TV broadcast stations must be operating inside the core TV spectrum and only in digital upon the end of the transition on February 17, 2009. (The DTV Act also created a coupon program to subsidize the purchase of digital-to-analog (“D-to-A”) converter boxes.) IV. Progress Report 7. The transition to DTV is a complex undertaking, affecting virtually every segment of the television industry and every American who watches television. The Commission has been facilitating the migration to DTV by adopting a standard for digital broadcasting, creating an initial DTV Table, awarding DTV licenses, establishing operating rules for the new service, monitoring the physical build-out of DTV broadcast stations, and helping to educate consumers about the transition. At the end of the transition, television broadcast operations will be limited to the core TV spectrum, enabling the recovery of a total of 108 MHz of spectrum ( *i.e.* , TV channels 52-69). (The core TV spectrum is comprised of low-VHF channels 2 to 4 (54-72 MHz) and 5 to 6 (76-88 MHz), VHF channels 7 to 13 (174-216 MHz) and UHF channels 14-51 (470-698 MHz), but does not include TV channel 37 (608-614 MHz), which is used for radio astronomy research.) Twenty-four megahertz of spectrum currently used for TV broadcast channels 63, 64, 68, and 69 have been reallocated for critically important public safety needs. The remaining 84 MHz (currently TV broadcast channels 52-62 and 65-67) have been or will be auctioned for new wireless services. (Channels 60-69 (746-806 MHz) were reallocated for public safety and wireless communications services in 1998. Channels 52-59 were reallocated for new wireless services in 2001.) A. Status of DTV Operations 8. In 1997, the Commission granted eligible licensees a paired channel for digital operations during the transition and set dates for construction and operation of broadcasters' facilities on their allotted DTV channels. Pursuant to the construction schedule set forth in Section 73.624(d) of the Commission's rules, affiliates of the top four networks in the top ten television markets were required to complete construction of their DTV facilities by May 1, 1999; top four network affiliates in markets 11-30 by November 1, 1999; all remaining commercial television stations by May 1, 2002; and all noncommercial educational (“NCE”) television stations by May 1, 2003. 9. As of April 2, 2007, 1,702 television stations in all markets (representing approximately 98.8 percent of all stations) have been granted a DTV construction permit (“CP”) or license. A total of 1,603 stations are now broadcasting a digital signal. Of these, 1,215 stations are authorized with licensed facilities or program test authority and 388 stations are operating pursuant to special temporary authority (“STA”) or experimental DTV authority. 10. In the top 30 television markets, all 119 top-four network-affiliated television stations are on the air in digital, 110 with licensed DTV facilities or program test authority and nine with STAs. In markets 1-10, all 40 top-four network affiliated stations are providing digital service, 38 with licensed DTV facilities and two with STAs. In markets 11-30, all top-four 79 network affiliated stations are providing DTV service, 74 with licensed DTV facilities and five with STAs. 11. Approximately 1,230 commercial television stations were due to commence digital broadcasts by May 1, 2002. As of April 2, 2007, 1,136 of these stations (92.4 percent) are broadcasting a digital signal. In addition, approximately 373 NCE television stations were required to commence digital operations by May 1, 2003. As of April 2, 2007, 348 (93.3 percent) of these stations are broadcasting a digital signal. (The commercial and NCE TV stations that have not commenced digital broadcasts were required to file a request for extension of additional time to complete construction of their DTV facilities by the deadline established for them in 47 CFR 73.624(d)(1).) B. Status of Consumer Capability to Receive DTV Signals 12. In connection with the 2006 Competition Report, the Commission requested information about the number of households relying solely on over-the-air broadcast television for programming. (The Commission also sought information about the number of cable and satellite households that rely on over-the-air service on one or more of their television sets not connected to a multichannel video programming distributor (“MVPD”).) In comments filed to that proceeding, the National Association of Broadcasters (“NAB”) indicated that there are approximately 69 million television sets are not connected to any MVPD service. Specifically, NAB reported that nearly 19.6 million households rely solely on over-the-air broadcast television, and there are approximately 45.5 million sets in those homes. NAB states that “in these 19.6 million over-the-air households, there are approximately 1.3 million over-the-air digital sets.” Thus, according to NAB, “[t]here are roughly 18.7 million over-the-air households with only analog sets, and these households have about 44.2 million analog sets.” NAB reports that an additional 23.5 million television sets in 14.7 million MVPD households remain unconnected to the MVPD service. NAB states that this 2006 data showing large numbers of over-the-air television sets is consistent with two surveys conducted in 2005. 13. The demand for DTV sets has grown with increased availability of DTV programming and receiving equipment and a steady drop in the price of such equipment. The Consumer Electronics Association (“CEA”) reports that the consumer electronics industry has invested $66.7 billion in DTV products since 1998. Moreover, CEA reports more than $75 billion in consumer investment in DTV products. According to CEA, 23.9 million DTV sets and monitors were sold in 2006. CEA predicts that 29.2 million DTV products will be sold in 2007, 33.4 million in 2008, 35.2 million in 2009 and 36.4 million in 2010. CEA estimates that DTV sales will represent 69 percent of all TV sales in 2006. (CEA projects that DTV sales will represent 92 percent of all TV sales in 2007.) 14. In order to promote the availability of reception equipment and protect consumers by ensuring that their television sets continue to work in the digital world just as they do today, the Commission established a DTV tuner mandate, which requires, as of March 1, 2007, that all television receiver equipment ( *e.g.* , TV sets (all sizes), VCRs, digital video recorders, and any other TV receiving devices) manufactured or shipped in interstate commerce or imported into the United States, for sale or resale to the public, must be capable of receiving the signals of DTV broadcast stations over-the-air. (In 2002, the Commission initiated the DTV tuner mandate, with a phase-in period based on screen size to minimize the cost impact on consumers. In 2005, the Commission accelerated the implementation of the DTV tuner mandate to become effective on March 1, 2007 and expanded the mandate to include television sets less than 13 inches.) 15. In addition, subsidized digital-to-analog (“D-to-A”) converter boxes will be available to eligible consumers starting January 2008, further promoting access to digital reception equipment. ( *See Rules to Implement and Administer a Coupon Program for Digital-to-Analog Converter Boxes,* NTIA Docket No. 0612242667-7051-01, Final Rule, 72 FR 12097 at paragraph 8 ( *“NTIA Coupon Program Final Rule”* ); 47 CFR 301. Starting January 1, 2008, all U.S. households will be eligible to request up to two $40 coupons to be used toward the purchase of up to two, D-to-A converter boxes, while the initial $990 million allocated for the program is available; 47 CFR 301.3-4. If the initial funds are used up and the additional funds (up to $510 million) are authorized, eligibility for the coupons will be limited to over-the-air-only television households. Eligible consumers will have until March 31, 2009 to make a request for these coupons.) This subsidy program, which was created by the DTV Act, will allow consumers with analog-only TV sets to receive over-the-air broadcast programming after the February 17, 2009 transition date, when analog broadcasting ends. Without a D-to-A converter box, consumers will not be able to view full-power TV broadcasts after the transition date unless they purchase DTV sets (television sets with a built-in digital tuner) or subscribe to a pay television service. Congress directed the National Telecommunications and Information Administration (“NTIA”) of the U.S. Department of Commerce to administer this subsidy program. (The DTV Act directs the Assistant Secretary for Communications and Information to “implement and administer a program through which households in the United States may obtain coupons that can be applied toward the purchase of digital-to-analog converter boxes.” The purpose of the program is to enable consumers to continue receiving broadcast programming over the air using analog-only televisions not connected to cable or satellite service.) In March 2007, NTIA issued final rules to implement the program, which subsidizes the purchase of D-to-A converter boxes. C. Status of Broadcasters' Transition 16. Stations are responsible for meeting the statutory deadline for the DTV transition. The Commission has no discretion to waive or change this transition date. Full-power broadcast stations not ready to commence digital operations upon expiration of the deadline for the transition on February 17, 2009 must go dark and risk losing their authorizations to operate after the transition date. (A station failing to meet its construction deadline may be subject to license revocation procedures (47 U.S.C. 312), the issuance of forfeitures (47 U.S.C. 503), or other remedial measures, such as admonishment. For example, we remind licensees that “if a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period, notwithstanding any provision, term, or condition of the license to the contrary;” 47 U.S.C. 312(g). If discontinuing operations, stations must also be mindful of the Commission's rules.) 17. We have proposed post-transition channel assignments for all eligible stations. (These post-transition channel assignments largely were based on the choices made by licensees during the channel-election process. Eligibility for a proposed post-transition channel assignment was limited to existing Commission licensees and permittees.) In the proposed new DTV Table, 1,812 stations received proposed post-transition DTV channels. (This total includes 1,806 stations announced in Appendix A to the *Seventh FNPRM* and six additional stations announced in a subsequent Public Notice. Additional new permittees may also be announced before the transition deadline.) Of these, 1,178 stations received the DTV channel on which they are currently authorized, 517 stations received the NTSC channel on which they are currently authorized, and 117 stations received a different channel from which they are currently authorized. 18. The process of transitioning the entire TV broadcast industry to digital-only operation on each station's final channels will be complex. Accordingly, stations already should be planning their transition to digital-only service on their post-transition channel. Some stations may now be ready, or very close to ready, to make their transition. We have provided a list of 752 stations that we believe fall into this category and seek input from those stations regarding our assessment. 19. Most stations, however, will need to take significant steps to accomplish their transition. Stations' situations will vary based on their final channel assignments in the new DTV Table and whether, and if so to what extent, they must change their transmission facilities to operate on their post-transition channels. As described below, stations may seek to change their antenna or tower locations. (A station that must change its DTV tower location may face a considerable challenge, especially if the station must construct a new tower. Such a station must consider whether there are any existing towers that can be used or if a new tower must be constructed. Because of the lead times involved in purchasing or leasing land with appropriate FAA clearances, local and state zoning requirements, and varying timelines for designing the new tower, ordering equipment, delivery of equipment, and construction-related issues, such a station must begin planning as soon as possible in order to transition by the deadline. In some cases, building a new tower at this stage in the process may no longer be a viable option.) Stations may also need to change their effective radiated power (ERP), antenna height above average terrain

(HAAT)or antenna pattern as set forth in the new DTV Table Appendix B, as adopted. 20. Before discussing the issues that must be addressed to complete the transition, we first categorize the circumstances that stations are in to describe what stations in each group must accomplish. First, there are stations that will remain on their current DTV in-core channel. Second, there are stations that will return to their analog in-core channel. Third, there are stations that will move to a completely new in-core channel. In addition to these three general categories, stations without a paired channel ( *i.e.* , “singleton stations”) that will “flash cut” from broadcasting on their analog channel to broadcasting on a digital channel raise unique issues that we will consider separately. (“Singletons” or “single-channel licensees” refers to those licensees that do not have a second or “paired” channel to convert to DTV. “Flash-cut” refers to the situation where a station gives up its pre-transition digital channel and transitions to digital service using its analog channel or a newly allotted channel.) We seek comment on these categories and circumstances in general and on the particular tentative conclusions, proposals and queries in the Issue Analysis (section V), below. 1. Category One: Stations Remaining on Their Current DTV In-Core Channel 21. There are 1,178 stations remaining on their current DTV in-core channel for post-transition operations, based on the proposed new DTV Table. Most of these stations will have a relatively simple transition because they already have the authorizations necessary to operate at their proposed post-transition facilities as specified in the proposed new DTV Table Appendix B. In fact, many of these stations have already constructed and received licenses for their post-transition facilities, and so will simply turn off their analog service to complete their transition. 22. Some stations in this category, however, may not have completed their authorized construction. This would include a station that has not built anything and has a CP or extension of its “checklist” deadline and a station that has constructed a reduced facility and is operating pursuant to Special Temporary Authority (“STA”). In addition to turning off their analog service, these stations may need to make changes to match their post-transition facilities as specified in the new DTV Table Appendix B. The difficulty faced by these stations will depend on the type of change and degree of change required to complete their authorized construction. (For example, stations in this category may need to adjust their transmitter power, their antenna design, their antenna location, or some combination thereof. We expect that relatively minor adjustments to operating power can be done easily, perhaps through the use of in-house engineers. Changes involving more significant power changes and/or changes to transmitting antennas may require more time and effort. For example, a number of stations currently have a top-mounted analog antenna and a side-mounted digital antenna, and to provide full digital service will need to re-mount the digital antenna to the top of the tower. Also, if an entirely new transmission line and/or antenna must be installed, additional time will be needed to order the transmission line and antenna and have it delivered to the site.) 23. Furthermore, some of these stations may have pending applications with unresolved international coordination issues. Licensees in this category with pending applications should consult with the Commission staff about the timing for action on their applications. In addition, they should coordinate with Commission staff regarding necessary modifications to their applications that will result in international approval. They may need to proceed with constructing authorized facilities to the extent approved by Canada or Mexico if the issues delaying action on their applications cannot be resolved in time to allow construction to be completed before the end of the transition. (These stations may be required to adjust their transmitter power, their antenna location, their antenna design, or some combination thereof.) 2. Category Two: Stations Returning to Their Analog In-Core Channel 24. There are 517 stations that will return to their current analog in-core channel for post-transition operations, based on the proposed new DTV Table. (This group of stations includes some analog singletons and flash-cutters.) Stations in category two may face each of the category one challenges involving tower construction, antenna replacement or relocation, and transmitter replacement or power adjustments. 25. In addition, these stations may need to determine whether they can use any of their analog or digital transmission equipment ( *e.g.* , transmitter, transmission line or waveguide, and antenna). If a station finds it has a transmitter that it could use, it will also need to determine whether that transmitter can provide the appropriate power level. It is our understanding that a station that is going to stay within a spectrum band (low-VHF, high-VHF or UHF) and change its frequency within 5 or 6 channels (36 MHz or less) will most likely require fewer technical changes than if the change of broadcast frequency is more than 6 channels. We expect that channel moves of fewer than 5 or 6 channels may require only minor modifications to the station's digital transmitter, whereas more significant changes may require major modifications or an entirely new transmitter. We seek comment on these assumptions. 26. Stations that will return to their current analog channel also may need to determine whether their current analog or DTV antenna can be used. Generally, the design, condition and channel of operation of their current antennas, as well as the stations' directional antenna characteristics established in the new DTV Table Appendix B, as adopted, must be considered when these stations evaluate the suitability of their antennas for post-transition DTV operation. The ability of these stations to use an existing digital antenna may depend upon how significant the change in channel numbers will be for these stations as they move from their current DTV channel back to their current analog in-core channel. It is our understanding that channel moves of more than 5 or 6 channels will likely require a new antenna and transmission line or new waveguide. We seek comment on these assumptions. 27. These stations also must consider the impact on their analog TV service, which might be disrupted entirely or limited in reach to a smaller area during periods of work on the tower. For example, a temporary reduction in coverage might be due to reduced power analog TV operation at a backup site in order to facilitate construction on the main tower facility. 3. Category Three: Stations Moving to a Completely New In-Core Channel 28. There are 117 stations that will move to a completely new in-core channel for post-transition operations, based on the proposed new DTV Table. These stations face similar challenges to those returning to their analog (in-core) channel. In addition, these stations will need to coordinate with other stations to complete their move. For example, another station may occupy the relocating station's post-transition channel or it may occupy an adjacent channel (located in the same or a nearby area) to the relocating station's post-transition channel. Also, these stations may find that their tower site cannot support three antennas at once, as may be necessary to accommodate their current analog and DTV operations while preparing for broadcasting on their post-transition channel. 4. Singleton Stations 29. There are 137 stations that do not have a paired channel ( *i.e.* , stations that do not have both an analog and a digital channel), based on the proposed new DTV Table. These stations are commonly referred to as “singletons.” These stations fit in one of the preceding three categories, but they may encounter different challenges and circumstances that deserve special consideration in this review. Specifically, for this discussion, “singletons” include

(1)those stations described in footnote 101 of the *Second DTV Periodic Report and Order* as licensees that did not receive a second or “paired” channel to use during the transition to DTV;

(2)those stations that had a paired DTV channel and that we authorized to discontinue providing analog TV service;

(3)those paired-channel stations that gave up their interim DTV channel pursuant to “flash cut” approval; and

(4)those paired-channel stations that we propose to allow to “flash cut.” Singletons include DTV and analog TV stations, and can be unbuilt, operating at reduced facilities, or fully constructed and licensed. Analog TV singletons will be flash cutting from broadcasting on their analog channel to broadcasting on a digital channel. Flash-cutting often will involve singletons ending their analog TV operation and beginning their DTV operation on their current analog channel, but in some cases will require that a station change to a new channel for post-transition operation. Singleton stations, like those with paired channels, are responsible to ensure that they have completed the construction of their digital facilities by the February 17, 2009 deadline, except for stations whose initial CPs expire later. (Single-channel stations receive a CP with a three-year construction period. Thus, new stations whose CPs were granted after February 2006 will have construction deadlines later than February 17, 2009.) After February 17, 2009, stations that have not constructed analog facilities may only construct digital facilities on their post-transition channel. 30. Singleton licensees and permittees should have a post-transition channel in the proposed new DTV Table and proposed facilities specified in the proposed new DTV Table Appendix B, provided such permittee status is announced by Public Notice before the order establishing the new DTV Table is adopted. DTV singletons remaining on their current DTV channel for post-transition operations face the same challenges identified in category one above. These stations must complete authorized construction consistent with the new DTV Table Appendix B, as adopted. Stations that have done so and are operating and licensed need not take any further steps at this time. DTV singletons that have not completed construction must do so as discussed below. A few DTV singletons are moving to different channels in the new DTV Table, including some currently authorized for out-of-core operations. In addition to the potential challenges described for paired stations going to a new channel for post-transition operation (category three in the preceding section), unbuilt DTV singletons must complete their required construction by their CP expiration date, whether that date is before or after the transition deadline. 31. Analog singletons that will remain on their currently authorized channel for post-transition operations face the same challenges identified in category two above. Unbuilt analog singletons must also meet their CP expiration date requirements. Depending on the time left for them to complete construction, most of these stations should consider requesting that the Commission modify their authorization to specify DTV operation, particularly stations that have recently received CP grants. (Stations that receive a new CP and that will remain on this channel for post-transition operations may either construct their analog facilities (for use until the end of the transition) or apply to the Commission for permission to construct a digital facility on their analog channel for post-transition operations.) Stations in this situation that choose to construct their authorized analog broadcast facility for operation until February 17, 2009 should plan for its conversion to DTV when they purchase their transmitter and antenna system. 32. Analog singletons moving to a new channel for post-transition operations face the same issues identified in category three above. Some also have a CP for their analog channel that expires either before or after the transition deadline. Stations that have an analog CP expiring before the transition deadline should consider applying for a modification of their analog CP to make it easier to complete the required analog channel construction while also building their post-transition facility. They also should take steps to efficiently complete this simultaneous dual-channel construction of both their pre-transition analog and post-transition facilities (for example, having a tower crew install both antennas at the same time or ordering an antenna or transmitter that can be readily converted from analog operation to DTV operation). They may also want to explore the possibility of requesting that their single-channel analog authorization be modified to specify pre-transition DTV operation on their post-transition channel. Such a modification would require interference protection to be provided to all potentially affected stations and construction to be completed before the station's CP expires. Stations whose analog CP will expire after the transition deadline should consider applying for a modification of their analog CP to specify the post-transition facilities that they will need to complete before their CP expires. As noted above, February 17, 2009 is the deadline for all full-power television broadcast stations to end analog transmissions. V. Issue Analysis 33. In this Third DTV Periodic Review, we consider how to ensure that full-power TV broadcast stations complete their transition to digital-only operations by the statutory deadline. Specifically, we consider when stations may and must cease operating on their analog channel, when stations may and must begin operating on their post-transition channel, and what regulatory flexibility we can provide to facilitate these efforts. By statute, stations must cease analog operations by 11:59 p.m. on February 17, 2009. Stations, thus, should have their digital facilities in place and ready to commence operations no later than 12 a.m. on February 18, 2009. 34. We seek comment on what actions the Commission should take to facilitate broadcasters' completion of the transition by the statutory deadline. We seek comment on how to ensure that broadcasters

(1)complete construction of their post-transition facilities in a timely and efficient manner; and

(2)have in place (in-core) facilities that can reach their viewers. In view of the statutory change from a soft to a hard transition deadline, the Commission's focus has moved beyond simply ensuring that stations are operating in digital. Our focus is now on overseeing broadcasters' construction of their final, post-transition channel with facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. 35. We begin by proposing that every full-power television broadcast station file a form with the Commission that details

(1)the current status of the station's digital transition;

(2)the additional steps, if any, the station needs to take to be prepared for the switch-over deadline; and

(3)a plan for how it intends to meet that deadline. These filings will be posted on the Commission's website. We believe that these forms will assist the Commission, industry, and the public in assessing progress and making plans for the digital switchover date. 36. We also consider when stations may reduce their current (pre-transition) television service in order to complete their transition. Next, we consider the deadlines by which stations must construct and operate their current DTV channels or lose interference protection—or even authority to operate—on those channels. Third, we propose deadlines for the construction and operation of post-transition facilities and consider the ability of stations to transition early. We also consider the steps necessary for broadcasters to construct and operate their post-transition channels. Issues raised in this section include the rules, procedures and interference standards for stations to file applications for CPs to build their post-transition DTV facilities and to request authorization to maximize their facilities. Finally, we address other issues related to the DTV transition. (While we recognize the Commission's rules for full-power television will need to be updated to eliminate outdated references to analog and out-of-core television service and clarify engineering issues that differ for digital transmission and analog transmission, these housekeeping matters will be addressed in a separate rulemaking in the DTV proceeding. We, nonetheless, seek comment on whether resolution of any housekeeping issues requires more immediate attention.) A. Reduction and Termination of Analog Service 37. In this section, we consider the reduction and termination of stations' analog TV service. Until February 17, 2009, the Commission's rules require stations to continue operating their existing licensed analog facilities. (Moreover, the public has a legitimate expectation that existing broadcast services will be maintained.) To best achieve their respective transitions, however, some stations may find it desirable to reduce or terminate their analog operations before the February 17, 2009 transition date. In some cases, stations may need to reduce or end their analog service because such operations may impede construction and operation of post-transition (digital) facilities. Such circumstances may include, but are not limited to:

(1)Stations that would like to switch their side-mounted digital antenna with their top-mounted analog antenna before the end of the transition;

(2)stations that need to add a third antenna to their tower but cannot do so without reducing or ending analog service because the tower cannot support the additional weight; and

(3)stations that are terminating analog service early as part of a voluntary band-clearing arrangement. We seek comment on these and other circumstances where stations can facilitate their transitions by reducing or terminating their analog service in advance of the transition deadline. 38. *Background.* The Commission generally has not favored reductions in television service. Proposals that would result in a loss in TV service have been considered to be *prima facie* inconsistent with the public interest, and must be supported by a strong showing of countervailing public interest benefits. Consistent with this precedent, the Commission allows stations to reduce their service from that required by their licenses only upon an appropriate public interest showing. Losses in service may be justified, for example, to facilitate the station's transition to DTV. (The Commission has placed a very high priority on accelerating the television industry's transition to DTV.) The Commission is generally most concerned where there is a loss of an area's only network or NCE TV service, or where the loss results in an area becoming less than well served, *i.e.* , served by fewer than five full-power over-the-air signals. In cases in which a station seeks to reduce analog TV service, it can also use an engineering analysis performed in accordance with the Office of Engineering and Technology's OET Bulletin No. 69 (“OET 69”) methodology to show that the area where service would be reduced is area that is already terrain shielded such that viewers located in that area do not actually receive the station's signal over-the-air now. 39. Notwithstanding the strong public interest in maintaining TV service, the Commission does permit the early return of out-of-core (TV channels 52-69) analog channels under certain circumstances in order to facilitate the DTV transition. The Commission established policies to facilitate voluntary “band-clearing” of the 700 MHz bands to allow for the introduction of new public safety and other wireless services and to promote the transition of out-of-core analog TV licensees to DTV service inside the core TV spectrum. Generally speaking, these policies provide that the Commission will approve voluntary agreements between incumbent broadcasters and new licensees to clear the 700 MHz band early if consistent with the public interest. The Commission has approved several such requests to return out-of-core channels in accordance with this band-clearing policy. 40. The Commission's 700 MHz band-clearing policies differ somewhat depending on whether a station is located on TV channels 59-69, which might affect use of the upper portion of the band, or on TV channels 52-58, which would only affect use of the lower portion of the band. Envisioning the early recovery of TV channels 60-69, the Commission established a “rebuttable presumption” favoring requests for voluntary band-clearing involving channels 59-69. (The Commission established its policies on voluntary band-clearing for TV Channels 59-69 in a series of orders. The Commission initially stated that it would “consider specific regulatory requests needed to implement voluntary agreements” between incumbent broadcasters and new licensees to clear the Upper 700 MHz Band early, if consistent with public interest. Next, the Commission established a rebuttable presumption favoring the grant of requests that would both result in certain specific benefits and avoid specific detriments. These policies were further extended to “three-way” band clearing arrangements, in which non-Channel 59-69 broadcasters were also potential parties. Finally, the Commission provided certain additional flexibility to facilitate voluntary agreements for early clearing and granted a request for relief from two specific DTV-related requirements.) In contrast, the Commission did not anticipate recovery of TV channels 52-59 until after the DTV transition was complete and, as a result, decided to consider requests for voluntary band-clearing involving those channels on a case-by-case basis. In this case-by-case review, the Commission considers whether grant of the request would result in public interest benefits, such as making new or expanded public safety or other wireless services available to consumers, especially in rural or other underserved communities. The Commission weighs these benefits against any likely public interest harms, such as the loss of any of the four stations with the largest audience share in the designated market area, the loss of the sole service licensed to the local community, the loss of a community's sole service on a channel reserved for NCE TV broadcast service, or a negative effect on the pace of the DTV transition in the market. 41. *Discussion.* In light of the hard deadline for the cessation of analog TV service, we believe the most significant public interest objective should be to ensure that stations meet the transition deadline. The original statutory provision requiring the termination of analog broadcasts established December 31, 2006 as the last day for analog operations, but allowed that deadline to be postponed if an 85 percent DTV reception benchmark was not reached in a given market. The Commission's goal under this former approach was to increase DTV operations as quickly as possible without causing significant analog service loss. We believe, however, that Congress' adoption of the hard deadline of February 17, 2009, now weighs in favor of an increasing tolerance for the loss of analog service as we near the switch-over date and where it will facilitate the transition. 42. *Stations with Out-of-Core Analog Channels.* As noted above, stations that might affect the upper 700 MHz band ( *i.e.* , TV channels 59-69) can receive a “rebuttable presumption” favoring their requests to terminate analog service. We believe the disparate band-clearing treatment with respect to stations in the lower 700 MHz band ( *i.e.* , TV channels 52-58) is no longer appropriate. The hard deadline applies equally to both portions of the 700 MHz band. In addition, Congress has mandated that the Commission begin the auction of recovered analog broadcast spectrum in the 700 MHz band no later than January 28, 2008. (The DTV Act unified the timing of auctions for the assignment of remaining spectrum from TV Channels 52-69. The Communications Act now requires the Commission to commence the auction of recovered analog broadcast spectrum no later than January 28, 2008 and deposit the proceeds of such auction in the Digital Television Transition and Public Safety Fund no later than June 30, 2008.) Accordingly, we propose to apply the same “rebuttable presumption” standard to voluntary agreements for clearing TV channels 52-58 as now applies to such agreements for clearing TV channels 59-69. (In other words, we propose to apply the relaxed “rebuttable presumption” standard to all out-of-core stations seeking to return their analog TV channels.) Moreover, we propose to apply the relaxed “rebuttable presumption” to out-of-core stations seeking to reduce rather than terminate their analog service. Requests to reduce or terminate analog service would be made in accordance with the Commission's rules. (Stations making requests to reduce analog TV service should do so in accordance with the rules to modify an existing license or authorization by using FCC Form 301 (commercial stations) or FCC Form 340 (NCE stations). Stations making requests to terminate TV service should do so in accordance with the rules to modify an existing license or authorization and to discontinue operations. Stations discontinuing only one service of their paired license, however, should not return their license or authorization, as would otherwise be required by 47 CFR 73.1750. In addition, stations making requests to reduce service may, if more applicable, instead apply for an STA pursuant to 47 CFR 73.1635. Consistent with the rules for license modification and discontinuance of operation, stations terminating their service may send a letter to the Video Division of the Media Bureau and send an e-mail to *analog@fcc.gov* in lieu of filing an application.) We seek comment on our proposed treatment of out-of-core stations seeking to reduce or terminate their analog service. 43. *Stations with In-Core Analog Channels.* In contrast to out-of-core stations' return of their analog channels, in-core stations' requests to reduce and terminate analog service have been less favored to this point. We believe it may now be appropriate to examine the circumstances under which we will allow in-core stations to reduce or discontinue analog TV broadcasting. We seek comment on the factors and circumstances we should consider when evaluating in-core stations' requests to reduce or terminate their analog TV service before the February 17, 2009 transition date. We invite comment on ways to ensure that stations meet the statutory transition deadline, while still minimizing the loss of TV service to consumers. If we permit early reduction or termination of analog service, how do we ensure that the public continues to have access to news and information, including emergency and other public safety information during the transition? 44. First, with respect to a station requesting to reduce its analog service—short of terminating its analog broadcasting, we seek comment on whether we should establish a presumption that any reduction in a station's analog TV service is in the public interest if:

(1)The proposed reduction is directly related to the construction and operation of post-transition facilities and would ensure that the station or another station can meet the deadline;

(2)The proposed reduction in analog service is less than five percent of either the station's service area or its population served;

(3)The proposed reduction does not cause the loss of an area's only top-four network or NCE TV service;

(4)The proposed reduction does not result in an unreasonable reduction in the number of services available in that area; (We seek comment on what that number of services would be. For example, the Commission has previously been concerned where the loss results in an area becoming less than well served, *i.e.* , with fewer than five full-power over-the-air signals. In other contexts, such as the satellite context, we note that the Commission has considered whether an area would become “underserved,” *i.e.* , an area with two or fewer full-service stations. We propose to allow stations to minimize the loss of service to their service area or population and satisfy this condition through the use of analog translators. As previously noted, the statutory deadline applies only to full-power stations. Stations interested in the temporary use of analog translators should file requests for STA in accordance with 47 CFR 73.1635.);

(5)The broadcast station proposing the reduction is able to deliver its signal to cable and satellite providers so that the reduced analog signal does not prevent cable and satellite carriage; and

(6)The broadcast station proposing the reduction commits to on-air consumer education about the station's transition and how to continue viewing the station. We seek comment on the usefulness and timing of this proposal, including whether there are other factors or situations where we should presume that a reduction in service would be, or would not be, in the public interest. For example, should we consider the level of cable and satellite penetration in the areas that will lose over-the-air service? We also seek comment on whether and, if so, how these factors should be relaxed as we approach the DTV transition date. As noted above, requests to reduce analog service would be made in accordance with the Commission's rules. 45. If a station is unable to qualify for the above proposed presumption, we propose to consider the station's request to reduce analog TV service (on an in-core channel) on a case-by-case basis. We invite comment on the appropriate showing and balancing of factors to consider in such a case-by-case analysis. As above, we seek comment on whether we should permit an increasing amount of analog TV service loss the closer we get to the end of the transition. What information must stations provide to demonstrate that reduced analog service would be in the public interest? We would expect that our case-by-case analysis would involve consideration of the factors discussed above. For example, we believe that broadcasters must be able to deliver their signals to cable and satellite providers so that reduced analog signals do not prevent cable and satellite carriage. In addition, we believe that broadcasters must also commit to on-air consumer education about the station's transition and how to continue viewing the station. We seek comment on these proposals. 46. Some broadcasters have side-mounted antennas and similar problems that prevent them from completing the build-out of their digital facilities while they are still operating their full analog facilities. Such stations, if they are providing DTV service to 100 percent of their replication area, may want to wait until February 17, 2009 to move their digital antenna into its final position. This approach may be acceptable provided there is a minimal disruption of service after the deadline due to post-deadline construction activities. We seek comment on this approach and urge each station operating under these circumstances to consider how much of their replicated area is served by their side-mounted digital antenna. It is critically important that analog over-the-air viewers who obtain the necessary digital receivers (whether TV sets or D-to-A converters) are able to receive DTV service over-the-air upon expiration of the deadline for the transition on February 17, 2009. If it is necessary for stations to reduce analog service before the transition to be sure all viewers have digital service on and after the transition date, we will consider such requests. 47. With respect to a station requesting to terminate its analog TV service on an in-core channel, we seek comment on whether and, if so, under what conditions we would permit such an action. We would expect to apply a stricter standard to the early termination of analog in-core service than to a reduction in service. We believe our analysis of requests to terminate analog service would at least involve consideration of the relevant factors discussed above for a reduction of service. We seek comment on this proposal, and also on whether we should require a station requesting termination of analog in-core service to demonstrate that a reduction in service is an unacceptable alternative. As noted above, requests to terminate in-core analog service would be made in accordance with the Commission's rules. B. Return of Pre-Transition DTV Channel; Flash Cut Requests 48. In this section, we consider whether and, if so, when to allow additional stations to return their pre-transition-only DTV channel ( *i.e.* , a DTV channel that is not their final, post-transition channel) and flash cut at or before the transition deadline from their current analog channel to their post-transition channel. The *Second DTV Periodic Report and Order* permitted stations in certain situations to surrender their pre-transition DTV channel, operate in analog on their analog channel, and then flash cut to digital by the end of the transition on their post-transition channel. As the Commission noted, the potential public interest benefits of flash cuts include freeing the station to focus its efforts on completion of its post-transition channel and the creation of opportunities for the provision of public safety and other wireless services on the pre-transition DTV channel. Based on the criteria established in the *Second DTV Periodic Report and Order,* the Media Bureau has approved the flash cut requests of numerous stations. In this Third DTV Periodic Review, we consider expanding the range of circumstances in which we will allow stations to flash cut. 49. *Background.* In the *Second DTV Periodic Report and Order,* the Commission permitted satellite stations to flash cut because of their unique status and circumstances and provided for these stations to notify the Commission of their decision to flash cut by their initial channel election deadline. (TV satellite stations are full-power broadcast stations authorized under Part 73 of the Commission's rules to retransmit all or part of the programming of a parent station that is typically commonly owned. Unlike full-service stations, satellite stations have chosen to forego or relinquish full-service status and instead retransmit the programming of a parent station because full-service operation of the satellite facility is not economically viable. Eligible satellite stations were assigned a paired DTV channel in the current DTV Table. The *Second DTV Periodic Report and Order* recognized that most satellite stations operate in small or sparsely populated areas that have an insufficient economic base to support full-service operations.) The Commission stated that satellite stations opting to flash cut would retain their interference protection (defined in the proposed new DTV Table Appendix B) as if they had met the applicable replication/maximization build-out requirements. 50. The Commission also permitted stations with out-of-core DTV channels to flash-cut under certain conditions and required notification of their decision to flash cut by their initial channel election deadline. The Commission presumed that granting such requests would be in the public interest if the station demonstrated that

(1)it was assigned an out-of-core DTV channel, and

(2)grant of the request would not result in the loss of a DTV channel affiliated with one of the four largest national television networks (ABC, CBS, NBC, or Fox). (The Commission has “relied on affiliates of the four largest national television networks to achieve the necessary milestones throughout the DTV transition.” The Commission also noted that the presumption is neither conclusive nor dispositive and that special circumstances raised by the resulting loss of digital broadcast service could rebut the presumption.) In the case of requests that did not meet these criteria, the Commission stated that it would consider all the relevant public interest factors in deciding whether to approve the request. These factors include the advancement of the provision of wireless and public safety services, the acceleration of the DTV transition, and the loss of broadcast service. Like satellite stations, full-service out-of-core stations that are permitted to flash cut would retain their interference protection (defined in the new DTV Table Appendix B, as adopted) as if they had met the applicable replication/maximization build-out requirements. The Commission also stated in the *Second DTV Periodic Report and Order* that stations would not be eligible to flash cut if they “have been denied an extension of the construction requirements and admonished because they failed to demonstrate that they are meeting the necessary criteria for an extension and have not come into compliance.” 51. The Media Bureau recently approved by Public Notice the flash cut requests of 32 stations based on the criteria established in the *Second DTV Periodic Report and Order.* These stations were approved to turn off or discontinue construction of their pre-transition DTV channel. In addition, the Public Notice invited any other station to flash cut if it meets the criteria established in the *Second DTV Periodic Report and Order.* 52. *Discussion.* We seek comment on whether and, if so, under what circumstances we should accept new requests by stations to return their pre-transition DTV channel before the end of the transition and “flash cut” from their analog channel to their post-transition channel (which must be different from their pre-transition DTV channel). (Stations may continue to obtain flash cut approval pursuant to the *Second DTV Periodic Report and Order* and *Flash Cut PN.* ) For instance, we seek comment on the following factors:

(1)Whether the DTV station is operating on TV channels 52-69;

(2)whether the station is affiliated with one of the four largest national television networks (ABC, CBS, NBC, or Fox);

(3)whether the station's pre-transition DTV channel is allotted to another station for post-transition use and the station's return of the channel will facilitate the other station's construction of its post-transition digital facility; and

(4)the station's financial hardship. We invite comment on these criteria and on other criteria that may be relevant. We encourage commenters to address the public's desire to continue to receive DTV signals that are currently available and the impact that allowing stations to turn off pre-transition DTV signals would have on the successful and timely completion of the transition. We also seek comment on the impact of this proposal on cable and satellite subscribers. Consistent with the decision in the *Second DTV Periodic Report and Order,* stations that have been admonished by the Commission for failure to meet their construction deadline would not qualify to flash cut. C. Construction Deadline for Full, Authorized DTV Facilities 53. In light of the short amount of time remaining before the transition deadline, it is critical that stations finalize construction of their post-transition facilities expeditiously to ensure the provision of TV broadcast service to the public when analog transmissions cease. In this section, we consider whether to require stations to continue construction of pre-transition channels that are not going to be used by the station after the transition. We also consider the deadline by which we will require TV broadcast stations to complete construction of their post-transition facilities. 54. As discussed below, we are proposing to adopt a different approach for the remainder of the transition with respect to deadlines for construction of DTV facilities and interference protection. Until now, a primary focus of the Commission has been to facilitate the initiation of DTV service to the public during the transition. This approach was designed, in part, to accomplish the goal of completing the transition by the December 31, 2006 “flexible” deadline originally established by Congress, which allowed for exceptions to the deadline. (Guided by this statutory directive, the Commission established construction deadlines and “use or lose” policies that provided incentives to stations to provide DTV service during the transition, which in turn gave viewers an incentive to purchase equipment that would enable them to view these signals.) Now that Congress has established a “hard” deadline for completion of the transition, with no exceptions, we believe our emphasis should shift toward ensuring that DTV stations will be providing service on their final, post-transition channels by that date. In general, we now must focus on striking the appropriate balance between the public interest in assuring that post-transition channels are fully constructed by February 17, 2009, and the public interest in pre-transition digital and analog service. These, like other issues raised in this NPRM, require careful self-assessment by licensees to determine how best to serve the public while at the same time making efficient use of the resources available (manufacturing capacity, tower crews, etc.) available to them. 55. *Previous Construction Deadlines and Use or Lose Policies.* As discussed above, the DTV construction schedule adopted by the Commission in 1997, provided for varying construction deadlines based on the size of the market and type of station, with all stations required to construct by May 1, 2003. (Under this schedule, television stations in the 10 largest TV markets and affiliated with the top four television networks (ABC, CBS, Fox, and NBC) were required to build DTV facilities by May 1, 1999. Stations affiliated with those networks in television markets 11 through 30 were required to construct their DTV facilities by November 1, 1999. All other commercial stations were required to construct their DTV facilities by May 1, 2002, and all noncommercial stations were to have constructed their DTV facilities by May 1, 2003.) In 2004, the Commission established two deadlines by which stations were expected to either replicate or maximize DTV service on their current (pre-transition) DTV channel or lose interference protection to the unserved areas on that channel. By July 1, 2005, top-four network affiliates in the top 100 markets were required to fully replicate or maximize if they will remain on their DTV channel after the transition. If these stations will move to another channel post-transition, they were required to serve at least 100 percent of their replication service population by July 1, 2005. By July 1, 2006, all other stations were required to fully replicate and maximize if they will remain on their current DTV channel after the transition. If they will move to another channel post-transition, they were required to serve at least 80 percent of their replication service population by July 1, 2006. The Commission stated that stations that met the applicable “use-or-lose” deadline and that are going to move to a different channel after the transition would be permitted to carry over their authorized maximized areas to their new channels. In addition, these “use-or-lose” replication/maximization deadlines became the new deadlines for stations operating temporary DTV facilities pursuant to STA to complete construction of their licensed DTV facilities. (In 2001, the Commission temporarily deferred (until the Second DTV Periodic Review) the establishment of construction deadlines for these stations, provided they constructed initial DTV facilities designed to serve at least their communities of license.) Approximately 80 percent of the stations in each of these categories met their respective deadlines. 56. In the *Second DTV Periodic Report and Order,* the Commission noted that certain stations had not yet been granted an initial DTV construction permit. The Commission required that, by August 4, 2005, all such stations construct and operate “checklist” facilities that conform to the parameters of the DTV Table and other key processing requirements. The Commission stated that it would consider requests for waiver of the August 4, 2005 deadline on a case-by-case basis, using the criteria for extension of DTV construction deadlines. (“Checklist” facilities have power and antenna height equal to or less than those specified in the DTV Table and are located within a specified minimum distance from the reference coordinates specified in the DTV Table. Because these facilities comply with the interference requirements specified in the rules, no further consideration of interference is required. In addition, because the DTV Table has been coordinated with Canada and Mexico, “checklist” facilities generally do not require further international coordination.) 57. In two separate orders adopted subsequent to the adoption of this NPRM, the Commission addressed applications filed by stations for extensions of time to construct DTV facilities and/or waivers of the deadline by which stations must build DTV facilities in order to retain the ability to carry over interference protection to their post-transition channel (so-called “use or lose” waivers). In the *Construction Deadline Extension Order,* the Commission considered 145 requests for an extension of time to construct a DTV facility. For 107 stations whose pre-transition DTV channel is the same as their post-transition channel, the Commission granted these applications and gave these stations an additional six months from the release date of the *Construction Deadline Extension Order* in which to complete construction. For 29 stations whose pre-transition DTV channel is different from their post-transition channel, the Commission granted these applications and gave these stations until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. In the *Use or Lose Order,* the Commission considered 192 requests for waiver of the “use or lose” deadlines. For 102 stations whose pre-transition DTV channel is the same as the station's post-transition DTV channel, the Commission granted these stations a waiver and gave them an additional six months from the release date of the *Use or Lose Order* in which to complete construction. For 38 stations whose pre-transition DTV channel is different from the station's post-transition channel, the Commission granted these stations a waiver and gave them until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. In both of these orders, the Commission reminded stations that the hard deadline for termination of analog TV service prevents consideration of any request for extension of full-power analog TV service beyond that date. The Commission advised stations given an extension or waiver to utilize this time to take all steps possible to complete construction as further extension or waiver requests may be evaluated under a more stringent standard. We intend to treat similarly any stations that have a construction permit for which the original time to complete construction has not yet expired. These stations still have time remaining on their original construction permit to complete the build-out of their pre-transition DTV facilities or they may have had their original construction permit extended and the extended deadline has not yet expired. Thus, these stations are not addressed in the *Construction Deadline Extension Order or Use-or-Lose Order.* These stations should continue to follow existing rules and procedures ( *i.e.* , continue to build their current DTV CP and, if that CP expires before they have completed construction, file a request for extension of the CP). Once final rules are adopted in this proceeding and become effective, stations will be subject to the new rules, including changes to Section 73.624(d). 58. *Revised Construction Deadlines and Use or Lose Policy.* Going forward, we propose to establish construction deadlines for DTV facilities that vary based on a station's channel assignments for pre- and post-transition operation and other circumstances affecting the station's ability to complete final, post-transition facilities. We believe this revised approach will best permit stations to focus their efforts on completing construction of final, post-transition facilities in the time remaining before the end of the transition. In conjunction with this approach, we propose to tighten the standard by which we evaluate future requests for extension of time to construct a DTV facility. In addition, with respect to construction deadlines of February 17, 2009 or later, we propose to evaluate all requests for additional time to construct under the “tolling” standard currently applied to analog broadcast TV stations and DTV singleton stations. 59. In this section, we consider construction deadlines for differently situated stations. First, we consider stations whose post-transition channel is different from their pre-transition DTV channel. These are stations that will be starting over with a new channel for DTV service. Second, we consider stations whose post-transition channel is the same as their pre-transition DTV channel. Unlike the first group, these are stations that have long been assigned the channel that they will use for post-transition operations. Third, we consider stations in other situations, including those facing unique technical challenges. Finally, we consider alternatives that might afford stations with regulatory flexibility. We seek comment on the proposed deadlines and tentative conclusions below, and also seek comment on alternative deadlines for these stations. 1. Stations Whose Post-Transition Channel is Different From Their Pre-Transition DTV Channel 60. For stations whose pre-transition DTV channel is different from their post-transition channel, we propose not to require further construction of their pre-transition DTV channel and propose to establish February 17, 2009 as the deadline by which these stations must complete their final, post-transition facilities. These stations face a greater challenge than stations that will remain on the same DTV channel for post-transition operations. Stations moving to a new channel must apply for a construction permit on that channel and build new facilities based on the channel allotments in the new DTV Table Appendix B, as adopted. Our proposal is designed to give stations facing the challenges associated with moving to a new DTV channel the maximum possible time to complete their post-transition facilities before analog transmissions must cease. We seek comment on this approach, and on whether an earlier construction date would still be appropriate in some circumstances. 61. With the establishment of the hard deadline, we believe the focus must turn to facilitating stations' efforts to construct their permanent DTV facilities that will be used to provide service after the transition. Therefore, at this stage in the DTV transition, we propose to allow a station to terminate further construction of its pre-transition DTV channel if this channel is not the station's post-transition channel. We request comment on this proposal. We believe that requiring stations to build or expand facilities that would only be operated until the end of the transition— *i.e.* , for less than two years—potentially could undermine the larger public interest objective of ensuring a timely transition to digital broadcasting by diverting limited resources from what is a far more important goal: The construction of final, post-transition facilities. 62. At the same time, however, we recognize that many stations whose pre-transition DTV channels are not the channels they will operate on post-transition have been diligent in meeting the deadlines established by the Commission for completing construction of their pre-transition facilities in order to provide DTV service to the public and to be permitted to carry over interference protection to their permanent DTV channel. It is not our intent to treat these stations unfairly or reward stations that have been less diligent in providing DTV service during the transition. However, as noted above, it is critical at this juncture to focus on the completion of final DTV facilities. In order to accomplish this goal, we believe we must permit stations to cease investing time and resources in completing facilities that will be used for the remainder of the transition simply in order to retain interference protection on their final, post-transition channels. Instead, we need to ensure that stations are focused on finalizing their post-transition facilities now to ensure service to the public when analog transmissions cease. 63. Accordingly, we propose to change our “use or lose” policy for stations whose pre-transition DTV channel is not their post-transition channel as follows. For such stations that received either an extension of their construction deadline in the *Construction Deadline Extension Order* or a waiver of their use-or-lose deadline in the *Use or Lose Order* ( *i.e.* , until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding), we propose that these stations will not lose protection to their post-transition channels. We note that many stations that have not built their transitional facilities have faced recognizable impediments to doing so. In addition, most of these stations that have applied for an extension of time to construct and/or a waiver of the applicable use-or-lose deadline have had those requests granted, indicating that they were found to have a valid reason not to have met the applicable deadline. Thus, we do not believe that allowing stations that faced such impediments to retain interference protection on their final, post-transition facility unfairly rewards these stations. We seek comment on this approach. We specifically invite comment on the effect of this proposal on stations moving to a different DTV channel for post-transition operations that have fully complied with their use-or-lose deadlines and construction permit build-out requirements. 64. Under our proposal here, stations with a pre-transition DTV channel that is not the same as their final, post-transition channel have the following options. We request comment on our proposal, discussed below. 65. *Pre-Transition DTV Channel Unbuilt or Not in Operation.* We propose to permit a station that has not constructed an operational pre-transition DTV facility to elect simply to return its CP for that facility to the Commission and focus its efforts on construction of its post-transition facility. Thus, a station that has either not begun construction of its pre-transition DTV facility or has not begun operating that facility, and will be moving to a different channel at the end of the transition, may return the CP for that facility to the Commission. As stations in this situation are not currently providing digital service to the public, we believe it is appropriate at this stage in the transition to allow these channels to be returned. We request comment on this approach. Stations electing this option would be required to obtain flash cut approval in accordance with the proposals discussed in section V.B., *supra.* Stations electing this approach would be able to carry over interference protection to their post-transition channel, as noted above. 66. *Pre-Transition DTV Channel in Operation.* Stations with operational DTV facilities on a pre-transition channel may have several options. Under each of these options, we propose to permit a station to carry over interference protection to its post-transition channel, as noted above. • First, stations may discontinue further construction on their pre-transition DTV facility and to operate the facility they have constructed at this point during the remainder of the transition while they focus on construction of their permanent DTV facility. We propose to permit these stations to file an application to modify their existing CP to match their pre-transition DTV facility in accordance with the Commission's rules. The station would then continue operation of the facility for the remainder of the transition without devoting resources to further build-out of that facility. 67. Second, stations may be permitted to cease operating their pre-transition DTV facility in certain circumstances. We propose that these stations must obtain flash cut approval in accordance with the proposals discussed in section V.B., *supra* . • Third, stations may decide they would like to continue construction of their full, authorized DTV facility on their pre-transition channel. While we do not want to deny stations in this third category the opportunity to continue to build pre-transition DTV facilities and to provide service on these facilities for the remainder of the transition, we believe it is appropriate to require that these facilities be completed expeditiously. Accordingly, for stations in this third category, we propose to permit the station to continue to build its pre-transition DTV facility, but will require that construction be completed by the deadline established for them in the *Construction Deadline Extension Order or in the Use or Lose Order* ( *i.e.* , 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding). 2. Stations Whose Post-Transition Channel Is the Same as Their Pre-Transition DTV Channel 68. Many stations whose pre-transition DTV channel is the same as their post-transition channel have already made substantial progress toward construction of facilities that will be used to provide service after the transition. Specifically, they have already constructed their full, authorized DTV facilities in accordance with their existing CP or license and the Commission's previous build-out requirements established in the *Second DTV Periodic Report and Order.* Some of these stations have built DTV facilities that match those defined in the proposed new DTV Table Appendix B and are, therefore, now ready for post-transition operations. (We remind stations of their continuing obligation to notify the Commission concerning changes in their facilities. Stations are expected to comply with the rules and may refer to adjustments in their facilities as described in the new DTV Table in their comments in this docket. To the extent that stations still need to modify their authorization, we propose to require them to file an application, as discussed below in section V.D. In addition, as we propose below, applications that match or closely approximate but do not exceed their new DTV Table facilities will be eligible for expedited processing.) Other stations whose pre-transition DTV channel is the same as their post-transition channel have built their full, authorized DTV facilities in accordance with their existing CP or license but for some reason these facilities do not match those facilities defined in the proposed new DTV Table Appendix B. (Stations may have certified facilities that were authorized by CPs they have not yet constructed, or that they requested in pending applications that have been held up by international coordination issues, or that are based on replication that their current CP or license does not exactly achieve. Stations may also have modified their CP or license since they filed their certification so that their currently authorized coverage no longer provides an exact match to their certified coverage.) These stations will need to file an application for a new CP or an application for modification of CP to change their facilities to match those facilities defined in the new DTV Table Appendix B, as adopted. We discuss below, in section V.D., the process by which stations must file such applications. 69. Other stations with the same pre- and post-transition DTV channel have not yet constructed their full, authorized DTV facilities. Some of these stations currently have a CP for their full, authorized DTV facility, some are operating reduced facilities pursuant to an STA, and some may not have constructed at all. These stations must complete construction and, in some cases, may have to apply for a new CP or for modification of their CP to receive authorization for facilities that match the facilities defined in the new DTV Table Appendix B, as adopted. 70. It is possible that a station with the same pre- and post-transition channel does not want to complete construction of its full, authorized facilities as described in the new DTV Table Appendix B. These stations must apply to modify their existing CP or license to reflect the facility they intend to construct or have constructed. 71. For stations whose post-transition channel is the same as their pre-transition DTV channel, we propose that the deadline to complete construction of their final, DTV facility is the deadline established for them in the *Construction Deadline Extension Order* or *Use or Lose Order* ( *i.e.* , six months from the release date of those orders). For these stations, we believe it is appropriate to require that they complete construction of their final DTV facility by this deadline because they have already had a significant period of time in which to build their post-transition facilities and, indeed, should already have these facilities constructed. Unlike stations that will be moving to a different DTV channel for post-transition use, these stations have generally had the advantage of being able to plan for and commence construction of their post-transition facilities for more than 10 years. In contrast, stations moving to a different channel for post-transition operations have only recently been assigned their new channel and thus are only now able to apply for a construction permit for this channel and commence construction of their post-transition facilities. 72. We invite comment on this approach. In particular, we invite comment on whether there are stations in this group that must apply for a new or modified CP because their current CP does not match the facilities specified in the proposed new DTV Table Appendix B. Are the changes in the CP such that little, if any, of the equipment necessary for the facility for which they currently have a CP could be used in the facility specified in the new DTV Table Appendix B, as adopted? If we were to give these stations more time to construct, should we do so only where the difference between the facilities specified on the current CP and those defined in the proposed new DTV Table Appendix B is significant? If so, how should we define a “significant” difference in this context? 3. Other Situations 73. In this section, we separately discuss the proposed treatment of stations with side-mounted digital antennas or facing other circumstances whereby the operation of the station's analog service prevents the completion of the station's full, authorized post-transition facility as defined in the proposed new DTV Table Appendix B. We also discuss the treatment of stations granted a waiver of the August 4, 2005 “checklist” deadline and stations denied an extension of time to construct a pre-transition DTV facility or a “use or lose” waiver request. 74. *Stations Facing Unique Technical Challenges.* In the *Construction Deadline Extension Order,* the Commission granted the extension applications of four stations because these stations faced unique technical challenges ( *e.g.* , side-mounted antenna-related issues) preventing them from completing construction of their DTV facilities. Most of these stations proposed to install their DTV antenna on the top of the tower where their existing analog antenna currently is housed. In order to top-mount the DTV antenna, these stations would have to relocate the analog antenna to another position on the existing tower or to another location altogether. These stations were granted an extension until February 17, 2009 to complete construction of their DTV facilities. Similarly, in the *Use or Lose Order,* the Commission identified 45 stations that have come close to meeting the applicable replication or maximization requirements but cannot fully satisfy those requirements because of unique technical challenges associated with operation of their analog, as well as construction of their digital, facilities. Some of the stations in this latter group are stations with top-mounted antenna issues; others include stations whose local power company cannot provide sufficient electrical capacity to the tower site to power both analog and full power digital operations, and stations that do not have space at their antenna site for both analog and digital equipment. These stations were granted a similar waiver of the “use or lose” deadline. 75. For the 49 stations referenced above that were granted an extension request or “use-or-lose” waiver because they faced unique technical challenges, we propose that the deadline for these stations to complete construction of their final, DTV facility is the deadline established for them in the *Construction Deadline Extension Order or Use or Lose Order* ( *i.e.* , February 17, 2009). In general, we established pre-transition DTV construction deadlines, and have proposed post-transition construction deadlines herein, based on whether a particular station was going to use its pre-transition DTV channel for post- transition operations. However, in the *Construction Deadline Extension Order or Use or Lose Order,* we did not rely on this distinction because stations with a top-mounted antenna issue face a unique and insurmountable impediment to construction ( *i.e.* , they cannot put both an analog and a DTV antenna on top of the same tower). Accordingly, we propose to give all such stations until February 17, 2009 to complete their final, post-transition facilities. We also anticipate that these stations will take advantage of approaches proposed herein in the section concerning reduction in analog service prior to the end of the transition to facilitate construction of final, DTV facilities. We seek comment on this approach. 76. *Stations Granted Waivers of the “Checklist” Deadline.* In the *Use or Lose Order* , the Commission granted 10 requests for waiver of the August 4, 2005 deadline established for all television stations to construct and operate a “checklist” DTV facility. For four of these stations whose pre-transition DTV channel is the same as their post-transition channel, the Commission granted these stations a “checklist” waiver and gave them an additional six months from the release date of the *Use or Lose Order* in which to complete construction and begin operation of their “checklist” facilities. For six of these stations whose pre-transition DTV channel is different from their post-transition channel, the Commission granted these stations a “checklist” waiver and gave them until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction and begin operation of their “checklist” facilities. 77. We propose for these stations an approach dependent upon whether their pre-transition DTV channel is the same as, or different than, their post-transition channel. For the six stations granted “checklist” waivers whose pre-transition DTV channel is different than their post-transition channel, we propose to apply the procedures outlined at section V.C.1., *supra* , for stations that are moving to a different channel post-transition. Thus, for these stations we propose not to require further construction of their pre-transition DTV facility and propose to establish February 17, 2009 as the deadline by which these stations must complete their final, post-transition facilities. (In the *Use or Lose Order* , these stations were granted a waiver of the “checklist” deadline until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding.) These stations may cease further construction of their pre-transition facility. They may decide to operate the facilities they have constructed on their pre-transition channel for the remainder of the transition and, if so, they should apply to license those facilities and, if they do so, they would not be required to request further extensions of time to construct in order to retain full interference protection to their post-transition DTV channel. Alternatively, these stations could elect to pursue the options outlined in section V.A., *supra* , concerning reduction in analog service prior to the end of the transition. For the four stations granted “checklist” waivers whose pre-transition DTV channel is the same as their post-transition channel, we propose to apply the procedures outlined above at section V.C.2., *supra* , for stations with the same pre- and post-transition channels. Thus, these stations must complete their full, final post-transition facility by the deadline established in the *Use or Lose Order* ( *i.e.* , six months from the release date of the *Use or Lose Order* ). Any request for extension of time to construct beyond that date will be considered under the stricter extension criteria proposed herein. We invite comment on these proposals. 78. *Stations Denied An Extension of Time to Construct.* In the *Construction Deadline Extension Order* , the Commission denied the extension applications of five stations, admonishing three of these stations for their continuing failure to timely construct and affording these stations additional time to comply with the DTV construction rule. The one admonished station whose pre-transition DTV channel is the same as its post-transition channel was afforded six months from the release date of the Order to comply with the DTV construction rule, while the two admonished stations whose pre-transition DTV channel is different from their post-transition channel were afforded until 30 days after the effective date of the amendments to Section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding. All three admonished stations were also made subject to the remedial measures for DTV construction adopted by the Commission. For these admonished stations, we propose that we will not consider any future requests for extension of time to construct pre-transition facilities. We note that the *Construction Deadline Extension Order* admonished these stations and subjected them to remedial measures and noted that the stations could be subject to additional sanctions if they do not comply with the measures and requirements set forth in that Order. In that regard, we propose that for the station who was admonished and whose pre-transition DTV channel is the same as its final, post-transition channel, if such station does not complete construction of its DTV facility by the deadline established in the *Construction Deadline Extension Order* , the station would be subject to additional remedial measures, such as but not limited to the loss of its pre-transition channel, the loss of its ability to carry over to its post-transition channel interference protection for the area unserved by its pre-transition facility, and the issuance of forfeitures. For the other two admonished stations, whose pre-transition DTV channel is not the same as their post-transition channel, because these stations have been denied an extension of their construction deadline and have been required to follow remedial procedures, we believe it is appropriate to treat these stations more strictly than stations that have met the current standard and been granted an extension of the construction deadline. However, we believe requiring these two stations to build their pre-transition channel would be inconsistent with the policy advanced throughout this document to shift our focus to construction of post-transition facilities. Therefore, we propose that these stations will not be required to construct their pre-transition facilities but will remain admonished and on a remedial program with respect to construction of their post-transition facilities. If these stations fail to meet the construction deadline established for their post-transition facilities, we propose that these previously admonished stations would also be subject to additional remedial measures similar to those applicable to stations whose pre-transition channel is the same as their post-transition channel ( *e.g.* , the issuance of forfeitures). We request comment on these proposals. Our proposals here are not intended to conflict with the *Construction Deadline Extension Order* or the remedial measures or possible sanctions mentioned therein, but instead propose additional or alternative consequences for failure to construct by the applicable deadline. 79. *Stations Denied a Waiver of the Use or Lose Deadline.* In the *Use or Lose Order* , the Commission determined that seven stations were unable to show that good cause existed to allow them additional time to meet their applicable “use or lose” deadline and, thus, were denied their “use or lose” waiver requests. Because these stations failed to meet the applicable replication/maximization requirements, they lost interference protection to the unused portion of the associated coverage area. In addition, these stations lost the ability to “carry over” their interference protection to their unserved DTV service area on their post-transition channel. We remind these stations that, with respect to their pre-transition channel, they must submit an application to modify their DTV construction permit to specify their reduced facilities, as directed in the *Use or Lose Waiver Order* . Nevertheless, we recognize that the proposals in this NPRM deemphasize the requirement that stations construct DTV facilities that will not be used for post-transition operations. Therefore, we seek comment on whether we should reevaluate the loss of interference protection for these stations with respect to their post transition channel. 4. Extension/Waiver of DTV Construction Deadlines 80. In light of the deadline for completion of the digital transition and in view of the changes proposed above to our construction deadline and use or lose policies, we believe it is appropriate at this time to consider the standard that should apply generally for grant of an extension of time to construct DTV facilities pre-transition. (This new standard will not apply to digital LPTV facilities.) 81. Under the current rules, the Media Bureau may grant a six-month extension of time to construct a DTV station if the licensee or permittee can show that the “failure to meet the construction deadline is due to circumstances that are either unforeseeable or beyond the licensee's control where the licensee has taken all reasonable steps to resolve the problem expeditiously.” The rules state: “[s]uch circumstances shall include, but are not limited to

(A)[i]nability to construct and place in operation a facility * * * because of delays in obtaining zoning or FAA approvals, or similar constraints;

(B)the lack of equipment necessary to obtain a digital television signal; or

(C)where the cost of meeting the minimum build-out requirements exceeds the station's financial resources.” (To qualify under the financial resources standard, the applicant must provide

(1)an itemized estimate of the cost of meeting the minimum build-out requirements;

(2)a detailed statement explaining why its financial condition precludes such an expenditure;

(3)a detailed accounting of the applicant's good faith efforts to meet the deadline, including its good faith efforts to obtain the requisite financing and an explanation why those efforts were unsuccessful; and

(4)an indication when the applicant reasonably expects to complete construction.) These rules apply to stations granted a paired license for analog and digital operation during the transition. The Bureau may grant no more than two extension requests upon delegated authority. Subsequent extension requests must be referred to the Commission. 82. We propose to revise and tighten this standard for extension of DTV construction deadlines to ensure that stations complete their DTV facilities and commence operation. The current standard was adopted early in the DTV transition process when stations were first trying to build digital facilities and applies only to stations with a paired license. The standard was revised to include consideration of financial resources at a time when broadcasters were still trying to meet the initial construction deadlines. At this point in time, however, the initial construction deadlines for DTV facilities passed several years ago and the deadline for completion of the transition is less than two years away. We believe that stations at this stage in the transition must finalize their construction plans and implement them. We tentatively conclude that we should revise Section 73.624(d)(3) of the rules, which sets forth the standard for extension of DTV construction deadlines, to make that provision substantially stricter. Specifically, we propose to eliminate Section 73.624(d)(3)(ii)(B), which permits consideration of circumstances related to the lack of equipment necessary to obtain a digital television signal in the evaluation of whether to grant a request for extension of time to construct. At this point in the transition, we believe stations have had ample time to order the equipment required to provide digital service and do not believe it is necessary or appropriate to grant stations additional time to construct because of equipment delays, absent extraordinary circumstances. We also propose to revise Section 73.624(d)(3)(ii)(C), which permits consideration of circumstances where the cost of meeting build-out requirements exceeds the station's financial resources. Specifically, in seeking a DTV extension, we propose that the licensee/permittee of a station may show that it is

(1)the subject of a bankruptcy or receivership proceeding, or

(2)experiencing severe financial hardship, as defined by negative cash flow for the past three years. (Our proposed showing of three years of negative cash flow is similar to the showing considered in determining whether a station is a “failed station” for purposes of a waiver of our local TV ownership rules. However, we do not intend to use the failed station standard in its entirety as applied in the context of local TV ownership in determining whether a station should be granted an extension of time to construct under our revised extension standard.) Thus, we propose to eliminate the existing four-part test for financial hardship and replace it with a new test. Stations seeking an extension based upon financial considerations would either

(1)submit proof that they have filed for bankruptcy or that a receiver has been appointed, or

(2)submit an audited financial statement for the previous three years. All such stations also would be required to submit a schedule of when they expect to complete construction. We seek comment on this proposal. In particular, we seek comment on how this proposal should be applied to noncommercial educational stations, whose financial circumstances often differ from those of commercial stations. 83. Again, at this stage in the transition we believe all stations have had considerable time to address financial issues related to completion of their digital facilities and further consideration of such issues in connection with a request for additional time to construct should be limited to a situations like bankruptcy or receivership where a court generally controls the station's finances, or where the station can demonstrate severe financial hardship as discussed above. Thus, going forward, requests for extension of time to construct related to lack of equipment or the cost of meeting the build-out requirements other than where the station is in bankruptcy or receivership or is facing severe financial hardship as discussed above will not generally be granted. 84. However, we will continue to consider going forward requests for extension of time where the station is awaiting action by the Commission or a court on a pending application or appeal or where action on an application is being delayed for other reasons beyond the station's control, such as reasons related to international coordination. We will consider delays due to international coordination where resolution of the international coordination issue is truly beyond the control of the station, such as where the failure to obtain coordination will not permit the station to construct facilities sufficient to replicate its analog coverage area. A station seeking to maximize that cannot obtain international coordination for such facilities may be required to construct facilities with a smaller coverage area. In addition, we will continue to consider circumstances related to an act of God or terrorism. We will revise 47 CFR 73.624(d) and FCC Form 337, accordingly, and will continue to require that any request for extension of time be filed electronically using the revised form. We propose to apply the revised rule concerning requests for extension of time to build DTV facilities to all requests for extension of construction deadlines occurring prior to February 17, 2009. This revised rule would apply, inter alia, to those stations whose pre-transition DTV channel is the same as their post-transition channel and that were granted extensions or waivers in the *Construction Deadline Extension Order* or the *Use or Lose Order* . We recognize that some stations may request further extensions of time to build and that other stations, whose deadlines have not yet expired, may request extensions of deadlines once their deadlines expire. We tentatively conclude that we will apply the revised rule to any requests that are pending at the time the revised rule becomes effective. We seek comment on these proposals and on this tentative conclusion. (We note that DTV singleton stations that were not eligible for a paired license for analog TV and DTV operation during the transition are not currently governed by 47 CFR 73.624(d)(3). These DTV singleton stations are currently subject to the tolling provisions of 47 CFR 73.3598(b) and we propose that these stations continue to be subject to the provisions of that section.) 85. We note that while we propose to establish a stricter standard for requests for extension of time to construct DTV facilities, we are also proposing, as discussed above, to eliminate the requirement for some stations that they build pre-transition DTV facilities on channels that are not their post-transition channel. Taken as a whole, we believe these proposed changes will help many stations facing financial challenges to complete construction of DTV facilities while also ensuring that broadcasters continue to focus on the timely construction of the facilities necessary to end analog transmission by February 17, 2009. 86. Post-transition we intend to take a different approach with respect to requests for additional time to construct DTV facilities. While the transition to digital broadcasting was underway, analog broadcasting remained the primary method by which the vast majority of American consumers received over-the-air television. As a result, while it was important to the transition that stations begin transmitting a digital signal, it was not critical to the ability of over-the-air viewers to view broadcast television that they do so. Accordingly, our extension criteria permitted grant of extensions of time to construct DTV facilities based on a number of different criteria. Once the nation moves to an all-digital broadcast service, however, we believe that application of a stricter “tolling” standard for additional time to construct is appropriate. Once DTV is the sole broadcast service, we believe requests for additional time to construct should be treated as we now treat such requests for all analog stations and DTV singletons. 87. Specifically, for all requests for additional time to construct DTV facilities for construction deadlines occurring February 17, 2009 or later, we tentatively conclude that we will consider such requests under the tolling standard set forth in Section 73.3598(b) of our rules, which currently applies to DTV singletons and analog TV stations, as well as AM, FM, International Broadcast, low power TV, TV translator, TV booster, FM translator, FM booster, and LPFM stations. Section 73.3598 provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God ( *e.g.* , floods, tornados, hurricanes, or earthquakes), the grant of the permit is the subject of administrative or judicial review ( *i.e.* , petitions for reconsideration and applications for review of the grant of a construction permit pending before the Commission and any judicial appeal), or construction is delayed by a cause of action pending in court related to requirements for construction or operation of the station ( *i.e.* , zoning or environmental requirements). The rule further provides that a permittee must notify the Commission of any event covered under the provision and provide supporting documentation in order to toll the construction deadline. Permittees are also required to notify the Commission when a relevant administrative or judicial review is resolved. Tolling resulting from an act of God automatically ceases six months from the date of the notification to the Commission unless the permittee submits additional notifications at six-month intervals detailing how the act of God continues to cause delays in construction and describing any construction progress and the steps the permittee has taken and proposes to take to resolve any remaining impediments. Section 73.3598 further provides that any construction permit for which construction has not been completed and for which an application for license has not been filed shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission. (The Commission has noted that there may be rare and exceptional circumstances, other than those delineated in its rules or decisions adopting the rules, that would warrant the tolling of construction time, *i.e.* , other circumstances in which a permittee is prevented from completing construction within the time specified on its original construction permit for reasons beyond its control such that the permittee would be entitled to tolling of the construction time under 47 U.S.C. 319(b). In these very limited circumstances, the Commission noted that it would entertain requests for waiver of its strict tolling provisions.) We seek comment on this approach. (We will consider further amendments after the transition is completed to eliminate rules that were adopted only for the construction of DTV stations during the transition. As part of that effort, we may eliminate 47 CFR 73.634(d)(3) and instead rely, as proposed herein, on 47 CFR 73.3598(b) for all construction, as we do today for the broadcast services. We also note that these proposals are for the full-power stations subject to the February 17, 2009 deadline. The rules pertaining to low power, translator and Class A stations will be the subject of another proceeding.) We also invite comment on whether it is necessary to amend Section 73.3598(a) to specify “DTV” or if the existing reference to “new TV” in this section will be adequate in conjunction with the clarification provided by the Order to be adopted in this proceeding. We also seek comment on whether we should afford small television broadcasters additional time to construct DTV facilities. (The Small Business Administration defines a television broadcast station as a small business if such station has no more than $13.5 million in annual receipts; 13 CFR 121.201, NAICS Code 515120. We note that small TV stations, as well as larger stations, must terminate analog broadcasting by February 17, 2009, and, therefore, should have their digital facility completed by that date.) 88. We note that, under the current rules applicable to DTV stations, the Commission has permitted a station to justify an extension request if the Commission has not acted on the station's modification application. Under the tolling standard we propose to apply to all construction deadlines February 17, 2009 and later, the filing of an application for modification of a construction permit would not be grounds for tolling of the construction deadline. We believe that transitioning DTV stations to the rule applicable to construction of analog TV and all other broadcast stations in this regard is appropriate post-transition. However, we propose that delays due to international coordination would not generally be grounds for tolling of a DTV construction permit with two exceptions. First, the Commission would toll a construction permit for a DTV station where the station could demonstrate that a request for international coordination had been sent to Canada or Mexico on behalf of the station and no response from the country affected had been received. Second, the Commission would toll a DTV construction permit where the station could demonstrate that the DTV facility approved by Canada or Mexico would not permit the station to serve the viewers currently served by the station's analog facility that would also be served by the station's digital facility approved by the Commission. We seek comment on these proposals and other changes to Section 73.3598. 5. Early Transition 89. Some stations that are moving to new post-transition channels ( *i.e.* , not operating on either of their pre-transition channels) may want to begin operating on those new channels before the transition date. We seek comment from stations in this category on whether they believe they permissibly could operate on their post-transition channel before the February 17, 2009 deadline for terminating analog transmissions. We also invite comment on the potential benefits of early transition and the impediments that may exist. We believe that early transition could advance the transition if it provided improved DTV service and freed transition resources for those stations building later. Under what circumstances will stations be able to transition early without causing impermissible interference to another station (analog or digital)? We seek comment on whether there are any incentives we can or should provide to stations to operate on their post-transition channel early. We propose to allow early transition, provided such operations would not cause impermissible interference to another station. Consistent with our transitional interference protection policies, we propose that early transitioning stations must not cause more than 2.0 percent interference to any authorized analog-only TV station. Stations interested in transitioning early should indicate their intent to do so in their CP or modification applications for post-transition facilities. (We are proposing to revise FCC Forms 301 and 340 to allow stations to simultaneously apply for both pre- and post-transition facilities.) Because we tentatively conclude that stations cannot expand beyond their facilities defined in the new DTV Table Appendix B, as adopted, we believe early transitioning stations cannot cause additional interference to post-transition operations. We also propose to permit such stations to commence early post-transition operations that may be less than their full, authorized facilities, provided impermissible interference is not caused to another station (analog or digital). Broadcasters seeking to commence early post-transition operations would need to indicate whether doing so will result in a loss of their own analog or digital service and, if so, how they plan to address that loss in service. As discussed above in the analog service loss context, we seek comment on whether (and if so to what extent) a loss of service should be acceptable if it would help facilitate the transition. We seek comment on these proposals. 6. Additional Proposals to Provide Regulatory Relief 90. *Alternative Buildout.* We seek comment on whether to permit stations to request an STA to build less than their full, authorized post-transition facilities by the relevant construction deadline, provided these stations at least serve the same area and population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. Could such a proposal facilitate the transition without undermining viewers' over-the-air reception expectations after the transition date? We would apply the new construction deadlines and standard adopted in this proceeding for additional time to construct to the construction of such intermediate facilities that would meet the service requirement. If we adopt such a proposal, when must these stations construct their full, authorized post-transition facilities? If we do not afford such relief generally, should we afford such relief to small television broadcasters because of unique challenges they may face in completing their transition? 91. *Temporary Use of In-core Pre-Transition DTV Channels.* We believe that some stations that are returning to their analog channel or moving to a new channel for post-transition operations may be able to temporarily remain on their in-core pre-transition DTV channel and provide adequate service after the transition date without causing impermissible interference to other stations or preventing other stations from making their transition. We propose to afford these stations with this opportunity if doing so would facilitate their transition. We propose to allow these stations to choose to temporarily remain on their pre-transition DTV channel if:

(1)They serve at least the same area and population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. (Stations must ensure that consumers served pre-transition that obtain a D-to-A converter box through the NTIA program or who otherwise purchase DTV receiver equipment will be capable of receiving off-the-air DTV signals post-transition.); and

(2)They do not cause impermissible interference to other stations or prevent other stations from making their transition. We tentatively conclude that the 0.5 percent interference standard proposed for post-transition operations in section V.F.1., below, would apply because such operations would occur after the transition deadline. We seek comment on this proposal. We propose for stations to make such requests in accordance with the rules for STA. We believe affording such regulatory flexibility to these stations will facilitate the transition. We seek comment on this proposal, including its usefulness to stations and on whether it is consistent with the statutory transition deadline. (We note that out-of-core DTV stations are prohibited by statute from remaining on their original allotted DTV channel after the transition deadline. Therefore, this flexibility would not apply to DTV stations operating out-of-core.) Can a station readily determine whether its continued operation after February 17, 2009 on its pre-transition DTV channel would interfere with another station's transition or operation? If we adopt this proposal, how long should we allow stations to remain on their in-core pre-transition channel and when must these stations construct their full, authorized post-transition facilities? (Whatever post-transition construction deadline is established for these stations, we propose to apply the new tolling standard adopted in this proceeding.) What effect would this proposal have on the operation of DTV receiver equipment, including D-to-A converter boxes? (It is our understanding that whenever a station changes channels, an over-the-air viewer using a D-to-A converter box (or DTV tuner-equipped set) will have to manually rescan for available channels in order to receive that channel.) Finally, we seek comment on the implications of our proposal with respect to the adoption of the new DTV Table. 92. *Channel Priority.* We recognize that there may be some situations where a station's ability to commence its post-transition operations will be dependent on another station's construction and operating plans. For example, station A may need to begin testing its digital facility on its post-transition channel 11 in order to be ready to operate after the transition date, but station B is currently using the channel for pre-transition (analog or digital) service. In such situations, close cooperation will be needed between these stations. We expect that broadcasters will make all possible accommodations to ensure that all stations will be able to provide digital service on their post-transition channels at the transition date. Stations are reminded that their authority to operate on a pre-transition channel, whether analog or digital, ends on February 17, 2009, unless they have applied for and been granted authority to remain on a pre-transition channel. We seek comment on whether and, if so, what steps the Commission should take to ensure a smooth transition in these circumstances. D. Applications to Construct or Modify DTV Facilities 93. Stations that need to request authority to construct or modify their post-transition facilities must file CP or modification applications ( *i.e.* , FCC Form 301 or 340). (The 634 stations that need to construct their post-transition facilities because they will not be using their currently authorized DTV channel for post-transition operations are expected to file after the DTV Table is adopted. Any of the 1,178 stations that will use their currently authorized DTV channel for post-transition operations but need to change their facilities because they do not have an authorization for their intended operations should also file an application. For example, a station that intends to operate its post-transition facility pursuant an existing STA operation must file an application to modify its CP. Also, some of these stations may need to apply to increase power or otherwise adjust their facilities because they are now operating under STA at reduced power and they are unable to construct their authorized CP facilities, but intend to operate with more than their current STA facilities (for example, they intend to raise their transmitting antenna to a higher height on their tower, but are unable to mount it at the authorized height). Other stations may need to apply to modify their licensed or CP facilities in order to better reach their new DTV Table coverage if such was based on a certification that differs from their current license or CP (for example, more than 200 stations staying on their pre-transition DTV channel certified to replication facilities and their currently authorized licenses or CPs are unlikely to exactly match the new DTV Table facilities that are derived from the replication coverage). Stations that already have a license to operate or a CP to construct their post-transition channel that matches their new DTV Table facilities do not need to file any additional CP applications. This group includes those stations discussed in paragraph 17 that will use their currently authorized DTV channel for post-transition operations and that will use facilities that exactly match those defined in the new DTV Table. These stations are building their post-transition facilities on the CPs granted for pre-transition operation. Once they have completed construction, they should file for a license to cover (FCC Form 302) as required by 47 CFR 73.3536. Stations may file an application to modify their authority on their current DTV channel at any time, provided they do not violate the terms of the Commission's filing freeze. (On August 3, 2004, the Media Bureau imposed a freeze on requests for changing DTV channels within the DTV Table and on new DTV channels, as well as on the filing of modification applications by television and Class A television stations, in order to provide a stable database for conducting the channel election process and developing a new DTV Table. The freeze does not prevent the processing of pending applications.) Stations that have a license to operate or a CP to construct the facilities they want to retain for post-transition use should file applications if their licensed facilities or CP do not match the proposed new DTV Table Appendix B unless they have previously filed comments to amend the Table or Appendix B in the *Seventh FNPRM* , MB Docket No. 87-268. (The facilities defined in the proposed new DTV Table were intended to allow stations to serve geographic areas based on licensees' certification forms (FCC Form 381) and, in some cases, on conflict resolution forms (FCC Form 383 and 385). If the DTV facility that a station intends to license for post-transition operation did not match the facilities described in the proposed new DTV Table, but does match the facility in the revised new DTV Table when adopted, the station need not file an application.) Appendix D to the NPRM lists the stations that are ready for post-transition operations and do not need to apply for a CP or modification based on current records. We invite comment on this list and whether there are stations that should be added or deleted. 94. *Filing Requirements.* Commercial stations that need to construct or modify their post-transition facilities must file FCC Form 301 for a minor modification and submit the appropriate fee. (Applications to construct or modify post-transition facilities specified in the new DTV Table involve a minor change in facilities and we will process them accordingly. 47 CFR 73.3572(a)(1) defines a major change in a television station's facilities as any change in frequency or community of license. Several stations may be changing channels as a result of the channel election process; however, these stations will be applying for the frequency and community of license assigned to them in the new DTV Table that will be established in the Report and Order in MB Docket No. 87-268, so we will treat their applications as not involving a change in frequency. We believe this treatment will speed processing. We also note that this is consistent with our implementation of the initial DTV Table in 1998. NCE stations must file FCC Form 340. We propose that stations must limit their applications to those facilities specified in the new DTV Table Appendix B, as adopted. Pursuant to this proposal, applications requesting facilities that would serve a larger area than stations' new DTV Table Appendix B facilities would not be accepted at this time. Because the new DTV Table will have resolved the interference conflicts raised during the channel election process, we believe we would be able to process these applications without having to conduct interference analyses and without having to consider whether any applications are mutually exclusive. We seek comment on this proposal. Specifically, we seek input from any stations that may be unable to build precisely the facilities specified in the new DTV Table Appendix B (for example, if an antenna producing the exact antenna pattern is not available). If such stations are prohibited from expanding beyond their DTV Table Appendix B facilities (as proposed *infra* in section V.E.), will they instead be required to reduce their facilities so significantly that they will be unable to provide adequate service? If so, should we allow stations that fall into this situation to expand beyond their DTV Table Appendix B facilities to the extent necessary to address the difference between the theoretical facilities specified in the new DTV Table Appendix B and the actual facilities which they are able to build? 95. *Expedited processing.* It is each station's responsibility to ensure that it can begin operations on its post-transition channel upon expiration of the deadline for the transition on February 17, 2009. (We note that some stations may need to complete their facilities significantly before February 17, 2009, because, for example, they will not be able to build during the winter months.) Thus, stations have a great incentive to promptly file their applications as soon as possible in order to have the maximum time to order equipment and build their facilities. Stations also have the responsibility to file their applications in sufficient time before the deadline so that they may be granted by the Commission. In order to provide further incentive for stations to timely file applications for their post-transition facilities, we propose to process expeditiously certain applications, provided they are filed no later than 45 days after the effective date of Section 73.616 of the rules adopted in the Report and Order in this proceeding. Stations whose channel assignments or facilities are not finalized at that time will receive expedited processing if they file their applications no later than the deadline specified in their individual channel resolutions. We believe this application filing deadline of 45 days after the effective date of Section 73.616 of the rules adopted in the Report and Order in this proceeding will give stations ample time to prepare for these filings and to complete construction prior to the deadline. (The 45-day application deadline will not become effective until OMB approval is obtained for the filing of these applications.) Specifically, we propose to offer expedited processing to stations that timely apply for a CP to build their post-transition channel, provided that their application

(i)does not seek to expand the station's facilities beyond its new DTV Table Appendix B facilities; and

(ii)specifies facilities that match or closely approximate those new DTV Table Appendix B facilities ( *i.e.* , if the station is unable to build precisely the facilities specified in the new DTV Table Appendix B, then it must apply for facilities that deviate no more than five percent from those Appendix B facilities with respect to predicted population). We believe we can quickly determine which stations are applying for facilities that do not extend in any direction beyond their DTV Table Appendix B facilities and then expeditiously review those stations' applications without conducting a significant interference analysis because those applications will either match or closely approximate their DTV Table Appendix B facilities. Further, we believe the creation of this process will allow us to grant qualified applications expeditiously, generally within 10 days of filing. We remind stations that expedited processing does not mean they will receive an expeditious grant. (Stations that receive expedited processing are not guaranteed that their application will be granted; the application still must satisfy the criteria on Form 301 (or 340 for NCEs), as revised in this proceeding. Similarly, stations that do not qualify for expedited processing will not necessarily have their applications denied; rather, their applications simply will not be processed on an expedited basis.) Applications that receive expedited review but that are not readily grantable by the Commission will require further action by the station. (In addition to the proposed requirements discussed, an application cannot be granted unless certain other criteria are met. These include certifying that the proposed facility:

(1)Will not have a significant environmental impact;

(2)will serve the principal community of license;

(3)will provide necessary protection to radio astronomy installations and FCC monitoring stations; and

(4)has had its tower approved by FAA, if necessary.) We seek comment on this proposal. We also seek comment on alternative methods to streamline the application process. 96. *Revisions to FCC Form 301 and 340.* To accommodate filings related to stations' post-transition facilities, we propose to modify the FCC Forms 301 and 340, as attached. The form changes will allow stations to indicate that they are applying for post-transition facilities. They also will facilitate the expedited processing discussed above. We seek comment on our proposed forms and if additional changes to the forms are needed. 97. *Program tests/License to Cover CP.* Stations must not commence program tests on their post-transition channels until they are ready to begin post-transition operations under program test authority. Stations that want to conduct program tests on their post-transition facilities must comply with the Commission's rules and coordinate with any affected stations when they do the testing. Each station is responsible for determining which other stations may be affected and coordinating accordingly. We expect that stations will work together cooperatively to facilitate testing. Upon completion of the construction of a television facility as authorized by a CP, a station may commence program tests upon notification to the Commission, provided that an application for a license to cover the CP for the post-transition facility, on FCC Form 302, is filed within 10 days, along with the appropriate fee. (Stations must comply with the terms of their CP as well as the technical provisions of the application, or rules and regulations, and the applicable engineering standards. We remind stations that will be using Channel 14 for post-transition operations that they must take special precautions to avoid interference to adjacent spectrum land mobile radio service facilities before commencing program testing. Where a TV station is authorized and operating prior to the authorization and operation of the land mobile facility, a Channel 14 station must attenuate its emissions within the frequency range 467 to 470 MHz if necessary to permit reasonable use of the adjacent frequencies by land mobile licensees.) We do not believe any rule changes are necessary here. E. Expanding Facilities 98. During the channel election process, stations defined their post-transition facilities, deciding whether they would

(1)replicate their allotted facilities,

(2)maximize to their currently authorized facilities, or

(3)reduce to a currently authorized smaller facility. Stations, however, were not allowed to seek facilities that would expand their coverage areas beyond that authorized by a license, CP or STA. This was precluded by the Commission's freeze on the filing of maximization applications in order to provide a stable database for developing the new DTV Table. 99. We recognize that stations may want to apply to expand their facilities to serve a larger area than defined in the new DTV Table Appendix B, as adopted. Stations' new channel assignments may present them with new opportunities to offer expanded DTV coverage, either because the stations may be moving to a new channel that does not have the same interference restrictions or because other stations on adjacent channels may be moving away, thus eliminating prior interference conflicts. It may save some stations time and money if they are able to file only one application for expanded facilities. 100. We believe, however, that we must first ensure that all stations can at least provide digital service to their analog viewers by the transition date before considering new maximization applications. We thus tentatively decide not to allow stations to apply for expanded facilities at this time. We propose to consider the issue of expanded facilities after all stations have had an opportunity to apply for their facilities as specified in the new DTV Table Appendix B. We seek comment on this approach and on our tentative conclusions. We also invite comment on ways in which stations could seek expanded facilities at this time without delaying the transition or overburdening the scarce resources needed by other stations to transition. F. Interference Standards 101. Although we have proposed, above, not to allow stations to apply to maximize their facilities at the same time that we will be accepting applications for construction permits for the new DTV Table Appendix B facilities, we do intend to allow stations to apply for maximization once it is appropriate to do so. At that point, we will need to have our post-transition interference standards in place. In addition, it is our understanding that knowing what those post-transition interference standards will be in advance may enable stations to anticipate future equipment needs and allow them to minimize their capital expenditures by buying equipment that can be used both now and in the future. (We cannot provide any guarantees regarding whether and/or to what extent any particular broadcaster may be able to expand their facilities in the future.) Accordingly, we believe it is appropriate at this time to propose what those post-transition interference standards will be. In this section, we consider interference protection methodologies and requirements for application processing, as well as for rulemaking petitions to add a new DTV allotment or change the channel of an existing allotment. 102. In adopting the initial DTV Table in the *1997 Sixth Report and Order,* the Commission concluded that it would apply geographic spacing standards in determining whether to permit the addition of DTV allotments in the Table. (47 CFR 73.623(d) specifies the minimum geographic spacing requirements for DTV allotments not included in the initial DTV Table. 47 CFR 73.623(c) sets forth the criteria for applications to modify assignments in the initial DTV Table, including the thresholds of desired-to-undesired (D/U) ratios at which interference is considered to occur. 47 CFR 73.622(e) defines a DTV station's service area as the geographic area within the stations' noise-limited F(50,90) contour where its signal is predicted to exceed the noise-limited service level. The F(50,90) designator indicates that a specified field strength necessary for the provision of DTV service is expected to be available at 50 percent of the locations 90 percent of the time. A station's noise-limited contour is computed using its actual transmitter location, ERP, antenna HAAT, and antenna radiation pattern.) The Commission noted that geographic spacing provides a clear and simple measure of acceptability of an allotment proposal without the need to engage in extensive analysis of interference and has been used successfully in the television service for many years. (The Commission considered but ultimately rejected an alternative approach whereby a party requesting an addition to, or modification of, the DTV Table would be required to show that a station operating at the maximum permissible ERP and antenna height on the proposed allotment would not exceed the engineering interference criteria with regard to any other existing allotment.) The Commission recognized, however, that engineering criteria may allow more efficient use of the spectrum and stated it would revisit the allotment criteria at an appropriate point later in the DTV transition process. The Commission also determined in the *Sixth Report and Order* that a party applying for a modification of the DTV Table would need to show that its proposed modification would not result in any new predicted interference to other DTV allotments or existing NTSC stations, based on the engineering technical criteria used to develop the initial DTV Table. On reconsideration, the Commission replaced this no new interference standard with a *de minimis* standard pursuant to which stations may make changes in their operation where the requested change would not result in more than a 2.0 percent increase in interference to the population served by another TV or DTV broadcast station, and provided that the protected station is not, or will not be, receiving interference in excess of 10 percent of its population from all combined interfering stations. This *de minimis* standard for permissible new interference was adopted to provide flexibility for broadcasters in the implementation of DTV by allowing additional opportunities for stations to maximize their DTV coverage and/or service by increasing power and/or making other changes in their facilities. 103. The Commission has also relied on other interference standards in the DTV context. For example, applicants seeking facilities modifications of full-service NTSC stations are allowed to cause a 0.5 percent margin above a prediction of no reduction in the population served by a DTV station to account for rounding and calculation tolerances. Applicants for analog TV translator and low power TV (“LPTV”) stations must propose facilities that do not exceed specified threshold D/U ratios at a DTV station's noise-limited contour or at all points within the noise-limited area in the case of adjacent channel stations proposing to locate inside the DTV noise-limited contour. (Similarly, a licensee requesting DTV facilities modifications that would expand its station's service area in any direction must meet D/U protection requirements at the protected contour of Class A TV stations authorized on the same or first adjacent channel. In all cases in which the interference standard is based on signal contour protection, applicants are permitted to base requests to waive the standard on the DTV protection standards and methodology in 47 CFR 73.623(c).) In addition, in the channel election process that led to the proposed new DTV Table for post-transition operation, an interference conflict was determined to exist when it was predicted that more than 0.1 percent new interference would be caused to another station. (New interference was considered to constitute a conflict when the new interference affected more than 0.1 percent of the population predicted to be served by the station in the absence of that new interference. In the *Second DTV Periodic Report and Order,* the Commission permitted the 0.1 percent additional interference limit to be exceeded on a limited basis in order to afford stations with an out-of-core DTV channel to elect to operate its post-transition station on its in-core analog channel.) 1. Proposed Interference Criteria 104. When evaluating applications to construct post-transition facilities, we propose to use an interference protection requirement based on engineering criteria (e.g., permissible interference) rather than a geographic spacing requirement. We believe this will allow for a more flexible design of proposed stations while offering a high level of protection to existing authorized service. By their nature, geographic spacing requirements do not take into account intervening terrain features (or the lack of such features). Stations separated by the same distance may create significant mutual interference in areas of flat terrain while no interference is predicted in circumstances where intervening terrain limits the signals from either or both stations. Where authorized DTV stations wish to change their assigned DTV channel through a rulemaking petition, we also believe applying the proposed engineering criteria is appropriate. On the other hand, we continue to believe that geographic spacing requirements represent a preferred approach for evaluating a petition for rulemaking requesting a new DTV allotment. In such new allotment cases, information about actual transmitter site locations and facilities are generally not available. We propose to apply an engineering criteria approach in all cases involving applications and to use geographic spacing requirements only for rulemaking petitions seeking new DTV channel allotments. We seek comment on these proposals and tentative conclusions, as well as on alternative methods of providing interference protection. 105. Our proposed engineering criteria to evaluate all post-transition applications would limit the predicted interference that a station may cause to 0.5 percent of the protected station's service population. This proposed 0.5 percent interference standard is stricter than the 2 percent/10 percent criteria that has applied since early in the DTV transition. The 2 percent/10 percent rules were established in order to accomplish the difficult task of accommodating every existing TV station with a second channel for DTV operation within the spectrum already allocated for TV broadcasting and heavily used in some areas. As indicated above, the Commission initially adopted a stricter “no interference” standard, but on reconsideration recognized that stations would need flexibility as they attempted to implement their second channels in this congested spectrum environment. The flexibility provided under the 2 percent/10 percent standard allowed many stations to propose increased coverage, helping to provide DTV signals to more viewers early in the transition. 106. In addition, we note that our 0.5 percent proposal is not as strict as the 0.1 percent new interference criterion that was employed for determining interference conflicts in the channel election process. 107. Our proposed requirement that interference from a DTV application for post-transition use not exceed 0.5 percent is the same requirement as we have used during the transition for analog TV stations protecting DTV stations. It can be viewed as a “no new interference” criteria when the amount of predicted interference is rounded to the nearest whole percent ( *i.e.* , any determination of less than 0.5 percent interference would be considered to be 0 percent, while an interference determination greater than 0.5 percent would round up to 1.0 percent.) This level of rounding is more reflective of the accuracy of the interference prediction model than the 0.1 percent criterion. (The 0.5 percent allowable predicted interference level is also used for Class A TV stations protecting DTV stations pursuant to 47 CFR 73.6013 and for determination of LPTV and TV translator protection of full service DTV.) 108. Because our proposed 0.5 percent interference limit is significantly less than the 2 percent limit that we now use, we do not believe it is necessary to continue to impose the 10 percent cap on total interference from all sources. (In the initial DTV Table, the Commission necessarily exceeded the 10 percent limit with respect to a significant number of stations. In contrast to the initial Table, the new Table will not be as congested because stations will be returning one of their paired channels.) The new DTV Table has fewer stations than the initial Table that exceed the 10 percent limit and many of those stations elected their proposed channel knowing that the amount of interference would exceed that amount. In lieu of the 10 percent component of the current standard, we propose to limit the total interference any station would receive from all sources by requiring that stations already predicted to cause more than 0.5 percent interference to another station will not be allowed to increase the interference they are authorized to cause. (For example, an application would not be granted for a station that is authorized to cause 1.8 percent predicted interference if the facilities proposed in the application are predicted to raise the amount of interference caused to 1.9 percent.) 109. We seek comment on our proposals to limit permissible interference to 0.5 percent and to not allow any increase in situations where the amount of interference currently caused exceeds 0.5 percent, as well as on any other methods to limit total interference. Does 0.5 percent reflect the right balance between protecting established DTV service and affording adequate flexibility to stations seeking to establish post-transition operations? Would another amount be more appropriate? 110. We propose to evaluate compliance with the 0.5 percent standard using the Office of Engineering and Technology's OET Bulletin No. 69 (“OET 69”) methodology, but using 2000 census data as was done during the channel election process. (The more up-to-date population data from the year 2000 census was used to provide a more accurate indication of the station service and impacts of interference on that service than the older year 1990 population data used in computing the service data for the initial DTV Table.) We seek comment on whether other changes to the OET 69 methodology are necessary here. For example, the standard OET 69 analysis evaluates “cells” within a station's coverage area which are squares 2 kilometers on a side. We have generally allowed applicants to specify analysis based on cells that are smaller because such analysis is arguably more accurate. As a result, we understand that some applications have been based on evaluating many possible smaller cell sizes until the desired result is obtained. (For example, if an application would fail based on 1.0 km cells but passes based on 1.5 km cells, the applicant would request evaluation based on the 1.5 km cell size.) Such “shopping” for advantageous cell sizes does not improve the accuracy of the evaluation. Should standards for allowable smaller cell sizes be established (for example only allowing 1.0 km or 0.5 km cell sizes to be requested)? 111. We also note that, in other proceedings, we have received comments that it may be useful to adopt variable D/U ratios for adjacent channel interference depending upon the received signal levels predicted for the desired signals because the D/U interference ratios employed for upper and lower first-adjacent channels are based on test results for weak desired signal strengths and may produce inaccurate predictions where the interfering station is located in an area that receives a strong desired signal strength. Thus, we seek comment on whether a change should be adopted to reflect this concern in situations where adjacent-channel transmitters are proposed to be located inside a desired station's noise-limited service contour. (Such situations may become more prevalent if rules are adopted allowing distributed transmission systems (“DTS”).) 112. For new DTV allotments, we propose to continue to use the DTV-to-DTV geographic separation requirements contained in Section 73.623(d) of the rules. We note that these distances were developed to be analogous to the long-standing analog TV geographic spacing rules. We intend that our consideration of petitions for rule making requesting new DTV allotments will be consistent with the process we have used for analog TV allotments in that short-spacing waivers will not be allowed. However, as with analog spacing distances, the DTV spacing distances allow regular occasions of predicted interference to occur. After a new DTV allotment has been approved, we propose to regulate the extent of this interference by requiring applications for these DTV allotments to comply with the same engineering criteria standards we are proposing for all other DTV applications. This method of allowing flexibility for applicants seeking a new DTV allotment while protecting existing DTV stations' service is consistent with our analog TV application practice of considering applications that require a waiver of the geographic spacing requirements. We seek comment on this proposal, as well as on alternative methods for evaluating requests for new DTV allotments. 113. Going forward, we propose to protect each station's new DTV Table Appendix B facilities' coverage only until it has a CP or license for its post-transition operation, at which time we will limit its interference protection to its authorized coverage area. We recognize, however, that we are proposing to require that stations initially apply for facilities that do not expand their certified coverage and some stations would need to specify facilities that create a predicted service contour that is smaller in some directions than their certified coverage contour in order to comply with that proposal. When the filing freeze is lifted, we expect many such stations will file maximization applications. To avoid penalizing stations in such a situation, we propose to temporarily continue to require that other stations' maximization applications protect the new DTV Table Appendix B facilities of stations, even though most stations should have a CP or license at that time. At an appropriate time, the Media Bureau would announce the change to limit the required protection to CPs and licenses for stations that have such authorizations. We seek comment on this proposal. 2. Pre-Transitional Operations 114. We continue to process applications for analog and DTV new stations, and changes to existing or authorized stations that comply with the freeze. With respect to these applications for pre-transition operation, we intend to continue using the current interference protection rules. We seek comment on this conclusion. In particular, the current requirements provide that an application for a new or modified analog TV station must not cause more than 0.5 percent interference to any authorized DTV station or allotment. Such an analog TV application must protect other analog TV stations by meeting the distance spacing requirements. An application for a new or modified DTV station must not cause more than 2.0 percent interference to any authorized analog TV station, DTV station or DTV allotment. Such DTV applications also must not cause the total cumulative interference received by any protected station to exceed 10.0 percent. (DTV applications also must protect Class A TV stations as provided in 47 CFR 73.623(c)(5) and stations in the land mobile radio service pursuant to 47 CFR 73.623(e).) Calculations of predicted interference percentages will continue to be based on the standard OET 69 methodology, including use of 1990 Census data. (Although new population data is available, we believe it is appropriate to continue to use the 1990 census data for the predicting the populations to be served by the remaining analog and new digital television stations to be processed during the transition and the interference those stations would cause to other stations. The predictions of population served and interference received used in developing initial DTV transition assignments in 1998 were based on the 1990 census and that population base has been relied on subsequently in processing of applications for analog and DTV modifications and new stations. Our continued use of the 1990 census data for processing the few remaining transition applications will provide for treatment of these applications on the same basis as other stations during the transition. We also do not believe that the differences in population patterns between the 1990 and 2000 census are of sufficient significance for TV service purposes in the short remaining time of the transition as to warrant recomputation of the service and interference predictions for all analog and DTV stations operating during the transition.) The current database of authorized or applied for stations would also continue to be used. G. Other Issues 1. DTV Transmission Standard (ATSC A/53) 115. In the *Second DTV Periodic Report and Order,* the Commission revised its DTV transmission standard, contained in Section 73.682(d) of the rules, to specify the use of the August 7, 2001 Advanced Television Systems Committee (“ATSC”) DTV transmission standard A/53 Revision B with Amendment 1 and Amendment 2 (“A/53-B”). The Commission also stated that it would continue to encourage further improvements to the DTV standards and conduct additional rulemakings as appropriate to incorporate future updates of the ATSC DTV transmission standard into the Commission's rules. We propose to update Section 73.682(d) to reflect revisions to the ATSC DTV transmission standard A/53-B since the *Second DTV Periodic Report and Order.* We seek comment on this proposal. 116. Since Section 73.682(d) was revised in the *Second DTV Periodic Report and Order,* ATSC has continued to update the ATSC DTV transmission standard; the current version is A/53 Revision E, with Amendments No. 1 and 2 (“A/53-E”). A/53-E differs from A/53-B in several respects. First, A/53-E offers several improvements over A/53-B, including the specifications for Enhanced 8-VSB (“E8-VSB”) for terrestrial broadcast. E8-VSB enables Enhanced Services, which allow broadcasters to allocate the base 19.39 Mbps data rate between Main Service data and Enhanced Services data. Enhanced Services data is designed to have higher immunity to certain channel impairments than Main Service data, but Enhanced Services data is delivered at a reduced information rate selected by the broadcaster from the specified options. A/53-E further describes the coding constraints that apply to the use of the MPEG-2 systems specification in the DTV system, including mandatory main and optional enhanced services. It also improves the Active Format Description (“AFD”) specifications by revising and clarifying the relevant standards. In light of these advantages, we believe that updating the Commission's rules to specify A/53-E will benefit both broadcasters and consumers by allowing broadcasters the flexibility to offer new technological services. We seek comment on this tentative conclusion. 117. In the *Second DTV Periodic Report and Order,* the Commission declined to mandate that broadcasters use the AFD when the active video portion picture does not completely fill the coded picture. The Commission stated that the revisions in the new standard were developed through careful consideration and deliberation within the technical committees of ATSC and thus reflected a consensus agreement based on the input of parties from various segments of the industry. As a result, broadcasters were given the option to use AFD, but if a station included AFD data it had to follow the ATSC standard. The Commission noted, however, that as more consumers acquired widescreen aspect ratio sets, the problem of “postage stamp video” would become more prevalent if not addressed by broadcasters. At the time, the Commission believed that broadcasters would want to make their programming attractive to viewers as they begin to adopt DTV. A coordinated effort on clarifying AFD and bar data standards between ATSC, CEA and the Society of Motion Picture and Television Engineers (“SMPTE”) resulted in a CEA recommended practice (CEA-CEB16) titled “Active Format Description

(AFD)& Bar Data Recommended Practice,” and a proposed SMPTE 2016-1 standard for television—Format for Active Format Description and Bar Data. These efforts were designed to encourage the use of AFD by broadcasters. We thus seek comment on whether these voluntary, industry driven efforts are sufficient, or if, instead, we should require broadcasters to provide AFD and bar data. If we do impose such a requirement, should broadcasters be required to provide AFD data for all programming broadcast, regardless of its source? Should such a requirement extend to live programming ( *e.g.* , sports and other events where a combination of SD and HD equipment may be used)? Assuming that we did require the inclusion of AFD, what effect would the imposition of such a requirement have on small broadcasters? We seek comment on these issues. 2. Program System and Information Protocol (“PSIP”) Standard 118. In the *Second DTV Periodic Report and Order,* the Commission revised Section 73.682(d) to require the use of the ATSC Program System and Information Protocol (“PSIP”) standard A/65-B. PSIP data is transmitted along with a station's DTV signal and provides DTV receivers with information about the station and what is being broadcast. PSIP data provides a method for DTV receivers to identify a DTV station and to determine how a receiver can tune to it. For any given station, the PSIP data transmitted along with the digital signal identifies both its DTV channel number and its analog channel number (referred to as the “major” channel number), thereby making it easy for viewers to tune to the station's DTV channel even if they only know the station's major channel number. In addition, PSIP data tells the receiver whether multiple program streams are being broadcast and, if so, how to find them. It also identifies whether the programs are closed captioned, conveys available V-chip information, and provides program information, among other things. The Commission has recognized the utility that the ATSC PSIP standard offers for both broadcasters and consumers. 119. Since Section 73.682(d) was revised in the *Second DTV Periodic Report and Order,* ATSC has updated the ATSC PSIP standard; the current version is A/65-C. This new revision further enhances the PSIP standard and support for delivery of data. The updated ATSC PSIP standard now requires broadcasters to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available. Currently, under version A/65-B, many broadcasters provide only general information in the EIT tables. For example, a network affiliate may provide “network programming” as the descriptor for the majority of its program offerings. We propose to update Section 73.682(d) to reflect these revisions to the ATSC PSIP standard since the *Second DTV Periodic Report and Order.* We seek comment on this proposal. In particular, we request input regarding the burden that compliance with A/65-C would place on broadcasters—especially small broadcasters. 120. We also seek comment from broadcasters and others as to the need to include more accurate, detailed, and up-to-date information about each event under this new PSIP standard. We also seek comment about whether PSIP information is being passed through to cable and satellite subscribers. If satellite carriers are not passing through PSIP information, is the information otherwise being reflected adequately in the electronic program guide and signal they provide to subscribers? 3. Fees for Ancillary and Supplementary Services 121. In this section, we seek comment on Section 73.624(g) of the Commission's rules, which requires DTV licensees to report whether they have provided ancillary and supplementary services and to pay a fee of five percent of gross revenues derived from certain of those services. As currently written, this rule refers to the payment of such fees by “DTV licensees.” We seek comment on whether the Commission can and should revise its rules to require that all DTV broadcasters, including permittees operating pursuant to an STA or any other FCC instrument authorizing DTV transmissions, that earn revenue from feeable ancillary and supplementary services, are subject to the provisions of Section 73.624(g). 4. Station Identification 122. In 2004, the Commission established rules generally requiring DTV stations to follow the same rules for station identification as analog stations. Specifically, digital stations are required to make station identification announcements, either visually or aurally, at the beginning and end of each time of operation as well as hourly. The identification must consist of the station's call letters followed by the community or communities specified in the station's license as the station's location. Stations may insert between the call letters and the station's community of license the station's frequency, channel number, name of the licensee, and/or the name of the network, at their discretion. 123. A station choosing to include its channel number in its station identification must use the major (analog) channel number. (Thus, a broadcaster who operates an NTSC service on channel “26” and a DTV service on channel “27” would use the major channel “26” in station identification announcements.) The Commission adopted the ATSC A/65B standard and noted that PSIP, which is part of that standard, allows viewers to see a broadcaster's major channel number regardless of the broadcaster's allocated digital broadcast channel. (This allows broadcasters to keep their existing channel number in the digital world, thereby assisting viewers who have come to identify these numbers with particular broadcasters and preserving the investment broadcasters have made in marketing these numbers.) The Commission permitted stations choosing to multicast to include additional information in their station announcements identifying each program stream. (Thus, a station with major channel number 26 might have channel 26.0 (NTSC program stream), channel 26.1 (HDTV), and 26.2 (SDTV). Stations may provide information in the station announcement identifying the network affiliation of the program service (e.g., “WXXX-DT, channel 26.1, YYY (community of license), your CW network channel”). Stations simulcasting their analog programming on their digital channel are permitted to make station identification announcements simultaneously for both stations as long as the identification includes both call signs (e.g., “WXXX-TV and WXXX-DT”) if it is intended to serve as the identification for both program streams. Stations simulcasting the analog stream on the digital channel may also do a shortened identification for both streams (e.g., “WXXX-TV/DT”). The Commission's rules require that the station that is transmitting the multicast stream is the station whose identification must appear on the program stream. (Thus, if station WXXX-DT is transmitting programming provided by WYYY-TV or WYYY-LP on one of WXXX-DT's multicast streams, the identification on that stream must be the frequency and location of WXXX-DT.) 124. Now that stations have some experience in applying these station identification rules to digital stations, we invite comment on whether these rules provide sufficient clarity to broadcasters and viewers. We specifically invite comment on whether the current rules provide for appropriate identification of multicast channels, particularly in circumstances in which one of a station's multicast streams is being used to air programming provided by another broadcast station, such as a low power station. As the Commission has previously noted, as stations transition to digital format and provide multicast programming, thereby increasing the number of program streams potentially available to the public, clear identification of the station providing the programming viewers are watching becomes increasingly important, both for the viewers and for stations themselves. We invite comment on any and all aspects of the Commission's station identification rules, whether any changes to or clarifications of the rules are appropriate, and, if particular problems implementing the rules have arisen, specific proposals for how the rules should be changed. 5. Coordination With Cable Operators, Satellite Systems and Other MVPD Providers 125. We recognize that the transition to digital television necessarily involves coordination with Multichannel Video Programming Distributors (“MVPDs”). (MVPDs include cable operators and Direct Broadcast Satellite carriers. As of June 2005, approximately 94.2 million TV households, or almost 86 percent of TV households, subscribe to an MVPD service.) Because a majority of television viewers receive their broadcast signals via an MVPD, if these providers have problems receiving and retransmitting digital signals when analog signals are turned off, that could have a significant adverse impact on the digital transition. We seek comment here on the issues specifically related to MVPD readiness to receive and retransmit digital signals to their subscribers when analog service ends on February 17, 2009. (General issues regarding mandatory carriage of digital broadcast signals are being addressed in other dockets.) We also invite comment on what steps, if any, are necessary to allow consumers to continue to receive over-the-air television signals in a variety of settings outside their homes, such as hotels, restaurants, universities and offices. 126. In this regard, we solicit comment from cable operators, satellite carriers, and private cable operators (also known as Satellite Master Antenna Television or “SMATV” providers) regarding steps they are taking to ensure that their subscribers will continue to receive local broadcast stations after the termination of over-the-air analog broadcast signals from full power stations. Moreover, we request comment on whether and what type of coordination is needed between broadcast television stations and MVPDs to facilitate a timely and smooth transition, whether this coordination is underway, and what actions the Commission could take to facilitate that coordination. For example, will cable and satellite operators have technical difficulties receiving digital signals from local television stations on new channels (and in some cases from different transmission facilities)? Are changes needed at cable and SMATV headends and satellite local receive facilities to receive these signals? Have MVPDs experienced difficulties receiving and retransmitting local digital broadcast signals thus far? Will MVPDs be able to handle all the various channel changes and other modifications that will be necessary, many of which will occur at midnight on February 17, 2009? Do MVPDs need to test reception and retransmission capabilities in advance of the transition, and, if so, when, and how, in light of construction deadlines? VI. Procedural Matters A. Initial Regulatory Flexibility Act Analysis 127. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) the Commission has prepared this present Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible significant economic impact on small entities by the policies and rules proposed in this *Notice of Proposed Rulemaking (“NPRM”)* . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments indicated on the first page of the *NPRM* . The Commission will send a copy of the *NPRM* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the *NPRM* and IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for and Objectives of the Proposed Rules 128. This *NPRM* begins the Commission's third periodic review of the transition of the nation's broadcast television system from analog to digital television (“DTV”). The Commission conducts these periodic reviews in order to assess the progress of the transition and make any necessary adjustments to the Commission's rules and policies to facilitate the introduction of DTV service and the recovery of spectrum at the end of the transition. In 2005, Congress mandated that after February 17, 2009, full-power television broadcast stations must transmit only in digital signals, and may no longer transmit analog signals. 129. The purpose of this *NPRM* , generally, is to

(1)provide a progress report on the DTV transition;

(2)describe the status and readiness of existing stations to complete the transition;

(3)consider and propose the procedures and rule changes necessary to complete the transition; and

(4)address other issues related to the transition. In particular, the *NPRM* proposes

(1)rules for applying to construct final, DTV facilities and

(2)construction deadlines for the completion of final, DTV facilities. 130. The primary objectives of this *NPRM* is to ensure that, by the February 17, 2009 transition date, all full-power television broadcast stations

(1)cease analog broadcasting and

(2)have completed construction and begun operating their final, DTV facilities. In addition, the *NPRM* considers proposals to provide broadcasters with the regulatory flexibility necessary to meet these goals. B. Legal Basis 131. The authority for the action proposed in this rulemaking is contained in Sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, and 337 of the Communications Act of 1934, 47 U.S.C 151, 154(i) and (j), 157, 301, 302a, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, and 337. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 132. 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 proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” small organization,” and “small government 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 SBA. 133. We believe that full-power television broadcast stations will be directly and primarily affected by the proposed rules, if adopted. Although the proposed rules will not apply to Class A TV stations, low power television

(LPTV)stations, and TV translator stations, it is still possible that these entities may be affected by the proposed rules. For example, the proposed rules, if adopted, would permit applications for analog translators to be filed under specific circumstances and in that way may affect TV translator stations. Otherwise, we do not believe any other types of entities will be directly affected by the proposed rules; however, request comment on this tentative conclusion. A description of the small entities that may be directly affected, as well as an estimate of the number of such small entities, is provided below. Entities Directly Affected by Proposed Rules 134. *Television Broadcasting.* The proposed rules and policies apply to television broadcast licensees and potential licensees of television service. The SBA defines a television broadcast station as a small business if such station has no more than $13.5 million in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” The Commission has estimated the number of licensed commercial television stations to be 1,376. According to Commission staff review of the BIA Financial Network, MAPro Television Database (“BIA”) on March 30, 2007, about 986 of an estimated 1,374 commercial television stations (or about 72 percent) have revenues of $13.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed NCE television stations to be 380. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities. 135. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. 136. *Class A TV, LPTV, and TV translator stations.* The proposed rules and policies may also apply to licensees of Class A TV stations, low power television

(LPTV)stations, and TV translator stations, as well as to potential licensees in these television services. The same SBA definition that applies to television broadcast licensees would apply to these stations. The SBA defines a television broadcast station as a small business if such station has no more than $13.5 million in annual receipts. Currently, there are approximately 567 licensed Class A stations, 2,227 licensed LPTV stations, and 4,518 licensed TV translators. Given the nature of these services, we will presume that all of these licensees qualify as small entities under the SBA definition. We note, however, that under the SBA's definition, revenue of affiliates that are not LPTV stations should be aggregated with the LPTV station revenues in determining whether a concern is small. Our estimate may thus overstate the number of small entities since the revenue figure on which it is based does not include or aggregate revenues from non-LPTV affiliated companies. We do not have data on revenues of TV translator or TV booster stations, but virtually all of these entities are also likely to have revenues of less than $13.5 million and thus may be categorized as small, except to the extent that revenues of affiliated non-translator or booster entities should be considered. Entities That May Be Indirectly Affected by Proposed Rules 137. Because the rules proposed in this *NPRM* pertain to the transition from analog to digital broadcasting of full-power television broadcast stations, we do not believe the rules proposed will directly affect any other entities. We seek comment on this tentative conclusion. Certain entities may believe they would be affected by the proposed rules. For example, the proposed rules may, in the opinion of cable operators, satellite carriers other multichannel video programming distributors (“MVPDs”), indirectly affect these entities. In addition, the proposed rules may indirectly affect electronics equipment manufacturers. Although such comment is not required by the RFA, we invite comment from any small cable operators, small satellite carriers or other small MVPDs, as well as from small equipment manufacturers, who believe they might be directly affected by our proposed rules contained in the *NPRM.* 138. *Cable and Other Program Distribution.* Cable system operators fall within the SBA-recognized definition of Cable and Other Program Distribution, which includes all such companies generating $13.5 million or less in revenue annually. According to the Census Bureau data for 1997, there were a total of 1,311 firms that operated for the entire year in the category of Cable and Other Program Distribution. Of this total, 1,180 firms had annual receipts of under $10 million and an additional 52 firms had receipts of $10 million or more, but less than $25 million. In addition, limited preliminary census data for 2002 indicates that the total number of Cable and Other Program Distribution entities increased approximately 46 percent between 1997 and 2002. The Commission estimates that the majority of providers in this category of Cable and Other Program Distribution are small businesses. 139. *Cable System Operators (Rate Regulation Standard).* The Commission has developed, with SBA's approval, its own definition of a small cable system operator for the purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. We last estimated that there were 1,439 cable operators that qualified as small cable companies at the end of 1995. Since then, some of those companies may have grown to serve more than 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, we estimate that there are fewer than 1,439 small entity cable system operators. 140. *Cable System Operators (Telecom Act Standard)* . The Communications Act also contains a size standard for a “small cable operator,” which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67.7 million subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we estimate that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore is unable at this time to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Communications Act. 141. *Direct Broadcast Satellite (“DBS”) Service.* DBS service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic “dish” antenna at the subscriber's location. Because DBS provides subscription services, DBS falls within the SBA-recognized definition of Cable and Other Program Distribution. This definition provides that a small entity is one with $13.5 million or less in annual receipts. Currently, only three operators hold licenses to provide DBS service, which requires a great investment of capital for operation. All three currently offer subscription services. Two of these three DBS operators, DirecTV and EchoStar Communications Corporation (“EchoStar”), report annual revenues that are in excess of the threshold for a small business. The third DBS operator, Dominion Video Satellite, Inc. (“Dominion”), offers religious (Christian) programming and does not report its annual receipts. The Commission does not know of any source which provides this information and, thus, we have no way of confirming whether Dominion qualifies as a small business. Because DBS service requires significant capital, we believe it is unlikely that a small entity as defined by the SBA would have the financial wherewithal to become a DBS licensee. Nevertheless, given the absence of specific data on this point, we acknowledge the possibility that there are entrants in this field that may not yet have generated $13.5 million in annual receipts, and therefore may be categorized as a small business, if independently owned and operated. 142. *Private Cable Operators (“PCOs”), also known as, Satellite Master Antenna Television (“SMATV”) Systems.* PCOs, also known as SMATV systems or private communication operators, are video distribution facilities that use closed transmission paths without using any public right-of-way. PCOs acquire video programming and distribute it via terrestrial wiring in urban and suburban multiple dwelling units such as apartments and condominiums, and commercial multiple tenant units such as hotels and office buildings. The SBA definition of small entities for Cable and Other Program Distribution Services includes PCOs and, thus, small entities are defined as all such companies generating $13.5 million or less in annual receipts. Currently, there are more than 150 members in the Independent Multi-Family Communications Council (IMCC), the trade association that represents PCOs. Individual PCOs often serve approximately 3,000-4,000 subscribers, but the larger operations serve as many as 15,000-55,000 subscribers. In total, PCOs currently serve approximately one million subscribers. Because these operators are not rate regulated, they are not required to file financial data with the Commission. Furthermore, we are not aware of any privately published financial information regarding these operators. Based on the estimated number of operators and the estimated number of units served by the largest ten PCOs, we believe that a substantial number of PCO qualify as small entities. 143. *Home Satellite Dish (“HSD”) Service.* Because HSD provides subscription services, HSD falls within the SBA-recognized definition of Cable and Other Program Distribution, which includes all such companies generating $13.5 million or less in revenue annually. HSD or the large dish segment of the satellite industry is the original satellite-to-home service offered to consumers, and involves the home reception of signals transmitted by satellites operating generally in the C-band frequency. Unlike DBS, which uses small dishes, HSD antennas are between four and eight feet in diameter and can receive a wide range of unscrambled

(free)programming and scrambled programming purchased from program packagers that are licensed to facilitate subscribers' receipt of video programming. There are approximately 30 satellites operating in the C-band, which carry over 500 channels of programming combined; approximately 350 channels are available free of charge and 150 are scrambled and require a subscription. HSD is difficult to quantify in terms of annual revenue. HSD owners have access to program channels placed on C-band satellites by programmers for receipt and distribution by MVPDs. Commission data shows that, as of June 2005, there were 206,358 households authorized to receive HSD service. The Commission has no information regarding the annual revenue of the four C-Band distributors. 144. *Wireless Cable Systems.* Wireless cable systems use the Broadband Radio Service (“BRS”), formerly Multipoint Distribution Service (“MDS”), and Educational Broadband Service (“EBS”), formerly Instructional Television Fixed Service (“ITFS”), frequencies in the 2 GHz band to transmit video programming and provide broadband services to residential subscribers. These services were originally designed for the delivery of multichannel video programming, similar to that of traditional cable systems, but over the past several years licensees have focused their operations instead on providing two-way high-speed Internet access services. We estimate that the number of wireless cable subscribers is approximately 100,000, as of March 2005. Id. Local Multipoint Distribution Service (“LMDS”) is a fixed broadband point-to-multipoint microwave service that provides for two-way video telecommunications. As previously noted, the SBA definition of small entities for Cable and Other Program Distribution, which includes such companies generating $13.5 million in annual receipts, appears applicable to MDS, ITFS and LMDS. 145. *Wireless Cable Systems (Commission Auction Standard).* The Commission has defined small MDS (now BRS) and LMDS entities in the context of Commission license auctions. In the 1996 MDS auction, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. This definition of a small entity in the context of MDS auctions has been approved by the SBA. In the MDS auction, 67 bidders won 493 licenses. Of the 67 auction winners, 61 claimed status as a small business. At this time, the Commission estimates that of the 61 small business MDS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent MDS licensees that have gross revenues that are not more than $40 million and are thus considered small entities. MDS licensees and wireless cable operators that did not participate in the MDS auction must rely on the SBA definition of small entities for Cable and Other Program Distribution. Information available to us indicates that there are approximately 850 of these licensees and operators that do not generate revenue in excess of $13.5 million annually. Therefore, we estimate that there are approximately 850 small MDS (or BRS) providers as defined by the SBA and the Commission's auction rules. 146. Educational institutions are included in this analysis as small entities; however, the Commission has not defined a small business size standard for ITFS (now EBS). We estimate that there are currently 2,032 ITFS (or EBS) licensees, and all but 100 of these licenses are held by educational institutions. Thus, the Commission estimates that at least 1,932 ITFS licensees are small businesses. 147. In the 1998 and 1999 LMDS auctions, the Commission defined a small business as an entity that had annual average gross revenues of less than $40 million in the previous three calendar years. Moreover, the Commission added an additional classification for a “very small business,” which was defined as an entity that had annual average gross revenues of less than $15 million in the previous three calendar years. These definitions of “small business” and “very small business” in the context of the LMDS auctions have been approved by the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of the 104 auction winners, 93 claimed status as small or very small businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based on this information, we believe that the number of small LMDS licenses will include the 93 winning bidders in the first auction and the 40 winning bidders in the re-auction, for a total of 133 small entity LMDS providers as defined by the SBA and the Commission's auction rules. 148. *Open Video Systems (“OVS”).* In 1996, Congress established the open video system (“OVS”) framework, one of four statutorily recognized options for the provision of video programming services by local exchange carriers (“LECs”). The OVS framework provides opportunities for the distribution of video programming other than through cable systems. Because OVS operators provide subscription services, OVS falls within the SBA-recognized definition of Cable and Other Program Distribution Services, which provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified 25 OVS operators with some now providing service. Broadband service providers (“BSPs”) are currently the only significant holders of OVS certifications or local OVS franchises. As of June 2005, BSPs served approximately 1.4 million subscribers, representing 1.5 percent of all MVPD households. Affiliates of Residential Communications Network, Inc. (“RCN”), which serves about 371,000 subscribers as of June 2005, is currently the largest BSP and 14th largest MVPD. RCN received approval to operate OVS systems in New York City, Boston, Washington, DC and other areas. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities. 149. *Electronics Equipment Manufacturers.* The rules adopted in this proceeding may indirectly affect manufacturers of digital receiving equipment and other types of consumer electronics equipment. The appropriate small business size standard is that which the SBA has established for manufacturers of radio and television broadcasting and wireless communications equipment. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. Under this standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 2002 indicate that, for that year, there were a total of 1,041 establishments in this category. Of those, 1,023 had employment under 1,000. Given the above, the Commission estimates that the great majority of equipment manufacturers are small businesses. D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 150. The proposals set forth in this *NPRM* , if adopted, would impose mandatory compliance and reporting requirements on full-power television broadcast stations, including requiring that such stations:

(1)Must cease analog broadcasting on or before the February 17, 2009 transition date;

(2)if they do not have an existing construction permit for their final, DTV facility, or if they need to modify their existing construction permit, must file an application for a new or modified construction permit for their final, DTV facility;

(3)must construct their DTV facility by the construction deadline proposed for them;

(4)must file a form with the Commission detailing their current transition status, the additional steps necessary in order to be prepared for digital-only operation on February 17, 2009, and a timeline for making those steps; and

(5)must populate, and update as necessary, the Event Information Tables (“EITs”) in PSIP data with accurate information about each event, in accordance with the current version of the ATSC PSIP standard, A/65-C. 151. In addition, certain proposals set forth in this NPRM, if adopted, would provide for voluntary compliance and reporting requirements. Because these voluntary requirements may afford small television broadcast stations the opportunity for regulatory flexibility and reduced burdens, they are discussed in Section E. of this IRFA. 152. *Mandatory Termination of Analog Television Broadcasting.* By statute, after the February 17, 2009 transition date, all full-power television broadcast stations must transmit only in digital signals, and may no longer transmit analog signals. This statutory mandate affords the Commission no discretion to offer any regulatory flexibility to small television broadcasters concerning the mandatory analog turn-off. Rather, to implement this statutory mandate, the Commission must ensure that all full-power television broadcast stations cease analog broadcasting as of the February 17, 2009 transition date. 153. *Applications for New or Modified Construction Permits.* Under the current rules, stations that need to construct or modify DTV facilities must file construction permit or modification applications. Commercial stations must file FCC Form 301 and NCE stations must file FCC Form 340. Stations may file an application to modify their authority on their current DTV channel at any time, provided they do not violate the terms of the Commission's filing freeze. 154. According to the *NPRM* , 634 stations will not be using their currently authorized DTV channel for post-transition operations and will, therefore, need to file an application to construct their final, DTV facility. In addition, if any of the 1,178 stations that will use their currently authorized DTV channel for post-transition operations need to change their DTV facilities, *e.g.* , because if they do not have an authorization for their intended operations, then such stations will need to file a modification application. Thus, both these groups of stations will need to file applications for their final, post-transition facilities. 155. Given the number of stations that will need to file CP or modification applications and the fast-approaching transition date, the *NPRM* proposes to offer expedited processing to a station applying for a CP to build or modify its post-transition channel, provided that its application

(i)does not seek to expand the station's noise-limited service contour in any direction beyond that established by the new DTV Table;

(ii)specifies facilities that match or closely approximate those new DTV Table facilities ( *i.e.* , if the station is unable to build precisely the facilities specified in the new DTV Table, then it must apply for facilities that deviate no more than five percent from those new DTV Table facilities with respect to predicted population); and

(iii)is filed within 45 days of the effective date of Section 73.616 of the rules adopted in the Report and Order in this proceeding. The NPRM tentatively concludes that it will not accept applications to expand post-transition facilities until it has completed processing the applications to build authorized facilities. The NPRM also tentatively concludes to adopt a new 0.5 percent interference standard to apply to maximization applications and to new channel allotments after the transition. 156. *Construction deadlines for DTV facilities.* The *NPRM* proposes deadlines for all full-power television broadcast stations to complete construction of their final, DTV facilities in order to ensure that DTV stations will be providing service on their final, post-transition channels by the February 17, 2009 transition date. The NPRM proposes construction deadlines based on a station's channel assignment for pre- and post-transition operation, and other circumstances affecting the station's ability to complete final, post-transition facilities. First, the NPRM proposes that February 17, 2009 will be the construction deadline for stations whose DTV channel for pre-transition operation is not the same as their channel for post-transition use. These are stations that will be starting over with a new channel for DTV service. Second, for stations whose post-transition channel is the same as their pre-transition channel, the NPRM proposes to require completion of stations' post-transition facilities by the deadlines established for them in the Construction Deadline Extension Order and Use-or-Lose Order. Most stations (whose post-transition channel is the same as their pre-transition channel) that received a grant of their extension request or use-or-lose waiver request were provided six months from the release date of the Construction Deadline Extension Order or Use-or-Lose Order, whichever is applicable, to complete construction of their final, DTV (post-transition) facilities. The other stations (whose post-transition channel is the same as their pre-transition channel) that received a grant of their extension request or use-or-lose waiver request were provided until February 17, 2009 to complete construction of their final, DTV (post-transition) facilities, because they faced unique technical challenges, such as needing to switch their top-mounted analog transmitter with their side-mounted digital transmitter. Unlike the first group, stations whose post-transition channel is the same as their pre-transition channel have long been assigned the channel that they will use for post-transition operations. Third, notwithstanding the first two groups, the NPRM proposes that February 17, 2009 will be the construction deadline for stations with side-mounted digital antennas or similar situations in which the operation of their analog service prevents the completion of their full, authorized digital facilities. 157. The *NPRM* also proposes to limit the situations in which stations may obtain more time to satisfy the proposed new construction deadlines for completion of final, DTV facilities. For requests for additional time to construct DTV facilities filed before February 17, 2009 (but after the effective date of the proposed new rule), the NPRM proposes to revise and apply Section 73.624(d) of the rules. Specifically, the proposed Section 73.624(d), if adopted, would no longer grant stations additional time to construct because of equipment delays, absent extraordinary circumstances. The proposed rule would also require a stronger demonstration of financial hardship than is now required. The proposed financial hardship standard would require the licensee or permittee of a station to show that it is

(1)the subject of a bankruptcy or receivership proceeding, or

(2)experiencing severe financial hardship, as defined by negative cash flow for the past three years. Stations seeking an extension based upon financial considerations under this new test would either

(1)submit proof that they have filed for bankruptcy or that a receiver has been appointed, or

(2)submit an audited financial statement for the previous three years. All such stations also would be required to submit a schedule of when they expect to complete construction. As is currently required by the rule, stations making such requests must electronically file FCC Form 337. With respect to a deadline of February 17, 2009 or later, the NPRM proposes to apply Section 73.3598 of the rules, which now applies to DTV singletons, analog TV, and other broadcast services. Stations must file a notification to inform the Commission of the circumstances that it believes should toll its construction period. 158. *Transition Status Form.* The *NPRM* proposes that every full-power television broadcast station must file a form with the Commission that details

(1)the current status of the station's digital transition;

(2)the additional steps, if any, the station needs to take to be prepared for the switch-over deadline; and

(3)a plan for how it intends to meet that deadline. These filings will be posted on the Commission's website. These forms will assist the Commission, industry, and the public in assessing progress and making plans for the digital switchover date. The form will provide information on the status of each station's construction of final, DTV facilities, allowing the Commission, industry, and the public to track the progress of the DTV transition. 159. *Program System and Information Protocol (“PSIP”) standard.* The *NPRM* proposes to update Section 73.682(d) to reflect the revisions to the ATSC Program System and Information Protocol (“PSIP”) standard since the Second DTV Periodic Report and Order. The current version of the ATSC PSIP standard is A/65-C. PSIP data is transmitted along with a station's DTV signal and provides DTV receivers with information about the station and what is being broadcast. PSIP data provides a method for DTV receivers to identify a DTV station and to determine how a receiver can tune to it. For any given station, the PSIP data transmitted along with the digital signal identifies both its DTV channel number and its analog channel number (referred to as the “major” channel number), thereby making it easy for viewers to tune to the station's DTV channel even if they only know the station's major channel number. In addition, PSIP data tells the receiver whether multiple program streams are being broadcast and, if so, how to find them. It also identifies whether the programs are closed captioned, conveys available V-chip information, and provides program information, among other things. The Commission has recognized the utility that the ATSC PSIP standard offers for both broadcasters and consumers. 160. This new revision to the ATSC standard further enhances the PSIP standard and support for delivery of data. The updated ATSC PSIP standard now requires broadcasters to populate the EITs with accurate information about each event and to update the EIT if more accurate information becomes available. Currently, many broadcasters provide only general information in the EIT tables. For example, a network affiliate may provide “network programming” as the descriptor for the majority of its program offerings. E. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 161. 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. 162. As previously noted, the Commission has no discretion to offer any regulatory flexibility to small television broadcasters concerning the mandatory analog turn-off on the February 17, 2009 transition date. Rather, to implement this statutory mandate, the Commission must ensure that all full-power television broadcast stations, including small stations, cease analog broadcasting as of the February 17, 2009 transition date. 163. The *NPRM* , however, does propose opportunities for regulatory flexibility with respect to the other mandatory compliance requirements. 164. With respect to applications for post-transition facilities, the *NPRM* proposes to offer expedited processing (as discussed above). It is each station's responsibility to ensure that it can begin operations on its post-transition channel no later than the deadline for the transition on February 17, 2009. Stations also have the responsibility to file their applications in sufficient time before the deadline so that they may be granted by the Commission. This option may well benefit smaller entities. 165. With respect to the proposed construction deadlines to build final, post-transition facilities, the *NPRM* proposes to offer a variety of opportunities for regulatory flexibility if it would facilitate the transition and ensure that all full-power stations meet the February 17, 2009 transition date. 166. While proposing to establish a stricter standard for requests for extension of time to construct DTV facilities, the *NPRM* also proposes to eliminate the requirement for some stations that they build pre-transition DTV facilities on channels that are not their post-transition channel. This will help many small stations facing financial challenges to complete construction of DTV facilities while also ensuring that broadcasters continue to focus on the timely construction of the facilities necessary to transition away from analog transmission by the transition date. The *NPRM* also asks whether it should afford small television broadcasters additional time to construct DTV facilities. The *NPRM* also proposes to allow stations to operate on newly allotted post-transition facilities before the transition deadline provided they would not interfere with existing, pre-transition service. 167. The *NPRM* also requests comment on whether to permit stations to build less than their full, authorized post-transition facilities by the relevant construction deadline, provided these stations at least serve the same area and population that receive their current analog TV and DTV service so that over-the-air viewers will not lose TV service. In particular, if such relief is not afforded to all stations, the *NPRM* asks whether to afford such relief to small television broadcasters because of the unique challenges they may face in completing their transition. 168. The *NPRM* requests comment on whether to allow stations to temporarily remain on their pre-transition DTV channel (even though it is not their post-transition channel) if:

(i)They serve at least the same area and population that receives their current analog TV service so that over-the-air viewers will not lose TV service;

(ii)they do not cause impermissible interference to other stations or prevent other stations from making their transition; and

(iii)doing so would facilitate the transition. Stations making such requests would do so in accordance with the rules for STA. This opportunity may afford additional regulatory relief to small television broadcasters. 169. To facilitate the construction of, and commencement of operations on, post-transition facilities, the *NPRM* also examines the circumstances in which a station may reduce or terminate its analog service to facilitate construction of post-transition facilities. This opportunity may afford additional regulatory relief to small television broadcasters. The *NPRM* also considers whether and, if so, under what circumstances it should accept new requests by stations to return their pre-transition-only DTV channel ( *i.e.* , a DTV channel that is not their final, post-transition channel) before the end of the transition and “flash cut” from their analog channel to their post-transition channel. This flash-cut option may provide financial relief to small stations, such as satellite stations, by freeing stations to focus their efforts on completion of their final, post-transition facilities. 170. With respect to the proposed updating of Section 73.682(d) to reflect the new revisions to the ATSC PSIP standard, the *NPRM* seeks comment on the burden that compliance with the new standard, A/65-C, would place on small broadcasters, in particular. 171. Consistent with the statutory mandate for full-power TV broadcast stations to cease analog broadcasting by February 17, 2009, as well as with broadcasters' obligation to provide and maintain the best possible TV service to the public, broadcasters are encouraged to suggest alternative proposals that would avoid the imposition of significant and unreasonable burdens on small TV broadcasters. F. Federal Rules Which Duplicate, Overlap, or Conflict With the Commission's Proposals 172. None. Initial Paperwork Reduction Act of 1995 Analysis 173. This *NPRM* has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”), and contains proposed new and modified information collection requirements, including the following proposals:

(1)Applications detailing stations' plans for completing their transitions;

(2)Applications to construct or modify post-transition facilities (using FCC Forms 301 and 340);

(3)Requests to reduce analog TV service;

(4)Requests to terminate analog TV service;

(5)Requests to flash cut;

(6)Requests for STA to use analog translators to offset loss of analog service;

(7)Requests for extension of time to construct (using FCC Form 337), or to toll the construction deadline for, DTV facilities;

(8)Requests to transition early to their post-transition channel;

(9)Requests for STA to temporarily remain on their in-core pre-transition DTV channel;

(10)Requests for STA to build less than full, authorized post-transition facilities by the deadline;

(11)Applications for a license to cover post-transition facilities (using FCC Form 302 DTV); and

(12)PSIP requirement to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (“OMB”) to comment on the proposed information collection requirements contained in this NPRM, as required by the PRA. 174. Written comments on the PRA proposed information collection requirements must be submitted by the public, the OMB, and other interested parties on or before September 7, 2007. Comments should address:

(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;

(b)the accuracy of the Commission's burden estimates;

(c)ways to enhance the quality, utility, and clarity of the information collected; and

(1)The Commission's Electronic Comment Filing System (“ECFS”),

(2)the Federal Government's eRulemaking Portal, or

(3)by filing paper copies. 178. *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. 179. *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. 180. *Availability of Documents.* Comments, reply comments, and *ex parte* submissions will be available for public inspection 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. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. 181. *Accessibility Information.* To request information in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the FCC's Consumer and Governmental Affairs Bureau at

(202)418-0530 (voice),

(202)418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format

(PDF)at: *http://www.fcc.gov.* VII. Ordering Clauses 182. Accordingly, *It is ordered* that pursuant to Sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, and 337 of the Communications Act of 1934, 47 U.S.C 151, 154(i) and (j), 157, 301, 302a, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, and 337 that notice is hereby given of the proposals and tentative conclusions described in this *Notice of Proposed Rulemaking* , including the proposed amendments to Part 73 of the Commission's rules. 183. *It is further ordered* that the Reference Information Center, Consumer Information Bureau, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 73 Digital television, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rule Changes For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. 2. Add a new § 73.616 to read as follows: § 73.616 Post-transition DTV station interference protection.

(a)A petition to add a new channel to the post-transition DTV Table of Allotments contained in § 73.622(i) of this subpart will not be accepted unless it meets: the DTV-to-DTV geographic spacing requirements of § 73.623(d)(2) with respect to all existing DTV allotments in the post-transition DTV Table; the principle community coverage requirements of § 73.625(a); the Class A TV and digital Class A TV protection requirements in paragraph

(d)of this section; the land mobile protection requirements of § 73.623(e); and the FM radio protection requirement of § 73.623(f). The reference coordinates of a post-transition DTV allotment shall be the authorized transmitter site, or, where such a transmitter site is not available for use as a reference point, the coordinates as designated in the FCC order creating or modifying the post-transition DTV Table of Allotments.

(b)An application for a new post-transition DTV broadcast station or for changes in an authorized post-transition DTV station will not be accepted for filing unless it protects all land mobile operation on channels 14-20 in accordance with § 73.623(e) and all other post-transition DTV stations from interference in excess of the limits established in this section. An application must not cause interference to more than: the greater of either 0.5 percent the population served by the other station or the amount of interference already predicted to be caused by the applicant's authorized facilities.

(1)The protected facilities of a post-transition DTV allotment shall be the facilities (effective radiated power, antenna height and antenna directional radiation pattern, if any) authorized by a construction permit or license, or, where such an authorization is not available for establishing reference facilities, the facilities designated in the FCC order creating or modifying the post-transition DTV Table of Allotments.

(2)For evaluating compliance with this requirement, interference to populations served is to be predicted based on the 2000 census population data and otherwise according to the procedure set forth in OET Bulletin No. 69, including population served within service areas determined in accordance with § 73.622(e), consideration of whether F(50,10) undesired signals will exceed the following desired-to-undesired (D/U) signal ratios, assumed use of a directional receiving antenna, and use of the terrain dependent Longley-Rice point-to-point propagation model. Copies of OET Bulletin No. 69 may be inspected during normal business hours at the: Federal Communications Commission, Room CY-C203, 445 12th Street, SW., Reference Information Center, Washington, DC 20554. These documents are also available through the Internet on the FCC Home Page at *http://www.fcc.gov.* The threshold levels at which interference is considered to occur are:

(i)For co-channel stations, the D/U ratio is +15 dB. This value is only valid at locations where the signal-to-noise ratio is 28 dB or greater. At the edge of the noise-limited service area, where the signal-to-noise (S/N) ratio is 16 dB, this value is +23 dB. At locations where the S/N ratio is greater than 16 dB but less than 28 dB, D/U values are computed from the following formula: D/U = 15+10log10[1.0/(1.0-10-x/10)] Where x = S/N-15.19 (minimum signal to noise ratio)

(ii)For interference from a lower first-adjacent channel, the D/U ratio is -28 dB.

(iii)For interference from a upper first-adjacent channel, the D/U ratio is -26 dB.

(c)Due to the frequency spacing that exists between Channels 4 and 5, between Channels 6 and 7, and between Channels 13 and 14, the minimum adjacent channel technical criteria specified in this section shall not be applicable to these pairs of channels (see § 73.603(a)).

(d)A petition to add a new channel to the post-transition DTV Table or a post-transition DTV station application that proposes to expand its allotted or authorized coverage area in any direction will not be accepted if it is predicted to cause interference to a Class A TV station or to a digital Class A TV station authorized pursuant to subpart J of this part, within the protected contour defined in § 73.6010 of this part.

(1)Interference is predicted to occur if the ratio in dB of the field strength of a Class A TV station at its protected contour to the field strength resulting from the facilities proposed in the DTV application (calculated using the appropriate F(50,10) chart from Figure 9a, 10a, or 10c of § 73.699 of this part) fails to meet the D/U signal ratios for “DTV-into-analog TV” specified in § 73.623(c)(2).

(2)Interference is predicted to occur if the ratio in dB of the field strength of a digital Class A TV station at its protected contour to the field strength resulting from the facilities proposed in the DTV application (calculated using the appropriate F(50,10) chart from Figure 9a, 10a, or 10c of § 73.699 of this part) fails to meet the D/U signal ratios specified in paragraph (b)(2) of this section.

(3)In support of a request for waiver of the interference protection requirements of this section, an applicant for a post-transition DTV broadcast station may make full use of terrain shielding and Longley-Rice terrain dependent propagation methods to demonstrate that the proposed facility would not be likely to cause interference to Class A TV stations. Guidance on using the Longley-Rice methodology is provided in OET Bulletin No. 69, which is available through the Internet at *http://www.fcc.gov/oet/info/documents/bulletins/#69.* Note to § 73.616: When this rule was adopted, the filing freeze announced in an August 2004 public notice (19 FCC Rcd 14810 (MB 2004)) remained in effect. For a short period of time after the filing freeze is lifted, until a date to be announced by a Media Bureau Public Notice, applicants must protect Appendix B facilities in addition to any authorized facilities required to be protected pursuant to this rule section. 2. Amend § 73.623 by adding a note to paragraph

(a)to read as follows: § 73.623 DTV applications and changes to DTV allotments.

(a)* * * Note to paragraph (a): Petitions for rule making and applications seeking facilities that will operate after the end of the DTV transition must also comply with § 73.616. 3. Amend § 73.624 by adding paragraph (d)(1)(v) and revising paragraph (d)(3) to read as follows: § 73.624 Digital television broadcast stations.

(d)* * *

(v)February 17, 2009 is the deadline for the completion of construction of post-transition

(DTV)facilities for all commercial and noncommercial television stations whose post-transition digital channel is different from their pre-transition digital channel. For purposes of this construction deadline, the post-transition facilities to be constructed are those defined by the new DTV Table of Allotments and accompanying Appendix B, established by the Seventh Report and Order in MB Docket No. 87-268 and codified at 47 CFR 73.622(i).

(3)*Authority delegated.*

(i)Authority is delegated to the Chief, Media Bureau to grant an extension of time of up to six months beyond the relevant construction deadline specified in paragraph (d)(1) of this section upon demonstration by the DTV licensee or permittee that failure to meet that construction deadline is due to circumstances that are either unforeseeable or beyond the licensee's control where the licensee has taken all reasonable steps to resolve the problem expeditiously.

(ii)Such circumstances may include, but shall not be limited to:

(A)Inability to construct and place in operation a facility necessary for transmitting digital television, such as a tower, because of delays in obtaining zoning or FAA approvals, or similar constraints; or

(B)Where the licensee or permittee is currently the subject of a bankruptcy or receivership proceeding, or is experiencing severe financial hardship as defined by negative cash flow for the past three years.

(iii)The Bureau may grant no more than two extension requests upon delegated authority. Subsequent extension requests shall be referred to the Commission. The Bureau may deny extension requests upon delegated authority.

(iv)Applications for extension of time shall be filed no earlier than 90 and no later than 60 days prior to the relevant construction deadline, absent a showing of sufficient reasons for filing within less than 60 days of the relevant construction deadline. 4. Revise § 73.682(d) to read as follows: § 73.682 TV transmission standards.

(d)Digital broadcast television transmission standard. Effective November 6, 2007, transmission of digital broadcast television

(DTV)signals shall comply with the standards for such transmissions set forth in ATSC A/52: “ATSC Standard Digital Audio Compression (AC-3)” (incorporated by reference, see § 73.8000), ATSC Doc. A/53, Revision E with Amendment 1 and Amendment 2: “ATSC Digital Television Standard,” (September 13, 2006) except for Section 5.1.2 (“Compression format constraints”) of Annex A (“Video Systems Characteristics”) and the phrase “see Table A3” in Section 5.1.1. Table A2 and Section 5.1.3 Table A4 (incorporated by reference, see § 73.8000), and ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable,” (Revision C with Amendment 1) May 9, 2006 (incorporated by reference, see § 73.8000). Although not incorporated by reference, licensees may also consult ATSC Doc. A/54, Recommended Practice, Guide to Use of the ATSC Digital Television Standard, including Corrigendum No. 1 (December 4, 2003, Corrigendum No. 1 December 20, 2006), and ATSC Doc. A/69, Recommended Practice PSIP Implementation Guidelines for Broadcasters (June 25, 2002) (Secs. 4, 5, 303, 48 Stat., as amended, 1066, 1068, 1082 (47 U.S.C. 154, 155, 303)). 5. Revise § 73.8000(b)(2) and

(3)to read as follows: § 73.8000 Incorporation by reference.

(b)* * *

(2)ATSC A/53: “ATSC Digital Television Standard,” dated August 7, 2001, Revision E, with Amendment 1 dated April 18, 2006 and Amendment 2 dated September 13, 2006, IBR approved for § 73.682, except for section 5.1.2 of Annex A, and the phrase “see Table A-3” in section 5.1.1. Table A2 and section 5.1.3 Table A4.

(3)ATSC A/65C: “ATSC Program and System Information Protocol for Terrestrial Broadcast and Cable,” (Revision C) January 2, 2006, with Amendment 1 dated May 9, 2006, and IBR approved for § 73.682, IBR approved for §§ 73.9000-73.9001. [FR Doc. E7-12905 Filed 7-6-07; 8:45 am] BILLING CODE 6712-01-P 72 130 Monday, July 9, 2007 Rules and Regulations Part III Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife; Final Rule; Endangered and Threatened Wildlife and Plants; Draft Post-Delisting and Monitoring Plan for the Bald Eagle (Haliaeetus leucocephalus) and Proposed Information Collection; Notice DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AF21 Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: The best available scientific and commercial data indicate that the bald eagle has recovered. Therefore, under the authority of the Endangered Species Act of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service, remove (delist) the bald eagle ( *Haliaeetus leucocephalus* ) in the lower 48 States of the United States from the Federal List of Endangered and Threatened Wildlife. This determination is based on a thorough review of all available information, which indicates that the threats to this species have been eliminated or reduced to the point that the species has recovered and no longer meets the definition of threatened or endangered under the Act. Fueled by a reduction in the threats to the bald eagle, the population in the lower 48 States has increased from approximately 487 breeding pairs in 1963, to an estimated 9,789 breeding pairs today. The recovery of the bald eagle is due in part to the reduction in levels of persistent organochlorine pesticides (such as DDT) occurring in the environment and habitat protection and management actions. The protections provided to the bald eagle under the Bald and Golden Eagle Protection Act (BGEPA) and the Migratory Bird Treaty Act

(MBTA)will continue to remain in place after the species is delisted. To help provide more clarity on the management of bald eagles after delisting, we recently published a regulatory definition of “disturb”, the final National Bald Eagle Management Guidelines and a proposed rule for a new permit that would authorize limited take under BGEPA and grandfather existing Act authorizations. DATES: This rule is effective August 8, 2007. FOR FURTHER INFORMATION CONTACT: Chief, Branch of Recovery and Delisting, telephone

(703)358-2061 or facsimile

(703)358-1735. Additional information is also available on our Web site at *http://www.fws.gov/migratorybirds/BaldEagle.htm.* Individuals who use a telecommunications device for the deaf

(TDD)may call the Federal Relay Service at 1-800-877-8339 for TTY assistance, 24 hours a day, 7 days a week. SUPPLEMENTARY INFORMATION: Background Information about the bald eagle's life history can be found in our February 16, 2006, reopening of the public comment period on the proposed delisting rule (71 FR 8238) (U.S. FWS 2006a) and our five recovery plans for the bald eagle (U.S. FWS 1982, 1983, 1986, 1989, 1990), Gerrard and Bortolotti (1988), and Buehler (2000). Previous Federal Actions Bald eagles gained protection under the Bald Eagle Protection Act (16 U.S.C. 668-668d) in 1940 and the Migratory Bird Treaty Act

(MBTA)(16 U.S.C. 703-712) in 1972. A 1962 amendment to the Bald Eagle Protection Act added protection for the golden eagle and the amended statute became known as the Bald and Golden Eagle Protection Act (BGEPA). On March 11, 1967 (32 FR 4001), the Secretary of the Interior listed bald eagles south of 40 north latitude as endangered under the Endangered Species Preservation Act of 1966 (Pub. L. 89-699, 80 Stat. 926) due to a population decline caused by DDT and other factors. On February 14, 1978, the Service listed the bald eagle as endangered under the Act (16 U.S.C. 1531 *et seq.* ) in 43 of the contiguous States, and threatened in the States of Michigan, Minnesota, Wisconsin, Oregon, and Washington (43 FR 6230, February 14, 1978). Sub-specific designations for northern and southern eagles were removed. On February 7, 1990, we published an advance notice of proposed rulemaking (55 FR 4209) to reclassify the bald eagle from endangered to threatened in the 43 States where it had been listed as endangered and retain the threatened status for the other 5 States. On July 12, 1994, we published a proposed rule to accomplish this reclassification (59 FR 35584), and the final rule was published on July 12, 1995 (60 FR 36000). On July 6, 1999, we published a proposed rule to delist the bald eagle throughout the lower 48 States due to recovery (64 FR 36454). Due to the availability of new information, on February 16, 2006 (71 FR 8238), we reopened the public comment period on our July 6, 1999 (64 FR 36454), proposed rule to delist the bald eagle in the lower 48 States. The reopening notice contained updated information on several State survey efforts and population numbers. Simultaneously with the reopening of the public comment period on the proposed delisting, we also published two **Federal Register** documents soliciting public comments on two new items intended to clarify the BGEPA protections for the bald eagle after delisting:

(1)A proposed rule for a regulatory definition of “disturb” (71 FR 8265, February 16, 2006), and

(2)a notice of availability for draft National Bald Eagle Management Guidelines (71 FR 8309, February 16, 2006). On May 16, 2006, we published three separate notices in the **Federal Register** that extended the public comment period on the proposed delisting (71 FR 28293), the proposed regulatory definition of “disturb” (71 FR 28294), and the draft Guidelines (71 FR 28369). The comment period for all three documents was extended to June 19, 2006. On December 12, 2006, we published in the **Federal Register** a notice requesting public comment on two BGEPA items. First, we re-opened the public comment period on our February 16, 2006, proposed regulatory definition of “disturb.” Second, we also announced the availability the draft environmental assessment on the definition of “disturb” (71 FR 74483). On October 6, 2004, we received a petition, dated October 6, 2004, from the Center for Biological Diversity, the Maricopa Audubon Society, and the Arizona Audubon Council requesting that the bald eagle population found in the Sonoran Desert (as defined by Brown 1994) or, alternately, in the upper and lower Sonoran Desert (as defined by Merriam (Northern Arizona University 2006, p. 2)) be classified as a distinct population segment (DPS), that this DPS be reclassified from a threatened species to an endangered species, and that we concurrently designate critical habitat for the DPS. On August 30, 2006, we made a 90-day finding (71 FR 51549) that the petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted. On January 5, 2007, the Center for Biological Diversity and the Maricopa Audubon Society brought suit against the Service, *Center for Biological Diversity* v. *Kempthorne* , CV 07-0038-PHX-MHM (D. Ariz.), challenging the Service's 90-day finding that the Sonoran Desert population did not qualify as a DPS, and further challenging the Service's 90-day finding that the Sonoran Desert population should not be up-listed to endangered status. That suit is still pending. However, the Service's finding in this final delisting rule supersedes the Service's 90-day petition finding because it constitutes a final decision on whether the Southwestern bald eagles, including those in the Sonoran Desert, qualify for listing as a DPS. This decision was made after notice and comment, as described above, and was based on all of the relevant information that the Service has obtained. Even if the court in the 90-day finding suit were to find that the plaintiffs' petition warranted further review, this finding addresses the same issues that the Service would have considered as part of a 12-month finding had the Service made a positive 90-day finding on the petition. This document constitutes the Service's final determination on these issues, and is judicially reviewable with respect to them; therefore, any controversy regarding the August 30, 2006, 90-day finding is now moot. On June 5, 2007, we published four documents in the **Federal Register** announcing one proposed action and three final actions under the BGEPA:

(1)A final rule on the regulatory definition of “disturb” (72 FR 31132);

(2)a notice of availability for the final National Bald Eagle Management Guidelines (72 FR 31156);

(3)a notice of availability for the final environmental assessment on the definition of “disturb” (72 FR 31156); and

(4)a proposed rule for a new permit that would authorize limited take under BGEPA, and to grandfather existing Act authorizations after delisting occurs under the Act (72 FR 31141). Bald Eagle Recovery Section 4(f) of the Act directs us to develop and implement recovery plans for listed species. In establishing the recovery program for the species in the mid-1970s, the Service divided the bald eagle population in the lower 48 States into five recovery regions. These recovery regions were administrative boundaries to help the Service plan for recovery, given the information we had at the time. During this timeframe the bald eagle population was continuing to decline and little was known about where the important areas might be. Given the lack of information on this issue, the Service generally decided that recovery planning should be conducted in all parts of the range. However, as discussed below in the Conclusion of the 5-Factors analysis section, based on the information present today, the southwest region is a not a significant portion of the range. In some cases, we appoint experts to recovery teams to assist in the preparation of recovery plans. For the bald eagle, separate recovery teams composed of experts in each geographic area prepared recovery plans for their region. The teams established recovery objectives and criteria and identified tasks to achieve those objectives. Coordination meetings were held regularly among the five teams to exchange data and discuss progress towards recovery. We used these five recovery plans to provide guidance to the Service, States, and other partners on methods to minimize and reduce the threats to the bald eagle and to provide measurable criteria that would be used to help determine when the threats to the bald eagle had been reduced so that the bald eagle could be removed from the Federal List of Endangered and Threatened Wildlife. Recovery plans in general are not regulatory documents and are instead intended to provide a guide on how to achieve recovery. There are many paths to accomplishing recovery of a species in all or a significant portion of its range. The main goal is to remove the threats to a species, which may occur without meeting all recovery criteria contained in a recovery plan. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, the Service may judge that, overall, the threats have been reduced sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or perhaps to delist the species. In other cases, recovery opportunities may be recognized that were not known at the time the recovery plan was finalized. Achievement of these opportunities may be counted as progress toward recovery in lieu of methods identified in the recovery plan. Likewise, we may learn information about the species that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan. Recovery of the bald eagle has been a dynamic process. As new information became available, it was used during the recovery implementation process to help the Service determine whether recovery was on track. For instance, after the bald eagle was downlisted in 1995, the Southeastern Recovery Plan did not have specific delisting goals, and the Service used the recovery team to help determine the appropriate goal. This new delisting goal is considered the best available data in helping the Service determine whether the threats have been removed and to move forward with the delisting. All of the bald eagle recovery plans established goals for the number of occupied breeding areas and the productivity of the populations in the individual recovery regions. By setting a goal to monitor population numbers and productivity, the Service could determine whether the threats that led to the bald eagle's endangerment were being removed. With the reduction in levels of persistent organochlorine pesticides (such as DDT) occurring in the environment and the habitat protection and management actions that have been put in place, the bald eagle population has shown a remarkable increase in numbers. Between 1990 and 2000, the bald eagle population had a national average productivity of at least one fledgling per nesting pair per year. As a result, the bald eagle's nesting population increased at a rate of about 8 percent per year during this time period. Since 1963, when the Audubon Society estimated that there were 487 nesting pairs, bald eagle breeding in the lower 48 States has expanded to more than 9,789 nesting pairs today (U.S. FWS 1995, p. 36001; U.S. FWS 1999, p. 36457.) Some States have shown increases in their bald eagle pairs over the past several years. For example, Illinois had an estimated 36 pairs in 1999, but the State had an estimated 100 pairs in 2006 (Conlin 2006, p. 1). Iowa had an estimated 100 pairs in 1999, and their bald eagle population has doubled to an estimated 200 pairs in 2006 (Vonk 2006, p. 1). Minnesota had an estimated 681 pairs in 2001, and an estimated 1,312 pairs in 2005 (Moore 2006, p. 1). In recent decades, Vermont was the only State in the conterminous United States that did not have nesting bald eagles. In 2006, a pair of bald eagles nested in Vermont for the first time since the 1940s, and now Vermont has one nesting pair (Amaral 2006, p. 3). To date, the bald eagle's population growth has exceeded all the numeric goals established in the five recovery plans. In most of the recovery regions, the numeric goals for breeding pairs have been significantly exceeded. For example, the delisting goal in the Northern States Recovery Plan calls for 1,200 breeding pairs distributed over a minimum of 16 States. Today, there are an estimated 4,215 breeding pairs covering every State in that recovery region. BILLING CODE 4310-55-P ER09JY07.000 ER09JY07.001 BILLING CODE 4310-55-C For more information on recovery of the bald eagle in general and specific recovery of the individual recovery areas, see the discussion on pages 8240-8243 of the February 16, 2006, reopening of the public comment period on the proposed rule to delist the species (71 FR 8238). Summary of Comments and Recommendations We requested written comments from the public on February 16, 2006 (71 FR 8238), when we reopened the public comment period on our July 6, 1999 (64 FR 36454), proposed rule to delist the bald eagle in the lower 48 States. In that reopening notice, we responded to comments previously received on the July 6, 1999 (64 FR 36454) proposed delisting rule. Therefore, the preamble to this final rule addresses only the comments we received on the February 16, 2006, notice. The comment period was reopened from February 16, 2006, to May 17, 2006. During that time, we received two requests to extend the public comment period. In response to those requests, on May 16, 2006 (71 FR 28293), we extended the public comment period to June 19, 2006. As part of the reopening of the public comment period, we also contacted the States and Tribes to solicit their comments. In conformance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we solicited opinions from three scientific experts who are familiar with this species to peer review the proposed rule. We received comments from two of the three peer reviewers, and those two peer reviewers convened panels of scientific experts to review the information provided. Their comments are included in the summary below. One peer reviewer generally supported the proposed delisting, and the other peer reviewer did not. We reviewed all comments received from the peer reviewers, State and Tribal agencies, and the public for substantive issues and new information regarding the proposed delisting. We received a total of 387 new comments. Section 4(b)(1)(A) of the Act requires that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available,” including all information received during the public comment period. Comments merely stating support or opposition to the proposed delisting without providing supporting data, although noted, were not considered substantial and therefore were not considered in our determination. Substantial comments received during the comment period have either been addressed below or incorporated directly into this final rule. Peer Review Comments *Issue:* Several commenters, including one of the peer reviewers, stated that threat of habitat loss, including foraging, breeding, and wintering/roosting habitat (including communal roosting areas), due to development will continue because there are no adequate habitat protections (existing regulatory mechanisms) for bald eagles after delisting. One peer reviewer acknowledged that BGEPA and MBTA provide protection to birds, their nests, and eggs, but opined that those statutes offer no protection to habitat. In addition, the commenters believed that the proposed regulatory definition of “disturb” and the draft National Bald Eagle Management Guidelines will not be adequate to provide habitat protection. One peer reviewer expressed an opposite opinion stating that the proposed BGEPA definition and guidelines provide an adequate framework for protecting eagles and their habitat using BGEPA and MBTA. *Response:* As discussed in detail under Factor A, the bald eagle population is continuing to increase in the lower 48 States, showing that reduced availability of habitat is not a current threat to the species. Nesting habitat is secure on many public and private locations throughout the lower 48 States. We acknowledge that some habitat threats continue to exist. However, this localized habitat loss will be limited by the operation of various Federal laws that will remain in effect after delisting (e.g., BGEPA, MBTA, and the Clean Water Act (CWA)). The commenters are correct in that the BGEPA contains no provisions that directly protect habitat, except for nests. However, as further discussed under Factor A below, individual bald eagles are protected from certain effects that are likely to occur as the result of various human activities, including some habitat manipulation. Activities that disrupt eagles at nests, foraging areas, and important roosts can wound, kill, or disturb eagles, all of which are prohibited by the BGEPA. Through promulgation of the regulatory definition of disturb (72 FR 31132; June 5, 2007) and issuance of the National Bald Eagle Management Guidelines (72 FR 31156; June 5, 2007), we have clarified that eagle nests, important foraging areas, and communal roost sites are afforded protection under the BGEPA to the degree that adjacent habitat modification would disturb, injure, or kill eagles. *Issue:* One of the peer reviewers stated that the final delisting rule should include a list of updated population data by State with references to the survey from which the data were obtained. *Response:* We have included an updated national population estimate in this final rule along with a map with the estimated number of breeding pairs per State. To ensure that our determination on the status of the bald eagle was based “solely on the basis of the best scientific and commercial data available” as required by the Act, we used State population data provided to us directly by a State agency, the Pacific Flyway Council, or from a State Web site. Based on this information, there are an estimated 9,789 bald eagle pairs in the lower 48 States. We believe this is a conservative estimate based on the results of our pilot studies for the post-delisting monitoring plan (USFWS 2007). For example, in the pilot study conducted by Minnesota, 872 known nest sites were observed as occupied in 2005. Incorporating the use of area random plots for our pilot study, Minnesota's estimate of nesting bald eagle pairs increased to 1,312. Minnesota estimates that their known nest survey, which is similar to those conducted by each of the States and used to produce data for the delisting, may only count two-thirds of the breeding pairs in the State (Moore 2006, pp. 1-2). *Issue:* Both peer reviewers expressed concern about using out-dated recovery plans and delisting criteria. One peer reviewer recommended that the delisting criteria in the recovery plan for Southeastern United States bald eagles should be peer reviewed before finalizing the delisting. One commenter thought the Service should seek more advice from the recovery team members. *Response:* Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without fully meeting all criteria in a recovery plan. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan. Over the years, the Service sought advice from several recovery teams. In the Southeast, we used the advice of the recovery team to give us a population target that would indicate that the threats had been reduced. We believe this is the best available information at this time. *Issue:* One peer reviewer and several commenters noted concern over the viability of the Southwest population of bald eagles based on low numbers of breeding pairs, relatively low productivity, relatively high adult mortality, and threats of habitat alteration and human disturbance. Based on this information, the peer reviewer recommended designating the population as a DPS and deferring the delisting. *Response:* As further discussed in the Summary of Factors Affecting the Species section, the Service does not believe the bald eagle population in the Southwest meets the criteria stated in our DPS policy (61 FR 4722; February 7, 1996), nor is this population a significant portion of the range of the lower 48 States population of bald eagles. Therefore, consideration of the viability of, or threats to, the Southwestern population, standing alone, is not relevant to the delisting determination for the lower 48 States bald eagle population. *Issue:* Several commenters, including peer reviewers, commented that a post-delisting monitoring

(PDM)plan should be in place when delisting occurs and should remain in effect longer than 5 years. In addition, the plan should be comprehensive and scientifically based to monitor changes in population, productivity, wintering populations, habitat, and contaminants. *Response:* Based on comments from the 1999 proposed delisting rule, we have been working steadily on the development of a revised national post-delisting monitoring plan, including conducting several pilot studies in cooperation with the States, to produce a monitoring plan that will be more scientifically robust than previously proposed in the 1999 proposed delisting rule. We have modified the draft post-delisting monitoring plan to take into account the life cycle of the bald eagle. We are making the revised draft of the monitoring plan is available for public comment simultaneously with this rule elsewhere in today's **Federal Register** . We agree that a plan should ideally be in place at the time of delisting; however, given the proposed 20-year monitoring effort, we believe the plan will be finalized in a sufficient amount of time to adequately monitor the status of the species after delisting. Given the continued increase in the population, we do not expect a precipitous decline over the short term, prior to our completion of the final monitoring plan. Other Comments Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range *Issue:* One commenter stated that the delisting criteria have not been met for habitat protection in the Chesapeake Bay region. Another commenter stated that while lands have been protected in the Chesapeake Bay Recovery Region to sustain the targeted levels of breeding pairs, the proposed delisting does not address protection of summer and winter concentration areas. The commenter noted that neither the Service's National Wildlife Refuges nor State management areas provide enough land to provide the necessary concentration areas. Another commenter stated that habitat loss and development are not limiting factors in Maryland, and are not likely to cause endangerment in the future. The commenter believes that the Chesapeake Bay Critical Area Program will continue to conserve forested shoreline habitat, and that it is not necessary for us to fully meet the habitat preservation goals in the Chesapeake Bay Recovery Plan. *Response:* The Chesapeake Bay bald eagle population has experienced significant growth over the past 30 years. Within the Chesapeake Bay Bald Eagle Recovery Region, approximately 280 nests occur on Federal or State lands (48 nests from Koppie 2007b and 230 nests from Otto 2007). In addition to the long term habitat protection afforded on these lands, nearly 200 other nests occur within areas regulated by the Maryland Critical Areas Act (Koppie 2007b), which is discussed below. Together, these areas will continue to play active roles in providing additional protection of nests, nest buffers, forest blocks, and roosting habitat for bald eagles in the foreseeable future. Habitat loss is still likely to occur in this region in the foreseeable future through incremental land clearing. It is projected that between 1978 and 2020, the developed area of the Chesapeake Bay watershed will increase by 74 percent in Maryland and 80 percent in Virginia (Gray *et al.* 1988). The Service acknowledges ongoing shoreline development will continue for the foreseeable future, which will likely set limits on the rate of future expansion and overall population growth of the bald eagle in the Chesapeake Bay region. Bald eagle nesting pairs currently continue to increase despite the increased construction of new homes, business parks, boat marinas, and other infrastructure within habitats sustaining bald eagles. Therefore, it appears that unoccupied forested habitat currently still remains available, leading to the conclusion that the species has not yet reached the carrying capacity limits for nesting eagle pairs in the Chesapeake Bay region. The Service anticipates a continued upward population growth at least through the next decade based on the availability of habitat and behavioral adaptation. In addition, bald eagles have been able to adapt to higher densities of birds by decreasing the size of nesting territories in certain areas of the region where birds are starting to saturate the habitat. At some point, the Service expects the growth rate to decrease and level off, establishing a population that is stable over the long term. A study published in 1996 used modeling to predict that the population of bald eagles in the Chesapeake Bay region would increase until reaching carrying capacity, after which there would be a rapid decline of the population (Fraser *et al.* 1996, p. 185). However, we find that model to be unpersuasive for a number of reasons. First, it predicts that a decline might have begun by about 2005, but bald eagle numbers continue to increase in the Chesapeake Bay area. In Maryland, the population has increased from 338 breeding pairs to 400 between 2003 and 2004, and in Virginia bald eagle pairs increased from 371 to 485 between 2003 and 2006. Second, the predictive model showing a decline in the Chesapeake Bay bald eagle population does not take into account nest protection measures or refugia such as State and Federal wildlife refuges (Fraser *et al.* 1996, p. 185). In Virginia, the Eastern Virginia Rivers National Wildlife Refuge Complex was established to protect bald eagle nesting sites and communal roost sites that are part of concentration areas along the Rappahannock and James rivers. These refuges are within the Rappahannock River Watershed and the James River Watershed, which hold approximately half of Virginia's nesting population of bald eagles. In addition, the first “eagle refuge,” Mason Neck National Wildlife Refuge, was established to protect bald eagles along the Potomac River in 1967. In Maryland, communal roost sites and nesting areas are protected at the U.S. Army Aberdeen Proving Ground, Blackwater National Wildlife Refuge, Naval Surface Warfare Center at Indian Head, and an area below the Conowingo Dam along the Susquehanna River. All these areas (excluding the Conowingo Dam) are located within forested habitats on federal lands and therefore have long term protection, as explained under Factor A (Koppie 2007a). Third, the model does not take into account the increase in bald eagle tolerance to human disturbance. The Service has documented several cases in which bald eagles around the Chesapeake Bay have continued to nest and successfully produce young within distances that were previously considered too close to human activity (Koppie 2007a). In addition, in both Virginia and Maryland, compression of nesting territories (i.e., eagles nesting in closer proximity to each other than in recent decades) has been observed, suggesting that the density of nesting pairs can be higher than once documented (Koppie 2007a). In addition, certain State authorities and programs may afford additional, unquantifiable habitat protection. For example, in Maryland the Critical Area Act covering the Chesapeake Bay and Atlantic Coastal Bays enables the State and local governments to jointly address the impacts of land development on habitat and aquatic resources. This program can indirectly protect bald eagle habitat by, among other things, categorizing predominant land uses, focusing new development towards existing developed areas, and designating natural resource areas, habitat protection areas and buffers. These measures may reduce the rate of bald eagle habitat alteration depending on how they are employed across the landscape. To the extent that the Critical Areas program is maintained, it has the potential to contribute to forested shoreline preservation within 1,000 feet of the Chesapeake and Atlantic Coastal Bays where upwards of 70 percent of Maryland's eagles nest (Koppie 2007b). There are currently an estimated 1,093 breeding pairs in the Chesapeake Bay Recovery Region. Habitat loss is still likely to occur in the Chesapeake Bay region in the foreseeable future. However, based on the number of nests and associated habitat found on protected lands, the existence of refuges and other lands specifically to conserve concentration and foraging areas, the availability of additional unoccupied habitat, behavioral adaptation, potentially increased compression of nesting territories, and the continuation of protection under BGEPA (as discussed under Factor A), we do not expect the bald eagle population in the Chesapeake Bay area to decline below the recovery target of 300-400 nesting pairs in the foreseeable future. Similarly, we do not anticipate that habitat loss will have a significant negative impact on important concentration areas. *Issue:* Eagles have not recovered in the Southwestern United States. They are threatened with oil and gas development. The Bureau of Land Management is allowing gas wells and pipelines to be constructed in prime eagle habitat, and it will only get worse after delisting. For example, the Bureau of Land Management is allowing gas wells and pipelines to be constructed in prime bald eagle habitat around Navajo Reservoir. *Response:* We do not have any data to indicate that oil and gas development is currently threatening the future security of the bald eagle or its habitat in the Southwest. The Bureau of Reclamation manages the land around the Navajo Reservoir, and the Resource Management Plan includes areas specifically designated to protect bald eagles (U.S. BR 2005, p. 2-2, map 2-1). We believe the measures described in the Resource Management Plan will provide adequate protections for bald eagles and their habitat around the Navajo Reservoir after delisting. *Issue:* One commenter stated that the final rule needs to include a discussion on the declines in some fisheries as a past and present concern. For example, the demise of a kokanee salmon run in Glacier National Park ended a large autumn aggregation of bald eagles in that area. Declines in alewives and herring in Maine have also restricted eagle aggregations. *Response:* Bald eagle populations have increased despite isolated declines in local fish populations. As opportunistic feeders, bald eagles will move to alternative food sources, particularly during the non-nesting season. Therefore, we do not believe this is a threat that would limit the population of bald eagles in the lower 48 States, or a significant portion of its range in the foreseeable future such that continued protection under the Act would be warranted. *Issue:* One commenter felt that a State-level management plan for bald eagles in the Southwest Recovery Region was needed because the Arizona Bald Eagle Nestwatch Program will likely disappear after delisting. *Response:* The Conservation Assessment and Strategy for the Bald Eagle in Arizona has been developed by the Arizona Game and Fish Department, cooperating agencies, and Tribes to continue management practices for the bald eagle after delisting, including the Bald Eagle Nestwatch Program (Driscoll *et al.* 2006, pp. 1, 33). As we stated in our August 30, 2006, petition finding, the Arizona Bald Eagle Nestwatch Program will likely remain in place because the funding comes from a variety of sources, including State wildlife grants, donations, Arizona Game and Fish Department's Heritage Funds (State lottery), and matching funds for Federal grants. In any case, there is no specific requirement under the Act for a State management plan. *Issue:* BGEPA does not require landowners or developers to provide notification of their projects that may affect eagle nests. BGEPA and MBTA only come into effect after discovery of an infringement. There currently is no mechanism under BGEPA to allow for lawful activities (such as transportation construction and maintenance) to proceed. Left without options, landowners will be very tempted to cut down nest trees rather than lose the use of their property. *Response:* Actions that result in take as defined under BGEPA or MBTA are prohibited unless permitted by the Service. Thus, such notification is not required under either statute, but an action resulting in take is prohibited nonetheless. As currently occurs under the Act, providing such notification may be in the interest of a project proponent as it can help them avoid potential legal liabilities from enforcement of BGEPA or MBTA. We believe that working cooperatively with landowners to avoid or minimize adverse impacts to bald eagles is likely to achieve more positive conservation than reliance on regulatory enforcement. In addition, we have proposed a program that would allow us to authorize limited take associated with otherwise lawful activities under BGEPA (72 FR 31141; June 5, 2007), similar to the incidental take authorizations that we have made under sections 7 and 10 of the Act. Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes *Issue:* Poaching and illegal trade of bald eagle parts is still a threat that will increase if the bald eagle is delisted. *Response:* There is no legal commercial or recreational use of bald eagles, and such uses of bald eagles will remain illegal under various statutes, as described under Factor B below. We consider current laws and enforcement measures apart from the Act sufficient to protect the bald eagle from illegal activities, including poaching and illegal trade. *Issue:* Eagle parts and feathers should continue to be available for Native American religious and cultural needs. If the bald eagle is delisted, Native Americans should be given priority for eagle parts and feathers. *Response:* To respond to the religious needs of Native Americans, in the early 1970s, we established the National Eagle Repository in Commerce City, Colorado, which serves as a collection point for dead raptors, including bald eagles. As a matter of policy, all Service units transfer salvaged bald eagle parts and carcasses to this repository. Federal and State conservation agencies, zoological parks, rehabilitators, and others who may legally possess and transport dead bald and golden eagles are encouraged to send the dead birds, and their parts, to the repository so they can be utilized by federally recognized Native American Tribes (16 U.S.C. 668a and 50 CFR 22.22). Native Americans are given priority for eagle parts and feathers, and only members of Federally recognized tribes can obtain a permit from us authorizing them to receive and possess whole eagles, parts, or feathers from the repository for religious purposes. This policy is authorized by the provisions of BGEPA and will continue after delisting. *Issue:* One commenter did not want the bald eagle delisted due to the importance of the bald eagle to Native American religious and spiritual practices and ceremonies. Another commenter recommended continuing the Act's protections until recovery had been achieved such that Native Americans no longer need a permit for Indian religious activities. Several commenters stated that Native Americans should not be allowed to sacrifice eagles, even if doing so is for religious ceremonies. *Response:* As required by the Act, we are delisting the bald eagle because it no longer meets the definition of a threatened species; the bald eagle will continue to be protected under the BGEPA and MBTA once it is delisted. These statutes prohibit unauthorized take and require permits for limited designated uses of eagles, their parts, and related items. The BGEPA expressly authorizes issuance of permits to take bald eagles for the religious purposes of Indian tribes. We will continue to issue only permits that we determine are consistent with the preservation of the bald eagle. Factor C. Disease or Predation *Issue:* One commenter stated that avian influenza is a threat to the bald eagle and that it should be thoroughly discussed in the delisting rule. Another commenter was concerned about the threats to bald eagles from other diseases such as avian vacuolar myelinopathy, West Nile virus, and raptor beak overgrowth syndrome. *Response:* The Department of the Interior is currently testing migratory birds for the presence of H5N1 high path avian influenza. At this time, there are no confirmed cases of migratory birds, including bald eagles, testing positive for avian influenza in the United States (USGS 2007a). At least 80 bald eagles and possibly thousands of American coots have died from avian vacuolar myelinopathy since it was discovered in 1994 at DeGray Lake in Arkansas. Studies on avian vacuolar myelinopathy are continuing, but the cause is still unknown (USGS 2007b). These and other diseases may affect individual bald eagles at the local level, but as discussed below under Factor C, are not considered to be a significant threat to the overall bald eagle population. Factor D. The Inadequacy of Existing Regulatory Mechanisms *Issue:* Several commenters were concerned that many States and local jurisdictions will remove the protections for the bald eagle after delisting. One commenter stated that Memoranda of Agreement should be in place between the Service and the States to provide protection for the bald eagle after delisting. One commenter wanted to make sure that States with small bald eagle populations will still provide protection after delisting. One State government commented that State laws provide little habitat protection. Several States indicated that they will play a large role in bald eagle conservation after delisting. *Response:* Some States will likely maintain the sensitive status of the bald eagle under individual State laws; however, such protection is not needed to assure that the bald eagle population in the lower 48 States will continue to be a viable population after delisting. As described in the discussions of Factors A and B below, the Service believes that BGEPA and other Federal laws that will remain in place after delisting provide the necessary protections in the future for a recovered bald eagle population. Many States have developed State-specific management plans, regulations, and/or guidance for landowners and land managers to protect and enhance bald eagle habitat, and we encourage the continued development and use of these planning tools to benefit bald eagles. Such measures can only offer more protection for bald eagles than is already offered by BGEPA and MBTA. The States will play a key role in continuing to monitor bald eagles in the lower 48 States to make sure that the species continues to maintain its recovered status. *Issue:* One commenter asserts that BGEPA and MBTA will continue to protect bald eagles after delisting, and, because of these protections, bald eagles will likely become overpopulated in some areas of the country. *Response:* The bald eagle has not yet reached carrying capacity in many parts of its range, and we anticipate that the population will continue to increase in these areas following delisting. In prime congregation areas, numbers of nesting pairs will level off as the nesting habitat reaches carrying capacity. Many of the bald eagles displaced from saturated habitats will be able to relocate to other suitable habitats. However, territorial competition between eagles will likely maintain a naturally fluctuating population once carrying capacity has been reached. *Issue:* Several commenters were concerned that the Service will not maintain adequate funding for staff to provide technical assistance or enforce BGEPA after delisting. *Response:* The Service is committed to maintaining adequate staff to respond to requests for technical assistance. The ultimate mechanisms for delivering that assistance will be determined prior to making a decision on the proposed BGEPA permit program (72 FR 31141; June 5, 2007). *Issue:* Several commenters expressed concern that the proposed delisting did not include grandfathering of existing take authorizations/permits under sections 7 and 10 of the Act. *Response:* After delisting of the bald eagle, the Service will honor existing Act authorizations until the Service completes a final rulemaking for permits under the BGEPA. We do not intend to refer for prosecution the incidental take of any bald eagle under the MBTA, as amended (16 U.S.C. 703-712), or the BGEPA, as amended (16 U.S.C. 668-668d), if such take is in full compliance with the terms and conditions of an incidental take statement issued to the action agency or applicant under the authority of section 7(b)(4) of the Act or the terms and conditions of a permit issued under the authority of section 10(a)(1)(B) of the Act. The Service has proposed a rulemaking to establish criteria for issuance of a permit to authorize activities that would “take” bald eagles under the BGEPA. The Service has addressed the existing Act authorizations in that rulemaking, which if finalized, might extend comparable authorizations under the BGEPA (72 FR 31141; June 5, 2007). Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence *Issue:* Several commenters were concerned about ongoing impacts of contaminants. One commenter noted that mercury is still a threat to bald eagles in the Northeast United States. Another commenter noted that PCBs and DDE were still an ongoing threat to the Great Lakes population of bald eagles. Another commenter noted that the upper Midwest population of bald eagles is experiencing a heavy metal contaminant problem that affects the ratio of immature eagles to adults. Another commenter stated that too many nests in northern Illinois have zero productivity due to contaminants. *Response:* As we discuss further in Factor E below, we acknowledge that certain contaminants may pose a threat to individual bald eagles. We believe many of these instances are localized and that contaminants will not be a large enough threat to limit the population of bald eagles in the lower 48 States or any significant portions of its range in the foreseeable future such that the protection of the Act would be warranted. This is evidenced by the population increases that have occurred despite the presence of certain levels of contaminants, including mercury and PCBs, in the environment. *Issue:* One commenter was concerned that climate change may be an issue, and we should, therefore, keep the bald eagle listed until we can guarantee that habitats are safe. *Response:* Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made “solely on the basis of the best scientific and commercial data available.” We did not receive any data during the public comment period to indicate that climate change is currently threatening the future security of the bald eagle or its habitat. Since the bald eagle is currently successful in a wide range of climate conditions throughout North America, climate change will not likely be a factor threatening the species in the foreseeable future. General Comments *Issue:* The Service may take too long to re-list the bald eagle if it is warranted. *Response:* If data from the post-delisting monitoring plan show that the bald eagle population is decreasing below a trigger threshold specified in the plan, we will investigate the cause of the decline and take the necessary measures to address the decline. If the population decline is severe, then we will promptly evaluate whether re-listing under the Act is warranted, including the Act's provision for emergency listing, as appropriate. *Issue:* The Service used an out-of-date, non-scientific population productivity value of 0.7 young/pair. *Response:* Our information indicates that a productivity value of 0.7 young/pair for a stable population is still the best available data (see Sprunt *et al.* 1973, p. 104; Buehler 2000, p. 20). *Issue:* The delisting is too reliant on current eagle numbers. Research on survivorship, sex ratios, and population recruitment are all important parameters of recovery, not just productivity. Delisting criteria should be based on numbers of active nests, not breeding pairs. *Response:* The recovery criteria and goals were established by recovery teams composed of experts in each geographic region. The purpose of the criteria was to allow the Service to monitor the status of the recovery efforts. By setting a goal to monitor population numbers and productivity, the Service, in conjunction with the recovery teams, could determine whether the threats that led to the bald eagle's endangerment had been removed. Monitoring the additional parameters would have been more costly and would not provide any more data that would enable the Service to monitor recovery. Given the increase in the population parameters, the threats have been shown to have decreased to the point where the bald eagle no longer meets the definition of threatened or endangered under the Act. *Issue:* The population data presented are estimates and not supported by field work. Data provided by the commenter indicate that the percentage of immature eagles to adults is dropping, which may influence reproduction or survival in the bald eagle population. *Response:* The data discussed by the commenter are midwinter counts collected on one day in a 2-hour period from northern Minnesota to Reelfoot, Tennessee. These data, on their face, did show a fluctuation in the number of immature bald eagles throughout the time period from 1961 to 2006, with some years having a higher number than others. However, these data also indicated a trend of increasing adults from 470 in 1961 to 1,299 in 2006. Throughout this time period, the number of adults also fluctuated. Because surveys of wintering bald eagles, such as the midwinter counts described above, are weather dependent (mild winters cause fewer birds to move south) and can include birds migrating down from Canada, the Service has relied on nesting data as the stronger indicator of bald eagle population trends in the lower 48 States. We plan to continue monitoring population trends with implementation of our post-delisting monitoring plan. However, we support the public involvement related to midwinter counts, and such data have highlighted the importance of wintering habitats used by these eagles. Distinct Vertebrate Population Segment Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric Administration—Fisheries), developed the Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS policy) (61 FR 4722; February 7, 1996), to help us in determining what constitutes a Distinct Population Segment (DPS). The policy identifies three elements that are to be considered in a decision regarding the status of a possible DPS. These elements are:

(1)The discreteness of the population in relation to the remainder of the species to which it belongs;

(2)the significance of the population segment to the species to which it belongs; and

(3)the population segment's conservation status in relation to the Act's standards for listing. Our policy further recognizes it may be appropriate to assign different classifications (i.e., threatened or endangered) to different DPSs of the same vertebrate taxon (61 FR 4725; February 7, 1996). Sonoran Desert Distinct Population Segment As discussed above, the Service made a negative 90-day finding on a petition to list the Sonoran Desert bald eagle population as an endangered DPS (71 FR 51549; August 30, 2006). In this final determination on the proposed delisting of the entire bald eagle population in the lower 48 states, we also consider, as a final determination, whether the Sonoran Desert population of the bald eagle constitutes a DPS, and should remain listed as either an endangered or threatened species. The main bald eagle population center of the Sonoran Desert currently consists of 42 breeding pairs (AZ Game and Fish Dept. 2006, p. 6) that are found in the southern half of Arizona, west of the New Mexico state boundary. One breeding pair in Arizona is found outside the Sonoran Desert. Discreteness The DPS policy states that a population segment of a vertebrate species may be considered discrete if it satisfies either one of the following two conditions: It must be markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors; or it must be delimited by international boundaries within which significant differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The second criterion, international boundaries, is easily addressed because the Sonoran Desert population of bald eagles is not delimited by international boundaries that could be the basis of a review of management of habitat, conservation status or regulatory mechanisms. Therefore, the Sonoran Desert population of bald eagles is not discrete based on this criterion. As discussed below, under the first criterion, we find that the Sonoran Desert population is markedly separated from other populations as a consequence of behavioral factors. Therefore, we do not address separation by physical, physiological, or ecological factors. In looking at whether Sonoran Desert bald eagle are markedly separated from other populations it is helpful to evaluate whether there is a level of interchange between this population and adjacent populations. Biologists in Arizona made a concerted effort to band all nestlings in Arizona since 1987. Of those birds that were sighted with bands between 1987 and 2005, 41.8 percent hatched in Arizona, 18.8 percent likely hatched in Arizona before 1987 (due to a different band type), less than one percent were from another State, and 38.8 percent were from unknown origin (unbanded) (Driscoll *et al.* 2006, p. 26). One adult breeding in Arizona is known to have originated from another State (banded as a nestling in 1988 in southeast Texas). Only one nestling with a band was identified as subsequently nesting outside the recovery region (Temecula, California) (Driscoll *et al.* 2006, p. 27). Roughly 20 percent of the population does not receive a band for a variety of reasons ( *e.g.* , logistics of reaching the nestlings), and therefore 38 percent of the population without bands would not be unusual. In addition, because of the clinal variation in these birds, bald eagle populations from around the same latitude would likely be the supplier of birds that would immigrate into the population. Currently, we do not have any populations surrounding the Sonoran Desert that are large enough that juveniles would likely start to disperse into the Sonoran Desert. Within the last 30 years, these adjacent populations have not increased in size to the same degree as we have seen with the populations in other parts of the bald eagle's range. Given that we do not have large bald eagle population centers surrounding the Sonoran Desert, and given the limited habitat found between currently known populations, it is likely that interchange between the Sonoran Desert and other populations will be minimal in the foreseeable future. These data indicate that immigration to and emigration from the Sonoran Desert population is very limited. Reproductive isolation of the bald eagles nesting in the Sonoran Desert region of Arizona, although probably not absolute, appears to be substantial. Our DPS Policy does not require that populations experience total reproductive isolation in order to meet the discreteness criterion; rather, they need only to be “markedly separated.” We believe the documented low levels of immigration and emigration indicate that this population is currently markedly separated from other bald eagles in the United States. On the basis of the immigration by the southeast Texas eagle, in 1995, the Service determined as part of the Service's final rule reclassifying the bald eagle from endangered to threatened (60 FR 36000; July 12, 1995) that eagles in the Southwestern Recovery Region were not reproductively isolated. The banded bald eagle from Texas, although located within the Southwestern Recovery Region, occupies an area outside the Sonoran Desert. Furthermore, no additional banded bald eagles from outside the Sonoran Desert have been discovered immigrating into the Sonoran Desert since 1995. In addition, the analysis during the 1995 rule was conducted prior to implementation of the DPS policy in 1996. Therefore, now reviewing the same question in the context of the DPS policy, combined with more data on immigration and emigration, leads us to a conclusion that this population is discrete. Significance If we determine that a population segment is discrete under one or more of the discreteness conditions, then we evaluate its significance based on “the available scientific evidence of the discrete population segment's importance to the taxon to which it belongs” (61 FR 4725). We make this evaluation in light of congressional guidance that the Service's authority to list DPSs be used “sparingly” while encouraging the conservation of genetic diversity (61 FR 4722; February 7, 1996). This consideration may include, but is not limited to the following elements:

(1)Evidence of the persistence of the population segment in an ecological setting that is unusual or unique for the taxon;

(2)evidence that loss of the population segment would result in a significant gap in the range of the taxon;

(3)evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside of its historic range; and

(4)evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.

(1)Evidence of the persistence of the population segment in an ecological setting that is unusual or unique for the taxon. As stated in the DPS policy, the Service believes that occurrence in an unusual ecological setting is potentially an indication that a population segment represents a significant resource warranting conservation under the Act (61 FR 4724). In considering whether the population occupies an ecological setting that is unusual or unique for the taxon, we evaluate whether the habitat shares many features common to the habitats of other populations. The Sonoran Desert bald eagle population inhabits a desert ecosystem characterized by hot and dry summers that, on its face, seems to represent an ecological setting that is highly unusual or unique for the species. However, bald eagles in the Sonoran Desert population essentially use the same ecological niche as those in other parts of the lower 48 States population. Bald eagles in the Sonoran Desert feed primarily on fish, consistent with bald eagles in other parts of the range. Habitat structure and proximity to a sufficient food source are usually the primary factors that determine suitability of an area for nesting (Grier and Guinn 2003, p. 44). Nationwide, bald eagles are known to nest primarily along seacoasts and lakeshores, as well as along banks of rivers and streams (Stalmaster 1987, p. 120). Similar to the remainder of the population, bald eagle breeding areas (eagle nesting sites and the area where eagles forage) in the Sonoran Desert are located in close proximity to a variety of aquatic sites, including reservoirs, regulated river systems, and free-flowing rivers and creeks. We considered whether cliff nesting is an adaptation to the conditions in the Sonoran Desert that indicates the Southwest is a unusual or unique ecological setting for bald eagles. While Stalmaster

(1987)noted that cliff nesting is common in Arizona, he also noted that exceptions to tree nests in other areas do occur. Gerrard and Bortolotti (1988, p. 41) note that bald eagles in other areas may nest on cliffs if suitable trees are not available. For instance, bald eagles are known to nest on cliffs on the Channel Islands off California (NOAA 2006). Bald eagles in Alaska also are known to nest on cliffs, sea stacks, hillsides, and rock promontories where there are no suitable nest trees (Sherrod *et al.* 1976, p. 153). It is likely that up to 10 percent of the bald eagles in Alaska nest on the ground (Schempf 2007). Ground nesting has been documented in northwestern Minnesota and Florida but is the exception rather than the rule (Hines, P. and H. Lipke 1991; Shea, R.E. and Robertson W.B. Jr. 1979). Eagles also nest in a variety of odd situations, such as utility poles, abandoned heavy equipment, mangroves, and root wads washed up on sandbars. Cliff nesting in the Sonoran Desert bald eagles does not seem to be an indication of a behavioral adaptation unique to the Sonoran Desert. Bald eagles will use whatever high nest sites are available near riparian areas they inhabit: in the Sonoran Desert these sites often happen to be cliffs. In fact, although bald eagles utilize cliffs, ledges, and pinnacles for nesting in the Sonoran Desert, they have also nested in cottonwood, willow, sycamore, pinyon pine, and ponderosa pine trees. Many Sonoran Desert eagle pairs have built and used both tree and cliff nests within their territories. This behavior demonstrates the flexibility in nest site selection that bald eagles have throughout the eagles' entire geographic range. Bald eagles in the Sonoran Desert are smaller in size and breed earlier in the season than most other bald eagles, which could indicate behavioral adaptations to a unique setting. However, examination by latitude reveals differences between birds in the northern regions and birds in the southern regions. For instance, Stalmaster (1987, pp. 16-17) notes northern eagles are much larger and heavier than their southern counterparts. This is consistent with Bergmann's Rule, which holds that animal size increases with increasing latitude due to changes in environmental temperature. Consistent with this rule, Hunt *et al.*

(1992)reports that bald eagles in Arizona are smaller than those in Alaska, California, and the Greater Yellowstone Region. Gerrard and Bortolotti (1988, p. 14) note that bald eagles in Florida, which is farther south than Arizona, are the smallest, with a gradation of small to large from south to north. Timing of various breeding events in bald eagles is also tied to latitude of the nesting area, with eagles at more northern latitudes breeding at later dates (Stalmaster 1987, p. 63). Stalmaster (1987, p. 63) notes that bald eagles in Florida initiate breeding activities in October, even earlier than Sonoran Desert bald eagles. Bald eagles in Florida also lay eggs earlier (Stalmaster 1987, p. 63; Gerrard and Bortolotti 1988, p. 76). Accordingly, Florida bald eagles hatch and fledge earlier than those in the Sonoran Desert. In summary, Stalmaster's

(1987)and Gerrard and Bortolotti's

(1988)studies indicate that bald eagles in other parts of the lower 48 States are known to nest on cliffs if suitable trees are not available. Hunt *et al.*

(1992)notes that Florida bald eagles are the smallest bald eagles, and that eagle size increases as the nest sites are located farther north. Stalmaster

(1987)notes that bald eagles in Florida initiate breeding activities in October, even earlier than Sonoran Desert bald eagles. The best available scientific information indicates that the Sonoran Desert bald eagles are not unique in these behavioral aspects. Instead, bald eagle behavior and morphology gradually changes at different latitudes from north to south within the lower 48 States. In fact, even though bald eagles do persist in the Southwest desert setting, they remain consistently associated with riparian ecosystems. Bald eagles use whatever high nest sites are available near riparian areas they inhabit in the Sonoran Desert; these sites often happen to be cliffs. Therefore, because these riparian areas are common to eagle habitats throughout the species' range, the best available data indicate that the Sonoran Desert population of eagles does not occupy an ecological setting that is unusual or unique for the taxon or that has resulted in any adaptations that are unusual or unique for the taxon. Many biological opinions prepared by the Service in connection with section 7 consultations in the Sonoran Desert and other Service documents issued over the last 30 years stated that Arizona bald eagles live in a unique ecological setting and demonstrate unique behavioral characteristics, including the use of cliffs instead of trees as nest sites, breeding at earlier times of the year, and development of smaller body sizes. Many of these biological opinions and other documents were issued prior to the Stallmaster

(1987)and Gerrard and Bortolotti

(1988)studies. Furthermore, these Service documents were prepared prior to the issuance of the DPS policy in 1996, or abstracted from such earlier biological opinions without re-analyzing their relevance. The term “unique ecological setting” was not used in these documents in the context of its meaning within the DPS policy, which requires that the unique ecological setting be important to the taxon as a whole. While the climate conditions differ in the Southwest compared to other parts of the lower 48 States where bald eagles are found, this attribute alone does not complete the requirements of the DPS policy. A unique ecological setting must also provide some element that makes the members of the population important to the taxon as a whole, such as an evolutionary advantage (61 FR 4724-4725). The factual statements in the biological opinions and other documents concerning the location of the population within the desert and the description of their behaviors did not include consideration of the population's importance to the taxon as a whole because these documents were either issued prior to the promulgation of the DPS Policy or were issued for other purposes than evaluation of the population under the DPS Policy. The biological opinions and other documents, prior to 1995, also stated that the Arizona bald eagles had been considered a distinct population for the purposes of section 7 consultation and recovery efforts under the Act. The practice of dividing species distributed across the large areas within the United States into separate recovery regions was employed for management convenience (71 FR 51555). For the bald eagle, we created five different recovery plans for these regions. The Service's current practice, however, is to create one plan for the listed entity because the previous practice led to confusion regarding the status of the recovery plan entity under section 4 of the Act. In addition, “recovery units” have been, and continue to be, identified as part of the recovery planning process for listed species as a management convenience. In the past, for the purposes of section 7 consultation, the Service may have only evaluated whether the impact of a proposed action was jeopardizing the management unit, either the recovery plan entity or the recovery unit. However, this process was discontinued based on the consultation handbook that was finalized in March 1998 (USFWS and NMFS 1998, p. 4-36). As previously discussed, separating the listed entity into smaller management pieces may be useful in addressing the conservation needs of the species. However, it is important to note that the establishment of separate recovery plans or “recovery units” within a plan does not create a new listed entity under section 4 of the Act. The Service has since acknowledged that for both recovery planning and consultation, the listed entity is the appropriate level of analysis. The Sonoran Desert can experience periods in the summer that are hot, with low humidity, but it is not a unique ecological setting for bald eagles for the purpose of the significance prong of the DPS policy. The best available scientific data suggest that the ecological setting is essentially the same as used by bald eagles elsewhere—riparian habitat. Although the Sonoran Desert obviously differs in some ways from other habitats that the bald eagle inhabits, every area differs somewhat from other occupied areas and the mere existence of difference does not settle this question. To the degree that the Sonoran Desert differs from other ecological settings used by the bald eagle, we conclude that it does not differ in a way that is dispositive under the DPS policy, because the adaptations exhibited by bald eagles in the Sonoran Desert are not unique to this setting. Rather, the variability in bald eagle nest site selection, breeding phenology, and size are noted elsewhere in the range where the species confronts similar limitations, such as the absence of nesting trees or high temperatures. The question under the DPS policy is whether persistence of a species in an unusual or unique ecological setting supports a conclusion that the discrete population segment is important to the taxon to which it belongs (See *National Association of Home Builders* v. *Norton,* 340 F.3d 835, 849 (9th Cir. 2003) emphasizing that under the DPS policy significance must be to the taxon as a whole). The mere fact that a species persists in an ecological setting that differs to some degree from other ecological settings in which it is found does not mandate a finding that a population is significant. Here, we find that the species' persistence in the Sonoran Desert does not support such a conclusion because there is no evidence that these particular eagles have adapted in response to these conditions in any way that benefits the taxon as a whole because similar adaptations are found in other settings. Without evidence of such an adaptation, there is likewise no evidence that the bald eagle's persistence in the Sonoran Desert is important to the bald eagle as a whole. Therefore, we conclude that the discrete population of bald eagles in the Sonoran Desert is not “significant” within the meaning of the DPS policy as a result of persistence in a unique or unusual ecological setting.

(2)Evidence that loss of the population segment would result in a significant gap in the range of the taxon. As “[t]he plain language of the second significance factor does not limit how a gap could be important,” *National Ass'n of Home Builders* v. *Norton,* 340 F.3d 835, 846 (9th Cir. 2003), we considered a variety of ways in which the loss of the Sonoran Desert population might result in a significant gap in the range of the bald eagle in the lower 48 States, much less the broader taxon. There has been much speculation about the loss of the Sonoran Desert population given that repopulation of this area would have to occur from northern Mexico or adjacent States, and available evidence indicates that little immigration has occurred in this population. We agree that the low number of eagles in neighboring States would likely require a large amount of time to repopulate the Sonoran Desert region, if they ever did. The small number of bald eagles and large distances between neighboring populations currently limit immigration and emigration between them, and bald eagles in the neighboring populations would have to increase their population size and expand their distribution to occupy the gaps. Given repopulation through immigration is unlikely in the foreseeable future, we have to evaluate whether this would represent a significant gap to the taxon. The current range of the Sonoran Desert bald eagle could be significant if the population in the Sonoran Desert is numerous and constitutes a significant percentage of the total number of bald eagles, the loss of which would be a significant gap in the population. Bald eagles in the Sonoran Desert are neither numerous nor constitute a significant percentage of the total bald eagles within the lower 48 States. Currently, 43 pairs are found in Arizona, which represents less than 1% of the current estimated number of breeding pairs of bald eagles in the lower 48 states. In addition, this area did not support a large proportion of the bald eagle population historically. A small number, estimated at 15-20 breeding pairs, historically bred in this area (Tilt 1976, p. 15). Given the historical and current population number of bald eagles in the lower 48 States, the Sonoran Desert population of bald eagles represents a relatively small number of breeding pairs in comparison to other areas within the lower 48 States. Also, significant numbers of bald eagles that breed elsewhere do not winter in the Sonoran Desert. In addition, as discussed in the first and fourth significance factors, we have no evidence that loss of the Sonoran Desert population would represent a significant gap due to a loss of biologically distinctive traits or adaptations or genetic variability of the taxon. In addition, as discussed in the discreteness section, loss of the Sonoran Desert population would not create a significant gap by impeding gene flow within the taxon, as the Sonoran Desert population does not connect otherwise unconnected populations. Finally, loss of the Sonoran Desert population would not result in a significant gap in the range of the taxon due to the sheer reduction of existing or potential geographical range. The actual amount of suitable bald eagle habitat in the Sonoran Desert, limited to a few riparian corridors, is a tiny fraction of the total suitable habitat available for bald eagles in the lower 48 States, much less their entire range. The limited size of the current and historical bald eagle population in the Sonoran Desert directly reflects that fact.

(3)Evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside of its historic range. The Sonoran Desert population does not represent the only surviving natural occurrence of the bald eagles in the lower 48 States.

(4)Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. Hunt *et al.* (1992, pp. E-96 to E-110) contains the genetic work completed to date on the Arizona bald eagle population. Vyse (1992, p. E-100, E-101) notes the data are inconclusive, as evidenced by such statements as: “These findings must be assumed to be preliminary (and treated with due caution), because of a lack of information concerning sampling procedures. The results we have obtained could easily be explained by sampling procedures”; and “At present these data (HinfI/M-13) are too incomplete to be considered further.” In addition, Zegers *et al.* 1992, p. E-106 to E-109): “Question 4 * * * is difficult to answer with precision because of the different sample sizes between 1985 and 1990 * * *. [T]his difference is possibly an artifact of the many fewer samples in 1985”; “six loci may not be enough to give a reliable estimate of the true genetic distance”; and “We feel caution should be exercised when interpreting these results due to the low numbers of individuals sampled from most states but especially because of the few loci examined.” Although Hunt *et al.*

(1992)suggested that the desert Arizona population may be reproductively isolated, neither enzyme electrophoresis nor DNA fingerprinting resolved any specific genetic markers with which Arizona eagles could be differentiated from other populations. The available genetic studies on bald eagles are dated, the sample size was small, and researchers conducting the studies found the results to be inconclusive. As discussed above, the Sonoran Desert population does not display any biologically distinctive traits that could signal any unique genetic characteristics. Therefore, given the assumptions and cautions in using the data, we have determined that the best available data do not support a conclusion that the Sonoran Desert bald eagle population has genetic characteristics that are markedly different from other bald eagles. Conclusion We have reviewed the best scientific and commercial data available and have evaluated the data in accordance with 50 CFR 424.14(b). On the basis of our review, we find that although the Sonoran Desert bald eagle population is discrete, it is not significant in relation to the remainder of the taxon. Sonoran Desert bald eagles lack any biologically or ecologically distinguishing factors. Although they do persist in an arid region, Sonoran Desert bald eagles do not have any adaptations that are not found in bald eagles elsewhere. The adaptability of the species allows its distribution to be widespread throughout the North American continent. Therefore, we conclude that the Sonoran Desert population of the bald eagle in the lower 48 States is not a listable entity under section 3(16) of the Act. Summary of Factors Affecting the Species Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons:

(1)The species is extinct;

(2)the species has recovered and is no longer endangered or threatened (as is the case with the bald eagle); and/or

(3)the original scientific data used at the time the species was classified were in error. A recovered species is one that no longer meets the Act's definition of threatened or endangered. Determining whether a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as threatened or endangered, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections. A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a “significant portion of its range.” The word “range” in the significant portion of its range

(SPR)phrase refers to the range in which the species currently exists. For the purposes of this analysis, we will evaluate whether the currently listed species, the bald eagle in the lower 48 States, should be considered threatened or endangered. Then we will consider whether there are any portions of bald eagle's range in danger of extinction or likely to become endangered within the foreseeable future. For the purposes of this final rule, we consider “foreseeable future” for the bald eagle to be 30 years. Bald eagles fully mature at 4 to 5 years of age (Buehler 2000, p. 19). Gerrard and Bortolotti

(1988)observed that successful breeding may not occur for 2 years or more after reaching maturity. Thus, a life cycle from birth to breeding is about 6 years (Gerrard and Bortolotti 1988, p. 57). We used 5 bald eagle generations (30 years) to represent a reasonable biological timeframe to determine if threats could depress the population size and therefore would be significant. We have roughly 30 years of detailed information on how bald eagle populations have responded to the threats identified when the species was listed. Based on this body of information and the combination of bald eagle biology and the threats of greatest consequence (contaminant exposure, shooting, and habitat modification), we conclude that 30 years is a reasonable timeframe over which we can extrapolate the likely extent of the threats and their impact on the species. The following analysis examines all five factors currently affecting, or that are likely to affect, the bald eagle in the lower 48 States within the foreseeable future. A. *The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range.* This section will first describe the habitat needs of the bald eagle. It will then discuss the potential threats to that habitat, and the degree to which those threats are ameliorated by various factors. Our analysis concludes that:

(1)The habitat threats to such a wide-ranging species, while not readily quantifiable, are much less significant than once feared given the strong recovery of the eagle over the last 30 years;

(2)the threats that do exist vary considerably across the landscape, based in part on the ownership of the land in question and the fact that many lands have significant protection independent of the Act;

(3)nesting habitat on protected lands is likely sufficient to maintain the recovered population in the foreseeable future;

(4)several regulatory mechanisms will limit the degree to which habitat loss will occur on other lands; and

(5)recent anecdotal data suggest that even when habitat loss occurs, the impact on bald eagles may be less than previously anticipated. Throughout their life cycle, bald eagles are associated with a variety of aquatic habitats. Beyond this generalized need for aquatic habitat, bald eagles are not particularly specialized in their habitat needs, thriving near a variety of different environments, including reservoirs, lakes, rivers, estuaries, and coastal areas throughout North America. Within the aquatic habitats, bald eagles feed primarily on fish, but may also consume waterfowl, gulls, cormorants, and a variety of carrion. Bald eagles usually nest in trees near water, but may use cliffs in the southwestern United States and Alaska. Ground nests have also been reported from Alaska. Nests are usually built in large trees along shorelines, but may be up to one-half mile or more from the shoreline. Adults use the same breeding territory, and often the same nest, year after year. They may also use one or more alternate nests within their breeding territory. The habitat needs of bald eagles vary somewhat outside of the breeding cycle, although bald eagles are still strongly dependent on aquatic habitats as their primary food source. The timing and distance of dispersal from the breeding territory varies. Some bald eagles stay in the general vicinity of their breeding territory while some migrate up to hundreds of miles to their wintering grounds and remain there for several months. Young eagles may wander randomly for several years before returning to nest in their natal areas. Eagles seek wintering (non-nesting) areas offering an abundant and readily available food supply with suitable night roosts. Night roosts typically offer isolation and thermal protection from winds. Bald eagles generally concentrate in large numbers in suitable habitat areas in the winter. Important breeding and wintering areas have generally been located in areas at distances from human activity. As discussed below, however, recent data have begun to challenge long-held assumptions that bald eagles require significant isolation from all human activity. The eagle's decline was largely due to chemicals now known to impair reproductive success (see discussion of this threat under Factor E). Through the recovery planning process, however, various threats to habitat were noted, such as loss of nesting, roosting, and perching habitat through recreational shoreline development, forestry, and urban and suburban expansion. In addition, habitat can be degraded through human disturbance, especially during breeding season. However, as discussed in detail below, in the context of the eagle's dramatic recovery (and continuing population increases), the threat posed by future destruction or modification of habitat is minor compared to what would be required for the bald eagle to be likely to become in danger of extinction throughout all or a significant portion of its range within the foreseeable future. Currently, habitat availability is not preventing the growth of the bald eagle population in the lower 48 States. Areas that were unoccupied have been repopulated, and the eagle population continues to increase, indicating that carrying capacity has not been reached in many parts of their range. Based on the most recent data, the population in a few States with relatively limited habitat may have started to stabilize; Colorado has shown a slight decline in the numbers of pairs between survey years of 2001 and 2005 (Ver Steeg 2006, p. 2). Other States continue to experience rapid population growth: the number of pairs in Illinois and Iowa doubled between 1999 and 2006 (Conlin 2006, p. 1; Vonk 2006, p. 1). Most States are continuing to show a slight increase in the number of breeding pairs. The population in the lower 48 States as a whole will likely continue to increase in the foreseeable future but at a gradually declining rate that is much slower than has been documented during the past 30 years of the recovery period. Once the carrying capacity has been reached in different parts of the range, we expect the population to naturally stabilize and then fluctuate. When the recovery planning started, the bald eagle population was at a precarious stage and any threat to the remaining birds was identified, given the uncertainty of its continued survival, much less recovery. At that time, any significant habitat loss (particularly if it affected the remaining pairs) was of grave concern. However, with the eagle population increasing by well over an order of magnitude since that time, the immediate concern posed by habitat loss has dissipated. The only remaining concern related to habitat is whether, over the long term, development or other factors might cause habitat loss sufficient to limit the eagle population to a point that the viability of the population is threatened. In the future, available habitat will almost certainly limit the population of bald eagles in the lower 48 States. Furthermore, we acknowledge that habitat loss will likely eventually result in slow declines of bald eagle populations in some areas. Through comments and information in our files, we are aware that heavy development pressures and important eagle habitat overlap in parts of Florida and the Chesapeake Bay region. According to the U.S. Census Bureau, Florida is the third fastest growing State in the nation, and the State's human population is projected to increase by 79 percent by 2030 (compared to 2000). The Chesapeake Bay region States (Maryland, Delaware, and Virginia) all have varying degrees of projected increase that average around 32 percent over the same time period. Moreover, the population of bald eagles in Florida has started to stabilize, not showing an increase or decrease between 2003 and 2005. Thus, it is likely that the number of breeding pairs in Florida will begin to decline within the foreseeable future, and possible that the same result could occur in the Chesapeake Bay region. The relevant question under section 4 of the Act, however, is whether such a decline will occur in the foreseeable future to a degree that the bald eagle is likely to become in danger of extinction again throughout all or a significant portion of its range. In analyzing this question, we considered the fact that the habitat threats that do exist vary considerably across the landscape. This is in part based on the ownership of the land in question—some lands have significant protection independent of the Act. Because the threats do vary across the range, we discuss in greater detail at the end of this section those portions of the range that have come to our attention based on comments or information in our files. One of the biological factors that will ensure the bald eagle is not now endangered or likely to become so in the foreseeable future is that bald eagles are not particularly specialized in the type of aquatic habitat they use, but instead thrive near a variety of different environments including reservoirs, lakes, rivers, estuaries, and the marine environment. Currently, bald eagles occupy one or more of these environments in each of the lower 48 States, and have large breeding populations in those geographic areas that historically supported significant breeding populations. This tremendous distribution of bald eagles throughout the lower 48 States, combined with the species' ability to exploit such a wide range of geographic habitat settings, provides an important buffer against any potential threats to any of the significant portions of the range and to the species as a whole. High quality habitat has been characterized as those areas in which human development and disturbance are absent (McGarigal *et al.* 1991). However, recent data suggest that eagles across many parts of their range are demonstrating a growing tolerance of human activities in proximity to nesting and foraging habitats. Eagles in these situations continue to successfully reproduce in settings previously considered unsuitable. For example, where our Southeastern nesting management guidelines have been followed in Florida, some bald eagle pairs have shown a remarkable adaptation to human presence by nesting in residential subdivisions and commercial and industrial parks, and on cell phone towers and electric distribution poles. A common thread throughout these urban and suburban landscapes is the availability of ample food sources such as natural lakes, rivers, and ponds; artificial stormwater retention ponds; and public landfills (Millsap *et al.* 2002, p. 10). A study of bald eagle nesting patterns in western Florida detected no differences in nest-site occupancy, nest success, or number of young fledged between bald eagles occupying suburban or rural nest sites, except bald eagles in suburban sites nested earlier (Millsap *et al.* 2002, pp. 14, 25). In western Washington, breeding bald eagles responded less to pedestrian activity than had been documented in other studies in the United States, possibly reflecting a higher degree of habituation to human activities by eagles in this area (Watson 2004, p. 301). The Service has documented several cases in which bald eagles around the Chesapeake Bay have continued to nest and successfully produce young within distances that were previously considered too close to human activity (Koppie 2007a). In addition, in both Virginia and Maryland, compression of nesting territories has been observed, suggesting that the density of nesting pairs can be higher than once documented (Koppie 2007a). This evidence suggests that as eagles begin to reach the carrying capacity in local areas and face development or other encroachments, some eagles will successfully adapt to these circumstances. To the extent that this is true, degradation of habitat due to human disturbance is not as large a threat as once believed. To understand the potential for nesting habitat loss due to development in the foreseeable future, we used a GIS (Geographic Information Systems) analysis to estimate the number of known bald eagle nests throughout the lower 48 States that occur on “protected land.” The “protected” land category includes Federal, State, Tribal, and other areas designated as privately protected, such as lands owned by The Nature Conservancy or similar non-governmental entities. To identify such lands, we used the Conservation Biology Institute Protected Areas Database, the National Atlas Federal Lands data layer, and the State GAP Analysis data (Otto 2007). Included in another data layer are the bald eagle nests in the lower 48 States that are identified as a result of a compilation of data we received from individual States. The resolution and quality of this information was not at a highly detailed scale, so there may be nests assigned to the wrong type of land use. For instance, the data from the National Atlas Federal lands data layer only includes Federal lands of 640 acres or more. However, given that our analysis was done at a broad scale, the resolution and quality of this data can generally give us an indication of the percentage of nests over the entire 48 States on protected land. Our intent in this analysis was only to gain perspective on those lands on which eagle nesting habitat is not likely to be lost in the foreseeable future due to the particular land category status. These areas may not all be managed specifically for bald eagles; however, as discussed below, a variety of legal and practical considerations will act to minimize negative impacts to bald eagle habitat once the protections of the Act are removed. Through the GIS analyses, we have identified more than 6,000 bald eagle nests in the lower 48 States on lands that provide protection for bald eagles. Of these, more than 3,400 occur on Federal lands managed by the Departments of Agriculture or the Interior, and an additional 275 occur on lands managed by the Department of Defense, including approximately 170 on lands managed by the U.S. Army Corps of Engineers. The remaining roughly 2,700 nests included within the 6,000 bald eagle nest figure are found on lands in either State or private ownership. Based on many years of conducting consultations under section 7 of the Act, reviewing habitat conservation plans under section 10 of the Act, reviewing National Environmental Policy Act

(NEPA)(42 U.S.C. 4321 *et seq.* ) documentation for Federal actions, and other interactions with Federal and State agencies, we have found that management activities on public lands usually provide for maintaining some vegetation buffers of varying widths along riparian corridors and coastal areas. These were sometimes required by the Service as reasonable and prudent measures to address impacts to eagles, but often these buffers were incorporated into project planning because they were required to satisfy another of the action agencies' governing environmental or management laws, or because maintaining such buffers represents a good management practice even in the absence of a legal requirement. The practice of maintaining vegetative buffers is particularly relevant to (and generally supportive of) bald eagle conservation, because of the need of the species to have nesting and roosting sites (generally in trees) in close proximity to water. As mentioned in the Effects of This Rule section, we intend to honor the existing incidental take statements associated with existing section 7 consultations, as long as the action agency and other covered entities comply with all their terms and conditions. We therefore anticipate that habitat that would be either protected or conserved as a result of these Act authorizations remaining in place. Looking to the foreseeable future, each land management agency has its own authorizing statutes and implementing regulations that may either directly or indirectly conserve habitat for bald eagles, such as by means of buffers (as discussed above). The following paragraphs discuss some of the relevant authorities for the Federal agencies managing land with substantial numbers of eagle nests. The U.S. Forest Service reports that bald eagles occur on 142 National Forests in the lower 48 States (Bosch 2006). More than 2,000 known bald eagle nests are found within these areas. The Forest Service manages most of its lands for multiple uses, including management for timber production, recreation, and the needs of wildlife, fish, and sensitive plants. Under the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), it is the policy of Congress that all forested lands in the National Forest System shall be maintained in appropriate forest cover with species of trees, degree of stocking, rate of growth, and conditions of stand designed to secure the maximum benefits of multiple use sustained yield management in accordance with land management plans. Particular habitat protection for bald eagle is afforded through the protection of streams, stream-banks, shorelines, lakes, wetlands, and other bodies of water from detrimental in changes in water temperature, blockages of water courses and deposits of sediment (16 U.S.C 1604(g)(3)(E)(iii)). In developing, maintaining, and revising management plans for units of the National Forest System, the Secretary of Agriculture is required to provide for multiple-use and sustained-yield of the products and services obtained from the System in accordance with the Multiple-Use, Sustained-Yield Act of 1960, including coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness (16 U.S.C. 1604(e)(1)). The number of nests on Forest Service lands has grown substantially over the last 30+ years, and there is no indication that we have achieved the carrying capacity of the National Forest System. Even at some point in the future when the system's carrying capacity is reached, the multiple-use, sustained yield policies of the U.S. Forest Service are generally consistent with the conservation needs of the bald eagle because they will maintain a large-scale, shifting mosaic that should provide generally stable habitat conditions and a stable number of breeding pairs throughout the National Forest System. The Service's National Wildlife Refuge

(NWR)System contains more than 160 national wildlife refuges that provide important nesting grounds for bald eagles (U.S. FWS 2006c, p. 1). These refuges host more than 600 bald eagle nests. The Service established four refuges specifically to provide management for the bald eagle: the Bear Valley NWR in Oregon was established in 1978 to protect a major night roost site for wintering bald eagles; the Karl E. Mundt NWR in South Dakota/Nebraska protects one of the important bald eagle winter roosting areas and provides important habitat for 100-300 individual bald eagles; the Mason Neck NWR in Virginia protects essential nesting, feeding, and roosting habitat; and the James River NWR in Virginia protects one of the largest summer roosting areas for juvenile bald eagles east of the Mississippi River. The mission of the National Wildlife Refuge System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans (16 U.S.C. 668dd). Refuges may be opened for public access and limited uses, with priority afforded to wildlife-dependent recreation. Evaluation of proposed uses typically requires an examination of the appropriateness and compatibility with the System mission and the purposes for which a particular refuge has been established, among other considerations. The System regulations at 50 CFR part 27 contain a number of prohibitions regarding wildlife that are applicable to bald eagles, including taking, disturbing, or injuring them on refuge lands without a permit. In administering the System, the Secretary of the Interior shall provide for the conservation of fish, wildlife, and plants and their habitats within the System and ensure that the biological integrity, diversity, and environmental health of the System are maintained for the benefit of present and future generations of Americans. The Service applies those requirements through its Administrative Manual Chapter on Biological Integrity, Diversity, and Environmental Health (601 FW 3). Key underlying principles of the policy are that wildlife conservation comes first; each refuge is managed to ensure its biological integrity, diversity, and environmental health; and biological integrity, diversity, and environmental health is considered in a landscape context. The number of nests on refuges has also grown substantially over the last 30+ years, and there is no indication that we have achieved the carrying capacity of the NWR system. When carrying capacity is reached at some point in the future, the policies and management practices of the Service, with their emphasis on wildlife conservation and the requirement that all uses of System lands meet the test of being compatible with the purposes for which a particular unit of the System was established, are consistent with the conservation needs of the bald eagle because they will provide generally stable habitat conditions and numbers of breeding pairs throughout the system. Therefore, we expect that units of the National Wildlife Refuge System will continue to be managed in ways that contribute substantially to the conservation of bald eagles and meet their habitat needs. Approximately 130 National Park units have bald eagles located within their boundaries, according to the National Park Service Endangered Species database (U.S. NPS 2006), with more than 300 bald eagle nests on the lands managed by the National Park Service (NPS). These lands include National Parks, National Seashores, National Monuments, and National Wild and Scenic Rivers. Lands managed by the National Park Service are subject to the NPS Organic Act of 1916, which provides that the “fundamental purpose” of those lands “is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations” (16 U.S.C. 1). Most units of the National Park System also have their own specific enabling legislation, but the 1970 General Authorities Act makes it clear that all units are united into a single National Park System. Furthermore, no activities shall be allowed “in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress” (16 U.S.C. 1a-1). NPS regulations specifically protect wildlife, including nests, by prohibiting disturbing wildlife or nests from their natural state and by prohibiting take of wildlife and the intentional disturbance of nesting or breeding activities (36 CFR 2.1(a), 2.2(a)). The basic policy document applied to the NPS is Management Policies 2006 (“MP”). Those policies provide that NPS will manage natural resources “to preserve fundamental physical and biological processes, as well as individual species, features, and plant and animal communities,” and “will try to maintain all the components and processes of naturally evolving park ecosystems” (MP 4.1). With respect to wildlife, NPS “will maintain as parts of the natural ecosystems of parks all plants and animals native to park ecosystems” by “preserving and restoring the natural abundances, diversities, distributions, habitats, and behaviors of native plant and animal populations and the communities and ecosystems in which they occur”; “restoring native plant and animal populations in parks when they have been extirpated by past human-caused actions”; and “minimizing human impacts on native plants, animals, populations, communities, and ecosystems, and the processes that sustain them” (MP 4.4.1). NPS relies on natural processes whenever possible to maintain native species, but “may intervene to manage individuals or populations of native species” if the intervention will not cause unacceptable impacts to the population of the species or to the ecosystem, and if it is necessary for one of several reasons, such as an unnaturally high or low population due to human influences or to protect a rare species (MP 4.4.2). Based on these requirements, management of NPS lands has and will continue to support the conservation needs of bald eagles, and there is little likelihood that eagles on NPS lands will suffer habitat-based disturbance. The Bureau of Land Management

(BLM)manages lands with more than 200 bald eagle nests. Similar to the U.S. Forest Service, BLM lands are generally managed for multiple-use purposes, under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 *et seq.* ), which includes a declaration of policy that “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use” (43 U.S.C. 1701(a)(8). For mining activities, BLM provides specific protections for eagle nests and concentration areas (43 CFR 3461.5(k) and (l)). As with lands of the National Forest System, such multiple-use practices are generally consistent with the conservation needs of bald eagles because on a system-wide basis they provide for a generally stable amount and distribution of bald eagle habitat. The Department of Defense and the U.S. Army Corps of Engineers collectively manage lands that host more than 440 bald eagle nests. Department of Defense facilities that support at least 275 of these nests include some 43 Army, 17 Navy, 7 Air Force, and 3 Marine Corps installations with nesting or regular eagle use. Under the Sikes Act, the Secretary of Defense must provide for the conservation of natural resources on each installation (16 U.S.C. 670a), with an Integrated Natural Resources Management Plan. Each plan is prepared in cooperation with the Service and the State wildlife agency. As appropriate to the installation, the plan includes provisions for wildlife management (with respect to all wildlife, not just species listed under the Act), habitat enhancement, and wetland protection. As applicable, such plan's primary management goals typically seek to maintain and improve forested habitat for eagles, minimize human disturbance in eagle nesting and wintering areas, improve food supplies, and minimize hazards to eagles. Nests are protected by special management areas. To maintain effective protections, installations have a priority to monitor their nesting and wintering eagles. In addition, two other authorities specific to management of migratory birds (including bald eagles) on Department of Defense installations are relevant. First, the Armed Forces are authorized by regulation under the Migratory Bird Treaty Act to take migratory birds incidental to military readiness activities (50 CFR 21.15). However, this authorization is contingent upon the Armed Forces conferring and cooperating with the Service to develop and implement appropriate conservation measures to minimize and mitigate any significant adverse effects on a population of a migratory bird species that the Armed Forces determine may result from those activities. Second, on July 31, 2006, the Department of Defense entered into a Memorandum of Understanding

(MOU)with the Service under Executive Order 13186, discussed below. The remainder of the nests on Defense and Corps lands, at least 65 nests, are on lands managed by the Army Corps of Engineers. These lands include major riparian corridors, such as the Mississippi and Missouri Rivers, associated with large civil works projects maintained for navigation and flood control. The projects, with their aquatic suitable habitat for eagles, are likely to remain in place in the foreseeable future. To the extent further work on these projects is proposed, established policies require the Corps to consider opportunities to enhance habitat for wildlife (33 CFR 236.4(b)), including bald eagles. The Corps must also consult with the Service under a provision of the Fish and Wildlife Coordination Act (16 U.S.C. 662) to determine how the Corps can protect wildlife, again including bald eagles. While Defense and Corps lands are managed primarily for military readiness and civil projects, they have historically made significant, positive contributions to eagle conservation. Eagles have also adapted to many of the military, training, and operational activities on these lands. Because of the management plans and conservation measures in place on the Defense and Corps lands, the Service believes that these lands will continue to contribute to eagle recovery for the foreseeable future. According to the GIS analysis described above, approximately 40 percent of the total of approximately 15,000 known bald eagle nests occur within the “protected lands” category where long-term adverse habitat modification is unlikely to occur. Note that there are more known nests than known breeding pairs. This is because some breeding pairs have more than one nest and because some known nests are abandoned (not currently maintained by any breeding pair). The underlying data used in this analysis is with respect to all known nests, and is without any indication of whether a particular nest is currently active, serves as an alternate nest, or has been abandoned. On the other hand, there are certainly additional nests on protected lands (and elsewhere) currently used by breeding pairs that are not in our data set. The pilot study conducted for the bald eagle post-delisting monitoring plan indicates that the State data for number of nests only accounts for 42 to 81 percent of actual nests (Otto 2007). Although there is not a scientifically established quantitative correlation between nests and breeding pairs, and therefore we cannot state precisely how many breeding pairs in fact nest on protected lands in a given year, these data give us an indication of the amount of nesting habitat that is protected. Moreover, the 40 percent of nests on protected lands are distributed throughout all areas that are significant for breeding and wintering. These areas therefore will provide protections to significant areas of bald eagle nesting, roosting, perching, and feeding habitat and will continue to provide strongholds throughout the range of the species in the foreseeable future. Combining the five recovery plans' goals for the bald eagle breeding population leads to a total delisting goal of about 4,000 breeding pairs in the lower 48 States. This level, coincidentally, represents about 40 percent of the 9,789 currently known breeding pairs. While the numbers of recorded nests to breeding pairs are not exact comparisons and, as indicated above, the protection on protected lands is not absolute, our analysis does indicate that it is highly likely that the number of breeding pairs necessary to maintain the species' recovery can be accommodated for the foreseeable future on the protected lands. In addition to the habitat protection afforded on account of management related to ownership, several other factors will limit the degree to which habitat loss will occur on any lands in the foreseeable future. First, eagle habitat in some areas, because of its remoteness, faces little threat associated with human population expansion. For example, northern Minnesota, Wisconsin, and Michigan have 2,859 breeding pairs and development pressures are negligible within the northern portions of these States. Second, a number of applicable laws will at least indirectly protect bald eagle habitat. The most important of these is the BGEPA, a Federal statute that applies throughout the United States regardless of land ownership status. The BGEPA (16 U.S.C. 668-668d), enacted in 1940 and since amended, was then intended to be the primary vehicle to protect and preserve bald eagles. The statute prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” bald eagles, including their parts, nests, or eggs (16 U.S.C 668(a)). The BGEPA further defines “take” as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” (16 U.S.C. 668c). Even after the bald eagle was added to the List of Threatened and Endangered Wildlife under the Act, BGEPA's prohibition against disturbance continued to be an important component in protecting eagles from human interference. For instance, the Service, in conjunction with various States, developed guidelines based upon BGEPA that have been an essential component of our technical assistance to the public and have helped people avoid harmful impacts to eagles. But given that the BGEPA will now be the primary law preserving bald eagles, and recognizing the need for predictability in implementing it in the foreseeable future, we further clarified our interpretation of the BGEPA's take prohibition. On June 5, 2007, we published a final rule (72 FR 31132, effective on July 5, 2007) defining the term “disturb” under 50 CFR 22.3 as meaning: to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available,

(1)injury to an eagle,

(2)a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or

(3)nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior (72 FR 31139). This definition largely reflects how “disturb” has been interpreted in the past by the Service and other Federal and State wildlife and land management agencies. The final definition of “disturb” encompasses impacts that, based on the best scientific information available, are likely to cause injury to an eagle, or a decrease in its capacity to reproduce. This may include effects from disturbance caused by habitat manipulation. Although the BGEPA is not a land management law (it contains no provisions that directly protect habitat except for nests), it does protect eagles in their habitat. Activities that disrupt eagles at nests, foraging areas, and important roosts can illegally disturb eagles. Therefore, areas adjacent to eagle nests, important foraging areas, and communal roost sites are indirectly accorded protection under the BGEPA to the degree that their loss would disturb or kill eagles. Those losses may result from habitat alteration. For instance, in our final rule defining “disturb” we noted: Removal of trees is not in itself a violation of the Eagle Act. The impacts of such action can be a violation, however, if the loss of the trees kills an eagle, or agitates or bothers a bald or golden eagle to the degree that results in injury or interferes with breeding, feeding, or sheltering habits substantially enough to cause a decrease in productivity or nest abandonment, or create the likelihood of such outcomes (72 FR 31137). We also intend the definition to apply to a situation where eagles, as part of their normal nesting behavior, return to the vicinity of the nest, but the habitat alterations are so vast in scale that the eagles become agitated as a result, alter their behavior, and never return to the nest itself (72 FR 31136). We have also finalized after public notice and comment National Bald Eagle Management Guidelines (72 FR 31156; June 5, 2007) that are to be used in conjunction with this new definition of the term “disturb.” The Guidelines are intended to:

(1)Publicize the provisions of the BGEPA that continue to protect bald eagles, in order to reduce the possibility that people will violate the law;

(2)advise landowners, land managers, and the general public of the potential for various human activities to disturb bald eagles; and

(3)encourage additional nonbinding land management practices that benefit bald eagles. The Guidelines themselves are not law. Rather, they are recommendations based on several decades of behavioral observations, science, and conservation measures to avoid or minimize adverse impacts to bald eagles. The document is intended primarily as a tool for landowners and planners who seek information and recommendations regarding how to avoid disturbing bald eagles. It is important to note that the Guidelines contain numerous recommendations that relate to bald eagle habitat. For instance, to avoid disturbing nesting bald eagles, we recommend:

(1)Keeping a distance between the activity and the nest (distance buffers),

(2)maintaining preferably forested (or natural) areas between the activity and around nest trees (landscape buffers), and

(3)avoiding certain activities during the breeding season. The buffer areas serve to minimize visual and auditory impacts associated with human activities near nest sites. Ideally, buffers would be large enough to protect existing nest trees and provide for alternative or replacement nest trees. Again, the primary purpose of these Guidelines is to provide information that will minimize or prevent violations of only Federal laws governing bald eagles. When this rule becomes effective, the Act's protections and prohibitions will no longer apply to the bald eagle. We recognize that the above-described BGEPA habitat protections that will remain are not identical to those afforded under the Act, nor are they intended to be. There is, however, considerable overlap in the statutory definitions of “take” under both statutes (16 U.S.C. 1532(19) and 668c). Moreover, the regulatory definitions of “harm” and “harass” (50 CFR 17.3) that further define the term “take” under the Act are similar to the newly promulgated “disturb” definition under BGEPA. As described, we have interpreted “disturb” to include certain biological or behavioral effects caused by activities, including some habitat manipulation. This view is supported by the only court to have addressed the relationship between the prohibitions of the Act and the BGEPA: Both the Act and the Eagle Protection Act prohibit the take of bald eagles, and the respective definitions of “take” do not suggest that the ESA provides more protection for bald eagles than the Eagle Protection Act* * *. The plain meaning of the term “disturb” is at least as broad as the term “harm,” and both terms are broad enough to include adverse habitat modification. ( *Contoski* v. *Scarlett* , Civ No. 05-2528 (JRT/RLE), slip op. at 5-6 (D. Minn. Aug 10, 2006). Unlike the Act, the BGEPA does not include a private right of action, meaning a third party cannot bring legal action to enforce the statute, but the BGEPA provides criminal and civil penalties for persons who “take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or any manner, any bald eagle * * * or any golden eagle, alive or dead, or any part, nest, or egg thereof ” (16 U.S.C. 668 (b)). A violation of the Act can result in a criminal fine of $100,000 ($200,000 for organizations), imprisonment for one year, or both, for a first offense. Penalties increase substantially for additional offenses, and a second violation of this Act is a felony. We anticipate that traditional governmental enforcement of the BGEPA prohibitions will continue to have a deterrent effect despite the absence of a private right of action. Finally, the Act provides broad substantive and procedural protections for listed species but at the same time allows significant flexibility to permit activities that affect listed species. In particular, the Act provides that we may exempt or authorize the incidental take of listed wildlife in the course of otherwise lawful activities (sections 7(b)(4) and 10(a)(1)(B), respectively). Nationwide, since 2002, the Service has issued an average of 52 incidental take statements per year that covered anticipated take of bald eagles under section 7 of the Act. During that same 5-year period, we also issued about two (1.8) incidental take permits per year under section 10(a)(1)(B) of the Act for bald eagles. The requirements, including minimization, mitigation, or other conservation measures, of those authorizations were designed to ensure that those actions did not jeopardize the continued existence of the bald eagle. It is also apparent that these limited authorizations did not impede the recovery of the bald eagle. The number of section 7 informal consultations concluding that the bald eagle would not likely be adversely affected by a particular action is also notable. For example, in 2006, although we issued 57 section 7 incidental take statements, we engaged in 5,184 informal consultations where take was either not anticipated, or averted through early coordination, incorporation of management recommendations, or project modification. The regulations at 50 CFR part 22 govern the issuance of bald eagle permits for certain types of take, transportation, and possession, such as for Indian religious purposes, scientific research and exhibition, and depredation. The BGEPA regulation does not presently contain take mechanisms similar to that of the Act with respect to incidental take coverage. On June 5, 2007, however, we published a proposed rule to create such a permitting scheme under the BGEPA (72 FR 31141). The public comment period closes on September 4, 2007. The regulations we have proposed would

(1)establish a take permit under the BGEPA,

(2)provide BGEPA authorizations comparable to the authorizations granted under the Act to entities who continue to operate in full compliance with the terms and conditions of permits issued under section 10 of the Act and incidental take statements issued under section 7 of the Act, and

(3)authorize take of eagle nests in limited circumstances that pose a risk to human safety or to the eagles themselves. We anticipate that, if that proposal is adopted through the final rule, the majority of permits would be issued to cover activities that cause disturbance in proximity to eagle nests, important foraging sites, and communal roosts. However, by adhering to the National Bald Eagle Management Guidelines, landowners and project proponents will be able to avoid bald eagle disturbance under the BGEPA most of the time. We anticipate only rarely issuing permits for take associated with activities that adhere to the Guidelines because the great majority of such activities will not take bald eagles. In this capacity, the Guidelines and technical advice that we will provide will function much like our informal consultations under section 7 of the Act, but will be available to all landowners. If when applying the Guidelines, avoiding disturbance is not practicable, the project proponent may apply for a take permit. Additionally, in some limited cases, where other forms of take besides disturbance are unavoidable, we anticipate that a permit may be issued for such other form of take. For reasons enumerated in our proposal, we cautiously estimate the number of eagle take permits would increase if the proposal is adopted from an average of 54 authorizations currently issued under the Act to 300 BGEPA permits, annually. But we may only issue these authorizations if they are “compatible with the preservation” of bald eagles (16 U.S.C. 668a). Like the Act, this BGEPA standard acknowledges that limited take of eagles is not inconsistent with the protection of the species. As suggested in our proposed rule, we believe the demand for permits, and the effects of issuing those permits, both individually and cumulatively, including minimization and mitigation measures, would not be significant enough to cause a decline in eagle populations from current levels. Our proposal identifies a recognized threshold for determining the level of decline that would be incompatible with the BGEPA standard, which we regularly employ to assess other species we manage under the MBTA. We recognize that external factors could arise that negatively affect eagle populations. Whatever the cause, if data suggest population declines are approaching a level where additional take would be incompatible with the preservation of the eagle, we would refrain from issuing permits until such time that we determine the take would be compatible with the preservation of the bald eagle. For a fuller explanation of the proposed threshold and safeguards, see the proposed rule at 72 FR 31143-31144. In summary, the BGEPA will remain in force following delisting. The BGEPA prohibits the take of bald eagles, including disturbance, which we have identified and interpreted to occur in some circumstances as a result of habitat alteration. Adherence to the Guidelines, as appropriate in a given situation, may provide for buffers or other measures that protect bald eagle habitat on both private and public lands. Although a take permitting scheme has been proposed, it should not significantly diminish these habitat protections. The proposed permitting mechanism should not reduce the bald eagle population to a level that might necessitate re-listing. Rather, based on the current proposal, we conclude that the number of anticipated permits, coupled with BGEPA's protective “preservation” standard, should ensure that the population will not decline below current levels. Therefore, we expect BGEPA to contribute to the availability of habitat for the recovered bald eagle population in the foreseeable future. To a much lesser extent, the MBTA also provides indirect protection to bald eagle habitat. The MBTA makes it unlawful to at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof (16 U.S.C 703(a)). Bald eagles are among the migratory birds protected by the MBTA. Therefore, a modification to eagle habitat that directly takes or kills a bald eagle (such as cutting down a nest tree with chicks present) would constitute a violation of the MBTA, as well as the BGEPA. The Clean Water Act

(CWA)(33 U.S.C. 1251 *et seq.* ) is the cornerstone of surface water quality protection in the United States. It will continue to protect aquatic habitats upon which the bald eagle depends following delisting. The CWA employs a variety of regulatory and non-regulatory tools to sharply reduce direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff. These tools are employed to achieve the broader goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters so that they can support “the protection and propagation of fish, shellfish, and wildlife and * * * recreation in and on the water” (33 U.S.C. 1251(a)(2)). The first step in achieving these goals is the establishment of water quality standards (WQS), either by States or the Environmental Protection Agency

(EPA)(33 U.S.C. 1313). Necessary reductions in pollutant loading are achieved by implementing the following:

(1)The Section 402 National Pollution Discharge Elimination System permit program, covering point sources of pollution;

(2)the Section 404 permitting program, regulating the placement of dredged or fill materials into wetlands and other waters of the United States; and

(3)Section 401, which requires federal agencies to obtain certification from the State, territory, or Indian tribes before issuing permits that would result in increased pollutant loads to a waterbody. Surface waters are monitored to determine whether the WQS are met. If they are, then anti-degradation policies and programs are employed to keep the water quality at acceptable levels. If waterbodies are not meeting WQS, they must be identified and a strategy for meeting the standards developed. The most common type of strategy is the development of a Total Maximum Daily Load (TMDL). TMDLs determine what level of pollutant load would be consistent with meeting WQS. TMDLs also allocate acceptable loads among sources of the relevant pollutants. These regulatory programs, coupled with the CWA's protective goals, will continue to help protect the aquatic habitats and prey species of the bald eagle in the foreseeable future. In 2001, the President signed Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds,” requiring Federal agencies to incorporate migratory bird conservation measures into their agency activities. Under this Executive Order, each Federal agency whose activities may adversely affect migratory birds was required to enter into a Memorandum of Understanding

(MOU)with the Service, outlining how the agency will promote conservation of migratory birds. The Executive Order has a number of provisions that specifically relate to habitat, including the requirements that agencies, as practicable,

(1)restore and enhance habitat,

(2)prevent or abate the pollution or detrimental alteration of the environment,

(3)design habitat conservation principles, measures, and practices into agency plans and planning processes,

(4)ensure that NEPA analyses evaluate the effects of actions and agency plans on migratory birds, with emphasis on species of concern, and

(5)identify where unintentional take reasonably attributable to agency actions is having, or is likely to have, a measurable negative effect on migratory bird populations, focusing first on species of concern, priority habitats, and key risk factors. The Executive Order also encourages an agency to implement those criteria immediately even if it has not yet completed its MOU. Two MOUs have been approved to date with the Department of Defense (U.S. FWS 2006d) and the Department of Energy (U.S. FWS 2006e) that emphasize a collaborative approach to conservation of migratory birds, including minimizing disturbance to breeding, migration, and wintering habitats. While these MOUs are non-binding and therefore are not considered here as existing regulatory mechanisms, they provide an opportunity for us to continue to reduce the threat of habitat loss to bald eagles after delisting by working with our Federal partners. In addition, the Fish and Wildlife Coordination Act (16 U.S.C. 661-667d)

(FWCA)requires that agencies sponsoring, funding, or permitting activities related to water resource development projects request review by the Service and the State natural resources management agency. The Service's review is non-binding, and therefore the Coordination Act is not considered here as an existing regulatory mechanism. However, given that bald eagles reside in aquatic habitats, FWCA will allow the Service to continue to make recommendations on minimizing and offsetting impacts that might occur from these types of activities on bald eagles. In conclusion, the bald eagle population is continuing to increase in the lower 48 States, showing that reduced availability of habitat is not a current threat to the species. Nesting habitat is secure on many public and private locations throughout the lower 48 States. Although localized habitat loss due to development may be a threat to individual bald eagles in the foreseeable future, particularly on private lands, we expect these threats will be reduced by the Federal laws that will remain in effect after delisting (e.g., BGEPA, MBTA, and CWA) and will not be of sufficient magnitude or intensity to threaten or endanger the species throughout all or a significant portion of its range. In addition, bald eagles have demonstrated increasing levels of tolerance to human disturbance that will allow bald eagles to use habitats previously thought to be unavailable due to disturbance. Even in the areas where the threat of development is the greatest, we find that the bald eagle is secure for the foreseeable future. In the Chesapeake Bay region, as discussed in our response to comments above, at least 482 breeding pairs nest on federal lands, and we do not anticipate that number to drop in the foreseeable future, even if the numbers of breeding pairs eventually begin to decrease on some other lands (particularly private lands). Even in Florida, where the development pressure outside of protected lands is likely to be greatest, the current population of over 1,133 breeding pairs could suffer a substantial decrease (which we think unlikely within the foreseeable future, for all of the reasons discussed above) without the bald eagle being or likely to become in danger of extinction. The recovery goal for the southeastern region, as updated by the recovery team, is for 1,500 breeding pairs. The southeastern region includes Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and eastern Texas. Florida's current bald eagle estimate alone is 76 percent of what would be needed for the entire 11-State region. Florida would have to reverse its upward trend and lose nearly two-thirds of its current breeding pairs to get back down to the southeastern recovery goal. We have no data suggesting that a change of this magnitude is reasonably foreseeable. Finally, although the limited habitat available in Arizona makes the bald eagles there particularly vulnerable to habitat threats, as discussed elsewhere, Arizona is not a significant portion of the range of the bald eagle, and what threats do exist there will not affect the conservation of the species throughout all of the lower 48 States, much less its entire range. Therefore, threats of present or future destruction, modification, or curtailment of the bald eagle's habitat or range do not rise to the level where the bald eagle population in the lower 48 States meets the definition of either threatened or endangered throughout all or a significant portion of its range. B. *Overutilization for Commercial, Recreational, Scientific, or Educational Purposes.* The bald eagle population's first major threat was large-scale mortality from unregulated shooting that occurred early in the last century. The threat was significantly reduced when the shooting of bald eagles was prohibited in 1940 with the Bald Eagle Protection Act, which is now the BGEPA. Shooting of bald eagles was prohibited by an additional law when bald eagles were added to the list of birds protected by the MBTA in 1972. The Madison National Wildlife Health Center monitored causes of wildlife mortality, between 1963 and 1993, including bald eagle mortality. Out of the 4,300 bald and golden eagles rangewide (including Alaska) that were known to be killed, 15 percent of the bald eagles were killed due to shooting (La Roe *et al.* 1995, p. 68). Even if all of the 4,300 eagle deaths that were investigated were bald eagles, the deaths from shooting would be around 645 deaths spread across a 30-year timeframe. In 1997, Alaska alone had 8,250 breeding pairs (Buehler 2000, p. 37), and the Service estimated the lower 48 States population as 5,295 breeding pairs. In addition, during this same timeframe, the bald eagle population continued to increase, suggesting that this level of mortality was not a serious threat to the bald eagle in the lower 48 States. Since this threat is not centered in any specific geographic area, there are no significant portions of the range that might be threatened for this reason with extinction in the foreseeable future. There is no legal commercial or recreational use of bald eagles, and such uses of bald eagles will remain illegal into the foreseeable future under BGEPA and MBTA. We consider current laws and enforcement measures sufficient to protect the bald eagle from illegal activities, including trade. The BGEPA prohibits the taking or possession of, and commerce in, bald and golden eagles, with limited exceptions. The law provides significant protections for bald eagles by prohibiting, without specific authorization, take, possession, sale, purchase, barter, offering to sell or purchase or barter, transport, export or import any bald or golden eagle, alive or dead, or any part, nest, or egg thereof. Take under the BGEPA is defined as “to pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” (16 U.S.C. 668c). The Service will continue to enforce the take prohibitions in the BGEPA. Over the past 5 years, the Service has seen an increase in the investigation of suspected BGEPA violations. In 2006, 324 cases under BGEPA were investigated, a portion of which were bald eagles (Garlick 2007). Legal imports and exports of bald eagle parts, feathers, and live birds have increased over the past 5 years. In 2006, there were 142 bald eagle imports and exports of which the Service is aware (Garlick 2007). These numbers are still relatively low compared to the bald eagle population in the lower 48 States of 9,789 breeding pairs, particularly given that many of these circumstances did not involve taking of live birds from the wild. As the population of bald eagles continues to increase, we would expect a corresponding increase in the number of investigations. We expect that even if this same low level of illegal take, and import and export of eagle feathers and parts, to continue in the foreseeable future, it will be without any significant effects to the species. The bald eagle is a designated migratory bird that benefits from protections under the Migratory Bird Treaty Act

(MBTA)(16 U.S.C. 703-712), which implements various treaties and conventions between the United States and Canada, Japan, Mexico, and the former Soviet Union for the protection of migratory birds. Unless permitted by regulations, the MBTA provides that it is unlawful to pursue, hunt, take, capture, or kill; attempt to take, capture or kill; possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver or cause to be shipped, exported, imported, transported, carried or received any migratory bird, part, nest, egg or product, manufactured or not. We exercise very strict control over the use of bald eagles or their parts for scientific, education, and Native American religious activities (50 CFR 22.21, 22.22). To respond to the religious needs of Native Americans, we established the National Eagle Repository in Commerce City, Colorado, which serves as a collection point for dead eagles (see 50 CFR 21.31(e)(4)(vi)(C)). As a matter of policy, all Service units (as well as many other Federal and State agencies) transfer salvaged bald eagle parts and carcasses to this repository. Members of Federally recognized tribes can obtain a permit from us authorizing them to receive and possess whole eagles, parts, or feathers from the repository for religious purposes. After removal from protection under the Act, we will still have the ability to issue permits under BGEPA for limited exhibition and education purposes, selected research work, and other special purposes, including Native American religious use, consistent with Federal regulations implementing the BGEPA (50 CFR part 22). We will not issue these permits if they are incompatible with the preservation of the bald eagle under the BGEPA or the terms of the conventions underlying the MBTA (16 U.S.C. 668a and 16 U.S.C. 704(a), respectively), and therefore, these permits are not a threat to the bald eagle population in the lower 48 States. In summary, there is no current overutilization of the bald eagle for commercial, recreational, scientific, or educational purposes, and the protections afforded by BGEPA and MBTA will continue to reduce this threat to prevent the likelihood of endangerment for the bald eagle in the lower 48 States or a significant portion of its range into the foreseeable future. C. *Disease or Predation.* Predation has been documented, but it does not constitute a significant problem for bald eagle populations. Eggs, nestlings, and fledglings are the most vulnerable to predators. Eggs in tree nests have been reportedly predated by black-billed magpies ( *Pica pica* ), gulls, ravens and crows, black bears ( *Ursus americanus* ), and raccoons ( *Procyon lotor* ). Nestlings have been reportedly killed by black bears, raccoons, hawks and owls, crows and ravens, bobcat ( *Felis rufus* ), and wolverine ( *Gulo gulo* ), although there is little actual documentation. Nestling mortality is more likely due to the effects of starvation and sibling attack. Few nonhuman species are capable or likely to prey on immature or adult bald eagles. The exception to this is at the time of nest departure; fledglings on the ground are vulnerable to mammalian predators. Immatures and adults in poor condition from starvation, injury, or disease may also be vulnerable to mammalian predators. Bald eagles will defend their nest against other avian species, especially ravens and other raptor species (Buehler 2000, p. 14). Diseases such as avian cholera, avian pox, aspergillosis, tuberculosis, and botulism may affect individual bald eagles, as do parasites such as the Mexican chicken bug, but are not considered to be a significant threat to overall bald eagle numbers. According to the National Wildlife Health Center

(NWHC)in Madison, Wisconsin, only a small percentage of bald eagles submitted to the NWHC between 1985 and 2003 died of infectious disease. The widespread distribution of the species generally helps to protect the bald eagle from catastrophic losses due to disease. Recently, H5N1 high path avian influenza may affect eagles. Currently the Department of the Interior is testing migratory birds for the presence of H5N1 high path avian influenza. At this time, there are no confirmed cases of migratory birds, including bald eagles, testing positive for avian influenza in the United States (USGS 2007a). Based on data compiled from the National Wildlife Health Center, 99 bald eagles died of avian vacuolar myelinopathy

(AVM)between 1994 and 2003. Confirmed cases of bald eagle deaths due to AVM are recorded in Arkansas, North Carolina, South Carolina, and Georgia. Studies on avian vacuolar myelinopathy are continuing, but the cause is still unknown. Natural or manmade toxins are suspected as the most likely cause of AVM based on histopathological findings. A sentinel study demonstrated that exposure to the agent that causes AVM is site-specific, seasonal, and relatively short in duration (USGS 2007b). These States' bald eagle populations have increased between 1994 and 2005, and, based on the most recent population estimates, have a total of 392 breeding pairs. Based on the increase in the population levels, these localized mortalities are not having a significant impact on the bald eagle in the lower 48 States or these portions of the range. We do not expect this disease to be a threat in the foreseeable future because there has been no increase in the number of mortalities throughout the 9 years of monitoring and the number of mortalities is extremely small in relation to the total population. The mortalities are also small in relation to the population in these portions of the range, such that these portions will not become threatened in the foreseeable future. In more recent years, the West Nile Virus

(WNV)has affected some individual bald eagles. According to NWHC, between January 2002 and January 2004, 81 bald eagles were tested for WNV at the Center, and four tested positive. Individual States have also conducted tests on dead bald eagles with an overall small percentage testing positive. For example, the State of New York annually counts the number of bald eagles residing in the State, which has averaged more than 300 individual bald eagles each year since 2000. Within the State of New York, only two confirmed cases of WNV have been present. Given the small percentage of bald eagle mortality due to WNV, we expect this threat will not significantly affect the bald eagle population in the lower 48 States or any significant portion of its range in the foreseeable future. During several years in the 1990s, bald eagles wintering along the lower Wisconsin River experienced an unusual rate of mortality. Beginning in 2000-2001, after a gap of 5 years, similar bald eagle mortality has reoccurred each winter, with less than 30 confirmed cases as of 2004. Many of the eagles exhibit signs of neurologic impairment. One hypothesis is that the syndrome is caused by a severe thiamine deficiency as a result of feeding largely on gizzard shad, but that hypothesis remains to be adequately tested (Wisconsin Department of Natural Resources 2005). This syndrome is very localized, and is not having a significant impact on the Statewide bald eagle population given that Wisconsin's eagle population has been rising each year since the mid-1980s, with 1,065 nesting pairs counted in 2006 (Eckstein 2007, p. 3). Given the small percentage of Wisconsin bald eagles affected by this disease, this threat will not affect the lower 48 States' bald eagle population in all or a significant portion of its range in the foreseeable future. In summary, like all wildlife populations, the bald eagle is affected by numerous natural and environmentally related diseases, as well as predation. While these diseases and predation may have measurable impacts on small, local populations, no known natural or environmentally related disease threats currently have, or are anticipated to have, widespread impacts on the bald eagle population in the lower 48 States. While these impacts are measurable, they are not affecting those small areas given the increase in the population levels of bald eagles in those areas. We do not expect an increase in this threat in the foreseeable future, and, therefore, this is not a threat to any significant portion of the bald eagle's range. Therefore, neither predation nor disease is likely to constitute a significant threat to the bald eagle currently or in the foreseeable future throughout all or any significant portion of its range. D. *The Inadequacy of Existing Regulatory Mechanisms.* As with all of the five factors, we have to determine whether any particular factor is a threat to the species. The main threats to the bald eagle at the time of listing were threats to reproductive success from contaminants and habitat loss or degradation. Regulatory mechanisms, in and of themselves, were never identified as a threat for bald eagles. Indirectly, regulatory mechanisms were needed to assure that the threats identified in the other factors were removed or reduced. Because we address these regulatory mechanisms in the other factors, we will only mention them briefly in this section. The BGEPA explicitly protects individuals and nests (16 U.S.C. 668); it will also minimize threats to bald eagle habitat because acts that disturb bald eagles, their nests, or their eggs violate the prohibitions of the BGEPA. The MBTA also provides protection by making it unlawful to pursue, hunt, take, capture, or kill; attempt to take, capture or kill; possess, sell, barter, purchase, deliver; or cause to be shipped, exported, imported, transported, carried or received any migratory bird (which bald eagles are considered), part, nest, egg or product, manufactured or not. In addition to these laws that provide direct protection to the bald eagle, the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7 U.S.C. 136 *et seq.* ) provide regulations indirectly contributing to the reduction of various manmade threats. Given the level of threats identified in the discussion of the other factors, these protections, taken together, provide adequate regulatory mechanisms for the bald eagle in the lower 48 States in the foreseeable future, and, therefore, factor D is not a threat throughout all or any significant portion of the range. E. *Other Natural or Manmade Factors Affecting Its Continued Existence.* Bald eagles have been subjected to direct and indirect mortality from a variety of human-related activities such as poisoning (including indirect lead poisoning), electrocution, collisions (such as impacts with vehicles, power lines, or other structures), and death and reproductive failure resulting from exposure to pesticides. The first major decline in the bald eagle population probably began in the mid to late 1800s. Widespread shooting for feathers and trophies led to extirpation of eagles in some areas. Shooting also reduced part of the bald eagle's prey base (waterfowl and shorebirds). Carrion treated with strychnine, thallium sulfate, and other poisons was used as bait to kill livestock predators and indirectly killed many eagles as well. These were the major factors that contributed to a reduction in bald eagle numbers through the 1940s. Shooting and poisoning of bald eagles and other migratory birds is now prohibited by BGEPA and MBTA, as discussed in Factor B. In the late 1940s, shortly after World War II, the use of dichloro-diphenyl-trichloroethane

(DDT)and other organochlorine pesticide compounds became widespread. Initially, DDT was sprayed extensively along coastal and other wetland areas to control mosquitoes (Carson 1962, p. 122). Later, it was widely used as a general crop insecticide. Dichlorophenyl-dichloroethylene (DDE), the principal metabolic breakdown product of DDT, devastated eagle productivity from the 1950s through the mid-1970s. DDE accumulated in the fatty tissue of adult female bald eagles, and impaired calcium metabolism necessary for normal eggshell formation, causing eggshell thinning. Many eggs broke during incubation, while others suffered embryonic mortality resulting in massive reproductive failure. On December 31, 1972, the U.S. Environmental Protection Agency, under the authority of FIFRA, canceled and suspended registration of DDT in the United States. The threat of death and reproductive failure was dramatically reduced in 1972 when DDT was banned from use in the United States. An additional step to halt the bald eagle's decline was taken in 1976, when FIFRA registrations of dieldrin, heptachlor, chlordane, and other toxic persistent pesticides were cancelled for all but the most restricted uses in the United States. The residual effects of DDT are now highly localized and have a negligible impact on the bald eagle population in the lower 48 States. The organochlorine compound concentrations are continuing to decline even in the localized areas in which high levels have persisted through time. For instance, the Channel Islands area of southern coastal California has historically had severe problems related to DDE impacts to bald eagle productivity because this was a DDT manufacturing site (64 FR 35460). On March 16, 2006, biologists with the Montrose Settlements Restoration Program announced that a bald eagle egg successfully hatched on Santa Cruz Island in the Northern Channel Islands (NOAA 2007, p. 1). This bald eagle successfully fledged and took its first flight on July 14, 2006 (NOAA 2007, p. 1). This is the first successful bald eagle fledging on the Northern Channel Islands since 1949 when they nested on Anacapa Island (NOAA 2007, p. 1). Given the recent success in this area, other areas that had high levels of organocholorine concentrations will likely show similar success in the foreseeable future. The threat of pesticide-related impacts on bald eagles will continue to decline after delisting due to the requirement that pesticides be registered with the Environmental Protection Agency (EPA). Under the authority of FIFRA, the EPA requires environmental testing of new pesticides. It specifically requires testing the effects of pesticides on representative wildlife species before a pesticide is registered. The registration process provides a safeguard to avoid the type of environmental catastrophe that occurred from organochlorine pesticides, such as DDT, that led to the listing of this species as endangered. In addition, the Food Quality Protection Act

(1996)has resulted in a similar EPA review of existing pesticides already on the market. This protection from effects of pesticides afforded under the FIFRA will continue into the future even after delisting the bald eagle under the Act. Polychorinated biphenyls

(PCBs)have been demonstrated to cause a variety of adverse health effects including effects on the immune system, reproductive system, nervous system, and endocrine system. In 1976, manufacturing, processing, and distribution in commerce of PCBs were prohibited by Section 6(e) of the Toxic Substances Control Act (15 U.S.C 2601, 2605(e)). Some industrial and commercial applications where PCBs were used include: Electrical, heat transfer, and hydraulic equipment; as plasticizers in paints, plastics, and rubber products; and in pigments, dyes, and carbonless copy paper. More than 1.5 billion pounds of PCBs were manufactured in the United States prior to 1977 (U.S. EPA 2007, p. 1). PCBs do not readily break down and may persist in the environment for decades. Individual bald eagles may consume prey that has accumulated high levels of PCBs, leading to a risk of reproductive failure (Bowerman 1993). Given the prohibitions in the use of PCBs, we expect impaired reproductive success because of PCBs to be relatively low and localized to those areas in the range where concentrations remain relatively high. Monitoring of concentrations of PCBs throughout each of the Great Lakes has shown concentrations of PCBs in lake trout that are stable or decreasing (Environment Canada and the U.S. EPA 2005, pp. 122-131). Although there are areas around the Great Lakes that have not yet recovered to the level present before persistent organic pollutants were used, the reproductive rates in the shoreline populations of Great Lakes bald eagles as a whole have increased. This population increase indicates that widespread effects of persistent organic pollutants have decreased (Environment Canada and U.S. EPA, 2005 p. 272). Given that PCB use is prohibited and monitoring data show the levels of PCBs decreasing, we expect the effects of PCBs to continue to decrease in the foreseeable future and not to affect the bald eagle population in the lower 48 States or any significant portion of its range. Mercury occurs naturally in the earth's crust and cycles in the environment as part of both natural and human-induced activities. The amount of mercury mobilized and released into the biosphere has increased since the beginning of the industrial age. Mercury has long been known to have toxic effects on humans and wildlife. Mercury is a toxic, persistent, bioaccumulative pollutant that affects the nervous system. Mercury is emitted into the atmosphere by industrial activities like coal-fired power generation. It can travel long distances in the atmosphere and can be deposited on the surface of the earth in remote areas far from the industry emitting the atmospheric mercury. Mercury that accumulates in soil can be transported to waterways in runoff and subsurface water flow. Once in the water, mercury begins to accumulate in the aquatic organisms, with concentrations highest at the top of the food chain. Methylmercury is the form of mercury that bioaccumulates in fish. Mercury contamination is the most frequent basis for fish advisories, represented in 60 percent of all water bodies with advisories. Forty-one States have advisories for mercury in one or more water bodies, and 11 States have issued Statewide mercury advisories. Consumption of prey with elevated levels of mercury can cause adverse effects on growth, development, reproduction, metabolism and behavior in birds (Eisler 1987, p. 36). Elevated levels of mercury have been reported in bald eagles in the Northeast, Great Lakes region, Northwest, Florida, and recently Montana. An ongoing study of the exposure and impacts of mercury on bald eagles in Maine and New Hampshire indicates that concentration levels are suggestive of reproductive or behavioral impacts (DeSorbo and Evers 2006, p. 5). However, bald eagle population levels in these areas have continued to increase even with the increasing mercury concentration levels. While potentially high levels of mercury may be present in localized areas, there currently are no data suggesting that the bald eagle populations in these localized areas are adversely affected. If the mercury concentration did increase in these isolated small areas, only a few bald eagle pairs would be affected around these particular lakes. These lakes would likely be too small to meaningfully contribute to the resilience, redundancy, or representation of the bald eagle in the lower 48 States. Therefore, mercury exposure currently is having a negligible impact on the bald eagle population in the lower 48 States and any significant portions of its range. EPA has recognized the need for regulations for water-quality criteria and in 2001 announced a new water quality-criterion for methylmercury that is protective of human health. On August 9, 2006, EPA announced draft guidance for implementing the water quality criterion (71 FR 45560). Given that high mercury concentrations affect a variety of different species, including humans, we expect that under the current laws mercury levels will continue to be monitored and managed to a point that mercury will not have significant adverse effects on the bald eagle population in the lower 48 States or a significant portion of its range in the foreseeable future. Lead poisoning has caused death and suffering in birds and other wildlife for many years. Bald eagles died from lead poisoning as a result of feeding on waterfowl that were killed or crippled by hunters using lead shot. Bald eagles also died from feeding on waterfowl prey that had inadvertently ingested lead shot in the environment as they fed. Since 1991, the Service has recommended phasing out of lead shot for waterfowl hunting (U.S. FWS, 2006b, p. 2). However, the use of lead shot continues in most States for hunting upland game birds. Another contributor to possible lead poisoning is use of lead fishing sinkers. Such use remains legal in every State except New Hampshire, and could potentially pose a threat to the bald eagle. However, according to a report in 1995, after 30 years of study, lead poisoning was diagnosed in only 338 eagles, including both bald and golden, from 34 States. Even if a majority of these deaths were bald eagles over the 30-year period, this represents a relatively small number of bald eagles given the large increase we have seen in the population during that same timeframe (LaRoe *et al.* 1995. p. 68). Lead poisoning is a threat to a very few individual bald eagles each year and we do not expect the numbers of bald eagles affected by lead to increase given the increased public awareness of the threats posed by using lead shot. Other causes of injury and mortality to individual bald eagles continue to exist. Of the 4,300 bald and golden eagle deaths investigated between the early 1960s and 1990s, accidental death and impacts with vehicles, power lines, or other such structures accounted for 23 percent of the bald eagle deaths rangewide (including Alaska) (LaRoe *et al.* 1995. p. 68). Low numbers of these types of impacts can be found scattered throughout the population, and are not concentrated in any specific geographic region of the lower 48 States. Because these threats are found in low levels throughout the population, the population as a whole can absorb these impacts. Considering the increase in the population size of bald eagles in the lower 48 States during the time period studied, these impacts were not a significant threat to the population as a whole. Given the 30-year time period studied and the continued increase in the population size during that time period, this threat will likely not increase in the foreseeable future to the point where the bald eagle in the lower 48 States or a significant portion of its range will meet the definition of threatened or endangered under the Act. Raptor electrocution has been a concern since the early 1970s and accounted for 12 percent of the causes of bald eagle mortality in the 4,300 bald and golden eagle deaths studied since the 1960s (LaRoe *et al.* 1995. p. 68). Generally, electrocutions are more prevalent in sites where a susceptible species' prey base is present and where suitable perches, other than power structures, are lacking. Birds can be electrocuted during any season, but there can be seasonal fluctuations in electrocution frequency that are related to weather conditions or bird behavior (USGS 1999, p. 358). Raptor electrocutions generally can be reduced by adopting safe electrical-pole-and-line configurations or managing raptor perching. With the increase in the bald eagle population, electrocution mortality has likely increased (Koppie 2007a). However, given the continued increase in the population, the effects of such deaths are negligible on the population as a whole and there are no particular areas within the range where this threat is concentrated. The Service and the Edison Electric Institute's Avian Power Line Interaction Committee (APLIC) have worked together to develop guidelines to minimize the incidence of bird electrocutions on power lines. Their “Avian Protection Plan Guidelines” provide detailed guidance to utility company employees for minimizing and avoiding the incidence of bird electrocutions, including the bald eagle. They are used in conjunction with APLIC's “Suggested Practices for Raptor Protection on Power Lines: The State of the Art in 2006” to reduce the number of avian electrocutions on existing and new utility poles. Although this is only guidance, it illustrates the collaborative working relationship to minimize bird electrocution. Given the small number of individual birds that are killed by electrocution and the continued increase in the population size, this is not a significant threat to the bald eagle in the lower 48 States or a significant portion of its range currently or in the foreseeable future. Development of wind energy production facilities is increasing in localized areas of the lower 48 States, especially in the Atlantic coast flyway area. National projections by the U.S. Department of Energy for U.S. onshore installed wind-energy capacity show an increase from 11.9 GW in 2005 to 72.2 GW in 2020 (National Academy of Sciences 2007). Some wind power facilities have caused mortality to birds of prey and other avian species. There is no evidence, however, indicating that bald eagles have been taken to date. But post-construction studies at existing wind power facilities have been limited in scope and duration, and facilities are now being proposed in areas where bald eagles are more likely to occur. Bald eagles may still be susceptible to mortality, injury, or disturbance in the future if wind energy facilities are not carefully sited to avoid breeding, foraging, or migratory areas. But BGEPA and MBTA prohibitions on the take of bald eagles will still apply after delisting, thereby creating an incentive for thoughtful siting and design of future wind facilities. If wind power development is not carefully planned, bald eagle take may occur in the foreseeable future. But we currently do not have any data indicating that this threat would rise to the level of causing the bald eagle population to be threatened or endangered, especially given the protections afforded by BGEPA and the MBTA. The main cause of bald eagle endangerment in the lower 48 States, the use of pesticides, has been reduced by cancellation or limitations placed on use of key pesticides under FIFRA. Some contaminants are still prevalent in certain local areas of the lower 48 States that cause death or reduced productivity in a small number of eagles within the population. In addition, several other minor threats remain for individual bald eagles, including electrocution and vehicle strikes. However, due to the large geographic range of the bald eagle and its widespread recovery, these localized negative impacts appear to have a negligible effect on regional or national populations and, therefore, are not threats to the bald eagle population in the lower 48 States. We have determined that these other natural or manmade factors affecting the bald eagle are not likely to cause the bald eagle to become endangered or threatened in the foreseeable future throughout all or any significant portion of its range. Conclusion of the 5-Factor Analysis As required by the Act, we considered the five potential threat factors to assess whether the bald eagle is threatened or endangered throughout all or a significant portion of its range in the lower 48 States. When considering the listing status of the species, the first step in the analysis is to determine whether the species is in danger of extinction throughout all of its range. If this is the case, then the species is listed in its entirety. For instance, if the threats on a species are acting only on a portion of its range, but they are at such a large scale that they place the entire species in danger of extinction, we would list the entire species. The wide distribution of bald eagles throughout the lower 48 States, combined with the eagles' ability to exploit a wide range of geographic aquatic habitat settings, provides an important buffer against any potential threats to any of the significant portions of the range and to the species as a whole. Bald eagles have demonstrated increasing levels of tolerance of human activities that will allow bald eagles to use habitats previously thought to be unavailable due to the proximity of human activities. Several regulatory mechanisms will remain after delisting that will continue to protect bald eagles and their nests. Approximately 40 percent of the bald eagle nests occur on areas where long-term adverse habitat modification is unlikely to occur, including National Wildlife Refuges, National Parks, and National Forests. The BGEPA, MBTA, and CWA will continue to limit threats to habitat. Large-scale mortality from unregulated shooting, like that which occurred early in the last century, has been eliminated and is prohibited by both the BGEPA and the MBTA. Like all wildlife populations, the bald eagle is affected by numerous natural and environmentally related diseases. However, these localized effects on individuals are not significantly affecting the bald eagle population in the lower 48 States or a significant portion of its range, nor are they likely to do so within the foreseeable future. The main cause of bald eagle endangerment in the lower 48 States, the use of certain organochlorine pesticides, has been banned or reduced. While some contaminants are still prevalent in certain local areas of the lower 48 States, these localized impacts are not having a significant effect on the population levels of bald eagles in the lower 48 States. Regulatory mechanisms such as FIFRA will continue to regulate levels of contaminants such that the bald eagle in the lower 48 States will likely not become endangered in the foreseeable future. Moreover, the existing regulatory mechanisms summarized here have been proven adequate to control all of the potentially significant human-caused threats identified for the species. Bald eagle recovery goals have been met or exceeded for the species on a rangewide basis. There is no recovery region in the lower 48 States where we have not seen substantial increases in eagle numbers. We believe the surpassing of recovery targets over broad areas and on a regional basis, and the continued increase in eagle numbers since the 1995 reclassification from endangered to threatened, demonstrates that threats have been reduced or eliminated such that the bald eagle population in the lower 48 States no longer meets the definition of threatened or endangered. Having determined that the bald eagle in the lower 48 States does not meet the definition of threatened or endangered, we must next consider whether there are any significant portions of its range that are in danger of extinction or are likely to become endangered in the foreseeable future. On March 16, 2007, a formal opinion was issued by the Solicitor of the Department of the Interior, “The Meaning of ‘In Danger of Extinction Throughout All or a Significant Portion of Its Range’ ” (U.S. DOI 2007). We have summarized our interpretation of that opinion and the underlying statutory language below. A portion of a species' range is significant if it is part of the current range of the species and is important to the conservation of the species because it contributes meaningfully to the representation, resiliency, or redundancy of the species. The contribution must be at a level such that its loss would result in a decrease in the ability to conserve the species. The first step in determining whether a species is threatened or endangered in a significant portion of its range is to identify any portions of the range of the species that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that

(i)the portions may be significant and

(ii)the species may be in danger of extinction there or likely to become so within the foreseeable future. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are unimportant to the conservation of the species, such portions will not warrant further consideration. If we identify any portions that warrant further consideration, we then determine whether in fact the species is threatened or endangered in any significant portion of its range. Depending on the biology of the species, its range, and the threats it faces, it may be more efficient in some cases for the Service to address the significance question first, and in others the status question first. Thus, if the Service determines that a portion of the range is not significant, the Service need not determine whether the species is threatened or endangered there; conversely, if the Service determines that the species is not threatened or endangered in a portion of its range, the Service need not determine if that portion is significant. The terms “resiliency,” “redundancy,” and “representation” are intended to be indicators of the conservation value of portions of the range. Resiliency of a species allows the species to recover from periodic disturbance. A species will likely be more resilient if large populations exist in high-quality habitat that is distributed throughout the range of the species in such a way as to capture the environmental variability within the range of the species. It is likely that the larger size of a population will help contribute to the viability of the species. Thus, a portion of the range of a species may make a meaningful contribution to the resiliency of the species if the area is relatively large and contains particularly high-quality habitat or if its location or characteristics make it less susceptible to certain threats than other portions of the range. When evaluating whether or how a portion of the range contributes to resiliency of the species, it may help to evaluate the historical value of the portion and how frequently the portion is used by the species. In addition, the portion may contribute to resiliency for other reasons—for instance, it may contain an important concentration of certain types of habitat that are necessary for the species to carry out its life-history functions, such as breeding, feeding, migration, dispersal, or wintering. Redundancy of populations may be needed to provide a margin of safety for the species to withstand catastrophic events. This does not mean that any portion that provides redundancy is a significant portion of the range of a species. The idea is to conserve enough areas of the range such that random perturbations in the system act on only a few populations. Therefore, each area must be examined based on whether that area provides an increment of redundancy that is important to the conservation of the species. Adequate representation ensures that the species' adaptive capabilities are conserved. Specifically, the portion should be evaluated to see how it contributes to the genetic diversity of the species. The loss of genetically based diversity may substantially reduce the ability of the species to respond and adapt to future environmental changes. A peripheral population may contribute meaningfully to representation if there is evidence that it provides genetic diversity due to its location on the margin of the species' habitat requirements. To determine whether the bald eagle is threatened in any significant portion of its range, we first considered how the concepts of resiliency, representation, and redundancy apply to the conservation of this particular species. The recovery of the bald eagle in the lower 48 States provides important perspective. The species has demonstrated that it had sufficient resiliency and redundancy to recover from a severe population crash. That recovery was due in large part to the widespread distribution of the species: once the threats (most significantly the use of DDT) were removed, the population began to expand back into the main breeding and wintering areas that we currently see today housing a majority of the population. These breeding and wintering areas are distributed in such a fashion as to capture a majority of the latitudinal and environmental conditions that vary throughout the range. Approximately 75 percent of the breeding population occurs in these key core areas that are distributed throughout the northern, southern, eastern, and northwestern portions of the lower 48 States. In general, the large breeding areas have large expanses of aquatic habitat such as Florida, the Chesapeake Bay region, Maine, the Great Lakes, and the Pacific Northwest (Buehler 2000, p. 1). Winter habitat can also be characterized by having roost sites that are open and close to water with good food availability (Buehler 2000, pp. 3, 7). Bald eagles tend to congregate in large population centers during the winter such that large populations are present in a few areas that have good habitat characteristics. In the lower 48 States, these wintering concentration areas are found mainly along rivers in the Pacific Northwest, including the Puget Sound and the lower Klamath Basin; and along major inland river systems in the Midwest and the Chesapeake Bay. The main breeding and wintering areas again provide adequate resiliency and redundancy for the bald eagles in the lower 48 States. Although there is little data on the genetic diversity within the species, these same areas appear to provide for adequate representation. A variation in body size in bald eagle individuals is present that is likely due to environmental temperature changes in latitude, as discussed in the significance discussion in the DPS section of this rule. Bald eagles in the southern States tend to be smaller and lighter than eagles found in the northern States (Stalmaster 1987, pp. 16-17). However, we do not have any data currently suggesting this morphological difference is heritable. Even if this trait was heritable, the current distribution of the main breeding and wintering areas discussed above does capture this environmental variation. Applying the process described above for determining whether a species is threatened in a significant portion of its range, we next addressed whether any portions of the range of the bald eagle in the lower 48 States warranted further consideration. We noted that, as discussed in Factor E, there are several small geographic areas where localized contaminant threats still exist. However, we concluded that these did not warrant further consideration because

(1)they are very small (in the context of the range of this species) and affect only a few bald eagles, and thus there was no substantial information that they were a significant portion of the range, or

(2)the contaminant levels are decreasing and eagle populations increasing, and thus there was no substantial information that the bald eagles in these areas were likely to become in danger of extinction in the foreseeable future. In contrast, the threat of habitat loss discussed in Factor A found in Florida and the Chesapeake Bay region is distributed over relatively larger geographic areas of obvious importance to bald eagle conservation. Therefore, we determined that these areas warranted further consideration as portions of the range that may be both significant and threatened. However, as discussed separately in the Factor A analysis, we conclude that the threat of habitat loss in Florida and the Chesapeake Bay region does not rise to the level that the bald eagle is likely to become in danger of extinction in these portions of the range in the foreseeable future. Therefore, we need not determine whether Florida or the Chesapeake Bay region constitute a significant portion of the bald eagle's range. Finally, we decided to assume that the Sonoran Desert population, as well as the population in the broader area of the Southwest (Arizona, New Mexico, Utah, and Nevada), of which the Sonoran Desert population is the major component, warranted additional consideration out of an abundance of caution and based on the controversy concerning the status of the bald eagles in this region. The following provides our analysis of whether these portions of the range are significant. Turning first to the question of whether the Sonoran Desert portion of the range makes a meaningful contribution to the representation of the bald eagle, we note that the Sonoran Desert population is a peripheral population, and, as such, requires special consideration, as differing environmental conditions at the periphery of a species' range may give rise to genetic adaptations valuable to the long-term conservation of the species. However, as discussed immediately above and in detail in the DPS analysis, there is no evidence that the morphological and behavioral characteristics of bald eagles in the Sonoran Desert are genetically based (and, therefore, heritable). Even if they were genetically based, the best available data suggest that those characteristics are sufficiently represented in other portions of the species' range. Therefore, we conclude that the Sonoran Desert population does not make a meaningful contribution to the representation of the bald eagle. We reach the same conclusion for the broader population in the Southwest because there is no evidence that the breeding pairs in the broader area have adaptations that are not sufficiently represented in other portions of the range. Next, we conclude that the Sonoran Desert and broader southwest portions of the range do not make a meaningful contribution to the resiliency of the bald eagle. As discussed previously, habitat suitability determines the density and distribution of bald eagle populations. The Southwest, for example, does not contain particularly high-quality habitat: it does not support large expanses of the bald eagle's preferred breeding habitat type of forested areas adjacent to large bodies of water (Buehler 2000, p. 6). Therefore, this geographic area, both historically and currently, supports a small number of breeding pairs that are more widespread and fewer in number compared to other regions with abundant prey and nest substrate (Jacobsen *et al.* 2006, p. 27). Several accounts suggest that the breeding areas may have been more widespread prior to European development; however, these accounts do not suggest a large breeding population ever occurred in this region of the United States. The isolation of the Sonoran Desert population and the fact that the ecological setting in the Southwest differs somewhat from other portions of the bald eagle range might provide some insulation from threats that in the future may affect other portions of the range. Therefore, these portions of the range might make some contribution to the resiliency of the species. However, we find that any such contribution is minor, and, therefore, not meaningful because of the small number of pairs that are present in this area. Nor does the southwestern portion of the range include any important concentration of habitat necessary to carry out the life-history functions of the bald eagle. Finally, we conclude that the Sonoran Desert and broader southwestern portions of the range do not make a meaningful contribution to the redundancy of the bald eagle. As discussed above, even the broader southwestern portion of the range contains only a small number of bald eagles and a tiny portion of the suitable habitat in the lower 48 States. Given the overall numbers of eagles and their broad distribution in the lower 48 States, the southwestern portion of the range provides almost no redundancy to the species. In light of the above, we conclude that neither the Sonoran Desert nor the Southwest constitute a significant portion of the range of the bald eagle in the lower 48 States, and its loss would not result in a decrease in the ability to conserve the bald eagle. Therefore, we do not need to determine whether either of these portions of the range are in fact threatened. We note that although we have determined that these portions of the range are not significant for the purposes of section 4 of the Act, we recognize that the bald eagles in the Southwest have great importance to people in this region, particularly Native Americans, and will continue to be protected under the BGEPA. We will continue to work with the States, tribes, and conservation organizations in this region continue to conserve the bald eagle in the southwestern United States. In summary, the bald eagle has made a dramatic resurgence from the brink of extinction. The banning of DDT, coupled with the cooperative conservation efforts of the Service, States, other Federal agencies, non-government organizations, and individuals, have all contributed to the recovery of our National symbol. We have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause the bald eagle to become in danger of extinction within the foreseeable future throughout all or any significant portion of its range. The bald eagle no longer requires the protection of the Act, and, therefore, we are removing it from the Federal List of Endangered and Threatened Wildlife. Effects of This Rule This final rule revises 50 CFR 17.11(h) to remove the bald eagle in the lower 48 States from the Federal List of Endangered and Threatened Wildlife, and also removes the special rule for the bald eagle at 50 CFR 17.41(a). The prohibitions and conservation measures provided by the Act, particularly sections 7, 9, and 10 no longer apply to this species. Federal agencies will no longer be required to consult with us under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the bald eagle. Critical habitat was not designated for the bald eagle, so the delisting will not affect critical habitat provisions of the Act. The provisions of the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act (including prohibitions on the taking of bald eagles) will remain in place. This rule will not affect the bald eagle's status as a threatened or endangered species under State laws or suspend any other legal protections provided by State law. This rule will not affect the bald eagle's Appendix II status under CITES. For existing section 7 and 10 authorizations under the Act that cover bald eagles, the Service will honor existing Act exemptions and authorizations of incidental take until such time as the Service completes a final rulemaking for permits under the Bald and Golden Eagle Protection Act. We do not intend to refer for prosecution the incidental take of any bald eagle under the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), or the Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. 668-668d), if such take is in full compliance with the terms and conditions of an incidental take statement issued to the action agency or applicant under the authority of section 7(b)(4) of the Act or the terms and conditions of a permit issued under the authority of section 10(a)(1)(B) of the Act. The Service has proposed a rulemaking to establish criteria for issuance of a permit to authorize activities that would “take” bald eagles under the Bald and Golden Eagle Protection Act (72 FR 31141, June 5, 2007). The comment period for the proposed rulemaking will close on September 4, 2007. Applying the preservation standard of the BGEPA, we do not anticipate that the proposed permitting program would reduce the bald eagle population below its current level. Post-Delisting Monitoring Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing. We have proposed a draft post-delisting monitoring plan in a separate part of today's **Federal Register** and expect to finalize that post-delisting monitoring plan within a year. Paperwork Reduction Act This rule does not contain any new collections of information other than those already approved under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act We have determined that Environmental Assessments and Environmental Impact Statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). References Cited A complete list of all references cited herein is available upon request from the Headquarters Office (see FOR FURTHER INFORMATION CONTACT section). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, and Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. § 17.11 [Amended]. 2. Section 17.11(h) is amended by removing the entry for “Eagle, bald” under “BIRDS” from the List of Endangered and Threatened Wildlife. § 17.41 [Amended]. 3. Section 17.41 is amended by removing and reserving paragraph (a). Dated: June 28, 2007. Dirk Kempthorne, Secretary of the Interior. H. Dale Hall, Director, Fish and Wildlife Service. [FR Doc. 07-4302 Filed 7-6-07; 8:45 am]

Connectionstraces to 36

Traces to 36 documents

U.S. Code