Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60869

under this section shall not exceed

$27,500 for each violation or each day

of a continuing violation, except that the

amount assessed for any continuing

violation shall not exceed a total of

$300,000 for any single act or failure to

act described in paragraph (a) of this

section. There is no limit on forfeiture

assessments for EEO violations by cable

operators that occur after notification by

the Commission of a potential violation.

See Section 634(f)(2) of the

Communications Act.

(2) If the violator is a common carrier

subject to the provisions of the

Communications Act or an applicant for

any common carrier license, permit,

certificate, or other instrument of

authorization issued by the

Commission, the amount of any

forfeiture penalty determined under this

section shall not exceed $120,000 for

each violation or each day of a

continuing violation, except that the

amount assessed for any continuing

violation shall not exceed a total of

$1,200,000 for any single act or failure

to act described in paragraph (a) of this

section.

(3) In any case not covered in

paragraphs (b)(1) or (b)(2) of this

section, the amount of any forfeiture

penalty determined under this section

shall not exceed $11,000 for each

violation or each day of a continuing

violation, except that the amount

assessed for any continuing violation

shall not exceed a total of $87,500 for

any single act or failure to act described

in paragraph (a) of this section.

Note to paragraph (b)(3): For information

concerning notices of apparent liability and

notices of opportunity for hearing, see

paragraphs (e), (f), and (g) of this section.

(4) Factors considered in determining

the amount of the forfeiture penalty. In

determining the amount of the forfeiture

penalty, the Commission or its designee

will take into account the nature,

circumstances, extent and gravity of the

violations and, with respect to the

violator, the degree of culpability, any

history of prior offenses, ability to pay,

and such other matters as justice may

require.

Note to paragraph (b)(4):

Guidelines for Assessing Forfeitures

The Commission and its staff may use

these guidelines in particular cases. The

Commission and its staff retain the discretion

to issue a higher or lower forfeiture than

provided in the guidelines, to issue no

forfeiture at all, or to apply alternative or

additional sanctions as permitted by the

statute. The forfeiture ceiling per violation or

per day for a continuing violation stated in

Section 503 of the Communications Act and

the Commission’s Rules are described in

§ 1.80(b)(5)(iii). These statutory maxima are

effective November 13, 2000. Forfeitures

issued under other sections of the Act are

dealt with separately in Section III of this

note.

* * * * *

Section III. Non-Section 503 Forfeitures That

Are Affected by the Downward Adjustment

Factors

Unlike Section 503 of the Act, which

establishes maximum forfeiture amounts,

other sections of the Act, with one exception,

state prescribed amounts of forfeitures for

violations of the relevant section. These

amounts are then subject to mitigation or

remission under Section 504 of the Act. The

one exception is Section 223 of the Act,

which provides a maximum forfeiture per

day. For convenience, the Commission will

treat this amount as if it were a prescribed

base amount, subject to downward

adjustments. The following amounts are

adjusted for inflation pursuant to the Debt

Collection Improvement Act of 1996 (DCIA),

28 U.S.C. 2461. These non-Section 503

forfeitures may be adjusted downward using

the ‘‘Downward Adjustment Criteria’’ shown

for Section 503 forfeitures in Section II of this

note.

Violation Statutory amount ($)

Sec. 202(c) Common Carrier Discrimination ........................................................................................................................... 7,600 330/day.

Sec. 203(e) Common Carrier Tariffs ....................................................................................................................................... 7,600 330/day.

Sec. 205(b) Common Carrier Prescriptions ............................................................................................................................ 13,200.

Sec. 214(d) Common Carrier Line Extensions ....................................................................................................................... 1,200/day.

Sec. 219(b) Common Carrier Reports .................................................................................................................................... 1,200.

Sec. 220(d) Common Carrier Records & Accounts ................................................................................................................ 7,600/day.

Sec. 223(b) Dial-a-Porn ........................................................................................................................................................... 60,000 maximum/day.

Sec. 364(a) Ship Station Inspection ........................................................................................................................................ 5,500 (owner).

Sec. 364(b) Ship Station Inspection ........................................................................................................................................ 1,100 (vessel master).

Sec. 386(a) Forfeitures ............................................................................................................................................................ 5,500/day (owner).

Sec. 386(b) Forfeitures ............................................................................................................................................................ 1,100 (vessel master).

Sec. 634 Cable EEO ............................................................................................................................................................... 500/day.

(5) * * *

(iii) The application of the inflation

adjustments required by the DCIA, 28

U.S.C. 2461, results in the following

adjusted statutory maximum forfeitures

authorized by the Communications Act:

U.S. Code citation

Maximum

penalty after

DCIA

adjustment

47 U.S.C. 202(c) ....................... $7,600

330

47 U.S.C 203(e) ....................... 7,600

330

47 U.S.C. 205(b) ...................... 13,200

47 U.S.C. 214(d) ...................... 1,200

47 U.S.C. 219(b) ...................... 1,200

47 U.S.C. 220(d) ...................... 7,600

47 U.S.C. 223(b) ...................... 60,000

47 U.S.C. 362(a) ...................... 5,500

U.S. Code citation

Maximum

penalty after

DCIA

adjustment

47 U.S.C. 362(b) ...................... 1,100

47 U.S.C. 386(a) ...................... 5,500

47 U.S.C. 386(b) ...................... 1,100

47 U.S.C. 503(b)(2)(A) ............. 27,500

300,000

47 U.S.C. 503(b)(2)(B) ............. 120,000

1,200,000

47 U.S.C. 503(b)(2)(C) ............. 11,000

87,500

47 U.S.C. 507(a) ...................... 550

47 U.S.C. 507(b) ...................... 110

47 U.S.C. 554 ........................... 500

Note to paragraph (b)(5): Pursuant to

Public Law 104–134, the first inflation

adjustment cannot exceed 10 percent of the

statutory maximum amount.

* * * * *

[FR Doc. 00–26193 Filed 10–12–00; 8:45 am]

BILLING CODE 6712–01–U

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 2, 90 and 95

[WT Docket No. 98–182; RM–9222; FCC 00–

235]

1998 Biennial Regulatory Review—

Private Land Mobile Radio Services

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

60870 Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations

SUMMARY: This document consolidates

and streamlines the Commission’s Rules

concerning the private land mobile

radio services (PLMRS). Several

licensing and operational requirements

are modified or eliminated in order to

reduce the regulatory burden on PLMR

licensees and to promote greater

flexibility and more efficient use of the

private land mobile radio frequency

spectrum.

DATES: Effective November 13, 2000.

FOR FURTHER INFORMATION CONTACT: Guy

Benson (202) 418–2946

<gbenson@fcc.gov> or Ghassen Khalek

(202) 418–2771 <gkhalek@fcc.gov>,

Public Safety and Private Wireless

Division, Wireless Telecommunications

Bureau, or Les Smith, AMD–PERM,

Office of Managing Director at (202)

418–0217.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, (R&O), in the R&O and

Further Notice of Proposed Rule

Making, (FNPRM), FCC 00–235 in WT

Docket No. 98–182 and PR Docket No.

92–235, adopted on June 28, 2000, and

released on July 12, 2000. The full text

of this R&O and FNPRM) is available for

inspection and copying during normal

business hours in the FCC Reference

Center, Room CY–A257, 445 12th Street,

S.W., Washington, D.C. The complete

text may be purchased from the

Commission’s copy contractor,

International Transcription Service,

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

Washington, D.C. 20037. The full text

may also be downloaded at:

www.fcc.gov. Alternative formats are

available to persons with disabilities by

contacting Martha Contee at (202) 418–

0260 or TTY (202) 418–2555.

Summary of the R&O

1. The Commission initiated this

proceeding in conjunction with the

1998 biennial regulatory review under

section 11 of the Communications Act

of 1934, 47 U.S.C. 161. Section 11

requires the Commission to review all

the regulations applicable to providers

of telecommunications service and

determine whether any rule is no longer

in the public interest as a result of

meaningful economic competition

between providers of

telecommunications service, and

whether such regulations should be

deleted or modified. As part of this

review, however, the Commission found

it appropriate to consider all of the

regulations relating to administering

wireless services, not just those

pertaining to providers of a

telecommunications service, to

determine which regulations can be

streamlined or eliminated. As a result,

the R&O consolidates and streamlines

the part 90 Rules.

2. First, the Commission amends the

rules to eliminate the distinction

between cargo handling and other uses

of certain frequencies in the 450–470

MHz band.

3. Second, the Commission amends

the rules to change the duration of the

license term for stations authorized

under part 90 from five years to ten

years from the date of initial issuance or

renewal. This change will result in

decreased costs for licensees.

4. Third, the Commission amends the

rules to change the time in which a

station must be placed in operation from

eight months to twelve months, thereby

giving licensees more flexibility in

building their stations and simplifying

regulatory requirements.

5. Fourth, the Commission amends

the rules to require applicants for any of

the fifteen 220 MHz public safety

channels set forth in §§ 90.719(c) and

90.720 of the Commission’s Rules to

submit their applications to a public

safety frequency coordinator for

frequency coordination prior to

submission of the applications to the

Commission.

6. Fifth, the Commission amends the

rules to provide that a radio facility

authorized to a public safety licensee

may be shared with a Federal

Government entity on a cost-shared,

non-profit basis.

7. Sixth, the Commission amends the

rules to clarify definitions for

centralized and decentralized trunking

and to establish a new process for

licensing trunked systems.

8. Finally, the Commission amends

the rules to reassign five low power

VHF frequencies from the part 90

PLMRS to the part 95 Citizens Band

Radio Service, and eliminates the

licensing requirement for these

frequencies.

Final Regulatory Flexibility Act and

Final Analysis

9. As required by the Regulatory

Flexibility Act (RFA), an Initial

Regulatory Flexibility Analysis (IRFA)

was incorporated in the 1998 Biennial

Regulatory Review, Notice of Proposed

Rule Making (NPRM), FCC 98–251, 63

FR 65568 (Nov. 27, 1998) NPRM. The

Commission sought written public

comment on the proposals in the NPRM,

including comment on the IRFA. This

present Final Regulatory Flexibility

Analysis (FRFA) conforms to the RFA.

Reason for, and Objectives of, the R&O

10. The Commission’s objective in

this proceeding is to streamline part 90

of the Commission’s Rules and reduce

regulatory requirements, and to promote

more efficient use of the spectrum.

Therefore, the Commission amends part

90 to: (i) Ease restrictions on uses of

certain frequencies in the 450–470 MHz

band; (ii) extend the license term for

stations authorized under part 90; (iii)

increase the time in which a station

must be placed in operation; (iv) require

frequency coordination for public safety

applications at 220 MHz; (v) provide

that a radio facility authorized to a

public safety licensee may be shared

with a Federal Government entity on a

cost-shared, non-profit basis; (vi) clarify

definitions for centralized and

decentralized trunking and

establishment of a new process for

licensing trunked systems; and (vii)

reassign five low power VHF

frequencies from the part 90 Private

Land Mobile Radio (PLMR) Services to

the part 95 Citizens Band Radio Service,

and eliminate the licensing requirement

for these frequencies. The Commission

believes that these changes will

encourage growth of land mobile

systems and enhance

telecommunications offerings for

consumers, producers and new entrants.

Summary of Significant Issues Raised by

Public Comments in Response to the

Initial Regulatory Flexibility Analyses

11. No petitions or comments were

filed in direct response to the IRFA. The

Commission has nonetheless considered

the effect of these rule changes on small

entities and considered other

alternatives. These actions should

benefit all entities subject to the rule

changes, including small businesses.

Description and Estimate of the Number

of Small Entities to Which the Rules

Will Apply

12. The RFA directs agencies to

provide a description of and, where

feasible, an estimate of the number of

small entities that may be affected by

the proposed rules, if adopted. The RFA

generally defines the term ‘‘small

entity’’ as having the same meaning as

the terms ‘‘small business,’’ ‘‘small

organization,’’ and ‘‘small governmental

jurisdiction.’’ In addition, the term

‘‘small business’’ has the same meaning

as the term ‘‘small business concern’’

under the Small Business Act, unless

the Commission has developed one or

more definitions that are appropriate for

its activities.

Under the Small Business Act, a

‘‘small business concern’’ is one that: (i)

Is independently owned and operated;

(ii) is not dominant in its field of

operation; and (iii) satisfies any

additional criteria established by the

Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60871

Small Business Administration (SBA). A

small organization is generally ‘‘any notfor-profit enterprise which is

independently owned and operated and

is not dominant in its field.’’ Last, the

definition of ‘‘small governmental

entity’’ is one with populations of fewer

than 50,000. There are 85,006

governmental entities in the nation.

This number includes such entities as

states, counties, cities, utility districts

and school districts. There are no

figures available on what portion of this

number has populations of fewer than

50,000. However, this number includes

38,978 counties, cities and towns, and

of those, 37,556, or ninety-six percent,

have populations of fewer than 50,000.

The Census Bureau estimates that this

ratio is approximately accurate for all

government entities. Thus, of the 85,006

governmental entities, we estimate that

ninety-six percent, or about 81,600, are

small entities that may be affected by

our rules.

The rules adopted in this R&O affect

a number of small entities who are

either licensees, or may choose to

become applicants for licenses, in the

PLMR Service. The adopted rules apply

to businesses and local government

entities that operate radio systems for

their own internal use in the PLMR

services. Traditionally, PLMR services

have provided for the private, internal

communications needs of public safety

entities, state and local government

entities, large and small businesses,

transportation providers, the medical

community, and other diverse users of

two-way radio systems.

PLMR systems currently serve an

essential role in a vast range of

industrial, business, land transportation,

and public safety activities. These

radios are used by companies of all sizes

operating in all U.S. business categories.

Because of the vast array of PLMR users,

the Commission has not developed nor

would it be possible to develop a

definition of small businesses

specifically applicable to PLMR users.

Therefore, for the purpose of

determining whether a licensee is a

small business as defined by the Small

Business Administration (SBA), each

licensee would need to be evaluated

within its own business area. Therefore,

the appropriate definition for PLMR

small businesses is the SBA’s definition

for radiotelephone (wireless)

companies. That definition provides

that a small entity is a radiotelephone

company employing no more than 1,500

persons.

Reporting, Recordkeeping, and Other

Compliance Requirements

13. The Rules adopted in this

document have minimal additional

reporting or recordkeeping requirements

for PLMR licensees. In fact, our decision

to increase the license term from five to

ten years will result in a decrease in the

amount of fees paid and paperwork

required. On the other hand, applicants

for certain channels are now required to

coordinate their frequencies prior to

submission of an application, which is

achieved through the use of registered

frequency coordinators.

Steps Taken To Minimize Significant

Economic Impact on Small Entities, and

Significant Alternatives Considered

14. In the IRFA, the Commission

indicated that many of the proposed

rules will result in economic benefits to

small business and local government

entities. The Commission believes that

relaxing the restrictions on cargo/noncargo operations will help to satisfy

demand for communications on these

frequencies. Continued exclusion of

non-cargo operations is an alternative to

the approach here, but that would result

in the underutilization of important

spectrum resources.

15. The Commission also believes that

there will be several public interest

benefits gained by the decision to

extend the license term for all part 90

licensees to ten years. First, there will

be an economic benefit to new

applicants in that their licensing costs

would effectively be lowered. Under the

Commission’s current license fee

structure, a part 90 licensee with a tenyear authorization has an economic

advantage over a licensee with a fiveyear license in that it enjoys a longer

license term at less cost. Second,

existing five-year licenses will receive a

ten-year renewal period upon expiration

of the five-year license, thus halving the

licensee’s long-term renewal costs. One

alternative to this action would be to

leave the license term at five years. This

alternative would not benefit small

businesses. In addition, it would result

in administrative inefficiencies for the

agency.

16. Regarding the decision to increase

the time in which a station must be

placed in operation from eight to twelve

months, the Commission envisions that

this change in the regulatory treatment

of PLMR stations will reduce the

necessity for a licensee to request an

extension of the time to construct, and

thus would eliminate the costs

necessary to make such a request. It will

also give licensees more flexibility in

determining how and when to construct

their stations. The alternative to this

situation is to leave the requirement

date at eight months and require

licensees to continue requesting

extensions of time. The changes we

undertake herein, however, will benefit

small businesses and enhance

administrative efficiencies.

17. By requiring frequency

coordination for the 220 MHz public

safety channels, the Commission is

benefiting small entities and other

applicants in a number of ways. For

example, requiring frequency

coordination will prevent the filing of

mutually exclusive applications and

will result in applications for the most

appropriate channels, thereby

minimizing interference potential and

congestion. The alternative would be to

make no changes to these licensing

procedures, but then the benefits of

frequency coordination would not be

realized.

18. Permitting a public safety licensee

to share its station with a Federal

Government entity on a non-profit, costsharing basis, will be beneficial to both

parties. It will lower the operational

costs of the public safety system in that

the public safety licensee would obtain

cost-sharing benefits from the Federal

agency, and it would enable the Federal

agency to obtain needed

communications at a lower cost than if

the Federal agency had to implement its

own communications system. An

alternative to this change would be to

continue prohibiting such sharing

arrangements, but the Commission

believes that adopting these Rules and

thereby lowering costs and increasing

access to needed spectrum will ease the

regulatory burden on small businesses.

19. By requiring all trunked

operations to be specifically licensed,

the Commission is promoting licensee

flexibility, facilitating more efficient use

of the spectrum, and minimizing

interference concerns and congestion.

The alternative, i.e., to not require such

licensing, would not achieve these

benefits.

Report to Congress

The Commission will send a copy of

the 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 the R&O, including FRFA, to the

Chief Counsel for Advocacy of the Small

Business Administration. A copy of the

R&O and FRFA (or summaries thereof)

will also be published in the Federal

Register.

60872 Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations

List of Subjects

47 CFR Parts 2 and 95

Communications equipment, Radio.

47 CFR Part 90

Administrative practice and

procedure, Business and industry,

Communications equipment, Radio.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For reasons discussed in the

preamble, the Federal Communications

Commission amends parts 2, 90, and 95

as follows:

PART 2—FREQUENCY ALLOCATIONS

AND RADIO TREATY MATTERS;

GENERAL RULES AND REGULATIONS

1. The authority citation for part 2

continues to read as follows:

Authority: 47 U.S.C. 154, 302a, 303, and

336, unless otherwise noted.

2. Amend § 2.106 of the Table of

Frequency Allocations by revising page

29 of the Table.

§ 2.106 Table of Frequency Allocations.

* * * * *

BILLING CODE 6712–01–P

Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60873

60874 Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations

BILLING CODE 6712–01–C

* * * * *

PART 90—PRIVATE LAND MOBILE

RADIO SERVICES

3. The authority citation for part 90

continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r)

and 332(c)(7) of the Communications Act of

1934, as amended, 47 U.S.C. 154(i), 161,

303(g), 303(r), 332(c)(7).

4. Section 90.1 is amended by revising

paragraph (b) to read as follows:

§ 90.1 Basis and purpose.

* * * * *

(b) Purpose. This part states the

conditions under which radio

communications systems may be

licensed and used in the Public Safety

Radio Pool, Industrial/Business Radio

Pool, and the Radiolocation Service.

The rules in this part do not govern

radio systems employed by agencies of

the Federal Government.

5. Section 90.7 is amended by revising

the definition of Trunked radio system

to read as follows:

§ 90.7 Definitions.

* * * * *

Trunked radio system. A radio system

employing technology that provides the

ability to search two or more available

channels and automatically assign a

user an open channel.

* * * * *

6. Section 90.20 (c)(3) is amended in

the table by removing the entry for

453.025 MHz and by revising the entries

for 453.0125 MHz and 453.03125 MHz

to read as follows:

§ 90.20 Public Safety Pool.

* * * * *

(c) * * *

(3) * * *

PUBLIC SAFETY POOL FREQUENCY TABLE

Frequency or band Class of station(s) Limitations Coordinator

*******

Megahertz

*******

453.0125 ............................ Mobile ................................ 57, 78 ............................................................................. PX

453.03125 .......................... Base or mobile ................... 44, 59, 60, 61, 62 ........................................................... PM

*******

* * * * *

7. Section 90.22 is amended by

revising the introductory text to read as

follows:

§ 90.22 Paging operations.

Unless specified elsewhere in this

part, paging operations may be

authorized in the Public Safety Pool on

any frequency except those assigned

under the provisions of § 90.20(d)(78).

Paging operations on frequencies subject

to § 90.20(d)(78) authorized before

August 17, 1974, may be continued only

if they do not cause harmful

interference to regular operations on the

same frequencies. Such paging

operations may be renewed indefinitely

on a secondary basis to regular

operations, except within 125 km (75

mi) of the following urbanized areas:

* * * * *

8. Section 90.35 is amended in

paragraph (b)(3) in the table under

Megahertz by removing the entries for

151.820, 151.880, 151.940, 154.570,

154.600 and by revising the entries for

153.560 and 154.585 and revising

paragraph (c)(60) to read as follows:

§ 90.35 Industrial/Business Pool.

* * * * *

(b) * * *

(3) * * *

INDUSTRIAL/BUSINESS POOL FREQUENCY TABLE

Frequency or band Class of stations(s) Limitations Coordinator

*******

Megahertz

*******

153.560 .............................. ............................................ 80 ................................................................................... IP, IW

*******

154.585 .............................. Mobile ................................ 8, 46 ............................................................................... IP

*******

* * * * *

(c) * * *

(60)(i) This frequency is available for

voice or non-voice communications

concerned with cargo handling from a

dock or cargo handling facility, a vessel

alongside the dock, or cargo handling

facility. The effective radiated power

(ERP) shall not exceed 2 watts. Mobile

relay stations may be temporarily

installed on vessels located at or in the

vicinity of a dock or cargo handling

facility. The center of the radiating

system of the mobile relay shall be

Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60875

located no more than 3 meters (10 feet)

above the vessel’s highest working dock.

(ii) This frequency is also available for

low power non-cargo handling

operations, both voice and non-voice,

on a secondary basis to cargo handling

communications. This frequency will

not be assigned for non-cargo handling

operations at temporary locations.

(iii) Mobile relay frequency table as

follows:

Mobile relay (MHz) 1 Mobile (MHz)

457.525 ................................. 467.750

457.53125 ............................. 467.75625

457.5375 ............................... 467.7625

457.54375 ............................. 467.76875

457.550 ................................. 467.775

457.55625 ............................. 467.78125

457.5625 ............................... 467.7875

457.56875 ............................. 467.79375

457.575 ................................. 467.800

457.58125 ............................. 467.80625

457.5875 ............................... 467.8125

457.59375 ............................. 467.81875

457.600 ................................. 467.825

457.60625 ............................. 467.83125

457.6125 ...............................

457.61875 .............................

1The mobile relay frequencies may also be

used for single frequency simplex

* * * * *

9. Section 90.135 is revised to read as

follows:

§ 90.135 Modification of license.

(a) In addition to those changes listed

in § 1.929(k) of this chapter and in

accordance with § 1.947 of this chapter

the following modifications may be

made to an existing authorization

without prior Commission approval:

(1) Change in the number and location

of station control points or of control

stations operating below 470 or above

800 MHz meeting the requirements of

§ 90.119(b).

(2) Change in the number of mobile

units operated by Radiolocation Service

licensees.

(b) Unless specifically exempted in

§ 90.175, licensees must submit a Form

601 application for modification to the

applicable frequency coordinator for

any change listed in § 1.929(c)(4) of this

chapter.

10. Section 90.149 is amended by

revising paragraph (a) to read as follows:

§ 90.149 License term.

(a) Licenses for stations authorized

under this part will be issued for a term

not to exceed ten (10) years from the

date of the original issuance or renewal.

* * * * *

11. Section 90.155 is revised to read

as follows:

§ 90.155 Time in which station must be

placed in operation.

(a) All stations authorized under this

part, except as provided in §§ 90.629,

90.631(f), 90.665, and 90.685, must be

placed in operation within twelve (12)

months from the date of grant or the

authorization cancels automatically and

must be returned to the Commission.

(b) A local government entity in the

Public Safety Pool, applying for any

frequency in this part, may also seek

extended implementation authorization

pursuant to § 90.629.

(c) For purposes of this section, a base

station is not considered to be placed in

operation unless at least one associated

mobile station is also placed in

operation. See also §§ 90.633(d) and

90.631(f).

(d) Multilateration LMS systems

authorized in accordance with § 90.353

must be constructed and placed in

operation within twelve (12) months

from the date of grant or the

authorization cancels automatically and

must be returned to the Commission.

MTA-licensed multilateration LMS

systems will be considered constructed

and placed in operation if such systems

construct a sufficient number of base

stations that utilize multilateration

technology (see paragraph (e) of this

section) to provide multilateration

location service to a substantial portion

of at least one BTA in the MTA.

(e) A multilateration LMS station will

be considered constructed and placed in

operation if it is built in accordance

with its authorized parameters and is

regularly interacting with one or more

other stations to provide location

service, using multilateration

technology, to one or more mobile units.

Specifically, LMS multilateration

stations will only be considered

constructed and placed in operation if

they are part of a system that can

interrogate a mobile, receive the

response at 3 or more sites, compute the

location from the time of arrival of the

responses and transmit the location

either back to the mobile or to a

subscriber’s fixed site.

(f) For purposes of this section, a

station licensed to provide commercial

mobile radio service is not considered to

have commenced service unless it

provides service to at least one

unaffiliated party.

(g) Application for extension of time

to commence service may be made on

FCC Form 601. Extensions of time must

be filed prior to the expiration of the

construction period. Extensions will be

granted only if the licensee shows that

the failure to commence service is due

to causes beyond its control. No

extensions will be granted for delays

caused by lack of financing, lack of site

availability, for the assignment or

transfer of control of an authorization,

or for failure to timely order equipment.

If the licensee orders equipment within

90 days of the license grant, a

presumption of due diligence is created.

(h) An application for modification of

an authorization (under construction) at

the existing location does not extend the

initial construction period. If additional

time to commence service is required, a

request for such additional time must be

submitted on FCC Form 601, either

separately or in conjunction with the

submission of the FCC Form 601

requesting modification.

§ 90.167 [Removed]

12. Remove § 90.167.

13. Section 90.175 is amended by

revising paragraph (i)(14) to read as

follows:

§ 90.175. Frequency coordination

requirements.

* * * * *

(i) * * *

(14) Except for applications for the

frequencies set forth in §§ 90.719(c) and

90.720, applications for frequencies in

the 220–222 MHz band.

14. Section 90.179 is amended by

redesignating paragraph (g) as paragraph

(i) and adding new paragraphs (g) and

(h) to read as follows:

§ 90.179 Shared use of radio stations.

* * * * *

(g) Notwithstanding paragraph (a) of

this section, licensees authorized to

operate radio systems on Public Safety

Pool frequencies designated in § 90.20

may share their facilities with Federal

Government entities on a non-profit,

cost-shared basis. Such a sharing

arrangement is subject to the provisions

of paragraphs (b), (d), and (e) of this

section.

(h) Notwithstanding paragraph (a) of

this section, licensees authorized to

operate radio systems on Industrial/

Business Pool frequencies designated in

§ 90.35 may share their facilities with

Public Safety Pool entities designated in

§ 90.20 and with Federal Government

entities on a non-profit, cost-shared

basis. Such a sharing arrangement is

subject to the provisions of paragraphs

(b), (d), and (e) of this section.

* * * * *

15. Section 90.187 is revised to read

as follows:

§ 90.187 Trunking in the bands between

150 and 512 MHz.

(a) Applicants for trunked systems

operating on frequencies between 150

and 512 MHz (except 220–222 MHz)

60876 Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations

must indicate on their applications

(class of station code, instructions for

FCC Form 601) that their system will be

trunked. Licensees of stations that are

not trunked, may trunk their systems

only after modifying their license (see

§ 1.927 of this chapter).

(b) Trunked systems operating under

this section must employ equipment

that prevents transmission on a trunked

frequency if a signal from another

system is present on that frequency. The

level of monitoring must be sufficient to

avoid causing harmful interference to

other systems. However, this monitoring

requirement does not apply if the

conditions in paragraph (b)(1) or (b)(2)

of this section, are met:

(1) Where applicants for or licensees

operating in the 470–512 MHz band

meet the loading requirements of

§ 90.313 and have exclusive use of their

frequencies in their service area.

(2) On frequencies where an applicant

or licensee does not have an exclusive

service area provided that all frequency

coordination requirements are complied

with and written consent is obtained

from affected licensees using either the

procedure set forth in paragraphs

(b)(2)(i) and (b)(2)(ii) of this section

(mileage separation) or the procedure

set forth in paragraph (b)(2)(iii) of this

section (protected contours).

(i) Affected licensees for the purposes

of this section are licensees of stations

that have assigned frequencies (base and

mobile) that are 15 kHz or less removed

from proposed stations that will operate

with a 25 kHz channel bandwidth;

stations that have assigned frequencies

(base and mobile) that are 7.5 kHz or

less removed from proposed stations

that will operate with a 12.5 kHz

bandwidth; or stations that have

assigned frequencies (base and mobile)

3.75 kHz or less removed from proposed

stations that will operate with a 6.25

kHz bandwidth.

(ii) Where such stations’ service areas

(37 dBu contour for stations in the 150–

174 MHz band and 39 dBu contour for

stations in the 421–512 MHz bands; see

§ 90.205) overlap a circle with radius

113 km (70 mi.) from the proposed base

station.

(iii) In lieu of the mileage separation

procedure set forth in paragraphs

(b)(2)(i) and (b)(2)(ii) of this section,

applicants for trunked facilities may

obtain consent only from stations that

would be subjected to objectionable

interference from the trunked facilities.

Objectionable interference will be

considered to exist when the

interference contour (19 dBu for VHF

stations, 21 dBu for UHF stations) of a

proposed trunked station would

intersect the service contour (37 dBu for

VHF stations, 39 dBu for UHF stations)

of an existing station. The existing

stations that must be considered in a

contour overlap analysis are a function

of the channel bandwidth of the

proposed trunked station, as follows:

(A) For trunked stations proposing 25

kHz channel bandwidth: Existing cochannel stations and existing stations

that have an operating frequency 15 kHz

or less from the proposed trunked

station.

(B) For trunked stations proposing

12.5 kHz channel bandwidth: Existing

co-channel stations and existing stations

that have an operating frequency 7.5

kHz or less from the proposed trunked

station.

(C) For trunked stations proposing

6.25 kHz channel bandwidth: Existing

co-channel stations and existing stations

that have an operating frequency 3.75

kHz or less from the proposed trunked

station.

(iv) The calculation of service and

interference contours referenced in

paragraph (b)(2)(iii) of this section shall

be done using generally accepted

engineering practices and standards

which, for purposes of this section, shall

presumptively be the practices and

standards agreed to by a consensus of all

certified frequency coordinators.

(v) The written consent from the

licensees specified in paragraphs

(b)(2)(i) and (b)(2)(ii) or (b)(2)(iii)(A),

(b)(2)(iii)(B) and (b)(2)(iii)C of this

section shall specifically state all terms

agreed to by the parties and shall be

signed by the parties. The written

consent shall be maintained by the

operator of the trunked station and be

made available to the Commission upon

request. The submission of a

coordinated trunked application to the

Commission shall include a certification

from the applicant that written consent

has been obtained from all licensees

specified in paragraphs (b)(2)(i) and

(b)(2)(ii) or (b)(2)(iii)(A), (b)(2)(iii)(B)

and (b)(2)(iii)(C) of this section that the

written consent documents encompass

the complete understandings and

agreements of the parties as to such

consent; and that the terms and

conditions thereof are consistent with

the Commission’s rules. Should a

potential applicant disagree with a

certified frequency coordinator’s

determination that objectionable

interference exists with respect to a

given channel or channels, that

potential applicant may request the

Commission to overturn the certified

frequency coordinator’s determination.

In that event, the burden of proving by

clear and convincing evidence that the

certified frequency coordinator’s

determination is incorrect shall rest

with the potential applicant. If a

licensee has consented to the use of

trunking, but later decides against the

use of trunking, that licensee may

request that the licensee(s) of the

trunked system(s) cease the use of

trunking. Should the trunked station(s)

decline the licensee’s request, the

licensee may request a replacement

channel from the Commission. A new

applicant whose interference contour

overlaps the service contour of a

trunked licensee will be assigned the

same channel as the trunked licensee

only if the trunked licensee consents in

writing and a copy of the written

consent is submitted to the certified

frequency coordinator responsible for

coordination of the application.

(c) Trunking of systems licensed on

paging-only channels or licensed in the

Radiolocation Service (subpart F) is not

permitted.

(d) Potential applicants proposing

trunked operation may file written

notice with any certified frequency

coordinator for the pool (Public Safety

or Industrial/Business) in which the

applicant proposes to operate. The

notice shall specify the channels on

which the potential trunked applicant

proposes to operate and the proposed

effective radiated power, antenna

pattern, height above ground, height

above average terrain and proposed

channel bandwidth. On receipt of such

a notice, the certified frequency

coordinator shall notify all other

certified frequency coordinators in the

relevant pool within one business day.

For a period of sixty days thereafter, no

application will be accepted for

coordination which specifies parameters

that would result in objectionable

interference to the channels specified in

the notice. Potential applicants shall not

file another notice for the same channels

within 10 km (6.2 miles) of the same

location unless six months shall have

elapsed since the filing of the last such

notice. Certified frequency coordinators

shall return without action, any

coordination request which violates the

terms of this paragraph (d).

(e) No more than 10 channels for

trunked operation in the Industrial/

Business Pool may be applied for in a

single application. Subsequent

applications, limited to an additional 10

channels or fewer, must be

accompanied by a certification,

submitted to the certified frequency

coordinator coordinating the

application, that all of the applicant’s

existing channels authorized for trunked

operation have been constructed and

placed in operation. Certified frequency

coordinators are authorized to require

documentation in support of the

Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60877

applicant’s certification that existing

channels have been constructed and

placed in operation. Applicants in the

Public Safety Pool may request more

than 10 channels at a single location

provided that any application for more

than 10 Public Safety Pool channels

must be accompanied by a showing of

sufficient need. The requirement for

such a showing may be satisfied by

submission of loading studies

demonstrating that requested channels

in excess of 10 will be loaded with 50

mobiles per channel within a five year

period commencing with grant of the

application.

(f) If a licensee authorized for trunked

operation discontinues trunked

operation for a period of 30 consecutive

days, the licensee, within 7 days of the

expiration of said 30 day period, shall

file a conforming application for

modification of license with the

Commission. Upon grant of that

application, new applicants may file for

the same channel or channels

notwithstanding the interference

contour of the new applicant’s proposed

channel or channels overlaps the service

contour of the station that was

previously engaged in trunked

operation.

16. Section 90.242 is amended by

revising paragraph (a)(3) to read as

follows:

§ 90.242 Travelers’ information stations.

(a) * * *

(3) Travelers Information Stations will

be authorized on a secondary basis to

stations authorized on a primary basis

in the bands 510–1715 kHz.

* * * * *

17. Section 90.421 is revised to read

as follows:

§ 90.421 Operation of mobile station units

not under the control of the licensee.

Mobile stations, as defined in § 90.7,

include vehicular-mounted and handheld units. Such units may be operated

by persons other than the licensee, as

provided for below, when necessary for

the licensee to meet its requirements in

connection with the activities for which

it is licensed. If the number of such

units, together with units operated by

the licensee, exceeds the number of

mobile units authorized to the licensee,

license modification is required. The

licensee is responsible for taking

necessary precautions to prevent

unauthorized operation of such units

not under its control.

(a) Public Safety Pool. (1) Mobile units

licensed in the Public Safety Pool may

be installed in any vehicle which in an

emergency would require cooperation

and coordination with the licensee, and

in any vehicle used in the performance,

under contract, of official activities of

the licensee. This provision does not

permit the installation of radio units in

non-emergency vehicles that are not

performing governmental functions

under contract but with which the

licensee might wish to communicate.

(2) Mobile units licensed under

§ 90.20(a)(2)(iii) may be installed in a

vehicle or be hand-carried for use by

any person with whom cooperation or

coordinations is required for medical

services activities.

(b) Industrial/Business Pool. Mobile

units licensed in the Industrial/Business

Pool may be installed in vehicles of

persons furnishing under contract to the

licensee and for the duration of the

contract, a facility or service directly

related to the activities of the licensee.

(c) In addition to the requirements in

paragraphs (a) and (b) of this section,

frequencies assigned to licensees in the

Private Land Mobile Radio Services may

be installed in the facilities of those who

assist the licensee in emergencies and

with whom the licensee must

communicate in situations involving

imminent safety to life or property.

§ 90.449 [Removed]

18. Remove § 90.449.

19. Section 90.629 is amended by

revising paragraphs (a)(1) and (a)(2) and

adding paragraph (f) to read as follows:

§ 90.629 Extended implementation period.

* * * * *

(a) * * *

(1) The proposed system will require

longer than twelve (12) months to

construct and place in operation

because of its purpose, size, or

complexity; or

(2) The proposed system is to be part

of a coordinated or integrated wide-area

system which will require more than

twelve (12) months to plan, approve,

fund, purchase, construct, and place in

operation; or

* * * * *

(f) Pursuant to § 90.155(b), the

provisions of this section shall apply to

local government entities applying for

any frequency in the Public Safety Pool.

PART 95—PERSONAL RADIO

SERVICES

20. The authority citation for part 95

continues to read as follows:

Authority: Secs 4, 303, 48 Stat. 1066, 1082,

as amended; 47 U.S.C. 154, 303.

21. Section 95.401 is amended by

adding a new paragraph (f) to read as

follows:

§ 95.401 (CB Rule 1) What are the Citizens

Band Radio Services?

* * * * *

(f) The Multi-Use Radio Service

(MURS)—a private, two-way, shortdistance voice, data or image

communications service for personal or

business activities of the general public.

The rules for this service are contained

in subpart J of this part.

22. Section 95.601, as amended at 65

FR 44008 effective October 16, 2000, is

further amended by revising the last

sentence to read as follows:

§ 95.601 Basis and purpose.

* * * The Personal Radio Services

are the GMRS (General Mobile Radio

Service)—subpart A, the Family Radio

Service (FRS)—subpart B, the R/C

(Radio Control Radio Service)—subpart

C, the CB (Citizens Band Radio

Service)—subpart D, the Low Power

Radio Service (LPRS)—subpart G, the

Wireless Medical Telemetry Service

(WMTS)—subpart H, the Medical

Implants Communication Service

(MICS)—subpart I, and the Multi-Use

Radio Service (MURS)—subpart J.

23. Section 95.603 is amended by

adding a new paragraph (g) to read as

follows:

§ 95.603 Certification required.

* * * * *

(g) Each Multi-Use Radio Service

transmitter (a transmitter that operates

or is intended to operate in the MURS)

must be certified in accordance with

§ 90.203 of this chapter.

24. Section 95.605 is amended by

revising the first sentence to read as

follows:

§ 95.605 Certification procedures.

Any entity may request certification

for its transmitter when the transmitter

is used in the GMRS, FRS, R/C, CB,

IVDS, LPRS, MURS, or MICS following

the procedures in part 2 of this chapter.

***

25. Section 95.631 is amended by

adding a new paragraph (j) to read as

follows:

§ 95.631 Emission types.

* * * * *

(j) A MURS station may transmit any

emission type as specified in § 90.207 of

this chapter.

26. A new section 95.632 is added to

read as follows:

§ 95.632 MURS transmitter frequencies.

(a) The MURS transmitter channel

frequencies are 151.820 MHz, 151.880

MHz, 151.940 MHz, 154.570 MHz,

154.600 MHz.

60878 Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations

(b) The authorized bandwidth is 11.25

kHz on frequencies 151.820 MHz,

151.880 MHz and 151.940 MHz. The

authorized bandwidth is 12.5 kHz on

frequencies 154.570 and 154.600 kHz.

(c) MURS transmitters must maintain

a frequency stability of 5.0 ppm, or 2.0

ppm if designed to operate with a 6.25

kHz bandwidth.

27. Section 95.633 is amended by

adding a new paragraph (f) to read as

follows:

§ 95.633 Emission bandwidth.

* * * * *

(f) The authorized bandwidth for any

emission type transmitted by a MURS

transmitter is specified in § 90.209 of

this chapter.

28. Section 95.635 is amended by

adding a new paragraph (e) to read as

follows:

§ 95.635 Unwanted radiation.

* * * * *

(e) For transmitters designed to

operate in the MURS, transmitters shall

comply with § 90.210 of this chapter.

29. Section 95.639 is amended by

adding a new paragraph (h) to read as

follows:

§ 95.639 Maximum transmitter power.

* * * * *

(h) No MURS unit, under any

condition of modulation, shall exceed 2

W effective radiated power (ERP).

30. Section 95.649 is revised to read

as follows:

§ 95.649 Power capability.

No CB, R/C, LPRS, FRS, MICS, MURS

or WMTS unit shall incorporate

provisions for increasing its transmitter

power to any level in excess of the

limits specified in § 95.639.

31. Section 95.651 is revised to read

as follows:

§ 95.651 Crystal control required.

All transmitters used in the Personal

Radio Services must be crystal

controlled, except an R/C station that

transmits in the 26–27 MHz frequency

band, a FRS unit, a LPRS unit, a MURS

unit, a MICS transmitter, or a WMTS

unit.

32. Appendix 1 to Subpart E is

revised to read as follows:

Appendix 1 to Subpart E of Part 95—

Glossary of Terms

The definitions used in this subpart E are:

Authorized bandwidth. Maximum

permissible bandwidth of a transmission.

Carrier power. Average TP during one

unmodulated RF cycle.

CB. Citizens Band Radio Service.

CB transmitter. A transmitter that operates or

is intended to operate at a station

authorized in the CB.

Channel frequencies. Reference frequencies

from which the carrier frequency,

suppressed or otherwise, may not

deviate by more than the specified

frequency tolerance.

Crystal. Quartz piezo-electric element.

Crystal controlled. Use of a crystal to

establish the transmitted frequency.

dB. Decibels.

EIRP. Effective Isotropic Radiated Power.

Antenna input power times gain for freespace or in-tissue measurement

configurations required by MICS,

expressed in watts, where the gain is

referenced to an isotropic radiator.

FCC. Federal Communications Commission.

Filtering. Refers to the requirement in

§ 95.633(b).

FRS. Family Radio Service.

GMRS. General Mobile Radio Service.

GMRS transmitter. A transmitter that

operates or is intended to operate at a

station authorized in the GMRS.

Harmful interference. Any transmission,

radiation or induction that endangers the

functioning of a radionavigation or other

safety service or seriously degrades,

obstructs or repeatedly interrupts a

radiocommunication service operating in

accordance with applicable laws, treaties

and regulations.

Mean power. TP averaged over at least 30

cycles of the lowest modulating

frequency, typically 0.1 seconds at

maximum power.

Medical Implant Communications Service

(MICS) transmitter. A transmitter

authorized to operated in the MICS.

Medical implant device. Apparatus that is

placed inside the human body for the

purpose of performing diagnostic or

therapeutic functions.

Medical implant event. An occurrence or the

lack of an occurrence recognized by a

medical implant device, or a duly

authorized health care professional, that

requires the transmission of data from a

medical implant transmitter in order to

protect the safety or well-being of the

person in whom the medical implant

transmitter has been implanted.

Medical implant programmer/control

transmitter. A MICS transmitter that

operates or is designed to operate outside

of a human body for the purpose of

communicating with a receiver

connected to a medical implant device.

Medical implant transmitter. A MICS

transmitter that operates or is designed

to operate within a human body for the

purpose of facilitating communications

from a medical implant device.

MICS. Medical Implant Communications

Service.

MURS. Multi-Use Radio Service.

Peak envelope power. TP averaged during

one RF cycle at the highest crest of the

modulation envelope.

R/C. Radio Control Radio Service.

R/C transmitter. A transmitter that operates

or is intended to operate at a station

authorized in the R/C.

RF. Radio frequency.

TP. RF transmitter power expressed in W,

either mean or peak envelope, as

measured at the transmitter output

antenna terminals.

Transmitter. Apparatus that converts

electrical energy received from a source

into RF energy capable of being radiated.

W. Watts.

33. A new Subpart J is added to Part

95 to read as follows:

Subpart J—Multi-Use Radio Service (MURS)

General Provisions

95.1301 Eligibility.

95.1303 Authorized locations.

95.1305 Station identification.

95.1307 Permissible communications.

95.1309 Channel use policy.

Subpart J—Multi-Use Radio Service

(MURS)

General Provisions

§ 95.1301 Eligibility.

An entity is authorized by rule to

operate a MURS transmitter if it is not

a foreign government or a representative

of a foreign government and if it uses

the transmitter in accordance with

§ 95.1309 and otherwise operates in

accordance with the rules contained in

this subpart. No license will be issued.

§ 95.1303 Authorized locations.

(a) MURS operation is authorized:

(1) Anywhere CB station operation is

permitted under § 95.405; and

(2) Aboard any vessel of the United

States, with the permission of the

captain, while the vessel is travelling

either domestically or in international

waters.

(b) MURS operation is not authorized

aboard aircraft in flight.

(c) Anyone intending to operate a

MURS unit on the islands of Puerto

Rico, Desecheo, Mona, Vieques, and

Culebra in a manner that could pose an

interference threat to the Arecibo

Observatory shall notify the Interference

Office, Arecibo Observatory, Post Office

Box 995, Arecibo, Puerto Rico 00613, in

writing or electronically, of the location

of the unit. Operators may wish to

consult interference guidelines, which

will be provided by Cornell University.

Operators who choose to transmit

information electronically should e-mail

to: prcz@naic.edu.

(1) The notification to the Interference

Office, Arecibo Observatory shall be

made 45 days prior to commencing

operation of the unit. The notification

shall state the geographical coordinates

of the unit.

(2) After receipt of such notifications,

the Commission will allow the Arecibo

Observatory a period of 20 days for

comments or objections. The operator

will be required to make reasonable

Federal Register / Vol. 65, No. 199 / Friday, October 13, 2000 / Rules and Regulations 60879

efforts in order to resolve or mitigate

any potential interference problem with

the Arecibo Observatory. If the

Commission determines that an operator

has satisfied its responsibility to make

reasonable efforts to protect the

Observatory from interference, the unit

may be allowed to operate.

§ 95.1305 Station identification.

A MURS station is not required to

transmit a station identification

announcement.

§ 95.1307 Permissible communications.

(a) MURS stations may transmit voice,

data or image signals as permitted in

this subpart.

(b) A MURS station may transmit any

emission type, subject to the limitations

contained in § 90.207 of this chapter.

(c) MURS frequencies may be used for

remote control and telemetering

functions. Emission types A1D, A2D,

F1D, F2D are authorized and stations

used to control remote objects or

devices may be operated on the

continuous carrier transmit mode,

except on frequency 154.600 MHz.

§ 95.1309 Channel use policy.

(a) The channels authorized to MURS

systems by this part are available on a

shared basis only and will not be

assigned for the exclusive use of any

entity.

(b) Those using MURS transmitters

must cooperate in the selection and use

of channels in order to reduce

interference and make the most effective

use of authorized facilities. Channels

must be selected in an effort to avoid

interference to other MURS

transmissions.

[FR Doc. 00–25276 Filed 10–12–00; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AG26

Endangered and Threatened Wildlife

and Plants; Establishment of a

Nonessential Experimental Population

of Black-Footed Ferrets in NorthCentral South Dakota

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the Fish and Wildlife

Service (Service), in cooperation with

the Cheyenne River Sioux Tribe, the

Forest Service, and the Bureau of Indian

Affairs (BIA), will reintroduce blackfooted ferrets (Mustela nigripes) into

north-central South Dakota on the

Cheyenne River Sioux Reservation. The

purposes of this reintroduction are to

implement actions required for recovery

of the species and to evaluate and

improve reintroduction techniques and

management applications. We will

release surplus captive-raised blackfooted ferrets in October 2000, and

release additional animals annually for

several years thereafter until we

establish a self-sustaining population. If

this reintroduction program is

successful, a wild population could be

established in 5 years or less. The

Cheyenne River Sioux Reservation

population is established as a

nonessential experimental population in

accordance with section 10(j) of the

Endangered Species Act of 1973, as

amended. We will manage this

population under provisions of this

final special rule.

DATES: The effective date of this rule is

October 13, 2000.

ADDRESSES: You may inspect the

complete file for this rule during normal

business hours at the U.S. Fish and

Wildlife Service, Ecological Services

Office, 420 South Garfield Avenue,

Suite 400, Pierre, South Dakota 57501 or

telephone 605/224–8693. You must

make an appointment in advance if you

wish to inspect the file.

FOR FURTHER INFORMATION CONTACT:

Mike Lockhart at 307/721–8805.

SUPPLEMENTARY INFORMATION:

Background

1. Legislative

Congress made significant changes to

the Endangered Species Act of 1973

(Act), as amended, with the addition of

section 10(j) to allow for the designation

of specific populations of listed species

as ‘‘experimental populations.’’

Previously, we had authority to

reintroduce populations into

unoccupied portions of a listed species’

historical range when doing so would

foster the conservation and recovery of

the species. However, local citizens

often opposed these reintroductions

because they were concerned about the

placement of restrictions and

prohibitions on Federal and private

activities. Under section 10(j), the

Secretary of the Department of the

Interior can designate reintroduced

populations established outside the

species’ current range but within its

historical range as ‘‘experimental.’’

Based on the best available information,

the Secretary will determine whether

such populations are ‘‘essential,’’ or

‘‘nonessential,’’ to the continued

existence of the species. Regulatory

restrictions are considerably reduced

under a Nonessential Experimental

Population (NEP) designation.

Species listed as endangered or

threatened are afforded protection

primarily through the prohibitions of

section 9 and the requirements of

section 7. Section 9 of the Act prohibits

the take of a listed species. ‘‘Take’’ is

defined by the Act as harass, harm,

pursue, hunt, shoot, wound, trap,

capture, or collect, or attempt to engage

in any such conduct. Section 7 of the

Act outlines the procedures for Federal

interagency cooperation to conserve

federally listed species and designated

critical habitats. It mandates all Federal

agencies to determine how to use their

existing authorities to further the

purposes of the Act to aid in recovering

listed species. It also states that Federal

agencies will, in consultation with the

Service, ensure that any action they

authorize, fund, or carry out is not likely

to jeopardize the continued existence of

a listed species or result in the

destruction or adverse modification of

designated critical habitat. Section 7 of

the Act does not affect activities

undertaken on private lands unless they

are authorized, funded, or carried out by

a Federal agency.

For the purposes of section 9 of the

Act, a population designated as

experimental is treated as threatened

regardless of the species’ designation

elsewhere in its range. Threatened

designation allows us greater discretion

in devising management programs and

allows us to adopt whatever regulations

are necessary to provide for the

conservation of a threatened species. In

these situations, the general regulations

applying most section 9 prohibitions to

threatened species do not apply to that

species, and the special rule contains

the prohibitions and exceptions

necessary and appropriate to conserve

that species. Regulations for NEP’s are

usually more compatible with human

activities in the reintroduction area.

For the purposes of section 7 of the

Act, we treat NEP’s as if the population

is proposed for listing, but we treat

NEP’s as threatened species when they

are located within a National Wildlife

Refuge or National Park. When NEP’s

occur outside of such refuges or parks,

Federal agencies are required to confer

with the Service, in accordance with

section 7(a)(4) of the Act, on their

actions that are likely to jeopardize the

continued existence of a proposed

species. The results of a conference are

advisory in nature, and agencies are not

restricted from committing resources to

projects regardless of conference

findings and recommendations.