Federal Register Vol. 80, No.239,

This proposed rule is issued under Marketing Agreement and Order No. 983, as amended (7 CFR part 983), regulating the handling of pistachios grown in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California, Arizona, and New Mexico pistachio handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable pistachios beginning on September 1, 2015, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposed rule would increase the assessment rate for the 2015-16 and subsequent production years from $0.0005 to $0.0035 per pound of assessed weight pistachios.

The California, Arizona, and New Mexico pistachio marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of California, Arizona, and New Mexico pistachios. They are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2011-12 and subsequent production years, the Committee recommended, and the USDA approved, an assessment rate that would continue in effect from production year to production year unless modified, suspended, or terminated by USDA based upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on July 9, 2015 and October 20, 2015 and unanimously recommended 2015-16 production year expenditures of $1,056,402 and an assessment rate of $0.0035 per pound of assessed weight pistachios handled to fund Committee expenses. This represents an increase over the prior year's budget and assessment rate. In comparison, last year's budgeted expenditures were $1,001,400. The assessment rate of $0.0035 is $0.0030 higher than the rate currently in effect. The Committee's recommended 2015-16 expenditures are $55,002 higher than last year's budgeted expenditures. The reasons for the proposed increase include a significant increase in budgeted expenses in 2015 over actual expenses in 2014, a significantly smaller crop estimate in 2015, and allocation of funds for Sterile Insect Technology/Navel Orange Worm (SIT/NOW) research. When applied to the Committee's crop estimate for the 2015-16 production year of 265 million pounds, the current assessment rate of $0.0005 would not generate sufficient income to cover anticipated expenses. The proposed assessment rate of $0.0035 per pound of assessed weight pistachios would generate assessment income of $927,500. Anticipated assessment income combined with financial reserves and other income would provide sufficient revenue for the Committee to meet its budgeted expenses while maintaining its financial reserve within the limit authorized under the order.

The major expenditures recommended by the Committee for the 2015-16 production year include $560,000 for SIT/NOW research, $92,402 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $80,000 for a contingency fund. Budgeted expenses in 2014-15 were $360,000 for Technical Assistance Specialty Crop (TASC) Program research, $125,000 for other research, $117,400 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $75,000 for a contingency fund. Actual expenses in 2014-15 were significantly lower, at $547,199, as the TASC research was not funded.

The assessment rate recommended by the Committee was derived by considering anticipated expenses and production levels of California, Arizona, and New Mexico pistachios, and other pertinent factors. As mentioned earlier, pistachio production levels are estimated at 265 million pounds, which should generate $927,500 in assessment income. Anticipated assessment income derived from handler assessments, along with other income and financial reserves would provide sufficient revenue for the Committee to meet its budgeted expenses while maintaining its financial reserve within the limit authorized under the order. The significant increase in the assessment rate is due to a significant increase in budgeted expenses in 2015 over actual expenses in 2014, and also a significantly smaller crop estimate in 2015. The financial reserve is estimated to be $239,994 at the end of the 2015-16 production year.

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA based upon a recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each production year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public, and interested persons may express their views at these meetings. USDA would evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2015-16 budget and those for subsequent production years would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1,152 producers of pistachios in the production area and approximately 19 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

Based on Committee data, it is estimated that about 47 percent of the handlers annually ship less than $7,000,000 worth of pistachios, and it is also estimated that 68 percent of the producers have annual receipts less than $750,000. Thus, the majority of handlers in the production area may be classified as large entities, and the majority of producers may be classified as small entities.

This proposal would increase the assessment rate collected from handlers for the 2015-16 and subsequent production years from $0.0005 to $0.0035 per pound of assessed weight pistachios. The Committee unanimously recommended 2015-16 expenditures of $1,056,402 and an assessment rate of $0.0035 per pound of assessed weight pistachios. The proposed assessment rate of $0.0035 is $0.0030 higher than the 2014-15 rate. The quantity of assessable pistachios for the 2015-16 production year is estimated at 265 million pounds. Thus, the $0.0035 rate should provide $927,500 in assessment income. Anticipated assessment income derived from handler assessments, along with other income and financial reserves would provide sufficient revenue for the Committee to meet its budgeted expenses while maintaining its financial reserve authorized under the order which is approximately two production years' budgeted expenses.

The major expenditures recommended by the Committee for the 2015-16 production year include $560,000 for SIT/NOW research, $92,401 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $80,000 for a contingency fund. Budgeted expenses in 2014-15 were $360,000 for TASC Program research, $125,000 for other research, $117,400 for administrative expenses, $314,000 for salary and related employee expenses, $10,000 for compliance expenses, and $75,000 for a contingency fund. The reasons for the proposed increase include a significant increase in budgeted expenses in 2015 over actual expenses in 2014, a significantly smaller crop estimate in 2015, and allocation of funds for Sterile Insect Technology/Navel Orange Worm (SIT/NOW) research.

Prior to arriving at this budget and assessment rate, the Committee considered alternative expenditure levels but ultimately determined that 2015-16 expenditures of $1,056,402 were appropriate and that the current assessment rate would generate insufficient revenue to meet its expenses.

According to data from the National Agricultural Statistics Service, the season average producer price was $3.48 per pound of assessed weight pistachios in 2013 and $3.10 per pound in 2014. A review of historical information and preliminary information pertaining to the upcoming production year indicates that the producer price for the 2015-16 production year could range between $3.48 and $3.10 per pound of assessed weight pistachios. Therefore, the estimated assessment revenue for the 2015-16 production year as a percentage of total producer revenue could range between 0.10 and 0.11 percent.

This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. These costs would be offset by the benefits derived from the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the California, Arizona, and New Mexico pistachio industry, and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the July 9, 2015, and October 20, 2015, meetings were public and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0215. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large California, Arizona, and New Mexico pistachio handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2015-16 production year began on September 1, 2015, and the marketing order requires that the rate of assessment for each production year apply to all assessable pistachios handled during such production year; (2) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; and (3) handlers are aware of this action, which was unanimously recommended by the Committee at a public meeting.

For the reasons set forth in the preamble, 7 CFR part 983 is proposed to be amended as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-6550; Directorate Identifier 2013-NM-162-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On May 4, 1990, we issued AD 90-11-05, Amendment 39-6603 (55 FR 20129, May 15, 1990). AD 90-11-05 requires actions intended to address an unsafe condition on certain Airbus Model A300 series airplanes and Model A300 B4-600 series airplanes.

Since we issued AD 90-11-05, Amendment 39-6603 (55 FR 20129, May 15, 1990), we have determined that a change to certain compliance times is needed.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0818R1, dated August 20, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Model A300 series airplanes and Model A300 B4-600 series airplanes. The MCAI states:

The corrective action for a hinge bracket that is cracked or fractured is replacing the damaged hinge bracket with a new bracket.

For airplanes on which a crack is found in one half bracket or both half brackets, related investigative actions include a general visual inspection for secondary damage (e.g., cracks, wear damage, pitting, and gouging) in the following areas:

• The inner shroud-box forward attachments and the attachment brackets at the inboard end.

• The inner and outer shroud-box structure, adjacent to the fractured bracket.

• The top skin of the inboard flap.

The corrective action for damage findings during the related investigative action is repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA).

The compliance time for related investigative actions and corrective actions is before further flight.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6550.

We reviewed the following service information.

• Airbus Service Bulletin A300-57-0142, Revision 04, dated March 30, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.

• Airbus Service Bulletin A300-57-6010, Revision 05, dated February 21, 2011, which describes procedures for doing an inspection of the forward and aft hinge brackets on the outer shroud box.

• Airbus Service Bulletin A300-57-6011, Revision 2, dated July 10, 1989, which describes procedures for replacing the aft aluminum alloy brackets on the outer shroud box with new steel brackets.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Although the MCAI or service information allows further flight after cracks are found during compliance with the required action, paragraph (g) of this proposed AD would require replacement of any cracked hinge bracket of the outer shroud box before further flight. This replacement before further flight is due to the safety implications and consequences of such cracking.

We estimate that this proposed AD affects 3 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:

We have received no definitive data that would enable us to provide cost estimates for the on-condition related investigative and corrective actions specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Deer Lodge-City-County Airport, Deer Lodge, MT.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3773; Airspace Docket No. 15-ANM-22.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Deer Lodge-City-County Airport, Deer Lodge, MT. After a review of the airspace, the FAA found modification necessary for the safety and management of standard instrument approach procedures for IFR operations at the airport. Class E airspace extending upward from 700 feet above the surface would be decreased to within a 6-mile radius of Deer Lodge-City-County Airport.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9Z, dated August 6, 2015 and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The EPA is proposing to amend its regulations implementing title VI of the Civil Rights Act of 1964 (“Title VI”), section 504 of the Rehabilitation Act of 1973 (“Section 504”), section 13 of the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500), and the Age Discrimination Act of 1975 (“Age Discrimination Act”) in order to enable it to create a model civil rights program which can nimbly and effectively enforce civil rights statutes in the environmental context. Together, these statutes prohibit discrimination on the basis of race, color, national origin, (including discrimination based on language ability or limited English proficiency), disability, sex, and age in programs or activities that receive federal financial assistance. This rulemaking proposes to amend subpart D (Requirements for Applicants and Recipients) and subpart E (Agency Compliance Procedures) provisions regarding compliance information, post-award compliance reviews, and complaint investigations. This rulemaking also proposes to make a technical correction to subpart D to remove citations to expired Office of Management and Budget (OMB) control numbers and to place the current OMB control number for information collection requests under 40 CFR part 7 in the consolidated list of OMB approvals under the Paperwork Reduction Act in 40 CFR part 9.

Applicants for and recipients of EPA assistance already are obligated to comply with Title VI and other nondiscrimination statutes as a condition of receiving EPA assistance. This proposed rule is consistent with the broad discretion that, as recognized by the Supreme Court, has been afforded all federal agencies with regard to the enforcement of federal nondiscrimination obligations,1 and is part of a package of efforts intended to improve EPA's civil rights program. One effort, for example, is the draft External Compliance and Complaints Program Strategic Plan, which was published for comment on September 10, 2015 (http://www.epa.gov/ocr/external-compliance-title-vi-new-developments). This package, as a whole, will increase transparency and accountability and move EPA closer to its goal of establishing a model civil rights program. This proposed rule—another part of the package—will assist the EPA in continuing to be more proactive in monitoring and enforcing recipients' compliance with Title VI and other nondiscrimination statutes.

The EPA has sought to improve its External Compliance and Complaints Program. In 2009, EPA made a commitment to strengthen and revitalize EPA's civil rights program. In addition to increasing staff, securing additional training and improving processes, as part of that effort, in 2010, EPA funded an independent in-depth evaluation of its civil rights program by the firm Deloitte Consulting LLP. Following receipt of the evaluation, the Administrator established an internal Civil Rights Executive Committee to review Deloitte's evaluation, and other sources of information, and make recommendations for building a model civil rights program for EPA. The Executive Committee posted its draft report for public review in February 2012, and the Administrator approved the final report and recommendations on April 13, 2012.

One of the Executive Committee's recommendations was for the EPA to be more proactive in terms of achieving compliance with Title VI and other nondiscrimination obligations by, in part, analyzing data and information obtained from recipients and developing consistent processes. Accordingly, as part of its efforts to create a robust pre- and post- award compliance program (as identified in the EPA Draft EJ 2014 Plan Supplement dated April 12, 2012), the EPA began the process of reevaluating its regulations to identify what data and information it currently obtains from recipients. The EPA first looked to other federal agencies for their best practices in terms of an External Compliance and Complaints Program. Specifically, the EPA evaluated its External Compliance and Complaints Program by comparing its Title VI and other nondiscrimination regulations to those of over twenty other federal agencies. The EPA found that the other agencies' regulations were the same or extremely similar, while the EPA's regulations were different. Many of these other agencies have successful external compliance programs because, in part, their regulations provide for a robust compliance program, (including routine access to recipient data through compliance reports and compliance reviews), and explicitly affirm the agency's discretion to appropriately tailor complaint resolution paths based on the nature and complexity of the allegations presented. While some aspects of EPA's External Compliance and Complaints Program will continue to have unique characteristics that are tailored to EPA's needs, the EPA, recipients, complainants, and industry will benefit from the predictability, consistency and familiarity arising from this effort to conform these aspects of the EPA's regulations with regulations promulgated by other federal agencies with a record of proven success and with the Department of Justice's Coordination Regulations at 28 CFR part 42, subpart F. Thus, this proposed rule will give the EPA a similar level of flexibility and discretion as is afforded to other federal agencies when collecting compliance information, conducting post-award compliance reviews, and investigating complaints.

Finally, these amendments recognize that the EPA's current, self-imposed regulatory deadlines are impracticable given the inherent scientific complexity associated with determining which and how populations are impacted by environmental pollutants; the number of discrimination allegations and theories that may be asserted in any one complaint under Title VI or the other nondiscrimination statutes; and the volume of the complaints received. Indeed, there are several examples of the analytical and logistical complexity of discrimination complaints historically filed with the EPA on its Web site. For instance, in one case alleging disparate health impacts, the EPA developed a pesticide exposure analysis to predict daily air concentrations of a specific pesticide at different distances from an application site, based on information concerning the amount of the pesticide applied during a seven-year period. In order to conduct such an analysis, the EPA had to gather and enter the available raw data into a database and then have the appropriate scientific models created that took into account several factors including, time of day, location, wind speed, proximity and temperature. Next, this analysis was peer reviewed before the EPA was ultimately able to resolve the complaint. The EPA recognizes that not every administrative complaint will require this same level of scientific analysis to determine who is potentially exposed to a particular pollutant. Also, the EPA recognizes that there may be several potential resolution paths, including informal resolution and Alternative Dispute Resolution, even for those cases raising disparate health claims, which the EPA will pursue, when appropriate. By eliminating arbitrary deadlines, the EPA will be better positioned to strategically manage its administrative complaint docket by identifying the specific aspects of individual complaints, such as complaints that present the potential for high-impact resolution. Further, the EPA will be able to explore the best resolution option for those complaints, including tailored goals and benchmarks for specific phases of the individual case, rather than a cookie-cutter approach that assumes all cases should follow the same approach, resolution strategy, and timeframes. Tailoring the appropriate resolution path to each complaint based on the unique factual pattern and legal issues presented, will further allow the EPA to dedicate the appropriate amount of time and resources to resolve each individual complaint.

It is important to note that even with the elimination of the arbitrary deadlines, the EPA must promptly process and investigate complaints. Removal of deadlines will not allow the EPA to unreasonably delay its resolution of complaints because, in part, the definition of a prompt investigation and resolution turns on the factual context of the complaint. Indeed, the language in the proposed rule is subject to judicial review and is consistent with judicial precedent that recognizes that any investigatory timeframe may be affected by the breadth and complexity of the issues in the complaint.

Thus, based on the entire proposed regulatory amendments that will conform the EPA's regulations to those of more than twenty other federal agencies, the EPA will take another step in its journey to continue to create a model Civil Rights Program. In light of the flexibility, discretion, and accountability for individual cases affirmed by this proposed rule, the EPA will be better able to strategically implement its external civil rights enforcement program to ensure prompt, effective and efficient complaint docket management and to enhance its proactive compliance program.

The EPA is subject to the Department of Justice's Coordination Regulations describing specific implementation, compliance, and enforcement obligations of federal funding agencies under Title VI and similar provisions in federal grant statutes. See 28 CFR 42.401 through 42.415. In accordance with 28 CFR 42.403, the EPA submitted this proposed rule to the Assistant Attorney General, Civil Rights Division, Department of Justice, and received her approval. The final rule will be submitted to the Attorney General through the Assistant Attorney General for final approval pursuant to 28 CFR 42.403(c)(3).

The EPA proposes to amend § 7.85(b) by deleting the following text describing when additional information will be sought from recipients—“where there is reason to believe that discrimination may exist in a program or activity receiving EPA assistance.” In this same regulatory section, the EPA also proposes deleting “and shall be accompanied by a written statement summarizing the complaint or setting forth the basis for the belief that discrimination may exist.” These changes reaffirm the agency's existing authority to use compliance reviews to identify and resolve compliance concerns with recipients of EPA financial assistance to prevent costly investigations and litigation. Compliance reviews are an important part of the implementation of all EPA programs and essential to the functioning of comprehensive compliance and enforcement efforts. EPA will work with states and other recipients of financial assistance to ensure that compliance reviews are focused on a review of data and information that is relevant to determining compliance. EPA solicits comments on how to schedule and conduct compliance reviews in ways that minimize unnecessary burdens to both EPA and the recipients.

Further, the revised language is consistent with the regulatory provisions of more than twenty other federal agencies with regard to the routine collection of data and information from recipients. Several of those federal agencies have successful compliance review programs that have been well-established for many years, so the concept of conducting compliance reviews is something with which EPA's external stakeholders should already have a great deal of familiarity based on engagement with those other federal agencies. In other words, this proposed rule is not a significant change, as it affords the EPA the same discretion and flexibility granted to those agencies in their compliance reviews. Such routine collection is also considered a best practice for Title VI programs as reflected in the Department of Justice's Coordination Regulations, which require federal agencies to “provide for the collection of data and information from applicants for and recipients of federal assistance sufficient to permit effective enforcement of Title VI,” 28 CFR 42.406(a). Thus, this proposed rule is intended to clarify the EPA's ability to access such information under the current regulations, while providing the flexibility to establish a successful compliance review program and improve the EPA's External Compliance and Complaints Program. The EPA is requesting comment on EPA's proposed modifications to its compliance review regulations; especially its proposed phased-approach to conducting compliance reviews that is discussed in the accompanying cost analysis.

Additionally, this proposed rule gives the EPA discretion to require recipients to submit compliance reports. This proposed rule would, as demonstrated by the successful compliance report programs of sister agencies, be an invaluable tool in prioritizing complaint investigations, selecting recipients for compliance reviews, and conducting targeted outreach to provide technical assistance. Currently, § 7.85 of the regulation imposes an obligation “to collect, maintain, and on request . . . provide” specific information to the EPA. Similarly, § 7.115 notifies recipients that the EPA may request “data and information” pertaining to any recipient's programs or activities receiving EPA assistance. Consistent with § 7.35, recipients of EPA assistance are also responsible for collecting such reports from any entity through which a recipient operates the program and activity receiving EPA financial assistance, including sub-recipients, licensees, or contractors. In other words, recipients already have a regulatory obligation to collect and maintain relevant information. With this proposed rule, recipients may be asked to submit a report containing the relevant and current information. Adding this proposed rule allows the EPA to more proactively enforce Title VI and other nondiscrimination obligations. This proposed modification makes clear that compliance reports would be required at such times and in such form and containing such information as the EPA may determine to be necessary to enable the EPA to ascertain whether the recipient has complied or is complying with 40 CFR part 7. The proposed regulation, however, does not identify or prescribe the exact content of such reports. The EPA is requesting written comment on the content, frequency and prioritization of which recipients will be expected to submit compliance reports. During the notice and comment period, the EPA will also engage stakeholders through listening sessions in order to explore the compliance reports process and their content. At this time, the EPA's estimate of the potential burden associated with compliance with this proposed regulation is based on assumptions about what type of information a recipient will be required to include in such a report—from involving the compilation or gathering of pre-existing information, including information specifically identified in the current regulations and Standard Form 4700-4, to including information related to public involvement, limited English proficiency, or data and information demonstrating that the program or activity receiving the EPA assistance complies with its nondiscrimination obligations.

The EPA understands that stakeholders may have questions about what specific information should be contained in such reports. Accordingly, the EPA may continue to request compliance reports related to information gathering in the context of compliance reviews and complaint investigations conducted under §§ 7.110, 7.115, and 7.120. However, the EPA does not intend to request compliance reports, unrelated to compliance reviews and complaint investigations, from recipients any sooner than 90 days after it has drafted guidance about such reports, sought stakeholder input on the guidance, put the guidance out for notice and comment, and finalized the guidance. This process will allow the EPA, recipients, and other stakeholders to work collaboratively to improve the EPA's External Compliance and Complaints Program.

Under the current regulations, on-site reviews for post-award compliance may occur when the Office of Civil Rights (OCR) “has reason to believe that discrimination may be occurring in such programs or activities.” For the reasons set forth above, the EPA proposes amending 40 CFR 7.110(a) and 7.115(a), to affirm the OCR's flexibility and discretion to structure how it conducts pre-award and post-award compliance reviews. This modification is consistent with the Title VI regulations of more than twenty other federal agencies.

Additionally, the EPA proposes to remove the provision to provide post-review notice to a recipient within 180 calendar days from the start of a compliance review or complaint investigation pursuant to 40 CFR 7.115(c)(1). Instead of this calendar deadline, the EPA proposes to conform to the regulations of over twenty other federal agencies that state that complaints will be “promptly” investigated. The EPA proposes to adopt this language because it has found that this self-imposed, inflexible deadline is impracticable given the inherent scientific complexity associated with determining which and how populations are impacted by environmental pollutants; the number of discrimination allegations and theories that may be asserted in any one complaint under Title VI or the other nondiscrimination statutes; and the volume of the complaints received. Without the burden of an unrealistic, self-imposed deadline, the EPA will be in a better position to improve the entire External Compliance and Complaints Program, including the compliance review and reports efforts discussed above. Even without this deadline, the EPA still must promptly investigate complaints.

This proposed rule removes the introductory text of 40 CFR 7.120 concerning the investigation of “all complaints” and to adopt language, substantially similar to the regulations of other federal agencies, requiring investigation of complaints that “indicate a possible failure to comply.” This change will allow the EPA to prioritize and dedicate resources to complaints that—after an initial review—reveal a possible failure to comply. Yet, the proposed rule does not alter the reasons for rejecting or closing a complaint upon which the EPA and other agencies have relied. Instead, the proposed regulatory language clarifies the agency's discretion to pursue a path to resolution in light of the particular facts of each case. The EPA seeks to conform to the regulatory text of its sister agencies in order to affirm that it will not seek to impose a one-size fits all approach to resolution. In other words, the proposed rule is intended to reflect that a path to resolution must be tailored to the specific facts of the case and such a path may not be identical for every complaint. Not every complaint, for example, will require the completion of a costly and time-consuming investigation in order to resolve it.

This proposed rule also removes the deadline for notifying complainants and recipients of receipt of a complaint against the recipient and for reviewing a complaint for acceptance, rejection, or referral to the appropriate federal agency. Currently, the EPA's notification regulation requires the EPA to notify the complainant and the recipient of receipt of a complaint within five calendar days under 40 CFR 7.120(c). The current regulations also require the EPA to initiate complaint processing procedures by conducting a jurisdictional review to determine whether to accept, reject, or refer a complaint within twenty calendar days of acknowledgement of the complaint.

The current regulatory provisions imposing a deadline on complaint notification and jurisdictional review are unique to the EPA. This proposed rule removes these deadlines and, as with complaint investigations, it proposes that the EPA will “promptly” acknowledge receipt of a complaint and issue a decision on whether a complaint is accepted, rejected, or referred. The substitution of “promptly” for specific deadlines ensures EPA has the flexibility to improve its External Compliance and Complaints Program. The EPA believes this removal is not only reasonable, but will provide EPA with the flexibility and time necessary to complete a comprehensive and thorough initial review to identify the most appropriate path to resolve the complaint. Although, as reflected in the regulations of more than twenty other federal agencies, it is not common practice to include specific deadlines, the EPA is fully committed to processing complaints and compliance reviews expeditiously. In fact, the EPA intends, like other federal agencies, to create internal procedures and policies to provide guidance to staff, including the expectation that a determination of what constitutes reasonably prompt action varies based on the stage of administrative processing. For instance, a purely administrative task, (such as, issuing an acknowledgment of a correspondence), will take significantly less time than the more complex and nuance evaluation associated with conducting jurisdictional reviews, investigations and compliance reviews. Nonetheless, as discussed above with complaint investigations, because of the volume and complexity of the complaints that the EPA receives, these self-imposed regulatory deadlines have proven to be impracticable, even at these early stages.

The EPA proposes to remove the reference to expired OMB control number 2000-0006 which currently appears after the text of 40 CFR 7.80 and 7.85. The OMB control number for the collection of information under the EPA's 40 CFR part 7 regulations is OMB control number 2030-0020. Because no person is required to respond to an information collection request regulated by the Paperwork Reduction Act unless a valid control number assigned by OMB is displayed in 40 CFR part 9, another part of the Code of Federal Regulations, a valid Federal Register notice, or by any other appropriate means, the EPA proposes to add the citation for the OMB control no. 2030-0020 and the provisions in 40 CFR part 7 under which the OCR collects information from applicants and recipients to the table located in 40 CFR part 9. These technical corrections will provide clarity to applicants and recipients of EPA assistance regarding which Information Collection Request control number applies to the EPA's requests for information under 40 CFR part 7.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. The EPA prepared an analysis of the potential costs and benefits associated with this action. A copy of the analysis is available in the docket for this action.

This action does not impose any new information collection burden. This proposed rule will allow the EPA to enforce civil rights laws. It therefore falls under the exemption to the Paperwork Reduction Act found at 44 U.S.C. 3518(e) that exempts agencies from Paperwork Reduction Act requirements when they are exercising their substantive enforcement authority regarding civil rights laws. Even though this action is covered by the section 3518(e) exemption, this action is covered by an Information Collection Request that was approved by the Office of Management and Budget in June 2015. The information collection request contained in the existing regulations at 40 CFR part 7 was assigned OMB control number 2030-0020. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. The deadline and technical amendments being proposed are not expected to have a direct impact on any grant recipients. The direct cost to any particular entity under a compliance review will not increase because they already are potentially subject to compliance reviews under the existing regulations. The impact of the proposed amendments related to compliance report requirements for any particular entity would only be the cost of assembling data and information that it already must collect and maintain under the existing regulations. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

Although this proposed rule will not have a significant economic impact on a substantial number of small entities, the EPA nonetheless has tried to reduce the impact of this proposed rule on small entities. (See Economic Analysis in the docket for this rulemaking for more detailed information on potential impacts.)

We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues relating to such impacts.

This action does not contain any mandate as described in UMRA, 2 U.S.C. 1531 through 1538, and does not significantly or uniquely affect small governments. Because this proposed rule enforces statutory rights that prohibit discrimination as described in the exception at 2 U.S.C. 1503(2), it is not subject to the requirements of section 202 or 205 of the UMRA.

This proposed rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed rule from state and local officials.

This proposed rule does not directly impose any new obligations on the federally recognized tribes that receive or apply for EPA financial assistance. Moreover, the proposed rule would not impose compliance costs on tribes or preempt tribal law. Therefore, consultation under Executive Order 13175 is not required.

However, EPA welcomes the views of tribes and is interested in considering any comments that tribes may offer on the proposed rule.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This proposed rule does not involve technical standards.

Executive Order 12898 establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA believes that improving its External Compliance and Complaints Program will have a positive impact on the agency's efforts to advance environmental justice. More precisely, by bringing the EPA's regulations into alignment with the regulations of more than twenty other agencies, the EPA will have the regulatory tools necessary to exercise its discretion to make the complex determination of what sorts of disparate impacts upon communities constitute “sufficiently significant social problems,” and are “readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.” Alexander v. Choate 469 U.S. 287, 293-294 (1985). Such regulatory tools also will improve the EPA's External Compliance and Complaints Program by forging an appropriate path to resolution tailored to the specific facts and circumstances of each matter. However, the EPA welcomes comments from minority, low-income or indigenous populations about these proposed regulatory modifications.

For the reasons set out in the preamble, the EPA proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:

The revisions and additions read as follows:

(a) Periodic review. The OCR may periodically conduct compliance reviews of any recipient's programs or activities receiving EPA assistance, including the request of data and information, and may conduct on-site reviews.

This is a summary of the Commission's Notice of Proposed Rulemaking in PS Docket No. 15-91, FCC 15-154, released on November 19, 2015. The document is available for download at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1119/FCC-15-154A1.pdf. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

This document contains proposed new and modified information collection requirements. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109 Stat 163 (1995). The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and OMB to comment on the information collection requirements contained in this document, as required by the PRA. Public and agency comments on the PRA proposed information collection requirements are due February 12, 2016. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

OMB Control Number: 3060-1126.

Title: Testing and Logging Requirements for Wireless Emergency Alerts (WEA).

Form Number: Not applicable.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 146 Respondents; 1,752 responses.

Estimated Time per Response: 0.000694 hours (2.5 seconds).

Frequency of Response: Monthly and on occasion recordkeeping requirements and reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C.s 151, 154(i) and (o), 201, 303(r), 403 and 606 of the Communications Act of 1934, as amended, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.

Total Annual Burden: 1.22 hours (rounded to 2 hours).

Total Annual Cost: No Cost.

Privacy Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: The Commission seeks comment on the extent to which alert logs should be made accessible to entities other than the Participating CMS Provider that generates the log, and on whether to treat test reports as presumptively confidential.

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (Notice). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided in Section IV of the Notice. The Commission will send a copy of the Notice, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Notice and IRFA (or summaries thereof) will be published in the Federal Register.

2. With this Notice, the Commission takes another step towards strengthening Wireless Emergency Alerts (WEA) by proposing revisions to the WEA rules to empower alert originators to participate more fully in WEA, and by enhancing the utility of WEA as an alerting tool. The Commission's proposals fall into three categories, improving WEA messaging, geo-targeting, and testing and proficiency training. With respect to WEA messaging, in this Notice, the Commission proposes to expand the maximum character length of WEA messages from 90 to a maximum of 360 characters; create a new class of WEA alerts for Emergency Government Information; and remove the prohibition on embedded references to allow the provision of phone numbers and URLs in WEA alerts. The Commission also seeks comment on technically feasible approaches to supplement WEA alerts with multimedia, and with the capability to offer alerts in languages other than English. With respect to geo-targeting the Commission proposes to require Participating Commercial Mobile Service (CMS) Providers to distribute WEA messages to a geographic area that more accurately matches the target area provided by the alert originator. With respect to WEA testing, the Commission proposes to establish requirements and procedures for state and local WEA testing, and on alert logging requirements for Participating CMS Provider Alert Gateways, and seeks comment on test reporting requirements based, in part, upon the data produced by this logging function. The Commission seeks comment on methods of increasing participation in WEA by both consumers and CMS Providers. The Commission proposes to amend the WEA rules to allow use of the emergency alerting attention signal for Public Service Announcements (PSAs) designed to raise public awareness about Wireless Emergency Alerts (WEA). The Commission seeks comment on whether it should begin to test the broadcast back-up to the C-interface. Finally, the Commission seeks comment on whether it should amend the Commission's WEA prioritization rules such that WEA alerts take priority over all mobile device functions except certain voice and data sessions.

3. This Notice represents another step towards achieving one of the Commission's highest priorities—“to ensure that all Americans have the capability to receive timely and accurate alerts, warnings and critical information regarding disasters and other emergencies.” This Notice also is consistent with the Commission's obligation under Executive Order 13407 to “adopt rules to ensure that communications systems have the capacity to transmit alerts and warnings to the public as part of the public alert and warning system,” and the Commission's mandate under the Communications Act to promote the safety of life and property through the use of wire and radio communication. The Commission takes these steps as part of an overarching strategy to advance the nation's alerting capability, which includes both WEA and the Emergency Alert System (EAS), to keep pace with evolving technologies and to empower communities to initiate life-saving alerts.

4. Authority for the actions proposed in the Notice may be found in sections 1, 4(i) and (o), 201, 303(r), 403, and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.

5. 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. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

6. Nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,476 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

7. Wireless Telecommunications Carriers (except Satellite). As noted, the SBA has developed a small business size standard for small businesses in the category “Wireless Telecommunications Carriers (except satellite).” Under that SBA category, a business is small if it has 1,500 or fewer employees. Since 2007, the SBA has recognized wireless firms within this new, broad, economic census category. This category is the best fit to describe common-carrier paging providers and cellular radiotelephone services subject to the Commission's rules. For the category of Wireless Telecommunications Carriers (except Satellite), census data for 2007 shows that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had employment of 999 or fewer employees and 15 had employment of 1000 employees or more. Since all firms with fewer than 1,500 employees are considered small, given the total employment in the sector, the Commission estimates that the vast majority of wireless firms are small.

8. Broadband Personal Communications Service. The broadband personal communications services (PCS) spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission initially defined a “small business” for C- and F-Block licenses as an entity that has average gross revenues of $40 million or less in the three previous calendar years. For F-Block licenses, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that claimed small business status in the first two C-Block auctions. A total of 93 bidders that claimed small business status won approximately 40 percent of the 1,479 licenses in the first auction for the D, E, and F Blocks. On April 15, 1999, the Commission completed the reauction of 347 C-, D-, E-, and F-Block licenses in Auction No. 22. Of the 57 winning bidders in that auction, 48 claimed small business status and won 277 licenses.

9. On January 26, 2001, the Commission completed the auction of 422 C and F Block Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in that auction, 29 claimed small business status. Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. On February 15, 2005, the Commission completed an auction of 242 C-, D-, E-, and F-Block licenses in Auction No. 58. Of the 24 winning bidders in that auction, 16 claimed small business status and won 156 licenses. On May 21, 2007, the Commission completed an auction of 33 licenses in the A, C, and F Blocks in Auction No. 71. Of the 12 winning bidders in that auction, five claimed small business status and won 18 licenses. On August 20, 2008, the Commission completed the auction of 20 C-, D-, E-, and F-Block Broadband PCS licenses in Auction No. 78. Of the eight winning bidders for Broadband PCS licenses in that auction, six claimed small business status and won 14 licenses.

10. Narrowband Personal Communications Service. To date, two auctions of narrowband personal communications services (PCS) licenses have been conducted. For purposes of the two auctions that have already been held, “small businesses” were entities with average gross revenues for the prior three calendar years of $40 million or less. Through these auctions, the Commission has awarded a total of 41 licenses, out of which 11 were obtained by small businesses. To ensure meaningful participation of small business entities in future auctions, the Commission has adopted a two-tiered small business size standard in the Narrowband PCS Second Report and Order. A “small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $40 million. A “very small business” is an entity that, together with affiliates and controlling interests, has average gross revenues for the three preceding years of not more than $15 million. The SBA has approved these small business size standards.

11. Wireless Communications Services. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission defined “small business” for the wireless communications services (WCS) auction as an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” as an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these definitions.

12. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

13. Lower 700 MHz Band Licenses. The Commission previously adopted criteria for defining three groups of small businesses for purposes of determining their eligibility for special provisions such as bidding credits. The Commission defined a “small business” as an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. A “very small business” is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. Additionally, the lower 700 MHz Service had a third category of small business status for Metropolitan/Rural Service Area (MSA/RSA) licenses—“entrepreneur”—which is defined as an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA approved these small size standards. An auction of 740 licenses (one license in each of the 734 MSAs/RSAs and one license in each of the six Economic Area Groupings (EAGs)) commenced on August 27, 2002, and closed on September 18, 2002. Of the 740 licenses available for auction, 484 licenses were won by 102 winning bidders. Seventy-two of the winning bidders claimed small business, very small business or entrepreneur status and won a total of 329 licenses. A second auction commenced on May 28, 2003, closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 476 Cellular Market Area licenses. Seventeen winning bidders claimed small or very small business status and won 60 licenses, and nine winning bidders claimed entrepreneur status and won 154 licenses. On July 26, 2005, the Commission completed an auction of 5 licenses in the Lower 700 MHz band (Auction No. 60). There were three winning bidders for five licenses. All three winning bidders claimed small business status.

14. In 2007, the Commission reexamined its rules governing the 700 MHz band in the 700 MHz Second Report and Order. An auction of 700 MHz licenses commenced January 24, 2008 and closed on March 18, 2008, which included, 176 Economic Area licenses in the A Block, 734 Cellular Market Area licenses in the B Block, and 176 EA licenses in the E Block. Twenty winning bidders, claiming small business status (those with attributable average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years) won 49 licenses. Thirty three winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) won 325 licenses.

15. Upper 700 MHz Band Licenses. In the 700 MHz Second Report and Order, the Commission revised its rules regarding Upper 700 MHz licenses. On January 24, 2008, the Commission commenced Auction 73 in which several licenses in the Upper 700 MHz band were available for licensing: 12 Regional Economic Area Grouping licenses in the C Block, and one nationwide license in the D Block. The auction concluded on March 18, 2008, with 3 winning bidders claiming very small business status (those with attributable average annual gross revenues that do not exceed $15 million for the preceding three years) and winning five licenses.

16. Advanced Wireless Services. AWS Services (1710-1755 MHz and 2110-2155 MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3)). For the AWS-1 bands, the Commission has defined a “small business” as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a “very small business” as an entity with average annual gross revenues for the preceding three years not exceeding $15 million. For AWS-2 and AWS-3, although the Commission does not know for certain which entities are likely to apply for these frequencies, it notes that the AWS-1 bands are comparable to those used for cellular service and personal communications service. The Commission has not yet adopted size standards for the AWS-2 or AWS-3 bands but proposes to treat both AWS-2 and AWS-3 similarly to broadband PCS service and AWS-1 service due to the comparable capital requirements and other factors, such as issues involved in relocating incumbents and developing markets, technologies, and services.

17. Broadband Radio Service and Educational Broadband Service. Broadband Radio Service systems, previously referred to as Multipoint Distribution Service (MDS) and Multichannel Multipoint Distribution Service (MMDS) systems, and “wireless cable,” transmit video programming to subscribers and provide two-way high speed data operations using the microwave frequencies of the Broadband Radio Service (BRS) and Educational Broadband Service (EBS) (previously referred to as the Instructional Television Fixed Service (ITFS)). In connection with the 1996 BRS auction, the Commission established a small business size standard as an entity that had annual average gross revenues of no more than $40 million in the previous three calendar years. The BRS auctions resulted in 67 successful bidders obtaining licensing opportunities for 493 Basic Trading Areas (BTAs). Of the 67 auction winners, 61 met the definition of a small business. BRS also includes licensees of stations authorized prior to the auction. At this time, the Commission estimates that of the 61 small business BRS auction winners, 48 remain small business licensees. In addition to the 48 small businesses that hold BTA authorizations, there are approximately 392 incumbent BRS licensees that are considered small entities. After adding the number of small business auction licensees to the number of incumbent licensees not already counted, the Commission finds that there are currently approximately 440 BRS licensees that are defined as small businesses under either the SBA or the Commission's rules.

18. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.

19. In addition, the SBA's Cable Television Distribution Services small business size standard is applicable to EBS. There are presently 2,436 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in this analysis as small entities. Thus, the Commission estimates that at least 2,336 licensees are small businesses. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies.” The SBA has developed a small business size standard for this category, which is: All such firms having 1,500 or fewer employees. To gauge small business prevalence for these cable services the Commission must, however, use the most current census data that are based on the previous category of Cable and Other Program Distribution and its associated size standard; that size standard was: All such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2007, there were a total of 996 firms in this category that operated for the entire year. Of this total, 948 firms had annual receipts of under $10 million, and 48 firms had receipts of $10 million or more but less than $25 million. Thus, the majority of these firms can be considered small. In the Paging Third Report and Order, the Commission developed a small business size standard for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A “small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. Additionally, a “very small business” is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $3 million for the preceding three years. The SBA has approved these small business size standards. An auction of Metropolitan Economic Area licenses commenced on February 24, 2000, and closed on March 2, 2000. Of the 985 licenses auctioned, 440 were sold. Fifty-seven companies claiming small business status won. Also, according to Commission data, 365 carriers reported that they were engaged in the provision of paging and messaging services. Of those, the Commission estimates that 360 are small, under the SBA-approved small business size standard.

20. Wireless Communications Service. This service can be used for fixed, mobile, radiolocation, and digital audio broadcasting satellite uses. The Commission established small business size standards for the wireless communications services (WCS) auction. A “small business” is an entity with average gross revenues of $40 million for each of the three preceding years, and a “very small business” is an entity with average gross revenues of $15 million for each of the three preceding years. The SBA has approved these small business size standards. The Commission auctioned geographic area licenses in the WCS service. In the auction, there were seven winning bidders that qualified as “very small business” entities, and one that qualified as a “small business” entity.

21. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for firms in this category, which is: All such firms having 750 or fewer employees. According to Census Bureau data for 2010, there were a total of 810 establishments in this category that operated for the entire year. Of this total, 787 had employment of fewer than 500, and an additional 23 had employment of 500 to 999. Thus, under this size standard, the majority of firms can be considered small.

22. Software Publishers. Since 2007 these services have been defined within the broad economic census category of Custom Computer Programming Services; that category is defined as establishments primarily engaged in writing, modifying, testing, and supporting software to meet the needs of a particular customer. The SBA has developed a small business size standard for this category, which is annual gross receipts of $25 million or less. According to data from the 2007 U.S. Census, there were 41,571 establishments engaged in this business in 2007. Of these, 40,149 had annual gross receipts of less than $10,000,000. Another 1,422 establishments had gross receipts of $10,000,000 or more. Based on this data, the Commission concludes that the majority of the businesses engaged in this industry are small.

23. NCE and Public Broadcast Stations. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” The SBA has created a small business size standard for Television Broadcasting entities, which is: such firms having $13 million or less in annual receipts. According to Commission staff review of the BIA Publications, Inc., Master Access Television Analyzer Database as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 (twelve) million or less. The Commission notes, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies.

24. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. The Commission is 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. The Commission notes that it is difficult at times to assess these criteria in the context of media entities and the Commission's estimates of small businesses to which they apply may be over-inclusive to this extent. There are also 2,117 low power television stations (LPTV). Given the nature of this service, the Commission will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.

25. The Commission has, under SBA regulations, estimated the number of licensed NCE television stations to be 380. The Commission notes, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore, likely overstates the number of small entities that might be affected by the Commission's 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.

26. This Notice proposes new or modified reporting or recordkeeping requirements. Any changes to the Part 10 WEA technical rules, including message and geo-targeting requirements, may result in modified reporting and recordkeeping requirements necessary to satisfy the statutory requirements of the WARN Act (1) that Commission receive notice of election by all CMS providers concerning whether they will participate in the WEA; (2) CMS providers electing not to transmit, in part or in whole, in the WEA must provide clear and conspicuous notice, which takes into account the needs of persons with disabilities, to new subscribers of its non-election or partial election at the point of sale; and (3) CMS providers electing not to transmit WEA Alert messages, in part or in whole, must also provide clear and conspicuous notice, which takes into account the needs of persons with disabilities, to existing subscribers of its non-election or partial election by means of an announcement amending the existing subscriber's service agreement. Although the Notice does not propose revising the existing election procedures, the Commission notes that the CSRIC IV recommends that the Commission modify the current election procedures and provide Participating CMS Providers an opportunity to revise previous WEA election to comply only with the WEA rules that existed at the time of their initial election, and not those adopted subsequently. Moreover, amending the Commission's rules to require Participating CMS Providers to log the receipt of alerts and report the results of State/Local WEA Tests to the Commission may result in increasing the reporting and recordkeeping costs and burdens approved under OMB Control No. 3060-1113, ICR Reference No. 201404-3060-021. Test reporting and alert logging requirements may require small businesses to contract with engineers in order to make modifications to Participating CMS Provider Alert Gateways and mobile devices.

27. Additionally, any changes to the existing WEA testing regime to require Participating CMS Providers to support State and Local testing will entail some form of recordkeeping that will be used by the Commission to satisfy the statutory requirement of the WARN Act that the Commission “shall require by regulation technical testing for commercial mobile service providers that elect to transmit emergency alerts and for the devices and equipment used by such providers for transmitting such alerts.” Specifically, amending the Commission's rules to require Participating CMS Providers to participate in State/Local WEA testing as well as maintaining a log of RMT results and generating reports will require a modification to the cost and hours burdens approved by OMB under OMB Control Number 3060-1126, ICR Reference No. 201502-3060-020. The proposals set forth in the Notice are intended to advance the Commission's public safety mission and establish an effective WEA in a manner that imposes minimal regulatory burdens on affected entities.

28. The RFA requires an agency to describe any significant alternatives that it has considered in developing its 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 and reporting requirements under the rule for such 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 such small entities.”

29. As noted in paragraph 1 above, this Notice initiates a rulemaking to update the rules governing the WEA system by which Participating CMS providers may elect to transmit emergency alerts to the public, a goal mandated by the WARN Act and consistent with the Commission's obligation to protect the lives and property of the public. Primarily, this Notice seeks comment on three general categories of proposed rule changes: messaging, geo-targeting and testing.

30. With regard to WEA messaging and geo-targeting, this Notice seeks comment on a number of options to minimize the economic impact on small entities. First, the Notice proposes to expand the maximum character length of WEA messages from 90 to 360 characters and also seeks comment on alternatives such as rendering 140 character WEA alerts. The Notice also seeks comment on the extent Participating CMS Providers can leverage existing technology and best practices to minimize costs. Additionally, the Notice seeks comment on whether existing software is capable of rendering 360-character WEA alerts. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering longer WEA alerts in order to mitigate costs.

31. Second, the Notice proposes to create a new class of WEA alerts for Emergency Government Information. In that connection, the Notice seeks comment on measures to mitigate costs, including the utility of providing alert originators training and guidelines to minimize burdens. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering Emergency Government Information alerts in order to mitigate costs.

32. Third, the Notice proposes to allow the provision of phone numbers and URLs in WEA alerts. The Notice seeks comment, in the alternative, on whether embedded references should be allowed only in AMBER Alerts. The Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin rendering embedded phone numbers and URLs in WEA alerts in order to mitigate costs. Additionally, the Notice seeks comment on leveraging existing technology to supplement WEA alerts with multimedia.

33. Fourth, the Notice proposes to require Participating CMS Providers to geo-target WEA messages more precisely. The Notice seeks comment on leveraging existing technology and best practices, including network-side enhancement already voluntarily undertaken by Participating CMS Providers, to more precisely geo-target WEA alerts. The Notice also seeks comment on alternatives such as allowing Participating CMS Providers to render geo-targeted WEA alerts to the area that approximates the alert target area. The Notice also seeks comment on the extent “device-assisted” geo-targeting solutions already exist and can be implemented to “filter” WEA alerts based on coordinates as well as the extent that third party developers might create applications to improve geo-targeting. Further, the Notice seeks comment on developing an appropriate timeframe for Participating CMS Providers to begin geo-targeting WEA alerts in order to mitigate costs.

34. With respect to WEA testing and proficiency training, this Notice proposes to establish requirements and procedures governing Participating CMS Provider support for state and local WEA testing, and seeks comment on alert logging requirements for Participating CMS Provider Alert Gateways and test reporting requirements based, in part, upon the data produced by this logging function. First, in order to minimize the costs associated with supporting state and local testing, the Notice seeks comment on (1) leveraging the existing RMT testing protocol and (2) the use of best practices and standards developed through a public/private partnership including geo-targeting tests to localized areas and providing an opportunity for volunteers to participate in WEA tests. Second, the Notice seeks comment on how to minimize the costs associated with testing reporting requirements for state and local tests, including leveraging existing logging functionality and best practices, as well as relying on an informal approach to reporting test results and the extent that third-party developers may automate the proposed test filing procedures. The Notice seeks comment on the appropriate timeframe within which Participating CMS Providers should comply with the proposed testing requirements.

35. In commenting on these questions, commenters are invited to propose steps that the Commission may take to minimize any significant economic impact on small entities. For example, the Notice seeks comment on whether the benefits of extending liability protection to these proposals sufficiently outweigh the costs to Participating CMS Providers for participating in WEA. The Notice also seeks comment on the feasibility of its messaging, geo-targeting and testing proposals as well as an appropriate transition period from the current technical and testing requirements to the proposed rule changes contained in the Notice. When considering proposals made by other parties, commenters are invited to propose significant alternatives that serve the goals of these proposals.

36. None

1. Under the Commission's rules, WEA messages are currently limited to a maximum length of 90 characters. In the First Report and Order the Commission concluded that adopting a 90-character text message protocol would serve the public interest because it would allow Participating CMS Providers to transmit WEA messages without requiring technical changes to their underlying infrastructure, and because 90-character messages were considered to be of sufficient length to get the consumer's attention, so they could then seek out other media for confirmation of the alert and for further information. Importantly, the Commission envisioned that Participating CMS Providers would eventually deploy technologies capable of messages longer than 90 characters.

2. In its recent report CSRIC IV finds that the majority of commercial mobile wireless networks and network technologies, such as GSM, UMTS, and LTE, can support messages with a larger number of characters. Moreover, CSRIC IV recommends that the Commission expand the character limit for WEA messages sent using 4G LTE-based infrastructure and devices to a maximum of 280 characters, pending confirmation by the Alliance for Telecommunications Industry Solutions (ATIS), and the Telecommunications Industry Association (TIA) (jointly, ATIS/TIA) that such an increase of the character length is feasible. CSRIC IV recommends that the necessary modifications to industry standards supporting the coexistence of 90- and 280-character alerts can be completed within one year of the issuance of an appropriate report and order. Subsequent to CSRIC IV's recommendations, ATIS/TIA released its Feasibility Study for LTE WEA Message Length in October 2015, and confirms that extending WEA message character length is feasible. The Feasibility Study for LTE WEA Message Length recommends a maximum WEA message length of 360 characters, where a minimum of 280 and a maximum of 372 characters can be included in two transmission segments. The study also notes, however, that additional WEA enhancements, such as improved geo-targeting and support for multimedia and multilingual alerts, may decrease their maximum recommended character length, pending further study.

3. Consistent with the CSRIC IV recommendations and the recent ATIS/TIA study, the Commission propose to amend section 10.430 of its rules to expand the maximum permissible length of WEA messages from 90 to 360 characters of alphanumeric text. Specifically, the Commission proposes to extend the character limit for those networks and devices for which it is technically feasible to deliver and process 360-character messages, as discussed in greater detail below, while continuing to allow the delivery of 90-character messages on 2G and 3G networks and devices. In this regard, the Commission seeks to balance the capabilities of 4G LTE networks with the limitations of legacy networks. The Commission seeks comment on this proposal, and the extent to which it would serve the needs of state and local governments to provide more detailed alert information to the public sufficient to motivate appropriate and swift action to save lives and protect property.

4. Expanding the maximum character length for WEA messages to 360 characters could address alert originators' concerns that they are unable to motivate the public to take appropriate protective action using messages limited to 90 characters. According to the National Center for Missing and Exploited Children (NCMEC), “[i]t can be extremely difficult to fit sufficient descriptive information within a 90-character limit in a meaningful and understandable manner that doesn't confuse the public.” The National Weather Service (NWS) states that increasing the maximum WEA message length “would improve the ability of NWS and non-weather alerting authorities to convey critical life-saving information over WEA, such as spelling out key terms which are not abbreviated and may not be well understood.” CSRIC IV and START concur that longer alert messages make it easier for the public to understand the nature of an emergency and the responsive action alert originators advise them to take. For example, according to the START Report, longer alert messages improve message interpretation, reduce “milling” by personalizing alert messages, and hasten a protective response. FEMA also strongly supports increasing the character length of WEA messages. The Commission seeks comment on whether expanding WEA messages to 360 characters would be likely to promote public understanding and swifter action in response to an emergency. The Commission also seeks comment on how an increase in the length of WEA messages would affect the accessibility of such messages by individuals with disabilities, senior citizens, and persons with limited English proficiency. The Commission seeks comment on how to quantify the potential life-saving benefits of increasing the maximum character length of WEA messages, as well as of the rules the Commission proposes today.

5. If the Commission expands the maximum character length for WEA messages, it seeks comment on whether 360 characters is the optimal maximum. The Commission seeks comment on the number of characters necessary to provide the public with sufficiently detailed information about the emergency situations that WEA is designed to address, and to encourage swift and effective public action in response to such emergencies. For example, the START Report's finding that longer alerts improve public response was based on 1,380 character messages. Is such a message length technically feasible? Would a 1,380 character message would better serve the public interest? The START Report also found that some alert originators expressed a preference for 140-character messages, based on their view that the public may be unlikely to read longer messages. In this regard, the Commission observes that the social media service Twitter uses messages limited to 140 characters in order to disseminate information about socially relevant phenomena, including emergency alerts and warnings. What can the Commission learn about the way that people use Twitter and other social media platforms that can inform the Commission's policymaking with respect to the length of WEA messages?

6. The Commission seeks comment on the technical feasibility of supporting WEA messages longer than 90 characters. As confirmed by ATIS/TIA, CSRIC IV states that 4G LTE networks and devices are capable of delivering 360-character alerts, and the Commission anticipate that future network iterations will continue to support messages with a maximum character length of at least 360 characters. The Commission observes that the nation's four largest CMS Providers have all but completed their transition to 4G technologies. In addition to the nation's largest CMS Providers, smaller Participating CMS Providers are also transitioning to 4G technologies; for example, more than 93 percent of U.S. Cellular's customers have access to 4G LTE, and Sprint and NetAmerica Alliance have partnered with the Competitive Carriers Association to accelerate smaller Participating CMS Providers deployment of 4G LTE across rural America. The Commission also seeks comment regarding how the incorporation of the additional WEA enhancements the Commission proposes below (such as support for multimedia and multilingual alerts) may affect the implementation of WEA messages with a maximum length of 360 displayable characters. For instance, would the metadata associated with the inclusion of a URL compete with the maximum text limitation for WEA messages?

7. CSRIC IV concludes that the existing 90-character limit should remain for legacy networks and devices due to these networks' limitations and its expectation that the overwhelming majority of CMS Provider infrastructure and mobile devices will soon achieve 4G LTE capability. We seek comment on this view. The Commission seeks comment on whether the coexistence of 90- and 360-character alerts might cause public confusion. The Commission also seeks comment on the extent to which it would be feasible for alert originators and Participating CMS Providers to support the coexistence of both 90- and 360-character alerts.

8. CSRIC IV considered multiple approaches that would accommodate the existing base of legacy networks and mobile devices, while accounting for 4G technology's ability to deliver and receive longer messages. For example, one approach would be for the alert originator to “create two WEA [a]lert [m]essages, the first adhering to the 90 displayable character maximum and the second to support the longer displayable character length.” Alternatively, one WEA message could be generated, the first 90 characters could be delivered to legacy devices, “and the full longer displayable characters [could be] delivered to future enhanced WEA LTE mobile devices.” A third alternative would be the transmission of a longer message in four parts over legacy networks (and in a single message over 4G networks, where feasible). The Commission seeks comment on the feasibility of these alternatives and any other approaches for implementing an expanded WEA message. FEMA states that standards applicable to the Integrated Public Alert and Warning System (IPAWS) would need to be updated in order for IPAWS to accept longer messages, and that a software update would likely be necessary to enable alert origination software to initiate longer messages. NWS states that it could provide a longer WEA message in addition to the 90-character message, if necessary. Is commercially available alert origination software capable of automatically generating 90- and 360-character alerts from one message? Are there additional technological solutions, not considered by CSRIC IV, which would more effectively enable the transmission of longer alerts across all technologies, including legacy networks and devices? The Commission also seeks comment on the extent to which existing standards would need to be modified to accommodate the coexistence of 90- and 360-character maximum messages.

9. The Commission proposes that Participating CMS Providers should be required to come into compliance with its proposed WEA messaging rules within one year of the adoption of final rules. With respect to the Commission's proposal to allow the continued delivery of 90-character messages to legacy networks and devices, would it be preferable to adopt a date certain by which all Participating CMS Providers must be able to deliver 360-character WEA messages, rather than allowing the co-existence of 90- and 360-character WEA messages? If so, in what timeframe should the Commission sunset the 90-character WEA message length? Should the date of any sunset be contingent upon the satisfaction of a particular condition, such as the achievement of a particular milestone (e.g., the completion of a 4G network deployment milestone or the completion of any necessary standards work by ATIS/TIA or other standards bodies)?

10. Finally, the Commission seeks comment on the costs associated with changing the maximum character length for WEA messages. To what extent can Participating CMS Providers leverage existing resources and infrastructure deployed for commercial purposes to satisfy the requirement the Commission proposes today? What additional network resources, if any, are necessary to comply with the Commission's proposed rule? If the delivery of expanded WEA messages can be accomplished through a software upgrade, would such upgrades fall within the scope of Participating CMS Providers' fixed-maintenance contracts, thus resulting in a cost of near zero? The Commission also seeks comment on mitigating factors that could offset potential costs, including those for small and rural Participating CMS Providers. The Commission seeks comment on any burden associated with allowing Participating CMS Providers to continue delivering shorter WEA messages using legacy devices and networks, while simultaneously delivering the expanded WEA messages on their 4G networks. The Commission also seeks comment on the costs and benefits of any potential alternative approaches. Specifically, the Commission seeks comment on the extent of cost savings expected to result from expanding the maximum character length to 360, as opposed to requiring that longer messages be issued as sequential 90-character alerts.

11. The WEA rules currently provide for three classifications of WEA message: Presidential Alerts, Imminent Threat Alerts, and AMBER Alerts. For an alert to be issued through WEA, it must fall within one of these three categories. In the First Report and Order, the Commission adopted these three categories in the public interest because they aligned with the Commission's interpretation of “emergency” alerts under the WARN Act, and because additional alert categories could cause the public to disregard WEA alerts or cause the delivery of alerts to be delayed. In this regard, the Commission's conclusion was consistent with the CMSAAC's finding that supporting these three alert classes achieves the best balance between warning of imminent threats to life and property and the limitations of Participating CMS Provider networks at that time. However, FEMA suggests that communities need the ability to share information beyond the nature of an emergency and how to respond to that emergency; they need the ability to provide additional instructions and information that may contribute to saving lives.

12. The Commission proposes to amend the WEA rules to create an additional class of WEA message, “Emergency Government Information.” The Commission proposes to define an Emergency Government Information message as an essential public safety advisory that prescribes one or more actions likely to save lives and/or safeguard property during an emergency. According to CSRIC IV, examples of Emergency Government Information messages include “boil water” advisories, and messages indicating shelter locations in the event of long-term or severe flooding, hurricanes, or tornados. The Commission seeks comment on its proposed definition of Emergency Government Information, and on whether enabling the delivery of Emergency Government Information messages would expand the alerting toolkit available to government entities in a meaningful way, complementing existing WEA classes and allowing the provision of more detailed information about how to protect life and property.

13. The Commission seeks comment on how it can ensure that Emergency Government Information messages are used appropriately and in circumstances where they would be most effective at precipitating protective action. According to CSRIC IV, “[a]n Emergency Government Information message should only be used to provide information to assist citizens regarding actions to take resulting from an imminent threat to life and property.” Would Emergency Government Information be most effective if defined as a standalone message, the issuance of which is predicated upon the fulfillment of certain necessary conditions? Or, on the other hand, should Emergency Government Information messages be used only to supplement Imminent Threat Alerts? What guidelines and parameters would ensure that Emergency Government Information messages are used in an appropriate manner? CSRIC IV recommends that only “appropriate agencies” become authorized to issue Emergency Government Information messages. The Commission seeks comment on whether it should adopt that approach. If the Commission does, are there particular entities which would be particularly appropriate sources of Emergency Government Information?

14. The Commission seeks comment on the benefits and costs of creating this additional class of WEA alert. Would such messages help to save lives and protect property? What costs, if any, would be imposed on Participating CMS Providers, alert originators, and consumers? Are there any measures that could be taken to mitigate these costs? Is alert origination software currently capable of issuing Emergency Government Information messages using predefined CAP fields and free-form text, or would a software update be required? Would creating an additional category of alerts desensitize the public to other types of alerts? The Commission believes that Participating CMS Providers could use the same hardware to deliver an Emergency Government Information WEA message as they would to deliver another classification of WEA message and seek comment on this view.

15. As required by the WARN Act, the Commission proposes to amend Section 10.280 of the Commission's rules to allow Participating CMS Providers to enable consumers to opt out of receiving Emergency Government Information messages. CSRIC IV recommends that subscribers should be allowed to opt out of receiving Emergency Government Information, and states that this option need not imply a new device setting, but rather, should be combined with existing settings on the device. The CSRIC IV's report states that the subscriber opt-out capability recommended to be offered for Emergency Government Information would need to be “defined and specified in the Joint ATIS/TIA mobile Device Behavior Specification” in order to ensure that the option to opt out is provided consistently and uniformly across devices, operating systems and software versions. Is this the case? What, if any, other standards or specifications would need to be modified in order to support the provision of Emergency Government Information? Alternatively, would it be preferable for Emergency Government Information to be presented to consumers on an opt-in basis? Would providing such an opt-in option be consistent with the WARN Act?

16. The Commission also seeks comment on whether there are other classes of alerts that should be added to WEA. FEMA, for example, asserts that the Commission should revisit the manner in which WEA messages are classified, and recommends that the Commission amend the Commission's rules to create the following classes: Federal Alerts (authorized by the President), AMBER Alerts, Severe Weather Alerts, and Local Threat Alerts, each of which would have its own unique attention signal and vibration cadence. As recommended by FEMA, Local Threat Alerts are alerts that may not meet each of the criteria for an imminent threat alert (certainty, urgency and immediacy) but nonetheless may be appropriate for a WEA alert. The Commission seeks comment on this approach. Are additional alert types, such as those currently offered by private mass notifications systems on an opt-in basis, appropriate for WEA? Such additional alert notifications would include weather-related closings, severe traffic incidents, and road closures due to special events. Would such additional classifications help adequately capture the variety of events that merit an alert or warning, and help provide clear instructions to alert originators on the kinds of events where use of the WEA system is appropriate? In addition, could additional alert types provide consumers with a more nuanced range of opt-out choices, in terms of the types of alerts they choose to receive, that could encourage consumer participation in WEA? Parties suggesting additional classes should explain how their proposed classes substantively differ from any of the current classes, or the proposed Emergency Government Information class, and the benefits of their proposed class, including why an additional or alternative alert classification is necessary to help save lives and protect property.

17. The WEA rules currently prohibit the inclusion of embedded references, including telephone numbers and URLs, in all WEA messages except the Presidential Alert. In the First Report and Order, the Commission found that allowing URLs or telephone numbers to be included in WEA messages could exacerbate wireless network congestion in the wake of an emergency when wireless networks are already burdened by calls for help from police, fire, and rescue personnel, as well as to family and friends. In this regard, the Commission's conclusion was consistent with the CMSAAC's recommendation that including telephone numbers and URLs in WEA messages would encourage mass usage and potential congestion of wireless networks.

18. The WEA rules currently provide minimum standards for text-based alerts only. The Commission did not adopt technical requirements for WEA alerts with multimedia capability in the First Report and Order because, at that time, the Commission believed “it would be premature and not consistent with our obligations under section 602(a) of the WARN Act to adopt standards and requirements for technologies that are still under development.” In this regard, the Commission's conclusion was consistent with the CMSAAC's recommendation that support for text should be the minimum requirement for Participating CMS Providers.

19. Given the advancement of time and technology since the adoption of the WEA rules, the Commission believes that it would serve the public interest to reconsider the prohibition on the inclusion of telephone numbers and URLs in WEA messages. The Commission propose to remove Section 10.440 from its Part 10 WEA rules, in order to allow embedded phone numbers and URLs to be included in WEA messages. In doing so, the Commission seeks to ensure that Americans may be provided with an immediately accessible method of contacting public safety officials or finding additional information about emergency situations by leveraging the existing capabilities of Participating CMS Provider networks and devices. The Commission believes this approach furthers its goal of using the system to advance public safety. The Commission seeks comment on this proposal and on the Commission's rationale.

20. The Commission believes that allowing embedded references in WEA messages will improve alert quality and accessibility by offering additional, specific information, and could reduce the risk of network congestion by focusing consumer response, thereby minimizing “milling” behavior. The Commission seeks comment on this analysis. To what extent do individuals currently respond to the receipt of a WEA message by using the Internet to confirm the existence of the emergency condition in their area or to search for additional information? Could a synchronized push of link content to device cache reduce non-alert congestion? CSRIC IV, START and FEMA agree that “consideration should be given to including a URL” in WEA messages, but recommend further study on whether the inclusion of URLs in WEA messages could cause network congestion when many people access a link within seconds of alert receipt. The Commission seek comment on whether such further studies would be helpful, given existing network management technologies that could be deployed to mitigate any potential alert congestion.

21. The Commission believes the potential benefits of allowing embedded phone numbers and URLs in WEA messages may be particularly applicable where AMBER Alerts are concerned. NCMEC states that the ability to provide a URL directing recipients to a Web site specifically used for AMBER Alerts would be the most important possible enhancement to WEA that the Commission can require at this time. FEMA recommends that a phone number be included in AMBER Alerts, noting that the ATIS/TIA specification for the interface between IPAWS and participating wireless carrier gateways already contains provisions for including a phone number. Every type of missing child advisory issued by NCMEC (e.g., bulletin, notice or poster) includes a phone number to contact with potentially helpful information, except WEA AMBER Alerts. According to the Boston Globe, “[i]n cases in which an abducted child is murdered, 75% of the killings happen within the first three hours.” The Commission believes that providing WEA AMBER Alert recipients with URLs linking to images of missing children, their suspected abductors, and potentially the abduction vehicle could make it easier for the public to assist alert originators in locating missing children, and that providing a phone number to call could hasten the provision of such information during a critical period when every second may count. The Commission seeks comment on this analysis, and on other potential benefits of allowing alert originators to include embedded references in AMBER Alerts and in WEA messages more generally.

22. The Commission seeks comment regarding the potential costs that may be associated with incorporating embedded references in WEA messages, including any costs associated with the potential for increased call volume or network congestion. If alerts were more narrowly geo-targeted, would these potential burdens be mitigated? What network management techniques could be deployed to counter any potential network congestion? The Commission also seeks comment on any technical considerations that the Commission should take into account with regard to Participating CMS Providers' ability to support embedded references in WEA messages. According to CSRIC IV, adding URLs to WEA messages would necessitate the revision of standards for displaying content generated by the URL. The Commission seeks comment on CSRIC IV's assertion. What technical challenges would need to be addressed to support the synchronized push of content to be stored in cache for all URL links used in WEA CAP messages? Would it be possible to include interactive links in WEA messages, such that an alert recipient could provide real-time feedback to alert originators that would improve emergency responders' situational awareness and help ensure that adequate and appropriate resources are deployed to the scene of the emergency? For example, a WEA message warning about a developing fire in a multi-story building could ask alert recipients whether they see smoke by responding “yes” or “no,” helping emergency responders make decisions about building ventilation that could help to prevent the fire from further spreading. The Commission observes that the CMSAAC Report recommended guidelines for translating embedded references from CAP into a format suitable for communication with mobile devices. The Commission also observes, however, that a data connection may be required in order to access content made available through URLs, and that appropriate protocols and cybersecurity protections may need to be developed in order to protect these functions from malicious intrusion. How should these concerns be addressed? Finally, the Commission seeks comment on how much, if any, additional data would be necessary to transmit embedded references, along with text, in WEA messages, and on the impact, if any, that transmitting this additional data would have on message delivery latency and mobile device battery life. The Commission also seeks comment on the extent of any end-to-end latency in the delivery of WEA messages today, and whether there are ways to employ new technologies to reduce latency for WEA's current functionalities. The Commission seeks comment on these and other technical issues that could affect the implementation of this proposal. The Commission observes that AT&T suggests that the use of phone numbers and URLs in WEA alerts should be limited to WEA AMBER Alerts. The Commission seeks comment on this alternative.

23. The Commission also seeks comment on the efficacy of using embedded URLs to enhance accessibility of WEA for people with disabilities, senior citizens and persons with limited English proficiency, in addition to the general public. Wireless RERC conducted field trials and focus groups regarding disability access to WEA messages and found that users with sensory disabilities prefer to have access to additional information beyond that supplied by the 90-character alert via URLs. The Commission seeks comment on this conclusion, and on how the inclusion of URLs and phone numbers may facilitate access to information. For example, could a URL provide non-English speakers with access to emergency information in their preferred language?

24. Finally, the Commission seeks comment on whether it would serve the public interest to adopt rules governing the provision of multimedia-based alerts, including alerts that contain high-information maps that demonstrate the location of the alert recipient relative to an area affected by an imminent threat, and images of children, suspected abductors and vehicles in AMBER Alerts. The Commission believes that providing multimedia-based alerts could significantly enhance the usefulness of the system, thereby advancing public safety goals. For example, NWS strongly supports the incorporation of graphical content in WEA messages, stating that this improvement would provide greater clarity in WEA messaging. The Commission recognizes that CSRIC IV concludes that it is impractical for current cell broadcast technology, including 4G LTE, to support sending multimedia, such as images and maps, as part of WEA messages without “significant impacts” to Participating CMS Provider infrastructure. However, the Commission observes that mobile alerting technology vendors and Participating CMS Providers agree that other technologies may be able to support multimedia functionality. How much additional data would be associated with the transmission of multimedia content in WEA messages, and what impact, if any, would transmitting this additional data have on message delivery latency and mobile device battery life? The Commission seeks comment on these issues, as well as any technical solutions that may serve to enhance the usefulness of WEA alerts for the general public.

25. The WARN Act allows Participating CMS Providers to transmit alerts in languages other than English, if technically feasible. The Commission determined in the First Report and Order that it was not technically feasible for CMS Providers to deliver commercial mobile alerts in languages in addition to English and that further study was necessary to ensure that system capacity and message latency were not adversely affected. The Commission's conclusion in this regard is consistent with the CMSAAC's observation that rendering multilingual alerts would require additional character sets that would limit the amount of text that could be transmitted in WEA messages and that more precise geo-targeting increases the number of non-English languages that will be encountered. Accordingly, the Commission found it premature to require that Participating CMS Providers transmit alerts in languages other than English, but encouraged WEA stakeholders to develop multilingual alerting capabilities.

26. The Commission seeks comment on whether the fundamental technical problems that limited the ability of Participating CMS Providers in 2008 to provide alerts in languages other than English remain barriers to implementing Congress' vision. To the extent these problems remain, are they device-based, network-based, or both? FEMA recommends that WEA should be enhanced to support delivery of alert messages in languages other than English if the alert is made available by the originator in other languages. FEMA observes that “[t]he IPAWS system as currently deployed and based upon the Common Alerting Protocol standards is capable of supporting multiple languages beyond English if the originator of the alert message provides the alert in additional languages.” Alert originators state that they want to “[u]se language in the WEA Alert Message that best conveys who is at risk given message length constraints.” That could reasonably include a language, other than English, that best serves a particular community. Accordingly, the Commission seeks comment on the benefits of supporting multilingual WEA alerts in order to advance the Commission's goals for promoting community participation.

27. In raising the issue of multilingual alerts, the Commission notes that the Multicultural Media, Telecom and Internet Council (MMTC) has highlighted the importance of providing information about emergencies in languages other than English on numerous occasions. The Commission agrees with MMTC that all Americans, regardless of the language they speak, should have access to emergency information. In this Notice, the Commission seeks comment on the technical implications and potential costs of supporting multilingual WEA alerts. The Commission also seeks comment on the impact of requiring WEA alerts in languages other than English on the ability of Participating CMS Providers to comply with the rules the Commission propose today. For example, the Commission seeks comment on whether Participating CMS Provider networks continue to experience technical limitations that restrict their ability to offer WEA alerts in languages other than English. How much additional data, if any, would be necessary to support additional languages and/or character sets in WEA messages, and how would the transmission of this additional data affect mobile device battery life and message delivery latency? The Commission seeks comment on whether there are other factors that should be considered in determining whether to support multilingual alerts, and on how states and local alert originators can best determine which languages are appropriate for their communities.

28. In the First Report and Order, the Commission adopted a geo-targeting requirement for WEA messages in order to ensure that WEA messages would only be received by those individuals affected by a specific emergency. Under Section 10.450 of the WEA rules, Participating CMS Providers may not transmit WEA messages to areas greater than the county (or county equivalent) that approximates the geocode, circle, or polygon specified by the WEA alert. The Commission anticipated that as more refined and cost effective geo-targeting capabilities became available to Participating CMS Providers they would voluntarily elect to target alerts more granularly. Similarly, the CMSAAC recommended county-based geo-targeting, but acknowledged that it would be desirable to allow for “more flexible geo-targeting to alert areas [to] evolve as technology advances,” and recommended that the geo-targeting to alert areas smaller than a county “should be reviewed as part of the biennial review process.”

29. Since the Commission adopted its WEA geo-targeting rules in 2008, there has been considerable interest among alert originators in developing more finely targeted WEA messages. Additionally, research scientists at Carnegie Mellon have developed several polygon compression techniques that enable efficient transmission of polygons representing geographical targets. These techniques are intended to enable compressed polygon vertices to be embedded in emergency alert messages that have strict length restrictions, such as WEA messages.

30. Further, CSRIC IV and START observe that the effectiveness of WEA alert messages may remain suppressed until they can be distributed to finer geospatial areas, so that messages only reach the people who are at risk. “[O]therwise, people who receive WEA Alert Messages may be trained to think they don't apply to them.” As CSRIC IV notes, some Participating CMS Providers have made voluntary enhancements to geo-targeting that exceed the Commission's current county-level geo-targeting rules. The enhancements include using an algorithm to geo-target the WEA broadcast to transmission sites capable of best approximating the polygon-based alert area provided by the alert originator, and, in LTE networks, using cell sectorization, a technique whereby a WEA alert is broadcast to only certain sectors within a transmission site. CSRIC IV thus recommends that the Commission amend Section 10.450 of its WEA rules to state “that a Participating CMS Provider may voluntarily transmit any Alert Message that is specified by the Alert Originator using a geocode, circle, or polygon, to an area that best approximates the geocode, circle, or polygon given the constraints of CMS Provider infrastructure topology, propagation area, and other radio and network characteristics.” CSRIC IV further recommends that, at a minimum, the Commission should adopt a geo-targeting standard constituting an area no larger than the coverage area of a single transmission site.

31. The Commission proposes to revise the Commission's rules to require that Participating CMS Providers must transmit any alert message that is specified by a geocode, circle, or polygon to a target area not larger than the specified geocode, circle, or polygon. If, however, the Participating CMS Provider cannot broadcast the alert to an area that accurately matches the target area, the Commission proposes that a Participating CMS Provider may transmit an Alert Message to an area that closely approximates the target area, but in any case not exceeding the propagation area of a single transmission site. In this regard, as a backstop, Participating CMS Providers would be permitted to geo-target WEA alerts with the same level of granularity currently allowed by the Commission's WEA rules. CSRIC IV recommends that CMS Providers be allowed to transmit alert messages, on a voluntary basis, to an area that best approximates the target area, “given the constraints of Participating CMS Provider infrastructure topology, propagation area, and other radio and network characteristics.” Would this approach weaken the Commission's current requirement that WEA alerts be geo-targeted to at least the county level, and would potentially allow Participating CMS Providers to geo-target alerts to any area, so long as it could be justified by reference to network constraints. The Commission seeks comment on the Commission's proposal and on this rationale.

32. The Commission seeks comment on the technical feasibility of complying with these more granular geo-targeting proposals. Both the WARN Act and the Commission envisioned that WEA technology would evolve to encompass more precisely geo-targeted alerts. In light of the advances in network technology observed by CSRIC IV, specifically network-based solutions already deployed by Participating CMS Providers, is it technically feasible for Participating CMS Providers, utilizing currently available technology, to more accurately geo-target WEA alerts? The Commission specifically seeks comment on the state of network-based enhancements needed to implement this process. CSRIC IV states that “the algorithms for mapping the intended alert area to the relevant cell sites/sectors in the CMSP network are considered proprietary and there is no standard method to perform this mapping.” How can the Commission ensure that all Participating CMS Providers have access to any relevant techniques that are necessary to implement more granular geo-targeting?

33. Further, the Commission seeks comment on other approaches to improve geo-targeting, including device-based geo-targeting solutions. CSRIC IV recommends that ATIS/TIA conduct feasibility studies of the ability of Participating CMS Providers to more narrowly geo-target WEA using network-based, device-based, and third-party-assisted solutions. Network-based geo-targeting solutions include cell sectorization and algorithm-based transmission site selection. A device-based solution entails an alert originator transmitting geographic coordinates for the target area along with the WEA message, and an end-user device using the device's location-based technology to display only those WEA messages that are relevant to the geographic area in which the device is located. CSRIC IV recommends that ATIS/TIA evaluate the extent to which device-based solutions could be optimized by minimizing the amount of data necessary to transmit alert area coordinates, either by compressing the data, circularizing the polygon, or embedding the geographic data in the alert message itself. A third-party-assisted solution (i.e., a service provided by a party other than the mobile device and the Participating CMS Provider) would utilize an external source of geo-location to determine whether the WEA message should be displayed, without relying on the device's own location services.

34. Could a device-based solution improve WEA geo-targeting without burdening Participating CMS Provider infrastructure? Could device-based solutions complement network-based solutions to facilitate the delivery of even more granular WEA messages? Would the provision of alert area coordinates in a WEA message potentially reduce the amount of data available for other message elements, such as text and multimedia, and if so, what measures could mitigate this possibility? Carnegie Mellon University has “developed a technique which significantly reduces the amount of data required to convey the location, size, and shape of an NWS alert polygon,” suggesting that only a small amount of data may be necessary to transmit alert coordinates to a mobile device. To what extent can the amount of data needed to transmit geographic coordinates be reduced through such optimization methods? Are such methods feasible or advisable? Are there other techniques for efficiently sending alert area coordinates to a device that should be examined? The Commission also seeks comment on whether the use of device-based solutions might implicate privacy issues and on the protective measures that might be necessary to implement before a device's location-based services are used for the provisioning of WEA alerts. Finally, the Commission seeks comment on the extent to which third-party developers are in the process of developing services to improve WEA geo-targeting.

35. The Commission seeks comment on the potential benefits that more accurate geo-targeting may provide. By proposing measures to ensure that WEA messages are more finely targeted and delivered only to recipients who are likely to be affected by the emergency event, the Commission intends to minimize over-alerting and reduce alert fatigue. Do alerts sent to too wide an area result in significant problems? Does or could inaccurate geo-targeting lead to alert fatigue, and, if so, would it cause many individuals to disregard or opt-out of receiving all but the Presidential message? CSRIC IV and START conclude that finer geo-spatial targeting is necessary to ensure WEA Alert Messages only reach those people at risk, and that the “effectiveness of WEA Alert Messages may remain suppressed until they can be distributed to finer geospatial targeted populations so that messages only reach the people who are at risk.” The Commission seeks comment on these findings and encourage commenters to offer statistical evidence of the anticipated benefits resulting from tightening the Commission's geo-targeting requirements. Further, the Commission seeks comment on whether improved geo-targeting technology will increase opportunities for wireless providers to offer beneficial services to the companies currently providing mass notification products to localities, employers, and school systems. Specifically, will improved geo-targeting capabilities expand opportunities for wireless carriers and other parties to contract for services outside of WEA that are beneficial to the alert-originating community? The Commission seeks comment on whether there are other potential public/private partnerships that could further leverage WEA capabilities and bring additional innovative alerting services to communities.

36. Finally, the Commission seeks comment on the potential costs that would result from implementing the more granular geo-targeting requirements the Commission propose today, including through the implementation of network-based, device-based, or third-party-assisted solutions. Would the cost of compliance with the Commission's proposed rules through the use of network-based enhancements likely be minimal because Participating CMS Providers are already engaging in such practices voluntarily? What costs would be entailed for Participating CMS Providers that are not currently using geo-targeting best practices? Would the implementation of device-based improvements to geo-targeting likely entail a software update to mobile devices? If a software update would be needed, could it be bundled into software updates that Participating CMS Providers would issue for their mobile devices in the regular course of business? What costs might be associated with the delivery of such software updates? Lastly, what costs might be associated with the implementation of a third-party-assisted solution?

37. Section 602(f) of the WARN Act provides that “[t]he Commission shall require by regulation technical testing for commercial mobile radio service providers that elect to transmit emergency alerts and for devices and equipment used by such providers for transmitting alerts”. Under the current WEA rules, the Commission requires Participating CMS Providers to support Required Monthly Testing (RMT) initiated by FEMA, and testing of the C-Interface. The Commission adopted these testing requirements in the Second Report and Order to satisfy the WARN Act's testing requirement in a manner that would ensure the reliability and performance of the new WEA system and the availability and viability of both of its gateway functions. The Commission further noted that the CMSAAC proposed that, in order to ensure the reliability and performance of this new system, certain procedures for logging alerts at the Alert Gateway and for testing the system at the Alert Gateway and on an end-to-end basis should be implemented. Since the deployment of WEA in 2012, the system has grown, technology has changed, and new community-based alert initiators have begun to use WEA to address the safety needs of their communities. In the course of analyzing the Commission's proposals below, commenters should address whether the proposal is consistent with the Commission's statutory authority under the WARN Act or the Communications Act.

38. GAO and alert originators have raised concerns about the lack of a state/local WEA testing regime. In response, the Commission tasked CSRIC IV with making recommendations on how the Commission could address these concerns. In its report, CSRIC IV observes that, according to state and local alert originators, training and proficiency-building exercises constitute a “fundamental component” of emergency management programs. Additionally, according to CSRIC IV, WEA testing would provide state and local alert originators with opportunities to evaluate their preparedness for responding to life-threatening events, to ensure the software used to generate and the infrastructure used to disseminate WEA messages are operating correctly, and to test for downstream issues.

39. Readiness Testing. CSRIC IV considered three potential models for WEA testing: (1) Allowing alert originators to utilize the current RMT process; (2) allowing alert originators to conduct WEA tests that could be received by wireless customers that opt in to receive alerts; and (3) allowing alert originators to conduct WEA tests that would be received by all wireless customers, unless they opt out of receiving the test. FEMA currently issues nationwide RMTs that are held up to 24 hours before they are delivered to (but not displayed on) WEA-enabled devices. CSRIC IV concluded that a localized test to opt-in participants' WEA-enabled devices would achieve alert originators' goals of providing system verification, as well as opportunities for alert originator proficiency training, and enhancing public awareness of the WEA service.

40. Pursuant to CSRIC IV's recommended opt-in testing model, an alert originator would submit its test message to FEMA/IPAWS, which would then send the test message to Participating CMS Providers that have coverage within the described alert area. Participating CMS Providers would then receive and process the test message, distributing it to devices configured to opt-in to receiving state and local WEA tests.

41. The Commission proposes to add a new section 10.350(c) to the WEA rules to require Participating CMS Providers to ensure their systems support the receipt of “State/Local WEA Tests” from the Federal Alert Gateway Administrator, and to distribute such tests to the desired test area in a manner consistent with section 10.450 of the rules. In order to allow State/Local WEA Tests to mirror an actual event, as recommended by the CSRIC, the Commission proposes that the 24-hour delivery window that currently applies to RMTs under section 10.350(a)(2) would not apply to State/Local WEA Tests conducted under proposed section 10.350(c). The Commission believes that the local, geographically focused nature of these tests would allow Participating CMS Providers to distribute the State/Local WEA Tests within their networks upon receipt in a manner consistent with necessary traffic load management and network maintenance. The Commission seeks comment on this analysis. In this regard, the Commission also seeks comment on whether there still remains a justification for the 24-hour window for RMTs. Does the 24-hour window allow for efficient testing that provides adequate data about any weaknesses in the system, including potential message delivery latencies? Do Participating CMS Providers still require a 24-hour window “to manage traffic loads and to accommodate maintenance windows,” as indicated by section 10.350(a)(2)? The Commission further proposes that section 10.350(c), consistent with section 10.350(a), should specify that a Participating CMS Provider may forgo accepting or delivering a State/Local WEA Test if the test message is preempted by actual alert traffic, or if an unforeseen condition in the Participating CMS Provider infrastructure precludes distribution of the State/Local WEA Test. In the event that a Participating CMS Provider cannot accept or deliver a test under these circumstances, the Commission proposes to require that Participating CMS Providers shall indicate such an unforeseen condition by sending a response code to the Federal Alert Gateway. Finally, the Commission proposes that Section 10.350(c) state that Participating CMS Providers may provide their subscribers with the option to opt-in to receiving State/Local WEA Tests. The Commission seeks comment on these proposals. The Commission also seeks comment on whether the Commission should require State/Local WEA Test messages to be clearly identified as test messages to prevent confusion.

42. The Commission seeks comment on whether any new or revised technical standards or processes would be necessary to facilitate state and local testing, and if so, whether such standards would be best developed through industry standards bodies or best practices. The Commission seek further comment on whether alert originators at the federal, state and local levels would be best positioned to coordinate with Participating CMS Providers and determine the proper method of outreach to testing participants. Accordingly, would the goal of promoting alert origination proficiency be best achieved by affording alert originators flexibility to develop a WEA testing model that best fits the needs of their individual communities? Similarly, would industry organizations such as ATIS/TIA be best positioned to create the device and network specifications that may be necessary to support state and local WEA testing? The Commission seeks comment on whether any additional requirements would be necessary to realize the specific opt-in testing regime recommended by CSRIC IV. Should the Commission revise section 10.500 of the WEA rules, which specifies general requirements for WEA mobile device functionality (including monitoring for alert messages and presenting alert content) to include the ability to monitor for State/Local WEA Tests and to be able to receive and display State/Local WEA Test messages?

43. The Commission also seeks comment on the periodicity with which state and local alert originators would likely want to engage in readiness testing, and on the maximum readiness testing periodicity Participating CMS Providers are able to support. With what frequency should State/Local WEA Tests be conducted, in order to optimize and ensure system readiness, without introducing alert fatigue or otherwise imposing undue burdens on Participating CMS Providers?

44. The Commission seeks comment on the public safety benefits likely to result from requiring Participating CMS Providers to support State/Local WEA Testing. According to FEMA, a localized, opt-in, end-to-end approach to testing, as described above, offers the public safety benefits that alert originators state that they need. Specifically, FEMA asserts that requiring Participating CMS Provider support for local testing would improve WEA by (1) demonstrating to the public that their handsets are (or are not) capable of receiving a WEA message; (2) demonstrating WEA capability in coordinated public warning exercises and tests such as those required by the Nuclear Regulatory Commission for local emergency preparedness programs; and (3) providing the public with reassurance that local emergency management is capable of alerting them in times of disaster. The Commission seeks comment on FEMA's analysis.

45. Alternatively, would another approach to state and local WEA testing address alert originators' needs more efficiently? As mentioned above, CSRIC IV considered two alternatives to localized, end-to-end, opt-in WEA testing, including local testing on an opt-out basis, and using the current RMT process. The Commission seeks comment on these alternative testing regimes. While CSRIC IV concludes that opt-out testing would afford substantial benefits in terms of system verification, alert originator proficiency, and public awareness, it also finds that opt-out testing is unnecessarily broad, and that large-scale public response may unduly stress emergency call centers. The Commission seeks comment on CSRIC IV's analysis. With respect to utilizing the current RMT process, CSRIC IV finds that this testing model poses little to no network reliability risk for Participating CMS Providers, but also offers little, if any, benefit in the areas of system verification, alert originator proficiency and public awareness because the test alert would not be displayed on end-user devices. The Commission seek comment on CSRIC IV's findings.

46. The Commission also seeks comment on any potential costs that may be imposed by its proposed testing requirements. Because the proposed testing regime is largely based on the current RMT model, with test recipients likely comprised of a limited number of voluntary, opt-in participants, the Commission anticipates that the proposed testing regime would likely not lead to network congestion. The Commission seeks comment on this observation, as well as the extent to which Participating CMS Providers would incur costs, including costs related to the development of any technical standards or necessary modifications to end user devices. Are there any measures the Commission could take to minimize any attendant costs while still achieving the Commission's public safety goals?

47. Liability Protection for State/Local WEA Testing. Finally, CSRIC IV recommends that the Commission confirm that liability protection provided under the WARN Act extends to Participating CMS Providers for their engagement in State/Local WEA Testing. Based on the plain language of the WARN Act, the Commission believes that liability protection would reasonably extend to Participating CMS Provider engagement in State/Local WEA Testing as proposed in this Notice, provided that the Participating CMS Provider otherwise satisfies its obligations under the WARN Act and complies with the Commission's testing requirements. The Commission notes that section 602(f) provides that “[t]he Commission shall require by regulation technical testing for commercial mobile radio service providers that elect to transmit emergency alerts and for devices and equipment used by such providers for transmitting alerts. Further, section 602(e)(1)(A) states that “[a]ny commercial mobile service provider [. . .] that transmits emergency alerts and meets its obligations under this title shall not be liable to any subscriber, or user of, such person's service or equipment for—(A) any act or omission related to or any harm resulting from the transmission of, or failure to transmit, an emergency alert.” The Commission seeks comment on its analysis.

48. Proficiency Training. The Commission observes that it may be helpful for state and local alert originators to send WEA test messages in the context of proficiency training exercises. The Commission envision that proficiency training exercises would help develop the preparedness of state and local emergency response, ensuring that emergency managers are able to respond swiftly and efficiently to emergencies through the use of WEA. The Commission seeks comment on whether it should provide alert originators with the option of delivering such proficiency training messages to a single, dedicated end-user device, such as the mobile device of an emergency management official, rather than to a larger set of wireless customers, in order to provide alert originators with an opportunity to develop alert originator proficiency through regular exercises without involving the general public. Further, in order to minimize any potential burden on Participating CMS Providers, the Commission propose that proficiency training exercises would not be subject to the same reporting requirements that the Commission discuss below. The Commission seeks comment on this proposal, and any other approaches the Commission could adopt that would achieve its public safety objectives.

49. Section 10.350 of the WEA rules requires Participating CMS Providers to keep an automated log of RMT messages received by the Participating CMS Provider Alert Gateway from the FEMA Alert Gateway. The Commission adopted this requirement in the Second Report and Order based on the CMSAAC's recommendation that alert logs should be kept and preserved as an integral part of the Trust Model for maintaining WEA system integrity, for protecting system security, and for testing and troubleshooting purposes. The Commission declined to adopt more specific test reporting requirements at that time because the WEA system was still in a nascent stage. According to CSRIC IV, there is no established procedure for Participating CMS Providers to inform alert originators or government entities of the success or failure of WEA tests under the current WEA testing model (i.e., RMT and C-Interface Testing), and thus no available method to analyze these results in the interest of public safety. The Commission seeks comment on CSRIC IV's conclusions.

50. The Commission proposes to require Participating CMS Provider Alert Gateways to provide the logging functionality recommended by the CMSAAC Report. Specifically, the Commission proposes to adopt a new section 10.320(g) that would require Participating CMS Provider Alert Gateways to:

• Provide a mechanism to log messages with time stamps that verify when messages are received, and when the messages are acknowledged or rejected by the Participating CMS Provider Alert Gateway, and if an alert is rejected, to provide the specific error code generated by the rejection;

• Maintain an online log of active and cancelled alert messages for 90 days, and maintain archived logs for at least 36 months that should be accessible by Participating CMS Providers for testing and troubleshooting purposes; and

• Generate monthly system and performance statistics reports based on category of alert, alert originator, alert area, and other alerting attributes.

The Commission observes that these logging requirements were recommended by the CMSAAC after extensive efforts to arrive at a consensus among CMS Providers, vendors, public safety entities, organizations representing broadcast stations, and organizations representing people with disabilities and the elderly. Are Participating CMS Provider Alert Gateways currently capable of performing the logging functions specified by the CMSAAC? If not, how difficult would it be to add this functionality? Would alert logging allow Participating CMS Providers to monitor whether the WEA system is working as intended? In order to develop a full view of how the WEA system is working, from alert initiation all the way through to receipt of the message by the mobile device, should CMS Providers also log when the alert is received by a representative, dedicated, end-user device (such as a mobile device controlled by and in the possession of the Participating CMS Provider)? Aside from the Commission, should alert logs be accessible only by Participating CMS Providers? The Commission seeks comment on whether other federal or state governmental entities, such as FEMA, may have a legitimate need for access to alert logs. The Commission seeks comment any confidentiality protections that would be required to protect Participating CMS Provider alert logs. The CMSAAC described message logging as part of the Trust Model necessary to ensure WEA system security and reliability because it allows all WEA messages to be attributed reliably to an individual, sender, and to identify when the sender is not properly credentialed. The Commission also seeks comment on whether implementing these CMSAAC-recommended procedures, along with the test reporting requirements described below, would be beneficial in harmonizing the Commission's proposed WEA test reporting and logging procedures with the Commission's EAS rules.

51. The Commission notes that CSRIC IV recommends that industry and government stakeholders “develop a best practices ATIS/TIA standard for defining and reporting on significant problems.” The Commission seeks comment on CSRIC IV's recommendation. Should the Commission formalize a reporting process for alert originators? If the Commission does formalize a test reporting procedure, what form should that reporting take, and what specific information should be reported? The Commission also seeks comment on the extent to which reporting procedures could provide alert originators with useful feedback on alert delivery latency, accuracy of geo-targeting, and quality of public response that otherwise would be unavailable. Could feedback on the quality of public response be leveraged to improve alert originators' alert origination proficiency? The Commission seeks comment on the extent to which reported data would be useful to empower alert originators with the ability to ensure the WEA system will work as designed and when needed. What, if any, characteristics of alert dissemination, beyond geo-targeting and latency, would state and local alert originators seek to evaluate through State/Local WEA Testing and thus require reports on? How can a test reporting system be optimized to protect potentially confidential information?

52. Should the Commission also require Participating CMS Providers to report WEA test data? The Commission notes that the Commission has required that EAS Participants file nationwide EAS test result data with the Commission on a confidential basis through an Electronic Test Reporting System (ETRS). Should the Commission require Participating CMS Providers to use this system as a model for the reporting of WEA test data to the Commission? If the Commission were to require reporting of WEA test data, the Commission seeks comment regarding the frequency with which such reporting should take place. For example, should Participating CMS Providers file test data on an annual basis, based on test data collected from the RMT process? The Commission also seeks comment regarding the elements of the test data that should be provided in any such report. For example, should the report include data regarding the time of the receipt of the alert from the FEMA Alert Gateway, and the time of alert transmission? Should Participating CMS Providers include data regarding when an alert is received by a representative mobile device, as discussed above with respect to logging requirements? The Commission also seeks comment on whether such information should be considered presumptively confidential, to be shared with federal, state and local alert originators that have confidentiality protection at least equal to that provided by the Freedom of Information Act (FOIA), consistent with the Commission's data-protection practices in the EAS context. Alternatively, are there differences in the type of data that the Commission might collect from CMS Providers versus EAS Participants that would suggest WEA test data should be treated differently? Should access to WEA test data be limited, and if so, to whom? The Commission seeks comment on the optimal method of filing test result data with the Commission in a manner that fulfills the primary goal of WEA testing to provide alert originators with verification that the system works as designed, and provides the Commission with an opportunity to analyze the performance of the WEA system in order to bring to light any potential weaknesses in the WEA system that the Commission may be able to address through rulemaking, public-private partnerships, or both.

53. The Commission also seeks comment on three alternative test reporting mechanisms: Third-party software using Application Programming Interfaces (APIs), informal communication among alert originators, and use of the Public Safety Help Center. The Commission anticipates that these alternatives could minimize the filing burden on Participating CMS Providers, but could also present significant drawbacks. First, the Commission seeks comment on whether Participating CMS Providers could allow third-party application developers to create software and APIs to satisfy their test reporting requirements. Could third-party software be designed to automate the process of filing test result data with the Commission by sending such data from the consumer's mobile device directly to a Commission-operated server or account using a the cell broadcast network, a data connection, or WiFi? Second, the Commission seeks comment on whether it would be preferable to leave test reporting to person-to-person interaction without the adoption of formal rules. Could the goals of test reporting be achieved through informal communication between alert originators and their associates? Finally, the Commission seeks comment on the use of the Public Safety Answering Point (PSAP) section of the Public Safety Help Center to satisfy the need for feedback on State/Local WEA Tests. Would a consumer-complaint based reporting mechanism adequately capture shortcomings in State/Local WEA Tests?

54. The Commission also seeks comment on the potential costs that Participating CMS Providers would be likely to incur if the Commission were to adopt rules for alert logging and test reporting. What costs, if any, would logging alerts at the Participating CMS Provider Alert Gateway cause Participating CMS Providers to incur? What costs would reporting test data to the Commission impose? How could the Commission optimize the WEA test reporting process to minimize the filing burden on Participating CMS Providers, and to protect confidential information? How, if at all, could a best-practice-based test reporting system be leveraged to provide comparable benefits at a lower cost?

55. The Commission seeks comment on whether there are additional measures the Commission can take to promote participation in WEA, both by consumers and by CMS Providers. Section 602(b)(2)(E) of the WARN Act provides that “any commercial mobile service licensee electing to transmit emergency alerts may offer subscribers the capability of preventing the subscriber's device from receiving such alerts, or classes of such alerts, other than an alert issued by the President.” In the Third Report and Order, the Commission addressed this section of the WARN Act by adopting section 10.280 of the WEA rules, which states that Participating CMS Providers “may provide their subscribers with the option to opt out of both, or either, the `Child Abduction Emergency/AMBER Alert' and `Imminent Threat Alert' classes of Alert Messages,” and that Participating CMS Providers “shall provide their subscribers with a clear indication of what each option means, and provide examples of the types of messages the customer may not receive as a result of opting out.” The Commission also allowed Participating CMS Providers the flexibility to provide opt-out choices consistent with their own infrastructure in order to accommodate variations among Participating CMS Provider networks and devices. The Commission reasoned that this approach would allow consumers the flexibility to choose what type of messages they wish to receive, while also ensuring that customers would be apprised of the most severe threats as communicated by Presidential Alert messages. Further, the Commission reasoned that this approach would accommodate “differences in how CMS providers and device manufacturers provision menus and user interfaces.” The Commission's approach was consistent with the CMSAAC recommendation that a simple opt-out program should allow consumers the choice to opt out of Imminent Threat Alerts and AMBER Alerts.

56. Section 602(b)(2)(E) of the WARN Act required the Commission to send a report to Congress making recommendations on whether Participating CMS Providers should continue to be permitted to offer their subscribers the ability to opt out of receiving Imminent Threat and AMBER Alerts. As required by the WARN Act, the Commission filed the report on August 5, 2010, but initial deployment of WEA was not scheduled until April 2012. Accordingly, although the Commission adopted opt-out rules in 2008, at the time the Commission submitted its report to Congress there was no WEA service from which customers could opt-out, so the Commission made no recommendations regarding subscriber opt-out capability.

57. Now that WEA has been deployed for over three years, the Commission seek comment on the opt-out provisions currently used by Participating CMS Providers. Further, the Commission seeks comment on specific factors that lead consumers to opt out of receiving WEA messages. For example, do consumers regularly opt out of receiving WEA messages because they receive alerts that are not relevant to their geographic location? If so, would the new geo-targeting rules the Commission proposes today reduce consumer opt-out? Has message length, particularly the 90-character limit, been a factor in consumer decisions to opt out? Would the provision of further details about the nature of life-threatening situations and instructions on how to respond make it more or less likely that consumers would choose to opt out of receiving WEA messages? Similarly, would the availability of WEA messages in languages other than English, Emergency Government Information, embedded URLs, embedded phone numbers or multimedia content have an impact on consumer opt out, and if so, then to what extent?

58. The Commission notes that many Participating CMS Providers supply, display, or refer the customer to instructions on how to opt out of receiving WEA messages on Participating CMS Provider Web sites. Does the manner in which Participating CMS Providers offer their customers information regarding consumer choice have an impact on whether consumers opt out of receiving WEA messages? Would the goals of the statute be better served by requiring a more neutral approach? If so, should the Commission prescribe a consistent, transparent and uniform opt-out procedure for WEA messages, or are there other regulatory responses that would effectively prevent such favoritism while providing Participating CMS Providers with more flexibility in how they inform consumers of the options?

59. The Commission seeks comment on the extent to which Participating CMS Providers can provide consumers with a greater number of opt-out choices that might facilitate consumer participation in WEA. For example, could Participating CMS Providers offer users the option to receive AMBER Alerts only during certain times, such as during the day, so they will not be disturbed during the evening or at night? Are consumers currently able to silence some or all WEA alerts by using “silent mode” or “do not disturb” functions on their mobile devices? Are there other ways to personalize alert receipt options that would help optimize the balance between encouraging WEA participation and providing consumers with sufficient information to make an informed opt out decision? Should the Commission require Participating CMS Providers to offer any of these types of personalized alert receipt options, and, if so, what costs, if any, would such a requirement impose on the Provider? What benefits would be associated with such a requirement? For example, would a greater number of consumers decide not to disassociate completely from WEA if they had a more nuanced range of choices in how they could receive alerts, such as having the option to cache certain types of alerts received during the evening or night for later delivery during a more convenient time, or to limit the types of weather alerts they would receive, for example, to tornadoes but not thunderstorms?

60. The Commission seeks comment on the extent that public perception of WEA contributes to consumer opt-out and to CMS Provider election to participate in WEA. To the extent that the rules the Commission proposes today will heighten public awareness and improve public perception of the value of WEA, to what extent is this expected to affect consumer opt out and CMS Provider participation?

61. Finally, the Commission seeks comment on what potential barriers may exist that prevent full participation in WEA by all wireless providers, particularly any barriers confronting smaller providers. What measures could lower any barriers to participation for CMS Providers? Are there particular actions the Commission or other stakeholders could take to facilitate the voluntary participation of non-participating CMS providers, particularly smaller providers, in WEA? For instance, do smaller providers encounter issues obtaining WEA-capable devices?

62. Section 11.45 of the EAS rules provides, in pertinent part, that “[n]o person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” While the Commission's WEA rules do not include a comparable bar against the use of the WEA Attention Signal, because the WEA and EAS Attention Signals use identical frequencies, absent a waiver of the Commission's rules, the broadcast or transmission of the WEA Attention Signal may violate Section 11.45 of the Commission's rules, particularly insofar as the respective signals may be indistinguishable to the listener.

63. FEMA, in collaboration with Ready.gov and the Ad Council, has developed a public education campaign consisting of PSAs, which it has distributed to strategic local markets and state and local IPAWS partners. In November 2015, the Public Safety and Homeland Security Bureau (PSHSB or Bureau), on delegated authority, temporarily waived sections 11.45 and 10.520 of the Commission's rules, in order to allow FEMA to raise public awareness about WEA and its attention signal through a PSA campaign. The waiver, which will expire on May 19, 2017, permits the PSAs to play the WEA Attention Signal to familiarize the public with the sounds that they may hear from their mobile device when they receive a WEA Alert. The Bureau, however, conditioned the waiver upon the WEA PSA making clear that the WEA Attention Signal was being used “in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.”

64. The Commission proposes to amend its rules to allow broadcast or transmission of the WEA Attention Signal as part of government-developed PSAs in order to address alert originators' need to raise public awareness about WEA. Specifically, the Commission proposes to amend sections 11.45 and 10.520 to allow federal, state and local governments to use the attention signal common to EAS and WEA to raise public awareness about WEA, provided the relevant entity makes it clear that the WEA Attention Signal is being used in the context of the PSA, “and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program,” including by explicitly stating that the WEA attention signal is being used in the context of a PSA for the purpose of educating the public about WEA. The Commission also seek comment on whether the Commission should further amend section 10.520 to bar the use of the WEA Attention Signal in a manner parallel to the bar on use of the EAS Attention Signal in Section 11.45 of the Commission's rules. In the context of increasing the maximum WEA character limit, FEMA notes that it will “need to . . . conduct additional public information efforts to inform people of the new format of WEA messages they may receive on their cellular phones.” Would PSAs be useful for this purpose? If the Commission were to amend the Commission's rules to allow the broadcast or transmission of the WEA Attention Signal in PSAs intended to educate the public about WEA, should the Commission limit this exception to PSAs that are developed by FEMA, or should the Commission extend this exception to PSAs created by any alerting authority recognized by FEMA? If the Commission were to extend the exception in this manner, should any such PSAs be subject to prior review or approval by FEMA as a condition of being considered compliant under the Commission's amended rules?

65. The WARN Act and the Commission's rules require Non-commercial Educational (NCE) and public broadcast television station licensees and permittees “to install necessary equipment and technologies on, or as part of, any broadcast television digital signal transmitter to enable the distribution of geographically targeted alerts by commercial mobile service providers that have elected to transmit emergency alerts” as a back-up to the C-Interface.

66. In a companion Further Notice of Proposed Rulemaking (Further Notice) to the Second Report and Order, 73 FR 47552, the Commission sought comment on whether it should adopt rules that require NCE and public broadcast television station licensees and permittees to test the installed equipment. In the Further Notice, the Commission noted that NCE and public broadcast television station licensees and permittees will, in essence, provide a redundant path by which Participating CMS Providers will be able to receive geo-targeted alerts. The Commission also noted that it adopted rules to implement 602(f) of the WARN Act to require technical testing of this back-up path for Participating CMS Providers.

67. Against that background, the Commission sought comment on whether NCE/public broadcast television stations should participate in WEA testing, and if so, how this testing should be implemented. The Commission asked whether it should implement similar requirements as those it adopted for Participating CMS Providers. Additionally, the Commission sought comment on whether a different testing regime should be implemented given the unique circumstances of NCE/public broadcast television stations and digital television technology. Only two parties commented in response, both of which noted that, although they supported testing of the NCE/public television portion of the system, there were inherent limits in what such testing would show.

68. Given the passage of time, and the advances in WEA technology that have occurred during that time, the Commission asks that interested parties refresh and update the record on whether and how testing of the broadcast-based WEA infrastructure should be implemented. The Commission also seeks comment on whether NCE/public broadcast television stations have the capability to test and analyze the transport of messages, and if not, would they be required to purchase testing equipment? Would special procedures and test signals need to be developed to NCE/public broadcast television stations to effectively test message transmission and diagnose delivery problems? Additionally, how would NCE/public broadcast television stations report problems? As an alternative, would it be sufficient to require NCE/public broadcast television stations to simply receive tests originated by the Federal Alert Gateway and re-transmit them to the CMS Provider Alert Gateway?

69. Additionally, the Commission asks commenters to specify the benefits and costs of adopting NCE/public broadcast television station testing requirements. For example, would the public benefits associated with ensuring the reliability of a redundant, back-up system outweigh the costs to NCE and public broadcast station licensees and permittees in testing equipment? Would an extended implementation timeframe mitigate such costs?

70. Section 10.410 of the Commission's WEA rules requires Participating CMS Providers' Alert Gateways to process alerts on a first in-first out (FIFO) basis, except for Presidential Alerts, which must be processed before all non-Presidential alerts. Section 10.320 reiterates this requirement, and further requires Participating CMS Provider's Alert Gateways to support “a mechanism to manage congestion within the CMS provider's infrastructure.” Further, in the First Report and Order, the Commission concluded that “it would be contrary to the public interest if alert messages were to preempt certain active voice or data sessions,” observing that it would not be in the public interest if urgent calls for help during crises were preempted by alert traffic. This conclusion was consistent with the recommendations of the CMSAAC, which stated that “the presentation of the received [ ] alert message should take priority over other mobile device functions except for the preemption of an active voice or data session.”

71. Given the passage of time, and the advances in WEA technology that have occurred during that time, the Commission seeks comment on whether it should amend section 10.320 of the Commission's rules to address prioritization at the Alert Gateway, in transit, and on the mobile device. Specifically, with respect to prioritization at the Alert Gateway, the Commission seeks comment on whether WEA alerts should continue to be processed on a FIFO basis, with the exception of the Presidential Alert? Should Imminent Threat Alerts attaining a certain threshold level of urgency, severity and certainty be processed before other, less extreme Imminent Threats potentially affecting the same geographic area? In the event commenters believe a particular type of alert should be prioritized over another, the Commission seeks comment on the order of prioritization and basis for such prioritization. With respect to the prioritization of WEA alerts in transit, should the Commission require that WEA alert data have priority over all other data in transit? Would this have any unintended practical consequences, given that all traffic is increasingly data?

72. The Commission's WEA rules allow Participating CMS Providers to elect to transmit WEA alert messages “in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission.” The WEA rules also allow Participating CMS Providers to withdraw their election to participate in WEA “without regulatory penalty or forfeiture.” The Commission adopted these rules based on the WARN Act's requirements that CMS providers that elect to transmit emergency alerts must agree to follow the technical rules adopted by the Commission, and the WARN Act's provision that Participating CMS Providers may withdraw their election to transmit emergency alerts at any time without penalty upon written notification to subscribers. CSRIC IV recommends that the Commission modify these election procedures to provide CMS Providers with multiple election options. Under CSRIC IV's recommendations, a CMS Provider could elect to continue to participate in WEA under the new rules adopted by the Commission, or “under the rules in place at the time of the original election.” CSRIC IV recommends that CMS Providers should be required to electronically file with the Commission, within 180 days following the adoption of changes or enhancements to WEA rules, a letter attesting to the CMS Provider's election as recommended above.

73. The Commission believes that Participating CMS Providers should continue to provide WEA service in a manner consistent with the Commission's WEA rules, including any amendments the Commission might adopt as a result of this proceeding. Under the WARN Act, CMS Provider election to participate in WEA is voluntary, but once a CMS provider elects to participate in WEA, participation must be consistent with the Commission's rules. The WARN Act plainly states that a CMS Provider that elects to transmit alerts under the WARN Act must do so “in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission.” There is nothing in the WARN Act that gives a Participating CMS Provider the authority to select which technical standards, protocols, procedures and other requirements with which it will comply. The Commission observes that to allow each Participating CMS Provider to support a substantively or technically different WEA service could introduce confusion and potentially impede interoperability, unnecessarily complicating the task of alert originators at the very instant when lives may depend on getting an accurate and timely alert to the community. Moreover, if the Commission were to adopt CSRIC IV's recommended revisions to the Commission's election procedures, it would threaten to eliminate or severely inhibit the Commission's ability to implement the WARN Act's vision that the WEA service should evolve, consistent with advancements in the underlying technology.

74. The Commission believes that the record and stakeholder practice support the Commission's position that the Commission should revisit its technical rules for WEA as technology evolves in order to ensure that WEA remains an effective, life-saving service. It was the common understanding among all the CMSAAC stakeholders that WEA would evolve with technology. Indeed, many of the proposals in this Notice are based upon the CMSAAC recommendations that were not adopted by the Commission in previous reports and orders because of technological limitations present at the time of their adoption. When the Commission adopted the WEA rules, it retained the “discretion and flexibility” to evaluate the CMSAAC's recommendations in order to advance the policy goal underlying the WARN Act, i.e., “the creation of a [WEA system] in which CMS Providers will elect to participate, and which will effectively deliver alerts and warnings to the public.” The Commission believes this is consistent with the intent of Congress.

75. In light of the rapid deployment of smart handsets and 4G technology as discussed above, the Commission believes that the statutory provisions giving rise to WEA authorize the Commission to continue to take a leadership role, in cooperation with other federal entities, states, localities and Participating CMS Providers, to promote the continued effectiveness of WEA as a technologically current element of the nation's overall alerting strategy. The Commission also believes that competitive forces provide Participating CMS Providers with strong incentives to continue to transmit emergency alerts to consumer mobile devices and that these market incentives, along with the public safety benefits the Commission expects to result from these proposed rules, provide a strong argument for continued participation in WEA. The Commission seeks comment on this analysis, as well as on CSRIC IV's recommendation to allow Participating CMS Providers to offer WEA pursuant to different requirements.

76. As discussed below, the Commission proposes that Participating CMS Providers must comply with the Commission's WEA messaging rules within one year of their effective date, and with the Commission's WEA geo-targeting and testing rules within sixty days of their effective date. While all of the Commission's proposed rules are intended to leverage commercially available technologies to improve public safety at minimal cost to Participating CMS Providers, the Commission recognizes that compliance with the Commission's WEA messaging rules, unlike the Commission's WEA testing and geo-targeting rules, would likely require modifications to existing network and device standards in order to ensure that Participating CMS Providers are able to comply with these proposed rules in a uniform manner.

77. CSRIC IV recommends that “within 180 days of the FCC adoption of rules for WEA enhancements, the FCC, Participating CMS [P]roviders, FEMA, and Alert Originators jointly identify the timelines for enhanced WEA development, testing and deployment,” taking into consideration ATIS/TIA feasibility studies scheduled to be completed within one year. In response to this CSRIC IV recommendation, and for ease of reference and comment, the Commission provides the table below to set forth the timeframes for those instances where the Commission proposes specific implementation deadlines.

78. Proposed WEA Messaging Rules. The Commission proposes that all Participating CMS Providers should comply with the Commission's proposed WEA messaging rules—specifically, the Commission's proposed requirements to extend the maximum WEA message length to 360 characters, provide Emergency Government Information alert messages, and be capable of including phone numbers and URLs in WEA alerts—one year from the adoption of final rules. While the Commission believes these proposed requirements leverage commercially available technologies, the Commission recognizes that implementation of these requirements would necessitate standards modifications. In particular, according to CSRIC IV, the standards revision process associated with increasing the maximum WEA character length would take one year to complete. The Commission seeks comment on this timeframe. Commenters are encouraged to specify an alternative timeline if compliance within one year is considered infeasible, or if compliance can be met earlier, including by specifying whether compliance with the Commission's proposed rules should be completed in stages. The Commission also seeks comment on benefits and costs relating to the Commission's analysis and transition period.

79. Proposed Geo-targeting, Testing, Logging, and Reporting Rules. The Commission proposes that all Participating CMS Providers should be required to comply with the Commission's WEA testing and geo-targeting rules within sixty days of their effective date. Given that some Participating CMS Providers are already utilizing a variety of techniques discussed above to voluntarily deliver more finely geo-targeted WEA messages, and that CSRIC IV recommends that the Commission establish a waiver process to the extent necessary to allow State/Local WEA Testing during the pendency of this rulemaking, the Commission believes that Participating CMS Providers are already capable of complying with the Commission's proposed geo-targeting and testing rules, and that it would serve the public interest to implement these requirements in a swift manner. The Commission seeks comment on this timeframe and on the Commission's rationale.

80. The Commission further proposes that Participating CMS Providers should comply with WEA alert logging and test reporting requirements within sixty days of the adoption of final State/Local WEA Testing and proficiency training rules, or within sixty days of the launch of ETRS, whichever is later. The Commission notes that the Commission required EAS Participants to file test report data in ETRS within sixty days of the effective date of the ETRS rules, or within sixty days of the launch of the ETRS, whichever was later. The Commission anticipates that filing test result data in ETRS will present Participating CMS Providers with obligations similar to those of EAS Participants. If ETRS is not operational within sixty days of the adoption of final State/Local WEA Testing rules, the Commission proposes to encourage state and local alert originators who engage in State/Local WEA Testing to file self-recorded test results in PS Docket No. 15-91 using the Electronic Comment Filing System (ECFS) until ETRS becomes operational. In this manner, any meaningful data from initial State/Local WEA Tests would be captured and recorded, and could be leveraged to help improve WEA. Finally, the Commission proposes that any amendments to the Commission's WEA rules to allow the use of the WEA tones in government-produced PSAs would be effective sixty days from their effective date.

81. Providing Multilingual and Multimedia Alerts. The Commission seeks comment on timeframes within which it would be reasonable to expect Participating CMS Providers to support WEA messages in languages other than English, and messages that contain multimedia. In responding to the Commission's requests for comment on the form that rules regarding these issues should take, commenters are encouraged to provide timetables along which the Commission should reasonably expect Participating CMS Providers to comply with such requirements, including any interim milestones that the Commission might expect Participating CMS Providers to reach along the way to fulfilling the Commission's ultimate objectives.

82. NCE and Public Broadcast Television Station Testing. The Commission asks commenters to propose a specific implementation timeframe to enable NCE and public broadcast television station licensees and permittees to test the installed equipment. For example, if the Commission were to require NCE/public broadcast television station testing of equipment, should such a requirement be phased in over a specific period of time? Under a phased-in approach, what would be appropriate milestones to guide implementation of such testing requirements? What would be the costs and benefits of a phased in approach?

83. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must: (1) List all persons attending or otherwise participating in the meeting at which the ex parte presentation was made; and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

84. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments in response to this Notice on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties that choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

1. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

2. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

3. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

85. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The IRFA is set forth in Appendix B. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing deadlines as comments filed in response to this Notice of Proposed Rulemaking as set forth on the first page of this document, and have a separate and distinct heading designating them as responses to the IRFA.

86. This document contains proposed new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

1. For further information regarding the Notice of Proposed Rulemaking contact James Wiley, Attorney Advisor, Policy and Licensing Division, Public Safety and Homeland Security Bureau, at (202) 418-1678 or [email protected] or John A. Evanoff, Attorney-Advisor, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0848 or [email protected].

2. Accordingly, it is ordered that pursuant to Sections 1, 4(i) and (o), 201, 303(r), 403, and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 201, 303(r), 403, and 606, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, this Notice of Proposed Rulemaking Is hereby adopted.

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

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 10 and 47 CFR part 11 to read as follows:

In the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803 (1995) (ICCTA), Congress revised the process for filing offers of financial assistance (OFAs) for continued rail service, codified at 49 U.S.C. 10904. Under the OFA process, as further implemented in the Board's regulations at 49 CFR 1152.27, financially responsible parties may offer to temporarily subsidize continued rail service over a line on which a carrier seeks to abandon or discontinue service, or offer to purchase a line and provide continued rail service on a line that a carrier seeks to abandon.

Upon request, the abandoning or discontinuing carrier must provide certain information required under 49 U.S.C. 10904(b) and 49 CFR 1152.27(a) to a party that is considering making an OFA. A party that decides to make an OFA (the offeror) must submit the OFA to the Board, including the information specified in 49 CFR 1152.27(c)(1)(ii). If the Board determines that the OFA is made by a financially responsible offeror, the abandonment or discontinuance authority is postponed to allow the parties to negotiate a sale or subsidy arrangement. 49 U.S.C. 10904(d)(2); 49 CFR 1152.27(e). If the parties cannot agree to the terms of a sale or subsidy, they may request that the Board set binding terms under 49 U.S.C. 10904(f)(1). After the Board has set the terms, the offeror can accept the terms or withdraw the OFA. When the operation of a line is subsidized to prevent abandonment or discontinuance of service, it may only be subsidized for up to one year, unless the parties mutually agree otherwise. 49 U.S.C. 10904(f)(4)(b). When a line is purchased pursuant to an OFA, the buyer must provide common carrier service over the line for a minimum of two years and may not resell the line for five years after the purchase. 49 U.S.C. 10904(f)(4)(A); 49 CFR 1152.27(i)(2).

Since the changes to the OFA process in ICCTA were enacted, the Board's experiences have shown that there are areas where clarifications and revisions could enhance the OFA process and protect it against abuse. Therefore, the Board seeks public comments on whether and how to improve any aspect of the OFA process, including enhancing its transparency and ensuring that it is invoked only to further its statutory purpose of preserving lines for rail service. Although we invite public comment on ways to improve any aspect of the OFA process, we also specifically seek comments on the following possible changes to the Board's OFA regulations.

The Board's regulations require that a potential offeror demonstrate that it is “financially responsible,” but those regulations do not fully define this concept or what facts or evidence a party must provide to demonstrate financial responsibility. The Board has made various rulings on this question in specific proceedings, but those rulings are not codified in our regulations, which has led to disputes in some proceedings. See, e.g., Consol. Rail Corp—Aban. Exemption—in Phila. Pa., AB 55 (Sub-No. 710X) et al., slip op. at 4 (STB served Oct. 26, 2012) (“[T]he Offerors assert that they were and are still unsure exactly what documents they were required to produce to be considered financially responsible. . .”). See also Ind. Sw. Ry.—Aban. Exemption—in Posey & Vanderburgh Ctys., Ind., AB 1065X, slip op. at 4-5 (STB served April 8, 2011) (detailing information required from an offeror to establish financial responsibility, in detail beyond that contained in 49 CFR 1152.27(c)(1)(ii)(B)). Accordingly, we ask parties to comment on how the Board should modify its regulations so that the definition of financial responsibility is more transparent and understandable. We also ask parties to comment on methods of ensuring that an offeror is in fact financially responsible, including the following:

• What documentation should a potential offeror be required to submit to show financial responsibility?

• Should the Board require that potential offerors file notices of intent to file an OFA in abandonment and discontinuance proceedings by a date certain?

• Should the Board require potential offerors to make a financial responsibility showing before requiring carriers to provide financial information to those offerors?

• Should the definition of financial responsibility include the ability, based on the price reflected in an offer of financial assistance, to purchase and operate for at least two years a line being abandoned or to subsidize for one year service being abandoned or discontinued?

• Should the Board alter the process for carriers to provide required financial information to potential offerors, and if so, how?

• Should the Board require potential offerors to make an “earnest money” payment or escrow payment, or to obtain a bond? Key considerations include: Whether the payment or bond amount would be a fixed figure or established on a case by case basis; what method would be used in calculating or fixing the amount; when in the process an offeror would need to make a payment or obtain a bond; and whether (and under what circumstances) a waiver of such a requirement would be appropriate.

• Should the Board prohibit OFA filings by individuals or entities that have abused the Board's processes or engaged in other deceitful or abusive behavior before the Board, and if so, what standards should the Board establish in making a prohibition determination?

The Board has also adjudicated cases in which there has been controversy as to whether a party seeking to subsidize or acquire a line through the OFA process is doing so based on a genuine interest in and ability to preserve the line for rail service. See, e.g., Consol. Rail Corp.—Aban. Exemption—in Hudson Cty., N.J., AB 167 (Sub-No. 1190X), slip op. at 5 (STB served May 17, 2010) (exempting line from OFA process despite OFA filing because offerors failed to show cause that there was a continued need for rail service outweighing other concerns); Roaring Fork R.R. Holding Auth.—Aban. Exemption—in Garfield, Eagle, & Pitkin Ctys., Colo., AB 547X (STB served May 21, 1999) (dismissing OFA because the record did not provide “some assurance that shippers are likely to make use of the line if continued service is made available, and that there is sufficient traffic to enable the operator to fulfill its commitment to provide that service”). The Board's regulations do not currently address these situations; therefore, we ask parties for ideas on how the regulations could be modified to do so. In particular, we ask parties to comment on the following:

• Should the Board require that an offeror address whether there is a commercial need for rail service as demonstrated by support from shippers or receivers on the line or through other evidence of immediate and significant commercial need; whether there is community support for rail service; and whether rail service is operationally feasible?

• Should the Board establish criteria and deadlines for carriers that want to file requests for exemptions from the OFA process?

Another issue the Board has encountered in OFA proceedings is confusion over the identity of the potential offeror. See CSX Transp. Inc.—Aban. Exemption—in Allegany Cty., Md., AB 55 (Sub-No. 659X), slip op. at 1 n.2 (STB served April 24, 2008) (describing confusion over proper name and existence of entity that filed OFA in 2005 but may not have been a legal entity until 2007 or the correct legal entity to receive deed for rail line). In order to avoid such confusion in future proceedings, we ask the parties to comment on the following:

• Should the Board require multiple parties intending to submit a joint OFA to do so through a single legal entity, such as a corporation or partnership, to facilitate the financial responsibility determination and to clarify the party acquiring the common carrier obligation?

• Should the Board require an individual filing an OFA to provide his or her personal address?

• Should the Board require a private legal entity filing an OFA to provide the offeror's exact legal name, the state under whose laws it is organized, and the address of its principal place of business?

Because this is an Advanced Notice of Proposed Rulemaking, the Board may not act on each item listed above, but we seek the public's comment on these ideas, including how they could best be implemented, if appropriate. Parties are encouraged to be specific in commenting on these possible changes and in presenting ideas for other possible changes to the OFA process.

The requirements of section 603 of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, (RFA) do not apply to this action because, at this stage, it is an ANPRM and not a “rule” as defined in section 601 of the RFA. Under the RFA, however, the Board must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. If adoption of any rule likely to result from this ANPRM could have a significant economic impact on a small entity within the meaning of the RFA, commenters should submit as part of their comments an explanation of how the business or organization falls within the definition of a small entity, and how and to what extent the commenter's business or organization could be affected. Following review of the comments received in response to this ANPRM, if the Board promulgates a notice of proposed rulemaking regarding this matter, it will conduct the requisite analysis under the RFA.

It is ordered:

1. Initial comments are due by February 12, 2016.

2. Reply comments are due by March 14, 2016.

3. This decision is effective on its date of service.

The fishery for blueline tilefish (Caulolatilus microps), also known as grey tilefish, in Federal waters north of the Virginia/North Carolina border has, until earlier this year, been unregulated, and historically had very low landings. Landings have increased in recent years. The fishery south of this line is managed by the South Atlantic Fishery Management Council as part of the Snapper-Grouper Fishery Management Plan (FMP).

In 2014, new restrictions on harvest in the South Atlantic led to a rapid, 20-fold increase in unregulated landings of blueline tilefish caught north of the Virginia/North Carolina border. This spike in landings prompted the Mid-Atlantic Fishery Management Council to request that we take emergency action to prevent long-term harm to the stock. On June 4, 2015, we published an emergency rule (80 FR 31864) to temporarily restrict harvest of this species in the Mid-Atlantic. Subsequently, the Mid-Atlantic Council initiated an amendment to the Golden Tilefish FMP to establish management measures for blueline tilefish within its jurisdiction with the intention of having new management measures in place before NMFS's emergency rule authority would expire. This would avoid a return to an unregulated fishery.

Due to the limited time to implement new management measures, the Mid-Atlantic Council is not considering a limited access program in the current FMP amendment under development. However, the Mid-Atlantic Council has expressed interest in potentially developing such a program in a future action. At its October 2015 meeting, the Mid-Atlantic Council voted to request that we publish a control date in the Federal Register that may be used to affect future participation in all sectors of the blueline tilefish fishery in Federal waters. The Council's discussions clarified that it is the Council's intent that this control date apply to all forms of fishing that have caught and landed blueline tilefish, including: Commercial fishing vessels; party/charter vessels that take recreational anglers for hire; as well as private recreational vessels. However, NMFS has no current information that could be used to distinguish private angler participation in this fishery before and after a control date. Therefore, such a control date would not provide meaningful notification or guidance to private recreational anglers.

Therefore, this notification establishes December 14, 2015, as a control date for potential use in determining historical or traditional participation for the commercial and for-hire recreational sectors of the blueline tilefish fishery. Establishing a control date does not commit us or the Council to develop any particular management program or criteria for participation in this fishery. We may choose a different control date or may choose a management program that does not make use of such a date. We may also choose to take no further action to control entry or access to the blueline tilefish fishery. Any future action we take will be pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, will be discussed at Council meetings, and will have additional Federal rulemaking, including opportunity for public comment.

This notification gives the public notice that interested commercial and for-hire blueline tilefish fishery participants should locate and preserve records that substantiate and verify their participation in the fishery, such as: Dealer purchase slips for commercial fishing trips; Fishing Vessel Trip Reports for both commercial and party/charter vessels; or any other relevant documents. There is no precedent in the Greater Atlantic Region for a limited access program that applies to party/charter or private recreational vessels. In light of the novelty of this aspect of the Council's control date request, we encourage the public to comment on whether limited access for party/charter and private recreational anglers is needed in the blueline tilefish fishery, and, if so, what sort of qualification criteria might be considered by the Council. This notification and control date do not impose any legal obligations, requirements, or expectation.