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Code · REGISTER · 2007-09-26 · Federal Railroad Administration, DOT · Rules and Regulations

Rules and Regulations. Notice and request for comments

84,936 words·~386 min read·/register/2007/09/26/07-4766

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BILLING CODE 4910-EX-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration Proposed Agency Information Collection Activities; Comment Request AGENCY: Federal Railroad Administration, DOT. ACTION: Notice and request for comments. SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ), this notice announces that the Information Collection Requirement
(ICR)abstracted below has been forwarded to the Office of Management and Budget
(OMB)for review and comment. The ICR describes the nature of the information collection and its expected burden. The **Federal Register** notice with a 60-day comment period soliciting comments on the following collection of information was published on July 20, 2007 (See 72 FR 39886). DATES: Comments must be submitted on or before October 26, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 17, Washington, DC 20590 (telephone:
(202)493-6292), or Ms. Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone:
(202)493-6139). (These telephone numbers are not toll-free.) SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act of 1995 (PRA), Public Law No. 104-13, section 2, 109 Stat. 163
(1995)(codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On July 20, 2007, FRA published a 60-day notice in the **Federal Register** soliciting comment on ICRs that the agency was seeking OMB approval. 72 FR 39886. FRA received no comments in response to this notice. Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30 day notice is published. 44 U.S.C. 3507 (b)-(c); 5 CFR 1320.12(d); *see also* 60 FR 44978, 44983, Aug. 29, 1995. OMB believes that the 30 day notice informs the regulated community to file relevant comments and affords the agency adequate time to digest public comments before it renders a decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should submit their respective comments to OMB within 30 days of publication to best ensure having their full effect. 5 CFR 1320.12(c); *see also* 60 FR 44983, Aug. 29, 1995. The summaries below describe the nature of the information collection requirements
(ICRs)and the expected burden. The revised requirements are being submitted for clearance by OMB as required by the PRA. *Title:* Railroad Communications (Formerly Transmission of Train Orders by Radio). *OMB Control Number:* 2130-0524. *Type of Request:* Extension of a currently approved collection. *Affected Public:* Railroads. *Form(s):* N/A. *Abstract:* The Federal Railroad Administration
(FRA)amended its radio standards and procedures to promote compliance by making regulations more flexible; to require wireless communications devices, including radios, for specified classifications of railroad operations and roadway workers; and to re-title this part to reflect its coverage of other means of wireless communications such as cellular telephones, data radio terminals, and other forms of wireless communications to convey emergency and need-to-know information. The new rule establishes safe, uniform procedures covering the use of radio and other wireless communications within the railroad industry. *Annual Estimated Burden:* 238,704 hours. *Addressee:* Send comments regarding these information collections to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street, NW., Washington, DC 20503; Attention: FRA Desk Officer. *Comments are invited on the following:* Whether the proposed collections of information are necessary for the proper performance of the functions of FRA, including whether the information will have practical utility; the accuracy of FRA's estimates of the burden of the proposed information collections; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the **Federal Register** . Authority: 44 U.S.C. 3501-3520. Issued in Washington, DC on September 19, 2007. D.J. Stadtler, Director, Office of Financial Management, Federal Railroad Administration. [FR Doc. E7-18916 Filed 9-25-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Ex Parte No. 670] Establishment of a Rail Energy Transportation Advisory Committee AGENCY: Surface Transportation Board. ACTION: Notice of membership of Rail Energy Transportation Advisory. SUMMARY: The Surface Transportation Board (Board) hereby gives notice of the membership of the Rail Energy Transportation Advisory Committee. FOR FURTHER INFORMATION, CONTACT: Scott M. Zimmerman at 202-245-0202. [Assistance for the hearing impaired is available through the Federal Information Relay Service
(FIRS)at 1-800-877-8339.] SUPPLEMENTARY INFORMATION: By a decision served on March 9, 2007, the Board announced its proposal to establish a Rail Energy Transportation Advisory Committee (RETAC) and solicited public comment on the advisability of establishing such a committee, the size and composition of the committee, and the scope of its mandate. Based on a review of the comments received and consultation with the General Services Administration, the Board, in a decision served July 17, 2007, announced that it is establishing RETAC and developed a charter to govern its operation. RETAC will provide advice and guidance to the Board, and serve as a forum for discussion of emerging issues regarding the transportation by rail of energy resources, particularly, but not necessarily limited to, coal, ethanol, and other biofuels. In its July 2007 decision, the Board also requested suggestions for candidates for membership on RETAC. The Board stated that RETAC will be balanced and representative of interested and affected parties, and will consist of not less than: 5 representatives from the Class I railroads, 3 representatives from Class II and III railroads, 3 representatives from coal producers, 5 representatives from electric utilities (including at least one rural electric cooperative and one state-or municipally-owned utility), 4 representatives from biofuel refiners, processors, or distributors, or biofuel feedstock growers or providers, and 2 representatives from private car owners, car lessors, or car manufacturers. RETAC may also include up to 3 members with relevant experience but not necessarily affiliated with one of the aforementioned industries or sectors. The Chairman of the Board may invite representatives from the U.S. Departments of Agriculture, Energy and Transportation and the Federal Energy Regulatory Commission to serve on RETAC in advisory capacities as *ex officio* (non-voting) members, and the three members of the Board shall serve as *ex officio* members of the Committee as well. Accordingly, attached to this decision is a list of the candidates who, in accordance with the RETAC charter, have been selected by the Chairman with a concurrence of a majority of the Board to serve as members of RETAC for the first 2-year term. This action will not significantly affect either the quality of the human environment or the conservation of energy resources. Authority: 49 U.S.C. 721, 49 U.S.C. 11101; 49 U.S.C. 11121. Decided: September 21, 2007. By the Board, Vernon A. Williams, Secretary. Vernon A. Williams, Secretary. Appendix—Surface Transportation Board Rail Energy Transportation Advisory Committee Members Class I Railroads Stevan Bobb, Group Vice President—Coal, BNSF Railway Company Paul Hammes, Vice President and General Manager—Agricultural Products, Union Pacific Railroad Company Henry Rupert, Assistant Vice President—Utility North, CSX Transportation, Inc. Darin Selby, Assistant Vice President—Coal Sales and Marketing, Kansas City Southern Railway Company Alan Shaw, Senior Director of Coal Transportation, Norfolk Southern Railway Company Class II and III Railroads Edward McKechnie, Chief Commercial Officer, WATCO Companies David Rohal, Vice President, RailAmerica, Inc. Daniel Ray Sabin, President, Iowa Northern Railway Company Coal Producers John Eaves, President and COO, Arch Coal, Inc. Betsy Monseu, Vice President, Transportation, Foundation Energy Sales, Inc. Michael Rayphole, Vice President—Sales and Western Transportation, COALSALES, LLC Electric Utilities William Berg, CEO, Dairyland Power Cooperative W. Paul Bowers, President, Southern Company Generation C. Joseph Hopf, President, PPL EnergyPlus, LLC Richard Kelly, Chairman, President, and CEO, XCEL Energy Inc. Dan Kuehn, Executive Manager, Wholesale Power Services, Lower Colorado River Authority Biofuel Refiners, Producers, Distributors, or Feedstock Providers Daryl Haack, Corn and soybean farmer, Primghar, Iowa Mark Huston, Director, North American Transportation, Louis Dreyfus Commodities James Redding, Vice President, Aventine Renewable Energy, Inc. Darrell Wallace, Vice President Transportation Commodities Group, Bunge North America Private Car Owners, Car Lessors or Car Manufacturers Robert Hulick, Senior Vice President Business Development, TrinityRail Jay Wileman, President and CEO, G.E. Equipment Services—Rail Services Other James Brunkenhoefer, National Legislative Director, United Transportation Union [FR Doc. E7-18938 Filed 9-25-07; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board [STB Docket No. AB-55 (Sub-No. 649X)] CSX Transportation, Inc.—Abandonment Exemption—in Niagara County, NY CSX Transportation, Inc. (CSXT), has filed a notice of exemption under 49 CFR part 1152 subpart F— *Exempt Abandonments* to abandon a 1.57-mile line of railroad known as the Erie Industrial Track, on its Northern Region, Albany Division, Niagara Subdivision, extending from milepost QCJ 13.43 to milepost QCJ 15.0, in North Tonawanda, Niagara County, NY. The line traverses United States Postal Service Zip Code 14120. CSXT indicates that no stations will be impacted by the proposed abandonment. CSXT has certified that:
(1)No local traffic has moved over the line for at least 2 years;
(2)no overhead traffic has moved over the line for at least 2 years and overhead traffic, if there were any, could be rerouted over other lines;
(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 at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 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 this exemption, any employee adversely affected by the abandonment 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, this exemption will be effective on October 26, 2007, unless stayed pending reconsideration. 1 Petitions to stay that do not involve environmental issues, 2 formal expressions of intent to file an OFA under 49 CFR 1152.27(c)(2), 3 and trail use/rail banking requests under 49 CFR 1152.29 must be filed by October 9, 2007. Petitions to reopen or requests for public use conditions under 49 CFR 1152.28 must be filed by October 16, 2007, with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. 1 On September 10, 2007, B P Rail Corporation d/b/a BP Rail
(BPR)filed a formal expression of intent to file an OFA to purchase the line. In this filing, BPR requests that CSXT provide BPR with the financial data and information prescribed in 49 CFR 1152.27(a). BPR also requests that the Board toll the time period for the filing of an OFA for an additional 60 days. The Board will address BPR's tolling request in a subsequent decision. 2 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 exemption's 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 exemption's effective date. 3 Each OFA must be accompanied by the filing fee, which currently is set at $1,300. *See* 49 CFR 1002.2(f)(25). A copy of any petition filed with the Board should be sent to CSXT's representative: Steven C. Armbrust, Esq., CSX Transportation, Inc., 500 Water Street, J-150, Jacksonville, FL 32202. If the verified notice contains false or misleading information, the exemption is void *ab initio.* CSXT has filed environmental and historic reports addressing the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment
(EA)by October 1, 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. Pursuant to the provisions of 49 CFR 1152.29(e)(2), CSXT 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 CSXT's filing of a notice of consummation by September 26, 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: September 18, 2007. By the Board, David M. Konschnik, Director, Office of Proceedings. Vernon A. Williams, Secretary. [FR Doc. E7-18831 Filed 9-25-07; 8:45 am] BILLING CODE 4915-01-P DEPARTMENT OF THE TREASURY Office of the Assistant Secretary for International Affairs; Survey of U.S. Ownership of Foreign Securities as of December 31, 2007 AGENCY: Departmental Offices, Department of the Treasury. ACTION: Notice of reporting requirements. SUMMARY: By this Notice and in accordance with 31 CFR 129, the Department of the Treasury is informing the public that it is conducting a mandatory survey of U.S. ownership of foreign securities as of December 31, 2007. This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, this survey. Additional copies of the reporting form SHCA
(2007)and instructions may be printed from the Internet at: *http://www.treas.gov/tic/forms-sh.html.* *Definition:* Pursuant to 22 U.S.C. 3102 a U.S. person is any individual, branch, partnership, associated group, association, estate, trust, corporation, or other organization (whether or not organized under the laws of any State), and any government (including a foreign government, the United States Government, a state, provincial, or local government, and any agency, corporation, financial institution, or other entity or instrumentality thereof, including a government-sponsored agency), who resides in the United States or is subject to the jurisdiction of the United States. *Who Must Report:* The panel for this survey is based upon the level of U.S. holdings of foreign securities reported on the December 2006 benchmark survey of U.S. holdings of foreign securities, and will consist primarily of the largest reporters on that survey. Entities required to report will be contacted individually by the Federal Reserve Bank of New York. Entities not contacted by the Federal Reserve Bank of New York have no reporting responsibilities. *What to Report:* This report will collect information on holdings by U.S. residents of foreign securities, including equities, long-term debt securities, and short-term debt securities (including selected money market instruments). *How to Report:* Copies of the survey forms and instructions, which contain complete information on reporting procedures and definitions, can be obtained at the Web site address given above in the SUMMARY , or by contacting the survey staff of the Federal Reserve Bank of New York at
(212)720-6300, e-mail: *SHC.help@ny.frb.org.* The mailing address is: Federal Reserve Bank of New York, Statistics Function, 4th Floor, 33 Liberty Street, New York, NY 10045-0001. Inquiries can also be made to Mr. William L. Griever, Federal Reserve Board of Governors, at
(202)452-2924, e-mail: *william.l.griever@frb.gov;* or to Dwight Wolkow at
(202)622-1276, e-mail: *wolkowd@do.treas.gov.* *When to Report:* Data must be submitted to the Federal Reserve Bank of New York, acting as fiscal agent for the Department of the Treasury, by March 7, 2008. *Paperwork Reduction Act Notice:* This data collection has been approved by the Office of Management and Budget
(OMB)in accordance with the Paperwork Reduction Act and assigned control number 1505-0146. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB. The estimated average annual burden associated with this collection of information is 48 hours per respondent for end-investors and custodians that file Schedule 3 reports covering their securities entrusted to U.S. resident custodians, 145 hours per respondent for large end-investors filing Schedule 2 reports, and 700 hours per respondent for large custodians of securities filing Schedule 2 reports. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be directed to the Department of the Treasury, Attention Administrator, International Portfolio Investment Data Reporting Systems, Room 5422, Washington, DC 20220, and to OMB, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. Dwight Wolkow, Administrator, International Portfolio Investment Data Reporting Systems. [FR Doc. E7-18944 Filed 9-25-07; 8:45 am] BILLING CODE 4811-42-P 72 186 Wednesday, September 26, 2007 CORRECTIONS Ben DEPARTMENT OF DEFENSE Department of the Army Department of Defense Historical Advisory Committee; Meeting Correction In notice document 07-4694 appearing on page 54014 in the issue of Friday, September 21, 2007, make the following corrections: 1. In the second column, in the SUMMARY paragraph, under *Place* , “Militry” should read “Military”. 2. In the same column, in the last line, “FY 1007” should read “FY 2007”. 3. In the third column, in the first full paragraph, in the last line, “20-319-5058” should read “20319-5058”. [FR Doc. C7-4694 Filed 9-25-07; 8:45 am] BILLING CODE 1505-01-D !!!INSERT NAME HERE!!! DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-142695-05] RIN 1545-BF00 Employee Benefits - Cafeteria Plans Correction In proposed rule document E7-14827 beginning on page 43938 in the issue of Monday, August 6, 2007, make the following correction: On page 43939, in the first column, the first heading: **I. New Proposed § 1.125-1-Qualified and Nonqualified Benefits in Cafeteria Plans Section 125 Exclusive Noninclusion Rule** should be two separate headings: **I. New Proposed § 1.125-1-Qualified and Nonqualified Benefits in Cafeteria Plans** *Section 125 Exclusive Noninclusion Rule* [FR Doc. Z7-14827 Filed 9-25-07; 8:45 am] BILLING CODE 1505-01-D 72 186 Wednesday, September 26, 2007 Rules and Regulations Part II Federal Communications Commission 47 CFR Part 73 Advanced Television Systems and Their Impact Upon the Existing Broadcast Service; Proposed Rule and Final Rule FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 87-268; FCC 07-138] Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Commission adopts a new Table of Allotments for digital television
(DTV)providing all eligible stations with channels for DTV operations after the DTV transition on February 17, 2009. The new DTV Table accommodates all eligible broadcasters, reflects to the extent possible the channel elections made by broadcasters, and is consistent with efficient spectrum use. The new DTV Table finalizes the channels and facilities necessary to complete the digital transition and ultimately will replace the existing DTV Table at the end of the DTV transition. The existing DTV Table continues to govern stations' DTV operations until the end of the DTV transition. DATES: Effective October 26, 2007. ADDRESSES: Federal Communications Commission, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Kim Matthews of the Media Bureau, Policy Division,
(202)418-2154. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's Seventh Report and Order in MB Docket No. 87-268, FCC 07-138, adopted August 1, 2007, and released August 6, 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). Summary of the Seventh Report and Order 1. In this Seventh Report and Order, the Commission adopts a new Table of Allotments for digital television (“DTV”) providing all eligible stations with channels for DTV operations after the DTV transition on February 17, 2009. The new DTV Table is the result of informed decisions made by eligible licensees and permittees during the Commission's channel election process. As the Commission stated in the Seventh Further Notice of Proposed Rule Making in this proceeding (71 FR 66592, November 15, 2006) (“Seventh Further Notice”), in developing these final DTV allotments the Commission has attempted to accommodate broadcasters' channel preferences as well as their replication and maximization service area certifications (made via FCC Form 381). The DTV Table adopted herein reflects consideration of the comments filed in response to the Seventh Further Notice as well as our efforts to promote overall spectrum efficiency and ensure that broadcasters provide the best possible service to the public. 2. In early 2006, Congress established February 17, 2009 as a new hard deadline for the end of the DTV transition and the end of analog transmissions by full power television broadcasters. In view of the short period of time remaining before this deadline, our goal has been to finalize DTV channels and facilities as expeditiously as possible to provide stations with the certainty they need to complete their digital build out, consistent with the interference and other standards set forth in the Seventh Further Notice. Requests for Minor Adjustments 3. We will make a variety of minor adjustments based on requests from commenters. We received comments filed on behalf of 22 stations requesting that we make minor adjustments to the station coordinates specified in the proposed DTV Table Appendix B. We asked licensees to review the accuracy of their information contained in the proposed DTV Table Appendix B and comment on any inaccuracies or discrepancies in this information. In some cases, the station requested a change to conform to the coordinates reflected on a station authorization and/or the coordinates of the Antenna Structure Registration (“ASR”) for the station's tower. In circumstances where a station submitted a correction to the station's coordinates, the corrected coordinates are specified on a station license or construction permit, and the requested change did not result in a change of more than three seconds latitude or longitude for the station, we are making the requested correction. Accepting corrections to Appendix B of three seconds or less is consistent with the Commission's rules, which do not require a construction permit for such a correction before it can be licensed. Three seconds of latitude or longitude is approximately 200 to 300 feet. The stations for which we make such a correction are listed in Appendix D1 hereto and the changes requested by those stations are reflected in DTV Table Appendix B adopted herein. 4. We also received comments filed on behalf of stations requesting modification of the proposed DTV Table Appendix B in the Seventh Further Notice either to express a station's geographic coordinates in tenths of seconds in addition to the currently listed degrees, minutes, and seconds or to round to the nearest whole second rather than merely truncate the data. One such commenter argued that precision is important as even a small change in location data could have an impact on interference studies in light of the 0.1 percent interference standard. We note that a tenth of a second latitude or longitude is equivalent to approximately 10 feet. 5. We find it is appropriate to round to the nearest whole second because the resources necessary to collect more precise data and revise the computer software that generates the Table would not be justified by the small difference in physical location. For those commenters that have requested a correction of their station coordinates and provided us with station coordinates expressed to the tenth of a second, we have revised DTV Table Appendix B to round the coordinates to the nearest whole second. The stations for which such a change is made are included in the list of stations in Appendix D1 herein. Requests To Make Changes to Certification 6. We are permitting changes to stations' facility certifications (FCC Form 381) based on appropriate demonstrations from these stations where such changes are consistent with the circumstances contemplated in the Seventh Further Notice. In paragraph 28 of the Seventh Further Notice, the Commission recognized that some stations have already constructed or received authorization to construct facilities on the station's TCD that provide service to areas that extend beyond that to which the station certified on FCC Form 381. Because the interference protection provided during the channel election process was limited to the facilities to which the station certified in FCC Form 381, the Commission noted that stations serving or authorized to serve areas beyond their certified area could become subject to interference in those areas. The Commission stated that it would permit stations in this situation to file comments proposing to modify their certified facilities to match their authorized or constructed facilities. Stations requesting such a change were required either to
(1)Submit an engineering analysis demonstrating that the proposed change to their certified facilities would not result in interference in excess of 0.1 percent to any licensee's existing TCD or
(2)submit the signed, written consent of every affected licensee. The Commission also stated that stations in these circumstances seeking a change in their certification would be required to accept interference from any channel election already approved. 1. Requests That Meet the Interference Criteria 7. We will permit stations to change their facility certifications (FCC Form 381), and thus our post-transition DTV Table Appendix B, where such stations have demonstrated that such modification of their facilities will conform to licensed or authorized facilities and where the proposed change to the Appendix B facilities either meets the interference criterion discussed above (i.e., the proposed change would not result in interference in excess of 0.1 percent to any licensee's existing TCD) or, as discussed further below, the station affected agreed to accept the interference. We received comments on behalf of 130 stations requesting such changes. We have made the changes requested by these commenters and the changes are reflected in the revised DTV Table Appendix B adopted herein. A list of the stations for which we made these changes is attached hereto in Appendix D2. To address the requests of those commenters in this group whose stations are moving to a different channel for post-transition service, we recalculated their post-transition DTV coverage area based on their authorized or licensed DTV facility, as indicated by the file number shown in Appendix D2. 8. In some cases, stations listed in Appendix D2 request changes to the DTV Table/Appendix B that differ from the facilities specified in a current authorization for the station on the post-transition channel. In these circumstances, we have revised DTV Table Appendix B to specify the station's authorized facilities. The following paragraphs describe three situations that merit additional explanation. 9. *KBCW, San Francisco, CA.* San Francisco Television Station KBCW, Inc. (“KBCW”), licensee of station KBCW, channel 44, and KBCW-DT, channel 45, San Francisco, CA, received channel 45 for its TCD in the proposed DTV Table. In comments filed on behalf of KBCW, CBS Corporation (“CBS”) requests a change to conform to the parameters of KBCW's licensed facilities on Channel 45. CBS states that, along most azimuths, the currently licensed digital facilities of KBCW exceed those resulting from the replication facilities assigned to the station in the proposed DTV Table Appendix B. CBS states that an interference study shows that the requested KBCW parameters would cause in excess of 0.1 percent new interference only to the digital operation of KQCA, Stockton, California. According to CBS, KQCA currently receives 0.46 percent interference from KBCW-DT's presently licensed operation and would continue to do so after the transition if KBCW-DT keeps its existing facilities. CBS submitted an agreement in which KQCA agrees to accept this interference. In light of the interference agreement submitted by CBS, we will accept the requested change to the parameters for KBCW to conform to its authorized and operating facilities. These changes are reflected in the revised DTV Table Appendix B adopted herein. 10. *KALO, Honolulu, HI.* Pacifica Broadcasting Company (“Pacifica”), licensee of station KALO(TV), channel 38, and KALO-DT, channel *10, Honolulu, HI, received channel 10 for its TCD in the proposed DTV Table. In a late-filed comment, Pacifica noted its concern that it may not be able to operate at its applied-for power level on channel 10 because it will cause an unacceptable level of interference to the FCC monitoring station at Waipahu. To address this anticipated difficulty, Pacifica has proposed a reduced ERP of 14.275 kW. This power level is less than the authorized power of the facility, but the reduction is necessary to prevent interference with our nearby monitoring facility. We have studied the proposed power and find that it does not cause impermissible interference to any station. We accept KALO's proposal and the DTV Table Appendix B has been revised accordingly. 11. *WPPB, Boca Raton, FL.* The School Board of Broward County (“SBBC”), licensee of WPPB-TV, channel *63, and permittee of WPPB-DT, channel *40, Boca Raton, FL, received channel *40 for its TCD in the proposed DTV Table. In comments filed to this proceeding, SBBC supports the proposed allotment of channel *40, but asks to change its certified facilities and DTV Table Appendix B to reflect facilities authorized by the Commission in 2002. No other comments were filed related to this TCD. 12. SBBC's request to change WPPB's DTV channel from *44 to *40 was approved in the 2002 *Boca Raton Allotment Order.* In that order, WPPB-DT, channel *40, was authorized to operate at maximized facilities, including an ERP of 1000 kW and an antenna HAAT of 310 m. However, SBBC certified in its FCC Form 381 for maximized facilities as authorized by its existing construction permit for DTV channel *44. SBBC explained in its FCC Form 381 that it did this because the channel substitution decision was challenged by a petition for reconsideration and, thus, not deemed “final.” In its FCC Form 381, SBBC also stated its intention to certify for maximized facilities at the new channel *40 allotment when the channel substitution became final. SBBC subsequently filed an application in 2006 to conform its new DTV channel *40 allotment to those facilities specified in the 2002 *Boca Raton Allotment Order.* 13. The proposed post-transition DTV Table now shows WPPB's new DTV channel *40. We hereby revise DTV Table Appendix B herein to reflect the facilities authorized by the 2002 *Boca Raton Allotment Order.* This change does not result in more than 0.1 percent new interference to any station. WPPB's requested certification change is to facilities expressly authorized to the station in 2002, and the station expressed its intent to certify to these facilities in its Form 381 filing. 2. Requests By Operating Stations That Do Not Meet Interference Criteria 14. We will permit stations that are already operating their final, post-transition DTV facilities to change their facility certifications (FCC Form 381), and thus our post-transition DTV Table Appendix B, to reflect those facilities, even though such operations will exceed the 0.1 percent interference standard. Eight stations requested changes to the proposed DTV Table Appendix B to reflect operating facilities where we have determined that the interference caused to the TCD of another licensee exceeds the 0.1 percent interference standard and there is no interference agreement with the affected station(s). In several cases, the Commission granted pending applications for these stations after certification. In other cases, as discussed further below, we have permitted stations to change their certification from replication to maximization, thereby potentially causing more interference to other stations than would have been permitted for the facilities to which the station originally certified. 15. While these stations are requesting changes to the parameters proposed in the *Seventh Further Notice* in situations where the level of interference exceeds the relevant standard, we find that they have met their burden of demonstrating that their special circumstances justify a waiver. We therefore grant the requested changes. In each case, the changes are being requested for stations that are already operating their final, post-transition DTV facilities. We believe it is unnecessary and unfair to require these already-operational facilities to reduce service. Indeed, as these stations are already providing service at the requested parameters, it is in the public interest to allow them to continue to do so. In addition, none of the stations receiving the interference filed an opposition to the station requesting the change. 16. Following is a brief discussion of the stations requesting changes to reflect their operating facilities and the relevant circumstances that support our grant of their requests: 17. *KTBN, Santa Ana, CA.* Trinity Christian Center of Santa Ana, Inc. (“Trinity”), licensee of station KTBN-TV, channel 40, and KTBN-DT, channel 23, Santa Ana, CA, received channel 23 for its TCD in the proposed DTV Table. Trinity requests that the parameters for KTBN in the proposed DTV Table Appendix B be changed to reflect those of the facility currently licensed in BLCDT-20050729AFT. The Commission's interference analysis shows that KTBN's licensed facility causes 0.75 percent interference to KBEH, Oxnard, California (analog channel 63, digital channel 24 for both pre- and post-transition). 18. *WICS, Springfield, IL.* WICS Licensee, LLC (“WICS Licensee”), licensee of station WICS, channel 20, and WICS-DT, channel 42, Springfield, IL, received channel 42 for its TCD in the proposed DTV Table. Sinclair Broadcast Group, Inc. (“Sinclair”), the parent company of WICS Licensee, requests that the parameters for WICS in the DTV Table Appendix B be changed to reflect those of the licensed facility BLCDT-20050627AAI. The Commission's interference analysis shows that the WICS licensed facility causes 0.43 percent interference to WICD, Champaign, Illinois (analog 15, post-transition digital channel 41). 19. *WUTV, Buffalo, NY.* WUTV Licensee, LLC (“WUTV Licensee”), licensee of station WUTV, channel 29, and permittee of WUTV-DT, channel 14, Buffalo, NY, received channel 14 for its TCD in the proposed DTV Table. Sinclair Broadcast Group Inc., parent company of WUTV Licensee, requests that the parameters for WUTV in the DTV Table Appendix B be changed to reflect those of the licensed facility BLCDT-20060829BGK. The Commission's interference analysis shows that the WUTV licensed facility causes 8.45 percent interference to the TCD on channel 14 of a new analog singleton in Bath, New York (call sign 870331LW). We note that, in its license application, WUTV indicated it would employ antenna beam tilting to protect the Bath station from interference and that the WUTV license specifies beam tilting. 20. *WKDH, Houston, MS.* Southern Broadcasting Inc. (“Southern”), licensee of singleton station WKDH, channel 45, Houston, MS, received channel 45 for its TCD in the proposed DTV Table. Southern requests that the parameters for WKDH in the DTV Table Appendix B be changed to reflect the parameters specified in its construction permit BPCDT-20060519ABE. WKDH is now operating pursuant to program test authority. The Commission's interference analysis shows that WKDH causes 0.34 percent interference to WPXH, Gadsden, Alabama (analog channel 44, digital channel 45 for both pre- and post-transition). 21. *WTEN, Albany, NY.* Young Broadcasting, Inc. (“Young”), licensee of station WTEN, channel 10, and WTEN-DT, channel 26, Albany, NY, received channel 26 for its TCD in the proposed DTV Table. Young requests that the parameters for WTEN in the DTV Table Appendix B be changed to reflect the parameters of the station's license BLCDT-20060104ACC. The Commission's interference analysis shows that the WTEN licensed facility causes 3.24 percent interference to WHPX, New London, Connecticut (analog channel 26, post-transition digital channel 26) and 1.39 percent interference to WFXV, Utica, New York, (analog channel 33, digital channel 27 for both pre- and post-transition). 22. *WLMB, Toledo, OH.* Dominion Broadcasting, Inc., (“Dominion”), licensee of station WLMB, channel 40, and WLMB-DT, channel 5, Toledo, OH, received channel 5 for its TCD in the proposed DTV Table. Dominion requests that the parameters for WLMB in the DTV Table Appendix B be changed to reflect those of the licensed facility BLCDT-20050201AAF. Dominion failed to timely file a certification on FCC Form 381 for WLMB specifying whether it would construct replication or maximization facilities, and consequently WLMB was assigned replication facilities in the proposed DTV Table Appendix B. The Commission noted that forty-one stations, including WLMB, did not timely file a certification form, and stated that it would permit these licensees to file comments proposing a change to their certification to specify maximized facilities for which they would have been allowed to certify. Dominion requests that its certification for WLMB be modified to specify the maximized facilities that Dominion has now constructed and that the Commission has licensed. The Commission's interference analysis shows that the WLMB licensed facility causes 2.04 percent interference to WGVK, Kalamazoo, Michigan (analog channel 52, digital channel 5 for both pre- and post-transition). 23. *KOCE, Huntington Beach, CA.* KOCE-TV Foundation (“KOCE Foundation”), licensee of noncommercial educational station KOCE, channel *50-, and KOCE-DT, channel *48, Huntington Beach, CA, received channel *48 for its TCD in the proposed DTV Table. KOCE Foundation requests that the parameters for KOCE in the proposed DTV Table Appendix B be changed to reflect those of the licensed facility BLEDT-20041117ADG. KOCE Foundation failed to timely file a certification on FCC Form 381 for KOCE specifying whether it would construct replication or maximization facilities, and consequently KOCE was assigned replication facilities in the proposed DTV Table Appendix B. This situation is similar to WLMB, paragraph 54, *supra* . The Commission noted that KOCE also did not timely file a certification form and stated that it would permit this licensee to file comments proposing a change to its certification to specify maximized facilities for which it would have been allowed to certify. KOCE Foundation requests that its certification for KOCE be modified to specify KOCE-DT's licensed, maximized facilities. The Commission's interference analysis shows that the KOCE licensed facility causes 0.24 percent new interference to KAZA, Avalon, CA (analog channel 54, digital channel 47 for both pre- and post-transition). 24. *WLLA, Kalamazoo, MI.* Christian Faith Broadcast, Inc. (“Christian Faith”), licensee of station WLLA, channel 64, and WLLA-DT, channel 45, Kalamazoo, MI, received channel 45 for its TCD in the proposed DTV Table. Christian Faith failed to timely file a certification on FCC Form 381 for this station. Stations that did not file certifications were assigned replication facilities for purposes of the Commission's channel election process and interference evaluation. On October 31, 2005, Christian Faith filed a request for acceptance of a late-filed certification on behalf of WLLA specifying maximization facilities authorized for that station. The proposed DTV Table Appendix B did not reflect this requested certification change. Christian Faith subsequently filed comments in response to the *Seventh Further Notice* requesting a change in the proposed DTV Table to reflect its construction permit for maximized facilities for this station. On May 29, 2007, Christian Faith filed a license application for WLLA for these maximized facilities. The authorized and operating maximized facilities of WLLA cause 2.11 percent new interference to WZPX, Battle Creek, Michigan (analog channel 43, digital channel 44 for both pre- and post-transition) and 0.79 percent new interference to WDIV, Detroit, Michigan (analog channel 4, digital channel 45 for both pre- and post-transition). 25. For the reasons discussed *supra* , we hereby grant the changes requested for these eight stations and these changes are reflected in the DTV Table Appendix B adopted herein. 3. Requests By Non-Operational Stations That Do Not Meet Interference Criteria 26. Comments were filed on behalf of two stations requesting changes to the proposed DTV Table Appendix B to reflect authorized facilities where we have determined that the interference caused to another licensee's existing TCD exceeds the 0.1 percent interference standard, there is no interference agreement with the affected station(s), and the station requesting the change is not operational. One of these stations, WTCV, San Juan, PR, has not met its burden to demonstrate that special circumstances justify a waiver, and we therefore deny its request to change DTV Table Appendix B. Unlike the stations discussed above, this station has not completed construction and begun DTV service to the public. We do not believe it is appropriate to change the facilities specified in DTV Table Appendix B where the station requesting the change does not meet the applicable interference standard and is not yet providing service to the public. We note that this station could apply in the future for a modification to specify maximized facilities. Any such application would be subject to interference criteria and other standards adopted in the Third DTV Periodic Review Report and Order. As discussed further below, for one station, WMFD, Mansfield, Ohio, we will grant the request to change DTV Table Appendix B because this station has obtained international coordination for its authorized facility. 27. *WTCV, San Juan, PR.* International Broadcasting Corporation (“IBC”), licensee of station WTCV, channel 18, and WTCV-DT, channel 32, San Juan, PR, received channel 32 for its TCD in the proposed DTV Table. IBC states in its comments that it originally intended to operate its post-transition DTV transmitter from its current analog tower but was forced to change sites because of difficulties in obtaining tower space at its original site for its digital facilities. According to IBC, after lengthy negotiations with the tower site owner, Puerto Rico Telephone Company, “it became clear that the tower structural requirements imposed at the time made the project economically unfeasible.” IBC therefore certified to an authorized construction permit for a different site with substantially reduced facilities. In its comments IBC states that it has recently solved the difficulties of obtaining tower space to operate from its currently authorized analog site and has filed an application for a construction permit to operate from this site. This application was pending at the time IBC filed its comments in response to the *Seventh Further Notice* but has now been granted. IBC requests a change in the proposed DTV Table Appendix B to specify the parameters of the construction permit application that was pending at the time IBC's comments were filed and that has now been granted. IBC states that the proposed change in site and technical facilities will enable WTCV to serve an additional 318,230 viewers. However, the WTCV facilities requested by IBC would cause 1.49 percent new interference to WSJU-TV, San Juan, Puerto Rico (analog channel 30, post-transition digital channel 31) and WTCV is not currently operational. As the facilities requested by IBC would cause new interference in excess of the 0.1 percent interference standard and the station is not yet providing service to the public, we will deny IBC's request to change DTV Table Appendix B. 28. *WMFD, Mansfield, OH.* Mid-State Television, Inc., (“Mid-State”), licensee of station WMFD-TV, channel 68 and WMFD-DT, channel 12, Mansfield, OH, received channel 12 for its TCD in the proposed DTV Table. Mid-State certified to a then-pending maximization application that had not yet been authorized due to international coordination issues. Mid-State states that, when it filed its pre-election certification, it indicated that it intended to operate with the facilities specified in the then-pending modification application, but that the application remained subject to international coordination. After certification, the application was amended to resolve the international coordination issues and subsequently was granted in July 2005. The proposed DTV Table Appendix B specifies the facilities to which Mid-State certified. Mid-State requests that DTV Table Appendix B be changed to reflect the facilities specified in its July 2005 construction permit. The facilities requested by Mid-State would cause 1.13 percent interference to WINM, Angola, Indiana (analog channel 63, post-transition digital channel 12) and 0.44 percent interference to WBOY, Clarksburg, West Virginia (analog channel 12, post-transition digital channel 12). Neither of the affected stations filed comments opposing WMFD's proposed change to Appendix B. 29. We will grant Mid-State's request and change DTV Table Appendix B accordingly. This change is reflected in the DTV Table Appendix B attached hereto. The change requested by Mid-State is the result of a negotiated solution with Canada to resolve international coordination issues that prohibit operation of the facility proposed in the application pending at the time of certification and to which Mid-State certified on FCC Form 381. The Commission has recognized that stations facing international coordination issues face unique challenges in completing the digital transition. As the result of a modification to a Canadian DTV allotment, WMFD states that it is precluded from constructing the facilities listed in the proposed DTV Table Appendix B. If we were to deny the change requested by Mid-State, WMFD would be required to identify a new facility and re-commence the process of obtaining international coordination for that facility. Because of the unique circumstances faced by WMFD, a station that is already providing digital service to the public and seeks to improve that service, we believe that grant of the requested change to DTV Table Appendix B is warranted and will serve the public interest. Requests for Modified Coverage Area 30. We will grant requests filed on behalf of 30 stations whose post-transition DTV channel is different from their pre-transition DTV channel to change the coverage area in the proposed DTV Table Appendix B. In general, these commenters argue that the facilities specified in the proposed DTV Table Appendix B do not permit the station to provide service to the area served by the station's analog facility. 31. In the creation of the initial Table of Allotments, DTV channels were chosen to allow service on the channel to best match the Grade B service contour of the analog station with which it was paired. Implementation of this replication goal requires a combination of transmitter site, ERP, directional antenna characteristics, and antenna height that is adequate to cover at least the same area as was served by the analog station. In the *Sixth Report and Order* in this docket (62 FR 26684, May 14, 1997) (“Sixth Report and Order”), however, the Commission determined that the maximum permissible power for all allotments in the initial DTV Table would be 1000 kW. For some stations whose analog channel was in the VHF band and whose initial DTV channel was in the UHF band, an ERP of 1000 kW was not sufficient to permit replication of the station's analog service. 32. On FCC Form 381, the Commission permitted stations the choice of certifying to operate their post-transition DTV station based on:
(1)A current station authorization;
(2)a pending application for maximization that had not been authorized due to a pending international coordination issue; or
(3)replication facilities. Stations certifying to replication facilities that had not changed their DTV channel since the 1998 DTV *Second MO&O* (64 FR 4322, January 28, 1999) (“Second MO&O”) had their replication facilities based on the facilities established in Appendix B of the *Second MO&O* . 33. Several commenters argue that, because of the 1000 kW maximum imposed in the *Sixth Report and Order* , the Commission's decision to base replication during the channel election process on the station's initial DTV facilities established in the *Second MO&O* rather than the station's analog facilities resulted in the Commission proposing parameters in the DTV Table Appendix B that do not permit the station to replicate the analog service area. In other cases, stations filed comments requesting a change to the parameters in the proposed DTV Table Appendix B to modify the station's coverage area to permit replication of the station's analog coverage area where the station was not subject to the 1000 kW maximum imposed in the *Sixth Report and Order* . These stations, returning to their analog channel for post-transition operations, commented that the proposed DTV Table Appendix B facilities would not permit replication of the station's analog Grade B contour. For stations returning to their analog channel, this discrepancy between the proposed Appendix B parameters and the analog coverage area may have been due to translation discrepancies that occurred over a series of engineering calculations used to determine replication. In other cases, stations simply requested an increase in power or a change to the station's antenna pattern to permit the station to serve more of the area served by the station's analog facilities. 34. In response to the comments filed on behalf of these stations, we have recalculated Appendix B facilities based on replicating the analog coverage that was used to determine their initial DTV table facilities. If the recalculation would result in a reduction in the Appendix B facilities, we are adopting herein the larger Appendix B facilities that we had initially proposed in the *Seventh Further Notice* . If the recalculation would result in a larger coverage area and our analysis indicates that the recalculated facilities
(1)Meet the 0.1 percent interference standard specified in the *Second DTV Periodic Report and Order* (69 FR 59500, October 4, 2004) (“Second DTV Periodic Report and Order”) or
(2)would cause more than 0.1 percent new interference but the affected station(s) agree to accept the interference, we are granting the request to change DTV Appendix B to reflect the larger coverage area. These stations are listed in Appendix D3 and the revised parameters for these stations are reflected in the revised DTV Table Appendix B, *infra* . There were no comments filed opposing these requested changes. 35. We believe that permitting these changes to the proposed DTV Table is consistent with our overall goal in the DTV transition of encouraging replication of analog service. One of the Commission's objectives throughout the transition has been to permit broadcasters to reach with digital service the audiences they have been serving with analog service so that viewers will continue to have access to the stations that they are accustomed to receiving over the air. We believe that the revisions requested by the stations listed in Appendix D3 will serve the public interest by permitting those stations to provide digital service to more of their established analog viewers. 36. In addition, three stations requested changes to the proposed DTV Table Appendix B to increase the station's coverage area, but our recalculations of the Appendix B facilities and the subsequent interference analysis show that the requested change would result in interference that would exceed the 0.1 percent interference standard adopted in the *Second DTV Periodic Report and Order* and the affected station has not agreed to accept this interference. We deny the requests of these stations, as described in greater detail below. None of them are requesting changes to reflect DTV facilities they are operating or are authorized to operate. Consistent with our decisions above, we decline to change the facilities specified in DTV Table Appendix B where the station requesting the change does not meet the applicable interference standard and is not yet providing service to the public. We note, however, that each of these stations must file an application for authority to construct its post-transition facility, and at that time may be able, consistent with the procedures ultimately adopted in the Third Periodic Review proceeding, to specify facilities in that application that more closely approach the parameters requested in their comments. Following is a list of these stations and a description of their individual circumstances. 37. *WEDU, Tampa, FL.* Florida West Coast Public Broadcasting, Inc. (“FWCPB”), licensee of NCE station WEDU, channel *3, and WEDU-DT, channel *54, Tampa, FL, received channel *13 for its TCD in the proposed DTV Table. FWCPB requests that the proposed DTV Table Appendix B be revised to specify omnidirectional facilities for WEDU at an ERP of 40 kW. The Commission's interference analysis based on recalculated Appendix B facilities shows that WEDU would cause 1.16 percent new interference to WTLV, Jacksonville, Florida (analog channel 12, post-transition digital channel TCD channel 13). 38. *WGTV, Athens, GA.* Georgia Public Telecommunications Commission (“GPTC”), licensee of NCE station WGTV, channel *8, and permittee of WGTV-DT, channel *12, Athens, GA, received channel *8 for its TCD in the proposed DTV Table. GPTC requests that the proposed parameters in DTV Table Appendix B be changed to permit WGTV to increase power and operate with an omnidirectional antenna. The Commission's interference analysis based on recalculated Appendix B facilities shows that WGTV would cause 0.19 percent new interference to WCIQ, Mount Cheaha, Alabama (analog channel 7, post-transition digital channel 7). 39. *KOED, Tulsa, OK.* Oklahoma Educational Television Authority (“OETA”), licensee of NCE station KOED-TV, channel *11, and KOED-DT, channel *38, Tulsa, OK, received channel *11 for its TCD in the proposed DTV Table. OETA requests that DTV Table Appendix B be revised to reflect an increase in antenna height for KOED. The Commission's interference analysis based on recalculated Appendix B facilities shows that the KOED would cause 0.16 percent new interference to KTUL, Tulsa, Oklahoma (analog channel 8, post-transition digital channel 10). Requests for Alternative Channel Assignments 40. We will grant certain stations' requests for an alternative channel assignment, consistent with our proposal in the *Seventh Further Notice.* In paragraph 25 of the *Seventh Further Notice,* the Commission stated that it would consider requests for alternative channel assignments only from the following:
(1)Licensees unable to construct full, authorized DTV facilities on the TCDs that they requested and received because, in order to avoid causing impermissible interference to other TCDs and still obtain their preferred channel, they had to agree to construct facilities on their TCD that are smaller than those to which they had certified on FCC Form 381;
(2)licensees with international coordination issues which the Commission has been unable to resolve with the Canadian and Mexican governments;
(3)licensees with TCDs for low-VHF channels (channels 2-6); and
(4)new licensees and permittees that attained such status after the start of the channel election process and to which we assigned a TCD for post-transition DTV operations because their assigned NTSC or DTV channel was determined to cause impermissible interference to existing licensees. The Commission stated that licensees that want to change their DTV allotment, but which are not in any of these categories ( *e.g.* , are technically able to construct their full, authorized DTV facilities on their existing TCD) may request a change in allotment only after the DTV Table is finalized and must do so through the existing allotment procedures. 41. The Commission stated that any request for an alternative channel assignment must either meet the 0.1 percent additional interference standard or be accompanied by a request for a waiver of the 0.1 percent limit or the signed written consent of the affected licensee. The Commission stated that it would grant waivers of the 0.1 percent limit where doing so would promote overall spectrum efficiency and ensure the best possible service to the public, including service to local communities. 42. We received comments filed on behalf of 22 stations requesting a change in the channel assigned to the station for post-transition operation in the proposed DTV Table. For 13 of these stations, we will grant the requested channel change. A list of the stations for which we are granting an alternative channel appears in Appendix D5, *infra,* and we have revised the DTV Table for these stations accordingly. For each of these stations, we believe that the circumstances described by the station are consistent with one or more of the criteria for consideration of alternative channel assignments outlined in the *Seventh Further Notice.* Furthermore, none require waiver of the 0.1 percent interference standard, because they either do not exceed that limit or have acquired the agreement of the affected station(s). 43. For two stations, we deny the request for an alternative channel assignment. According to the Commission's interference analysis, the new channels requested by these stations cause interference to another station in excess of the 0.1 percent standard and there is no agreement with the affected station accepting this interference. As discussed below, we decline to waive our interference limit for these stations. Following is a brief discussion of these two stations and the relevant circumstances. 44. *KCWX, Fredericksburg, TX.* Corridor Television LLP, Inc., (“Corridor”), licensee of singleton station KCWX, channel 2, Fredericksburg, TX, received channel 5 for its TCD in the proposed DTV Table. Corridor requests the substitution of channel 8 for its TCD of channel 5. Corridor recognizes that the allotment of channel 8 to KCWX would require a waiver of the 0.1 percent interference standard, but argues that grant of a waiver would contribute to clearing the lower VHF band so that it can be used for other purposes. In addition, Corridor states that it serves viewers in a rural area that rely more heavily on overthe-air signals and that channel 8 would result in fewer signal reception difficulties for these viewers than channel 5. Corridor also argues that operation on channel 8 would reduce its operating costs. 45. Corridor argues that, with respect to new channel allotments after the transition, the Commission proposed to utilize an interference protection requirement based on engineering criteria (e.g., permissible interference), rather than geographic spacing, and to use an interference standard of 0.5 percent. Corridor argues that this proposed standard should be given significant weight in considering requests to waive the 0.1 percent standard in connection with the TCD selection process. The Commission's interference analysis shows that the requested change would cause 0.79 percent interference to KTBC, Austin, Texas (analog channel 7, post-transition digital channel 7) and 0.47 percent interference to NCE station KLRN, San Antonio, Texas (analog channel 9, post-transition digital channel 9). KTBC License, Inc., licensee of KTBC, filed an opposition to Corridor's request to waive the 0.1 percent interference limit. In addition, Alamo Public Telecommunications Council, licensee of KLRN, filed an opposition to Corridor's request, also arguing that Corridor should not receive a waiver of the 0.1 percent interference standard. 46. We note that the 0.5 percent standard is only a proposal and a different standard could be adopted. Moreover, the new interference caused to KTBC, 0.79 percent, not only significantly exceeds the current 0.1 percent interference standard applied to channel substitution requests, it also exceeds even the proposed 0.5 percent standard. In view of the significant level of impermissible interference caused by the proposed KCWX channel substitution, we decline to waive our interference limit in this situation. We do not believe that a waiver in these circumstances would promote overall spectrum efficiency or ensure the best possible television service to the public or the local community. 47. *WMYT, Rock Hill, SC.* WMYT-TV, Inc., (“WMYT”), licensee of station WMYT-TV, channel 55, and permittee of WMYT-DT, channel 39, Rock Hill, SC, received channel 39 for its TCD in the proposed DTV Table. WMYT requests the substitution of Channel 46 for its TCD of Channel 39. WMYT argues that Channel 46 is fully spaced to other stations, while Channel 39 is short-spaced to two stations. WMYT also argues that the station would cause less interference on Channel 46 at its preferred ERP than it does at the lower assigned ERP on Channel 39. In addition, WMYT states that operation on Channel 46 would permit it to serve up to 500,000 additional viewers. The Commission's interference analysis shows that the requested change would cause 0.64 percent new interference to WYCW, Asheville, NC (analog 62, post-transition digital channel 45). 48. In view of the level of interference caused to WYCW, we do not believe it is appropriate to waive our interference standard in this situation. The level of interference caused is far in excess of the applicable 0.1 percent standard. In addition, the new interference caused to WYCW of 0.64 percent exceeds even the 0.5 percent new interference standard we proposed apply to new channel allotments after the transition. As we concluded with respect to the proposed channel substitution of KCWX, *supra,* in view of the significant level of impermissible interference that would be caused by the WMYT request we do not believe that a waiver of our interference standard would promote our overall spectrum efficiency or ensure the best service to the public. Additional Requests to Change Appendix B Facilities Antenna Information 49. We deny the requests of certain stations seeking to add antenna identification numbers to the proposed post-transition DTV Table Appendix B. Several stations requested that we change the proposed DTV Table Appendix B to include such antenna identification numbers. In developing the proposed post-transition DTV Table Appendix B, we did not include any antenna identification number for stations operating with an omnidirectional antenna. An omnidirectional antenna provides the same power level in every azimuthal direction and antenna identification numbers are only used for directional antennas in order to determine the different power levels in each direction. Accordingly, where stations request the addition of an antenna identification number to Appendix B, we will not make that change if our database indicates that the station is authorized for an omnidirectional antenna. 50. In addition, Scripps Howard Broadcasting requests that we change Appendix B for KNXV, Phoenix, Arizona and WCPO, Cincinnati, Ohio to reflect an antenna pattern value of “1” for 110 degrees. Trinity Broadcasting of Indiana, Inc. makes a similar request for WCLJ, Bloomington, Indiana. The channel allotments for KNXV and WCLJ are based on the use of omnidirectional antennas, so we will delete the antenna identification number in Appendix B for these stations. For WCPO, the correct 110 degree value of 1 was used when we generated Appendix B and we will correct the antenna pattern in the FCC's CDBS database. Finally, Griffin Tulsa II Licensing, LLC requests that we change Appendix B for KQCW, Muskogee, OK to reflect a relative field value of “0.958” instead of “0.096” in the reference pattern at 280 degrees. We have made this change and it is reflected on Appendix B, *infra.* Speculative Requests To Change Appendix B Facilities 51. We reject the premature or incomplete requests of certain stations seeking changes to their facilities as proposed in the post-transition DTV Table Appendix B when these changes pertain to speculative future events or could best be accomplished through the upcoming application process. These requests are not for modifications of the coverage area as defined by the proposed DTV Table Appendix B to match authorized or licensed coverage. Instead, these stations comment that they may be unable to serve the coverage area, which is described in the proposed DTV Table Appendix B, on their post-transition channel due to differences in station parameters on the new channel or different equipment the station would like to use. These are changes that should be requested in an application to construct or modify post-transition facilities on the new channel filed consistent with the procedures and standards for such applications adopted in the Third DTV Periodic Review proceeding, including compliance with the filing freeze and interference standard. 52. Commenters notified the Commission of possible future changes to the parameters for 13 stations. See Comments of Pappas Entities, filed Jan. 25, 2007, at 4-5 (relating to station KSWT-DT, Yuma, AZ) and at 6 (relating to station KDBC-DT, El Paso, TX); Comments of Mission Broadcasting Inc. (“Mission”), filed Jan. 25, 2007, at 6-7 (relating to station KJTL-DT, Wichita Falls, TX) and at 10 (relating to WFXP-DT, Erie, PA); See Comments of Twin Cities, at 3 (relating to NCE station KTCI-DT, St. Paul, MN); Comments of The Arizona Board of Regents (“Arizona Board”), filed Jan. 25, 2007, at 1 (relating to NCE station KAET-DT, Phoenix, AZ); Comments of Barrington Peoria License LLC (“Barrington Peoria”), filed Jan. 25, 2007, at 1 (relating to NCE station WHOI-DT, Peoria, IL); Comments of the Board of Trustees of Northern Michigan University (“Northern Michigan”), filed Jan. 10, 2007, at 2 (relating to NCE station WNMU-DT, Marquette, MI); Comments of Puerto Rico Public Broadcasting Corporation, filed Jan. 25, 2007 (relating to station WIPR-DT, San Juan, PR); Comments of PTCB at 1 (relating to station KPCB-DT, Snyder, TX, whose proposed post-transition DTV Appendix B facilities accurately reflect the coverage of the KPCB certified construction permit); Comments of CBS Corporation (“CBS”), filed Jan. 25, 2007, at 4 (relating to station KCBS-DT, Los Angeles, CA); and Comments of Tribune Broadcasting Company (“Tribune”), filed Jan. 29, 2007, at 5 (relating to stations WGNO-DT and WNOL-DT, New Orleans, LA). In general, these commenters anticipate filing requests for changes to station parameters in the future, but do not yet have all of the information necessary to request changes at this time. *See, e.g.* , Comments of Pappas Entities at 4-5 (stating intent to duplicate its analog facilities for KSWT-DT) and at 6 (speculating possible need for new site for KDBC-DT); Comments of Mission at 6-7 and at 10 (stating future intent to modify KJTL-DT and WFXP-DT); and Comments of Tribune at 3 (stating intent to apply for different facilities not yet determined for WGNO-DT and WNOL-DT, both of which were destroyed by Hurricane Katrina). On July 23, 2007, Tribune filed an ex parte specifying the new parameters for these stations. *See* Tribune *ex parte* (dated July 23, 2007). In addition, in cases where a station certified to replication facilities or will not use its current DTV channel for post-transition operations, some stations comment that they may not be able to construct the precise facilities specified in the proposed DTV Table Appendix B. For example, Pappas Entities, which certified to replication facilities for KSWT-DT, argues in its comments that it is virtually impossible for a VHF directional antenna to duplicate exactly the directional pattern originally designed for a UHF antenna. This issue was addressed in the *Third DTV Periodic Review NPRM* (72 FR 37310, July 9, 2007) (“Third DTV Periodic Review NPRM”) at ¶¶ 92-93 (proposing post-transition application rules and procedures). In general, these stations note that, while the station seeks to serve the same coverage area on the post-transition channel as defined by the facilities specified in Appendix B, the station will operate with different equipment and/or other parameters on the channel than those specified in Appendix B. *See, e.g.* , Comments of Twin Cities at 3 (stating intent to use another station's existing antenna for KTCI-DT); Comments of Arizona Board at 1 (stating intent to use its analog channel's existing antenna for KAET-DT); Comments of Barrington Peoria at 1 (stating intent to use its analog channel's existing top-mounted antenna site for WHOI-DT); Comments of Northern Michigan at 2 (stating intent to use its analog channel's existing antenna site for WNMU-DT); Comments of PTCB at 1 (stating intent to use its analog channel's parameters for KPCB-DT); and Comments of CBS at 4 (stating intent to use another station's parameters for KCBS-DT). We find that these speculative or incomplete requests are not yet ripe for Commission action. If and when these stations need to request changes to station parameters and have full information regarding the nature of the changes, the station should file a request following the procedures appropriate for the change requested. 53. In response to these premature or speculative requests to modify facilities, we refer commenters to our discussion in the *Third DTV Periodic Review NPRM* concerning the rules and procedures for filing applications for construction permits to build stations' post-transition
(DTV)facilities and to request authorization to maximize facilities. We remind stations that they must file construction permit or modification applications (i.e., FCC Form 301 or 340) if they need to request authority to construct or modify their post-transition facilities. Moreover, in the *Third DTV Periodic Review NPRM,* the Commission proposed that stations must limit their applications to those facilities specified in the new DTV Table Appendix B and that applications requesting facilities that would serve a larger area than stations' new DTV Table Appendix B facilities would not be accepted. Stations that wish to apply for reduced facilities may do so, but must comply with the reduction standard ultimately adopted in the Third DTV Periodic Report and Order. 54. The appropriate rules, procedures and timing for filing these applications will depend on whether the station will be using its current DTV channel or another channel for post-transition operations. Stations KSWT-DT, KDBC-DT, KJTL-DT and WFXP-DT will use their current DTV channel for post-transition operations. These stations, and others that seek to modify their facility on their current DTV channel, may file an application at any time, provided they comply with the relevant interference standard and do not violate the filing freeze. In response to Pappas Entities' request for clarification on this issue, we note that the filing freeze does not preclude the filing of an application to modify a construction permit to specify facilities listed for the station in the post-transition DTV Table Appendix B. Accordingly, Pappas can file for modification based on current rules and procedures and does not need a waiver of the freeze. However, to the extent that Pappas seeks a change in its post-transition DTV facilities that would result in an expanded or shifted coverage area, such a change would violate the filing freeze and Pappas must wait until the freeze is lifted to make such a request. 55. Stations KTCI-DT, KAET-DT, WHOI-DT, WNMU-DT, KPCB-DT, WIPR-DT, and KCBS-DT will use a different channel from their current DTV channel for post-transition operations. These stations, and others that seek to use their analog channel or a new channel for post-transition operations, may not file an application to construct their post-transition facilities until the final post-transition rules and procedures are established by the Report and Order in the Third DTV Periodic Review proceeding. We recognize that these stations may need to request different parameters from those specified in the post-transition DTV Table Appendix B, even though these stations are not seeking to change the coverage area of their post-transition channel. These stations should address this situation in their applications for their post-transition channels. If a station that is moving to a different channel for post-transition use determines that the parameters necessary to serve the coverage area specified in the post-transition DTV Table Appendix B differ from those specified in the post-transition DTV Table Appendix B, it should apply for those changes in its application. The Commission will evaluate those applications using the interference standard and other processing standards adopted in the Third DTV Periodic Report and Order. 56. We note that some commenters have asked for changes to the proposed post-transition DTV Table Appendix B facilities to conform to specific parts of their licensed or authorized facilities. Although we are allowing stations to change their certifications and post-transition DTV Table Appendix B facilities to reflect an existing license or authorization, stations must conform to all portions of that license or authorization and may not choose various parts of that license or authorization. 57. *WGNO and WNOL, New Orleans, LA.* Tribune Television New Orleans, Inc. (“Tribune”), licensee of station WGNO, channel 26, and permittee of WGNO-DT, channel 15, New Orleans, LA, received channel 26 for its TCD in the proposed DTV Table. Tribune is also the licensee of station WNOL, channel 38, and permittee of WNOL-DT, channel 40, New Orleans, LA, which received channel 15 for its TCD in the proposed DTV Table. Tribune states that the analog and digital transmission facilities of both of these stations were destroyed by Hurricane Katrina. Tribune states that it has worked to resume and then improve reduced-power analog operations for both stations but that it has not yet been able to restore DTV operations. Tribune is evaluating alternative sites for the DTV operations of these stations and recently reported that it has finalized negotiations to relocate the digital operations of the stations to another tower. Tribune recently filed an *ex parte* to request that the proposed DTV allotments for WGNO and WNOL be changed to reflect the technical parameters for the facilities it will construct at the new site. The Commission is committed to continuing to work with stations affected by Hurricane Katrina to help those stations commence or re-commence operations. Because this request applies to post-transition operations, we will offer the proposal for further comment. Proposals Subject to the Filing Freeze 58. We deny the requests of stations seeking a waiver of the filing freeze, except for one station which has demonstrated unique circumstances. Seven stations filed comments requesting a change in and/or expansion of the facilities specified in the proposed post-transition DTV Table Appendix B that is inconsistent with the August 2004 filing freeze. This freeze on the filing of certain applications was imposed to provide for a stable database while the Commission developed the post-transition DTV Table. The freeze precludes any expansion of a station's post-transition noise limited service contour beyond that of the station's certified Grade B contour. The freeze remains in effect while the DTV Table is being finalized to assist the Commission in providing stations with authorizations for post-transition facilities. The stations whose comments are discussed below are not requesting changes to DTV Table Appendix B to reflect authorized facilities to which they could have certified on FCC Form 381, consistent with the 0.1 percent interference standard, or to match constructed and operating facilities. In contrast, the stations discussed below are requesting changes that violate the filing freeze and do not meet the criteria for a change to certified facilities discussed in the *Seventh Further Notice.* 59. For one station, WLAE, New Orleans, LA, we hereby waive the filing freeze and make the changes requested to the DTV Table Appendix B adopted herein. For the reasons discussed below, we believe that a waiver of the freeze for this station is warranted. For the other stations discussed below, we decline to waive the filing freeze and decline to make the requested changes to Appendix B. In order to preserve the integrity of the licensing process and avoid giving certain stations an unfair advantage over others in seeking expanded facilities, we have granted waivers of the filing freeze only in very limited circumstances. In general, before we can consider stations' requests to modify and, in particular, expand their DTV facilities, we must first ensure that all stations can at least provide digital service to their analog viewers by the transition date. Except for the unique circumstances present in the case of WLAE, we find that these stations have failed to demonstrate that a waiver of the freeze would advance their transition to DTV or that the station's circumstances warrant a waiver of the freeze for any other reason. A description of these stations' individual circumstances is provided below. 60. *WLAE, New Orleans, LA.* Educational Broadcasting Foundation, Inc. (“EBFI”), licensee of NCE station WLAE, channel 32 and permittee of WLAE-DT, channel 31, New Orleans, LA, received channel 31 for its TCD in the proposed DTV Table. EBFI did not file a Form 381 for WLAE and, accordingly, the station received replication facilities in the proposed post-transition DTV Table Appendix B. At the time that certifications were due, WLAE-DT had a construction permit for maximized facilities. In August 2005, WLAE's facilities were destroyed by Hurricane Katrina. EBFI now asks to change the station's certification to its previously authorized maximized facilities. 61. We will waive the freeze to allow WLAE-DT to apply for the maximized facilities specified in its initial construction permit. WLAE was one of the 41 stations expressly invited to request maximized facilities for which they would have been allowed to certify. As noted above, the WLAE-DT maximized facilities were authorized at the time that certifications were filed. Our actions herein will aid in the restoration of public television service to the city of New Orleans. 62. *WBPG, Gulf Shores, AL.* LIN of Alabama, L.L.C. (“LIN”), singleton licensee of analog station WBPG, channel 55, Gulf Shores, AL, received channel 25 for its TCD in the proposed DTV Table. The previous licensee of WBPG certified on FCC Form 381 that the station did not have a digital allotment and would operate post-transition based on its currently authorized analog facilities. In comments filed to this proceeding, LIN seeks to maximize its Appendix B facilities for WBPG by increasing its ERP, changing its antenna pattern, and changing transmitter location. The changes requested would violate the filing freeze. LIN does not have an existing authorization for these facilities and does not meet the criteria for a change to certified facilities discussed in the *Seventh Further Notice.* 63. *WUOA, Tuscaloosa, AL.* The Board of Trustees of the University of Alabama (“University of Alabama”), singleton licensee of analog station WUOA, channel 23, Tuscaloosa, AL, received channel 23 for its TCD in the proposed DTV Table. The previous licensee of WUOA, Channel 23, LLC, certified in its FCC Form 381 that it did not have a DTV channel allotment and intended to operate its post-transition station based on its currently authorized analog license. In comments filed to this proceeding, the University of Alabama seeks to maximize the Appendix B facilities for WUOA by increasing the permitted ERP, changing the antenna pattern, and changing transmitter location. The facilities requested would violate the filing freeze. The University of Alabama does not have an existing authorization for such facilities and the request does not meet the criteria for a change to certified facilities discussed in the *Seventh Further Notice.* 64. *KQSD, Lowry, SD.* South Dakota Board of Directors for Educational Telecommunications (“SDBD”), licensee of NCE station KQSD-TV, channel *11 and KQSD-DT, channel *15, Lowry, SD, received its analog channel *11 for its TCD in the proposed DTV Table. In its FCC Form 381, SDBD certified to replication facilities and was given the allotted replication facilities in the proposed Appendix B. In its comments, SDBD requests a change in Appendix B for KQSD-DT to increase the HAAT and change the geographic coordinates. These changes violate the filing freeze. KQSD does not have a current authorization for these facilities and the request does not meet the criteria for a change to certified facilities discussed in the *Seventh Further Notice.* 65. *KNVA, Austin, TX.* 54 Broadcasting, Inc. (“54 Broadcasting”), licensee of station KNVA, channel 54, and KNVA-DT, channel 49, Austin, TX, received channel 49 for its TCD in the proposed DTV Table. In its FCC Form 381, 54 Broadcasting certified that KNVA would operate post-transition at maximized facilities as authorized by an existing construction permit. 54 Broadcasting's comments request that its allotment be changed to allow operation post-transition at a lower ERP but using an omnidirectional instead of a directional antenna to provide more viewers with DTV service. These requested changes would violate the freeze. KNVA does not have a current authorization for these facilities and the request does not meet the criteria for a change to certified facilities discussed in the *Seventh Further Notice.* 66. *KPXC, Denver, CO* . Paxson Denver License, Inc. (“Paxson”), licensee of station KPXC-TV, channel 59, and permittee of KPXC-DT, channel 43, Denver, CO, received channel 43 for its TCD in the proposed DTV Table. In its FCC Form 381, Paxson certified to replication facilities, which are reflected in the proposed Appendix B parameters for KPXC-DT. In its comments, Paxson seeks a change in KPXC's certified facilities to conform to those it recently requested in a January 2007 construction permit application, including a site change. Paxson states that the would-be tower owner at the original KPXC-DT site received initial local zoning board approval from the Board of Commissioners of Jefferson County in 2003, which was affirmed by the Jefferson County District Court. In 2006, however, the decision was overturned by the Colorado Appeals Court which remanded the case to the Board of Commissioners. The Board of Commissioners subsequently sought certiorari from the Colorado Supreme Court, which has yet to make a decision. Paxson states it “has no expectation that it could construct the station on Mt. Morrison before the statutory termination of analog service” and it would thus be “more reasonable for the allotment to correspond to the parameters proposed in the new CP application.” 67. Paxson's request would result in a significant shift in the area served by KPXC, such that the station's digital signal would not reach a large area that is currently served by this station, and would violate the filing freeze. We are concerned, however, about the zoning issue faced by this station and by Paxson's stated expectation that it will not be able to construct its full DTV facility before the transition deadline on February 17, 2009. While we do not believe that shifting Paxson's coverage as proposed is the proper resolution, and therefore deny Paxson's request for a waiver of the freeze, we hereby invite Paxson to propose another site that would result in a less dramatic change to its current service area and population. We will consider such a request in the application process following adoption of the Report and Order in the Third DTV Periodic Review proceeding. We also urge Paxson to keep us informed concerning progress and events in the zoning case in Colorado. 68. *WMHT, Schenectady, NY* . WMHT Educational Telecommunications (“WMHT”), licensee of NCE station WMHT-TV, channel *17, and permittee of WMHT-DT, channel *34, Schenectady, NY, received channel *34 for its TCD in the proposed DTV Table. In its comments, WMHT supports the proposed allotment of channel *34 but requests a change of its community of license from Schenectady to Albany. WMHT argues that it should be allowed to change its community of license because its market is defined as a hyphenated market, Schenectady-Albany, in the NTSC Table of Allotments. In addition, WMHT argues that the station's “Troy studio and Altamont tower locations permit it to serve the entire New York Capital District and beyond.” No other comments were filed related to this TCD. 69. We decline to make the allotment change requested by WMHT at this time. The Commission did not use hyphenated markets in the initial DTV Table and did not use hyphenated markets in the new DTV Table proposed in the *Seventh Further Notice* . While the market may have been hyphenated in the NTSC Table, WMHT's license lists the station's market as Schenectady and not as a hyphenated market. WMHT's request to change its community of license is precluded by the Commission's filing freeze. We further conclude that WMHT has not demonstrated that a waiver of the freeze is warranted. WMHT does not suggest that the change in community of license is necessary to advance its digital transition process. Instead, WMHT states only that the proposed change “entails no change in the current operation,” “will result in no diminution of service to Schenectady,” and is intended for “future state funding, grant funding, and membership recruitment” because an Albany community license provides “greater recognition to the licensee's operations.” We note that WMHT may seek a change in its community of license after the freeze is lifted, consistent with the Commission's rules for post-transition operations. Stations Not Eligible To Participate in the Channel Election Process 70. We deny the requests of pending applicants for a new television station to add new allotments to the post-transition DTV Table. Comments were filed by such pending applicants arguing that the Commission failed to include such allotments in the proposed DTV Table. In each case, the commenter has an application for a construction permit for a new television station on the requested new allotment pending at the Commission. In the *Second DTV Periodic Report and Order* , the Commission made it clear that only Commission licensees and permittees would be eligible to participate in the channel election process. Applicants for new stations and petitioners for new allotments were expressly excluded from making elections. In the *Seventh Further Notice* , we noted that a number of pending applications for new television stations had been granted since the start of the channel election process, and we accommodated those permittees with TCDs in the proposed DTV Table. In addition, we announced a method by which we would assign TCDs to other new permittees whose pending applications for new television stations were granted before an Order finalizing the DTV Table is adopted. We also stated that, before the end of the transition, we would issue an NPRM to amend the DTV Table in order to allot a DTV channel for each remaining authorized facility that does not have an allotted DTV channel. Thus, if any other pending applications are granted before the end of the transition, we will attempt to accommodate these stations with a DTV channel for post transition operation. Stations Awaiting International Coordination 71. In the *Seventh Further Notice* , the Commission noted that proposed allotments near the U.S.-Canadian and U.S.-Mexican borders require coordination with those countries. The Commission stated that our international negotiations are continuing in a cooperative manner and we indicated that we do not believe that these negotiations will delay stations' ability to construct their post-transition facilities. We continue to believe that international coordination of digital allotments will proceed in a manner that will allow affected stations to construct digital facilities by the transition deadline. In some cases, however, stations may need to proceed with constructing authorized facilities to the extent approved by Canada or Mexico, even if those facilities differ from the preferred facilities sought by the station, if international coordination issues arise that delay action on a pending application and those issues cannot be resolved in time to allow construction to be completed before the end of the transition. 72. We note that all stations in the U.S.-Canadian or U.S.-Mexican border area with a TCD on a channel that is not their current digital channel will have to file an application for the TCD channel following adoption of the Report and Order in the Third DTV Periodic Review proceeding. A list of these stations is attached hereto in Appendix D4. The Commission is working to coordinate all Appendix B facilities as a group so that individual applications do not need to be coordinated. If there are circumstances where this is not possible, the Commission will work with these stations to expedite international coordination of their applications. 73. In the *Seventh Further Notice* , the Commission identified two allotments for which it had received recent objections from Industry Canada: WBSF-DT, (TCD on channel 46), Bay City, MI and KAYU-DT, (TCD on channel 28), Spokane, WA. The Commission included the TCDs for these channels in the proposed DTV Table, but sought comment from these licensees concerning whether they are willing to reduce coverage on the TCD in order to address Canadian concerns. The Commission also noted that these licensees could request an alternative post-transition DTV allotment. Both of these stations have filed comments indicating their belief that the current proposed TCD does not in fact cause impermissible interference, and have submitted engineering statements in support of their positions. These stations request that the Commission continue to negotiate with Industry Canada to permit them to operate on the TCD proposed in the *Seventh Further Notice* . We are adopting our proposed allotments for these stations, subject to our continuing negotiations with Canada which relate to these allotments as well as all other new DTV allotments in the border area. Resolution of TCDs Pending After Round Three 74. We adopt our tentative conclusions in the *Seventh Further Notice* with respect to the resolution of four allotments that remained outstanding after TCDs were announced for the third round of channel elections. The Commission noted that these TCDs represented challenging and difficult cases in crowded markets necessitating waiver of the freeze or the 0.1 percent interference standard in order to find appropriate channels for post-transition operation that would ensure the best possible service to the public and promote overall spectrum efficiency. We received comments from some of the parties involved in these cases and address each of these proposed allotments below. 75. *WABC, New York, NY* . American Broadcasting Companies, Inc. (“ABC”), the licensee of station WABC-TV, channel 7 and WABC-DT, channel 45, New York, NY, was granted a waiver of the 0.1 percent interference standard in the *Seventh Further Notice* and received channel 7 for its TCD in the proposed DTV Table. ABC and The New Jersey Public Broadcasting Authority (“NJPBA”), the permittee of WNJB-DT, channel *8, New Brunswick, NJ, filed comments related to this TCD. During the channel election process, NJPBA initially objected to the grant of a waiver for WABC and later sought a waiver of the freeze to move its digital operations on channel 8 to New York City. These arguments were fully considered by the Commission in deciding to grant ABC's request for waiver of the 0.1 percent interference standard, required in light of the predicted 2.8 percent new interference to WNJB. The Commission concluded that the loss of service for WABC would affect current viewers of WABC, while the predicted loss of service for WNJB would affect areas outside of its current service area and primarily outside of the state of New Jersey. The Commission noted that WABC has been a pioneer of digital service, having built full-power digital operations in 2001 and re-built them first at Four Times Square and then on the Empire State Building, with a back-up facility at Alpine Tower in New Jersey, after the September 11, 2001 loss of the World Trade Center. In addition, the Commission noted that allotting channel 7 to WABC would eliminate any interference concerns between WABC and both WEDH-TV, an NCE station in Hartford, CT (analog channel *24, post-transition digital channel *45), and WOLF-TV in Hazleton, PA (analog channel 56, post-transition digital channel 45). 76. Because ABC sought the waiver during the channel election process, both parties had an opportunity to present their arguments prior to the adoption of the *Seventh Further Notice* . We find that NJPBA has not raised any new arguments that would cause us to reverse our grant of the interference standard waiver to ABC. We note that NJPBA contests the Commission's statement in the *Seventh Further Notice* that WNJB had not built its digital facility. In fact, WNJB has built only smaller DTV facilities pursuant to STA and has still not constructed its full, authorized DTV facility, in contrast to WABC's early construction and rebuilding of full DTV facilities after the September 11, 2001 destruction of their facilities. 77. NJPBA also claims that, based on an agreement between the parties, it is entitled to a waiver of the Commission's current freeze on modification applications and thereby allowed to co-locate its transmitting facilities at Four Times Square in New York City. As noted by ABC, NJPBA did not file its application and waiver request to modify WNJB-DT's facilities until after release of the *Seventh Further Notice* . Moreover, NJPBA offers no showing that it could not achieve its transition absent a waiver of the freeze. Thus, we disagree with NJPBA that allotment of channel 7 to ABC necessitates, or entitles NJPBA to, a waiver of the freeze. The Media Bureau will consider WNJB's application and waiver request in the normal course of processing. As noted in the *Seventh Further Notice* , consideration of NJPBA's application is best left until after the filing freeze is lifted. Accordingly, we allot channel 7 to WABC. 78. *WEDH, Hartford, CT and WEDN, Norwich, CT* . Connecticut Public Broadcasting, Inc. (“CPBI”), the licensee of NCE stations WEDH, channel *24, permittee of WEDH-DT, channel *32, Hartford, CT and WEDN, channel *53, permittee of WEDN-DT, channel *9, Norwich, CT, received a TCD of channel *45 for WEDH in Hartford and a TCD of channel *9 for WEDN in Norwich in the proposed DTV Table. In proposing these allotments, the Commission found it necessary to supersede a pending swap application and rulemaking pertaining to CPBI's pre-transition facilities. CPBI filed comments in favor of these proposed allotments. No comments were filed opposing these proposed allotments. Accordingly, we allot channel *45 to WEDH, Hartford, CT and channel *9 to WEDN, Norwich, CT. 79. Although CPBI supported the post-transition allotments, it objected to the Commission's decision to supersede the swap application and channel substitution rulemaking proceedings associated with the changes CPBI requested for its Hartford and Norwich stations. We cannot reinstate these applications without vitiating the basis for the post-transition channel allotments for WEDH and WEDN. We recognize, however, that CPBI wants to use their new allotments for pre-transition DTV operations. In that regard, we note that the *Third DTV Periodic Review NPRM* seeks comment on a proposal to allow stations that are moving to new post-transition channels (such as WEDH and WEDN) to begin operating on their new channels before the transition date, under certain conditions. If such a proposal is adopted, CPBI would be able to apply for pre-transition DTV operations on their new allotments. 80. *KTFK, Stockton, CA* . Telefutura Sacramento, LLC (“Telefutura”), the licensee of station KTFK-TV, channel 64, and KTFK-DT, channel 62, Stockton, CA, was granted a waiver of the filing freeze in the *Seventh Further Notice* to permit it to modify KTFK's certified facilities and receive channel 26 for its TCD in the proposed DTV Table. No comments were filed opposing this proposed allotment. Accordingly, we adopt this TCD and allot channel 26 to KTFK, Stockton, CA. 81. *KVIE, Sacramento, CA* . KVIE, Inc., the licensee of NCE station KVIE, channel *6 and KVIE-DT, channel *53, Sacramento, CA, was granted a waiver of the 0.1 percent interference standard and received channel *9 for its TCD in the proposed DTV Table. KVIE, Inc. filed comments in favor of the proposed allotment. No comments were filed opposing this proposed allotment. Accordingly, we adopt this TCD and allot channel *9 to KVIE(TV), Sacramento, CA. TCDs for New Permittees Granted During Proceeding 82. We adopt the TCDs announced for the six new permittees in the *New Permittees Public Notice* (72 FR 2485, January 19, 2007) (“New Permittees Public Notice”). As discussed, *supra* , six pending applications were granted during this rulemaking, and proposed TCDs for the new permittees were published for comment in the *New Permittees Public Notice* . There were no comments, or only favorable comments, regarding the TCDs of five of the permittees, and they are therefore included in this *Report and Order* 's modified DTV Table and Appendix B. An objection was raised to the TCD of one of the new permittees, and is discussed below. 83. *KCWV, Duluth, MN* . George S. Flinn, III, new permittee of station KCWV-TV, channel 27, Duluth, MN, received channel 27 for KCWV's TCD in the Public Notice. The State of Wisconsin—Educational Communications Board (“ECB”) filed comments in opposition. ECB is the licensee of NCE station WHWC-DT, Channel *27, Menomonie, WI, which received channel 27 for its TCD in the proposed DTV Table. ECB states its belief that the proposed allotment of channel 27 to Duluth “would cause interference to WHWC-DT for 10,995 persons, or 1.290 percent of its noise limited service area,” including “new interference from Duluth channel 27 of 0.345 percent of the population served.” ECB asks the Commission to instead assign channel 47 to KCWV, arguing that such an allotment “would cause considerably less interference.” Mr. Flinn did not file a reply. 84. Prior to the issuance of the *New Permittees Public Notice* , the TCDs of all new permittees were analyzed using computer software techniques that have been validated through extensive testing and comparison of results with similar software used by other parties participating in this proceeding. At that time, the Commission's interference analysis indicated that no station would receive impermissible interference from KCWV's TCD. We have considered the analysis offered in ECB's pleadings, and we find that they do not match our findings. We are confident that the results of our interference analysis are correct and accurately reflect the service areas to be provided with the facilities specified and the interference conditions that are expected to be present among stations. We therefore include KCWV in the modified DTV Table and Appendix B. Stations To Be Deleted From the DTV Table 85. Two stations, Delta College, licensee of NCE station WDCP-TV, University Center, MI, analog channel *19 and permittee of DTV channel *18, and Rockfleet Broadcasting II, LLC, (“Rockfleet”) licensee of station WFUP, channel 45, and permittee of WFUP-DT, channel 59, Vanderbilt, MI (satellite station of WFUX-TV, Cadillac, MI), have notified us that they do not intend to construct DTV facilities and will cease operation after February 17, 2009. Delta College filed a comment and requested that we delete the TCD for WDCP on channel 18 from the Table of Allotments. 86. Rockfleet notified us during the first round of the channel elections that it does not intend to construct a post-transition DTV facility for WFUP. Rockfleet explained that Vanderbilt will be served by the digital signal of WFUX-DT. Consequently, we did not assign a TCD for this station. Rockfleet will surrender its license for cancellation after February 17, 2009. 4. Other Requests 87. *WSWP, Grandview, WV.* We grant the request of West Virginia Educational Broadcasting Authority (“WVEBA”), licensee of NCE station WSWP-TV, channel *9 and permittee of WSWP-DT, channel *53, Grandview, WV, which received channel *10 for its TCD in the proposed DTV Table, for a waiver of the 0.1 percent interference standard up to 2.0 percent and to the extent that it is consistent with the filing freeze. WVEBA requests a waiver of the 0.1 percent interference standard, claiming that WSWP-DT cannot replicate the station's existing analog service area on the proposed allotment for channel *10. Davis Television Clarksburg, LLC (“DTC”), permittee of WVFX-DT, channel 10, Clarksburg, WV, and TCD on channel 10 in the proposed DTV Table, filed reply comments opposing WVEBA's waiver request. 88. In the first channel election round, WVEBA elected its analog channel *9; however, this election was determined to cause more than 2.0 percent new interference, and, thus, disapproved. In the second round, WVEBA elected channel 11, but this election was also rejected because it was determined to cause more than 0.1 percent new interference. In the third round, WVEBA elected channel 10. This election was also determined to cause more than 0.1 percent new interference. Consequently, WVEBA received channel *10 as its TCD, but at reduced facilities in order to bring the station into compliance with the 0.1 percent interference standard. Specifically, WSWP's ERP was reduced to 2.5 kW. In response to the *Third Round TCD PN* , WVEBA filed a “Request for Partial Reconsideration,” supporting its proposed channel allotment, but requesting to operate at 10 kW in order to “adequately serve the station's current audience.” 89. The *Seventh Further Notice* proposed channel *10 as WSWP's TCD at 2.5 kW ERP in the post-transition DTV Table. WVEBA filed comments in response to the *Seventh Further Notice* and now asks for 20 kW ERP. WVEBA contends that this power level is necessary for the station to replicate its analog coverage. 90. WVEBA certified to its replication facilities on Form 381. WVEBA claims that its current analog station serves 906,075 people and that its proposed operation of its digital facility on channel 10 at 20 kW ERP would serve 900,098 people. WVEBA further asserts that its proposal to operate WSWP at 20 kW ERP will result in new interference of 0.7 percent to WVFX-DT, which it acknowledges exceeds the 0.1 percent interference standard, but claims is necessary “to meet its certification to replicate its NTSC coverage.” DTC replies that WVEBA overstates WSWP's present analog population coverage and understates the interference to WVFX-DT, claiming that WVEBA's proposal would cause more than 1.4 percent new interference. 91. We agree with DTC that WVEBA overstates WSWP's present analog population coverage, but we also concur with WVEBA that WSWP-DT's operation at the proposed 2.5 kW ERP would not fully replicate its existing analog coverage. We also find, however, that operation of channel *10 at 20 kW ERP would exceed the station's certified replication facilities and violate the current freeze on expansion of a noise limited service contour beyond its certified replication contour. To resolve the conflict, we have analyzed WSWP's channel facilities using a modified replication approach to derive the proposed facilities from the analog Grade B contour on which the initial DTV Table facilities were based and determined that WSWP could replicate its analog coverage at 18.6 kW. Operation of WSWP-DT at 18.6 kW, however, would cause 1.73 percent new interference to WVFX-DT, which exceeds the 0.1 percent interference standard. Therefore, we must consider WVEBA's waiver request. 92. In evaluating WVEBA's request for a waiver of the 0.1 percent interference standard, we find that although WVEBA's circumstances are dissimilar to two stations that were granted waivers in the *Seventh Further Notice* , WVEBA does offer important public interest bases that merit a waiver in this case. First, WVEBA had an out-of-core DTV channel, which would have warranted a 2.0 percent interference allowance to elect its analog channel *9 in the first round. However, use of channel 9 would have exceeded the 2.0 percent standard. Second, although there are UHF channels available in its market, WVEBA has argued persuasively that a UHF channel would not replicate the station's analog coverage due to the mountainous terrain in WSWP's service area and would require this educational station to incur “significant increased capital and operational costs.” Third, NCE station WSWP offers unique educational programming to an economically disadvantaged community that relies on over-the-air broadcasting for their TV service. 93. Our analysis indicates that WSWP's operation on channel 10 with full replication facilities would cause less total interference than would its operation on channel 9, 11 or any other high VHF channel. We conclude that WSWP would have been eligible for up to 2.0 percent new interference using its own analog channel 9 for post-transition DTV operation. Operation on channel 9 would have exceeded 2.0 percent new interference, while operation on channel 10 at 18.6 kW does not. Therefore, we grant WVEBA's request for waiver of the 0.1 percent interference standard and establish its Appendix B facilities at 18.6 kW ERP on channel *10. 94. *KTAZ, Phoenix, AZ.* We grant the request of NBC Telemundo License, Co. (“NBC Telemundo”), licensee of singleton station KTAZ, channel 39, Phoenix, AZ, which received channel 39 for its TCD in the proposed DTV Table, to change station KTAZ's post-transition DTV Table Appendix B facilities. In 2005, the Commission approved a modification to the analog Table of Allotments sought by NBC Telemundo and Community Television Educators, Inc. (“CTE”) which substituted Channel 39 for noncommercial reserved Channel 39 (*39) in Phoenix, substituted noncommercial reserved Channel 11 (*11) for Channel 11 in Holbrook, Arizona, and authorized NBC Telemundo to operate on Channel 39 in Phoenix and CTE to operate on Channel *11 in Holbrook. The Commission subsequently granted minor modification applications filed by the parties to implement the channel substitutions. The proposed post-transition DTV Table Appendix B lists the Facility ID for the former Channel *39 facility for KTAZ, rather than the Facility ID for the new Channel 39 facility. NBC Telemundo requests that Appendix B be revised to reflect the correct Facility ID for the new Channel 39 facility. 95. In addition, NBC Telemundo states that the technical facilities specified in Appendix B for Channel 39 are no longer accurate. KTAZ does not have a paired digital channel. The technical facilities specified in Appendix B for Channel 39 reflect the digital parameters applied for by CTE prior to the channel substitutions. NBC Telemundo states that it recently relocated the Channel 39 analog facility to a new tower. 96. We have revised DTV Table Appendix B as adopted herein to reflect operation of a digital station on Channel 39 in Phoenix with parameters reflected in the analog authorization approved by the Commission for KTAZ. In addition, we have revised Appendix B to reflect the correct Facility ID for both KTAZ and Channel *11 in Holbrook. 97. *WNYA, Pittsfield, MA.* In response to comments filed opposing the proposed post-transition facilities of WNYA, Pittsfield, MA, we will change station WNYA's post-transition DTV Table Appendix B facilities. Venture Technologies Group, LLC, licensee of singleton station WNYA, channel 51, Pittsfield, MA, received channel 13 for its TCD in the proposed post-transition DTV Table. WNYT-TV, LLC (“WNYT”), licensee of station WNYT, channel 13, and WNYT-DT, channel 12, Albany, NY, which received channel 12 for its TCD in the proposed post-transition DTV Table, objects to the facilities proposed for WNYA in the post-transition DTV Table Appendix B. WNYA did not respond to the WNYT comments. 98. The proposed post-transition DTV Table Appendix B specifies a site change for WNYA which would move that station's DTV facility from the WNYA analog site in Pittsfield to WNYT's licensed site near Albany. WNYA specified this site change in its second round conflict decision form (FCC Form 385) to resolve an interference conflict of 3.7 percent with WNYT, which resulted from WNYA's election of channel 13. In its comments, WNYT claims that the ERP of 28kW that is proposed for WNYA in Appendix B, is substantially in excess of that permitted for a DTV station on channel 13 in Zone 1. WNYT requests that the Commission revise Appendix B for WNYA to specify the Pittsfield site for that station with parameters that would permit WNYA to comply with its FCC Form 381 certification. 99. WNYT is correct that the power specified in the proposed Appendix B for WNYA exceeds the maximum allowed pursuant to 73.622(f)(7)(ii). At an HAAT of 396 meters, the maximum ERP for a channel 13, Zone 1 DTV station is 12.6 kW. However, WNYT's request that we change WNYA's Appendix B facilities to specify the Pittsfield transmitter site would not address the interference conflict found in round 2 of the channel election process. 100. We conclude that WNYA can serve most of its certified coverage area from the site near Albany, at reduced power. We have determined that WNYA can provide an acceptable predicted field strength over Pittsfield, Massachusetts, its city of license, based on its FCC Form 385 facilities with its maximum ERP reduced from the proposed 28 kW to 12.6 kW. In addition, at this reduced power, WNYA's operation on channel 13 will cause any additional interference. Therefore, we are changing Appendix B to specify an ERP for WNYA of 12.6 kW. 101. *WLFL, Raleigh, NC.* We deny the request of Sinclair Broadcast Group, Inc. (“Sinclair”), the parent entity of the licensee of station WLFL, channel 22 and permittee of WLFL-DT, channel 57, Raleigh, NC, which received channel 27 for its TCD in the proposed DTV Table. We conclude that it is not necessary to increase the ERP for this station. 102. In its Form 381, Sinclair certified to maximized facilities for WLFL-DT as authorized by its construction permit. In the first round, Sinclair obtained a TCD for channel 27 through an approved NCA with station WRDC, Durham, NC. Sinclair's comments claim that the power listed for channel 27 on Appendix B is incorrect. In fact, the proposed channel 27 power is less than the certified channel 57 power so that the post-transition facilities will match the certified facilities' coverage. Consequently, no change in Appendix B is needed to provide WLFL-DT with its certified coverage. 103. *KCET, Los Angeles, CA.* Community Television of Southern California (“CTSC”), licensee of NCE station KCET, channel *28, and KCET-DT, channel *59, Los Angeles, CA, received channel *28 for its TCD in the proposed DTV Table. CTSC states in its comments that it certified that it would operate noncommercial educational station KCET with maximized facilities on channel *28 for post-transition operations but the Commission disapproved the election because it was projected to cause interference of 2.3 percent to the elected DTV channel 27 of KEYT, Santa Barbara, California (analog channel 3, post-transition digital channel 27). CTSC states that it changed its election to specify replication facilities on channel *28 but reserved its right to seek maximized facilities should circumstances permit. 104. On July 7, 2006, Smith Media License Holdings, LLC (“Smith”) filed a letter requesting a waiver of the July 1, 2006 replication/maximization deadline with respect to KEYT-DT. In that letter, Smith indicated that for KEYT-DT to operate with its allotted replication facilities, as the prior owner certified, Smith would have to increase the ERP for KEYT to approximately 698 kW. Smith indicated that, because of electrical capacity limits at the station's antenna site, it did not anticipate being able to increase power at the antenna site until near the end of the DTV transition. 105. According to CTSC, the maximized facilities it originally proposed for KCET-DT on Channel *28 would not cause impermissible interference to the facilities of KEYT-DT on Channel *27 if KEYT-DT operates with an ERP of 699 kW. Accordingly, CTSC requests that the Commission change DTV Table Appendix B to specify maximized parameters for KCET-DT. Smith objects to CTSC's request and urges the Commission to continue to protect the KEYT-DT post-transition allotment. We deny the request of CTSC to change DTV Table Appendix B for KCET. We note the disagreement of CTSC, but have already determined that the KCET maximized facilities would cause interference to the certified facilities of KEYT-DT on its TCD in excess of the permissible limit. Our analysis was performed using computer software techniques that have been validated through extensive testing and comparison of results with similar software used by other parties participating in this proceeding. We are confident that the result of our interference analysis is correct, and there is no agreement with the affected station to accept this interference. The Commission will determine in the Third DTV Periodic Review Report and Order what interference standards and other procedures to apply to stations seeking to file applications for changes to station parameters post-transition. KCET may choose to file an application at that time. Procedural Matters Seventh Report and Order Final Regulatory Flexibility Analysis 106. As required by the Regulatory Flexibility Act of 1980 (“RFA”), the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this *Seventh Report and Order.* Final Paperwork Reduction Act Analysis 107. This *Seventh Report and Order* was analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”) and does not contain any information collection requirements. Congressional Review Act 108. The Commission will send a copy of this *Seventh Report and Order* in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act. Final Regulatory Flexibility Act Analysis 109. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”) an Initial Regulatory Flexibility Analysis (“IRFA”) was incorporated in the *Seventh Further Notice of Proposed Rulemaking (“Seventh Further Notice”).* The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. The comments received are discussed below. The Commission received no comments on the IRFA. This present Final Regulatory Flexibility Analysis (“FRFA”) conforms to the RFA. A. Need for, and Objectives of, the Report and Order 110. This *Seventh Report and Order (“Seventh R&O”)* adopts rules implementing a new post-transition DTV Table of Allotments (“DTV Table”), providing all eligible full power broadcast television stations with channels for DTV operations after the transition. The new post-transition DTV Table finalizes the channel and facilities necessary to complete the digital transition for full power television stations, including full power commercial and noncommercial broadcast television stations. 111. The new post-transition DTV Table is based on the tentative channel designations (“TCDs”) announced for eligible broadcast licensees through the channel election process, as well as on the Commission's efforts to promote overall spectrum efficiency and ensure the best possible service to the public, including service to local communities. During this election process, which was established by the *Second DTV Periodic Report and Order,* eligible full power broadcast licensees selected their ultimate DTV channel inside the “core spectrum,” consisting of current television channels 2 through 51 (54-698 MHz). In developing the proposed new allotments, the Commission sought to accommodate broadcasters' channel preferences, as well as their replication and maximization service area certifications (made via FCC Form 381). 112. The new post-transition DTV Table achieves the goals set forth for the channel election process. First, the new DTV Table provides all eligible stations with channels for DTV operations after the transition. Second, the new DTV Table is the result of informed decisions by licensees when making their channel elections and licensees benefited from the clarity and transparency of the channel election process. Third, the new DTV Table recognizes industry expectations by protecting existing service and respecting investments already made, to the extent feasible. Finally, the new DTV Table reflects our efforts to promote overall spectrum efficiency and ensure the best possible DTV service to the public. B. Summary of Significant Issues Raised by Public Comments in Response to the IRFA 113. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA. C. Description and Estimate of the Number of Small Entities to Which the Rules Will Apply 114. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the rules adopted herein. The RFA generally defines the term “small entity” as 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 Small Business Administration (SBA). The rules of this *Seventh R&O* will primarily affect full power television stations, as opposed to low power television stations and television translator stations. A description of such small entities, as well as an estimate of the number of such small entities, is provided below. 115. *Television Broadcasting* . The rules and policies adopted in this *Seventh R&O* 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. 116. 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. 117. *Class A TV, LPTV, and TV translator stations* . The rules and policies adopted in this *Seventh R&O* do not directly affect low power television stations, as the DTV Table adopted in the *Seventh R&O* finalizes post-transition digital channels only for full power television stations. Nonetheless, as discussed in Section E, *infra* , low power television stations will also eventually transition from analog to digital technology and may be indirectly affected by the channel allotment decisions herein. The broadcast stations indirectly affected include 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. D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 118. The rules adopted in this *Seventh R&O* involve no changes to reporting, recordkeeping, or other compliance requirements beyond what is already required under the current regulations. E. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered 119. 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. 120. The new post-transition DTV Table provides all eligible full power broadcast television stations—large and small alike—with channels for post-transition DTV operations. Small broadcasters, just like large ones, benefited from participating in the channel election process. The new DTV Table is the result of informed decisions by licensees when making their channel elections, and all licensees benefited from the clarity and transparency of the channel election process. Moreover, the new DTV Table recognizes industry expectations by protecting existing service and respecting investments already made, for both large and small broadcasters, to the extent feasible. The TCDs are primarily based on the channels elected by licensees. The vast majority of licensees participating in the channel election process received a TCD for a channel they elected, and all comments, including those from small broadcasters, were considered when finalizing this Table. 121. In general, our goal in reviewing the comments filed in response to the proposed Table was to accommodate the requests made by commenters to the extent possible consistent with the standards outlined in the *Seventh Further Notice* . Large and small broadcasters alike benefited from this approach, which was taken in an effort to expedite finalization of the DTV Table and Appendix B so that stations can complete construction of their post-transition facilities by the statutory deadline for the DTV transition. Where commenters made specific requests for changes to the proposals in the *Seventh Further Notice* , requests that provided for an alternative service area for the station or parameters that differed from those proposed by the Commission, those requests were granted to the extent possible consistent with the standards of the Seventh Further Notice and, in particular, with the applicable interference standards. This process has been open and transparent, and has provided consistent treatment for large and small broadcasters. 122. The new DTV Table adopted herein does not provide for channels for low power television stations. The Commission will address the digital transition for low power television (“LPTV”) stations in a separate proceeding. The statutory transition deadline established by Congress in 2006—February 17, 2009—applies only to full-power stations. One of the Commission's goals in the *Seventh Report and Order* is to permit full power stations to finalize their post-transition facilities by this rapidly approaching deadline. 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. The Commission has stated that the intent is to ensure that low power and translator stations not be required to prematurely convert to digital operation in a manner that could disrupt their analog service or, more importantly, that might cause them to cease operation. 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. The Commission has recognized that low power television stations are a valuable component of the nation's television system and has stated its intention to facilitate, wherever possible, the digital transition of these stations. F. Report To Congress The Commission will send a copy of this *Seventh R&O* , including this FRFA, in a report to be sent to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the Commission will send a copy of this *Seventh R&O* , including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration. A copy of this *Seventh R&O* and FRFA (or summaries thereof) will also be published in the **Federal Register** . Ordering Clauses 123. *It is ordered* that, pursuant to the authority contained in sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337 of the Communications Act of 1934, 47 U.S.C. 151, 154(i) and (j), 157, 301, 302, 303, 307, 308, 309, 316, 319, 324, 336, and 337, this *Seventh Report and Order and Eighth Further Notice of Proposed Rule Making is adopted* . 124. *It is further ordered* that pursuant to the authority contained in sections 1, 2, 4(i), 303, 303a, 303b, and 307 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 303a, 303b, and 307, the Commission's rules are hereby amended as set forth in the rule changes. 125. *It is further ordered* that the rules as set forth in the rule changes shall be effective 30 days after publication of the *Seventh Report and Order and Eighth Further Notice of Proposed Rule Making* in the **Federal Register** . 126. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this *Seventh Report and Order and Eighth Further Notice of Proposed Rule Making* , including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. *It is further ordered* that the Commission shall send a copy of this *Seventh Report and Order and Eighth Further Notice of Proposed Rule Making* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR part 73 Television. Federal Communications Commission. Marlene H. Dortch, Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 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. Section 73.622 is amended by adding paragraph
(i)to read as follows: § 73.622 Digital television table of allotments.
(i)Post-Transition Table of DTV Allotments. Community Channel No. ALABAMA Anniston 9 Bessemer 18 Birmingham *10, 13, 30, 36, 50 Demopolis *19 Dothan 21, 36 Dozier *10 Florence 14, 20, *22 Gadsden 26, 45 Gulf Shores 25 Homewood 28 Huntsville 19, *24, 32, 41, 49 Louisville *44 Mobile 9, 15, 20, 23, 27, *41 Montgomery 12, 16, *27, 32, 46 Mount Cheaha *7 Opelika 47 Ozark 33 Selma 29, 42 Troy 48 Tuscaloosa 23, 33 Tuskegee 22 ALASKA Anchorage 5, *8, 10, 12, 20, *26, 28, 32 Bethel *3 Fairbanks 7, *9, 11, 18 Juneau *10, 11 Ketchikan 13 North Pole 20 Sitka 7 ARIZONA Douglas 36 Flagstaff 2, 13, 18, 32 Green Valley 46 Holbrook *11 Kingman 19 Mesa 12 Phoenix *8, 10, 15, 17, 20, 24, 26, 33, 39, 49 Prescott 7 Sierra Vista 44 Tolleson 51 Tucson 9, 19, 23, 25, *28, *30, 32, 40 Yuma 11, 16 ARKANSAS Arkadelphia *13 Camden 49 El Dorado *10, 27, 43 Eureka Springs 34 Fayetteville *9, 15 Fort Smith 18, 21, 27 Harrison 31 Hot Springs 26 Jonesboro 8, *20, 48 Little Rock *7, 12, 22, 30, 32, *36, 44 Mountain View *13 Pine Bluff 24, 39 Rogers 50 Springdale 39 CALIFORNIA Anaheim 32 Arcata 22 Avalon 47 Bakersfield 10, 25, 33, 45 Barstow 44 Bishop 20 Calipatria 36 Ceres *15 Chico 24, 43 Clovis 43 Concord 14 Corona 39 Cotati *23 El Centro 9, 22 Eureka 3, *11, 17, 28 Fort Bragg 8 Fresno 7, 30, 34, 38, *40 Hanford 20 Huntington Beach *48 Long Beach 18 Los Angeles 7, 9, 11, 13, *28, 31, 34, 36, *41, 42, 43 Merced 11 Modesto 18 Monterey 31, 32 Novato 47 Oakland 44 Ontario 29 Oxnard 24 Palm Springs 42, 46 Paradise 20 Porterville 48 Rancho Palos Verdes 51 Redding 7, *9 Riverside 45 Sacramento *9, 10, 21, 35, 40, 48 Salinas 8, 13 San Bernardino *26, 38 San Diego 8, 10, 18, 19, *30, 40 San Francisco 7, 19, 27, 29, *30, *33, 38, 39, 45, 51 San Jose 12, 36, 41, 49, *50 San Luis Obispo 15, 34 San Mateo *43 Sanger 36 Santa Ana 23 Santa Barbara 21, 27 Santa Maria 19 Santa Rosa 32 Stockton 25, 26, 46 Twentynine Palms 23 Vallejo 34 Ventura 49 Visalia 28, *50 Watsonville *25 COLORADO Boulder 15 Broomfield *13 Castle Rock 46 Colorado Springs 10, 22, 24 Denver 7, 9, *18, 19, 32, 34, 35, *40, 43, 51 Durango 15, *20, 33 Fort Collins 21 Glenwood Springs 23 Grand Junction 2, 7, 12, 15, *18 Longmont 29 Montrose 13 Pueblo *8, 42 Steamboat Springs 10 Sterling 23 CONNECTICUT Bridgeport 42, *49 Hartford 31, 33, *45, 46 New Britain 35 New Haven *6, 10, 39 New London 26 Norwich *9 Waterbury 20 DELAWARE Seaford *44 Wilmington *12, 31 DISTRICT OF COLUMBIA Washington 7, 9, *27, *33, 35, 36, 48, 50 FLORIDA Boca Raton *40 Bradenton 42 Cape Coral 35 Clearwater 21 Clermont 17 Cocoa *30, 51 Daytona Beach 11, 49 Destin 48 Fort Lauderdale 30 Fort Myers 9, 15, *31 Fort Pierce 34, *38 Fort Walton Beach 40, 49, 50 Gainesville 9, 16, *36 High Springs 28 Hollywood 47 Jacksonville *7, 13, 19, 32, 34, 42, *44 Key West 3, 8 Lake Worth 36 Lakeland 19 Leesburg 40, *46 Live Oak 48 Marianna 51 Melbourne 43, 48 Miami 7, 10, *18, 19, *20, 22, 23, 31, 32, 35, 46 Naples 41, 45 New Smyrna Beach *33 Ocala 31 Orange Park 10 Orlando 22, *23, 26, 27, 39, 41 Palm Beach 49 Panama City 7, 9, 13, *38 Panama City Beach 47 Pensacola 17, *31, 34, 45 Sarasota 24 St. Petersburg 10, 38, 44 Stuart 44 Tallahassee 24, 27, *32, 40 Tampa 7, 12, *13, 29, *34, 47 Tequesta 16 Tice 33 Venice 25 West Palm Beach 12, 13, *27, 28 GEORGIA Albany 10, 12 Athens *8, 48 Atlanta 10, 19, 20, *21, 25, 27, 39, *41, 43 Augusta 12, 30, 42, 51 Bainbridge 49 Baxley 35 Brunswick 24 Chatsworth *33 Cochran *7 Columbus 9, 15, *23, 35, 49 Cordele 51 Dalton 16 Dawson *8 Macon 13, 16, 40, 45 Monroe 44 Pelham *6 Perry 32 Rome 51 Savannah *9, 11, 22, 39 Thomasville 46 Toccoa 24 Valdosta 43 Waycross *8 Wrens *6 HAWAII Hilo *9, 11, 13, 22, 23 Honolulu 8, 9, *10, *11, 19, 23, 27, 31, 33, 35, 40, *43 Kailua 50 Kailua Kona 25 Kaneohe 41 Wailuku 7, *10, 12, 16, 21, 24 Waimanalo 38 IDAHO Boise 7, *21, 28, 39 Caldwell 10 Coeur d'Alene *45 Filer *18 Idaho Falls 8, 20, 36 Lewiston 32 Moscow *12 Nampa 12, 24 Pocatello 15, *17, 23, 31 Sun Valley 32 Twin Falls 11, *22, 34 ILLINOIS Aurora 50 Bloomington 28 Carbondale *8 Champaign 41, 48 Charleston *50 Chicago 7, 12, 19, *21, 27, 29, 31, 43, 45, *47 Decatur 18, 22 East St. Louis 47 Freeport 23 Harrisburg 34 Jacksonville *15 Joliet 38 LaSalle 10 Macomb *21 Marion 17 Moline *23, 38 Mount Vernon 21 Olney *19 Peoria 19, 25, 30, 39, *46 Quincy 10, 32, *34 Rock Island 4 Rockford 13, 16, 42 Springfield 13, 42, 44 Urbana *9, 26 INDIANA Angola 12 Bloomington *14, 27, 42, 48 Elkhart 28 Evansville *9, 25, 28, 45, 46 Fort Wayne 19, 24, 31, 36, *40 Gary *17, 51 Hammond 36 Indianapolis 9, 13, 16, *21, 25, *44, 45 Kokomo 29 Lafayette 11 Marion 32 Muncie 23 Richmond 39 Salem 51 South Bend 22, *35, 42, 48 Terre Haute 10, 36, 39 Vincennes *22 IOWA Ames 5, 23, *34 Burlington 41 Cedar Rapids 9, 27, 47, 51 Council Bluffs *33 Davenport *34, 36, 49 Des Moines 8, *11, 13, 16, 31 Dubuque 43 Fort Dodge *25 Iowa City *12, 25 Mason City *18, 42 Newton 39 Ottumwa 15 Red Oak *35 Sioux City 9, *28, 39, 41, 44 Waterloo 7, 22, *35 KANSAS Colby 17, 19 Derby 46 Dodge City *21 Ensign 6 Garden City 11, 13 Goodland 10 Great Bend 22 Hays 7, *16 Hoisington 14 Hutchinson *8, 12, 35 Lakin *8 Lawrence 41 Pittsburg 7, 13 Salina 17 Topeka *11, 12, 13, 27, 49 Wichita 10, 26, 31, 45 KENTUCKY Ashland *26, 44 Beattyville 7 Bowling Green 13, 16, *18, *48 Campbellsville 19 Covington *24 Danville 4 Elizabethtown *43 Harlan 51 Hazard 12, *16 Lexington 13, 39, 40, *42 Louisville 8, 11, *17, 26, *38, 47, 49 Madisonville 20, *42 Morehead *15, 21 Murray *36 Newport 29 Owensboro 30 Owenton *44 Paducah 32, 41, 49 Pikeville *24 Somerset *14 LOUISIANA Alexandria *26, 31, 35, 41 Baton Rouge 9, 13, *25, 34, 45 Columbia 11 Hammond 42 Lafayette 10, 16, *23, 28 Lake Charles 7, *20, 30 Minden 21 Monroe 8, *13 New Iberia 50 New Orleans 8, *11, 15, 21, 26, *31, 36, 43, 50 Shreveport 17, *25, 28, 34, 44 Slidell 24 West Monroe 36, 38 MAINE Augusta *10 Bangor 2, 7, 19 Biddeford *45 Calais *10 Lewiston 35 Orono *9 Poland Spring 8 Portland 38, 43, 44 Presque Isle 8, *10, 47 Waterville 23 MARYLAND Annapolis *42 Baltimore 11, 13, *29, 38, 40, 41, 46, Frederick *28 Hagerstown 26, 39, *44 Oakland *36 Salisbury 21, *28, 47 MASSACHUSETTS Adams 36 Boston 7, *19, 20, 30, 31, 32, 39, *43 Cambridge 41 Lawrence 18 Marlborough 27 New Bedford 22, 49 Norwell 10 Pittsfield 13 Springfield 11, *22, 40 Vineyard Haven 40 Worcester 29, *47 MICHIGAN Alpena 11, *24 Ann Arbor 31 Bad Axe *15 Battle Creek 20, 44 Bay City 22, 46 Cadillac 9, *17, 47 Calumet 5 Cheboygan 35 Detroit 7, 14, 21, 41, *43, 44, 45 East Lansing *40 Escanaba 48 Flint 12, 16, *28 Grand Rapids 7, *11, 13, 19 Iron Mountain 8 Ishpeming 10 Jackson 34 Kalamazoo *5, 8, 45 Lansing 36, 38, 51 Manistee *21 Marquette *13, 19, 35 Mount Clemens 39 Mount Pleasant *26 Muskegon 24 Onondaga 10 Saginaw 30, 48 Sault Ste. Marie 8, 10 Traverse City 7, 29 MINNESOTA Alexandria 7, 42 Appleton *10 Austin *20, 36 Bemidji *9, 26 Brainerd *28 Chisholm 11 Crookston *16 Duluth *8, 10, 17, 27, 33 Hibbing 13, *31 Mankato 12 Minneapolis 9, 11, 22, 29, 32, 45 Redwood Falls 27 Rochester 10, 46 St. Cloud 40 St. Paul *26, *34, 35 Thief River Falls 10 Walker 12 Worthington *15 MISSISSIPPI Biloxi 13, *16 Booneville *12 Bude *18 Columbus 35, *43 Greenville 15 Greenwood *25, 32 Gulfport 48 Hattiesburg 22 Holly Springs 41 Houston 45 Jackson 7, 12, *20, 21, 40, 51 Laurel 28 Magee 34 Meridian 11, 24, 31, *44 Mississippi State *10 Natchez 49 Oxford *36 Tupelo 8 Vicksburg 35 West Point 16 MISSOURI Cape Girardeau 12, 22 Columbia 8, 17 Hannibal 7 Jefferson City 12, 20 Joplin *25, 43, 46 Kansas City 9, *18, 24, 31, 34, 42, 47, 51 Kirksville 33 Osage Beach 49 Poplar Bluff 15 Sedalia 15 Springfield 10, 19, *23, 28, 44 St. Joseph 7, 21 St. Louis 14, 24, 26, 31, 35, *39, 43 MONTANA Billings 10, 11, 18 Bozeman *8, 13 Butte 5, 6, 19, 24 Glendive 10 Great Falls 7, 8, 26, 45 Hardin 22 Havre 9 Helena 12, 29 Kalispell 9 Lewistown 13 Miles City 3 Missoula 7, *11, 13, 17, 23 NEBRASKA Alliance *13 Bassett *7 Grand Island 11, 19 Hastings 5, *28 Hayes Center 18 Kearney 36 Lexington *26 Lincoln 8, 10, *12, 51 McCook 12 Merriman *12 Norfolk *19 North Platte 2, *9 Omaha 15, *17, 20, 22, 43, 45 Scottsbluff 7, 17, 29 Superior 34 NEVADA Elko 10 Ely 3, 27 Goldfield 50 Henderson 9 Las Vegas 2, 7, *11, 13, 16, 22, 29 Laughlin 32 Paradise 40 Reno 7, 9, 13, *15, 20, 26, 44 Tonopah 9 Winnemucca 7 NEW HAMPSHIRE Concord 33 Derry 35 Durham *11 Keene *49 Littleton *48 Manchester 9 Merrimack 34 NEW JERSEY Atlantic City 44, 49 Burlington 27 Camden *22 Linden 36 Montclair *51 New Brunswick *8 Newark 13, 30 Newton 18 Paterson 40 Secaucus 38 Trenton *43 Vineland 29 West Milford *29 Wildwood 36 NEW MEXICO Albuquerque 7, 13, *17, 22, 24, 26, *35, 42, 45 Carlsbad 19, 25 Clovis 20 Farmington 8, 12 Hobbs 29 Las Cruces *23, 47 Portales *32 Roswell 8, 10, 21, 27 Santa Fe *9, 10, 27, 29 Silver City 10, 12 NEW YORK Albany 7, 12, 26 Amsterdam 50 Batavia 23 Bath 14 Binghamton 7, 8, 34, *42 Buffalo 14, 32, 33, 34, 38, 39, *43 Carthage 7 Corning *30, 48 Elmira 18, 36 Garden City *21 Ithaca 20 Jamestown 26 Kingston 48 New York 7, 11, *24, 28, 31, 33, 44 North Pole 14 Norwood *23 Plattsburg *38 Poughkeepsie 27 Riverhead 47 Rochester 10, 13, *16, 28, 45 Saranac Lake 40 Schenectady 6, *34, 43 Smithtown 23 Springville 7 Syracuse 15, 17, 19, 24, *25, 44, 47 Utica 27, 29, 30 Watertown 21, *41 NORTH CAROLINA Asheville 13, *25, 45 Belmont 47 Burlington 14 Chapel Hill *25 Charlotte *11, 22, 23, 27, 34 Concord *44 Durham 11, 28 Edenton *20 Fayetteville 36, 38 Goldsboro 17 Greensboro 33, 43, 51 Greenville 10, 14, *23, 51 Hickory 40 High Point 8 Jacksonville *19, 34 Kannapolis 50 Lexington 19 Linville *17 Lumberton *31 Manteo 9 Morehead City 8 New Bern 12 Raleigh 27, 48, 49 Roanoke Rapids *36 Rocky Mount 15 Washington 32 Wilmington *29, 30, 44, 46 Wilson 42 Winston Salem 29, 31, *32 NORTH DAKOTA Bismarck 12, 16, *22, 26, 31 Devils Lake 8, *25 Dickinson 7, *9, 19 Ellendale *20 Fargo *13, 19, 21, 44 Grand Forks *15, 27 Jamestown 7 Minot 10, 13, 14, 24, *40 Pembina 12 Valley City 38 Williston 8, 14, *51 OHIO Akron 23, 30, *50 Alliance *45 Athens *27 Bowling Green *27 Cambridge *35 Canton 39, 47 Chillicothe 46 Cincinnati 10, 12, 33, *34, 35 Cleveland 8, 15, 17, *26, 34 Columbus 13, 14, 21, 36, *38 Dayton *16, 30, 41, 50, 51 Lima 8, 47 Lorain 28 Mansfield 12 Newark 24 Oxford *28 Portsmouth 17, *43 Sandusky 42 Shaker Heights 10 Springfield 26 Steubenville 9 Toledo 5, 11, 13, *29, 46, 49 Youngstown 20, 36, 41 Zanesville 40 OKLAHOMA Ada 26 Bartlesville 17 Cheyenne *8 Claremore *36 Eufaula *31 Lawton 11 Muskogee 20 Norman 46 Oklahoma City 7, 9, *13, 15, 24, 27, 33, 40, 50, 51 Okmulgee 28 Shawnee 29 Tulsa 8, 10, *11, 22, 42, 45, 47, 49 Woodward 35 OREGON Bend *11, 21, 51 Coos Bay 11, 22 Corvallis *7 Eugene 9, 13, 17, *29, 31 Grants Pass 30 Klamath Falls 13, 29, *33 La Grande *13, 29 Medford 5, *8, 10, 12, 26 Pendleton 11 Portland 8, *10, 12, 40, 43, 45 Roseburg 18, 19, 45 Salem 22, 33 PENNSYLVANIA Allentown *39, 46 Altoona 24, 32, 46 Bethlehem 9 Clearfield *15 Erie 12, 16, 22, 24, *50 Greensburg 50 Harrisburg 10, 21, *36 Hazleton 45 Jeannette 49 Johnstown 8, 34 Lancaster 8, 23 Philadelphia 6, 17, 26, 32, 34, *35, 42 Pittsburgh *13, 25, 38, 42, 43, 48, 51 Reading 25 Red Lion 30 Scranton 13, 32, 38, *41, 49 Wilkes Barre 11 Williamsport 29 York 47 RHODE ISLAND Block Island 17 Providence 12, 13, *21, 51 SOUTH CAROLINA Allendale *33 Anderson 14 Beaufort *44 Charleston *7, 24, 34, 36, 47, 50 Columbia 8, 10, 17, *32, 47, 48 Conway *9 Florence 13, 16, 21, *45 Georgetown *38 Greenville *9, 16, 21, 36 Greenwood *18 Hardeeville 28 Myrtle Beach 18, 32 Rock Hill 15, 39 Spartanburg 7, 43 Sumter *28, 39 SOUTH DAKOTA Aberdeen 9, *17 Brookings *8 Eagle Butte *13 Florence 3 Huron 12 Lead 10, 29 Lowry *11 Martin *8 Mitchell 26 Pierre *10, 19 Rapid City 2, 7, 16, 21, *26 Reliance 13 Sioux Falls 7, 11, 13, *24, 36, 47 Vermillion *34 TENNESSEE Chattanooga 9, 12, 13, *29, 40 Cleveland 42 Cookeville *22, 36 Crossville 20 Greeneville 38 Hendersonville 51 Jackson 39, 43 Jellico 23 Johnson City 11 Kingsport 19 Knoxville 7, 10, *17, 26, 30, 34 Lebanon 44 Lexington *47 Memphis 5, *10, 13, *23, 25, 28, *29, 31, 51 Murfreesboro 38 Nashville 5, *8, 10, 15, 21, 23, 27 Sneedville *41 Tazewell 48 TEXAS Abilene 15, 24, 29 Alvin 36 Amarillo 7, *8, 10, 15, 19 Arlington 42 Austin 7, 21, *22, 33, 43, 49 Baytown 41 Beaumont 12, 21, *33 Belton 46 Big Spring 33 Blanco 18 Borger 31 Brownsville 24 Bryan 28, 50 College Station *12 Conroe 32, 42 Corpus Christi 8, 10, 13, *23, 27, 38 Dallas 8, *14, 32, 35, 36, 40, 45 Decatur 30 Del Rio 28 Denton *43 Eagle Pass 18 El Paso 7, 9, *13, 15, 18, 25, *39, 51 Farwell 18 Fort Worth 9, 11, 18, 41 Fredericksburg 5 Galveston *23, 48 Garland 23 Greenville 46 Harlingen 31, *34, 38 Houston *8, 11, 13, 19, *24, 26, 35, 38, 44 Irving 48 Jacksonville 22 Katy 47 Kerrville 32 Killeen 13 Lake Dallas 39 Laredo 8, 13, 19 Llano 27 Longview 31, 38 Lubbock 11, 16, 27, 35, *39, 40 Lufkin 9 Mcallen 49 Midland 18, 26 Nacogdoches 18 Odessa 7, 9, 23, 30, *38, 42 Port Arthur 40 Rio Grande City 20 Rosenberg 45 San Angelo 11, 16, 19 San Antonio *9, 12, *16, 30, 38, 39, 41, 48, Sherman 12 Snyder 17 Sweetwater 20 Temple 9 Texarkana 15 Tyler 7 Uvalde 26 Victoria 11, 15 Waco 10, *20, 26, 44 Weslaco 13 Wichita Falls 15, 22, 28 Wolfforth 43 UTAH Cedar City 14 Logan 12 Ogden 24, *36, 48 Price 11 Provo 29, 32, *44 Richfield *19 Salt Lake City 13, 20, 34, 38, 40, *42, 46 St. George 9, *18 Vernal 16 VERMONT Burlington 13, 22, *32, 43 Hartford 25 Rutland *9 St. Johnsbury *18 Windsor *24 VIRGINIA Arlington 15 Ashland 47 Bristol 5 Charlottesville 19, 32, *46 Danville 24 Fairfax *24 Front Royal *21 Goldvein *30 Grundy 49 Hampton 13 Hampton Norfolk *16 Harrisonburg 49 Lynchburg 13, 20 Manassas 34 Marion *42 Norfolk 33, 40, 46 Norton *32 Petersburg 22 Portsmouth 31, 50 Richmond 12, 25, 26, *42, *44 Roanoke *3, 17, 18, 30, 36 Staunton *11 Virginia Beach 7, 29 WASHINGTON Bellevue 33, 50 Bellingham 19, 35 Centralia *19 Everett 31 Kennewick 44 Pasco 18 Pullman *10, 24 Richland 26, *38 Seattle *9, 25, 38, 39, 44, 48 Spokane 7, *8, 13, 20, 28, 34, 36 Tacoma 11, 13, 14, *27, *42 Vancouver 30 Walla Walla 9 Yakima 14, 16, *21, 33 WEST VIRGINIA Bluefield 40, 46 Charleston 19, 39, 41 Clarksburg 10, 12 Grandview *10 Huntington 13, 23, *34 Lewisburg 8 Martinsburg 12 Morgantown *33 Oak Hill 50 Parkersburg 49 Weston 5 Wheeling 7 WISCONSIN Antigo 46 Appleton 27 Chippewa Falls 49 Crandon 12 Eagle River 28 Eau Claire 13, 15 Fond Du Lac 44 Green Bay 11, 23, 39, 41, *42 Janesville 32 Kenosha 40 La Crosse 8, 14, 17, *30 Madison 11, 19, *20, 26, 50 Mayville 43 Menomonie *27 Milwaukee *8, 18, 22, 25, 28, 33, 34, *35, 46 Park Falls *36 Racine 48 Rhinelander 16 Superior 19 Suring 21 Wausau 7, 9, *24 Wittenberg 50 WYOMING Casper *6, 12, 14, 17, 20 Cheyenne 11, 27, 30 Jackson 2, 11 Lander 7, *8 Laramie *8 Rawlins 9 Riverton 10 Rock Springs 13 Sheridan 7, 13 GUAM Agana 8, 12 Tamuning 14 PUERTO RICO Aguada 50 Aguadilla 12, 17, *34 Arecibo 14, 46 Bayamon 30 Caguas 11, *48 Carolina 51 Fajardo 13, *16, 33 Guayama 45 Humacao 49 Mayaguez 22, 23, 29, 35 Naranjito 18 Ponce 7, 9, 15, 19, *25, 47 San Juan 21, 27, 28, 31, 32, *43 San Sebastian 39 Yauco 41 VIRGIN ISLANDS Charlotte Amalie 17, 43, *44 Christiansted 15, 20, 23 Note: The following Appendicies will not appear in the Code of Federal Regulations. [Appendix A—Reserved] Appendix B—DTV Table of Allotments Information The table in this appendix presents the Commission's assignments of DTV channel allotments to individual broadcast television stations for post-transition DTV operations. It sets forth the technical facilities—effective radiated power, antenna height above average terrain, and antenna identification code—and transmitter site for which each TV station would be authorized on its post-transition channel. The table also provides information on stations' predicted service coverage and the percentage of their service population that would be affected by interference received from other DTV stations. The channels here are the same as those the Commission is including in the new DTV Table of Allotments (DTV Table), codified in § 73.622(i) of the Commission's rules. The table includes a DTV channel assignment for all television stations that are eligible under the qualifying criteria, set forth in the *Second DTV Periodic Report and Order* and reiterated in the discussion above. The technical facilities parameters, which were also used for calculation of the tabulated engineering information, were developed in the three-round channel election process that the Commission conducted to create the proposed DTV Table, in some cases modified in response to comments filed in this proceeding. These technical facilities data are also available in an EXCEL format at *http://www.fcc.gov/dtv.* Data Elements *Facility ID:* A five-digit code for identification of TV or DTV stations associated with channel allotments. A unique code is assigned to each station at the time the Commission first receives an application for a construction permit for that station and does not change, even where the license for the station changes ownership or major changes are made to the station, such as a change of channel or community. *City and State:* The city and state to which the channel is allotted and the station is licensed to serve. *NTSC Channel:* The station's current analog
(NTSC)channel. This field is left blank in the case of stations that are only licensed to operate digital television service. If a station currently operates only an analog channel, that analog channel will appear in this field. Note: Stations must cease analog operations at the end of the DTV transition on February 17, 2009. See 47 U.S.C. 309(j)(14)(A). *DTV Channel:* The channel assigned for the station's post-transition DTV operation. *DTV Power:* The effective radiated power
(ERP)for the station's post-transition DTV operation. This value is the ERP specified for the station's post-transition operation in the channel election process or modified in response to comments in this proceeding. Accordingly, the ERP may be the station's:
(1)Currently authorized ERP,
(2)1997 service replication ERP,
(3)other allowable value to which it agreed to operate to resolve a conflict or as part of a negotiated agreement in the channel election process; or
(4)in cases where a station's assigned DTV channel is not its current DTV channel, a value determined by the Commission that will enable the station to provide coverage of the station's service area as specified in the channel election process. The value shown is the maximum, over a set of uniformly spaced compass directions, of the ERP values used in determining the station's specified noise-limited DTV service contour. This value is used in the calculations of service and interference also shown herein. In cases where the TV Engineering Database indicated employment of a directional antenna, the ERP in each specific direction was determined through linear interpolation of the relative field values describing the directional pattern. (The directional pattern stored in the FCC computer database provides relative field values at 10-degree intervals and may include additional values in special directions. The result of linear interpolation of these relative field values is squared and multiplied by the overall maximum ERP listed for the station in the TV Engineering Database to find the ERP in a specific direction.) Where a station's ERP was determined by the Commission, it was calculated using the following methodology. First, the distance to the station's noise-limited DTV contour (or Grade B contour for stations that do not have a DTV channel) was determined in each of 360 uniformly spaced compass directions starting from true north. This determination was made using information in the engineering database, including directional antenna data, and using terrain elevation data at points separated by 3 arc-seconds of longitude and latitude, in conjunction with the FCC F(50, 90) curves. The FCC curves (47 CFR 73.699) were applied in the usual way, as described in 47 CFR 73.684, to find this noise-limited contour distance, with the exception that dipole factor considerations were applied to the field strength contour specified in 47 CFR 73.683 for UHF channels. The station's post-transition DTV ERP was then calculated by a further application of FCC curves, with noise-limited DTV coverage defined as the presence of field strengths of 28 dBu, 36 dBu, and 41 dBu as set forth in § 73.622(e) of the rules, respectively for low-VHF, high-VHF and UHF, at 50 percent of locations and 90 percent of the time. The family of FCC propagation curves for predicting field strength at 50 percent of locations 90 percent of the time is found by the formula F(50, 90) = F(50, 50) − [F(50, 10) − F(50, 50)]. That is, the F(50, 90) value is lower than F(50, 50) by the same amount that F(50, 10) exceeds F(50, 50). At UHF, the precise value 41 dBu was applied for channel 38; and the value used for other UHF channels is 41 dBu plus a dipole factor modification. This results in reception on channel 14 needing 2.3 dB less, and channel 69 needing 2.3 dB more, than the 41 dBu for channel 38. The dipole factor modification used in ERP calculations is equal to 20 times log <sup>10</sup> of the ratio of the center frequency of the UHF channel of interest to the center frequency of channel 38. In general, these computations of a station's DTV power on a new channel to match the distance to its noise-limited contour result in ERP values which vary with azimuth. For example, the azimuthal ERP pattern that replicates for a UHF channel, the noise-limited contour of an omnidirectional VHF operation will be somewhat different because terrain has a different effect on propagation in the two bands. Thus, the procedure described here effectively derives a new directional antenna pattern wherever necessary for a precise match according to FCC curves. Finally, the ERP specified for a station's new UHF DTV channel was limited so that it does not exceed 1 megawatt. This was done by scaling the azimuthal power pattern rather than by truncation. For example, if replication by FCC curves as described above requires an ERP of 1.2 megawatts, the power pattern is reduced by a factor of 1.2 in all directions. The azimuthal pattern is used in subsequent service and interference calculations for the station. *Antenna Height:* The height of the station's transmitting antenna above average terrain, that is, antenna height above average terrain (antenna HAAT). In general, the antenna HAAT value shown for each station is the same as that specified for the station in the channel election process. This value represents the height of the radiation center of the station whose service area is being replicated, above terrain averaged from 3.2 to 16.1 kilometers (2 to 10 miles) from the station's transmitter site, over 8 evenly spaced radials. In computations of service coverage and interference, the value of antenna HAAT was determined every 5 degrees directly from the terrain elevation data, and by linear interpolation for compass directions in between. *Antenna ID:* A six digit number that identifies the radiation pattern for the station's transmitting antenna that is stored in the Commission's Consolidated Database System (CDBS). In cases where a station's post-transition channel is the same as its currently assigned DTV channel, the station's antenna pattern is the same as its certified facilities antenna. In other cases, such as where a station chose its analog channel or a different channel, or where the Commission's staff selected a “best available” channel for the station's post-transition operation, the antenna pattern for the station was developed by our computer software to allow the station to replicate the coverage area reached by operation at its certified facilities on its proposed channel (i.e., the station's TCD from the channel election process); or the station has indicated that it would use a particular antenna for its post-transition operation in the channel election process, the station's antenna pattern is the same as specified in Schedule B of FCC Forms 383 and 385. These antenna patterns are used in the calculation of service area and interference. The CDBS can be accessed on the Internet at *http://www.fcc.gov/mb/cdbs.html.* *Transmitter Latitude:* The geographic latitude coordinates of the station's transmitter location. *Transmitter Longitude:* The geographic longitude coordinates of the station's transmitter location. *Service Area, Service Population, and Percent Interference Received:* Under the heading “DIGITAL TELEVISION SERVICE AFTER THE TRANSITION,” prospective conditions are evaluated in terms of both area and population. The values tabulated under this heading are net values: service area is the area within a station's noise-limited service contour where the desired signal is above the DTV noise threshold, less the area where service receives predicted interference from other DTV stations. Similarly, the number of people served is the population within a station's noise-limited service contour receiving an adequate signal relative to noise excluding people in areas with predicted interference. The level of interference received to a station's service is calculated based on desired-to-undesired (D/U) ratios, and these levels must be above certain threshold values for acceptable service. The percent interference received value is the percentage of the station's service coverage within its noise-limited service contour that is affected by predicted interference from other DTV stations. The threshold values used to prepare the interference estimates in this appendix are those set forth in § 73.623(c) of the rules, 47 CFR 73.623(c). The procedure used to identify areas of service and interference is that specified in *OET Bulletin No. 69.* See OET Bulletin No. 69, Longley-Rice Methodology for Evaluating TV Coverage and Interference, February 6, 2004 (“ *OET Bulletin No. 69* ”), available at *http://www.fcc.gov/Bureaus/Engineering_Technology/Documents/bulletins/oet69/oet69.pdf* . Facility ID State City NTSC Chan DTV Chan ERP
(kW)HAAT
(m)Antenna ID Latitude (DDMMSS) Longitude (DDDMMSS) Area (sq km) Population (thousand) Percent interference received 21488 AK ANCHORAGE 5 5 45 277 612010 1493046 45353 348 0 804 AK ANCHORAGE 7 8 50 240 67898 612522 1495220 26532 317 0 10173 AK ANCHORAGE 2 10 21 240 67943 612522 1495220 22841 317 0 13815 AK ANCHORAGE 13 12 41 240 65931 612522 1495220 25379 317 0 35655 AK ANCHORAGE 4 20 234 55 74791 611311 1495324 10885 302 0 83503 AK ANCHORAGE 9 26 1000 212 74792 610402 1494436 23703 323 0 49632 AK ANCHORAGE 11 28 28.9 61 73156 611133 1495401 7254 292 0 25221 AK ANCHORAGE 33 32 50 33 74793 610957 1494102 8943 287 0 4983 AK BETHEL 4 3 1 61 604733 1614622 10324 9 0 64597 AK FAIRBANKS 7 7 3.2 214 74449 645520 1474255 11355 82 0 69315 AK FAIRBANKS 9 9 3.2 152 80229 645442 1474638 6873 82 0 49621 AK FAIRBANKS 11 11 3.2 1 74991 645036 1474248 5673 82 0 13813 AK FAIRBANKS 2 18 16 230 645520 1474249 10344 82 0 8651 AK JUNEAU 3 10 1 1 581756 1342407 4249 30 0 13814 AK JUNEAU 8 11 0.14 1 581805 1342626 2239 30 1.1 60520 AK KETCHIKAN 4 13 3.2 1 29997 552059 1314012 4355 15 0 20015 AK NORTH POLE 4 20 50 5 644532 1471926 6209 82 0 60519 AK SITKA 13 7 3.2 1 80181 570301 1352004 6048 8 0 56642 AL ANNISTON 40 9 15.6 359 39744 333624 862503 24554 1437 6.6 71325 AL BESSEMER 17 18 350 675 44013 332851 872403 37533 1549 1.4 717 AL BIRMINGHAM 10 10 3 426 332904 864825 22745 1363 4.9 74173 AL BIRMINGHAM 13 13 16.9 408 75054 332926 864748 31517 1646 1.9 5360 AL BIRMINGHAM 42 30 1000 426 43265 332904 864825 31006 1687 0.4 16820 AL BIRMINGHAM 68 36 885 406 68103 332904 864825 28264 1553 1.1 71221 AL BIRMINGHAM 6 50 1000 420 74797 332919 864758 33118 1692 0.9 720 AL DEMOPOLIS 41 19 1000 324 60739 322145 875204 26322 330 6.5 43846 AL DOTHAN 18 21 1000 205 311425 851843 23559 436 0 4152 AL DOTHAN 4 36 995 573 305510 854428 43948 886 0.4 714 AL DOZIER 2 10 3.2 393 313316 862332 23623 353 8.7 65128 AL FLORENCE 15 14 1000 431 66619 350009 870809 30337 1112 0 6816 AL FLORENCE 26 20 50 230 74798 343438 874657 15572 355 1.7 715 AL FLORENCE 36 22 556 202 343441 874702 20778 544 0.2 1002 AL GADSDEN 60 26 150 315 29932 334853 862655 17744 1379 0.2 73312 AL GADSDEN 44 45 225 309 43164 335327 862813 17536 1350 0.6 83943 AL GULF SHORES 55 25 64.5 308 74787 303640 873626 15544 932 0 74138 AL HOMEWOOD 21 28 765 427 68108 332904 864825 30801 1663 0.9 48693 AL HUNTSVILLE 19 19 40.7 514 344419 863156 23609 992 2.2 713 AL HUNTSVILLE 25 24 396 340 344413 863145 27052 1092 0.7 57292 AL HUNTSVILLE 31 32 468 538 67239 344412 863159 32626 1301 0.9 28119 AL HUNTSVILLE 54 41 400 518 43864 344412 863159 29827 1213 1 591 AL HUNTSVILLE 48 49 41 552 344239 863207 22282 936 0.8 710 AL LOUISVILLE 43 44 925 262 59887 314304 852603 18777 337 0.1 4143 AL MOBILE 10 9 29 381 304117 874754 34970 1203 0 11906 AL MOBILE 15 15 510 558 74580 303640 873627 35481 1282 0.6 60827 AL MOBILE 21 20 105 529 70813 303640 873627 23682 1116 0 83740 AL MOBILE 23 337 574 75124 303645 873843 37989 1283 0.1 73187 AL MOBILE 5 27 1000 581 74800 304120 874949 45411 1406 0.3 721 AL MOBILE 42 41 199 185 303933 875333 16361 912 0 13993 AL MONTGOMERY 12 12 24.9 507 74369 315828 860944 31615 788 0.5 73642 AL MONTGOMERY 20 16 1000 518 29552 315828 860944 37703 829 1.3 706 AL MONTGOMERY 26 27 568 176 322255 861733 18025 549 3.7 72307 AL MONTGOMERY 32 32 199 545 75049 320830 864443 28378 579 0.7 60829 AL MONTGOMERY 45 46 500 308 28430 322413 861147 21909 641 0.3 711 AL MOUNT CHEAHA 7 7 24.1 610 80203 332907 854833 42633 2370 3.4 11113 AL OPELIKA 66 47 136 539 74487 321916 844728 24321 662 1.3 32851 AL OZARK 34 33 15 151 68078 311228 853649 8868 244 0 84802 AL SELMA 29 29 1000 408 32810 323227 865033 26741 621 5.9 701 AL SELMA 8 42 787 507 320858 864651 38739 722 0.1 62207 AL TROY 67 48 50 345 30182 320336 855701 14891 479 2 77496 AL TUSCALOOSA 23 23 50 266 74752 330315 873257 16640 407 1 21258 AL TUSCALOOSA 33 33 160 625 70330 332848 872550 30987 1357 0.5 68427 AL TUSKEGEE 22 22 100 325 74464 320336 855702 17790 532 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22474 25 0 5290 MT HELENA 12 12 9.36 697 74375 464935 1114233 26659 152 0 68717 MT HELENA 10 29 43.4 697 68037 464935 1114233 14425 139 0 18079 MT KALISPELL 9 9 3.2 850 80210 480048 1142155 28213 110 0 84794 MT LEWISTOWN 13 13 3.2 636 74726 471046 1093205 25112 16 0.4 5237 MT MILES CITY 3 3 1.03 30 74367 462534 1055138 7580 11 0 35455 MT MISSOULA 8 7 22.5 654 470106 1140041 36798 170 0 66611 MT MISSOULA 11 11 3.2 631 74999 464809 1135821 18430 132 0 18084 MT MISSOULA 13 13 26.7 610 80239 470104 1140047 35664 168 0.1 81348 MT MISSOULA 17 17 50 628 74739 464808 1135819 16846 132 0 14675 MT MISSOULA 23 23 92.6 618 74525 470110 1140046 18786 150 0 56537 NC ASHEVILLE 13 13 29.8 853 70317 352532 824525 37759 2349 2.1 69300 NC ASHEVILLE 33 25 185 797 41130 352532 824525 22420 1437 5.8 70149 NC ASHEVILLE 62 45 1000 555 351320 823258 34531 2043 0.1 73152 NC BELMONT 46 47 1000 595 352144 810919 40397 3404 0.6 65074 NC BURLINGTON 16 14 95 213 361454 793921 16777 1712 1.1 69080 NC CHAPEL HILL 4 25 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0.3 22121 ND BISMARCK 17 16 1000 275 68012 463515 1004820 25005 113 0 53324 ND BISMARCK 3 22 97.3 392 18952 463523 1004802 21415 110 0 82611 ND BISMARCK 26 26 50 300 74760 463523 1004739 17826 104 0 41427 ND BISMARCK 5 31 500 389 73210 463620 1004822 26522 118 0 22124 ND DEVILS LAKE 8 8 16.2 451 74687 480824 975938 35778 150 0 162016 ND DEVILS LAKE 25 134 245 66852 480347 992008 18194 39 0 41430 ND DICKINSON 7 7 11.3 223 74419 465649 1025917 22461 33 0.9 53329 ND DICKINSON 9 9 8.35 246 74437 464334 1025456 22539 36 0 55684 ND DICKINSON 2 19 50 217 59817 464335 1025457 13157 28 0 53315 ND ELLENDALE 19 20 72.3 163 64873 461756 985156 13632 18 0 53321 ND FARGO 13 13 11.4 344 74460 470048 971137 28996 257 0 55372 ND FARGO 15 19 1000 379 28940 464029 961340 28028 320 0.1 22129 ND FARGO 6 21 1000 356 470028 971202 34973 345 0 61961 ND FARGO 11 44 356 576 73213 472032 971720 31290 314 0 53320 ND GRAND FORKS 2 15 50 408 74645 480818 975935 20362 116 0 86208 ND GRAND FORKS 27 27 50 96 74762 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73155 OH DAYTON 22 51 138 351 394328 841518 21345 3050 1.9 37503 OH LIMA 35 8 30 165 36733 404454 840755 23276 1109 8.5 1222 OH LIMA 44 47 50 207 75074 404547 841059 14055 556 0.1 8532 OH LORAIN 43 28 200 337 38130 412245 814312 22230 3706 0 41893 OH MANSFIELD 68 12 14 180 69497 404550 823704 19484 1109 12.2 11118 OH NEWARK 51 24 1000 132 39194 400445 824141 18218 1935 0.2 25065 OH OXFORD 14 28 400 268 43343 390719 843252 20730 2781 0 65130 OH PORTSMOUTH 30 17 50 237 75075 384542 830341 16947 596 1.5 66190 OH PORTSMOUTH 42 43 50 382 384542 830341 19181 604 8.3 11027 OH SANDUSKY 52 42 700 213 41148 412348 824731 18330 1542 0.1 39746 OH SHAKER HEIGHTS 19 10 3.5 304 19316 412315 814143 18681 3562 1.2 70138 OH SPRINGFIELD 26 26 50 291 74421 394328 841518 15181 2003 0.9 74122 OH STEUBENVILLE 9 9 8.82 261 74665 402033 803714 21161 2829 0.1 17076 OH TOLEDO 40 5 10 155 43356 414441 840106 18262 2235 17.4 13992 OH TOLEDO 11 11 13.1 263 74409 414022 832247 22529 2388 0.5 74150 OH TOLEDO 13 13 14.6 305 74430 414100 832449 22711 2547 3 66285 OH TOLEDO 30 29 50 314 75078 413927 832555 18428 2208 0 19190 OH TOLEDO 36 46 110 356 40304 413922 832641 18875 2041 0.8 73354 OH TOLEDO 24 49 59 409 42576 414003 832122 18182 1915 0 72062 OH YOUNGSTOWN 21 20 460 295 43442 410448 803825 23468 3296 0 4693 OH YOUNGSTOWN 33 36 50 148 410343 803807 12151 1299 3.1 73153 OH YOUNGSTOWN 27 41 700 418 410324 803844 29686 3817 26.3 61216 OH ZANESVILLE 18 40 620 169 395542 815907 18268 818 1.3 35666 OK ADA 10 26 1000 426 342134 963334 37746 516 1.1 1005 OK BARTLESVILLE 17 17 210 296 74384 363059 954610 20962 949 0 50194 OK CHEYENNE 12 8 30 303 353536 994002 30003 101 2.9 57431 OK CLAREMORE 35 36 144 255 76140 362403 953630 15572 915 0 50198 OK EUFAULA 3 31 1000 364 351101 952019 31355 600 0.1 35645 OK LAWTON 7 11 138 327 341255 984313 40212 446 1.6 78322 OK MUSKOGEE 19 20 245 252 80215 354508 954815 20096 1001 0.4 84225 OK NORMAN 46 46 50 416 74779 353552 972922 18745 1211 0.1 12508 OK OKLAHOMA CITY 5 7 34 430 41104 353345 972924 34028 1407 0.1 25382 OK OKLAHOMA CITY 9 9 19.4 465 74545 353258 972950 36596 1436 0.2 50205 OK OKLAHOMA CITY 13 13 26.4 465 74494 353552 972922 38899 1455 0 67999 OK OKLAHOMA CITY 14 15 500 358 353435 972909 29701 1365 1.1 35388 OK OKLAHOMA CITY 25 24 1000 476 44126 353258 972918 37403 1448 0 66222 OK OKLAHOMA CITY 4 27 790 489 353552 972922 39060 1449 0.7 50170 OK OKLAHOMA CITY 34 33 1000 458 353258 972918 39194 1464 0 50182 OK OKLAHOMA CITY 43 40 55.6 475 74566 353522 972903 23666 1272 0 2566 OK OKLAHOMA CITY 62 50 200 483 353552 972922 28774 1341 0 38214 OK OKLAHOMA CITY 52 51 1000 458 353552 972922 36936 1428 0 7078 OK OKMULGEE 44 28 1000 219 19049 355002 960728 20118 978 0.5 77480 OK SHAWNEE 30 29 770 474 353336 972907 38646 1451 0.5 59439 OK TULSA 2 8 18.2 558 74648 360115 954032 40080 1293 0.2 35685 OK TULSA 8 10 6.9 542 42996 355808 953655 28865 1168 1.7 66195 OK TULSA 11 11 22.2 396 74534 360115 954032 33165 1210 0.3 11910 OK TULSA 23 22 1000 400 360136 954044 35867 1235 1 54420 OK TULSA 41 42 900 381 360136 954044 32279 1195 0.2 35434 OK TULSA 6 45 840 573 74632 360115 954032 40750 1297 0.7 37099 OK TULSA 47 47 50 460 75034 360115 954032 19212 1018 0 24485 OK TULSA 53 49 50 182 74912 360234 955711 13058 893 0 86532 OK WOODWARD 35 35 50 339 74767 361606 992656 16828 37 0 50588 OR BEND 3 11 160 226 440441 1211957 29073 157 0 55907 OR BEND 21 21 53.7 197 74422 440440 1211949 10195 150 0 166534 OR BEND 51 84.1 206 75180 440440 1211956 10034 148 0 49750 OR COOS BAY 11 11 3.2 188 74446 432326 1240746 12943 82 0 35183 OR COOS BAY 23 22 10 179 44658 432339 1240756 8368 65 0.9 50590 OR CORVALLIS 7 7 10.1 375 74546 443825 1231625 24451 1118 9.6 34406 OR EUGENE 9 9 12.1 502 75028 440657 1225957 24311 513 0.1 49766 OR EUGENE 13 13 30.9 407 74988 440007 1230653 28949 648 7.6 35189 OR EUGENE 16 17 70 473 44473 440657 1225957 17731 465 0.1 50591 OR EUGENE 28 29 100 403 60215 440007 1230653 15614 477 0 8322 OR EUGENE 34 31 88 372 67996 440004 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10186 0.2 73879 PA PHILADELPHIA 17 17 237 354 74615 400230 751411 24810 8188 0 25453 PA PHILADELPHIA 3 26 770 375 400233 751433 31614 10075 1.6 12499 PA PHILADELPHIA 57 32 250 400 44229 400230 751411 22512 7859 3.6 63153 PA PHILADELPHIA 10 34 325 377 71122 400230 751411 27178 8934 1.6 28480 PA PHILADELPHIA 35 35 358 377 71123 400230 751411 25390 8573 4.3 51568 PA PHILADELPHIA 29 42 273 347 74917 400226 751420 22077 7633 8.6 41315 PA PITTSBURGH 13 13 12.6 210 80240 402646 795751 21749 2933 1.3 25454 PA PITTSBURGH 2 25 1000 311 402938 800109 29482 3587 0.1 41314 PA PITTSBURGH 16 38 64.1 215 74997 402646 795751 14493 2602 0.2 73907 PA PITTSBURGH 22 42 1000 315 43259 402943 800017 22255 2996 3.9 73875 PA PITTSBURGH 53 43 1000 303 45946 402943 800018 23931 3093 0 73910 PA PITTSBURGH 11 48 1000 289 402748 800016 24863 3239 0.6 65681 PA PITTSBURGH 4 51 1000 273 40377 401649 794811 20794 2868 0.6 55305 PA READING 51 25 900 395 67694 401952 754141 20961 5185 35.2 55350 PA RED LION 49 30 50 177 74918 395418 763500 11529 1959 17.2 17010 PA SCRANTON 22 13 30 471 411058 755226 32173 2482 5.9 64690 PA SCRANTON 64 32 528 354 59210 412606 754335 20285 1051 5.2 73374 PA SCRANTON 38 38 57.6 385 75018 412609 754345 15550 899 3.7 47929 PA SCRANTON 44 41 200 487 411055 755217 23850 1905 2.3 73318 PA SCRANTON 16 49 100 506 411100 755210 21352 1725 0.9 71225 PA WILKES-BARRE 28 11 30 471 411058 755226 32646 2524 5.2 52075 PA WILLIAMSPORT 53 29 200 223 17599 411157 770739 12694 325 2.2 10213 PA YORK 43 47 933 385 45937 400141 763600 22841 3255 26.3 50063 RI BLOCK ISLAND 69 17 1000 228 67093 412941 714706 21896 2966 4 73311 RI PROVIDENCE 64 12 11.5 295 74616 415214 711745 21844 5899 0.8 47404 RI PROVIDENCE 12 13 18 305 415236 711657 28045 6539 0.8 56092 RI PROVIDENCE 36 21 50 268 65226 415154 711715 11209 2916 34.3 50780 RI PROVIDENCE 10 51 1000 305 74926 415154 711715 27224 6489 0.4 61003 SC ALLENDALE 14 33 427 241 67765 331115 812350 15210 603 0 56548 SC ANDERSON 40 14 310 311 30073 343851 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50 302 345311 814916 16629 1263 4 61012 SC SUMTER 27 28 98.4 364 335251 801615 22690 1018 0.4 40902 SC SUMTER 63 39 500 391 66995 340658 804551 23915 1157 7.1 48659 SD ABERDEEN 9 9 19.4 427 74475 450632 975330 32920 127 2.8 61064 SD ABERDEEN 16 17 50 357 74927 452955 974035 21097 80 0 61067 SD BROOKINGS 8 8 9.16 230 70586 442016 971342 19513 123 4.1 61071 SD EAGLE BUTTE 13 13 21.9 518 74989 450320 1021540 37160 18 3 41975 SD FLORENCE 3 3 3.7 241 74334 445753 973450 25730 122 0 28501 SD HURON 12 12 11.8 217 74456 441139 981905 19995 64 1.5 17686 SD LEAD 11 10 34.8 576 441936 1035012 44028 162 0 34348 SD LEAD 5 29 1000 564 74928 441930 1035014 39408 160 1.3 61063 SD LOWRY 11 11 10.6 317 74386 451634 995903 27187 27 0.7 61062 SD MARTIN 8 8 12.9 265 74461 432606 1013314 24925 28 0 55375 SD MITCHELL 5 26 1000 315 434533 982444 31314 100 0 61066 SD PIERRE 10 10 21.4 488 74447 435755 993556 37734 62 1.3 48660 SD PIERRE 4 19 61 347 44050 440307 1000503 17986 32 0 17688 SD RAPID CITY 3 2 7.1 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441 28869 291728 981612 34435 1982 0 64969 TX SAN ANTONIO 60 38 1000 414 41078 291738 981530 29713 1891 0.2 26304 TX SAN ANTONIO 5 39 751 424 74634 291607 981555 34215 1903 0.1 35881 TX SAN ANTONIO 41 41 416 414 74547 291738 981530 25480 1848 0.2 69618 TX SAN ANTONIO 4 48 844 451 74680 291610 981555 34527 1894 1.3 35954 TX SHERMAN 12 12 14.4 543 74439 340158 964800 38337 946 13 77452 TX SNYDER 17 17 184 138 74359 324652 1005352 8618 45 0 308 TX SWEETWATER 12 20 561 427 74949 322448 1000625 31757 243 2.6 10245 TX TEMPLE 6 9 25 527 41595 311624 971314 34738 1265 6.8 35648 TX TEXARKANA 6 15 1000 454 325411 940020 42049 1055 0.1 68540 TX TYLER 7 7 15 302 74360 323223 951312 25525 762 0.4 61173 TX UVALDE 26 26 235 560 74761 293711 990257 31324 1771 1.6 35846 TX VICTORIA 19 11 18 290 285042 970733 24235 256 13.4 73101 TX VICTORIA 25 15 900 312 59285 285042 970733 29932 310 1.8 35903 TX WACO 10 10 13.8 552 75056 311919 971858 38053 1164 1.1 6673 TX WACO 34 20 700 319 69374 311917 972040 25553 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442435 880006 35477 1151 0.7 9635 WI GREEN BAY 5 39 1000 364 68312 442001 875856 30736 1115 1.4 2708 WI GREEN BAY 26 41 1000 321 27828 442130 875848 26965 1084 0.8 18798 WI GREEN BAY 38 42 200 375 442434 880006 25059 1041 0.5 26025 WI JANESVILLE 57 32 200 387 65253 430303 892913 25102 1265 0.3 37104 WI KENOSHA 55 40 830 358 43896 430544 875417 26695 2947 0.4 74424 WI LA CROSSE 8 8 20.3 462 74563 440528 912016 35282 714 2.4 64549 WI LA CROSSE 19 14 250 327 434823 912202 25195 419 0.8 2710 WI LA CROSSE 25 17 450 349 29449 434815 912220 25884 487 0.7 18780 WI LA CROSSE 31 30 308 351 434817 912206 25913 420 0 10221 WI MADISON 47 11 15 471 30020 430321 893206 29375 1533 4.4 6870 WI MADISON 15 19 56 387 430303 892913 21196 1026 3.9 6096 WI MADISON 21 20 100 453 430321 893206 26579 1250 1.2 64545 WI MADISON 27 26 400 455 33126 430321 893206 30128 1450 1.3 65143 WI MADISON 3 50 603 466 430321 893206 32793 1639 2.5 68547 WI MAYVILLE 52 43 300 186 432611 883134 16768 1878 7.9 18793 WI MENOMONIE 28 27 291 350 450249 915147 26272 743 13.7 42663 WI MILWAUKEE 10 8 25 354 67092 430546 875415 29509 3035 1.4 74174 WI MILWAUKEE 18 18 368 302 74698 430544 875417 22781 2496 3.6 72342 WI MILWAUKEE 30 22 196 297 42943 430544 875417 19180 2440 1.3 71278 WI MILWAUKEE 24 25 625 340 41342 430544 875417 26207 2873 1.1 74098 WI MILWAUKEE 4 28 1000 305 74959 430529 875407 30554 2856 4.5 73107 WI MILWAUKEE 6 33 1000 305 74960 430524 875347 30009 2916 0.6 65680 WI MILWAUKEE 12 34 863 263 59757 430642 875542 23265 2660 0 42665 WI MILWAUKEE 36 35 500 355 66933 430546 875415 25395 2769 0.1 71427 WI MILWAUKEE 58 46 1000 322 32644 430642 875550 27046 2827 1.9 63046 WI PARK FALLS 36 36 50 445 74583 455643 901628 22223 139 0 68545 WI RACINE 49 48 176 303 74961 430515 875401 17104 2279 0.1 49699 WI RHINELANDER 12 16 538 489 28605 454003 891229 38587 375 0 33658 WI SUPERIOR 6 19 384 312 464721 920650 26329 264 0 73042 WI SURING 14 21 450 332 43297 442001 875856 20367 938 0.2 6867 WI WAUSAU 7 7 16.9 369 74555 445514 894131 31741 531 0.1 64546 WI WAUSAU 9 9 17 369 75014 445514 894131 31158 526 0.8 73036 WI WAUSAU 20 24 200 387 445514 894128 27230 487 0.4 86204 WI WITTENBERG 55 50 160 327 74788 450322 892754 18272 378 1.2 37806 WV BLUEFIELD 40 40 1000 386 74377 371308 811539 24131 705 1.2 74176 WV BLUEFIELD 6 46 1000 372 371520 811054 25413 700 0.2 417 WV CHARLESTON 11 19 475 514 382428 815413 37278 1306 0.6 73189 WV CHARLESTON 29 39 1000 350 40580 382812 814635 25868 924 2 71280 WV CHARLESTON 8 41 475 514 382428 815413 33607 1168 3.1 10976 WV CLARKSBURG 46 10 30 235 44599 391802 802037 21897 566 4.9 71220 WV CLARKSBURG 12 12 11.3 262 80238 391706 801946 22848 585 2 71680 WV GRANDVIEW 9 10 18.6 305 80261 375346 805921 24852 649 2.1 23342 WV HUNTINGTON 13 13 16 396 70338 383021 821233 27894 1025 4.7 36912 WV HUNTINGTON 3 23 724 402 383036 821310 33731 1182 0.6 71657 WV HUNTINGTON 33 34 63.1 379 74962 382941 821203 16566 734 1.4 74169 WV LEWISBURG 59 8 3.68 577 374622 804225 26153 590 1.7 23264 WV MARTINSBURG 60 12 23 314 392727 780352 24936 2480 6.2 71676 WV MORGANTOWN 24 33 145 457 74963 394145 794545 20788 1370 0.5 66804 WV OAK HILL 4 50 1000 236 80182 375726 810903 18914 515 1.7 4685 WV PARKERSBURG 15 49 47.4 193 392059 813356 12781 348 2.2 70592 WV WESTON 5 5 9.96 253 74344 390429 802528 27452 568 0.5 6869 WV WHEELING 7 7 15.5 293 74497 400341 804508 25673 2373 0.1 82575 WY CASPER 6 6 1 536 74715 424426 1062134 20136 70 0 68713 WY CASPER 13 12 3.2 534 74727 424426 1062134 18050 70 0 63177 WY CASPER 14 14 53.3 573 74389 424426 1062134 25030 70 0 18286 WY CASPER 2 17 741 588 424403 1062000 40682 80 0.1 74256 WY CASPER 20 20 52.4 582 74425 424437 1061831 21652 70 0 18287 WY CHEYENNE 33 11 16 650 67257 403247 1051150 28369 2763 0 40250 WY CHEYENNE 27 27 169 232 74478 410255 1045328 13499 438 0 63166 WY CHEYENNE 5 30 630 189 410601 1050023 18799 415 2.9 1283 WY JACKSON 2 2 1 293 74378 432742 1104510 17622 31 0 35103 WY JACKSON 11 11 3.2 327 74724 432742 1104510 10697 22 0 63162 WY LANDER 5 7 31.7 82 74964 425343 1084334 15754 32 2.8 10036 WY LANDER 4 8 60 463 74965 423459 1084236 36626 35 0.6 10032 WY LARAMIE 8 8 3.2 318 74718 411717 1052642 12970 109 0.1 21612 WY RAWLINS 11 9 3.2 70 74966 414615 1071425 9432 11 0 21613 WY RIVERTON 10 10 13.9 526 74402 432726 1081202 26335 49 0.1 63170 WY ROCK SPRINGS 13 13 14.2 495 74448 412621 1090642 33002 43 0 81191 WY SHERIDAN 7 7 3.2 349 74717 443720 1070657 12316 28 0 17680 WY SHERIDAN 12 13 50 372 443720 1070657 32735 52 0 51233 GU AGANA 8 8 3.2 282 132553 −1444236 25511 GU AGANA 12 12 38.9 75 132613 −1444817 29232 GU TAMUNING 14 14 50 1 133009 −1444817 3255 PR AGUADA 50 50 50 343 74700 181907 671048 13079 862 2.3 71725 PR AGUADILLA 12 12 7.31 665 74705 180900 665900 35964 1570 1.9 61573 PR AGUADILLA 44 17 50 372 74920 181906 671042 17140 918 2.5 26602 PR AGUADILLA 32 34 250 605 180906 665923 35049 1393 6.6 26676 PR ARECIBO 60 14 50 833 80214 180917 663316 23099 2851 9.4 3001 PR ARECIBO 54 46 50 600 74610 181406 664536 16621 2420 5.7 4110 PR BAYAMON 36 30 50 329 74691 181640 660638 14518 2514 0.5 19777 PR CAGUAS 11 11 3.2 357 74649 181654 660646 16753 2655 0.1 8156 PR CAGUAS 58 48 50 329 74666 181640 660638 12923 2406 2.3 54443 PR CAROLINA 52 51 450 585 32803 181644 655112 30994 2770 0.1 73901 PR FAJARDO 13 13 2.8 863 181836 654741 34770 2702 0.1 2174 PR FAJARDO 40 16 150 839 58931 181836 654741 30040 2720 3.9 15320 PR FAJARDO 34 33 50 848 74765 181836 654741 24903 2589 0.2 18410 PR GUAYAMA 46 45 50 642 74921 181648 655108 23740 2490 0.9 67190 PR HUMACAO 68 49 46 623 75154 181644 655110 20292 2501 0.9 60357 PR MAYAGUEZ 16 22 50 338 74738 181851 671124 16336 808 14.3 73336 PR MAYAGUEZ 22 23 400 693 65201 180900 665900 37898 1376 0.9 64865 PR MAYAGUEZ 5 29 1000 607 180902 665920 45696 1574 14.2 53863 PR MAYAGUEZ 3 35 620 674 180900 665900 43682 1920 0.1 19561 PR NARANJITO 64 18 50 142 74703 181734 661602 12482 2515 0.1 60341 PR PONCE 7 7 16.4 826 80207 180917 663316 46704 3722 0 19776 PR PONCE 9 9 3.2 825 74569 181009 663436 28603 3473 0 26681 PR PONCE 14 15 380 839 67269 181010 663436 41336 3364 5.6 58341 PR PONCE 20 19 700 269 65948 180449 664453 24888 1701 0.1 2175 PR PONCE 26 25 200 310 41622 180448 664456 19187 1516 0 29000 PR PONCE 48 47 50 247 74924 180450 664450 11769 1118 0.3 58340 PR SAN JUAN 24 21 1000 564 181645 655114 44300 3102 0.4 52073 PR SAN JUAN 4 27 1000 794 180642 660305 53151 3389 0.5 64983 PR SAN JUAN 2 28 871 861 74925 180654 660310 52474 3313 4 4077 PR SAN JUAN 30 31 75.9 287 181630 660536 15347 2490 0.6 28954 PR SAN JUAN 18 32 3.9 290 65128 181630 660536 7747 2088 6.4 53859 PR SAN JUAN 6 43 791 825 74633 180642 660305 48283 3343 0 58342 PR SAN SEBASTIAN 38 39 700 627 65242 180900 665900 34738 1692 0 39887 PR YAUCO 42 41 185 832 181010 663436 39318 3448 0 3113 VI CHARLOTTE AMALIE 17 17 50 455 182126 645650 24537 104 0.1 83270 VI CHARLOTTE AMALIE 43 1.4 28 182043 645545 1687 0 0 70287 VI CHARLOTTE AMALIE 12 44 30.4 505 75403 182128 645653 18332 11 0 84407 VI CHRISTIANSTED 15 15 50 296 74735 174521 644756 14545 0 0 2370 VI CHRISTIANSTED 8 20 501 292 74953 174521 644756 17484 7 0 83304 VI CHRISTIANSTED 39 23 0.85 130 174440 644340 5461 0 0 Appendix C—List of Commenters and Reply Commenters Comments (Filed by Jan. 25, 2007) 1. 54 Broadcasting, Inc. 2. Alabama Educational Television Commission 3. Alaska Broadcasting Company, Inc. 4. The Allen Broadcasting Corp. 5. Amarillo Junior College District 6. Arizona Board of Regents 7. Arkansas Educational Television Commission 8. Association of Federal Communications Consulting Engineers 9. Barrington Bay City License LLC 10. Barrington Peoria License LLC 11. Bluestone License Holdings, Inc. 12. Board of Regents of Oklahoma Colleges/Roger State University 13. The Board of Trustees of Southern Illinois University 14. Board of Trustees of Northern Michigan University 15. Ronald J. Brey 16. Brazos Valley Public Broadcasting Foundation 17. CBS Corporation 18. Capital Community Broadcasting, Inc. 19. Capital Broadcasting Company, Inc. 20. Christian Faith Broadcast, Inc. 21. Christian Worldview Broadcasting Corporation 22. CMCG Puerto Rico License, LLC 23. Collins Broadcasting Company 24. Colorado Public Television 25. Community Television of Southern California—KCET 26. Connecticut Public Broadcasting, Inc. 27. Corridor Television LLP Licensee of KCWX, Fredericksburg, Texas 28. The Curators of the University of Missouri 29. Delta College 30. Dept. of Information Technology and Telecommunication of the City of New York 31. Dispatch Broadcast Group 32. Diversified Broadcasting, Inc. 33. Dominion Broadcasting, Inc. 34. Duluth-Superior Area Educational Television Corporation—WDSE 35. Eastern Illinois University 36. Eastern Television Corporation 37. Educational Broadcasting Foundation, Inc. 38. Ellis Communications KDOC Licensee, Inc. 39. Entravision Holdings, LLC 40. Evangelistic Alaska Missionary Fellowship, Inc. 41. Flathead Adventist Radio, Inc. 42. Florida West Coast Public Broadcasting, Inc. 43. John F. Fleming 44. Florida West Coast Public Broadcasting, Inc. 45. Florida State University 46. Gainesville Channel 61 Associates, Inc. 47. Georgia Public Telecommunications Commission 48. Granite Broadcasting Corporation 49. Grant Educational Foundation, et. al. 50. Gray Television Licensee, Inc. 51. Griffin Tulsa II Licensing, LLC 52. Hearst-Argyle Television, KCWE LMA Inc., and WMOR-TV Company 53. Hoak Media, LLC 54. ICA Broadcasting I, Ltd., Licensee of KOSA-TV 55. International Broadcasting Corporation 56. Jackson Television, LLC 57. KATC Communications, Inc. 58. Ketchikan TV, LLC 59. KEVN, Inc. 60. KM Television of Iowa, LLC, KM Television of Flagstaff, LLC 61. KOB-TV, LLC 62. KOCE-TV Foundation 63. KPAX Communications, Inc. 64. KRTV Communications, Inc. 65. KTVQ Communications, Inc. 66. KVIE, Inc. 67. KVOA Communications, Inc. 68. LIN of Alabama, LLC 69. Malara Broadcast Group, Inc. 70. Maritime Communications/Land Mobile, LLC 71. Mc-Graw Hill Broadcasting Company, Inc. 72. Media General Communications Holdings, LLC 73. Meredith Corporation 74. Mid State Television, Inc. 75. Mission Broadcasting, Inc. 76. Mississippi Authority for Educational Television 77. Mississippi Broadcasting Partners 78. Mitts Telecasting Company 79. Morris Network, Inc. 80. Mt. Mansfield Television, Inc. 81. Mountain Licenses, LP 82. NBC Telemundo License Co. 83. NEPSK, Inc. 84. New Jersey Public Broadcasting Authority 85. New York Times Management Services 86. Newport License Holdings, Inc. 87. Newschannel 5 Network, L.P. 88. Nexstar Broadcasting, Inc. 89. Northern California Public Television 90. Northern California Public Broadcasting Inc.—KQED 91. Oral Roberts University 92. Pappas Entities 93. Pappas Telecasting of America & South Central Communications Corporation 94. Parker Broadcasting, Inc. 95. Paxson Communications License Company, LLC 96. Paxson Denver License, Inc. 97. Paxson Hartford License, Inc. 98. Paxson Jax License, Inc. 99. Paxson Kansas City License, Inc. 100. The Pennsylvania State University 101. Piedmont Television of Huntsville License, LLC and Huntsville Broadcasting Corporation 102. Piedmont Television of Macon License, LLC 103. Piedmont Television of Monroe/El Dorado License LLC 104. Prime Time Christian Broadcasting, Inc. 105. The PSC Liquidating Trust 106. Puerto Rico Public Broadcasting Corporation 107. Ramar Communications II, Ltd. 108. Raycom TV Broadcasting, Inc. 109. Red River Broadcast, LLC 110. Red River Broadcast Co., LLC—KBRR 111. Red River Broadcast Co., LLC—KJRR 112. St. Lawrence Valley Educational Television Council, Inc. 113. Sangre de Christo Communications, Inc. 114. School Board of Broward County, Florida 115. Larry L. Schrecongost 116. Scripps Howard Broadcasting Company—KNXV-DT 117. Scripps Howard Broadcasting Company—WCPO-DT 118. Siete Grande Television, Inc. 119. Sinclair Broadcast Group, Inc. 120. Smith Media License Holdings, LLC 121. South Carolina Educational Television Commission 122. South Dakota Board of Directors for Educational Telecommunications 123. Stainless Broadcasting, LP 124. State Board of Education, State of Idaho 125. Sunbeam Television Corporation 126. Surtsey Media, LLC 127. Tanana Valley Television Company 128. Television Capital Corporation of Mobile 129. University of Houston System 130. The University of North Carolina 131. Thomas Broadcasting Company 132. Trinity Christian Center of Santa Ana, Inc., et. Al. (Supplement to Comment) 133. Twin Cities Public Television, Inc. 134. University of Alaska 135. University of New Hampshire 136. Univision Communications, Inc. 137. Virgin Islands Public Television System 138. WHDH-TV 139. WLEX Communications, LLC 140. WMHT Educational Telecommunications 141. WMYT-TV, Inc. 142. WNYT-TV, LLC 143. WQED Multimedia 144. WVVA Television, Inc. 145. Waitt Broadcasting, Inc. 146. The Walt Disney Company 147. Washburn University of Topeka 148. West Virginia Educational Broadcasting Authority 149. West Virginia Media Holdings, LLC 150. Western Kentucky University 151. Woods Communications Corporation 152. Young Broadcasting, Inc. Reply Comments (Filed by Feb. 26, 2007) 1. Association for Maximum Service Television, Inc. 2. Ronald J. Brey 3. CBS Corporation 4. Capital Broadcasting Company, Inc. 5. Cohen, Dippell and Everist, P.C. (Some appear to be filed as late comments) 6. Concilio Mision Cristiana Fuente De Agua Viva, Inc. (written as comment) 7. Connecticut Public Broadcasting, Inc. 8. Davis Television Clarksburg, LLC 9. Ebenezer Broadcasting Group, Inc. (written as comment) 10. Florida West Coast Public Broadcasting, Inc. 11. Gilmore Broadcasting Corporation 12. KPAX Communications, Inc. 13. Larry L. Schrecongost 14. McGraw Hill Broadcasting Company, Inc. 15. Midwest Television, Inc. 16. Nexstar Broadcasting, Inc. 17. Paging Systems, Inc. 18. Quincy Broadcasting Company (filed jointly with WREX Television, LLC) 19. Smith Media License Holdings, LLC 20. Southern Broadcasting, Inc. (resubmitting comments they stated were filed January 25, 2007) 21. WSJV Television, Inc. 22. WVVA Television, Inc. 23. The Walt Disney Company Late-filed Ex Parte Comments (Filed After Feb. 26, 2007) 1. Alamo Public Telecommunications Council 2. The Board of Trustees of the University of Alabama 3. CBS Corporation (Supplemental comments) 4. Community Television of Southern California—KCET (response to Reply comments) 5. Corridor Television LLP Licensee of KCWX, Fredericksburg, Texas (supplemental) 6. Davis Television Clarksburg, LLC 7. Gray Television, Inc. 8. Fox Television Stations, Inc. 9. Fox Television Stations of Philadelphia, Inc. 10. Georgia Public Telecommunications Commission (supplemental) 11. Idaho Independent Television, Inc. 12. KTBC License, Inc. 13. La Cadena Del Milagro, Inc. 14. Oklahoma Educational Television Authority 15. Oklahoma Land Company LLC 16. Richland Reserve, LLC 17. Saga Quad States Communications, LLC 18. Smith Media License Holdings, LLC (supplement to comment) 19. Southern Broadcasting, Inc. (raising new issues) 20. Tribune Broadcasting Company Ex Parte 1. Association for Maximum Service Television, Inc. 2. Association of Public Television Stations, PBS, CPB 3. Christian Faith Broadcast, Inc. 4. Colorado Public Television 5. Corridor Television LLP 6. Dispatch Broadcast Group 7. Gilmore Broadcasting Corporation 8. Gray Television, Inc. 9. KTBC License, Inc. 10. Mt. Mansfield Television, Inc. 11. New America Foundation 12. Pacifica Broadcasting Company & Oceania Christian Church 13. Sangre de Cristo Communications, Inc. 14. Siete Grande Television, Inc. 15. Tribune Broadcasting Company 16. West Virginia Educational Broadcasting Authority WSJV Television, Inc. Appendix D1—Granted Requests for Minor Adjustments Call sign Facility ID # Community State Current NTSC channel Current DTV channel Post transition channel KVEA 19783 CORONA CA 52 39 39 KWHY 26231 LOS ANGELES CA 22 42 42 KCRA 33875 SACRAMENTO CA 3 35 35 KQED 35500 SAN FRANCISCO CA 9 30 30 WSCV 64971 FORT LAUDERDALE FL 51 52 30 KMEG 39665 SIOUX CITY IA 14 39 39 WEEK 24801 PEORIA IL 25 57 25 WPTA 73905 FORT WAYNE IN 21 24 24 WRTV-DT 40877 INDIANAPOLIS IN 6 25 25 WNEM-DT 41221 BAY CITY MI 5 22 22 WMYD 74211 DETROIT MI 20 21 21 KPXE-DT 33337 KANSAS CITY MO 50 51 51 WRAL 8688 RALEIGH NC 5 53 48 KSNB 21161 SUPERIOR NE 4 34 34 WKBW 54176 BUFFALO NY 7 38 38 WTVH 74151 SYRACUSE NY 5 47 47 KDOR 1005 BARTLESVILLE OK 17 15 17 WPMT 10213 YORK PA 43 47 47 WQHA 3255 AGUADA PR 50 62 50 WATE 71082 KNOXVILLE TN 6 26 26 WSLS 57840 ROANOKE VA 10 30 30 WBAY 74417 GREEN BAY WI 2 23 23 Appendix D2—Granted Requests for Changes to Certification That Meet the Interference Criteria Call sign Facility ID # Community State Current NTSC channel Current DTV channel Post transition channel File No. KTVA 49632 ANCHORAGE AK 11 28 28 BLCDT-20061113AAT. KATN 13813 FAIRBANKS AK 2 18 18 BMPCDT-20070222AAL. KJUD 13814 JUNEAU AK 8 11 11 BMCDT-20070412AAI. KTOO 8651 JUNEAU AK 3 10 10 BLEDT-20040730ABD. WDHN 43846 DOTHAN AL 18 21 21 BMPCDT-20070125ACS. WTTO 74138 HOMEWOOD AL 21 28 28 BMPCDT-20041104AMB. WAAY 57292 HUNTSVILLE AL 31 32 32 BLCDT-20050701ABO. WMPV 60827 MOBILE AL 21 20 20 BLCDT-20060703AAJ. KTVE 35692 EL DORADO AR 10 27 27 BLCDT-20070105ABH. KHOG 60354 FAYETTEVILLE AR 29 15 15 BLCDT-20020904AAX. KHBS 60353 FORT SMITH AR 40 21 21 BLCDT-20031121AMR. KARK 33440 LITTLE ROCK AR 4 32 32 BLCDT-20060504ABM. KCFG 35104 FLAGSTAFF AZ 9 32 32 BMPCDT-20060329AJP. KTAZ 81458 PHOENIX AZ 39 39 BLCT-20060809ABN. KUAT 2731 TUCSON AZ 6 30 30 BLEDT-20040727ABR. KDOC 24518 ANAHEIM CA 56 32 32 BLCDT-20060626ACV. KTNC 21533 CONCORD CA 42 63 14 BLCDT-20060629ABI. KSEE 35594 FRESNO CA 24 38 38 BLCDT-20050914AAZ. KBCW-TV 69619 SAN FRANCISCO CA 44 45 45 BLCDT-20020709AAQ. KREG 70578 GLEENWOOD SPRING CO 3 23 23 BLCDT-20060629AER. KFQX 31597 GRAND JUNCTION CO 4 15 15 BLCDT-20061020ACO. KKCO 24766 GRAND JUNCTION CO 11 12 12 BLCDT-20030401ABM. KREX 70596 GRAND JUNCTION CO 5 2 2 BPCDT-19991029AFS. KDEN-DT 38375 LONGMONT CO 25 29 29 BLCDT-20060630ACM. KREY 70759 MONTROSE CO 10 13 13 BLCDT-20060629ACV. KOAA 59014 PUEBLO CO 5 42 42 BPCDT-19991029AGS. WHPX-DT 51980 NEW LONDON CT 26 34 26 BLCDT-20060630ABZ. WPPB 51349 BOCA RATON FL 63 40 40 Allotment Facility 122731. WTGL 24582 COCOA FL 52 53 51 BPCDT-20000428ABS. WTCE 29715 FORT PIERCE FL 21 38 38 BMPEDT-20060125ADR. WCJB 16993 GAINESVILLE FL 20 16 16 BDSTA-20050803ADT. WGFL 7727 HIGH SPRINGS FL 53 28 28 BLCDT-20060714ABC. WJEB 29719 JACKSONVILLE FL 59 44 44 BLCDT-20060301ADC. WMOR 53819 LAKELAND FL 32 19 19 BLCDT-20050726ABO. WSFL 10203 MIAMI FL 39 19 19 BLCDT-20070124ABF. WSVN-DT 63840 MIAMI FL 7 8 7 BPCDT-19991101AFH. WTLH 23486 BAINBRIDGE GA 49 50 49 BLCDT-20061020ACP. WPXC-DT 71236 BRUNSWICK GA 21 24 24 BLCDT-20060607ABQ. WELF 60825 DALTON GA 23 16 16 BLCDT-20060301ADC. WGXA-DT 58262 MACON GA 24 16 16 BMPCDT-20070131AIP. WMGT 43847 MACON GA 41 40 40 BLCDT-20070112AHJ. KALO 51241 HONOLULU HI 38 10 10 Allotment Facility 161807. KBFD 65395 HONOLULU HI 32 33 33 BMPCDT-20070112AGB. KWKB-TV 35096 IOWA CITY IA 20 25 25 BLCDT-20070130AJQ. KUID 62382 MOSCOW ID 35 12 12 BLEDT-20060804AFK. WCIA 42124 CHAMPAIGN IL 3 48 48 BMPCDT-20050701ACC. WICD 25684 CHAMPAIGN IL 15 41 41 BLCDT-20050620AAO. WEIU 18301 CHARLESTON IL 51 50 50 BLEDT-20060504AAW. WUSI 4301 OLNEY IL 16 19 19 BLEDT-20060619ABG. WMBD 42121 PEORIA IL 31 30 30 BLCDT-20061019ADD. WSJV 74007 ELKHART IN 28 58 28 BLCDT-20060620ABX. WFFT 25040 FORT WAYNE IN 55 36 36 BMPCDT-20070125ACY. WISE 13960 FORT WAYNE IN 33 19 19 BMPCDT-20070123AAR. WFXW 65247 TERRE HAUTE IN 38 39 39 BMPCDT-20070125ACT. WTWO 20426 TERRE HAUTE IN 2 36 36 BMPCDT-20070125ADB. WLEX-TV 73203 LEXINGTON KY 18 39 39 BMPCDT-20050728AOP. KATC-TV 33471 LAFAYETTE LA 3 28 28 BMPCDT-20060906AAW. KARD 3658 WEST MONROE LA 14 36 36 BMPCDT-20070125ACR. WPME 48408 LEWISTON ME 35 28 35 BLCDT-20060629ABK. WPXT 53065 PORTLAND ME 51 43 43 BLCDT-20060714ABB. WAGM-DT 48305 PRESQUE ISLE ME 8 16 8 BLCDT-20030807AEX. KDLH 4691 DULUTH MN 3 33 33 BMPCDT-20060519AAE. KTCA 68594 ST. PAUL MN 2 34 34 BLEDT-20060802AAO. KODE 18283 JOPLIN MO 12 43 43 BMPCDT-20070125ACU. KSNF 67766 JOPLIN MO 16 46 46 BMPCDT-20070125ACP. KSFX 3659 SPRINGFIELD MO 27 28 28 BMPCDT-20070116AAC. KTAJ 999 ST. JOSEPH MO 16 21 21 BLCDT-20060703AAK. WABG-TV 43203 GREENWOOD MS 6 32 32 BLCDT-20051024ABR. KSVI 5243 BILLINGS MT 6 18 18 BPCDT-19991029ACI. KTVQ 35694 BILLINGS MT 2 10 10 BLCDT-20060802AYX. KRTV 35567 GREAT FALLS MT 3 7 7 BLCDT-20060728AEO. KHMT 47670 HARDIN MT 4 22 22 BMPCDT-20070125ACV. KPAX 35455 MISSOULA MT 8 7 7 BLCDT-20070209AAZ. WUND 69292 COLUMBIA NC 2 20 20 BPEDT-20070112AHT. KFYR 41427 BISMARCK ND 5 31 31 BMPCDT-20060629AES. KVLY 61961 FARO ND 11 44 44 BMPCDT-20060629AFS. KXJB 49134 VALLEY CITY ND 4 38 38 BLCDT-20060831AAM. KETV 53903 OMAHA NE 7 20 20 BLCDT-20041222AED. KPTM 51491 OMAHA NE 42 43 43 BLCDT-20051107AFO. KXVO 23277 OMAHA NE 15 38 15 BLCDT-20060809AFX. WGTW 7623 BURLINGTON NJ 48 27 27 BLCDT-20060105AAR. KOB 35313 ALBUQUERQUE NM 4 26 26 BLCDT-20051003BQP. KVCW 10195 LAS VEGAS NV 33 29 29 BLCDT-20070109AAW. KVMY 10179 LAS VEGAS NV 21 22 22 BLCDT-20070109AAU. WICZ 62210 BINGHAMTON NY 40 8 8 BLCDT-20060320AFC. WNYO 67784 BUFFALO NY 49 34 34 BLCDT-20061207ABR. WNYE 6048 NEW YORK NY 25 24 24 BMPEDT-20070124AAX. WPTZ 57476 NORTH POLE NY 5 14 14 BLCDT-20070116ACW. WNPI 62137 NORWOOD NY 18 23 23 BLEDT-20050715ABZ. WROC 73964 ROCHESTER NY 8 45 45 BLCDT-20060418AAA. WUTR 57837 UTICA NY 20 30 30 BLCDT-20040217ADC. WGGN-DT 11027 SANDUSKY OH 52 42 42 BMPCDT-20000501AIZ. KRSC-DT 57431 CLAREMORE OK 35 36 36 BLEDT-20061011AAM. KTUZ 77480 SHAWNEE OK 30 29 29 BMPCDT-20060707AFM. KRCW 10192 SALEM OR 32 33 33 BMLCDT-20070123ABS. WTAJ 23341 ALTOONA PA 10 32 32 BLCDT-20051018ACE. WOLF 73375 HAZLETON PA 56 45 45 BLCDT-20050906ACK. WQMY 52075 WILLIAMSPORT PA 53 29 29 BPCDT-19980825KJ. WMEI 26676 ARECIBO PR 60 61 14 BMPCT-20060614ABI. WVSN 67190 HUMACAO PR 68 49 49 BMPCDT-20060719ACQ. WIPM-DT 53863 MAYAGUEZ PR 3 35 35 BLEDT-20060627ACQ. WJWJ-DT 61007 BEAUFORT SC 16 44 44 BLEDT-20060221AEJ. WJPM-DT 61008 FLORENCE SC 33 45 45 BLED-20050324ACE. WNEH-DT 60931 GREENWOOD SC 38 18 18 BLEDT-20050322AGH. WMBF-TV 83969 MYRTLE BEACH SC 32 32 BMPCDT-20060829BEG. WRET-DT 61011 SPARTANBURG SC 49 43 43 BLEDT-20050324ACD. KPRY 48660 PIERRE SD 4 19 19 BLCDT-20021118ABY. KCSD 60728 SIOUX FALLS SD 23 24 24 BLEDT-20040112ACM. KUSD 61072 VERMILLION SD 2 34 34 BDSTA-20060908ADD. WDSI 71353 CHATTANOOGA TN 61 40 40 BMPCDT-20041229AAO. KRBC 306 ABILENE TX 9 29 29 BMPCDT-20070125ABY. KTAB 59988 ABILENE TX 32 24 24 BMPCDT-20070125ABS. KAMR 8523 AMARILLO TX 4 19 19 BMPCDT-20070125ABO. KRIS-DT 25559 CORPUS CHRISTI TX 6 13 13 BLCDT-20060628ABC. KAMC 40820 LUBBOCK TX 28 27 27 BMPCDT-20070125ABW. KJTV-DT 55031 LUBBOCK TX 34 35 35 BLCDT-20070201BKH. KLBK 3660 LUBBOCK TX 13 40 40 BMPCDT-20070125ABT. KLST 31114 SAN ANGELO TX 8 11 11 BMPCDT-20070125ACQ. KSAN 307 SAN ANGELO TX 3 16 16 BMPCDT-20070125ABX. KTAL 35648 TEXARKANA TX 6 15 15 BMPCDT-20070125ABR. KWBU 6673 WACO TX 34 20 20 BLEDT-20060622AAS. KAUZ 6864 WICHITA FALLS TX 6 22 22 BPCDT-19991028ADQ. KFDX 65370 WICHITA FALLS TX 3 28 28 BMPCDT-20070125ABU. WTJX 70287 CHARLOTTE AMALIE VI 12 44 44 BPEDT-20060824ADL. WFFF-DT 10132 BURLINGTON VT 44 43 43 BPCDT-19991029ABX. KWPX 56852 BELLEVUE WA 33 32 33 BLCDT-20060405ACG. WFRV 9635 GREEN BAY WI 5 39 39 BLCDT-20051004ABD. KBJR 33658 SUPERIOR WI 6 19 19 BMPCDT-20060519AAF. WVVA-DT 74176 BLUEFIELD WV 6 46 46 BLCDT-20060929AEJ. Appendix D3—Granted Requests for Modified Coverage Area Call sign Facility ID # Community State Current NTSC channel Current DTV channel Post transition channel KUAC 69315 FAIRBANKS AK 9 24 9 WCIQ 711 MOUNT CHEAHA AL 7 56 7 KFMB 42122 SAN DIEGO CA 8 55 8 WVAN 23947 SAVANNAH GA 9 13 9 WGEM 54275 QUINCY IL 10 54 10 WREX 73940 ROCKFORD IL 13 54 13 WTHR 70162 INDIANAPOLIS IN 13 46 13 KTWU-DT 70938 TOPEKA KS 11 23 11 WHDH-TV 72145 BOSTON MA 7 42 7 WDSE-TV 17726 DULUTH MN 8 38 8 KOMU-DT 65583 COLUMBIA MO 8 36 8 KTVM-TV 18066 BUTTE MT 6 33 6 KCFW 18079 KALISPELL MT 9 38 9 KECI-TV 18084 MISSOULA MT 13 40 13 WCTI-DT 18334 NEW BERN NC 12 48 12 KJRR 55364 JAMESTOWN ND 7 18 7 KMOT 41425 MINOT ND 10 58 10 KHAS 48003 HASTINGS NE 5 21 5 KNOP 49273 NORTH PLATTE NE 2 22 2 WENH-DT 69237 DURHAM NH 11 57 11 WPIX 73881 NEW YORK NY 11 33 11 WPVI 8616 PHILADELPHIA PA 6 64 6 WQED 41315 PITTSBURGH PA 13 38 13 WSTE 60341 PONCE PR 7 8 7 WTVF 36504 NASHVILLE TN 5 56 5 KUHT 69269 HOUSTON TX 8 9 8 KOSA 6865 ODESSA TX 7 31 7 WCYB-TV 2455 BRISTOL VA 5 28 5 WCAX 46728 BURLINGTON VT 3 53 22 WBOY 71220 CLARKSBURG WV 12 52 12 Appendix D4—Stations in Border Zones That Must File Post-Transition Applications Call sign Facility ID Community State Current DTV channel Current NTSC channel Post transition channel KTNL 60519 SITKA AK 2 13 7 KFTU-TV 81441 DOUGLAS AZ 0 3 36 KFPH-TV 41517 FLAGSTAFF AZ 27 13 13 KNAZ-TV 24749 FLAGSTAFF AZ 22 2 2 KUVE-TV 63927 GREEN VALLEY AZ 47 46 46 KDTP 83491 HOLBROOK AZ 11 11 KPNX 35486 MESA AZ 36 12 12 KAET 2728 PHOENIX AZ 29 8 8 KNXV-TV 59440 PHOENIX AZ 56 15 15 KSAZ-TV 35587 PHOENIX AZ 31 10 10 KTAZ 81458 PHOENIX AZ 39 39 39 KTVW-TV 35705 PHOENIX AZ 34 33 33 KAZT-TV 35811 PRESCOTT AZ 25 7 7 KPPX 26655 TOLLESON AZ 52 51 51 KGUN 36918 TUCSON AZ 35 9 9 KHRR 30601 TUCSON AZ 42 40 40 KYMA 74449 YUMA AZ 41 11 11 960919KZ 83825 BISHOP CA 20 20 KAJB 40517 CALIPATRIA CA 5 54 36 KGMC 23302 CLOVIS CA 44 43 43 KECY-TV 51208 EL CENTRO CA 48 9 9 KSCI 35608 LONG BEACH CA 61 18 18 KABC-TV 282 LOS ANGELES CA 53 7 7 KCAL-TV 21422 LOS ANGELES CA 43 9 9 KCBS-TV 9628 LOS ANGELES CA 60 2 43 KCET 13058 LOS ANGELES CA 59 28 28 KCOP-TV 33742 LOS ANGELES CA 66 13 13 KMEX-TV 35123 LOS ANGELES CA 35 34 34 KTTV 22208 LOS ANGELES CA 65 11 11 KESQ-TV 25577 PALM SPRINGS CA 52 42 42 KRCA 22161 RIVERSIDE CA 68 62 45 KFMB-TV 42122 SAN DIEGO CA 55 8 8 KGTV 40876 SAN DIEGO CA 25 10 10 WEDW 13594 BRIDGEPORT CT 52 49 49 WTXX 14050 WATERBURY CT 12 20 20 WXFT-TV 60539 AURORA IL 59 60 50 WBBM-TV 9617 CHICAGO IL 3 2 12 WLS-TV 73226 CHICAGO IL 52 7 7 WGBO-TV 12498 JOLIET IL 53 66 38 WCLJ-TV 68007 BLOOMINGTON IN 56 42 42 WSJV 74007 ELKHART IN 58 28 28 WTHR 70162 INDIANAPOLIS IN 46 13 13 WTTK 56526 KOKOMO IN 54 29 29 WIPB 3646 MUNCIE IN 52 49 23 WSBT-TV 73983 SOUTH BEND IN 30 22 22 WHDH-TV 72145 BOSTON MA 42 7 7 WUTF-TV 60551 MARLBOROUGH MA 23 66 27 WWDP 23671 NORWELL MA 52 46 10 WNYA 136751 PITTSFIELD MA 0 51 13 WGBY-TV 72096 SPRINGFIELD MA 58 57 22 WGGB-TV 25682 SPRINGFIELD MA 55 40 40 WHAG-TV 25045 HAGERSTOWN MD 55 25 26 WJAL 10259 HAGERSTOWN MD 16 68 39 WGPT 40619 OAKLAND MD 54 36 36 WCBB 39659 AUGUSTA ME 17 10 10 WLBZ 39644 BANGOR ME 25 2 2 WVII-TV 3667 BANGOR ME 14 7 7 WPME 48408 LEWISTON ME 28 35 35 WMTW-TV 73288 POLAND SPRING ME 46 8 8 WAGM-TV 48305 PRESQUE ISLE ME 16 8 8 WMEM-TV 39662 PRESQUE ISLE ME 20 10 10 WPFO 84088 WATERVILLE ME 0 23 23 WBKB-TV 67048 ALPENA MI 13 11 11 WCML 9917 ALPENA MI 57 6 24 WPXD 5800 ANN ARBOR MI 33 31 31 WBSF 82627 BAY CITY MI 0 46 46 WWTV 26994 CADILLAC MI 40 9 9 WBKP 76001 CALUMET MI 11 5 5 WJBK 73123 DETROIT MI 58 2 7 WKAR-TV 6104 EAST LANSING MI 55 23 40 WFUM 69273 FLINT MI 52 28 28 WJRT-TV 21735 FLINT MI 36 12 12 WZZM-TV 49713 GRAND RAPIDS MI 39 13 13 WDHS 15498 IRON MOUNTAIN MI 22 8 8 WBUP 59281 ISHPEMING MI 0 10 10 WWMT 74195 KALAMAZOO MI 2 3 2 WLNS-TV 74420 LANSING MI 59 6 36 WCMW 9913 MANISTEE MI 58 21 21 WMQF 81448 MARQUETTE MI 0 19 19 WNMU 4318 MARQUETTE MI 33 13 13 WCMU-TV 9908 MOUNT PLEASANT MI 56 14 26 WILX-TV 6863 ONONDAGA MI 57 10 10 WGTQ 59279 SAULT STE.MARIE MI 9 8 8 WWUP-TV 26993 SAULT STE.MARIE MI 49 10 10 WGTU 59280 TRAVERSE CITY MI 31 29 29 WPBN-TV 21253 TRAVERSE CITY MI 50 7 7 KCCO-TV 9632 ALEXANDRIA MN 24 7 7 KSAX 35584 ALEXANDRIA MN 36 42 42 KAWE 49578 BEMIDJI MN 18 9 9 KFTC 83714 BEMIDJI MN 0 26 26 KRII 82698 CHISHOLM MN 0 11 11 WDIO-TV 71338 DULUTH MN 43 10 10 WDSE-TV 17726 DULUTH MN 38 8 8 WIRT 71336 HIBBING MN 36 13 13 KARE 23079 MINNEAPOLIS MN 35 11 11 KMSP-TV 68883 MINNEAPOLIS MN 26 9 9 KSTC-TV 35843 MINNEAPOLIS MN 44 45 45 WFTC 11913 MINNEAPOLIS MN 21 29 29 KSTP-TV 28010 ST. PAUL MN 50 5 35 KTCI-TV 68597 ST. PAUL MN 16 17 26 KBRR 55370 THIEF RIVERFALLS MN 57 10 10 KCCW-TV 9640 WALKER MN 20 12 12 KBTZ 81438 BUTTE MT 0 24 24 KTVM 18066 BUTTE MT 33 6 6 KLMN 81331 GREAT FALLS MT 0 26 26 KBBJ 83689 HAVRE MT 0 9 9 KTVH 5290 HELENA MT 14 12 12 KCFW-TV 18079 KALISPELL MT 38 9 9 KBAO 84794 LEWISTOWN MT 0 13 13 KYUS-TV 5237 MILES CITY MT 13 3 3 KECI-TV 18084 MISSOULA MT 40 13 13 KMMF 81348 MISSOULA MT 0 17 17 KTMF 14675 MISSOULA MT 36 23 23 KUFM-TV 66611 MISSOULA MT 27 11 11 KNDX 82611 BISMARCK ND 0 26 26 KXMB-TV 55686 BISMARCK ND 23 12 12 WDAZ-TV 22124 DEVILS LAKE ND 59 8 8 KDSE 53329 DICKINSON ND 20 9 9 KQCD-TV 41430 DICKINSON ND 18 7 7 KFME 53321 FARGO ND 23 13 13 KVLY-TV 61961 FARGO ND 44 11 44 KCPM 86208 GRAND FORKS ND 0 27 27 KGFE 53320 GRAND FORKS ND 56 2 15 KJRR 55364 JAMESTOWN ND 18 7 7 KMCY 22127 MINOT ND 15 14 14 KMOT 41425 MINOT ND 58 10 10 KXMC-TV 55685 MINOT ND 45 13 13 KXND 82615 MINOT ND 0 24 24 KNRR 55362 PEMBINA ND 15 12 12 KUMV-TV 41429 WILLISTON ND 52 8 8 WENH-TV 69237 DURHAM NH 57 11 11 WMUR-TV 73292 MANCHESTER NH 59 9 9 WFUT-TV 60555 NEWARK NJ 53 68 30 WNET 18795 NEWARK NJ 61 13 13 KOAT-TV 53928 ALBUQUERQUE NM 21 7 7 KRQE 48575 ALBUQUERQUE NM 16 13 13 KTEL-TV 83707 CARLSBAD NM 0 25 25 KUPT 27431 HOBBS NM 16 29 29 KBIM-TV 48556 ROSWELL NM 41 10 10 KOBR 62272 ROSWELL NM 38 8 8 KRPV 53539 ROSWELL NM 28 27 27 KRWB-TV 84157 ROSWELL NM 0 21 21 KOBG-TV 85114 SILVER CITY NM 0 6 12 KOVT 53911 SILVER CITY NM 12 10 10 WPXJ-TV 2325 BATAVIA NY 53 51 23 870331LW 72623 BATH NY 0 14 14 WIVT 11260 BINGHAMTON NY 4 34 34 WWNY-TV 68851 CARTHAGE NY 35 7 7 WSKA 78908 CORNING NY 0 30 30 WYDC 62219 CORNING NY 50 48 48 WENY-TV 71508 ELMIRA NY 55 36 36 WETM-TV 60653 ELMIRA NY 2 18 18 WNYI 34329 ITHACA NY 0 52 20 WNYB 30303 JAMESTOWN NY 27 26 26 WABC-TV 1328 NEW YORK NY 45 7 7 WCBS-TV 9610 NEW YORK NY 56 2 33 WPIX 73881 NEW YORK NY 33 11 11 WPXN-TV 73356 NEW YORK NY 30 31 31 WLNY 73206 RIVERHEAD NY 57 55 47 WHAM-TV 73371 ROCHESTER NY 59 13 13 WHEC-TV 70041 ROCHESTER NY 58 10 10 WRGB 73942 SCHENECTADY NY 39 6 6 WNGS 9088 SPRINGVILLE NY 46 67 46 WSPX-TV 64352 SYRACUSE NY 0 56 15 WSTM-TV 21252 SYRACUSE NY 54 3 24 WVPX 70491 AKRON OH 59 23 23 WNEO 49439 ALLIANCE OH 46 45 45 WBGU-TV 6568 BOWLING GREEN OH 56 27 27 WKRC-TV 11289 CINCINNATI OH 31 12 12 WJW 73150 CLEVELAND OH 31 8 8 WKYC-TV 73195 CLEVELAND OH 2 3 17 WTTE 74137 COLUMBUS OH 36 28 36 WPTD 25067 DAYTON OH 58 16 16 WBDT 70138 SPRINGFIELD OH 18 26 26 WTOV-TV 74122 STEUBENVILLE OH 57 9 9 WTOL 13992 TOLEDO OH 17 11 11 WTVG 74150 TOLEDO OH 19 13 13 KOAC-TV 50590 CORVALLIS OR 39 7 7 KFFX-TV 12729 PENDLETON OR 8 11 11 KGW 34874 PORTLAND OR 46 8 8 KNMT 47707 PORTLAND OR 45 24 24 KOPB-TV 50589 PORTLAND OR 27 10 10 KPTV 50633 PORTLAND OR 30 12 12 KPXG 5801 SALEM OR 4 22 22 WLVT-TV 36989 ALLENTOWN PA 62 39 39 WICU-TV 24970 ERIE PA 52 12 12 WJET-TV 65749 ERIE PA 58 24 24 WHP-TV 72313 HARRISBURG PA 4 21 21 WPCW 69880 JEANNETTE PA 49 19 11P WWCP-TV 20295 JOHNSTOWN PA 29 8 8 WCAU 63153 PHILADELPHIA PA 67 10 34 WYBE 28480 PHILADELPHIA PA 34 35 35 WQED 41315 PITTSBURGH PA 38 13 13 WQEX 41314 PITTSBURGH PA 26 16 38 WSWB 73374 SCRANTON PA 31 38 38 WNAC-TV 73311 PROVIDENCE RI 54 64 12 KTBC 35649 AUSTIN TX 56 7 7 KNIC-TV 125710 BLANCO TX 17 18 KZTV 33079 CORPUS CHRISTI TX 18 10 10 KCOS 19117 EL PASO TX 30 13 13 KTSM-TV 67760 EL PASO TX 16 9 9 KVIA-TV 49832 EL PASO TX 17 7 7 KHOU-TV 34529 HOUSTON TX 31 11 11 KGNS-TV 10061 LAREDO TX 15 8 8 KVTV 33078 LAREDO TX 14 13 13 KCBD 27507 LUBBOCK TX 9 11 11 KUPB 86263 MIDLAND TX 0 18 18 KMLM 53541 ODESSA TX 43 42 42 KOSA-TV 6865 ODESSA TX 31 7 7 KWES-TV 42007 ODESSA TX 13 9 9 KWWT 84410 ODESSA TX 0 30 30 KENS-TV 26304 SAN ANTONIO TX 55 5 39 KLRN 749 SAN ANTONIO TX 8 9 9 KSAT-TV 53118 SAN ANTONIO TX 48 12 12 KWEX-TV 35881 SAN ANTONIO TX 39 41 41 WOAI-TV 69618 SAN ANTONIO TX 58 4 48 KPCB 77452 SNYDER TX 10 17 17 KLTV 68540 TYLER TX 10 7 7 KPXL 61173 UVALDE TX 0 26 26 WCAX-TV 46728 BURLINGTON VT 53 3 22 KWPX 56852 BELLEVUE WA 32 33 33 KQUP 78921 PULLMAN WA 0 24 24 KWSU-TV 71024 PULLMAN WA 17 10 10 KCTS-TV 33749 SEATTLE WA 41 9 9 KAYU-TV 58684 SPOKANE WA 30 28 28 KHQ-TV 34537 SPOKANE WA 15 6 7 KCPQ 33894 TACOMA WA 18 13 13 KSTW 23428 TACOMA WA 36 11 11 KPDX 35460 VANCOUVER WA 48 49 30 KAZW-TV 84238 WALLA WALLA WA 9 9 9 WBIJ 81503 CRANDON WI 4 4 WEAU-TV 7893 EAU CLAIRE WI 39 13 13 WLUK-TV 4150 GREEN BAY WI 51 11 11 WKBT 74424 LA CROSSE WI 41 8 8 WLEF-TV 63046 PARK FALLS WI 47 36 36 WAOW-TV 64546 WAUSAU WI 29 9 9 WSAW-TV 6867 WAUSAU WI 40 7 7 WFXS 86204 WITTENBERG WI 0 55 50 WBOY-TV 71220 CLARKSBURG WV 52 12 12 WOWK-TV 23342 HUNTINGTON WV 47 13 13 WDTV 70592 WESTON WV 6 5 5 WTRF-TV 6869 WHEELING WV 32 7 7 Appendix D5—Granted Requests for Alternative Channel Assignments Call sign Facility ID # Community State Current NTSC channel Current DTV channel Current TCD Post transition channel KJNP 20015 NORTH POLE AK 4 20 4 20 KTNL 60519 SITKA AK 13 2 2 7 KETZ 92872 EL DORADO AR 12 12 10 KBDI 22685 BROOMFIELD CO 12 38 38 13 WBBM-TV 9617 CHICAGO IL 2 3 11 12 KFJX 83992 PITTSBURG KS 14 0 14 13 WDBD 71326 JACKSON MS 40 41 41 40 WFUT 60555 NEWARK NJ 68 53 41 30 KNMT 47707 PORTLAND OR 24 45 24 45 KEVN 34347 RAPID CITY SD 7 18 18 7 960405KF 81692 MEMPHIS TN 14 14 23 KLCW 77719 WOLFFORTH TX 22 22 43 WOAY 66804 OAK HILL WV 4 50 4 50 Appendix D6—Requests for Changes to Appendix B Antenna Information Call sign Facility ID # Community State Current NTSC channel Current DTV channel Post transition channel KQCA 10242 STOCKTON CA 58 46 46 WFGX 6554 FORT WALTONBEACH FL 35 50 50 WFSG 6093 PANAMA CITY FL 56 38 38 WEAR 71363 PENSACOLA FL 3 17 17 WFSU 21801 TALLAHASSEE FL 11 32 32 WMUM 23935 COCHRAN GA 29 7 7 WKYU 71861 BOWLING GREEN KY 24 18 18 WCVB 65684 BOSTON MA 5 20 20 KCWE 64444 KANSAS CITY MO 29 31 31 WRAZ 64611 RALEIGH NC 50 49 49 WXII 53921 WINSTON-SALEM NC 12 31 31 KOCT 53908 CARLSBAD NM 6 19 19 KOFT 53904 FARMINGTON NM 3 8 8 WLWT 46979 CINCINNATI OH 5 35 35 WKRN 73188 NASHVILLE TN 2 27 27 KACV 1236 AMARILLO TX 2 8 8 WRIC 74416 PETERSBURG VA 8 22 22 Appendix D7—Denied Requests From New Applicants Call Sign Facility ID # Community State Current NTSC channel Current DTV channel New 35855 SACRAMENTO CA New 83711 WEAVERVILLE CA 32 New OWENSBORO KY 48 New 169025 KALISPELL MT 46 New TULSA OK 26 [FR Doc. E7-18248 Filed 9-25-07; 8:45 am] BILLING CODE 6712-01-P 72 186 Wednesday, September 26, 2007 Proposed Rules FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 87-268; FCC 07-138] Advanced Television Systems and Their Impact Upon the Existing Broadcast Service AGENCY: Federal Communications Commission. ACTION: Proposed rule; correction. SUMMARY: This document corrects the Ordering Clauses to a proposed rule published in the **Federal Register** on September 10, 2007 concerning a request for comments on proposed changes to the final digital television
(DTV)Table of Allotments. Paragraphs 41 and 42 were inadvertently included in the ordering clauses and will be removed. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Kim Matthews of the Media Bureau, Policy Division,
(202)418-2120. Correction In the **Federal Register** of September 10, 2007, in 72 FR 51575, on page 51580, make the following correction in the SUPPLEMENTARY INFORMATION section. On page 51580, remove the paragraphs numbered 41 and 42. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-18245 Filed 9-25-07; 8:45 am] BILLING CODE 6712-01-P 72 186 Wednesday, September 26, 2007 Proposed Rules Part III Department of Veterans Affairs 38 CFR Part 5 Improved Pension; Proposed Rule DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 5 RIN 2900-AM04 Improved Pension AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. SUMMARY: The Department of Veterans Affairs
(VA)proposes to reorganize and rewrite in plain language its Improved Pension regulations. These revisions are proposed as part of VA's rewrite and reorganization of all of its compensation and pension rules in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants, beneficiaries, and VA personnel in locating and understanding these Improved Pension regulations. DATES: Comments must be received by VA on or before November 26, 2007. ADDRESSES: Written comments may be submitted through *http://www.regulations.gov;* by mail or hand-delivery to: Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to
(202)273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM04—Improved Pension.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call
(202)273-9515 for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System
(FDMS)at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: William F. Russo, Director of Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)273-9515. SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has established an Office of Regulation Policy and Management to provide centralized management and coordination of VA's rulemaking process. One of the major functions of this office is to oversee a Regulation Rewrite Project (the Project) to improve the clarity and consistency of existing VA regulations. The Project responds to a recommendation made in the October 2001 “VA Claims Processing Task Force: Report to the Secretary of Veterans Affairs.” The Task Force recommended that the compensation and pension regulations be rewritten and reorganized in order to improve VA's claims adjudication process. Therefore, the Project began its efforts by reviewing, reorganizing, and redrafting the content of the regulations in 38 CFR part 3 governing the compensation and pension program of the Veterans Benefits Administration. These regulations are among the most difficult VA regulations for readers to understand and apply. Once rewritten, the proposed regulations will be published in several portions for public review and comment. This is one such portion. It includes proposed rules that apply to VA's Improved Pension program. After review and consideration of public comments, final versions of these proposed regulations will ultimately be published in a new part 5 in 38 CFR. Outline Overview of New Part 5 Organization Overview of This Notice of Proposed Rulemaking Table Comparing Current Part 3 Rules With Proposed Part 5 Rules Background Information Content of Proposed Regulations Improved Pension Requirements—Veterans, Surviving Spouses, and Surviving Children 5.370 Definitions for Improved Pension. 5.371 Eligibility and entitlement requirements for Improved Pension. 5.372 Wartime service requirements for Improved Pension. 5.373 Evidence of age in Improved Pension claims. Improved Disability Pension—Disability Determinations and Effective Dates 5.380 Disability requirements and presumptions for Improved Disability Pension. 5.381 Permanent and total disability ratings for Improved Disability Pension purposes. 5.382 Improved Disability Pension—combining disability ratings. 5.383 Effective dates for awards of Improved Disability Pension. Special Monthly Pension Eligibility for Veterans and Surviving Spouses 5.390 Special monthly pension for veterans and surviving spouses at the aid and attendance rate. 5.391 Special monthly pension for veterans and surviving spouses at the housebound rate. 5.392 Effective dates for awards of special monthly pension. Maximum Annual Pension Rates 5.400 Maximum annual pension rates for veterans, surviving spouses, and surviving children. 5.401 Automatic adjustment of maximum annual pension rates. Improved Pension Income, Net Worth, and Dependency 5.410 Countable annual income. 5.411 Counting a child's income for Improved Pension. 5.412 Income exclusions for calculating countable annual income. 5.413 Income deductions for calculating adjusted annual income. 5.414 Net worth determinations for Improved Pension. 5.415 Effective dates for Improved Pension awards based on a change in net worth. 5.416 Persons considered as dependents for Improved Pension. 5.417 Child custody for Improved Pension. Improved Pension—Income Reporting Periods, Payments, Effective Dates, and Time Limits 5.420 Reporting periods for Improved Pension. 5.421 How VA calculates an Improved Pension payment amount. 5.422 Effective dates for changes to Improved Pension payments due to a change in income. 5.423 Improved Pension determinations when anticipated annual income is uncertain. 5.424 Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income. 5.425 Frequency of payment of Improved Pension benefits. Improved Death Pension Marriage Date Requirements and Effective Dates 5.430 Marriage date requirements for Improved Death Pension. 5.431 Effective dates for Improved Death Pension. 5.432 Deemed valid marriages and contested claims for Improved Death Pension. 5.433 Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the veteran's surviving spouse. 5.434 Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved. 5.435 Calculating annual Improved Pension amounts for surviving children. Non-inclusion of Other Part 3 Provisions Endnote Regarding Amendatory Language Paperwork Reduction Act Regulatory Flexibility Act Executive Order 12866 Unfunded Mandates Catalog of Federal Domestic Assistance Numbers and Titles List of Subjects in 38 CFR Part 5 Overview of New Part 5 Organization We plan to organize the new part 5 regulations so that most provisions governing a specific benefit are located in the same subpart, with general provisions pertaining to all compensation and pension benefits also grouped together. This organization will allow claimants, beneficiaries, and their representatives, as well as VA personnel, to find information relating to a specific benefit more quickly than the organization provided in current part 3. The first major subdivision would be “Subpart A—General Provisions.” It would include information regarding the scope of the regulations in new part 5, delegations of authority, general definitions, and general policy provisions for this part. This subpart was published as proposed on March 31, 2006. *See* 71 FR 16464. “Subpart B—Service Requirements for Veterans” would include information regarding a veteran's military service, including the minimum service requirement, types of service, periods of war, and service evidence requirements. This subpart was published as proposed on January 30, 2004. *See* 69 FR 4820. “Subpart C—Adjudicative Process, General” would inform readers about claims and benefit filing procedures, VA's duties, rights and responsibilities of claimants and beneficiaries, general evidence requirements, and general effective dates for new awards, as well as revision of decisions and protection of VA ratings. This subpart will be published as three separate Notices of Proposed Rulemaking (NPRMs) due to its size. The first, concerning the duties of VA and the rights and responsibilities of claimants and beneficiaries, was published on May 10, 2005. See 70 FR 24680. The second, covering general evidence requirements, effective dates for awards, revision of decisions, and protection of VA ratings, was published as proposed on May 22, 2007. *See* 72 FR 28770. “Subpart D—Dependents and Survivors” would inform readers how VA determines whether an individual is a dependent or a survivor for purposes of determining eligibility for VA benefits. It would also provide the evidence requirements for these determinations. This subpart was published as proposed on September 20, 2006. *See* 71 FR 55052. “Subpart E—Claims for Service Connection and Disability Compensation” would define service-connected disability compensation and service connection, including direct and secondary service connection. This subpart would inform readers how VA determines service connection and entitlement to disability compensation. The subpart would also contain those provisions governing presumptions related to service connection, rating principles, and effective dates, as well as several special ratings. This subpart will be published as three separate NPRMs due to its size. The first, concerning presumptions related to service connection, was published on July 27, 2004. *See* 69 FR 44614. “Subpart F—Nonservice-Connected Disability Pensions and Death Pensions” would include information regarding the three types of nonservice-connected pension: Old-Law Pension, Section 306 Pension, and Improved Pension. This subpart would also include those provisions that state how to establish eligibility and entitlement to Improved Pension, and the effective dates governing each pension. This subpart will be published as two separate NPRMs due to its size. The portion concerning Old-Law Pension, Section 306 Pension, and elections of Improved Pension was published as proposed on December 27, 2004. *See* 69 FR 77578. The portion concerning eligibility and entitlement requirements, as well as effective dates for Improved Pension is the subject of this document. “Subpart G—Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary” would contain regulations governing claims for dependency and indemnity compensation (DIC); death compensation; accrued benefits; benefits awarded, but unpaid at death; and various special rules that apply to the disposition of VA benefits, or proceeds of VA benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. This subpart was published as two separate NPRMs due to its size. The portion concerning accrued benefits, death compensation, special rules applicable upon the death of a beneficiary, and several effective-date rules, was published as proposed on October 1, 2004. *See* 69 FR 59072. The portion concerning DIC benefits and general provisions relating to proof of death and service-connected cause of death was published on October 21, 2005. *See* 70 FR 61326. “Subpart H—Special and Ancillary Benefits for Veterans, Dependents, and Survivors” would pertain to special and ancillary benefits available, including benefits for children with various birth defects. This subpart was published as proposed on March 9, 2007. *See* 72 FR 10860. “Subpart I—Benefits for Certain Filipino Veterans and Survivors” would pertain to the various benefits available to Filipino veterans and their survivors. This subpart was published as proposed on June 30, 2006. *See* 71 FR 37790. “Subpart J—Burial Benefits” would pertain to burial allowances. “Subpart K—Matters Affecting the Receipt of Benefits” would contain provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. This subpart was published as proposed on May 31, 2006. *See* 71 FR 31056. “Subpart L—Payments and Adjustments to Payments” would include general rate-setting rules, several adjustment and resumption regulations, and election-of-benefit rules. Because of its size, proposed regulations in subpart L will be published in two separate NPRMs. The final subpart, “Subpart M—Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries,” would include regulations governing apportionments, benefits for incarcerated beneficiaries, and guardianship. Some of the regulations in this NPRM cross-reference other compensation and pension regulations. If those regulations have been published in this or earlier NPRMs for the Project, we cite the proposed part 5 section. We also include, in the relevant portion of the Supplementary Information, the **Federal Register** page where a proposed part 5 section published in an earlier NPRM may be found. However, where a regulation proposed in this NPRM would cross-reference a proposed part 5 regulation that has not yet been published, we cite to the current part 3 regulation that deals with the same subject matter. The current part 3 section we cite may differ from its eventual part 5 counterpart in some respects, but we believe this method will assist readers in understanding these proposed regulations where no part 5 counterpart has yet been published. If there is no part 3 counterpart to a proposed part 5 regulation that has not yet been published, we have inserted “[regulation that will be published in a future Notice of Proposed Rulemaking]” where the part 5 regulation citation would be placed. Because of its large size, proposed part 5 will be published in a number of NPRMs, such as this one. VA will not adopt any portion of part 5 as final until all of the NPRMs have been published for public comment. In connection with this rulemaking, VA will accept comments relating to a prior rulemaking issued as a part of the Project, if the matter being commented on relates to both rulemakings. Overview of This Notice of Proposed Rulemaking This NPRM pertains to the Improved Pension program. These regulations would be contained in proposed Subpart F of new 38 CFR part 5. Although these regulations have been substantially restructured and rewritten for greater clarity and ease of use, most of the basic concepts contained in these proposed regulations are the same as in their existing counterparts in 38 CFR part 3. However, a few substantive differences are proposed, as are some regulations that do not have counterparts in 38 CFR part 3. Table Comparing Current Part 3 Rules With Proposed Part 5 Rules The following table shows the relationship between the current regulations in part 3 and the proposed regulations contained in this NPRM: Proposed part 5 section or paragraph Based in whole or in part on 38 CFR part 3 section or paragraph (or “New”) 5.370 3.23(a), (d)(4) and (5); 3.24(a); 3.271(a), (h); 3.351(b),
(f)5.371(a) New 5.371(b) 3.3(a)(3) 5.371(c) 3.3(b)(4) 5.371(d) 3.3(a)(3)(v), (b)(4)(iii) 5.372(a) 3.3(a)(3) 5.372(b) 3.3(a)(3)(i)-(iv), (b)(4)(i) 5.372(c) 3.3(b)(4)(ii) 5.373 3.208 5.380 3.3(a)(3)(vi)(A), (B)( *1* ) and ( *2* ) 5.381 3.342 5.382 3.323(b) 5.383(a) 3.400(intro), (b)(1)(intro), (b)(1)(ii)(A) 5.383(b) 3.151(b); 3.400(b)(1)(ii)(B) 5.390(a) 3.351(b) 5.390(b) 3.351(c) 5.391(a) 3.351(d) 5.391(b) New 5.391(c) 3.351(f) 5.392 3.401(a)(1); 3.402(c)(1) 5.400(a) 3.23(a); 3.24(b) 5.400(a)(1) 3.23(a)(1) 5.400(a)(2) 3.23(a)(3) 5.400(a)(3) 3.23(a)(2) 5.400(a)(4) 3.23(a)(4) 5.400(a)(5) 3.23(a)(5) 5.400(a)(6) 3.23(a)(7) 5.400(a)(7) 3.23(a)(6) 5.400(a)(8) 3.24(b) 5.400(b) 3.23(c) 5.400(c) New; 3.23(a)(5) 5.401(a) 3.27(a) 5.401(b) 3.23(a), (c); 3.24(b); 3.27(e) 5.410(a) 3.271(a) 5.410(b)(1) 3.23(d)(4) 5.410(b)(2) 3.23(d)(5) 5.410(b)(3) New 5.410(c)(intro) 3.271(a) 5.410(c)(1) 3.271(a)(1), 3.273(d) 5.410(c)(2) 3.271(a)(3), 3.273(c) 5.410(c)(3) 3.271(a)(2), 3.273(d) 5.410(d) 3.276(a) 5.410(e) 3.271(b) 5.410(f)(1),
(2)3.271(d) 5.410(f)(3) New 5.411(a)(1) 3.23(d)(5), (6); 3.272(m) 5.411(a)(2) 3.23(d)(4), (5), 3.272(m) 5.411(b) 3.23(d)(6) (second sentence) 5.411(c) 3.272(j) 5.412(a) 3.272(a),
(l)5.412(a)(1) 3.272(b) 5.412(a)(2) New 5.412(a)(3) 3.272(l) 5.412(b)(1) 3.272(c) 5.412(b)(2),
(3)New 5.412(c) 3.272(d) 5.412(d) 3.272(e) 5.412(e) 3.272(f) 5.412(f) 3.272(n) 5.412(g) 3.272(s) 5.412(h)-(j) New 5.412(k)(1) 3.272(q) 5.412(k)(2)-(8) New 5.413(a) 3.272 (intro) 5.413(b)(intro) 3.272(g)(intro) 5.413(b)(1) 3.272(g)(1)(iii), (2)(iii) 5.413(b)(2)(i) 3.272(g)(1)(i) 5.413(b)(2)(ii) 3.272(g)(2)(i) 5.413(b)(2)(iii) 3.272(g)(3) 5.413(c)(1)(i) 3.272(h) 5.413(c)(1)(ii) New 5.413(c)(1)(iii) 3.272(h)(1)(ii) 5.413(c)(2)(i)-(iii) 3.272(h)(1)(ii),
(2)5.413(c)(2)(iv) 3.272(h)(1)(i) 5.413(c)(3) 3.272(h)(1)(ii) 5.413(d) 3.272(i) 5.413(e) New 5.413(f) 3.271(g) 5.413(g)(1) 3.271(c)(1) 5.413(g)(2) 3.271(c)(2) 5.413(g)(3) 3.271(c)(3) 5.414(a)(1),
(2)3.275(b) 5.414(a)(3) 3.275(c) 5.414(a)(4) 3.276(b) 5.414(b) 3.274(a),
(c)5.414(c)(1) 3.274(b),
(d)5.414(c)(2) 3.274(e) 5.414(c)(3) 3.275(e) 5.414(d) 3.275(d) 5.414(e)(1) 3.275(h) 5.414(e)(2)-(5) New 5.415 3.660(a)(2),
(d)5.416(a) 3.23(d)(1); 3.60 5.416(b) 3.23(d)(1) 5.416(c) 3.23(d)(4),
(5)5.417(a)-(c) 3.57(d)(1) 5.417(d),
(e)3.57(d)(2) 5.417(f),
(g)3.57(d)(3) 5.420 New 5.421 3.29(b); 3.273 intro, (a),
(b)5.422(a)(1) New 5.422(a)(2) 3.660(a)(2) 5.422(b) 3.660(b),
(c)5.423(a) 3.271(f)(1) 5.423(b) 3.271(f)(2) 5.424(a)-(c) 3.660(b) 5.424(d) New 5.425 3.30 intro, (a)-(d),
(f)5.430(a) 3.54 intro, (a)(2) 5.430(a)(1) 3.54(a)(1) 5.430(a)(2) 3.54(a)(3) 5.430(b) 3.54(e) 5.431(a) New 5.431(b) 3.400(c) 5.432 3.52(d) 5.433 3.657(a) 5.434 3.503(a)(9); 3.657(b) 5.435 3.24; 3.57(d)(2) Readers who use this table to compare existing regulatory provisions with the proposed provisions, and who observe a substantive difference between them, should consult the text that appears later in this document for an explanation of significant changes in each regulation. Not every paragraph of every current part 3 section regarding the subject matter of this rulemaking is accounted for in the table. In some instances, other portions of the part 3 sections that are addressed in these proposed regulations will appear in subparts of part 5 that are being published separately for public comment. For example, a reader might find a reference to paragraph
(a)of a part 3 section in the table, but no reference to paragraph
(b)of that section because paragraph
(b)will be addressed in a separate NPRM. The table also does not include provisions from part 3 regulations that will not be repeated in part 5. Such provisions are discussed specifically under the appropriate part 5 heading in this preamble. Readers are invited to comment on the proposed part 5 provisions and also on our proposals to omit those part 3 provisions from part 5. Background Information The term “Improved Pension” is derived from the “Veterans' and Survivors' Pension Improvement Act of 1978,” Public Law 95-588, 92 Stat. 2508. Improved Pension is the current nonservice-connected disability or death pension program that VA offers to new VA pension applicants. The Improved Pension designation distinguishes this program from “Section 306” Pension and “Old-Law” Pension, the nonservice-connected disability or death pension programs VA offered to new VA pension applicants before January 1, 1979. Statutes that pertain to Improved Pension are primarily found in chapter 15 of title 38, United States Code. The regulations in this NPRM apply only to Improved Pension. We recognize that in the past, some of the regulations on which these proposed regulations are based applied to Old-Law Pension and/or Section 306 Pension, as well as Improved Pension. However, claimants can no longer establish entitlement to Old-Law Pension or Section 306 Pension programs. Therefore, certain regulations that once applied to other pension programs now apply to Improved Pension only. Examples include regulations pertaining to establishing wartime service, marriage dates, and determinations of permanent and total disability. Those regulations form the basis for many of the regulations in this NPRM. Content of Proposed Regulations Improved Pension Requirements—Veterans, Surviving Spouses, and Surviving Children Section 5.370 Definitions for Improved Pension Proposed § 5.370 contains definitions of certain basic terms used throughout the regulations governing Improved Pension benefits. The proposed definitions will make these regulations easier to use and understand. We propose to use the terms “adjusted annual income” and “maximum annual pension rate” throughout part 5. The definitions of both of these terms are based on sections 1503, 1521, 1541 and 1542 of title 38, United States Code. Section 1503 provides that “annual income” for Improved Pension purposes consists of all payments, subject to certain exceptions. 38 U.S.C. 1503(a). We propose, rather than refer to “annual income,” to refer to “adjusted annual income.” We propose to define “adjusted annual income” as “countable annual income minus deductions described in § 5.413, rounded down to the nearest dollar.” Readers already familiar with the Improved Pension program will recognize the definition of “adjusted annual income” as synonymous with what is commonly termed within VA as “Income for VA Purposes” or “IVAP.” The proposed definition of “adjusted annual income” combines most of current § 3.271 with paragraphs (d)(4) and (d)(5) of § 3.23, and current § 3.276(a). We also propose to standardize references to the actual amount of Improved Pension VA pays by using the term, “Annual Improved Pension amount.” Using standardized terms will help reduce confusion in these regulations. We propose to define “annual Improved Pension amount” as “the amount of Improved Pension payable to a beneficiary, calculated as the maximum annual pension rate minus adjusted annual income.” This definition is based on current § 3.23(b), which requires VA to calculate an award of pension by subtracting the amount of the countable annual income of the veteran or surviving spouse from the maximum annual pension rate. We define “countable annual income” as “payments of any kind from any source” unless specifically excluded. This definition is also consistent with current VA regulations. We propose to define the term “maximum annual pension rate” as the pension rate payable to a beneficiary whose income is zero. The term “maximum annual pension rate,” or “MAPR,” is well-known and understood by persons familiar with the Improved Pension program, and the definition reflects the common understanding of the terms. More importantly, we believe this term is necessary to avoid confusion. The authorizing statute, 38 U.S.C. 1521, refers to pension paid at one of several “annual rate[s],” which are then reduced by the claimant's or beneficiary's annual income in order to determine the actual annual amount payable. In other words, a beneficiary may receive the statutory “annual rate of pension” ( *i.e.* , the MAPR) only if his or her adjusted annual income is zero. We believe it is essential to emphasize that these statutory rates are maximum rates. We propose to define “payments” as cash and cash equivalents (such as checks and other negotiable instruments), and the fair market value of personal services, goods or room and board received in lieu of other forms of payment. It is important that readers know that not only is currency considered income, but checks and money orders as well, to include the market value of goods or services received in lieu of cash. Although “Special Monthly Pension” is not defined in the current regulations, we propose to offer a definition to clarify for readers that Special Monthly Pension is a higher maximum annual pension rate applicable to a veteran or surviving spouse by reason of a disability or disabilities ratable at 60 percent or more, their housebound status or their need for the aid and attendance of another person in performing their daily living habits. The statutory authority for pension at this rate is contained in 38 U.S.C. 1521(d) and (e), and 1541(d) and (e). Proposed § 5.370 defines a surviving child for Improved Pension purposes as one who is eligible for Improved Death Pension and who is not in the custody of a surviving spouse eligible for Improved Death Pension. This definition is critical to understanding the Improved Pension program because a child who is in the custody of a surviving spouse who has basic eligibility to receive Improved Pension has no separate eligibility. A child in this circumstance is a dependent of the surviving spouse and would be included in the surviving spouse's award. Section 5.371 Eligibility and Entitlement Requirements for Improved Pension Proposed § 5.371 is based on current §§ 3.3(a)(3), 3.3(b)(4), and 3.24(a). In this regulation concerning Improved Pension, we provide an overview of the Improved Pension program and the specific criteria that must be met to receive payments under this program. Proposed § 5.371(a) is an introductory statement intended to give readers a general overview of the Improved Pension program. This section explains that Improved Pension claimants must be both eligible and entitled before benefits can be paid. We propose to use the term “eligibility” to refer to the age and service requirements applicable to Improved Pension awards, while the income and net worth requirements applicable to Improved Pension will be referred to as “entitlement” requirements. We recognize that in common usage there is little, if any, difference between the words “eligible” and “entitled.” Both terms generally mean “qualified,” but defining these terms will make the Improved Pension regulations easier to understand. A veteran is “eligible” for Improved Disability Pension if he or she meets the basic requirements found in 38 U.S.C. 1521(a) or 1513 concerning wartime service and disability or age 65. A surviving spouse is “eligible” for Improved Death Pension if the veteran met the basic requirements found in section 1541(a) concerning wartime service and disability. A surviving child is “eligible” for Improved Death Pension if the veteran met the basic requirements of section 1542 concerning wartime service and disability and if the child is not in the custody of an eligible surviving spouse. Veterans, surviving spouses, or surviving children are “entitled” to Improved Pension benefit payments only so long as their income is within statutory limits and their net worth does not bar payment. It is important to maintain a distinction between “eligibility” and “entitlement” in the regulations governing Improved Pension. We propose to refer to the pension program for veterans as “Improved Disability Pension” and the program for survivors as “Improved Death Pension.” Proposed § 5.371(b) is based on current § 3.3(a)(3), and describes the eligibility criteria for Improved Disability Pension for veterans. We recognize that the “disability” designation is a misnomer because veterans are no longer required to be disabled to receive Improved Disability Pension if they have attained age 65. A veteran having reached age 65 who meets the service requirements of 38 U.S.C. 1521 may be paid Improved Disability Pension without a documented total and permanent disability as long as the entitlement criteria have been met. *See* 38 U.S.C. 1513. However, we propose to retain the long-standing and statutory “disability pension” designations to distinguish it from other pension benefits. Proposed § 5.371(c) describes the eligibility criteria for Improved Death Pension for a deceased veteran's surviving spouse or surviving child. Under 38 U.S.C. 1541 and 1542, it is not required that the veteran's death be nonservice-connected in order for the survivor to be eligible for Improved Death Pension. Therefore, instead of using the term, “nonservice-connected death,” which is used in current § 3.3(b)(4), we propose to state in § 5.371(c)(3) that a survivor may be eligible for Improved Death Pension regardless of whether the veteran's death is service-connected. This will clarify that even if the veteran's death is service-connected (and the survivor is eligible for dependency and indemnity compensation (DIC)), the survivor may instead elect to receive Improved Death Pension. Proposed § 5.371(d) is based on current §§ 3.3(a)(3)(v) and (b)(4)(iii), and expands on these provisions in order to clarify that a claimant or beneficiary is entitled to Improved Pension benefits only when the claimant's or beneficiary's adjusted annual income is lower than the applicable maximum annual pension rate and when the claimant's or beneficiary's net worth does not bar benefit payments. Section 5.372 Wartime Service Requirements for Improved Pension Proposed § 5.372 pertains to veterans, surviving spouses, and surviving children. The definition of a surviving spouse is contained in proposed § 5.200, which was published in the **Federal Register** on September 20, 2006, in RIN 2900-AL94. *See* 71 FR 55052. Proposed § 5.200 defines surviving spouse as a person who met all of the requirements for being a spouse in proposed § 5.190 at the time the veteran died, who has not remarried, and who lived continuously with the veteran from the date of marriage to the date of the veteran's death. A surviving child for Improved Pension purposes is defined in proposed § 5.370 as a child who is eligible for Improved Death Pension as the surviving child of a deceased wartime veteran and who is not in the custody of a surviving spouse eligible to receive Improved Death Pension. Proposed § 5.372 is based on paragraphs (a)(3)(i) through
(iv)as well as paragraphs (b)(4)(i) and
(ii)of current § 3.3. These paragraphs currently provide the wartime service periods for Improved Pension. Proposed § 5.372(a) includes a cross-reference to the proposed wartime service regulation in § 5.20 (69 FR 4832), so that persons who require more specific provisions concerning wartime periods may easily find them. Consistent with our proposal in a prior NPRM (69 FR 4822), we would shorten the term, “active military, naval, or air service,” to “active military service.” Proposed § 5.372(b)(1) is based on current § 3.3(a)(3)(iii) and requires that at least one day during a period of qualifying service of at least 90 consecutive days be served during a wartime period. Proposed § 5.372(b)(2) is based on current § 3.3(a)(3)(i) and states VA's long-standing interpretation that separate periods of service within the same wartime period may be added together. We believe that this is a reasonable interpretation of 38 U.S.C. 1521(j), upon which current § 3.3(a)(3)(i) is based. Section 5.373 Evidence of Age in Improved Pension Claims Proposed § 5.373 is based on current § 208. No substantive changes are intended. Improved Disability Pension—Disability Determinations and Effective Dates Section 5.380 Disability Requirements and Presumptions for Improved Disability Pension Proposed § 5.380 is based on paragraphs (a)(3)(vi)(A) and (B)(1) and
(2)of current § 3.3. We propose no substantive changes. We propose not to include paragraphs (a)(3)(vi)(B)( *3* ) and ( *4* ) in part 5 because these current paragraphs are redundant of current §§ 3.340 and 3.342, and those criteria would be made expressly applicable to part 5 Improved Pension claims by proposed § 5.381. Section 5.381 Permanent and Total Disability Ratings for Improved Disability Pension Purposes We propose to repeat most of the content of § 3.342 in § 5.381 with minor technical changes, and cross reference to current § 3.340, “Total and permanent total ratings and unemployability,” for other qualifying criteria. However, we propose not to repeat the provisions of § 3.342(c), which concern a temporary program of vocational training for certain new pension recipients. This program was based on 38 U.S.C. 1524 and allowed veterans who were awarded Improved Pension to receive vocational rehabilitation and employment services from VA. However, Congress included a provision allowing the Secretary of Veterans Affairs to set a reasonable time limit for veterans to participate in the program. Specifically, § 1524(b)(4) states that: A veteran may not begin pursuit of a vocational training program under this subsection after the later of
(A)December 31, 1995, or
(B)the end of a reasonable period of time, as determined by the Secretary [of Veterans Affairs], following either the evaluation of the veteran under subsection
(a)of this section or the award of pension to the veteran as described in subsection (a)(2) of this section. Any determination by the Secretary of such a reasonable period of time shall be made pursuant to regulations which the Secretary shall prescribe. The Secretary of Veterans Affairs has not extended the period for beginning a vocational training program beyond December 31, 1995. Moreover, the Secretary has promulgated a regulation stating that no veteran may receive VA assistance under 38 U.S.C. 1524 after January 31, 1998. 38 CFR 21.6042(d). Because this program has expired, we believe there is no reason to repeat the provisions of current § 3.342(c) in proposed § 5.381. Section 5.382 Improved Disability Pension—Combining Disability Ratings When VA grants service connection for a disability incurred or aggravated by military service, VA assigns a “disability rating” to the disability according to the “Schedule for Rating Disabilities” located in part 4 of title 38, Code of Federal Regulations. In cases where veterans have multiple disabilities, the disability ratings assigned to each of these disabilities may be combined in accordance with 38 CFR part 4. Disabilities that are not service connected generally serve as a basis for a finding that a veteran is permanently and totally disabled for purposes of Improved Disability Pension. Section 1523(a) of title 38, United States Code, authorizes VA to combine ratings for nonservice-connected disabilities with ratings for service-connected disabilities to determine whether a veteran is totally disabled for Improved Disability Pension purposes. VA has implemented § 1523(a) in 38 CFR 3.323(b). Current § 3.323(b)(1) provides that for pension purposes two or more nonservice-connected disabilities will be combined in the same manner that service-connected disabilities are combined, as described in § 3.323(a). Current § 3.323(b)(2) provides that for pension purposes VA may combine nonservice-connected and service-connected disabilities in the same manner that service-connected disabilities are combined. Current § 3.323(b)(2) provides that VA “may” combine service-connected with nonservice-connected disability ratings. This permissive rule contrasts with the rules elsewhere in § 3.323 for combining nonservice-connected disabilities on the one hand, and the rules for combining service-connected disabilities on the other hand, which are mandatory rules and are expressed using the word “will.” Section 1523(a) of title 38, United States Code, provides that the “Secretary shall provide that,” for ascertaining whether an individual is totally disabled for pension purposes, service-connected and nonservice-connected disabilities “may” be combined. In fact, VA routinely combines service-connected and nonservice-connected disabilities for pension purposes, and we can think of no circumstance wherein VA would decline to combine a veteran's disabilities for Improved Pension purposes. Proposed § 5.382(b) states that VA “will” combine disabilities in such a manner because this is logical, consistent, and fair to veterans. Current § 3.323(b)(2) provides for the combination of service-connected and nonservice-connected disability ratings without apparent restriction. The authorizing statute requires VA to combine such disability ratings to determine whether a veteran is permanently and totally disabled for pension purposes. *See* 38 U.S.C. 1523(a). We propose to include language to this effect in proposed § 5.382(b). Moreover, § 3.323(b)(2) is under the heading of “pension” and VA has always limited the applicability of the regulation to pension cases. Therefore, the proposed rule would apply only to Disability Pension claims. We propose to not include the phrase in current § 3.323(b) that requires that disabilities considered in the determination of eligibility for Improved Disability Pension not be “the result of the veteran's own willful misconduct.” This requirement is already expressed in § 5.381(a) and we see no reason to repeat that provision in § 5.382. Section 5.383 Effective Dates for Awards of Improved Disability Pension Proposed § 5.383 is based on current §§ 3.151(b), 3.400(intro) and 3.400(b)(1)(ii), which provide effective dates for awards of Improved Disability Pension. We propose not to include current § 3.400(b)(1)(i), which refers to claims received before October 1, 1984, because we know of no such pending Improved Pension claims. The first sentence of proposed § 5.383(a) states that except as provided in paragraph
(b)of this section, the effective date of an award of Improved Disability Pension will be the date of receipt of claim or the date the veteran became eligible (by attaining age 65 or by becoming permanently and totally disabled), whichever is later. This is based on the introduction of current § 3.400, which states that the effective date of an award of pension will be the date of receipt of the claim or the date entitlement arose, whichever is the later. The first sentence also incorporates the introductory paragraph of current § 3.400(b)(1), which states that an award of disability pension may not be effective prior to the date entitlement arose. Instead of using the phrase “the date entitlement arose,” which appears in current § 3.400, we have used the phrase “the date the veteran became eligible * * * and entitled”, and we have specified that the date the veteran became eligible is the date the veteran attained age 65 or the date the veteran became permanently and totally disabled and that the veteran becomes entitled by meeting income and net worth requirements. The first sentence of proposed § 5.383(a) also incorporates current § 3.400(b)(1)(ii)(A), which states that the effective date of the award is the date of receipt of claim (except as provided in § 3.400(b)(1)(ii)(B), which is the subject of proposed 5.383(b), concerning retroactive awards). The second sentence of proposed § 5.383(a) contains a cross-reference to proposed § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income,” which is based upon current § 3.660(b). Current §§ 3.400(b)(1) and 3.660(b) are authorized by 38 U.S.C. 5110(b)(3) and 38 U.S.C. 5110(h), respectively. We provide a fuller discussion concerning 38 U.S.C. 5110(h) later in this NPRM. For this discussion, it is sufficient to say that § 5110(h) provides time limits to establish Improved Pension entitlement based on income beyond the time limits provided in § 5110(b)(3) to establish disability. When it appears that a veteran's anticipated income for the 12-month period following the date of receipt of claim will exceed the maximum annual pension rate, VA does not pay benefits. A decision that the claimant is not entitled to pension because the claimant's income exceeds the maximum annual pension rate often occurs without VA first making the disability determination necessary for pension eligibility. In our view, this procedure is reasonable because it would be inefficient for VA to make a pension disability determination when it cannot otherwise grant entitlement to pension. At the same time, it would be unfair to the claimant if VA did not assign an effective date based on the date the pension claim was received in those cases where the veteran is able to establish qualifying income within the time limits provided under § 5110(h), even if VA had not ascertained that the veteran was permanently and totally disabled at that time. The cross-reference in proposed § 5.383(a) would make it plain that the “date of receipt of claim” is the date of receipt of the previous Improved Pension claim in these types of cases. We do not see this as a change, but as a clarification and a reconciliation of the two statutory provisions. This clarification is consistent with long standing VA practice and is fair to veterans. Paragraph
(b)of proposed § 5.383 clarifies current §§ 3.151(b) and 3.400(b)(1)(ii)(B). Current § 3.400(b)(1)(ii)(B) states that if an incapacitating disability prevented a veteran from claiming benefits for at least the first 30 days after becoming permanently and totally disabled, that veteran could be awarded pension benefits effective the date he or she became permanently and totally disabled, if he or she files a claim within one year from the date on which the veteran became permanently and totally disabled. We propose to define the term “incapacitating disability.” We propose to clarify that the disability that prevented a veteran from applying for benefits need not be the same disability that caused the veteran to become permanently and totally disabled. This would conform to the law and long-standing VA practice. The statute merely requires that “a” disability prevented the claimant from applying for Improved Disability Pension. *See* 38 U.S.C. 5110(b)(3)(B). We propose not to include the reference to the “presumptive provisions of § 3.342(a),” currently found in the last sentence of § 3.400(b)(1)(ii)(B), because current § 3.342(a) no longer contains presumptive provisions. Proposed § 5.383(b) retains language from current § 3.400(b)(1)(ii)(B) which states that the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. The phrase “whichever is to the advantage of the veteran” is utilized both in the current statute (§ 5110(b)(3)(A)) and the current regulation (§ 3.400(b)(1)(ii)(B)). We have retained this phrase (slightly rewritten as “whichever is to the veteran's advantage”) in the proposed regulation. It means that one cannot automatically assume that an earlier effective date would be more to the claimant's advantage than a later one. This is because the veteran's adjusted annual income, if considered from an earlier effective date, might preclude entitlement for a 12-month period, whereas a later effective date might not. Special Monthly Pension Eligibility for Veterans and Surviving Spouses Section 5.390 Special Monthly Pension for Veterans and Surviving Spouses at the Aid and Attendance Rate Proposed § 5.390 is derived from current § 3.351(b) and (c). We propose no substantive changes. In proposed § 5.390(a), we have used the term “significantly disabled” to conform to the Veterans’ Housing Opportunity and Benefits Improvement Act of 2006. That law amended certain sections of title 38 of the United States Code to eliminate the use of the obsolete term “helpless” to describe significantly disabled veterans who seek aid and attendance benefits or their significantly disabled dependents and survivors who seek aid and attendance benefits. *See* Pub. L. No. 109-233, § 502, 120 Stat. 397, 415
(2006)(codified at 38 U.S.C. 1502(b) (2006)). No substantive change was intended by these amendments. *See* Explanatory Statement on Amendment to Senate Bill, S. 1235, as Amended, 152 Cong. Rec. H2976, H2978 (daily ed. May 22, 2006). Proposed § 5.390(b)(4) cross-references § 3.352, which provides the criteria for determining need for aid and attendance or “bedridden.” Section 5.391 Special Monthly Pension for Veterans and Surviving Spouses at the Housebound Rate Proposed § 5.391(a) and
(c)are based on current § 3.351(d) and (f). Proposed § 5.391(b) is a new provision. It reconciles the current regulations, which have not been altered since being promulgated in 1979, with *Hartness* v. *Nicholson,* 20 Vet. App. 216 (2006). In that case, the United States Court of Appeals for Veterans Claims
(CAVC)stated that current § 3.315(d) does not consider the interpretive effects of 38 U.S.C. 1513(a), first enacted in 2001, on 38 U.S.C. 1521(e). *See Hartness,* 20 Vet. App. at 221. The CAVC held that, according to these statutes, a veteran who is otherwise eligible for Improved Pension based on being age 65 or older, and who is not in need of regular aid and attendance, is entitled to special monthly pension at the housebound rate if he or she has a disability ratable at 60 percent or more or is considered permanently housebound. See *Hartness,* 20 Vet. App. at 221-22. Such a veteran, unlike a veteran who is under 65 years old, need not have a disability that is permanent and total. See *id.* Proposed paragraph (b)(1) implements this aspect of *Hartness.* Proposed paragraph (b)(2) reconciles 38 U.S.C. 1513(b) with the holding in *Hartness.* Under section 1513(b), “[i]f a veteran is eligible for pension under both [38 U.S.C. 1513 and 38 U.S.C. 1521], a pension shall be paid to the veteran only under section 1521.” A veteran who is age 65 or older who has a permanent and total disability would be eligible for pension under both section 1513 and section 1521(a). Such a veteran would then be subject to 38 U.S.C. 1513(b) and could receive pension only under section 1521(a). In order for that veteran to receive special monthly pension under section 1521(e), he or she would need to have a disability rated 60 percent or higher or be permanently housebound, in addition to being permanently and totally disabled. In contrast, a veteran who is 65 years or older and has a disability rated 60 percent or higher (but less than permanent and total) need not be permanently and totally disabled to receive special monthly pension. This is because such a veteran would not fall within the operation of section 1513(b) because that veteran's disability would not independently qualify him or her for pension under section 1521(a). Proposed paragraph (b)(2) clarifies the different rules for these two groups of veterans, which we are bound to apply pursuant to the CAVC's *Hartness* decision. Finally, we propose to clarify in § 5.391(c) that the definition of “permanently housebound” is the same for veterans and surviving spouses. Section 5.392 Effective Dates for Awards of Special Monthly Pension Proposed § 5.392 is based on current § 3.401(a)(1) and § 3.402(c)(1). Paragraph
(a)of proposed § 5.392 states the general effective date rule for special monthly pension. Paragraph
(b)of proposed § 5.392 states an exception to the general effective date rule. The exception is when an award of Improved Pension is effective retroactively. In such cases, the special monthly pension award may be effective retroactively as well, if entitlement to special monthly pension is established for any part of the retroactive period. Maximum Annual Pension Rates Section 5.400 Maximum Annual Pension Rates for Veterans, Surviving Spouses, and Surviving Children Proposed § 5.400 is based in part on paragraphs (a), (c), and (d)(3) of current § 3.23, and portions of § 3.24(b). Proposed § 5.400(a) restates the statutory references in current § 3.23(a). Improved Pension rates are set by statute. Proposed § 5.400(a) provides the statutory references to 38 U.S.C. 1521, 1541, and 1542, which are the rate-setting statutes for Improved Pension. Proposed § 5.400(b) restates current § 3.23(c) without reference to veterans of the Mexican border period. There are no more pension beneficiaries of veterans who served during this period of war. Proposed § 5.400(c) informs readers that higher maximum annual pension rates apply to veterans and surviving spouses with dependents. Section 5.401 Automatic Adjustment of Maximum Annual Pension Rates Proposed § 5.401 is based on portions of current §§ 3.23, 3.24, and 3.27. Current § 3.27 governs automatic adjustment of various types of benefit rates. Paragraph
(a)of § 3.27 deals with Improved Pension and requires VA to increase the maximum annual pension rates whenever the Commissioner of Social Security increases Social Security benefits in accord with annual increases in the cost of living. Proposed § 5.401(b) is based on current § 3.27(e), as well as those portions of § 3.24(b) and paragraphs
(a)and
(c)of § 3.23 which require VA to publish increased maximum annual pension rates in the **Federal Register** . No substantive changes are proposed. Improved Pension Income, Net Worth, and Dependency Section 5.410 Countable Annual Income Proposed § 5.410(a) clearly states that for Improved Pension purposes, VA does not count income received before the effective date of the beneficiary's Improved Pension award, nor does VA count income that an Improved Death Pension claimant received before the date the veteran died. This fact is one of the distinguishing characteristics of Improved Pension as opposed to VA's other need-based benefits. In the Improved Pension program, initial payments are made based on the adjusted annual income that the claimant expects to receive during the twelve-month period immediately following the effective date of the award of pension (generally the date VA receives a claim or the date of the veteran's death). Proposed paragraphs (b)(1) and
(2)of § 5.410 incorporate paragraphs (d)(4) and
(5)of current § 3.23 in answering the question, “Whose income is countable?” In proposed paragraph (b)(1) concerning the income of a veteran, we have added a phrase concerning the income of a veteran's spouse. We state that a veteran's income includes that of his or her spouse “regardless of whether the spouse's income is available to the veteran.” This addition is not a change. It can be inferred from the current regulations and is consistent with 38 U.S.C. 1521(c). We believe that this important provision should be made clearer to readers. Paragraphs (b)(1) and
(2)of proposed § 5.410 do not include certain portions of paragraphs (d)(4) and
(5)of current § 3.23 concerning a child's income, in order to keep this lengthy regulation as simple as possible. Recognizing that many Improved Pension claimants do not have dependent children, we propose instead to incorporate the provisions concerning children within proposed § 5.416, “Persons considered as dependents for Improved Pension.” Having separate regulations will make these provisions easier to read and understand. Proposed paragraphs (b)(1) through (b)(3) answer the question of whose income is included for the three types of claimants and beneficiaries: veterans, surviving spouses, and surviving children. We believe the complete answer concerning surviving children is too complex to be included in this regulation, so we propose to include a cross-reference to proposed § 5.435, “Calculating annual Improved Pension amounts for surviving children,” which is the proposed comprehensive provision concerning annual Improved Pension amounts for surviving children. Proposed § 5.410(c) restates current § 3.271(a). Current 3.271(a) states that a payment of any kind from any source shall be counted as income during the reporting period in which it was received unless it is specifically excluded under § 3.272. Based on current part 3 regulations, including §§ 3.271, 3.272, 3.273, and 3.660, current VA practice is to use the term, “12-month annualization period” to describe the period for which a beneficiary reports income, adjustments to income, and net worth to VA. We propose to instead use the term “reporting period,” which we believe is more explicit and more easily understood than “12-month annualization period”. We propose to use “reporting period” in §§ 5.410, 5.413, 5.420, and 5.424 of this NPRM and throughout part 5 and to define that term in § 5.420(a). Paragraphs (c)(1) through (c)(3) of proposed § 5.410 are derived from current § 3.271(a)(1) through (a)(3), as well as current § 3.273(c) and (d). Current § 3.271 describes the various income types and § 3.273 explains how to count them. We believe it makes sense for the two regulations to be merged. Paragraph (c)(3) includes information based on long-standing VA practice regarding counting of irregular income which we believe should be included in our regulations. Proposed § 5.410(d) restates current § 3.276(a), concerning waived income, which should be listed in proposed § 5.410 with other items that VA counts as income. Current § 3.276(a) provides that VA will include for Improved Pension purposes any income that an individual has waived. Long-standing VA policy provides a caveat—that if an individual withdraws a Social Security claim after a finding of entitlement to Social Security benefits, so as to maintain eligibility for an unreduced Social Security benefit on attainment of a certain age, this withdrawal is not presumed to be a waiver. We propose to include this clarification. We note that section 1503(a) of title 38, United States Code, requires VA to consider as income “all payments of any kind or from any source (including salary, retirement or annuity payments, or similar income, which has been waived * * *).” However, when a person applies for and is found entitled to Social Security, but then waives those benefits solely for the purpose of receiving more benefits at a later date, the action is more accurately considered a deferment of payments rather than a waiver. Therefore, proposed § 5.410(d) is fair and consistent with 38 U.S.C. 1503(a). Proposed § 5.410(f)(1) and
(2)are based on current § 3.271(d), concerning income from income-producing property. In § 5.410(f)(2), we propose to clarify that if a beneficiary's income includes that of his or her spouse, and both the beneficiary and spouse are co-owners of a property which produces income, then income representing both co-owned shares is included as income to the beneficiary. Proposed § 5.410(f)(3) is a new provision, based on long-standing VA practice, which states that if a person transfers ownership of income-producing property to another person or legal entity, but retains the right to that income, the income will be counted. We believe this is consistent with 38 U.S.C. 1503 and will help avoid confusion by pension beneficiaries by clarifying that such income will be counted by VA. We propose not to include current § 3.271(e), which states: “Income shall be determined by the total amount received or anticipated during a 12-month annualization period.” This sentence is unnecessary and redundant of other provisions, such as proposed § 5.423, which explains calculation procedures, as well as current § 3.272(e), which pertains to installment income from property sales. Section 5.411 Counting a Child's Income for Improved Pension Proposed § 5.411 is based on various provisions concerning when a child's income is countable for Improved Pension purposes. These provisions are presently found in paragraphs (d)(4) through (d)(6) of § 3.23, and paragraphs
(j)and
(m)of § 3.272. We believe it would simplify the provisions concerning counting a child's income to have them in one place. Proposed § 5.411(a) concerns the availability of a dependent child's income to a veteran or surviving spouse. Rather than stating that VA counts a child's income “to the extent it is” reasonably available (which is the language used in the current regulation § 3.23(d)(4) and (5)), we propose to say that VA counts “that portion of a child's income that is” reasonably available, which is more clear. Additionally, this change mirrors the statutory language of 38 U.S.C. 1521(h)(1) and 1541(g), which require VA to count as income to the beneficiary “that portion of the annual income of the child.” Proposed § 5.411(a)(1) restates the provisions of current paragraphs (d)(4), (d)(5), and (d)(6) of § 3.23 concerning the presumption of availability of a child's income. Proposed § 5.411(a)(2) is derived from current § 3.23(d)(4) and (d)(5) relating to hardship. In addition to the current requirements, the proposed regulation states that a veteran or surviving spouse must specifically request that VA exclude all or part of a child's annual income because counting it would create a hardship on the veteran or surviving spouse. Currently, claimants are notified of this requirement in the VA Eligibility Verification Report form. Including the requirement in this regulation is consistent with VA's current practice, as reflected in the VA Eligibility Verification Report form. Proposed § 5.411(a)(2) is also derived from current § 3.272(m) and describes the steps VA uses to calculate the amount of the hardship exclusion. Proposed § 5.411(b) restates the second sentence of current § 3.23(d)(6), which is the definition of “expenses necessary for reasonable family maintenance.” To the current list of examples (food, clothing, shelter) of basic necessities included in this definition, we propose to add healthcare, which is necessary to support a reasonable quality of life. Proposed § 5.411(c) restates current § 3.272(j). We propose to refer to title 26, United States Code, rather than to the Internal Revenue Code of 1954. We believe more readers are familiar with these citations. Section 5.412 Income Exclusions for Calculating Countable Annual Income Proposed § 5.412 implements 38 U.S.C. 1503, which contains the basic statutory provisions for determining what counts as income for Improved Pension. Current § 3.272, “Exclusions from income,” is the part 3 regulation that implements the statute. The current regulation mirrors the structure of the statute in mixing two separate analytical categories—income received that should be excluded from countable annual income and expense payments that should be deducted from countable annual income. For example, § 3.272(g),
(h)and
(i)list various types of expenses incurred by claimants; these are properly in a separate category from income that claimants receive. Because of this distinction between payments that may be excluded from income and payments that may be deducted from income, we propose to divide the current regulation into two smaller regulations (proposed §§ 5.412 and 5.413) for the sake of clarity. Proposed § 5.412 lists exclusions from annual income for Improved Pension purposes. In a future NPRM, we plan to propose a new regulation that would list all income sources and assets that are statutorily excluded in determining entitlement to all need-based programs that VA administers. The new regulation would be contained in proposed subpart L of proposed new part 5. Therefore, in proposed § 5.412, we do not cover such income sources that are found in current § 3.272. These sources include those currently listed in paragraphs (k), (o), (p), (r), (t), (u), and
(v)of § 3.272. Proposed paragraphs (b)(3) and
(k)cross-reference the new regulation. Proposed § 5.412(a), based on § 3.272(a), also includes the content of current § 3.272(l). This consolidation is appropriate because current § 3.272(l), which authorizes the exclusion from income of payments received for participating in a program of therapy or rehabilitation under 38 U.S.C. 1718, characterizes this payment as a donation from public or private relief, welfare, or charitable organization under § 3.272(a). It is logical to place this type of payment in the paragraph dealing with such donations. Long-standing VA policy also regards benefits received under noncontributory programs (such as Supplementary Security Income) as an excluded donation. *See* current § 3.262(f). We propose to list this common exclusion in § 5.412(a)(2) for increased clarity. Proposed § 5.412(b) is derived from § 3.272(c) and adds a provision (proposed § 5.412(b)(2)) that payments to a surviving spouse under § 3.20(c) do not count as income. Current § 3.20(c) pertains to the veteran's month-of-death rate for certain surviving spouses. *See* 38 U.S.C. 5310(b). In our view, proposed § 5.412(b)(2) is consistent with 38 U.S.C. 5310, in that such payments are considered part of a surviving spouse's entitlement and are not included as income for Improved Death Pension purposes. Proposed § 5.412(c) through
(g)restate current § 3.272(d)-(f), (n), and (s). We do not propose any substantive changes to these paragraphs. Section 3803(c)(2)(C)(viii) of title 31, United States Code, defines “benefits,” for purposes of that statute (which codifies the Program Fraud Civil Remedies Act of 1986), as including Improved Pension. Section 6(h) of Public Law 101-426, the Radiation Exposure Compensation Act (RECA), provides that payments under RECA are not considered income or resources for purposes of determining eligibility for benefits listed in 31 U.S.C. 3803(c)(2)(C)(viii). We have implemented that statutory exclusion in current § 3.272(s) (proposed § 5.412(g)). We propose to implement the following similar exclusions in proposed § 5.412(h)-(j), which include payments under section 103(c) of the Ricky Ray Hemophilia Relief Fund Act of 1998 (42 U.S.C. 300c-22 (note)), payments under the Energy Employees Occupational Illness Compensation Program (42 U.S.C. 7384 *et seq.* ); and payments under 50 U.S.C. Appx. 1989b-4 and 1989c-5 to certain eligible Japanese-Americans and Aleuts. These statutes provide that such payments shall not be considered in determining entitlement to benefits listed in 31 U.S.C. 3803, which includes Improved Pension. Because VA must count all payments unless specifically excluded, we believe it is important for readers to know what VA considers and does not consider a “payment.” Proposed § 5.412(k) lists several items that VA does not consider payments, consistent with law, current regulations, and long-standing VA policy. Section 5.413 Income Deductions for Calculating Adjusted Annual Income We propose a new regulation, § 5.413, based on current §§ 3.271(c) and
(g)and 3.272(g) through (i). These paragraphs pertain to expenses and losses that are deducted from countable annual income. Proposed § 5.413(a) restates the last sentence of the introductory language of current § 3.272, which currently states, “Unless otherwise provided, expenses deductible under this section are deductible only during the 12-month annualization period in which they were paid.” However, because proposed § 5.420 defines “reporting periods” for Improved Pension purposes, we refer to the “initial reporting period or annual reporting period” instead of the 12-month annualization period. Proposed § 5.413(b) refers to a “medical expense report” instead of an eligibility verification report (EVR), which is referred to in current § 3.272(g), because certain categories of Improved Pension beneficiaries are not required to submit annual EVRs under current § 3.277. Proposed § 5.413(b) includes a cross-reference to § 3.660(a), which explains that pension beneficiaries must inform VA if there is a change in income, and clarifies that a change in medical expenses is a change in income. Current § 3.272(h) permits deductions of amounts paid for last illnesses, burials, and the veteran's just debts. We propose, consistent with long-standing VA usage, to designate these types of expenses as “final expenses.” We believe that doing so improves clarity in proposed § 5.413(c). Proposed § 5.413(c)(1)(ii) defines “last illness” as “the medical condition that was the primary or secondary cause of a person's death as indicated on the person's death certificate.” We believe that this definition is simple, clear, and easy for VA personnel to apply correctly and consistently. Proposed § 5.413(c)(1)(iii), based upon current § 3.272(h)(1)(ii), defines “veteran's just debts.” Consistent with long-standing VA policy, we propose to clarify to readers that a “veteran's just debts” includes debts that the veteran and spouse incurred jointly. We believe that it would be unfair and arbitrary to prohibit a surviving spouse or child from deducting debts that the veteran and surviving spouse incurred jointly, while allowing the deduction of debts incurred solely by the veteran. Proposed § 5.413(c)(2)(i) through (c)(2)(iii) explain what final expenses VA will deduct for veteran awards, surviving child awards, and surviving spouse awards. These paragraphs restate and rearrange the provisions of current § 3.272(h)(1)(ii) and (h)(2) concerning these deductible final expenses in a way we believe is clearer. Proposed § 5.413(c)(2)(iv) is based on current § 3.272(h)(1)(i), which provides a special exception to other final expense provisions. Proposed § 5.413(c)(2)(iv) incorporates the holding of VA's Office of General Counsel in VAOPGCPREC 1-2000, 65 FR 33421 (May 23, 2000), which held that Congress intended for last illness expenses that a surviving spouse paid for a veteran to be treated differently than other deductible final expenses because last illness expenses include expenses that the surviving spouse paid before the veteran's death when the surviving spouse was still the veteran's spouse. Under section 1503(a)(3)(B) of title 38, United States Code, VA will deduct amounts paid by a *spouse* of a veteran for the expenses of such veteran's last illness from a *surviving spouse's* annual income, as well as amounts paid by the surviving spouse for the expenses of such veteran's last illness. This is an exception to the general rule that VA does not deduct expenses a claimant paid before the date of entitlement (or before the date of the veteran's death in death cases). Proposed § 5.413(c)(2)(iv) provides this exception for the expenses of a veteran's last illness that a surviving spouse paid either before the veteran's death or after the veteran's death but before Improved Pension entitlement. It provides that payments made up to one year before the veteran's death may be deducted from a surviving spouse's countable annual income if the surviving spouse's Improved Death Pension claim is received within one year of the veteran's death. The amounts of these expenses would be deductible during the surviving spouse's initial reporting period. We believe this is a reasonable period in which to account for expenses associated with a veteran's last illness. Proposed § 5.413(c) does not include the content of current § 3.272(h) concerning time periods for deducting final expenses because the periods for allowing deductible final expenses are the periods stated in proposed § 5.413(a), with the exception of “last illness” expenses under paragraph (c)(2)(iv). Therefore, we propose not to include the introduction to § 3.272(h). This clarifies and simplifies these types of adjustments, benefiting claimants and claims examiners alike. Proposed paragraph (c)(3)(ii) clarifies that VA cannot allow the same expense as both a final expense and an unreimbursed medical expense. Proposed paragraph § 5.413(d) restates current § 3.272(i), which provides for the deduction of certain educational expenses of a veteran or surviving spouse. We also propose to state that scholarships and grants are not deductible educational expenses when used for educational purposes. Although VA counts all payments as income unless there is statutory authority or a policy basis to exclude or deduct them, VA permits certain deductions from particular income sources. In other words, the amount of income counted from certain sources is the difference between income and certain deductible expenses directly associated with that income. Proposed § 5.413(e), (f), and
(g)list deductions permitted from particular income sources. Proposed § 5.413(e) is new and states that gambling losses can be deducted from gross winnings to arrive at the net gambling income. This provision is based on long-standing VA policy and is consistent with how the Internal Revenue Service counts gambling income. We believe it is important to include this information so that claimants or beneficiaries are fully informed about what VA considers a deduction from gambling winnings. Proposed § 5.413(f)(1) is new and adds commercial insurance (disability, accident, life, or health) to the sources of an award or settlement listed in current § 3.271(g) from which deductions may be taken. It is consistent with the other items listed in § 5.413(f) including (6), “Legal damages collected for personal injury or death”. Section 5.414 Net Worth Determinations for Improved Pension Proposed § 5.414 combines current § 3.274, § 3.275, and § 3.276(b) into one regulation. Current § 3.274 concerns the applicability of net worth concepts to Improved Pension entitlement, and current § 3.275 outlines the criteria for evaluating net worth. Current § 3.276(b) concerns asset transfers and whether such transfers can reduce net worth. Currently the terms “net worth” and “corpus of estate” are used interchangeably. Consistent with our proposal in a prior NPRM (RIN 2900-AL83, 69 FR 77584), we propose to use the term “net worth” only and not include references to “corpus of estate” because we believe “net worth” is more commonly understood. Proposed § 5.414(a) is derived from current § 3.275(b), the definition of net worth. We propose to add paragraphs (a)(1) through
(3)to add detail consistent with long-standing VA policy. We also propose to provide two examples of the types of personal effects that are suitable to and consistent with the claimant's or beneficiary's reasonable mode of life. Proposed § 5.414(a)(1) states that a mortgage on a home is not deducted from net worth. We believe this provision clarifies the principle, implied by the pension regulations in current 38 CFR, that a personal residence has no bearing on net worth for Improved Pension purposes. Proposed § 5.414(a)(2) includes current and long-standing VA policy that VA will evaluate a “reasonable lot area” by considering the size of other residential lots in the vicinity. We believe this provision would improve the fairness of this regulation because lot sizes vary from locale to locale. It might be reasonable in some parts of the country to retain significant acreage. In other parts of the country, the same acreage would constitute a sizeable asset, and VA would require disposal of some or all of that asset for the claimant's or beneficiary's maintenance. We have also proposed to state VA's long-standing policy that if the claimant or beneficiary lives on a farm, VA will exclude the value of a reasonable lot area, including the residence area, and consider the rest of the farm as part of net worth. We believe this will allow claimants and beneficiaries to continue to live on their family farm, while still accurately measuring net worth. Proposed § 5.414(a)(4) restates current § 3.276(b), concerning asset transfers, which we propose to incorporate into the net worth regulation because it applies only to net worth. We propose no substantive changes to this provision. Paragraphs
(b)and
(c)of proposed § 5.414 refer only to a veteran's or surviving spouse's adjusted annual income instead of listing all of the persons (veteran, dependent spouse, and dependent children for a veteran's adjusted annual income and surviving spouse and dependent children for a surviving spouse's adjusted annual income) whose income would be included in the adjusted annual income. It is sufficient to refer only to the veteran's or surviving spouse's adjusted annual income because the definition of adjusted annual income includes countable annual income, which includes the incomes of the dependent spouse and dependent children for a veteran's countable annual income and includes the incomes of the surviving spouse and dependent children for a surviving spouse's countable annual income. For the sake of clarity, paragraph
(d)of proposed § 5.414 refers to the definition of “adjusted annual income” in proposed § 5.370. Proposed § 5.414(b) combines paragraphs
(a)and
(c)of current § 3.274 into one paragraph dealing with veteran and surviving spouse Improved Pension awards. Because current paragraphs
(a)and
(c)of § 3.274 are substantively similar, this combination is appropriate. Proposed § 5.414(c) combines paragraphs (b), (d), and
(e)of § 3.274, and paragraph
(e)of § 3.275(e), all pertaining to net worth of a child for Improved Pension purposes. We believe that combining rules pertaining only to children will make it easier for readers to find these rules. Proposed § 5.414(c)(1) is based on current
(b)and
(d)of § 3.274 and states that an increased pension payable to a veteran or surviving spouse for a child will be discontinued or denied if the child's net worth is such that some part of that net worth reasonably should be consumed for the child's maintenance. Paragraph (c)(2) of proposed § 5.414 is based on current § 3.274(e), which concerns net worth of a surviving child. However, we propose a change that would assist readers and provide more clarity. We propose that paragraphs (c)(2)(i) and
(ii)of proposed § 5.414 mirror paragraphs
(a)and
(b)of proposed § 5.435, which concerns annual income of a surviving child. Proposed § 5.414(c)(2)(i) provides that if a surviving child is not in the custody of another person, VA considers the net worth of the child only. Proposed § 5.414(c)(2)(ii) provides that if the child is in the custody of another person, the child's net worth includes that of the custodian. Additionally, we propose to mirror the provision of current § 3.57(d)(2) and proposed § 5.435, and state that when a child is in the joint custody of his or her parent and stepparent, the parent's net worth includes that of the stepparent. We believe this provision is consistent with 38 U.S.C. 1543. Proposed § 5.414(c)(3) is derived from current § 3.275(e). The current regulation excludes actual or prospective educational or vocational expenses from a child's net worth, but not “beyond age 23.” Proposed § 5.414(c)(3) states that VA will exclude those educational or vocational expenses until a child reaches age 23. Proposed § 5.414(c)(3) reflects long-standing VA interpretation and application of this rule. This does not represent a substantive change because in practice VA limits the exclusion when a child reaches age 23. When 38 U.S.C. 1503 defines “annual income,” it does so “under this chapter.” Therefore, we must conclude that the references to income in the net worth statutes (38 U.S.C. 1522 and 1543) are references to the same definition of income because the statutes are in the same chapter. We believe that Congress intended the definition of income in section 1503 to apply to all determinations in which income might play a role, and we would clarify this point. At the same time, proposed § 5.414(d) states that, “in considering the claimant's or beneficiary's living expenses, VA cannot consider expenses it excluded or deducted in determining adjusted annual income.” This statement is necessary because VA cannot consider living expenses that have already been used to calculate adjusted annual income. Because we propose this clarification concerning income and because the phrase “all of the claimant's or beneficiary's living expenses” sufficiently encompasses medical expenses, it is not necessary to specifically mention medical expenses in proposed § 5.414(d), although current § 3.275(d) does mention medical expenses. In § 5.414(d)(1), we propose to restate a phrase currently found in § 3.275(d), “[w]hether the property can be readily converted into cash at no substantial sacrifice.” Review of the legislative history of Public Law 86-211, which first required VA to use net worth in pension determinations, as well as Public Law 95-588, the Improved Pension law, shows Congress clearly intended that the greatest pension benefit should go to those with the greatest needs, and that benefits should be denied or discontinued if a claimant's or beneficiary's estate is large enough to provide for maintenance. VA has historically interpreted the phrase “substantial sacrifice” as meaning that a claim should not be denied for excessive net worth if the claimant or beneficiary cannot readily convert real or personal property into liquid assets (assets that can be readily converted into cash). Therefore, proposed paragraph § 5.414(d)(1) provides for consideration of “[t]he value of liquid assets (assets that the claimant or beneficiary can readily convert into cash).” We believe this wording will be clearer to claimants and beneficiaries, as well as consistent with VA practice. We also note that proposed paragraph § 5.414(a), excluding the value of personal effects suitable to and consistent with a reasonable mode of life, would protect claimants and beneficiaries from having to sell non-liquid assets if this sale would be a substantial sacrifice. Paragraphs (d)(2) and
(3)of proposed § 5.414 restate current § 3.275(d) without substantive change. Finally, § 5.414(e) lists resources excluded by statute from net worth determinations. This list includes payments excluded by statutes that reference a list of benefits in 31 U.S.C. 3803(c)(2)(C). Specifically, these are payments under section 6 of the Radiation Exposure Compensation Act of 1990; payments under the Ricky Ray Hemophilia Relief Fund Act of 1998; payments under the Energy Employees Occupational Illness Compensation Program; and payments to certain eligible Japanese-Americans and Aleuts. Also, see the discussion concerning these payments in this NPRM under the discussion of proposed § 5.412. We previously discussed a new regulation, to be addressed in a future NPRM, which would be contained in proposed subpart L of proposed new part 5. The new regulation would list all income sources and assets that are statutorily excluded in determining entitlement to all need-based programs that VA administers. Therefore, proposed § 5.414(e)(5) cross-references the new proposed regulation, and proposed § 5.414 would not repeat the sources currently described in paragraphs (f), (g), and
(i)through
(j)of § 3.275 because these would be in the new regulation. Section 5.415 Effective Dates for Improved Pension Awards Based on a Change in Net Worth Proposed § 5.415 is based on current § 3.660(d), as well as the third sentence of current § 3.660(a)(2). Proposed § 5.415(a) governs the assignment of the effective date of a reduction or discontinuance of Improved Pension based on the beneficiary's net worth. Proposed § 5.415(b), based on current § 3.660(d), concerns the effective date for payment or resumption when VA previously found net worth to bar Improved Pension. No substantive changes are proposed. Section 5.416 Persons Considered as Dependents for Improved Pension Proposed § 5.416 is based on current § 3.23(d)(1). It also encompasses current § 3.60, as well as portions of current paragraphs (d)(4) and
(5)of § 3.23, and statutory provisions, all pertaining to dependency for Improved Pension purposes. Section 1521(c) of title 38, United States Code, provides the statutory maximum annual pension rate for a veteran with a dependent spouse, stating that the higher rate applies “[i]f the veteran is married and *living with* or reasonably contributing to the support of such veteran's spouse” (emphasis added). Then, 38 U.S.C. 1521(h)(2) provides that “[a] veteran shall be considered as living with a spouse even though they reside apart unless they are estranged.” The provision of 38 U.S.C. 1521(h)(2) is expressed in current 38 CFR 3.60: “For the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.” Proposed § 5.416(a) states that a spouse is considered a dependent spouse for Improved Pension if:
(1)The veteran lives with the spouse;
(2)the veteran and spouse live apart but are not estranged; or
(3)the veteran reasonably contributes to the estranged spouse's support. This wording makes the regulation clear without changing the statutory meaning of 38 U.S.C. 1521(c) and (h)(2). Proposed § 5.416(a)(3) restates current § 3.23(d)(1) as it pertains to spousal support and adds that determining whether support is “reasonable” is a factual matter that VA determines. Proposed § 5.416(b) restates the last sentence of current § 3.23(d)(1) as it pertains to a dependent child of a veteran. It also states the implication of 38 U.S.C. 1541(c) and 1542 as interpreted by 38 CFR 3.23(d)(5), 3.24, and 3.57(d): VA considers a veteran's child to be a surviving spouse's dependent if the child is in the custody of the surviving spouse. *See* 38 U.S.C. 1506(1). The term “custody” for Improved Pension is defined in current § 3.57(d) (proposed counterpart § 5.417). In proposed § 5.416(b)(1), we propose to state that a child need not be living with the veteran or surviving spouse to be presumed in custody. Proposed § 5.416(b)(2) restates the provision of current § 3.23(d)(1) that even if a veteran does not have custody of a child, the child is presumed to be the veteran's dependent child if the veteran provides reasonable support contributions. Proposed § 5.416(c) indicates that a child is not considered a dependent child of the veteran or surviving spouse for Improved Pension purposes if the child's net worth is such that under proposed § 5.414(c)(1) (current paragraphs
(b)and
(d)of § 3.274) increased pension that would otherwise be payable to the veteran or surviving spouse on account of the child is denied or discontinued. We believe this is the correct interpretation of the statutes, 38 U.S.C. 1522(b) and 1543(a)(2), which provide that during the period that net worth bars increased pension, a child shall not be considered as the veteran's or surviving spouse's child for purposes of Improved Pension. Section 5.417 Child Custody for Improved Pension Proposed § 5.417 is based on current § 3.57(d), which defines “child custody” for Improved Pension purposes. Proposed § 5.417(a) through
(c)are plain language restatements of current § 3.57(d)(1), and proposed § 5.417(f) and
(g)are plain language restatements of current § 3.57(d)(3). Proposed paragraph
(g)adds that if a child has no custodian, that child may be eligible for benefits in his or her own right. Proposed § 5.417(d) and
(e)are plain language restatements of the first three sentences of current § 3.57(d)(2). We propose to replace the word “remarried” with the more inclusive word “married”; this replacement does not change the intent or meaning of the current regulation. We excluded the last sentence of § 3.57(d)(2) from proposed § 5.417 and included it instead with the proposed regulation that explains how to calculate annual Improved Pension amounts for surviving children, § 5.435. Improved Pension—Income Reporting Periods, Payments, Effective Dates, and Time Limits Section 5.420 Reporting Periods for Improved Pension Proposed § 5.420, is not directly based on any part 3 regulation. Rather it explains several key concepts regarding income reporting periods for Improved Pension, which are based on the part 3 Improved Pension regulations and long-standing VA practice. It defines a reporting period as the period for which VA counts income that is anticipated or received, when calculating adjusted annual income. It states that there are two types of reporting periods, the initial reporting period and the annual reporting period, and describes these periods in detail. Section 5.421 How VA Calculates an Improved Pension Payment Amount Proposed § 5.421 is based on paragraphs
(a)and
(b)of current § 3.273, VA's regulation pertaining to the calculation of the monthly amount payable to Improved Pension beneficiaries. Proposed regulations derived from current § 3.273(c) and (d), concerning categories of income, are covered in this NPRM in the discussion concerning proposed § 5.410. Proposed § 5.421 addresses “the basics” of how VA calculates an Improved Pension payment amount and what happens when changes occur. A general introduction to Improved Pension payment amount calculation is a useful tool for understanding more specific related regulations. We propose to retain the long-standing VA term, “maximum annual pension rate,” to refer to the statutory “annual rate,” “annual rate of pension,” and “annual pension rate” referenced in 38 U.S.C. 1521, 1541, and 1542. We also see no reason to refer to the “applicable” maximum annual pension rate. It is unnecessary to state that VA uses whichever maximum annual pension rate applies. Therefore, we propose to not include the word “applicable.” Proposed § 5.421(a) restates current § 3.273(a). However, we propose to exclude several words and phrases that are unnecessary. We propose not to include the phrase, “For the purpose of determining initial entitlement, or for resuming payments on an award which was previously discontinued,” because the basic procedure for calculating an Improved Pension payment amount is the same whether VA is calculating an initial award or a resumption of pension payments. For the same reason, we propose not to include the reference to the “effective date of entitlement” in current § 3.273(a). Current paragraphs
(a)and
(b)of § 3.273 contain three references to current § 3.29(b), which is the “rounding down” provision that became effective for pensions paid on or after June 1, 1983. We propose not to refer to the June 1, 1983, effective date because all VA pensions paid under part 5 will be effective after June 1, 1983. We otherwise propose to incorporate the provision of current § 3.29(b), pertaining to rounding, within proposed § 5.421(a). Proposed § 5.421(b) and
(c)provide answers to the simple questions, “What if the maximum annual pension rate changes?” and “What if adjusted annual income changes?” The simple answer is that VA recalculates the Improved Pension payment amount. Proposed paragraph
(c)cross-references proposed § 5.422, “Effective dates for changes to Improved Pension payments due to a change in income,” which is a more complex regulation concerning annual income adjustments. Section 5.422 Effective Dates for Changes to Improved Pension Payments Due to a Change in Income Proposed § 5.422 contains effective dates for payment amount adjustments due to a change in income. Current § 3.660 provides the effective dates for adjustments to VA's need-based benefits. Specific effective-date provisions for increases are complex and are contained in a separate proposed regulation, § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income.” Proposed § 5.422(a)(1) cross-references this regulation and provides the general rule that increases are effective the date entitlement arose, or in this specific instance, the date that income changed. Proposed § 5.422 also states that generally, VA makes such adjustments the first day of the month after the income change, according to current § 3.31, “Commencement of the period of payment.” Proposed § 5.422(a)(2) restates the second sentence of current § 3.660(a)(2), using revised language for the effective date for payment of reduced or discontinued benefits. Although the current regulation states that the award will be reduced or discontinued effective the end of the month in which an increase in income occurred, in the proposed regulation we have stated that the award will be reduced or discontinued effective “the first day of the month following the income change.” VA has taken this approach throughout the Regulation Rewrite Project. That is, rather than stating the effective date on which entitlement to the previous rate ends, the part 5 effective-date regulations would state the effective date as the day on which VA begins to discontinue benefits. For example, rather than stating that a particular discontinuance is effective “the last day of the month,” we would state that VA will discontinue benefits effective “the first day of the following month.” VA intends no substantive change by this rewording. We also propose not to include the references to “running award[s]” found in current § 3.660(a)(2). The references to “running award[s]” are not found in the authorizing statute, 38 U.S.C. 5112(b). We believe the effective-date provisions of 38 U.S.C. 5112(b) apply, regardless of whether or not VA has actually processed the award or the award is in suspense. Proposed § 5.422(b)(1) states a matter of long-standing policy which is not currently contained in any regulation. Although the provision is somewhat intuitive, we believe it should be explicitly stated in the regulations that VA stops counting a dependent's income effective the same date that the dependent is removed. This is an exception to the general rule that VA must count all income for at least 12 months. Proposed § 5.422(b)(2) and
(3)are derived from the first and second sentences of § 3.660(c). Section 5.423 Improved Pension Determinations When Anticipated Annual Income is Uncertain Proposed § 5.423(a) is based on current § 3.271(f), pertaining to VA action when anticipated annual income is uncertain. We propose to expand on the current provision to explicitly state that this provision also applies when there is evidence of record indicating the claimant's anticipated annual income may be higher than the claimant reports. Because the current regulation does not bar consideration of evidence suggesting higher anticipated annual income, it is VA's current practice to consider such evidence. We believe this provision is fair to claimants and easy to administer. Proposed § 5.423(a)(1) also expands on § 3.271(f) to clarify that when anticipated annual income is expected to exceed the maximum annual pension rate, VA will not pay pension at that time. VA will then adjust benefits or pay pension upon the receipt of amended income information (for example, information about deductible expenses). We note that this provision is not new and can be derived from current § 3.271(f)(1); however, we believe it should be explicitly stated. Proposed § 5.423(b) restates § 3.271(f)(2), concerning counting dependents' income in situations when VA has not received evidence to establish dependents. There is no substantive change to this provision. Section 5.424 Time Limits To Establish Entitlement to Improved Pension or To Increase the Annual Improved Pension Amount Based on Income Proposed § 5.424 restates current § 3.660(b) as it pertains to Improved Pension. Current § 3.660(b)(1) provides that if payments are not made because anticipated income exceeds the maximum annual pension rate, pension may be awarded in “accordance with the facts found, but not earlier than the beginning of the appropriate 12-month annualization period if satisfactory evidence is received within the same or the next calendar year.” Proposed § 5.424(b)(1) is a plain language rewrite of § 3.660(b)(1). Proposed § 5.424(b)(2) deals with benefits that are discontinued or paid at a lower amount. VA's long-standing interpretation of § 3.660(b)(1) is that in claims for Improved Pension, the “12-month annualization period” refers to the initial or annual reporting period, as appropriate, and that the “same * * * calendar year” refers to the calendar year in which the reporting period ends. Proposed § 5.424(b)(1) and (b)(2) reflect this interpretation. Both (b)(1) and (b)(2) apply whether the income is actual or anticipated. Regarding the use of the term “facts found” in current § 3.660(b)(1), VA interprets “facts found” and another phrase used in several effective date rules, “date entitlement arose,” to have the same basic meaning. We propose to use only one of these terms, “date entitlement arose,” to improve consistency. Proposed § 5.424(c) is based on current § 3.660(b)(2), which pertains to payment of Improved Pension benefits following nonentitlement for one reporting period. Proposed § 5.424(d) is derived from current § 3.652(b) and is a matter of long-standing VA policy. Proposed § 5.424(d) states that there is no time limit to submit income evidence in order to reduce an overpayment; however, the income evidence submitted must pertain to the time period for which the overpayment was created. Although this provision is implied in current § 3.652(b), we believe that positively stating it within the Improved Pension time limits section makes the provision clearer to readers. Section 5.425 Frequency of Payment of Improved Pension Benefits Current § 3.30 governs the frequency of payment of Improved Pension and parents' dependency and indemnity compensation (DIC). (The provisions concerning parents' DIC are contained in a different NPRM (70 FR 61326).) Paragraphs
(a)through (d), and paragraph
(f)of current § 3.30 explain that the amount of Improved Pension payable determines how often the payment is made. The introduction to current § 3.30 includes a caveat that if a beneficiary is subject to losing other Federal benefit payments because pension payment is less often than monthly, the beneficiary may choose to receive monthly payment. Our proposal contains format and language changes only. There is no revision to the substance of the part 3 regulation. Improved Death Pension Marriage Date Requirements and Effective Dates Section 5.430 Marriage Date Requirements for Improved Death Pension. Proposed § 5.430 is based on current § 3.54, the regulation that limits, in the case of post-service marriages, the class of surviving spouses eligible for pension to those whose marriages satisfy one of three conditions. We propose to separate these provisions into separate regulations because the Project is separating regulations according to benefit type. Proposed regulations based on other provisions contained in current § 3.54 will be or have been contained in separate NPRMs. Proposed § 5.430 reorganizes the provisions of current § 3.54(a) in order to make it easier for the reader to locate pertinent marriage date requirements. Proposed § 5.430(a)(1) contains a new sentence that explicitly states that multiple marriage periods may be added together to meet the one-year requirement. We believe this is a reasonable interpretation of 38 U.S.C. 1541(f)(2) because the statute does not provide that the period must be continuous. Proposed § 5.430(a)(2) limits the wartime periods described to the Mexican Border Period, World War I and later periods because this group of regulations pertains only to Improved Pension. Proposed § 5.430(b) restates current § 3.54(e). We propose not to include the introductory clause in the first sentence of current § 3.54(e), which limits the scope of § 3.54(e) to “periods commencing after December 31, 1957.” January 1, 1958, is the effective date of the Veterans' Benefits Act of 1957 (1957 Act), Public Law 85-56, 71 Stat. 83. The 1957 Act primarily served to consolidate laws concerning veterans' benefits into one statute. The text of one of the 1957 Act's provisions is similar to current 38 U.S.C. 103(b). *See* sec. 103, Public Law 85-56, 71 Stat. 90. However, the law in effect before the passage of the 1957 Act also permitted using the original date of marriage to determine if date of marriage requirements had been met where the surviving spouse and the veteran had been married more than once. *See* sec. 3, Public Law 78-483, 58 Stat. 804. Section 5.431 Effective Dates for Improved Death Pension Current § 3.400(c) pertains to effective dates for all VA death benefits. Proposed § 5.431 is based on current § 3.400(c) only as it pertains to Improved Pension. Proposed § 5.431(b) restates current § 3.400(c)(1) pertaining to death in service. We propose to not include current paragraph (c)(3)(i), which refers to claims received before October 1, 1984, because we know of no such pending Improved Death Pension claims. Should one be discovered, the prior version of the regulations would control the effective date. Likewise, we propose not to include current paragraph (c)(3)(ii) for claims received on or after October 1, 1984, but before December 10, 2004, for the same reasons. Section 5.432 Deemed Valid Marriages and Contested Claims for Improved Death Pension Proposed § 5.432 is a new regulation based on current § 3.52(d). In VAOPGCPREC 20-90, 55 FR 40985 (Oct. 5, 1990), VA's General Counsel held that the phrase “legal surviving spouse who has been found entitled to gratuitous death benefits” in § 3.52(d) does not apply to an individual who has been found to be the legal surviving spouse of the veteran but who does not meet the income requirements to qualify for Improved Death Pension. In other words, the mere fact of recognized status as a legal surviving spouse is not sufficient to prevent a surviving spouse of a deemed valid marriage from being entitled to gratuitous death benefits if the legal surviving spouse does not show that he or she meets all the legal criteria for the award of the benefit. We propose this new regulation to clarify that this deemed valid provision means that the legal surviving spouse must have been found entitled under all of the factual criteria for the award of the benefit in order to bar the recognition of the surviving spouse of the deemed valid marriage as eligible for the same benefit. Current § 3.52(d) indicates that a legal surviving spouse and a surviving spouse of a deemed valid marriage may compete at the same time for the same death benefits. In such cases, the wording of current § 3.52(d) suggests that a surviving spouse of a deemed valid marriage will be recognized so long as the legal surviving spouse fails to fulfill some factual criterion for the award of death benefits. A legal surviving spouse may not be entitled to Improved Death Pension, for example, due to excessive income. In this case, the other claimant may be eligible for Improved Death Pension as a surviving spouse of a deemed valid marriage. When both a legal surviving spouse and a person claiming to be a surviving spouse of a deemed valid marriage apply for Improved Death Pension at the same time and the legal surviving spouse is not entitled to Improved Death Pension because his or her expected adjusted annual income appears to exceed the maximum annual pension rate, VA will not recognize a surviving spouse of a deemed valid marriage until the Improved Pension time limits under current § 3.660(b)(1) have expired. In this way, VA avoids the prospect of making a duplicate payment in violation of 38 U.S.C. 103(d). Section 5.433 Effective Date of Discontinuance of Improved Death Pension Payments to a Beneficiary No Longer Recognized as the Veteran's Surviving Spouse Proposed § 5.433 is based on current § 3.657(a). Current § 3.657 addresses two different effective date and payment adjustment scenarios when a surviving spouse is awarded Improved Death Pension, or when his or her Improved Death Pension benefits are discontinued. VA proposes to address each of these situations in separate sections in subpart F of part 5 as §§ 5.433 and 5.434. The first scenario occurs when VA is paying Improved Death Pension to one beneficiary who claims to be the surviving spouse of a veteran, but a second person later claims Improved Death Pension and successfully establishes that he or she is actually the veteran's lawful surviving spouse. Current § 3.657(a) governs the effective date for the discontinuance of the award to the beneficiary previously recognized as the veteran's surviving spouse. Proposed § 5.433 addresses this situation. Proposed § 5.433(a) describes the situation to which the section applies. Proposed § 5.433(b) is substantively the same as § 3.657(a) with two exceptions. First, 38 U.S.C. 5112(b)(6) precludes reduction or discontinuance of compensation, DIC, or pension “by reason of change in law or administrative issue” or a “change in interpretation of a law or administrative issue” until “the last day of the month following sixty days from the date of notice to the payee (at the payee's last address of record) of the reduction or discontinuance.” We propose to add this exception as § 5.433(b)(3). Again, we propose to phrase the effective date that VA pays a reduced amount or discontinues benefits in terms of the date that the reduced amount begins or discontinuance occurs. Second, current § 3.657(a)(1) and
(2)refer to payments to the legal surviving spouse being effective either before or from “the date of filing claim.” Under the provisions of 38 U.S.C. 5110(a), the effective date of an award based on an original claim, a reopened claim, or claim for increase of compensation, pension, or DIC is fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application. The operative effective date is not the date of filing, but the date VA receives the claim. Therefore, § 5.433 refers to the date of receipt of claim. Section 5.434 Award, or Discontinuance of Award, of Improved Death Pension to a Surviving Spouse Where Improved Death Pension Payments to a Child Are Involved Proposed § 5.434 is based on current § 3.657(b), which concerns effective dates and payment adjustments to surviving spouses and children. This involves two different situations:
(1)The surviving spouse is found eligible for death benefits and a separate award for a surviving child in that surviving spouse's custody must therefore be discontinued, or
(2)the surviving spouse continues to receive Improved Death Pension for a period of time after his or her eligibility discontinues (by remarriage, for example) and the veteran's surviving child is eligible and entitled to receive Improved Death Pension because the surviving spouse is no longer eligible. In the second situation, we propose to refer to the surviving spouse, who is no longer eligible for benefits, as the “former” surviving spouse. Proposed § 5.434(a) is based on current §§ 3.657(b)(1) and 3.503(a)(9), which provide that VA will discontinue benefits to a surviving child effective the date of last payment when a surviving spouse establishes eligibility. Proposed § 5.434(b) is based on current § 3.657(b)(2), which provides that VA will adjust the payment to the former surviving spouse, and surviving child depending on whether the child's payment amount was lower, or equal to or greater than the former surviving spouse's payment amount. We propose a further wording change consistent with our proposal to clarify effective dates for reductions or discontinuances. Rather than saying VA will reduce or discontinue benefits “effective the date of last payment,” we propose to state that VA will reduce or discontinue benefits “effective the first of the month that follows the month for which VA last paid benefits.” Although it is longer, we believe the proposed phrase is clearer than the current rule. We propose this rewording because “date of last payment” could have varying meanings because VA pays one month in arrears. Therefore, proposed § 5.434 clarifies that VA will begin paying the new payee effective the same day it stops paying the previous payee in these cases. No substantive change is intended. We have restructured the material of current § 3.657(b) to make it easier to follow and to clarify this rule's application to Improved Pension claims. Current § 3.657(b) does not apply to Improved Pension in the same way that it applies to DIC. Improved Pension is very different from DIC in its treatment of children and surviving spouses. Under current § 3.24 (proposed § 5.435), children may not establish separate entitlement to Improved Death Pension if they are in the custody of a surviving spouse who is eligible for Improved Pension. “Custody” for Improved Pension purposes is defined in current § 3.57(d) (proposed § 5.417). Custody for Improved Pension purposes exists unless legally divested and does not discontinue when the child reaches age 18. When such children are in the custody of a surviving spouse who is eligible for Improved Death Pension, VA considers them to be dependent children of the surviving spouse for Improved Pension purposes rather than surviving children. Section 1542 of title 38, United States Code, provides, “The Secretary shall pay to each child [who meets basic eligibility requirements] and who is not in the custody of a surviving spouse eligible for [Improved Death Pension] pension [at statutory rates].” Therefore, if a surviving child is receiving Improved Death Pension, the fact that a surviving spouse also establishes entitlement to Improved Death Pension has no effect on the surviving child's benefits if the surviving spouse is not a person legally responsible for the surviving child's support under current § 3.57(d)(2). Alternatively, if a surviving child is receiving Improved Death Pension, and the child's parent or legal custodian establishes eligibility for Improved Death Pension as the veteran's surviving spouse, the child loses his or her separate entitlement. Therefore, we propose to amend the language of the existing provision and address its application to the Improved Pension program. Current § 3.657(b) has been rewritten to clarify effective dates and payment adjustments that apply in the event the surviving spouse's Improved Pension payment amount is equal to the child's Improved Pension payment amount. Section 5.435 Calculating Annual Improved Pension Amounts for Surviving Children Proposed § 5.435 is derived from current § 3.24, except for several provisions from current § 3.24(a), which have been included elsewhere. The first two sentences of current § 3.24(a) have been incorporated in proposed § 5.370 as a definition of a surviving child. The third sentence of current § 3.24(a), concerning eligibility versus entitlement, has been included at the beginning of the Improved Pension subpart, in § 5.371. The last sentence of current § 3.24(a), which cross-references and restates part of current § 3.23(d)(5), that a surviving spouse's income includes that of surviving children in the surviving spouse's custody unless it would cause hardship, is included in the hardship provisions in proposed § 5.411. Paragraphs (b)(1) and (b)(2) of proposed § 5.435 are based on current § 3.24(c) and are rewritten in plain language to improve readability. Proposed § 5.435(b)(3) includes the provision from the last sentence of current § 3.57(d)(2) that if a surviving child is in joint custody, the annual income of the natural or adoptive parent includes the income of the natural or adoptive parent's spouse. Non-Inclusion of Other Part 3 Provisions Previously in this NPRM in the discussions concerning the new proposed part 5 regulations, we discussed regulations or portions of regulations that we propose not to include to part 5. We now discuss several other provisions that we propose not to include. We propose not to include § 3.1(w), which briefly defines Improved Pension. Because of the regulation reorganization of the Project, this definition would not be needed. Endnote Regarding Amendatory Language We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3. Paperwork Reduction Act Although this document contains regulations which include collections of information under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with these proposed rules. The information collection requirements for these regulations are currently approved by the Office of Management and Budget
(OMB)and have been assigned OMB control numbers 2900-0001 (Veteran's Application for Compensation and/or Pension), 2900-0004 (Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child), 2900-0095 (Pension Claim Questionnaire for Farm Income), 2900-0101 (Improved Pension Eligibility Verification Reports), and 2900-0104 (Report of Accidental Injury in Support of Claim for Compensation or Pension). Regulatory Flexibility Act The Secretary hereby certifies that this proposed regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget
(OMB)unless OMB waives such review, as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, or tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.115, Veterans Information and Assistance. List of Subjects in 38 CFR Part 5 Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans. Approved: June 15, 2007. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set out in the preamble, VA proposes to further amend 38 CFR part 5, as proposed to be added at 69 FR 4832, January 30, 2004, and as further proposed to be amended at 69 FR 77578, December 27, 2004, as follows: PART 5—COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS Subpart F—Nonservice-Connected Disability and Death Pensions 1. The authority citation for part 5, subpart F, continues to read as follows: Authority: 38 U.S.C. 501(a) and as noted in specific sections. 2. Sections 5.370 through 5.459 and their undesignated center headings are added to subpart F to read as follows: Improved Pension Requirements—Veterans, Surviving Spouses, and Surviving Children Sec. 5.370 Definitions for Improved Pension. 5.371 Eligibility and entitlement requirements for Improved Pension. 5.372 Wartime service requirements for Improved Pension. 5.373 Evidence of age in Improved Pension claims. 5.374-5.379 [Reserved] Improved Disability Pension—Disability Determinations and Effective Dates 5.380 Disability requirements and presumptions for Improved Disability Pension. 5.381 Permanent and total disability ratings for Improved Disability Pension purposes. 5.382 Improved Disability Pension—combining disability ratings. 5.383 Effective dates for awards of Improved Disability Pension. 5.384-5.389 [Reserved] Special Monthly Pension Eligibility for Veterans and Surviving Spouses 5.390 Special Monthly Pension for Veterans and Surviving Spouses at the Aid and Attendance Rate. 5.391 Special Monthly Pension for Veterans and Surviving Spouses at the Housebound Rate. 5.392 Effective Dates for Awards of Special Monthly Pension. 5.393-5.399 [Reserved] Maximum Annual Pension Rates 5.400 Maximum Annual Pension Rates for Veterans, Surviving Spouses, and Surviving Children. 5.401 Automatic Adjustment of Maximum Annual Pension Rates. 5.402-5.409 [Reserved] Improved Pension Income, Net Worth, and Dependency 5.410 Countable Annual Income. 5.411 Counting a Child's Income for parents' Improved Pension. 5.412 Income exclusions for calculating countable annual income. 5.413 Income deductions for calculating adjusted annual income. 5.414 Net worth determinations for Improved Pension. 5.415 Effective dates for Improved Pension awards based on a change in net worth. 5.416 Persons considered as dependents for Improved Pension. 5.417 Child custody for purposes of determining dependency for Improved Pension purposes. 5.418-5.419 [Reserved] Improved Pension—Income Reporting Periods, Payments, Effective Dates, and Time Limits 5.420 Reporting periods for Improved Pension. 5.421 How VA calculates an Improved Pension payment amount. 5.422 Effective dates for changes to Improved Pension payments due to a change in income. 5.423 Improved Pension determinations when anticipated annual income is uncertain. 5.424 Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income. 5.425 Frequency of payment of Improved Pension benefits. 5.426-5.429 [Reserved] Improved Death Pension Marriage Date Requirements and Effective Dates 5.430 Marriage date requirements for Improved Death Pension. 5.431 Effective dates for Improved Death Pension. 5.432 Deemed valid marriages and contested claims for Improved Death Pension. 5.433 Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the veteran's surviving spouse. 5.434 Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved. 5.435 Calculating annual Improved Pension amounts for surviving children. 5.436-5.459 [Reserved] Eligibility for Improved Pension—Veterans, Surviving Spouses, and Surviving Children § 5.370 Definitions for Improved Pension. For the purposes of §§ 5.370 through 5.459: *Adjusted annual income* means countable annual income minus deductions described in § 5.413, rounded down to the nearest dollar. *Annual Improved Pension amount* means the amount of Improved Pension payable to a beneficiary, calculated as the maximum annual pension rate minus adjusted annual income. *Countable annual income* means payments of any kind from any source that are not specifically excluded under §§ 5.410, 5.411, or 5.412. *Maximum annual pension rate* means the amount of Improved Pension payable to a beneficiary whose adjusted annual income is zero. The maximum annual pension rates are established by law. The various types of maximum annual pension rates are set forth at § 5.400. *Payments* are cash and cash equivalents (such as checks and other negotiable instruments), and the fair market value of personal services, goods, or room and board received in lieu of other forms of payment. *Special Monthly Pension* is a type of Improved Pension with higher maximum annual pension rates than the basic rates listed in § 5.400(a)(1) and (5). Special Monthly Pension is based on a veteran's or surviving spouse's disability or disabilities ratable at 60 percent or more, their housebound status, or their need of the aid and attendance of another person in performing their daily living habits. A *surviving child* is a person who is eligible for Improved Death Pension as the surviving child of a deceased wartime veteran and who is not in the custody of a surviving spouse eligible to receive Improved Death Pension. § 5.371 Eligibility and entitlement requirements for Improved Pension.
(a)*General.* Improved Pension is a benefit payable to certain veterans or to a veteran's surviving spouse or surviving child. Improved Pension is paid monthly or as provided in § 5.425. In order for Improved Pension benefits to be paid, beneficiaries must be both eligible and entitled.
(b)*Eligibility requirements for Improved Disability Pension.* Veterans are eligible for Improved Disability Pension if they—
(1)Have wartime service under § 5.372 and are either
(2)Age 65 or older; or
(3)Permanently and totally disabled under § 5.381.
(c)*Eligibility requirements for Improved Death Pension.*
(1)A surviving spouse is eligible for Improved Death Pension if the deceased veteran had wartime service under § 5.372.
(2)A surviving child is eligible for Improved Death Pension if the deceased veteran had wartime service under § 5.372.
(3)A surviving spouse or surviving child may be eligible for Improved Death Pension regardless of whether the veteran's death is service-connected.
(d)*Entitlement requirements for Improved Disability or Death Pension.* In addition to the eligibility requirements of paragraphs
(b)and
(c)of this section, a claimant or beneficiary must meet income and net worth requirements to be entitled or to continue to be entitled to Improved Pension.
(1)*Income.* VA determines a claimant's or beneficiary's annual Improved Pension amount by subtracting adjusted annual income from the maximum annual pension rate. A claimant is not entitled to benefits if his or her adjusted annual income is greater than the maximum annual pension rate. *See* § 5.400, “Maximum annual pension rates for veterans, surviving spouses and surviving children.” *See also* § 5.370 for the definitions of “adjusted annual income,” “annual Improved Pension amount,” and “maximum annual pension rate.”
(2)*Net worth.* A claimant's or beneficiary's net worth must not bar payment of Improved Pension, as provided in § 5.414. (Authority: 38 U.S.C. 1513, 1521, 1522, 1541, 1542, 5303A) § 5.372 Wartime service requirements for Improved Pension.
(a)*Wartime periods for Improved Pension.* The periods of war for Improved Pension purposes are those specified in § 5.20.
(b)*Wartime service requirement for Improved Disability Pension.* A veteran has “wartime service” for Improved Disability Pension purposes if he or she served in the active military service for one or more of the following:
(1)A period of 90 consecutive days or more, at least 1 day of which was during a period of war.
(2)Ninety days or more during a period of war. Separate periods of service within the same period of war can be added together to meet the 90-day requirement.
(3)A total of 90 days or more in 2 or more separate periods of service during more than 1 period of war.
(4)Any period of time during a period of war if the veteran was:
(i)Discharged or released for a disability that was determined to be service-connected without presumptive provisions of law; or
(ii)Official service records show that the veteran had such a service-connected disability at the time of discharge that in medical judgment would have justified a discharge for disability.
(c)*Wartime service requirement for Improved Death Pension.* For Improved Death Pension claims, the veteran met the wartime service requirement if either of the following is true:
(1)The veteran had wartime service as specified in paragraph
(b)of this section; or
(2)The veteran was, at the time of his or her death, receiving or entitled to receive disability compensation or military retired pay for a service-connected disability based on service during a period of war. (Authority: 38 U.S.C. 1521(j), 1541(a), 1542) § 5.373 Evidence of age in Improved Pension claims. Where the age of a veteran or surviving spouse is material to the decision of an Improved Pension claim, VA will accept as true the veteran's or surviving spouse's statement of age where it is consistent with all other statements of age in the record. If the record contains inconsistent statements of age, VA will use the youngest age of record unless the veteran or surviving spouse can submit documentation of an older age in one of the ways outlined in § 5.229 of this chapter. (Authority: 38 U.S.C. 501(a)) §§ 5.374-5.379 [Reserved] Improved Disability Pension—Disability Determinants and Effective Dates § 5.380 Disability requirements and presumptions for Improved Disability Pension.
(a)*Veteran must be permanently and totally disabled unless age 65 or older.* Unless a veteran has attained age 65, he or she must meet disability requirements in order to be eligible for Improved Disability Pension. The disability requirements are found in paragraph
(b)of this section and in § 5.381, “Permanent and total disability ratings for Improved Disability Pension purposes.”
(b)*Presumption of permanent and total disability for certain veterans.* A veteran is presumed permanently and totally disabled for Improved Disability Pension purposes if the veteran is:
(1)A patient in a nursing home for long-term care because of disability; or
(2)Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner. (Authority: 38 U.S.C. 1502(a), 1513) § 5.381 Permanent and total disability ratings for Improved Disability Pension purposes.
(a)*General.* Permanent total disability ratings for Improved Disability Pension purposes are authorized for a disability or a combination of disabilities that are not the result of the veteran's own willful misconduct whether or not they are service connected. (Authority: 38 U.S.C. 1502(a), 1521(a))
(b)*Criteria.* In addition to the criteria for determining total disability and permanency of total disability contained in § 3.340 of this chapter, the following special considerations apply in Improved Disability Pension cases:
(1)Permanent total disability pension ratings will be authorized for congenital, developmental, hereditary or familial conditions, provided the other requirements for entitlement are met.
(2)The permanence of total disability will be established as of the earliest date consistent with the evidence in the case. Active pulmonary tuberculosis not otherwise established as permanently and totally disabling will be presumed so after 6 months' hospitalization without improvement. The same principle may be applied with other types of disabilities requiring hospitalization for indefinite periods. The need for hospitalization for periods shorter or longer than 6 months may be a proper basis for determining permanence. Where, in application of this principle, it is necessary to employ a waiting period to determine permanence of totality of disability and a report received at the end of such period shows the veteran's condition is unimproved, permanence may be established as of the date of entrance into the hospital. Similarly, when active pulmonary tuberculosis is improved after 6 months' hospitalization but still diagnosed as active after 12 months' hospitalization, permanence will also be established as of the date of entrance into the hospital. In other cases the rating will be effective the date the evidence establishes permanence.
(3)Special consideration must be given the question of permanence in the case of veterans under 40 years of age. For such veterans, permanence of total disability requires a finding that the end result of treatment and adjustment to residual handicaps (rehabilitation) will be permanent disability of the required degree precluding more than marginal employment. Severe diseases and injuries, including multiple fractures or the amputation of a single extremity, should not be taken to establish permanent and total disability until it is shown that the veteran, after treatment and convalescence, has been unable to secure or follow employment because of the disability and through no fault of the veteran.
(4)The following will not be presumed as evidence of employability:
(i)Employment as a member-employer or similar employment obtained only in competition with disabled persons.
(ii)Participation in, or the receipt of a distribution of funds as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718. (Authority: 38 U.S.C. 1718(g))
(5)The authority granted the Secretary under 38 U.S.C. 1502(a)(4) to classify as permanent and total those diseases and disorders, the nature and extent of which, in the Secretary's judgment, will justify such determination, will be exercised under § 3.321(b). § 5.382 Improved Disability Pension—combining disability ratings.
(a)*Nonservice-connected disabilities.* VA will combine the disability ratings assigned to multiple nonservice-connected disabilities in the manner prescribed by 38 CFR part 4.
(b)*Nonservice-connected and service-connected disabilities.* In order to determine whether a veteran is permanently and totally disabled for Improved Pension purposes, VA will combine the disability ratings assigned to one or more nonservice-connected disabilities in the manner prescribed by 38 CFR part 4, with the disability ratings assigned to one or more service-connected disabilities. (Authority: 38 U.S.C. 1523(a)) § 5.383 Effective dates for awards of Improved Disability Pension.
(a)*General Effective Date Provisions.*
(1)Except as provided in paragraph
(b)of this section, the effective date of an award of Improved Disability Pension will be the later of either:
(i)The date of receipt of claim; or
(ii)The date the veteran became eligible (by attaining age 65 or by becoming permanently and totally disabled) and entitled (by meeting the income and net worth requirements).
(2)If pension was previously claimed but was denied because the veteran's adjusted annual income was greater than the maximum annual pension rate, the claim is subject to § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income.”
(b)*Retroactive award.* If all of the following criteria apply, the effective date of an award of Improved Disability Pension will be the date the veteran became permanently and totally disabled or the date of receipt of the pension claim, whichever is to the veteran's advantage:
(1)The veteran specifically requests a retroactive award;
(2)VA receives the claim for a retroactive award not more than one year after the date the veteran became permanently and totally disabled; and
(3)The veteran was unable to submit a claim for at least the first 30 days after the date that the veteran became permanently and totally disabled because of incapacitating disability. An incapacitating disability is a physical or mental disability that prevents a veteran from filing a claim for pension. A disability resulting from the veteran's willful misconduct does not qualify as incapacitating. An incapacitating disability may be a disability other than that which made the veteran permanently and totally disabled. A disability need not require extensive hospitalization to qualify, but a disability that does require extensive hospitalization will be presumed to be incapacitating. (Authority: 38 U.S.C. 5110(a) and (b)(3)) §§ 5.384-5.389 [Reserved] Special Monthly Pension Eligibility for Veterans and Surviving Spouses § 5.390 Special monthly pension for veterans and surviving spouses at the aid and attendance rate.
(a)*Eligibility.* Special monthly pension based on the aid and attendance rate applies to a veteran or surviving spouse who is eligible for Improved Pension under §§ 5.371 and 5.372, and who is so significantly disabled as to need the regular aid and attendance of another person.
(b)*Eligibility criteria.* VA considers a claimant or beneficiary to be in need of aid and attendance if the claimant or beneficiary:
(1)Has 5/200 visual acuity or less in both eyes with corrective lenses; or
(2)Has concentric contraction of the visual field to 5 degrees or less in both eyes; or
(3)Is a patient in a nursing home because of mental or physical incapacity; or
(4)Establishes a factual need for aid and attendance as set forth in § 3.352, Criteria for determining need for aid and attendance and “permanently bedridden.” (Authority: 38 U.S.C. 1502(b), 1521(d) and 1541(d)) § 5.391 Special monthly pension for veterans and surviving spouses at the housebound rate. A veteran or surviving spouse is eligible for special monthly pension based on the housebound rate if he or she is eligible for Improved Pension under §§ 5.371 and 5.372, does not need regular aid and attendance, and meets the criteria of paragraph (a), (b), or
(c)of this section.
(a)*Eligibility criteria for veterans with permanent and total disability.* The veteran has a single, permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities in part 4 of this chapter (determinations of unemployability under § 4.17 of this chapter do not qualify), and either:
(1)Has an additional disability or disabilities independently ratable at 60 percent or more under VA's Schedule for Rating Disabilities. The additional disability or disabilities must be separate and distinct from the disability rated 100 percent disabling and must involve different anatomical segments or bodily systems than the disability rated 100 percent disabling; or
(2)Is “permanently housebound” by reason of disability or disabilities. “Permanently housebound” means that the veteran is substantially confined to his or her residence and its immediate premises. If the veteran is institutionalized, “permanently housebound” means he or she is substantially confined to the ward or clinical area of the institution. It must be reasonably certain that the veteran's disability or disabilities and resulting confinement will continue throughout the veteran's lifetime.
(b)*Eligibility criteria for veterans who are 65 years of age or older.*
(1)*General.* The veteran is 65 years of age or older, and either:
(i)Has a disability or disabilities ratable at 60 percent or more under VA's Schedule for Rating Disabilities in part 4 of this Chapter; or
(ii)By reason of disability or disabilities, is “permanently housebound” as defined in paragraph (a)(2) of this section;
(2)*Special rule for veterans who are 65 years of age or older and have permanent and total disability.* If the veteran is 65 years of age or older and also has permanent and total disability, the veteran must meet the requirements of paragraph
(a)of this section in order to receive special monthly pension.
(c)*Eligibility criteria for surviving spouses.* The surviving spouse is permanently housebound because of a disability or disabilities. The meaning of “permanently housebound” for surviving spouses is the same as its meaning for veterans in paragraph (a)(2) of this section. (Authority: 38 U.S.C. 1502(c), 1521(e), 1541(e)) § 5.392 Effective dates for awards of special monthly pension.
(a)*General.* The effective date for an award of special monthly pension will be either the date VA received the claim for special monthly pension or the date entitlement arose, whichever date is later.
(b)*Exception—when an award of Improved Pension is effective retroactively.* Paragraph
(b)of this section applies when an award of Improved Pension is effective retroactively, and entitlement to special monthly pension is established for all or part of the retroactive period. (Retroactively means that the award is effective prior to the date of receipt of the claim.) In such cases, the effective date of an award of special monthly pension will be the later of the effective date of the Improved Pension award or the date entitlement to special monthly pension arose. (Authority: 38 U.S.C. 5110) §§ 5.393-5.399 [Reserved] Maximum Annual Pension Rates § 5.400 Maximum annual pension rates for veterans, surviving spouses, and surviving children.
(a)*Maximum annual pension rates.* The maximum annual rates of Improved Pension for the following categories of beneficiaries shall be the amounts specified in 38 U.S.C. 1521, 1541, and 1542, as increased from time to time under 38 U.S.C. 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rates will be published in the “Notices” section of the **Federal Register** .
(1)Veterans who are permanently and totally disabled or age 65 or older. (Authority: 38 U.S.C. 1521(b) or (c))
(2)Veterans who are housebound. (Authority: 38 U.S.C. 1521(e))
(3)Veterans who are in need of aid and attendance. (Authority: 38 U.S.C. 1521(d))
(4)Two veterans who are married to one another; combined rates. (Authority: 38 U.S.C. 1521(f))
(5)Surviving spouse who is alone or who is with a child or children of the deceased veteran in custody of the surviving spouse. (Authority: 38 U.S.C. 1541(b) or (c))
(6)Surviving spouses who are housebound. (Authority: 38 U.S.C. 1541(e))
(7)Surviving spouses who are in need of aid and attendance. (Authority: 38 U.S.C. 1541(d))
(8)Surviving child or children of a deceased veteran, when the child or children have no personal custodian or are in the custody of an institution. (Authority: 38 U.S.C. 1542)
(b)*World War I veterans.* The applicable maximum annual pension rate payable to a World War I veteran under this section shall be increased by the amount specified in 38 U.S.C. 1521(g), as increased from time to time under 38 U.S.C. 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rate will be published in the “Notices” section of the **Federal Register** .
(c)*Dependents.* The maximum annual pension rates will increase if the veteran has a spouse or one or more dependent children. The maximum annual pension rates will increase if a surviving spouse has custody of the deceased veteran's surviving children. The applicable maximum annual pension rate payable under this section shall be increased by the amount specified in 38 U.S.C. 1521 and 1541, as increased from time to time under 38 U.S.C. 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rates will be published in the “Notices” section of the **Federal Register** . (Authority: 38 U.S.C. 1521, 1541, 1542) § 5.401 Automatic adjustment of maximum annual pension rates.
(a)*Pension rates increase when Social Security benefits increase.* VA will increase each maximum annual pension rate whenever there is a cost-of-living increase in Social Security benefit amounts under title II of the Social Security Act (42 U.S.C. 415(i)), which pertains to the Federal Old-Age, Survivors, and Disability Insurance Benefits program. VA will increase the maximum annual pension rates by the same percentage as the Social Security increase, and the increase will be effective on the same date as the Social Security increase.
(b)*New rates are published in the* **Federal Register** . Whenever the maximum annual pension rates increase, VA will publish the new rates in the “Notices” section of the **Federal Register** . (Authority: 38 U.S.C. 5312(a)) §§ 5.402-5.409 [Reserved] Improved Pension Income, Net Worth, and Dependency § 5.410 Countable annual income.
(a)*Time of receipt of income.*
(1)For Improved Disability Pension claims, VA does not include income received before the effective date of the beneficiary's award.
(2)For Improved Death Pension claims, VA does not include income received before the date of the veteran's death or income received before the effective date of the award.
(b)*Whose income is countable?* —(1) *Improved Disability Pension for veterans.* The income of a veteran includes the veteran's income and that of the veteran's dependent spouse, regardless of whether the spouse's income is available to the veteran. It also includes the income of each dependent child (as defined in § 5.416(b)), subject to § 5.411, “Counting a child's income for Improved Pension.”
(2)*Improved Death Pension for surviving spouses.* The income of a surviving spouse includes the surviving spouse's income and the income of each dependent child of the deceased veteran in the surviving spouse's custody, subject to § 5.411, “Counting a child's income for Improved Pension.”
(3)*Improved Death Pension for surviving children.* The income of a surviving child includes the income of that child's custodial parent and the income of other surviving children as described in § 5.435, “Calculating annual Improved Pension amounts for surviving children.”
(c)*Categories and counting of income.* If there is more than one way to categorize income, it will be categorized in the way that is most to the claimant's or beneficiary's advantage. Payments of any kind from any source will be counted as income during the reporting period in which it was received unless specifically excluded under this section, § 5.411, or § 5.412. *See* § 5.420, “Reporting periods for Improved Pension.”
(1)*Recurring income.* Recurring income is income a claimant or beneficiary receives or expects to receive in equal amounts and at regular intervals ( *e.g.* , weekly, monthly, quarterly, etc.). There are two categories of recurring income as follows:
(i)*Long-term.* Long-term recurring income continues for an entire reporting period. VA will count such income during the reporting period in which it was received. If the initial payment was received after the beginning of the reporting period, VA will count such income for 12 months from the first of the month after the initial payment was received. Thereafter, VA will count such income during the reporting period in which it is received.
(ii)*Short-term.* Short-term recurring income stops before it has been received for at least one full reporting period. VA will count such income for 12 months from the first of the month after the initial payment was received.
(2)*Nonrecurring income.* Nonrecurring income is income that a claimant or beneficiary receives or expects to receive on a one-time basis ( *e.g.* , an inheritance). VA will count such income for 12 months from the first of the month after it was received.
(3)*Irregular income.* Irregular income is income that a claimant or beneficiary receives or expects to receive in unequal amounts or at different intervals during a reporting period. VA will count the first installment of irregular income for 12 months from the first of the month after it was received. Thereafter, VA will count irregular income for 12 months from the beginning of the reporting period in which it is received.
(d)*Waived income.* If a person waives income that cannot be excluded under § 5.412, VA must count the waived income. However, if the person withdraws a claim for Social Security benefits in order to maintain eligibility for unreduced Social Security benefits upon reaching a particular age, VA will not regard this potential income as having been waived and will therefore not count it.
(e)*Salary.* Income from a salary is not determined by “take home” pay. VA counts as income the gross salary (earnings or wages) without any deductions. However, an employer's contributions to health and hospitalization plans are not included in gross salary.
(f)*Income-producing property.* Income from real or personal property counts as income of the property's owner. This includes property acquired through purchase, gift, or inheritance.
(1)*Proof of ownership.* VA will consider the terms of the recorded deed or other evidence of title as proof of ownership.
(2)*Income from jointly-owned property.* Where a person owns property jointly with others, including partnership property, VA will only count that portion of income produced by the property that represents the person's share of the ownership of the property. Note: If a beneficiary's income includes that of his or her spouse, and both the beneficiary and spouse are co-owners of a property that produces income, then income representing both co-owned shares is included as income to the beneficiary.
(3)*Transfer of ownership with retention of income.* If a person transfers ownership of property to another person or legal entity, but retains the right to income, the income will be counted. (Authority: 38 U.S.C. 1503, 1521, 1541) § 5.411 Counting a child's income for parents' Improved Pension.
(a)*When to include a child's income in the veteran's or surviving spouse's countable annual income.* Subject to paragraphs (a)(1) and (a)(2) of this section, for each child of the veteran who is in the veteran's or surviving spouse's custody, VA counts that portion of the child's annual income that is reasonably available to the veteran or surviving spouse. There is a rebuttable presumption that all of such a child's annual income is reasonably available to the veteran or surviving spouse.
(1)*Inclusion of a child's income when it is reasonably available to the veteran or surviving spouse.* VA considers a child's annual income reasonably available to the veteran or surviving spouse when it can readily be applied to meet the veteran's or surviving spouse's expenses necessary for reasonable family maintenance, as defined in paragraph
(b)of this section.
(2)*Exclusion of a child's income when counting it would create a hardship.* If a veteran or surviving spouse specifically claims that counting a child's income would result in hardship, VA will exclude all or part of a child's available income if VA determines that counting it would create a hardship for the veteran or the surviving spouse. The effective date for the hardship exclusion is determined by § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income.” VA takes the following steps in calculating the amount of the hardship exclusion:
(i)*Adjusted annual income determined.* VA first determines the veteran's or surviving spouse's adjusted annual income without considering hardship.
(ii)*Annual Improved Pension amount determined.* VA then determines the veteran's or surviving spouse's annual Improved Pension amount without considering hardship.
(iii)*Annual expenses necessary for reasonable family maintenance calculated.* VA then calculates the claimant's annual expenses necessary for reasonable family maintenance, as defined in paragraph
(b)of this section. However, VA cannot include expenses already deducted in determining adjusted annual income.
(iv)*Amount of hardship exclusion.* The expense amount greater than adjusted annual income plus the annual Improved Pension amount is the amount of the hardship exclusion. However, the amount of the hardship exclusion shall not exceed the available income of any child or children.
(b)*Expenses necessary for reasonable family maintenance.* For the purposes of this section, “expenses necessary for reasonable family maintenance” are expenses for basic necessities. Examples include food, clothing, healthcare, and shelter. VA may include other expenses that are necessary to support a reasonable quality of life, as determined on a case-by-case basis.
(c)*Child's earned income.* This paragraph
(c)applies whether the child is a dependent child or a surviving child. A child's earned income, which is current work income received during the year, is countable for VA purposes. VA will deduct from such earned income the amounts described in paragraphs (c)(1) and (c)(2) of this section.
(1)VA will deduct from a child's earned income the lowest amount of gross income for which an unmarried person must file a Federal Income Tax return if the person is not a surviving spouse or a head of household. For the law regarding this amount, *see* 26 U.S.C. 6012. For the definitions of the terms “unmarried person,” “surviving spouse,” and “head of household” for purposes of this paragraph (c), *see* 26 U.S.C. 2(a) and (b), 7703. *See also http://www.irs.gov.*
(2)VA will deduct from a child's earned income the amount the child pays for educational expenses if the child is pursuing post-secondary education or vocational rehabilitation. This includes tuition, fees, books, and materials. (Authority: 38 U.S.C. 1503(a)(10), 1521, 1541) § 5.412 Income exclusions for calculating countable annual income. VA will not count income from the following sources when calculating countable income for Improved Pension:
(a)*Donations received.* Donations received from public or private relief or welfare organizations. Examples include the following:
(1)The value of maintenance furnished by a relative, friend, or a civic or governmental charitable organization, including money paid to an institution for care due to a person's impaired health or advanced age. However, if the maintenance is excluded as income under this provision, VA cannot deduct it as an unreimbursed medical expense under § 5.413.
(2)Benefits received under means-tested programs, for example, Supplementary Security Income payments.
(3)Payments from the VA Special Therapeutic and Rehabilitation Activities Fund for participating in VA-approved therapy or rehabilitation under 38 U.S.C. 1718, or in a program of rehabilitation which is conducted by a VA-approved State home and which conforms to the requirements of 38 U.S.C. 1718. (Authority: 38 U.S.C. 1503(a)(1), 1718(f)(3))
(b)*Certain VA benefit payments.* The following VA benefit payments:
(1)VA nonservice-connected disability or death pension payments, including accrued benefits.
(2)The veteran's month-of-death rate paid to a surviving spouse under § 3.20(c) of this chapter.
(3)VA benefits listed in [regulation that will be published in a future Notice of Proposed Rulemaking]. (Authority: 38 U.S.C. 1503(a)(2), 5310(b))
(c)*Casualty loss reimbursement.* Reimbursements of any kind for any casualty loss, but only up to the greater of the fair market value or the reasonable replacement value of the property involved immediately preceding the loss. For purposes of this section, a “casualty loss” is the complete or partial destruction of property resulting from an identifiable event of a sudden, unexpected or unusual nature. (Authority: 38 U.S.C. 1503(a)(5))
(d)*Profit from sale of non-business property.* Profit realized from the disposition of real or personal property other than in the course of a business. However, any amounts received in excess of the sales price, such as interest payments on deferred sales, will be counted as income. If payments are received in installments, the installments received will not begin to count as income until the total of installments received is equal to the sales price. (Authority: 38 U.S.C. 1503(a)(6))
(e)*Joint accounts.* Amounts in joint accounts in banks or similar institutions acquired because of the death of the other joint owner. (Authority: 38 U.S.C. 1503(a)(7))
(f)*Survivor benefit annuity.* Payments made by the Department of Defense to qualified surviving spouses of veterans who died before November 1, 1953. (This does not include Survivor Benefit Plan
(SBP)annuity payments or SBP Minimum Income Widow(er)'s Annuity Plan payments, which count as income.) (Authority: 10 U.S.C. 1448 note; Section 653(d), Pub. L. 100-456, 102 Stat 1991)
(g)*Radiation Exposure Compensation Act payments.* Payments made under section 6 of the Radiation Exposure Compensation Act of 1990. (Authority: 42 U.S.C. 2210 (note))
(h)*Ricky Ray Hemophilia Relief Fund payments.* Payments made under section 103(c) and excluded under 103(h)(2) of the Ricky Ray Hemophilia Relief Fund Act of 1998. (Authority: 42 U.S.C. 300c-22 (note))
(i)*Energy Employees Occupational Illness Compensation Program payments.* Payments made under the Energy Employees Occupational Illness Compensation Program. (Authority: 42 U.S.C. 7385e(2))
(j)*Payments to Aleuts.* Payments made to certain Japanese-Americans or Aleuts under 50 U.S.C. Appx. 1989b-4 or 1989c-5. (Authority: 50 U.S.C. Appx. 1989b-4(f)(2), 1989c-5(d)(2))
(k)*Other amounts.* The following are excluded because VA does not consider them as “payments”:
(1)Dividends on commercial insurance policies and cash surrender of life insurance to the extent that they represent return of premiums. However, interest earned is considered a payment.
(2)Income Tax refunds.
(3)Interest on Individual Retirement Accounts that cannot be withdrawn without incurring a penalty.
(4)Interest on prepaid burial plans that is added to the value of the policy and is not available to the policy holder.
(5)Royalties received for extracting minerals.
(6)School scholarships and grants earmarked for specific educational purposes to the extent they are used for those purposes.
(7)Benefits payable but withheld, such as Social Security withheld to recoup an overpayment. This does not apply to VA benefits withheld to recoup an overpayment.
(8)Amounts listed in [regulation that will be published in a future Notice of Proposed Rulemaking]. (Authority: 38 U.S.C. 1503) § 5.413 Income deductions for calculating adjusted annual income.
(a)*General rule for allowing deductions.* Except as otherwise provided in paragraph (c)(2)(iv) of this section, VA will only allow deductible expenses for the initial reporting period or annual reporting period during which the expense was paid, regardless of when the expense was incurred. VA will only allow deductible losses for the initial reporting period or annual reporting period during which the loss was sustained. For the definitions of initial reporting period and annual reporting period, *see* § 5.420, “Reporting periods for Improved Pension.”
(b)*Unreimbursed medical expenses.* Within the provisions of the following paragraphs, there will be deducted from the amount of an individual's countable annual income any unreimbursed amounts for medical expenses which have been paid within the reporting period regardless of when the indebtedness was incurred. For the purpose of authorizing prospective payment of benefits, VA may accept a claimant's or beneficiary's estimate of future medical expenses based on a clear and reasonable expectation that they will continue, subject to necessary adjustment upon receipt of an amended estimate or upon receipt of a medical expense report. A change in medical expenses is a change in income. *See* § 3.660(a) of this chapter (concerning the beneficiary's responsibility to inform VA concerning income changes).
(1)*What amount of unreimbursed medical expenses will VA deduct?* VA will deduct from countable annual income any unreimbursed (out of pocket) medical expenses (excluding “final expenses” as defined in paragraph
(c)of this section) that exceed 5 percent of the beneficiary's maximum annual pension rate. The maximum annual pension rate that VA uses for this calculation includes the maximum annual pension rates for established dependents. It does not include the maximum annual pension rates based on aid and attendance or housebound eligibility. VA will use the maximum annual pension rate that is in effect for the period(s) during which VA deducts the expenses.
(2)*Whose medical expenses will VA deduct?* —(i) *Improved Disability Pension—veteran or veteran's spouse.* Amounts paid by the veteran or the veteran's spouse for the unreimbursed medical expenses of the veteran, the veteran's spouse, and those members or constructive members of the veteran's or spouse's household, including children, parents, or other relatives, for whom there is a moral or legal obligation of support.
(ii)*Improved Death Pension—surviving spouse.* Amounts paid by the surviving spouse for the surviving spouse's own unreimbursed medical expenses and those of members or constructive members of the surviving spouse's household, including children, parents, or other relatives, for whom there is a moral or legal obligation of support.
(iii)*Improved Death Pension—surviving child.* Amounts paid by a surviving child for the surviving child's own unreimbursed medical expenses and those of parents, brothers, or sisters are deductible. (Authority: 38 U.S.C. 1503(a)(8))
(c)*Final expenses* —(1) *Definitions.*
(i)*Final expenses,* for the purposes of this section, are expenses paid by an Improved Pension beneficiary for a veteran's, spouse's, or child's last illness and burial. In Improved Death Pension cases, final expenses also include a veteran's just debts.
(ii)*Last illness.* For purposes of this section, “last illness” means the medical condition that was the primary or secondary cause of a person's death as indicated on the person's death certificate.
(iii)*Veteran's just debts.* A veteran's just debts are those debts that the veteran incurred or those debts that the veteran and spouse incurred jointly during the veteran's life. The term just debts does not include any debt that is secured by real or personal property.
(2)*Final expenses that VA will deduct from countable annual income* —(i) *Veteran awards.* VA will deduct amounts paid by a veteran for the last illness and burial of the veteran's spouse or child, and amounts paid by a veteran's spouse for the last illness and burial of the veteran's child.
(ii)*Surviving child awards.* VA will deduct amounts paid by a surviving child for the veteran's final expenses and just debts.
(iii)*Surviving spouse awards.* VA will deduct amounts paid by a surviving spouse for the final expenses of the veteran or the veteran's child, and the just debts of the veteran.
(iv)*Surviving spouse's prior payments of veteran's last illness expenses.* VA will deduct during the surviving spouse's initial reporting period amounts paid by the surviving spouse before the veteran's death for the veteran's last illness when:
(A)The surviving spouse made the payments no more than one year before the veteran died; and
(B)VA received the surviving spouse's Improved Death Pension claim no later than one year after the veteran's death.
(3)*Final expenses that VA will not deduct from countable annual income.* VA will not deduct final expenses from a beneficiary's countable annual income if:
(i)The expenses are reimbursed under 38 U.S.C. chapter 23 ( *see* subpart J of this part concerning VA burial benefits) or 38 U.S.C. chapter 51 ( *see* § 5.551(e) concerning the use of accrued benefits to reimburse expenses of last illness or burial); or
(ii)The expenses are deducted as unreimbursed medical expenses under paragraph
(b)of this section. Authority: 38 U.S.C. 1503(a)(3), (4))
(d)*Educational expenses.* VA will deduct educational expenses from a veteran's or surviving spouse's countable annual income. For purposes of this educational expense deduction, educational expenses include payments a veteran or surviving spouse makes for his or her own course of education, vocational rehabilitation, or training. It includes tuition, fees, books, and materials. If the veteran or surviving spouse is in need of aid and attendance, it also includes unreimbursed unusual transportation expenses associated with the pursuit of the course of education, vocational rehabilitation, or training. VA considers transportation expenses “unusual” if they are greater than the amount a person without a disability would reasonably spend on an appropriate means of transportation (public transportation, if reasonably available). Scholarships and grants are not considered income for VA purposes when used specifically for educational expenses, thus these two items are not deductible for educational expenses. *See also* § 5.411(c)(2) (deducting a child's educational expenses from his or her earned income). (Authority: 38 U.S.C. 1503(a)(9))
(e)*Gambling income and losses.* VA will deduct from gambling gross winnings any gambling losses to arrive at net gambling income. Only net gambling income is countable. (Authority: 38 U.S.C. 501)
(f)*Expenses and awards or settlements for death or disability.* VA will deduct from income received based on an award or settlement for death or disability any medical, legal, or other expenses that are incident to such death or disability or are incident to the collection or recovery of such an award or settlement. However, medical expenses cannot be deducted under this paragraph
(f)if they are paid after the date that the award or settlement payment was received. Medical expenses paid after that date may be deducted under paragraph
(b)of this section as unreimbursed medical expenses. VA will not deduct the same medical expenses under paragraph
(b)of this section that it deducts under this paragraph (f). For purposes of this paragraph (f), the award or settlement may be from any of the following sources:
(1)Commercial insurance (disability, accident, life, or health).
(2)The Office of Workers' Compensation Programs of the U.S. Department of Labor.
(3)The Social Security Administration.
(4)The Railroad Retirement Board.
(5)Any worker's compensation or employer's liability statute.
(6)Legal damages collected for personal injury or death. (Authority: 38 U.S.C. 501)
(g)*Business, farm, or profession* —(1) *Necessary operating expenses.* VA will deduct from income from a business, farm, or profession necessary operating expenses such as the cost of goods sold and payments for rent, taxes, upkeep, repairs and replacements. The value of an increase in stock inventory of a business is not income.
(2)*Depreciation.* Depreciation of a farm, business, or profession is not deductible from income produced by that farm, business, or profession.
(3)*Business and investment losses.* Losses sustained in operating a business, farm, profession, or from transactions involving investment property, may be deducted only from income derived from the source that sustained the loss. (Authority: 38 U.S.C. 501) § 5.414 Net worth determinations for Improved Pension.
(a)*Definition of net worth.* For Improved Pension purposes, “net worth” means the market value of the claimant's or beneficiary's real and personal property, minus mortgages or other encumbrances. VA excludes the claimant's or beneficiary's residence (single-family unit), which also includes a reasonable lot area. VA also excludes the value of personal effects suitable to and consistent with the claimant's or beneficiary's reasonable mode of life, such as appliances and family transportation vehicles.
(1)*Personal residence.* Because the value of a residence is not considered, VA will not consider mortgages on that property as a deduction under paragraph
(a)of this section.
(2)*Reasonable lot area.* VA will evaluate a “reasonable lot area” by considering the size of other residential lots in the vicinity. If the claimant or beneficiary lives on a farm, VA will exclude the value of a reasonable lot area, including the residence area, and consider the rest of the farm as part of net worth.
(3)*Proof of ownership.* VA will consider the terms of the recorded deed or other evidence of title to be proof of ownership.
(4)*Asset transfers.*
(i)If a claimant or beneficiary gives property to a relative living in the same household, VA will include the value of the property as part of the claimant's or beneficiary's net worth. This also applies if the claimant or beneficiary sells the property to a relative in the same household at such a low price that it amounts to a gift.
(ii)If a claimant or beneficiary gives property to someone other than a relative living in the same household, VA will include the value of the property as net worth unless it is clear that the one who gave the property has given up all rights of ownership, including the right to control the property.
(b)*How net worth affects veteran and surviving spouse Improved Pension awards.*
(1)A veteran's net worth includes the net worth of the veteran and the net worth of the veteran's spouse. A surviving spouse's net worth includes that of the surviving spouse only.
(2)VA must deny or discontinue Improved Pension if VA determines it is reasonable to expect that some part of the net worth should be used for the claimant's or beneficiary's living expenses. VA must consider the veteran's or surviving spouse's adjusted annual income when determining whether net worth is a bar to Improved Pension under paragraph
(d)of this section.
(c)*How a child's net worth affects Improved Pension awards—*
(1)*Child in custody of veteran or surviving spouse.* Increased pension payable to a veteran or surviving spouse on account of a child will be denied or discontinued when the net worth of the child is such that under all circumstances including consideration of the veteran's or surviving spouse's adjusted annual income, it is reasonable that some part of the child's net worth be consumed for the child's maintenance.
(2)*Surviving child.* VA must deny or discontinue Improved Death Pension to a surviving child if VA determines that some part of the child's net worth should be used for the child's living expenses.
(i)*Surviving child not in custody or in custody of an institution.* If a surviving child has no personal custodian or is in the legal custody of an institution, VA will consider only the child's net worth and adjusted annual income when determining whether net worth is a bar to Improved Death Pension under paragraph
(d)of this section.
(ii)*Surviving child in custody of a person legally responsible for the child's support.* If the child is living with a person who is legally responsible for the child's support, the child's net worth includes that person's net worth. If the child is in joint custody as provided in § 5.417(e), the child's net worth also includes the stepparent's net worth. VA must consider the adjusted annual income of the child as provided in § 5.435(b) when determining whether net worth is a bar to Improved Death Pension under paragraph
(d)of this section.
(3)*Child educational exclusion.* When calculating the amount of a child's net worth, VA will exclude reasonable amounts for actual or estimated future educational or vocational expenses. VA will exclude only the amount needed to cover the child's education or vocational expenses until he or she reaches age 23.
(d)*Determining whether net worth is a bar to Improved Pension.* In determining whether net worth is a bar to Improved Pension, VA will consider the claimant's or beneficiary's adjusted annual income as defined in § 5.370, along with all of the claimant's or beneficiary's living expenses. However, in considering the claimant's or beneficiary's living expenses, VA cannot consider expenses it excluded or deducted in determining adjusted annual income. In addition to considering these income and expense factors, VA will also take the following factors into account:
(1)*Value of liquid assets.* The value of liquid assets (assets that the claimant or beneficiary can readily convert into cash).
(2)*Number of family members.* The number of family members (as defined in § 3.250) who depend on the claimant or beneficiary for support.
(3)*Life expectancy.* The claimant's or beneficiary's average life expectancy and the potential rate of depletion of the claimant's or beneficiary's net worth.
(e)*Statutory exclusions from net worth.* A claimant's or beneficiary's net worth does not include the following resources excluded by statute:
(1)*Radiation Exposure Compensation Act payments.* Payments under Section 6 of the Radiation Exposure Compensation Act of 1990. (Authority: 42 U.S.C. 2210 note)
(2)*Ricky Ray Hemophilia Relief Fund payments.* Payments made under section 103(c) and excluded under 103(h)(2) of the Ricky Ray Hemophilia Relief Fund Act of 1998. (Authority: 42 U.S.C. 300c-22(note))
(3)*Energy Employees Occupational Illness Compensation Program payments.* Payments made under the Energy Employees Occupational Illness Compensation Program. (Authority: 42 U.S.C. 7385e(2))
(4)*Payments to Aleuts.* Payments made to certain Japanese-Americans or Aleuts under 50 U.S.C. Appx. 1989b-4 or 1989c-5. (Authority: 50 U.S.C. Appx. 1989b-4(f)(2) or 1989c-5(d)(2))
(5)*Other payments.* Other payments excluded from net worth listed in [regulation that will be published in a future Notice of Proposed Rulemaking]. (Authority: 38 U.S.C. 1522, 1543) § 5.415 Effective dates for Improved Pension awards based on a change in net worth.
(a)*Effective date for reduction or discontinuance of Improved Pension award when net worth increases.* If an increase in a beneficiary's net worth requires VA to discontinue Improved Pension, VA will discontinue the Improved Pension award effective the first day of the year following the year that net worth increased. If an increase in a child's net worth requires VA to reduce or discontinue Improved Pension under § 5.414(c), VA will reduce the payment amount or discontinue the Improved Pension award effective the first day of the year following the year that net worth increased. (Authority: 38 U.S.C. 5112(b)(4)(B))
(b)*Claims previously denied or awards previously discontinued because of net worth.* When a claim for Improved Pension has been denied or an award of Improved Pension has been reduced or discontinued due to net worth, Improved Pension may be paid if there is a reduction in net worth. If the date net worth ceased to be a bar occurs before the previous denial or discontinuance has become final, the effective date of resumption of pension benefits will be the date that net worth ceased to be a bar. If the date net worth ceased to be a bar occurs after the previous denial or discontinuance has become final, the effective date of resumption of pension benefits will be assigned under § 5.383 (Improved Disability Pension) or § 5.431 (Improved Death Pension). (Authority: 38 U.S.C. 5110(a)) *Cross reference:* Finally adjudicated claims. *See* § 3.160(d). § 5.416 Persons considered as dependents for Improved Pension.
(a)*Criteria for a dependent spouse.* A veteran's spouse is a dependent spouse for Improved Disability Pension purposes if at least one of the following criteria apply:
(1)The veteran lives with the spouse.
(2)The veteran and the spouse live apart but are not estranged.
(3)The veteran and the spouse live apart and are estranged, but the veteran reasonably contributes to the spouse's support. Whether support contributions are reasonable is a factual matter that VA determines.
(b)*Criteria for a dependent child.* Unless paragraph
(c)of this section applies, a child is a dependent child for Improved Pension purposes if at least one of the following criteria apply:
(1)The child is in the veteran's or surviving spouse's custody. The term “custody” for Improved Pension purposes is defined in § 5.417. The child need not be living with the veteran or surviving spouse to be in custody; or
(2)The veteran reasonably contributes to the child's support. Whether support contributions are reasonable is a factual matter that VA determines.
(c)*When a child's net worth bars dependency status.* If a child's net worth is a bar under § 5.414(c)(1), that child is not a dependent child for Improved Pension purposes. (Authority: 38 U.S.C. 1521, 1522(b), 1541, 1543(a)(2)) § 5.417 Child custody for purposes of determining dependency for Improved Pension purposes. This section applies to determinations of eligibility and entitlement to Improved Pension.
(a)*Definition of child custody.* If a veteran, surviving spouse, or person legally responsible for the support of a child has the legal right to exercise parental control and has responsibility for the welfare and care of the child, that person has custody of the child.
(b)*Child custody presumed.* A child of the veteran who is residing with the veteran, with the surviving spouse of the veteran who is the child's natural or adoptive parent, or with the person legally responsible for the child's support, shall be presumed to be in the custody of that individual.
(c)*What if the child does not live with the persons listed in paragraph (b)?* If the child does not live with a person listed in paragraph
(b)of this section, VA still considers the child to be in the custody of that person unless there is a legal determination removing custody.
(d)*Definition of person legally responsible for the child's support.* A person who is legally responsible for a child's support is a person who is under a legal obligation, such as by law or court order, to provide for the child's support. Such person includes a natural or adoptive parent unless child custody has been legally removed from the natural or adoptive parent. Such person may also include the natural or adoptive parent's spouse as provided in paragraph
(e)of this section.
(e)*Joint custody.* If a child's natural or adoptive parent is married, the child is presumed to be in the joint custody of the natural or adoptive parent and stepparent unless:
(1)The child's stepparent and natural or adoptive parent are estranged and living apart; or
(2)Legal custody has been removed from the natural or adoptive parent.
(f)*Custody retained after the age of majority.* A person who has custody of a child before the child's 18th birthday will be presumed to retain custody of the child on and after the child's 18th birthday, unless legal custody is removed. This applies without regard to when a child reaches the age of majority under applicable State law. This also applies without regard to whether the child was eligible for pension prior to age 18, or whether increased pension was payable to a veteran or surviving spouse on behalf of the child prior to the child's 18th birthday.
(g)*Successor custodian after the age of majority.* If a child's custodian dies after the child's 18th birthday, VA will consider the child to be in the custody of a successor custodian if the successor custodian has the legal right to exercise parental control and has responsibility for the welfare and care of the child. If there is no successor custodian, the child may be eligible for benefits in his or her own right. (Authority: 38 U.S.C. 501, 1521, 1541) §§ 5.418-5.419 [Reserved] Improved Pension—Income Reporting Periods, Payments, Effective Dates, and Time Limits § 5.420 Reporting periods for Improved Pension. When calculating adjusted annual income, VA counts income that is anticipated or received during a specific period, called a “reporting period.” There are two types of reporting periods: the initial reporting period and the annual reporting period.
(a)*Initial reporting period* —(1) *General Rule.* Except as provided in paragraphs (a)(2) and (a)(3) of this section, the initial reporting period begins on the latest of the following:
(i)The date VA receives a pension claim; or
(ii)The date VA receives an election under § 5.460 or § 5.461; or
(iii)The date the claimant becomes eligible to receive Improved Pension.
(2)*Retroactive awards.* For Improved Pension claims where an effective date before the date of claim is assigned pursuant to § 5.383(b), the initial reporting period begins on the date the veteran became permanently and totally disabled if that would be to the veteran's advantage. If it would not be to the veteran's advantage, then the initial reporting period begins on the date of the pension claim.
(3)*Improved Death Pension claim received within one year after date of veteran's death.* When VA receives an Improved Death Pension claim within one year after the date of the veteran's death, the initial reporting period begins on the day that the veteran died. This is true even though the effective date under § 3.20 is the first day of the month of death. *See* § 5.431 for effective dates and rule applicability.
(4)*End of period.* The initial reporting period ends one year after the last day of the month in which the period began.
(b)*Annual reporting period.* For Improved Pension purposes, the annual reporting period is each calendar year. The first annual reporting period is the calendar year in which the initial reporting period ends. (Authority: 38 U.S.C. 1506, 1521, 1541, 1542) § 5.421 How VA calculates an Improved Pension payment amount. VA calculates payments of Improved Pension (“Improved Pension payment amounts”) as provided in this section. *See* § 5.370 for the definitions of “adjusted annual income,” “annual Improved Pension amount,” and “maximum annual pension rate,” which are used below.
(a)*How VA calculates a monthly Improved Pension payment amount.* To determine the monthly Improved Pension payment amount, VA divides the annual Improved Pension amount by 12 and rounds down to the nearest whole dollar.
(b)*What if the maximum annual pension rate changes?* When there is a change in a beneficiary's maximum annual pension rate (because of a cost-of-living adjustment or some other reason), VA recalculates the annual Improved Pension amount using the new maximum annual pension rate and the amount of adjusted annual income on the effective date that the maximum annual pension rate changes. VA then determines the new monthly payment amount as specified in paragraph
(a)of this section.
(c)*What if adjusted annual income changes?* If a beneficiary's adjusted annual income increases or decreases, VA recalculates the annual Improved Pension amount using the new adjusted annual income amount. VA then determines the new monthly payment amount as specified in paragraph
(a)of this section. *See* § 5.422, “Effective dates for changes to Improved Pension payments due to a change in income.” (Authority: 38 U.S.C. 1521, 1541, 1542, and 5123) § 5.422 Effective dates for changes to Improved Pension payments due to a change in income.
(a)*Effective dates for changes to payments due to a change in income* —(1) *Income change requires an increased annual Improved Pension amount.* If an income change requires an increased annual Improved Pension amount, the effective date of the increased amount is the date that the income changes, subject to § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income.” VA generally cannot pay an increased amount of Improved Pension based on a change in income until the first day of the month following such an income change. *See* § 3.31 of this chapter (concerning dates for increased payments and exceptions).
(2)*Income change requires a reduced annual Improved Pension amount or discontinuance of Improved Pension.* If an income change requires a reduction of an annual Improved Pension amount or the discontinuance of Improved Pension, the effective date of the reduced amount or discontinuance is the first day of the month following the income change.
(b)*Income and dependents—exceptions to income-counting rules.*
(1)VA will stop counting a dependent's income on the same date it removes the dependent from the Improved Pension award.
(2)If a beneficiary gains a dependent and this results in an increased annual Improved Pension amount, the effective date of the increase will be the date of the addition of the dependent if the required evidence is received within 1 year of the addition. If the required evidence is not received within 1 year, then the effective date will be the date such evidence is received.
(3)If a beneficiary loses a dependent and this results in an increased annual Improved Pension amount, the effective date of the increase will be the date VA receives notice of the loss of the dependent if the required evidence is received within 1 year of the loss. If the required evidence is not received within 1 year, then the effective date will be the date such evidence is received. (Authority: 38 U.S.C. 501, 5110, 5112) *Cross reference: See also* § 5.177(g) of this chapter (concerning reducing or discontinuing pension payments because of a change in disability or employability status). § 5.423 Improved Pension determinations when anticipated annual income is uncertain.
(a)*Uncertain anticipated annual income.* If a claimant or beneficiary is uncertain about the amount of his or her anticipated annual income or if there is evidence indicating more anticipated annual income than the amount the claimant or beneficiary reports, VA will do all of the following:
(1)Count the greatest amount of anticipated annual income the claimant or beneficiary estimates or that is indicated by the evidence. If that amount is greater than the maximum annual pension rate, Improved Pension will not be paid;
(2)Notify the claimant or beneficiary concerning the time limit provisions of § 5.424, “Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income;” and
(3)Adjust or pay benefits when complete income information is received, according to the provisions of § 5.424.
(b)*Uncertain dependent information.* If a dependent's anticipated annual income is expected to be greater than the difference between the increased maximum annual pension rate based on the addition of the dependent and the maximum annual pension rate without the dependent, but the claimed dependent's relationship has not yet been established by required evidence, VA will do the following:
(1)Determine the maximum annual pension rate without consideration of the claimed dependent;
(2)Count the claimed dependent's income as income of the claimant or beneficiary for purposes of determining entitlement to Improved Pension and determining the annual Improved Pension amount; and
(3)Adjust the annual Improved Pension amount using the applicable maximum annual pension rate when evidence necessary to establish the dependent has been received. (For the evidence necessary to establish dependency, *see* Subpart D of this part.) (Authority: 38 U.S.C. 501, 1503) § 5.424 Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income.
(a)*Scope.* This section provides time limits for establishing entitlement to Improved Pension or for increasing the monthly Improved Pension payment amount based on adjusted annual income. If the claimant, beneficiary, or former beneficiary submits additional evidence within the time limits in this section, VA may award or increase benefits for prior periods as set forth in this section.
(b)*Expected or actual income* —(1) *Pension not paid.* When VA does not pay a pension claim based on actual or expected adjusted annual income during the initial reporting period, the claimant may submit evidence that supports entitlement for all or part of that period. If the claimant submits additional evidence on or before December 31 of the calendar year that follows the calendar year in which the initial reporting period ends, VA may award benefits effective from the beginning of the initial reporting period, subject to the provisions of § 5.383, “Effective Dates for Awards of Improved Disability Pension” or § 5.431, “Effective Dates for Improved Death Pension.” If the claimant does not submit evidence of entitlement within this time limit, VA may only pay benefits effective from the date it receives a new claim.
(2)*Pension paid at a lower amount or discontinued.* When VA pays pension at a lower amount or discontinues pension benefits for all or part of a reporting period based on the claimant's or beneficiary's actual or expected adjusted annual income, the claimant, beneficiary, or former beneficiary may submit evidence that supports entitlement or increased entitlement for all or part of that period. If the claimant, beneficiary, or former beneficiary submits additional evidence on or before December 31 of the calendar year that follows the calendar year in which the reporting period ends, VA may award, resume, or increase benefits effective from the date entitlement arose but not earlier than the beginning of the reporting period. If the claimant, beneficiary, or former beneficiary does not submit evidence of entitlement within this time limit, VA may only pay or increase benefits effective from the date it receives a new claim, except as provided in paragraph
(c)or
(d)of this section.
(c)*Payment following nonentitlement for one reporting period.* This paragraph
(c)applies if the claimant or beneficiary's adjusted annual income does not permit payment for the initial reporting period or requires VA to discontinue payment for an entire reporting period. In such cases, VA may award Improved Pension effective from the date entitlement arose but not earlier than the beginning of the next reporting period (the new initial reporting period), if the claimant, beneficiary, or former beneficiary submits evidence before that reporting period ends. If the claimant, beneficiary, or former beneficiary does not submit evidence of entitlement within this time limit, VA may only pay benefits effective from the date it receives a new claim, except as provided in paragraph
(d)of this section.
(d)*No time limit to submit income evidence to reduce overpayment.* There is no time limit to submit income evidence, including deductible expenses, for the purpose of reducing an overpayment. However, the evidence submitted must relate to the initial or annual reporting period for which the overpayment was created. (Authority: 38 U.S.C. 501, 5110(h)) § 5.425 Frequency of payment of Improved Pension benefits. VA issues payments of Improved Pension as provided in this section. Except as provided in paragraph
(e)of this section, a beneficiary may choose to receive monthly payments if other Federal benefits would be denied because pension payments are issued less frequently than monthly.
(a)*Monthly if $228 or more.* VA will make a payment every month if the annual Improved Pension amount is $228 or more.
(b)*Every three months if $144 but less than $228.* VA will make a payment every three
(3)months if the annual Improved Pension amount is at least $144 but less than $228. Payment dates will be on or about March 1, June 1, September 1, and December 1.
(c)*Every six months if $72 but less than $144.* VA will make a payment every six
(6)months if the annual Improved Pension amount is at least $72 but less than $144. Payment dates will be on or about June 1 and December 1.
(d)*Once a year if less than $72.* VA will make a payment once a year if the annual Improved Pension amount is less than $72. The payment date will be on or about June 1.
(e)*Payments of less than one dollar are not made.* VA will not make a payment of less than one dollar. (Authority: 38 U.S.C. 1508) §§ 5.426-5.429 [Reserved] Improved Death Pension Marriage Date Requirements and Effective Dates § 5.430 Marriage date requirements for Improved Death Pension.
(a)*General rule.* A surviving spouse may qualify for Improved Death Pension if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, the marriage meets one of the criteria in paragraphs (a)(1) through
(3)of this section.
(1)The veteran and surviving spouse were married for 1 year or more (multiple marriage periods may be added together to meet the 1-year requirement);
(2)A veteran of one of the following wartime periods and the surviving spouse were married before one of the following delimiting dates:
(i)Mexican Border Period or World War I-December 14, 1944.
(ii)World War II—January 1, 1957.
(iii)Korean Conflict—February 1, 1965.
(iv)Vietnam Era—May 8, 1985.
(v)Persian Gulf War—January 1, 2001; or
(3)A child was born of the marriage or before the marriage.
(b)*More than one marriage to veteran.* If a surviving spouse has been legally married to the same veteran more than once, VA will use the date of the original marriage to decide whether the surviving spouse has met the marriage date requirements (delimiting date). (Authority: 38 U.S.C. 103(b) and 1541(f)) § 5.431 Effective dates for Improved Death Pension.
(a)*Nonservice-connected death after separation from service* —(1) *Claim received not later than 1 year after the date of death.* If VA awards Improved Death Pension based on a claim received no later than 1 year after the date of the veteran's death, the effective date of the award is the first day of the month in which the death occurred.
(2)*Claim received more than 1 year after the date of the veteran's death.* If VA awards Improved Death Pension based on a claim received more than 1 year after the date of the veteran's death, the effective date of the award is the date VA received the claim.
(b)*Death in service.* In certain instances, Improved Death Pension eligibility may be established if the veteran died in service.
(1)*Claim received within one year of death.* If VA receives a claim for Improved Death Pension not later than 1 year after the date of death fixed by the veteran's service branch report or finding of actual or presumed death, the effective date is the first day of the month that the Secretary concerned establishes as the date of death.
(2)*Claim not received within 1 year of death.* If VA does not receive the claim within 1 year of the date provided in paragraph (b)(1) of this section, the effective date is the date VA receives the claim.
(3)*Death benefits not to be paid concurrently with military benefits.* VA will not pay benefits to a claimant on a report of actual death for periods that the claimant has received, or was entitled to receive, any of the following military benefits of the veteran:
(i)An allowance;
(ii)An allotment; or
(iii)Service pay. (Authority: 38 U.S.C. 5110(a), (d), (j)) § 5.432 Deemed valid marriages and contested claims for Improved Death Pension.
(a)*Definition of contested claim.* For the purposes of this section, a claim is a “contested claim” when a claimant seeking recognition as a surviving spouse under the provisions for a deemed valid marriage in § 3.52 of this chapter and a legal surviving spouse eligible for Improved Death Pension both submit claims for Improved Death Pension.
(b)*VA adjudication of contested claims.* VA will take the following steps in adjudicating a contested claim:
(1)Develop the claims of both the legal surviving spouse and the claimant seeking recognition as the surviving spouse; then
(2)Afford each claimant the applicable time period provided in § 5.424(b) to show his or her adjusted annual income is less than the maximum annual pension rate; and then
(3)If the legal surviving spouse does not establish entitlement to Improved Death Pension before the applicable time limit of § 5.424(b) has expired, VA will recognize the claimant seeking recognition as a surviving spouse of a deemed valid marriage and award Improved Death Pension if that claimant meets eligibility and entitlement requirements. If the legal surviving spouse later claims Improved Death Pension and establishes entitlement, VA will then process the claim under § 5.433. (Authority: 38 U.S.C. 501) § 5.433 Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the veteran's surviving spouse.
(a)*Purpose.* This section applies when VA is paying Improved Death Pension to a surviving spouse (identified in this section as, “former surviving spouse”) and another claimant (identified in this section as “new surviving spouse”) establishes that he or she is the true legal surviving spouse eligible to receive Improved Death Pension.
(b)*Effective date for discontinuance of payments to former surviving spouse* —(1) *Discontinuance date of the award to the former surviving spouse where the award to the new surviving spouse is effective before the date VA received the new surviving spouse's claim.* If benefits are payable to the new surviving spouse from a date before the date VA received the new surviving spouse's claim, VA will discontinue the award to the former surviving spouse effective the date of the award to the new surviving spouse.
(2)*Discontinuance date of the award to the former surviving spouse where award to the new surviving spouse is effective the date VA received the new surviving spouse's claim.* If benefits are payable to the new surviving spouse from the date VA received the new surviving spouse's claim, VA will discontinue the award to the former surviving spouse effective the later of the following:
(i)The date of receipt of the new surviving spouse's claim.
(ii)The first day of the month that follows the month for which VA last paid benefits.
(3)*Exception where discontinuances are due to a change in, or change in interpretation of, the law or an administrative issue.* When VA must discontinue payments to a former surviving spouse because of a change in the law or an administrative issue or because of a change in the interpretation of law or an administrative issue, VA will discontinue the award to the former surviving spouse effective the first day of the month that follows the end of the 60-day notice period to the former surviving spouse concerning the discontinuance. (Authority: 38 U.S.C. 5112(a) and (b)(6)) § 5.434 Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved.
(a)*Legal custodian of child establishes eligibility as surviving spouse.* When VA finds Improved Death Pension eligibility for the legal custodian of a child receiving Improved Death Pension, VA will award Improved Pension to the surviving spouse and discontinue the child's eligibility for Improved Death Pension as follows:
(1)*Annual Improved Pension amount for surviving spouse higher than amount for child.*
(i)If the surviving spouse is entitled to a higher Improved Pension payment amount than the child was receiving, the surviving spouse's pension award is effective the date provided by § 5.431, “Effective dates for Improved Death Pension.”
(ii)The initial pension amount payable to the surviving spouse is the difference between the child's Improved Pension payment amount and the surviving spouse's Improved Pension payment amount. VA will pay to the surviving spouse the full Improved Pension payment amount effective the first day of the month after the month for which VA last paid benefits to the child. VA will discontinue the child's pension award effective the same day.
(2)*Annual Improved Pension amount for surviving spouse equal to or less than amount for child.* When the child is receiving an Improved Death Pension payment amount equal to or higher than the Improved Pension payment amount that the surviving spouse is entitled to receive, VA will pay Improved Death Pension to the surviving spouse effective the first day of the month after the month for which VA last paid benefits to the child, and discontinue the child's pension award effective the same day. Section 3.31 of this chapter does not apply in such a situation.
(3)*Effective date of discontinuance of child's pension award when the surviving spouse is not entitled to payments.* When a surviving spouse establishes eligibility for Improved Death Pension but is not entitled because his or her adjusted annual income is greater than the maximum annual pension rate or because his or her net worth bars entitlement, VA will discontinue the child's pension award effective the first day of the month after the month for which VA last paid benefits to the surviving spouse.
(b)*Child establishes eligibility but surviving spouse has received Improved Death Pension payments after his or her own eligibility ended.* If a surviving spouse continued to receive Improved Pension payments after becoming ineligible for Improved Pension, and that surviving spouse has custody of a child who establishes eligibility for Improved Pension payments, VA will award Improved Pension to the child and discontinue the surviving spouse's eligibility as follows:
(1)*Improved Pension payment amount for the child is lower than the payment amount for the former surviving spouse.* When the former surviving spouse, who is the child's custodian, receives pension after eligibility ends and the child is entitled to a lower Improved Pension payment amount than the former surviving spouse is receiving, VA will amend the award to the former surviving spouse to pay the child's Improved Pension payment amount. This amended award will be effective the date VA should have discontinued the former surviving spouse's pension award, thereby establishing a debt owed to VA by the former surviving spouse. VA will award pension to the child effective the first day of the month after the month for which it last paid benefits to the former surviving spouse and discontinue the former surviving spouse's pension award effective the same day. Section 3.31 of this chapter does not apply in such a situation.
(2)*The Improved Pension payment amount for the child is equal to or higher than the former surviving spouse's amount.* This paragraph (b)(2) applies when the former surviving spouse receives pension after eligibility ends and the child is entitled to an equal or higher Improved Pension payment amount than the payment amount the former surviving spouse is receiving.
(i)In such cases, the effective date of the child's pension award is the date VA should have discontinued the former surviving spouse's pension award.
(ii)The initial amount of pension payable to the child is the difference between the child's Improved Pension payment amount and the former surviving spouse's Improved Pension payment amount. VA will pay the full Improved Pension payment amount to the child effective the first day of the month after the month for which VA last paid benefits to the former surviving spouse and discontinue the surviving spouse's pension award effective the same day. (Authority: 38 U.S.C. 501(a), 5110(a), 5112(a)) § 5.435 Calculating annual Improved Pension amounts for surviving children.
(a)*Surviving child not in custody or in the custody of an institution.* If a surviving child has no personal custodian (a person legally responsible for the child's support), or a surviving child is in the custody of an institution, VA calculates the surviving child's annual Improved Pension amount by subtracting the surviving child's adjusted annual income from the surviving child's maximum annual pension rate.
(b)*Surviving child in the custody of a person legally responsible for the child's support* —(1) *One surviving child in the custody of a person legally responsible for the child's support.* If the surviving child has a custodian, the surviving child's annual Improved Pension amount is the lesser of:
(i)The maximum annual pension rate for a surviving spouse and one dependent surviving child, reduced by the adjusted annual income of the surviving child and that of the surviving child's custodian; or
(ii)The maximum annual pension rate for a surviving child alone, reduced by the surviving child's adjusted annual income.
(2)*More than one surviving child in the custody of a person legally responsible for the children's support.* If any surviving child has adjusted annual income equal to or greater than the maximum annual pension rate for one surviving child, that surviving child (and the surviving child's income) is not included in the calculation of the annual Improved Pension amount. The remaining surviving child(ren)'s annual Improved Pension amount is the lesser of:
(i)The maximum annual pension rate for a surviving spouse and the number of remaining surviving children, reduced by the total adjusted annual income of the remaining surviving children and that of the custodian; or
(ii)The maximum annual pension rate for a surviving child alone times the number of remaining surviving children, reduced by the total adjusted annual income of the remaining surviving children.
(3)*Income of natural or adoptive parent includes that of natural or adoptive parent's spouse.* If the custodian listed in paragraph (b)(1) or
(2)of this section is a natural or adoptive parent of a surviving child who is in joint custody as provided in § 5.417(e), the income of that natural or adoptive parent includes the income of that natural or adoptive parent's spouse. (Authority: 38 U.S.C. 1542) §§ 5.436-5.459 [Reserved] [FR Doc. E7-18745 Filed 9-25-07; 8:45 am] BILLING CODE 8320-01-P 72 186 Wednesday, September 26, 2007 Presidential Documents Part IV The President Proclamation 8177—National POW/MIA Recognition Day, 2007 Proclamation 8178—Family Day, 2007 Proclamation 8179—Gold Star Mother's Day, 2007 Title 3— The President Proclamation 8177 of September 20, 2007 National POW/MIA Recognition Day, 2007 By the President of the United States of America A Proclamation America has been blessed by the brave men and women of our Armed Forces who have answered the call to defend our country and protect liberty around the world. On National POW/MIA Recognition Day, we honor a special group of patriots: those who have been prisoners of war and those who are still missing in action. We remain forever in their debt, and we renew our commitment to them and to their families never to rest until we have accounted for every missing service member. To commemorate this day, the National League of Families POW/MIA flag is flown over the White House, the Capitol, the Vietnam Veterans Memorial, the Korean War Veterans Memorial, the World War II Memorial, and other locations across our country. This flag is an enduring symbol that reflects our solemn commitment to our courageous service members who have been imprisoned while serving in conflicts around the world and to those who remain missing. America will always remember these heroes, and we underscore our pledge to achieve the fullest possible accounting for every missing member of our Armed Forces. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Friday, September 21, 2007, as National POW/MIA Recognition Day. I call upon the people of the United States to join me in honoring and remembering all former American prisoners of war and those missing in action who valiantly served our great country. I also call upon Federal, State, and local government officials and private organizations to observe this day with appropriate ceremonies and activities. IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of September, in the year of our Lord two thousand seven, and of the Independence of the United States of America the two hundred and thirty-second. GWBOLD.EPS [FR Doc. 07-4766 Filed 9-25-07; 8:45 am]
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U.S. Code
43 references not yet in our index
  • Pub. L. 104-13
  • 109 Stat. 163
  • 44 USC 3501-3520
  • 5 CFR 1320
  • 5 CFR 1320.5
  • 5 CFR 1320.12(d)
  • 5 CFR 1320.12(c)
  • 49 USC 721
  • 49 CFR 1152
  • 49 CFR 1105.7
  • 49 CFR 1105.8
  • 49 CFR 1105.11
  • 49 CFR 1105.12
  • 49 CFR 1152.50(d)(1)
  • 49 CFR 1152.27(c)(2)
  • 49 CFR 1152.29
  • 49 CFR 1152.28
  • 49 CFR 1152.27(a)
  • 49 CFR 1002.2(f)(25)
  • 49 CFR 1152.29(e)(2)
  • 31 CFR 129
  • 26 CFR 1
  • 47 CFR 73
  • 47 CFR 73.699
  • 47 CFR 73.684
  • 47 CFR 73.683
  • 47 CFR 73.623(c)
  • 38 CFR 5
  • 38 CFR 3
  • Pub. L. 95-588
  • 38 CFR 4
  • Pub. L. 109-233
  • 120 Stat. 397
  • Pub. L. 101-426
  • Pub. L. 86-211
  • Pub. L. 85-56
  • 71 Stat. 90
  • Pub. L. 78-483
  • 58 Stat. 804
  • 44 USC 3501-3521
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U.S.C.§ 10502
U.S.C.§ 3102
U.S.C.§ 336
U.S.C.§ 151
Pub. L.Pub. L. 104-13
Stat.109 Stat. 163
Cite44 USC 3501-3520
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