Federal Register Vol. 81, No.101,

In 1998, Congress enacted section 512 of title 17, United States Code, as part of the DMCA.1 Among other things, section 512 provides safe harbors from copyright infringement liability for online service providers engaged in specified activities and that meet certain eligibility requirements.2 A service provider seeking to avail itself of the safe harbor in section 512(c) (for storage of material at the direction of a user) is required to designate an agent to receive notifications of claimed copyright infringement by making contact information for the agent available through its service, including on its Web site in a location accessible to the public, and by providing such contact information to the Copyright Office.3 Although the requirement to designate an agent to receive notifications of claimed infringement is detailed in subsection 512(c), the safe harbors in subsections 512(b) (for system caching) and (d) (for information location tools), incorporate the notice provisions of section 512(c)(3), which in turn require that notices be sent to “the designated agent of a service provider.” 4 For its part, the Copyright Office is required to maintain a current online directory of designated agents that is available to the public, and is authorized to require payment of a fee by service providers to cover the costs of maintaining the system.5

Because the DMCA was effective on its date of enactment and a procedure to enable the designation of agents needed to be in place immediately, the Copyright Office issued, without opportunity for comment, interim regulations governing the designation of agents to receive notifications of claimed infringement.6 Those interim regulations, which are still in effect today, require service providers to submit a paper form to the Copyright Office setting forth the requisite information for the designated agent.7 The Copyright Office then scans the forms and posts them on its Web site.8

In an effort to update the existing system, the Office issued a notice of proposed rulemaking (“NPRM”) on September 28, 2011, describing the Office's proposal for a new electronic system though which service providers could more efficiently designate agents with the Copyright Office and the public could more easily search for such agents in the online directory.9 The NPRM sought public comment on proposed rules that would govern the submission and updating of information relating to designated agents under such a system.10 The NPRM also explained that the Office would establish new fees to file, renew,11 or amend the designation of an agent, and that it would publish a notice of proposed rulemaking to seek comments on the proposed fees.12

Following the 2011 NPRM, the Library of Congress commenced the software development effort. Although it appeared at that time that the Library would be able to commit the necessary resources to complete development of the system without significant delay, as it turned out, the Library was unable to supply the requisite resources until fairly recently. With the new electronic system now nearing completion, the Office seeks public comment on proposed fees to use it.

Section 512(c)(2) of title 17 authorizes the Register of Copyrights to “require payment of a fee by service providers to cover the costs” of maintaining a directory of agents designated to receive notifications of claimed infringement.” 13 In addition, section 708(a) of title 17 more generally authorizes the Register to fix fees for certain Office services, including the electronic directory, based on the cost of providing the service.14

Currently, the fee for a service provider to designate an agent with the Office, or amend a designation, is $105, plus an additional fee of $35 for each group of 1 to 10 alternate names used by the service provider.15 This fee reflects the cost to the Office of receiving, reviewing, scanning, and posting the paper forms submitted by service providers, a largely manual process. Based on an analysis of the cost of operating and maintaining the new electronic system, the Office believes that the fee to designate an agent to receive a notification of claimed infringement can be much lower, and should be established at six dollars per designation—whether a new designation, a renewed designation, or an amended designation. At this time, the Office does not believe that an additional fee to include alternate names with a designation to be warranted, as the Office does not currently foresee appreciable additional costs due to the submission of alternate names through the online process.

This significantly lower proposed fee reflects the far greater efficiency of the electronic system for the Copyright Office. The Office arrived at the six dollar amount by considering the total personnel costs associated with administering and maintaining the new service, spread across the anticipated volume of designations. The Office expects that ongoing support for any operational system will require Copyright Office staff to monitor, evaluate, and address issues that may arise with the system, as well as the portions of the Office's Web site that will integrate with the system, as needed. Additionally, support will be needed to respond to any user concerns that may arise, as well as to manage payments received. Based on the cost of employee time spent on these tasks (including salary and benefits), the Office calculates the total costs to be approximately $41,000 per year.16 With respect to the anticipated number of designations that will be filed, the Office notes that 23,300 designations have been filed since 1998 and are included in the existing directory.17 While it is difficult to know how many remain active, undoubtedly a significant portion—for present purposes, the Office is estimating 75% to 85%—represent service providers that continue to operate. In addition, the Office expects a certain number of new and amended designations to be filed in the coming years. In total, the Office estimates an average of 7,000 designations to filed per year.18 Should experience with the system suggest that the anticipated personnel and overhead expenses or estimated volume of designations is incorrect, the Office will revisit the fee.

At this time, the Office is soliciting comments only on the fee for the new system. Accordingly, comments in response to this notice should be directed solely to the appropriateness of the proposed fee.19

In consideration of the foregoing, the Copyright Office proposes to amend 37 CFR part 201 as follows:

Section 7301 of title 38 United States Code (U.S.C.) establishes the Veterans Health Administration (VHA) within VA, and establishes that its primary function is to “provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary pursuant to this title.” 38 U.S.C. 7301(b). In carrying out this function, VHA has an obligation to ensure that patient care is appropriate and safe and its health care practitioners meet or exceed generally-accepted professional standards for patient care. The Secretary is responsible for the proper execution and administration of all laws administered by the Department and for the control, direction, and management of the Department, to include agency personnel and management matters. See 38 U.S.C. 303. To enable the Secretary to direct, control and manage VA, Congress authorized the Secretary “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” 38 U.S.C. 501(a). The Under Secretary for Health is directly responsible to the Secretary for the operation of VHA (38 U.S.C. 305(b)). Unless specifically otherwise provided, the Under Secretary for Health, as the head of VHA, is authorized to “prescribe all regulations necessary to the administration of the Veterans Health Administration,” subject to the approval of the Secretary. 38 U.S.C. 7304. To allow VA to carry out its medical care mission, Congress also established a comprehensive personnel system for certain medical employees in VHA, independent of the civil service rules. See Chapters 73 and 74 of title 38, U.S.C. The Secretary was granted express statutory authority to establish the qualifications for VA's healthcare practitioners, determine the hours and conditions of employment, take disciplinary action against employees, and otherwise regulate the professional activities of those individuals. 38 U.S.C. 7401-7464. As an integrated Federal health care system with the responsibility to provide comprehensive care under 38 U.S.C. 7301, it is essential that VHA wisely manage its resources and fully utilize the skills of its health care providers to the full extent of their education, training, and certification. By permitting APRNs throughout the VHA system a way to achieve full practice authority in order to provide advanced nursing services to the full extent of their professional competence, VHA would further its statutory mandate to provide quality health care to our nation's veterans. This proposed regulatory change to nursing policy would permit APRNs to practice to the full extent of their education, training and certification, without the clinical supervision or mandatory collaboration of physicians. Standardization of APRN full practice authority, without regard for individual State practice regulations, would help to ensure a consistent continuum of health care across VHA by decreasing the variability in APRN practice that currently exists across VHA as a result of disparate State practice regulations. As of March 7, 2016 CRNAs have full practice authority in 17 states, while CNPs have full practice authority in almost 50% of the nation, which includes 21 states and the District of Columbia.

It would also aid in fully maximizing VHA APRN staff capabilities, which would increase VA's capacity to provide timely, efficient, and effective primary care services, as well as other services. This would increase veteran access to needed VA health care, particularly in medically-underserved areas, as well as decrease the amount of time veterans spend waiting for patient appointments. In addition, standardizing APRN practice authority would enable veterans, their families, and caregivers to understand more readily the health care services that VA APRNs are authorized to provide. This preemptive rule would increase access to care and reduce the wait times for VA appointments utilizing the current workforce already in place.

To ensure that VA would have available highly qualified medical personnel, Congress mandated the basic qualifications for certain health care positions, including registered nurses. Sections 7401 through 7464 of title 38, U.S.C., grant VA authority to regulate the professional activities of such personnel. To be eligible for appointment as a VA employee in a health care position covered by section 7402(b) (other than Director), of title 38, U.S.C., a person must, among other requirements, be licensed, registered or certified to practice their profession in a State. The standards prescribed in section 7402(b) establish only the basic qualifications necessary “[t]o be eligible for appointment” and do not limit the Secretary or Under Secretary for Health from establishing other qualifications for appointment, or additional rules governing such personnel. In particular, 38 U.S.C. 7403(a)(1) provides that appointments under Chapter 74 “may be made only after qualifications have been established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.” In addition, 38 U.S.C. 7421(a) directs that, “[n]otwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of employees appointed under any provision of [chapter 74] [in the specifically numerated positions] in the Veterans Health Administration” (including registered nurses). As the head of VHA, the Under Secretary for Health has the duty to “prescribe all regulations necessary to the administration of the Veterans Health Administration,” subject to approval by the Secretary. 38 U.S.C. 7304; see also 38 U.S.C. 501. Pursuant to this authority, the Under Secretary for Health is authorized to establish the qualifications and clinical practice standards of VHA's nursing personnel and to otherwise regulate their professional conduct.

To continue to provide high quality health care to veterans, VA is proposing to amend its regulations to allow APRNs to practice to the full extent of their education, training, and certification, regardless of individual State restrictions that limit such full practice authority, except for applicable State restrictions on the authority to prescribe and administer controlled substances, when such APRNs are acting within the scope of their VA employment. The proposed rule would use the term “full practice authority” to refer to the APRN's authority to provide advanced nursing services without the clinical oversight of a physician when that APRN is working within the scope of their VA employment. Such full practice authority would be granted by VA upon demonstrating that the established regulatory criteria are met. In addition, full practice authority would be granted appropriate to the clinical service setting.

This proposed rule is consistent with the recommendation of the Institute of Medicine (IOM) of the National Academy of Sciences to remove scope-of-practice barriers. Specifically, the 2010 IOM report, “The Future of Nursing: Leading Change Advancing Health,” (IOM Report) available at http://iom.nationalacademies.org/Reports/2010/The-Future-of-Nursing-Leading-Change-Advancing-Health.aspx, recommended that “[a]dvanced practice registered nurses (APRNs) should be able to practice to the full extent of their education and training.” Id. at 9. More generally, the report stated that “[r]estrictions on scope of practice and professional tensions have undermined the nursing profession's ability to provide and improve both general and advanced care” and asserted that “[p]roducing a health care system that delivers the right care—quality care that is patient centered, accessible, evidence based, and sustainable—at the right time will require transforming the work environment, scope of practice, education, and numbers and composition of America's nurses.” Id. at 26. In addition, the proposed rule is consistent with the National Council of State Boards of Nursing (NCSBN) Consensus Model, as discussed in more detail later in this rulemaking. Significantly, many States already permit full practice authority of APRNs or are in the process of doing so. Under the proposed rulemaking, APRNs would not be authorized to replace or act as physicians or to provide any health care services that are beyond their clinical education, training, and national certification. The proposed rule would limit an APRN's full practice authority to practice within the scope of their VA employment, and any APRN practice outside of VA employment would remain subject to applicable State laws, in the same manner as any other licensed VA practitioner in their private practice.

In this rulemaking, VA is proposing to exercise Federal preemption of State nursing licensure laws to the extent such State laws conflict with the full practice authority granted to VA APRNs while acting within the scope of their VA employment. Preemption would be the minimum necessary action for VA to allow APRNs full practice authority. It would be impractical for VA to lobby to each State that does not allow full practice authority to APRNs to change their laws regarding full practice authority. This process would be costly and time consuming for VA and would not guarantee the desired result of full practice authority to all APRNs.

The general qualifications for a person to be appointed as a VA nurse are found in 38 U.S.C. 7402(b)(3), which requires that a person must have successfully completed a full course of nursing in a recognized school of nursing, as well as be registered as a graduate nurse in a State. VA interprets “a recognized school of nursing” to mean a school of professional nursing approved by the appropriate State agency and accredited by the National League for Nursing Accrediting Commission (NLNAC) or the Commission on Collegiate Nursing Education (CCNE); the completion of coursework equivalent to a nursing degree in a MSN Bridge Program that qualifies for professional nursing registration; or a foreign school of professional nursing that enables the graduate to obtain current, full, active and unrestricted registration. VA Handbook 5005/27, Part II, Appendix G6, paragraph 2, Section B.a(2). VA interprets “registered as a graduate nurse in a state” to mean a current, full, active and unrestricted licensure, registration or certification as a graduate professional nurse in a State, Territory, or Commonwealth (i.e., Puerto Rico) of the U.S. or in the District of Columbia (hereinafter “licensure”). Id. Pursuant to the authorities in 38 U.S.C. 7401 through 7464 and VA's rulemaking authorities at 38 U.S.C. 501 and 7304, VA is proposing a new § 17.415(a), which would define additional qualifications a registered nurse must possess to be appointed to one of four (4) APRN roles, i.e., Certified Nurse practitioner (CNP), Certified Registered Nurse Anesthetist (CRNA), Clinical Nurse Specialist (CNS), or Certified Nurse-Midwife (CNM). The proposed rule would require an advanced practice registered nurse to have successfully completed a nationally-accredited, graduate-level educational program that prepares the advanced practice registered nurse in one of the four APRN roles; and to possess, and maintain, national certification and State licensure in that APRN role. These additional qualifications are derived from criteria set forth in the IOM Report, and the National Council of State Boards of Nursing Consensus Model for APRN Regulation: Licensure, Accreditation, Certification & Education) Regulation, July 2008 (the APRN Consensus Model), which VA finds to be the criteria most widely accepted by State boards of nursing and the nursing community as necessary to practice as an APRN. Under the proposed rule, APRNs who meet these additional qualifications may be granted full practice authority within VA in one of the four recognized APRN roles.

Proposed § 17.415(a)(1) would require an APRN to have successfully completed an accredited graduate-level educational program in one of the four distinct APRN roles. The Consensus Model defines these roles as CNP, CRNA, CNS, and CNM. These APRN roles are widely known and accepted by State boards of nursing and the nursing community. VA currently does not employ CNMs; however, the proposed rule includes CNMs in the event that VA has the need to hire CNMs in the future.

Proposed § 17.415(a)(2) would require an APRN to have passed a national certification examination that measures the APRN's knowledge, skills and experience demonstrated by the achievement of standards identified by the profession in one of the four APRN roles established in proposed § 17.415(a)(1). Public and private sector health care employers, State boards of nursing, and the nursing community rely on national certification through an examination process as the standard, which conveys adequate APRN knowledge, and VA's regulation would adopt the same standard.

Proposed § 17.415(a)(3) would require an APRN to possess a license from a State licensing board in one of the four recognized APRN roles. Proposed § 17.415(a)(4) would require an APRN to maintain both the national certification and licensure required in proposed paragraphs (a)(2) and (3) of § 17.415.

In total, proposed paragraphs (a)(1) through (4) of § 17.415 would establish qualifications for employment within VA as a CNP, CRNA, CNS and CNM. These qualifications would ensure that VA APRNs possess and maintain the education, knowledge, national certification and State licensure necessary for VA employment in one of the four recognized APRN roles. APRNs who meet these qualifications would be granted full practice authority within VA in one of the four recognized APRN roles.

Proposed § 17.415(b) would define “full practice authority” to mean that an APRN working within the scope of VA employment would be authorized to provide the services described in proposed § 17.415(d), without the clinical oversight of a physician, regardless of State or local law restrictions on that authority. Further, any APRN practice established outside VA employment would be subject to applicable State law, in the same manner as private practice by any other licensed VA provider.

Proposed § 17.415(c) would establish the criteria by which VA may grant full practice authority to an APRN. Proposed paragraph (c)(1), would require a VA medical facility to verify that the APRN meets the requirements established in proposed § 17.415(a). Proposed paragraph (c)(2) would require VA to confirm that the APRN has demonstrated the knowledge and skills necessary to provide the services described in proposed § 17.415(d) without the clinical oversight of a physician, and is thus qualified to be privileged for such scope of practice. Proposed § 17.415(c)(1) and (2) together would clarify that the VA processes for credentialing and privileging of licensed independent health care providers would apply to VA APRNs with full practice authority. VA anticipates that the granting of full-practice authority under proposed § 17.415(c) would be implemented through formal VHA guidance issuances.

Proposed § 17.415(d)(1) would describe the role-specific services that a VA APRN would be authorized to perform under their full practice authority. This authority would be without regard to state licensure restrictions, except as provided in proposed paragraph (d)(2), which would defer to State licensure restrictions on a VA APRN's authority to prescribe, or administer controlled substances. We emphasize that full practice authority for an APRN in this rulemaking would apply only to services provided by an APRN when working within the scope of their VA employment, as required by proposed § 17.415(b). Additionally, all full practice authority of APRNs in proposed § 17.415(d)(1) would be under approved privileges by, and within the available resources of, a VA medical facility, as required by proposed § 17.415(c). VA intends that the services to be provided by an APRN in one of the four APRN roles would be consistent with the nursing profession's standards of practice for such roles.

In proposed § 17.415(d)(1)(i), a CNP would have full practice authority to provide the following services: Comprehensive histories, physical examinations and other health assessment and screening activities; diagnose, treat, and manage patients with acute and chronic illnesses and diseases; order, perform, supervise, and interpret laboratory and imaging studies; prescribe medication and durable medical equipment and; make appropriate referrals for patients and families; and aid in health promotion, disease prevention, health education, and counseling as well as the diagnosis and management of acute and chronic diseases.

In proposed § 17.415(d)(1)(ii), a CRNA would have full practice authority to provide a patient's anesthesia care and anesthesia related care, to include planning and initiating anesthetic techniques (general, regional, local) and sedation, providing post-anesthesia evaluation and discharge; ordering and evaluating diagnostic tests; requesting consultations; performing point-of-care testing; and responding to emergency situations for airway management.

In proposed § 17.415(d)(1)(iii), a CNS would have full practice authority to provide diagnosis and treatment of health or illness states, disease management, health promotion, and prevention of illness and risk behaviors among individuals, families, groups, and communities within their scope of practice.

Lastly, in proposed § 17.415(d)(1)(iv), a CNM would have full practice authority to provide a full range of primary health care services to women veterans, including gynecologic care, family planning service, preconception care (care that women veterans receive before becoming pregnant, including reducing the risk of birth defects and other problems such as the treatment of diabetes and high blood pressure), prenatal and postpartum care, childbirth, and care of a newborn. We note that the pregnancy and delivery services described above, as well as the newborn care services, would be subject to the limitations established in 38 CFR 17.38(a)(1)(xiii) and (xiv), respectively. We also note that authorized CNM services would include treating the partner of the female patient for sexually transmitted infection and reproductive health, if the partner is enrolled in the VA healthcare system or not required to enroll to receive VA services. We would include the services of a CNM in this rulemaking in anticipation that VA would hire CNMs at a future date to improve access to health care for the increasing number of female veterans.

Proposed § 17.415(d)(2) would expressly limit full practice authority. Congress has specifically required reliance on a specific State law under the Controlled Substance Act (CSA). Specifically, proposed § 17.415(a)(2) would provide that full practice authority within VA is subject to State licensure law with regard to the authority of an APRN to prescribe, or administer controlled substances, and to any other limitations on the provision of VA care set forth in applicable Federal law and policy. Regarding the full practice authority limitations for controlled substances, the CSA, 21 U.S.C. 801 et seq., and implementing regulations in 21 CFR part 1300, make State licensure authority to prescribe, or administer controlled substances a prerequisite for authority under the CSA to prescribe, or administer controlled substances. See 21 U.S.C. 802(21) (providing that a practitioner must be “licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.”); See also 21 CFR 1306.03(a) (stating that a prescription for a controlled substance may be issued only by an individual practitioner who is: (1) Authorized to prescribe controlled substances by the jurisdiction in which he is licensed to practice his profession and (2) either registered or exempted from registration pursuant to §§ 1301.22(c) and 1301.23.). Proposed § 17.415(d)(2) also would make the full practice authority of an APRN subject to any other limitations on the provision of VA care set forth in Federal law or policy.

Proposed § 17.415(e) would expressly state the intended preemptive effect of proposed § 17.415, to ensure it is clear that conflicting State and local laws related to the practice of APRNs would have no force or effect when such APRNs are working within the scope of their VA employment. In circumstances where there is a conflict between Federal and State Law, Federal law prevails in accordance with Article VI, clause 2, of the U.S. Constitution (Supremacy Clause). It is a well-established principle of constitutional law that Federal law is supreme, and States may not regulate or control the lawful actions of the Federal Government, absent Congressional consent. Therefore, where there is conflict between State law and Federal law with regard to full practice authority of APRNs working within the scope of their federal VA employment, this regulation would control. Accordingly, State disciplinary actions that would penalize, or otherwise interfere with, an APRN's full practice authority in the performance of their official VA duties, would likewise be effectively preempted. However, where there is no conflict between this regulation and State law, the State would retain authority to impose State regulations on its APRN licensees and take disciplinary action for any violations. We emphasize that this preemptive effect would only pertain to APRNs when they are acting within the scope of their federal VA employment; this rule would not have any effect on individual State efforts to either permit or restrict full practice authority for APRNs who are not working within a VA scope of employment.

The Indian Health Service already grants full practice authority to APRNs. See Part 4, Chapter 3, Section 11, “Advanced Practice Nurses,” Indian Health Manual. In the Military Health System, the Services employ APRNs, which includes Nurse Midwives, Nurse Practitioners, and Nurse Anesthetists, in independent practice without oversight from physicians. They are privileged in their roles as APRNs and can adjust their scope practice (level of care) through privileging as granted by a committee of physicians and the military treatment facility commander. Nurse Practitioners specifically have an assigned group of patients for which they are responsible. Therefore, we do not anticipate that the proposed changes in this rulemaking would be completely novel or unexpected to the general public or other Federal entities that provide health care services to beneficiaries.

Section 4 of Executive Order 13132 (titled “Federalism”) requires an agency that is publishing a regulation that preempts State law to follow certain procedures. Section 4(b) of the Executive Order requires agencies to “construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.” Section 4(d) of the Executive Order requires that when an agency proposes to act through rulemaking to preempt State law, “the agency shall consult, to the extent practicable, with appropriate State and local officials in an effort to avoid such a conflict.” Section 4(e) of the Executive Order requires that when an agency proposes to act through rulemaking to preempt State law, “the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.”

Section 6(c) of Executive Order 13132 states that “no agency shall promulgate any regulation that has federalism implications and that preempts State law, unless the agency, prior to the formal promulgation of the regulation, (1) consulted with State and local officials early in the process of developing the proposed regulation; (2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met; and (3) makes available to the Director of the Office of Management and Budget any written communications submitted to the agency by State and local officials.”

Because this regulation would address preemption of certain State laws, VA conducted prior consultation with State officials in compliance with Executive Order 13132. VA sent a letter to the National Council of State Boards of Nursing to state VA's intent to allow full practice authority to VA APRNs and for the National Council of State Boards of Nursing to notify every State Board of Nursing of VA's intent and to seek feedback from such Boards of Nursing.

In addition, VA solicited comments and input from State Boards of Nursing, through their representative national organization, the National Council of State Boards of Nursing (NCSBN). In response to its request for comments, VA received correspondence from the Executive Director and other relevant staff members within NCSBN, which agreed with VA's position that this rulemaking properly identifies the areas in VA regulations that preempt State laws and regulations. VA received no other comments from the NCSBN on this rulemaking. In response to VA's outreach to NCSBN, VA received numerous calls and correspondence from State and local officials in support of this proposed rule. Such State and local officials included State Senators from Georgia and Illinois, State Representatives from Florida, Ohio, Vermont, North Carolina, Georgia, and Illinois, County Commissioners from Nevada, Ohio, and North Carolina, and the State Comptroller and Secretary of State from Illinois, to name a few.

VA additionally engaged other relevant external groups on the proposed changes in this rulemaking, including the American Association of Nurse Anesthetists, American Association of Nurse Practitioners, American College of Surgeons, American Academy of Family Practice Physicians, American Society of Anesthesiologists, American Medical Association, Association of American Medical Colleges, The Joint Commission-Office of Accreditation and Certification, American Association of Retired Persons, American Legion, Blinded Veterans Association, Vietnam Veterans of America, American Women Veterans, Disabled American Veterans, Paralyzed Veterans of America, Veterans of Foreign Wars. VA also engaged the Senate and House Veterans Affairs Committees and the Senate and House Armed Services Committees.

Many external stakeholders expressed general support for VA's positions taken in this proposed rule, particularly with respect to full practice authority of APRNs in primary health care. However, we also received comments opposing full practice authority for CRNAs when providing anesthetics. To aid in VA's full consideration to this issue, VA encourages any comments regarding the proposed full practice authority. In this way, VA will be providing all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.

VA's promulgation of this regulation complies with the requirements of Executive Order 13132 by (1) in the absence of explicit preemption in the authorizing statute, identifying where the exercise of State authority conflicts with the exercise of Federal authority under Federal statute; (2) limiting the preemption to only those areas where we find existence a conflict; (3) restricting the regulatory preemption to the minimum level necessary to achieve the objectives of the statute; (4) consulting with the State Boards of Nursing and other relevant external parties as indicated above; and (5) providing opportunity for comment through this rulemaking.

Title 38 of the Code of Federal Regulations, as proposed to be revised by this rulemaking, will represent VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance will be superseded by this rulemaking.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment would be exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined, and it has been determined to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on January 6, 2016.

For the reasons set forth in the preamble, we propose to amend 38 CFR part 17 as follows:

In the Final Rules Section of this Federal Register, EPA is approving the State's SIP submittals as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

For additional information, see the direct final rule which is located in the Rules Section of this Federal Register.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period (44 FR 8202, February 8, 1979). Primary standards are set to protect human health while secondary standards are set to protect public welfare. In 1997 we revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period (62 FR 38856, July 18, 1997). In 2008 we revised the primary and secondary ozone NAAQS to 0.075 ppm, averaged over an 8-hour period (73 FR 16436, March 27, 2008). Ozone nonattainment areas are classified at the time of designation based on the area's “design value” (77 FR 30088, 30091, May 21, 2012 and CAA section 181(a)(1)). The design value is calculated from air quality data from the area for the 3 years preceding designation. The possible classifications are Marginal, Moderate, Serious, Severe, and Extreme. Nonattainment areas with a “lower” classification have ozone levels that are closer to the NAAQS than areas with a “higher” classification.

The EPA revoked the 1997 ozone NAAQS for all purposes effective April 6, 2015 (80 FR 12264, 12296, March 6, 2015). In that rule, the EPA established a regulatory list of “applicable requirements” that would apply as anti-backsliding requirements for the transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS. Id. at 12298-99. The rule provides that an area initially subject to the anti-backsliding obligations for a revoked NAAQS will remain so until we approve (1) a redesignation to attainment for the area for the 2008 ozone NAAQS or (2) a “redesignation substitute,” which serves as a successor to redesignation to attainment, for which the area would have been eligible were it not for revocation. Id. at 12304. As explained more fully in the preambles to the proposed and final rules, the redesignation substitute demonstration must show that the area (1) has attained that revoked NAAQS due to permanent and enforceable emission reductions and (2) will maintain that revoked NAAQS for 10 years from the date of EPA's approval of the showing. See id. at 12303-306; 78 FR 34178, 34222-223. The rule also provides that if, after notice and comment rulemaking, we approve a redesignation substitute for a revoked NAAQS, the state may request to revise its SIP to revise or remove provisions for NNSR for that revoked NAAQS and that other anti-backsliding obligations for that revoked NAAQS be shifted to contingency measures, provided that such action is consistent with CAA sections 110(l) and 193 (40 CFR 51.1105(b)(2)).

The DFW four-county 1-hour ozone nonattainment area consists of Collin, Dallas, Denton and Tarrant Counties. Under the 1990 CAA Amendments the area was classified as a moderate ozone nonattainment area for the 1-hour ozone NAAQS (November 6, 1991, 56 FR 56694 and CAA section 181(a)(1)). On March 20, 1998, we reclassified the four-county DFW nonattainment area to Serious (63 FR 8128). As discussed below, ambient air quality monitoring data for ozone indicates that the area attained and is continuing to maintain the 1-hour ozone standard.

The DFW nine-county 1997 8-hour ozone nonattainment area consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall and Tarrant counties. On April 30, 2004, the EPA designated and classified the nine-county DFW nonattainment area as a Moderate nonattainment area under the 1997 8-hour ozone standard with an attainment date of no later than June 15, 2010 (see 69 FR 23858 and 69 FR 23951) On December 20, 2010, we reclassified the nine-county DFW nonattainment area as Serious (75 FR 79302). As discussed below, ambient air quality monitoring data for ozone indicates that the area attained and is continuing to maintain the 1997 8-hour ozone standard.

Texas provided the “Redesignation Substitute Report for the Dallas-Fort Worth (DFW) One-Hour and 1997 Eight-Hour Ozone Standard Nonattainment Areas” (redesignation substitute report) to EPA on August 18, 2015. The submission also requested that EPA concur that the NNSR provisions relevant to the revoked 1997 ozone NAAQS would no longer apply. The report is available through www.regulations.gov (e-docket EPA-R06-OAR-2015-0609).

To determine whether we should approve the 1-hour ozone redesignation substitute for the DFW area we evaluated the redesignation substitute report provided by Texas and the ambient ozone data for the area in the EPA Air Quality System (AQS) database. To evaluate the report we used the applicable portions of our September 4, 1992 memo “Procedures for Processing Requests to Redesignate Areas to Attainment” (www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf). A detailed discussion of our evaluation can be found in the Technical Support Document (TSD) for this action. The TSD can be accessed through www.regulations.gov (e-docket EPA-R06-OAR-2015-0721).

In a previous action we found that the DFW area had attained the 1-hour ozone standard (73 FR 61357). Ambient air quality found in the AQS database shows that the DFW area attained the 1-hour ozone standard at the end of 2006 and subsequent years and preliminary data from 2015 indicate that the area has continued to maintain the standard (Table 1).

In 2006, all monitors in the DFW area had expected exceedances less than the threshold of 1.0 per year. A more detailed table of expected 1-hour ozone exceedances for the DFW monitors based on ozone data can be found in the TSD.

The DFW area redesignation substitute report provides information on emissions of nitrogen oxides (NOX) and volatile organic compounds (VOCs) and regulations that reduced these emissions. NOX and VOCs are ozone precursors. Texas identified control measures implemented as part of its attainment demonstration SIP that led to permanent and enforceable emissions reductions. Additionally, we have approved SIPs for the DFW area that document continuous emissions reductions due to permanent and enforceable measures for the 1-hour and 1997 8-hour ozone standards (62 FR 27964, May 22, 1997; 70 FR 18993 April 12, 2005; 73 FR 58475, October 7, 2008; 79 FR 67068, November 12, 2014). The TCEQ has implemented stringent and innovative regulations that address emissions of NOX and VOCs. These include, but are not limited to:

• DFW Industrial, Commercial and Industrial (ICI) Major and Minor New Source Rules to control NOX from multiple source categories. For Major sources, first implemented in the nine-county area on March 1, 2009 or March 1, 2010, depending on the source category. On January 1, 2017, Wise County will be added and control requirements for wood-fired boilers will also be added in all ten counties. For Minor sources, implemented in the nine-county area on March 1, 2009 for rich-burn gas-fired engines, diesel-fired engines, and dual-fuel engines; March 1, 2010 for lean-burn gas-fired engines.

• DFW Major Utility Electric Generation Source Rule to control NOX. First implemented in March 2009, Wise County to be in added in January 2017.

• VOC Control Measures requiring reasonably available control technology (RACT) for VOC sources. First implemented in 2002 with counties added in 2002, 2009 and Wise County to be added in 2017.

• Vehicle Inspection and Maintenance implemented in Collin, Dallas, Denton and Tarrant Counties in 2002 and then expanded to Ellis Johnson, Kaufman, Parker and Rockwall Counties in 2003.

• Federal Area Non-road emissions limits are being phased in through 2018.

• Federal On-road emissions limits are being phased in through 2025.

Given our previous actions approving Texas SIPs pertaining to permanent and enforceable measures, we agree with Texas' conclusion that the area has attained the revoked 1-hour ozone NAAQS due to permanent and enforceable emission reductions. Many others are listed and a more detailed review can be found in the TSD.

To demonstrate that the DFW area will maintain the revoked 1-hour ozone NAAQS for 10 years from the date of our approval of the redesignation substitute, the redesignation substitute report provided information on projected emissions of ozone precursors for the four-county DFW 1-hour ozone NAAQS nonattainment area (Tables 2 and 3). The emission projections show that (1) NOX and VOC emissions will continue to decrease through 2028. We reviewed this information and agree with the conclusion that the area will maintain the revoked 1-hour ozone NAAQS for 10 years from the date of our approval. More detail on our review can be found in the TSD.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm) averaged over a 1-hour period (44 FR 8202, February 8, 1979). Primary standards are set to protect human health while secondary standards are set to protect public welfare. In 1997 we revised the primary and secondary NAAQS for ozone to set the acceptable level of ozone in the ambient air at 0.08 ppm, averaged over an 8-hour period (62 FR 38856, July 18, 1997). In 2008, we revised the primary and secondary ozone NAAQS to 0.075 ppm, averaged over an 8-hour period (73 FR 16436, March 27, 2008). Ozone nonattainment areas are classified at the time of designation based on the area's design value (77 FR 30088, 30091, May 21, 2012 and CAA section 181(a)(1)). The design value is calculated from air quality data from the area for the 3 years preceding designation. The possible classifications are Marginal, Moderate, Serious, Severe, and Extreme. Nonattainment areas with a “lower” classification have design values that are closer to the NAAQS than areas with a “higher” classification.

The EPA revoked the 1997 ozone NAAQS for all purposes effective April 6, 2015 (80 FR 12264, 12296, March 6, 2015). In that rule, the EPA established a regulatory list of “applicable requirements” that would apply as anti-backsliding requirements for the transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS. Id. at 12298-99. The rule provides that an area initially subject to the anti-backsliding obligations for a revoked NAAQS will remain so until we approve (1) a redesignation to attainment for the area for the 2008 ozone NAAQS or (2) a “redesignation substitute”, which serves as a successor to redesignation to attainment, for which the area would have been eligible were it not for revocation. Id. at 12304. As explained more fully in the preambles to the proposed and final rules, the redesignation substitute demonstration must show that the area (1) has attained the revoked NAAQS due to permanent and enforceable emission reductions and (2) will maintain that revoked NAAQS for 10 years from the date of EPA's approval of the showing. See id. at 12303-306; 78 FR 34178, 34222-223. The rule also provides that if, after notice and comment rulemaking, we approve a redesignation substitute for a revoked NAAQS, the state may request to revise its SIP to revise or remove provisions for NNSR for that revoked NAAQS and that other anti-backsliding obligations for that revoked NAAQS be shifted to contingency measures, provided that such action is consistent with CAA sections 110(l) and 193 (40 CFR 51.1105(b)(2)).

The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties in Texas. On April 30, 2004, the EPA designated and classified the 8-county HGB as a Moderate nonattainment area under the 1997 ozone standard with an attainment date of no later than June 15, 2010 (see 69 FR 23858 and 69 FR 23951). On June 15, 2007, we received a request from the Governor of Texas seeking voluntary reclassification of the HGB area from a Moderate nonattainment area to a Severe nonattainment area under the 1997 ozone standard, which we approved on October 1, 2008 (73 FR 56983).1 Subsequently, the State submitted the Reasonable Further Progress (RFP) and Attainment Demonstration (AD) SIPs for the HGB Severe area under the 1997 ozone standard. These RFP and AD SIPs were approved on January 2, 2014 (see 79 FR 51 and 79 FR 57, respectively).

Texas provided the “Redesignation Substitute Report for the Houston-Galveston-Brazoria 1997 Eight-Hour Standard Nonattainment Area” (redesignation substitute report) to EPA on August 18, 2015. The submission also requested that EPA concur that the NNSR provisions relevant to the revoked 1997 ozone NAAQS would no longer apply. The report is available through www.regulations.gov (e-docket EPA-R06-OAR-2015-0609).

To determine whether we should approve the 1997 8-hour ozone redesignation substitute for the HGB area, we evaluated the redesignation substitute report provided by Texas and the ambient ozone data for the area in the EPA Air Quality System (AQS) database. To evaluate the report we used the applicable portions of our September 4, 1992 memo, “Procedures for Processing Requests to Redesignate Areas to Attainment” (www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.pdf). A detailed discussion of our evaluation can be found in the Technical Support Document (TSD) for this action. The TSD can be accessed through www.regulations.gov (e-docket EPA-R06-OAR-2015-0609).

In a previous action we found that the HGB area had attained the 1997 8-hour ozone standard (80 FR 81466). Ambient air quality found in the AQS database shows that the HGB area attained the 1997 8-hour ozone standard at the end of 2014, and preliminary data from 2015 indicate that the area has continued to maintain the standard (Table 1).

In 2014, all monitors in the HGB area reported 8-hour ozone values of 80 ppb or less. A more detailed table of 8-hour ozone values for the HGB monitors can be found in the TSD.

The HGB area redesignation substitute report provides information on emissions of nitrogen oxides (NOX) and volatile organic compounds (VOCs) and regulations that reduced these emissions. NOX and VOCs are ozone precursors. Texas identified control measures implemented as part of its 1-hour ozone attainment demonstration SIP and its 1997 ozone attainment demonstration SIP that led to permanent and enforceable emission reductions. The 1-hour ozone attainment demonstration SIP was approved on September 6, 2006 (71 FR 52670). The 1997 ozone attainment demonstration SIP was approved on January 2, 2014 (79 FR 57). Additionally, we have approved SIPs for the HGB area that document continuous emissions reductions due to permanent and enforceable measures for the 1-hour and 1997 8-hour ozone standards (70 FR 7407, February 14, 2005; 74 FR 18298, April 22, 2009; 79 FR 51, January 2, 2014). The TCEQ has implemented stringent and innovative regulations that address emissions of NOX and VOCs. These include, but are not limited to:

• Highly Reactive VOC Emissions Cap and Trade (HECT) implemented in 2007. This program affects cooling towers, process vents and flares and establishes an emission limit with a cap and trade in Harris County. The seven perimeter counties are subject to permit allowable limits and monitoring requirements.

• More stringent leak detection and repair (LDAR) requirements implemented in 2004.

• NOX Mass Emissions Cap and Trade (MECT) Program phased in through April 2007 results in an overall 80% reduction from existing industrial sources and utility power plants.

• Vehicle Inspection and Maintenance implemented in Harris County in 2002 and then expanded to Brazoria, Fort Bend, Galveston and Montgomery Counties.

• Federal Area and Non-road emissions limits are being phased in through 2018.

• Federal On-road emissions limits are being phased in through 2025.

Given our previous actions approving Texas SIPs pertaining to permanent and enforceable measures, we agree with Texas' conclusion that the area has attained the 1997 8-hour ozone NAAQS due to permanent and enforceable emission reductions. Many others are listed and a more detailed review can be found in the TSD.

To demonstrate that the HGB area will maintain the revoked 1997 8-hour ozone NAAQS for 10 years from the date of our approval of the redesignation substitute, the Texas report provided information on projected emissions of ozone precursors (Tables 2 and 3). The emission projections show that (1) NOX emissions will continue to decrease through 2028 and (2) VOC emissions will remain relatively steady through 2028 with an overall increase of 8.4 tpd or 1.4%. We reviewed this information and agree with the conclusion that the area will maintain the revoked 1997 8-hour ozone NAAQS for 10 years from the date of our approval. Based on photochemical modeling analyses showing that the formation of ozone in the HGB area is more sensitive to NOX than to VOC emissions, the small increase in VOC emissions during the 10-year maintenance period is expected to be more than offset by the 39% decrease in NOX emissions during this same period. More detail on our review can be found in the TSD.

Based on the CAA's criteria for redesignation to attainment (CAA section 107(d)(3)(E)) and the regulation providing for a redesignation substitute (40 CFR 51.1105(b)), EPA is proposing to approve the redesignation substitute for the HGB area for the revoked 1997 8-hour ozone NAAQS and make a finding of attainment based on our determination that the demonstration provided by the State of Texas shows that the HGB area has attained the revoked 1997 8-hour ozone NAAQS due to permanent and enforceable emission reductions, and that it will maintain that NAAQS for ten years from the date of the EPA's approval of this demonstration. If EPA finalizes approval of the redesignation substitute, the HGB area would no longer be subject to any remaining applicable anti-backsliding requirements and the NNSR requirements associated with the revoked NAAQS. It would also allow the state to request a SIP revision to shift anti-backsliding obligations for the revoked ozone NAAQS to contingency measures provided that such action is consistent with CAA sections 110(1) and 193 (if applicable).

Texas's redesignation substitute report also requested that EPA concur that the NNSR provisions relevant to the revoked 1997 ozone NAAQS would no longer apply. As explained previously, if we approve a redesignation substitute, the state may request to revise its SIP to revise or remove provisions for NNSR for the revoked standard, provided that such action is consistent with CAA sections 110(l) and 193 (40 CFR 51.1105(b)(2)). However, the EPA believes that in this instance, Texas does not need to revise its SIP to alter some of the provisions for NNSR effective in the HGB area. The EPA reads Texas's NNSR SIP designations and classifications (and thus the related major source thresholds and offset ratios) to adjust as 40 CFR part 81 is updated and does not require further action by Texas if EPA were to finalize the redesignation substitute proposed here. This is explained in detail in Section D of the TSD. Because the HGB area is classified as Marginal nonattainment for the 2008 ozone NAAQS (as of the date of this Proposal), if the EPA finalizes this redesignation substitute, we believe that Texas's NNSR program would automatically change to requirements applicable for marginal areas in accordance with the HGB area classification for the 2008 ozone NAAQS for newly permitted sources. We note that finalization of this redesignation substitute does not relieve sources in the area of their obligations under previously established permit conditions.2

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve a demonstration provided by the State of Texas and find that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1997 8-hour ozone NAAQS; and imposes no additional requirements. Accordingly, I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this proposed rule does not impose any additional enforceable duties, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a demonstration provided by the State of Texas and find that the HGB area is no longer subject to the anti-backsliding obligations for additional measures for the revoked 1997 8-hour ozone NAAQS; and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

The proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Additionally, this proposed rule does not involve establishment of technical standards, and thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

Executive Order 12898 (59 FR 7629, February 16, 1994) 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. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Additionally, the proposed rule is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).

The proposal for which EPA is holding the public hearing will be published separately in the Federal Register. The pre-publication version can be found at https://www.epa.gov/renewable-fuel-standard-program/standards-2017-and-biomass-based-diesel-volume-2018-documents.

Public Hearing: The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposal (which can be found at https://www.epa.gov/renewable-fuel-standard-program/regulations-and-volume-standards-under-renewable-fuel-standard). The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. Written comments must be received by the last day of the comment period, as specified in the notice of proposed rulemaking.

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0004. The EPA has also developed a Web site for the Renewable Fuel Standard (RFS) program, including the notice of proposed rulemaking, at the address given above. Please refer to the notice of proposed rulemaking for detailed information on accessing information related to the proposal.

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

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

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

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

This is a summary of the Commission's document FCC 16-53, Transition from TTY to Real-Time Text Technology, Notice of Proposed Rulemaking, adopted April 28, 2016, and released April 29, 2016, in CG Docket No. 16-145 and GN Docket No. 15-178. The full text of document FCC 16-53 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document FCC 16-53 can also be downloaded in Word or Portable Document Format (PDF) at: https://www.fcc.gov/general/disability-rights-office-headlines. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 47 CFR 1.1200 et seq. 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 47 CFR 1.1206(b). In proceedings governed by 47 CFR 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. 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 and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Document FCC 16-53 seeks comment on proposed rule amendments that may result in modified information collection requirements. If the Commission adopts any modified information collection requirements, the Commission will publish another notice in the Federal Register inviting the public to comment on the requirements, as required by the Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. Public Law 107-198; 44 U.S.C. 3506(c)(4).

1. In document FCC 16-53, the Commission proposes amendments to its rules to facilitate a transition from outdated text telephone (TTY) technology to a reliable and interoperable means of providing real-time text (RTT) communication for people who are deaf, hard of hearing, speech disabled, and deaf-blind over Internet Protocol (IP) enabled networks and services. RTT is a mode of communication that permits text to be sent immediately as it is being created. As a technology designed for today's IP environment, and one that allows the use of off-the-shelf rather than specialized end user devices, RTT can, for the first time in our nation's history, enable people with disabilities who rely on text to use text-based communications services that are fully integrated with mainstream communications services and devices used by the general public. In addition, RTT's advanced features, including its speed, full character set, reliability, and ease of use, can significantly improve access to emergency services for people with disabilities and help reduce reliance on telecommunications relay services.

2. In order to facilitate an effective and seamless transition to RTT, the Commission proposes to amend its rules as follows:

• The Commission proposes to replace its rules governing the obligations of wireless service providers and equipment manufacturers to support TTY technology with rules defining the obligations of these entities to support RTT over IP-based wireless voice services.

• The Commission proposes that, for wireless service providers' and equipment manufacturers' support of RTT to be deemed sufficient for compliance with the Commission's rules:

• RTT communications must be interoperable across networks and devices, and this may achieved through adherence to Internet Engineering Task Force (IETF) Request for Comments 4103, Real-time Transport Protocol Payload for Text Conversation (2005) (RFC 4103), as a “safe harbor” standard for RTT;

• RTT communications must be backward compatible with TTY technology, until the Commission determines that such compatibility is no longer necessary; and

• Wireless services and equipment capable of sending, receiving and displaying text must support specific RTT functions, features, and capabilities necessary to ensure that people with disabilities have accessible and effective text-based communications service.

• The Commission proposes establishing timelines for implementation of RTT as follows:

• For Tier I wireless service providers, and manufacturers that provide devices for such services, implementation of RTT would be required by December 31, 2017.

• For non-Tier I wireless providers, and manufacturers of equipment used with such services, the Commission seeks comment on an appropriate timeline for implementation of RTT.

• Finally, the Commission seeks comment on whether to amend its rules to place comparable responsibilities to support RTT on providers and manufacturers of wireline IP services and equipment that enable consumers to initiate and receive communications by voice.

3. The Commission believes that the above proposals for the migration from TTY to RTT technology will ensure that people with disabilities can fully utilize and benefit from twenty-first century communications technologies as our nation migrates from legacy analog systems to IP-based networks and services. The Commission seeks comment on the tentative conclusions, proposals, and analyses put forth in document FCC 16-53, as well as on any alternative approaches.

4. The Commission has adopted specific rules requiring support for TTY technology by providers and manufacturers of telecommunications and advanced communications services and devices. See 47 CFR 6.5, 7.5, 14.20, 14.21, 20.18(c), 64.601(a)(1), (b), 64.603, 64.604(a)(3)(v), (c)(5)(iii). On June 12, 2015, AT&T filed a petition requesting that the Commission initiate a rulemaking proceeding to authorize the substitution of RTT for TTY technology, as an accessibility solution for use with IP-based voice communications networks and services.

5. TTY technology was developed more than fifty years ago as a means of enabling people who are deaf, hard of hearing, and speech disabled to use the legacy Public Switched Telephone Network (PSTN). The record shows the significant challenges that TTY technology presents on IP-based communication networks and platforms, including its susceptibility to packet loss, compression techniques that distort TTY tones, and echo or other noises that result from the transmission of the Baudot character string. These deficiencies can degrade quality, augment error rates, and hurt the reliability of telephone communications. When these shortcomings occur, synchronization of the conversation also can be impeded, and the transmission can become garbled until it is restored. For TTY users, this not only is frustrating, but also can present a dangerous situation in an emergency, when effective communication is critical. TTYs are also criticized for their slow transmission speed, their dependency on turn-taking, their use of significant network bandwidth, their lack of interoperability with dedicated text devices used in other countries, and their limited character set, the latter of which can make communicating certain information, such as email and web addresses, difficult or impossible.

6. The record shows that these technical and functional limitations of TTY technology have resulted in a steady decline in its use in favor of other forms of text communication that offer greater ease of use, improved features, and practicability. This trend is also revealed in a survey of the participants in field trials conducted to assess the user experience of the quality and interoperability of RTT and alternatives. Reports by the Interstate Telecommunications Relay Services (TRS) Fund Administrator, Rolka Loube, confirm decreasing reliance on TTYs; over the past 71/2 years, its monthly filings show a drop of nearly 80 percent in the number of minutes attributed to TTY-initiated relay calls. Rolka Loube, TRS Fund Performance Status Report, http://www.rolkaloube.com/#!formsreport/c1zvl. TTYs are hardly ever used with wireless services. Instead, consumers have opted for applications that are native to the IP environment, such as short messaging services (SMS), instant messaging, email, IP Relay Service, and various social media applications.

7. Support for Commission action comes from the industry, the consumers, and the Commission's federal advisory bodies that have addressed this matter over the past several years. Most recently, in October 2015 and February 2016, the Commission's Disability Advisory Committee (DAC) submitted two sets of recommendations that support the Commission's exploration into the use of RTT or other text-based solutions as a replacement for TTY technology. Prior to this, in March 2013, the Commission's Emergency Access Advisory Committee (EAAC) recommended replacing TTY support requirements with requirements for direct access to 911 services via IP-based text communications that include real-time text.

8. The Commission proposes to amend its rules to replace the rules governing the obligations of wireless providers and manufacturers to support TTY technology with rules defining the obligations of these entities to support RTT over IP-based wireless voice services. The Commission tentatively concludes that the technical and functional limitations of TTYs make this technology unsuitable as a long-term means to provide full and effective access to IP-based wireless telephone networks, and that there is a need to provide individuals who rely on text communication with a superior accessibility solution for the IP environment. The Commission further tentatively concludes that RTT can best achieve this goal because it can be well supported in the wireless IP environment, will facilitate emergency communications to 911 services, allows for more natural and simultaneous interactions on telephone calls, will largely eliminate the need to purchase specialized or assistive devices that connect to mainstream technology, and may reduce reliance on telecommunications relay services.

9. To achieve an effective and timely transition to RTT, the Commission proposes to require RTT support at a specified time in the future, but also seeks comment on the extent to which there should be an interim period preceding such deadline, during which covered entities would be allowed to provide either RTT or TTY support on IP-based wireless services. The Commission believes that establishing an RTT requirement is necessary to ensure that people with disabilities continue to have effective access to wireless communications services as these services make the transition to an all-IP environment, and seeks comment on this approach. To this end, the Commission proposes the following revisions to its rules:

• Amend § 20.18(c) to require wireless IP-based voice service providers to be capable of transmitting 911 calls from individuals who are deaf, hard of hearing, deaf-blind, or speech disabled through RTT technology, in lieu of transmitting 911 calls from TTYs over IP networks;

• Amend part 64 to require wireless interconnected voice-over-IP (VoIP) service providers to support TRS access through RTT technology, including 711 abbreviated dialing access, in lieu of supporting TRS access via TTY technology;

• Amend parts 6 and 7 to require providers of wireless interconnected VoIP services subject to these rules to provide and support RTT, if readily achievable, in lieu of providing connectability and compatibility with TTYs; and

• Amend part 14 to require providers of wireless VoIP services subject to these rules to provide and support RTT, unless this requirement is not achievable, in lieu of providing connectability and compatibility with TTYs.

10. The Commission believes that the availability of RTT-capable end user devices for users is essential in order to facilitate the use of RTT for emergency purposes, fully integrate RTT capability into the IP environment, and ensure that RTT users have the same range of device choices offered to the general public for voice communications. To this end, the Commission further proposes to amend its rules in the following manner to address the ability of wireless devices used by consumers to support RTT.

11. Wireless service providers. For providers of IP-based voice services, the Commission proposes to:

• Amend § 20.18(c), which requires the transmission of 911 calls from TTYs, and parts 6, 7, and 14 to require that, to the extent a wireless provider issues design specifications, purchases for resale to users, or otherwise authorizes new handsets or other text-capable end user devices for use with its IP-based voice services, the provider shall ensure that such devices have the ability to send, receive and display RTT.

• If it is not readily achievable (under parts 6 and 7) or achievable (under part 14) to incorporate RTT capability within such wireless devices, the wireless provider shall ensure that such devices are compatible with RTT-equipped stand-alone devices or software applications, “if readily achievable” for equipment subject to parts 6 and 7 of the rules, and “unless not achievable” for equipment subject to part 14 of the rules.

12. Manufacturers. For manufacturers of wireless handsets or other wireless text-capable end user devices used with IP-based voice services, the Commission proposes to amend parts 6, 7, and 14 to require such manufacturers to:

• Ensure that their devices have the ability to send, receive, and display RTT, if readily achievable for equipment subject to parts 6 and 7 of the rules, and unless not achievable for equipment subject to part 14.

• If it is not readily achievable (under parts 6 and 7) or achievable (under part 14) to incorporate RTT capability within such devices, ensure that such devices are compatible with RTT-equipped stand-alone devices or software applications, if readily achievable for equipment subject to parts 6 and 7 of the rules, and unless not achievable for equipment subject to part 14 of the rules.

13. The Commission's proposal to create an affirmative requirement for RTT support is consistent with past Commission actions and Congressional mandates to ensure that, as communications networks evolve to incorporate new technologies, accessibility safeguards be amended to ensure that people with disabilities continue to have effective access to communications. The purpose of section 716, added to the Communications Act of 1934, as amended (Act), by the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Public Law 111-260, 124 Stat. 2751 (October 8, 2010), is to ensure that “advanced communications services” (ACS) that incorporate new technologies are accessible to individuals with disabilities. 47 U.S.C. 617(a)(1) (emphasis added). As explained by the Senate committee report on the CVAA, the CVAA's purpose is “to update the communications laws” to ensure accessibility, because, since the previous update in 1996 (when section 255 of the Act was added), “[i]nternet-based and digital technologies are now pervasive . . . [and] the extraordinary benefits of these technological advances are sometimes not accessible to individuals with disabilities.” S. Rep. No. 111-386 at 1-2 (2010). Thus, for example, section 716(d) of the Act expressly prohibits ACS providers from “install[ing] network features, functions or capabilities that impede accessibility or usability.” 47 U.S.C. 617(d). By requiring wireless providers and manufacturers, as they deploy IP-based voice services, equipment, and networks, to implement RTT as a state-of-the-art accessibility technology, the Commission will ensure not only that such networks do not impede accessibility, but that the benefits of technological advances are accessible to individuals with disabilities as Congress intended.

14. The Commission's proposals are also intended to avoid repetition of past failures to build in accessibility at the outset of technological changes, which led to long delays in providing access to new communications technologies for people with disabilities. For example, in the mid-1990s, despite the public safety dangers of leaving people with disabilities behind as the wireless industry made its transition from analog to digital technology, repeated delays resulted in the lack of access to digital wireless services by TTY users for over six years, well past the rise in popularity of digital technology with the general public. Similarly, it was not until 2005 that digital handsets began integrating hearing aid compatibility, again despite the introduction of these handsets in the mid-1990s. Each of these delays imposed considerable hardships on people with disabilities, who remained without digital wireless access—and without emergency access via wireless networks—for lengthy periods of time after these technologies became available to everyone else. Additionally, industry efforts that were needed to eventually achieve such access—which took place very late in the design and development process of building of such phones—proved more costly and burdensome than would likely have been the case had accessibility been incorporated from the outset.

15. The Commission has noted that communication networks are rapidly transitioning away from the historic provision of time-division multiplexed (TDM) services running on copper to new, all-IP multimedia networks using copper, co-axial cable, wireless, and fiber as physical infrastructure. As these changes take place, the Commission seeks to ensure that its accessibility rules for IP-based voice networks achieve the early integration of accessibility features, so that people with disabilities can enjoy communications services as they emerge, along with the general population. The Commission believes that amending its rules to require support of RTT at this time is likely to create greater certainty for companies that have expressed an interest in deploying RTT, and provide a supportive regulatory landscape in which to do so. With the action taken today, the Commission expects that covered entities will have the necessary incentives to invest and innovate to improve products employing RTT functionalities, promoting more effective access to 911 services and other communications for individuals with disabilities.

16. The Commission seeks comment on its tentative conclusions, proposals, and analysis, including the costs and technical feasibility of the proposed rule amendments, and on any proposed alternatives. The Commission notes that in its text-to-911 proceeding, it determined that significant benefits could be attained by enabling people with disabilities to use text to access emergency services by phone. The Commission has recognized that as our nation ages, the number of Americans who may need alternatives to voice telephone communications is likely to increase. The Commission believes that establishing a requirement to ensure that RTT is incorporated in wireless IP-based services and devices as these are designed and developed will reduce the overall costs of incorporating this access feature, while ensuring that people with disabilities are not left behind in the transition to new technology. The Commission seeks comment on whether these assumptions are correct and generally on the benefits to be derived from incorporating RTT functionalities into wireless services and end user devices, including the benefits that may accrue for improving access to 911 services.

17. In a joint filing, three technology research centers, the Rehabilitation Engineering Research Center on Telecommunications Access, Trace Research & Development Center at the University of Wisconsin-Madison, and the Gallaudet University Technology Access Program (Technology Research Centers), contend that the implementation of RTT would not add any hardware costs to support RTT, if limited to products used for receiving and displaying RTT that already have a display large enough to display multiple lines of text (or software designed to run on a multi-line display) and a mechanism for generating text for other purposes. They and others point out that many Internet-enabled terminal devices, including smartphones, tablets, and VoIP desk phones, already have such text generation and display capabilities. Costs also appear to be minimized if incorporated in the beginning of the design process. The Commission seeks comment on the merits of these assumptions, and on how they would be affected by the outcome of the issues raised for comment in this section regarding the scope of an equipment capabilities requirement.

18. Larger wireless carriers. The Commission seeks comment on when its rules requiring implementation of RTT should become effective. The Commission proposes that this be completed by Tier I wireless service providers, which offer nationwide service, no later than December 31, 2017. See 47 CFR 20.19(a)(3)(v) for a definition of Tier I providers. The Commission seeks comment on whether the proposed date will afford sufficient time for this category of providers to achieve compliance with the rules proposed in document FCC 16-53. Alternatively, the Commission seeks comment on whether it would be preferable to establish a specified interim period of time—prior to the deadline set for an RTT requirement—during which Tier I covered entities would be allowed to support RTT over their IP facilities if they are unable to support TTYs. The Commission asks parties that believe such interim period is necessary to explain whether and how such period would be needed to afford additional flexibility during the transition to RTT technology. The Commission further asks commenters who disagree with the Commission's proposed deadline of December 31, 2017, for Tier I carriers to explain why additional time would be needed to achieve deployment of RTT.

19. Smaller wireless carriers. The Commission proposes that smaller wireless carriers, to be defined as those that do not fall into Tier I, be given an additional period of time to achieve compliance with the proposed RTT support requirements beyond the deployment date proposed for the larger, Tier I carriers. The Commission seeks comment on what would be an appropriate extension of time, as well as whether the Commission should distinguish between Tier II (non-nationwide mid-sized commercial mobile radio service (CMRS) providers with greater than 500,000 subscribers) and Tier III carriers (non-nationwide small CMRS providers with no more than 500,000 subscribers) in determining appropriate benchmarks for these providers. Alternatively, the Commission seeks comment on whether it would be more appropriate to tie the obligations of these carriers to the timing of their transition to IP-based wireless technologies, such as IMS/VoLTE or 4G services. Finally, to what extent would it be appropriate to establish an interim transitional period, akin to what is discussed above for Tier I carriers, during which such smaller carriers would be allowed, but not required, to support RTT in lieu of TTY technology?

20. End user devices. The Commission proposes that the timeline established for RTT support over IP-based wireless services apply as well to handsets and other text-capable end user devices for use with such services, and thus proposes that any such handsets or devices sold after December 31, 2017, have RTT capability, and seeks comment on this proposal. Making this requirement effective at the same time that wireless services are required to become RTT-capable would ensure that sufficient handsets are available for people with disabilities to have access to text communications in real time after the existing orders waiving service provider requirements for TTY support expire. Will the proposed December 2017 deadline for the Tier I service providers allow sufficient time to incorporate RTT capability in end user devices? Is it more appropriate for the deadline established for end user devices to apply to the date on which new devices are manufactured, rather than first made available to the general public?

21. In addition to requiring the inclusion of RTT support on new terminal devices, consistent with statutory requirements for telecommunications access and access to advanced communications services and equipment, should there be a requirement to add RTT capability to end user devices already in service at the compliance deadline, at “natural opportunities,” previously defined by the Commission to occur upon the redesign of a product model or service, new versions of software, upgrades to existing features or functionalities, significant rebundling or unbundling of product and service packages, or any other significant modification that may require redesign? Further, to the extent that it is not achievable under section 716 of the Act or readily achievable under section 255 of the Act to make an end user device accessible through RTT, by what date should such device be made compatible with a stand-alone RTT device or app to the extent that these become available?

22. The Commission also seeks comment on the period of time, if any, that over-the-top applications or plug-ins for RTT should be permitted as an interim measure to achieve RTT on end user devices, and if permitted as over-the-top applications, whether manufacturers and service providers should be required to pre-install such applications on devices before they are sold to the public. Specifically, the Commission proposes that the use of an over-the-top application as an interim solution, such as that which AT&T is achieving, will be sufficient to constitute compliance with the RTT requirement by December 31, 2017, and seeks comment on this tentative conclusion. At the same time, the Commission asks to what extent the Commission should be concerned that the many advantages of RTT as a universal text solution will not be achieved until RTT is incorporated as a native function in end user devices, or at a minimum, pre-installed by the manufacturer or service provider as a “default” application. The Commission seeks comment on whether this concern should guide its final rules, and further seeks comment on what functionalities of RTT, and what associated benefits of RTT, if any, would be unavailable if it is initially implemented as an over-the-top application rather than as native functionality. With this in mind, the Commission asks commenters to provide specific parameters for and factual showings justifying any timelines they propose for transitioning to native RTT functionality in covered devices.

23. IP-Based Technology. There is general agreement among AT&T and those commenting on its petition that RTT is an effective alternative to TTY technology for the IP environment. Commenters concur that RTT is designed for today's packet-switching environment and offers an expanded array of features to enable more robust user conversations, including real-time editing of text and full-duplex functionality (i.e., both parties can communicate simultaneously). Various commenters state that RTT allows for the intermixing of speech with text, is more spectrally efficient than TTY, will be superior to TTY in every way—transmission speed, latency, reliability, features, privacy, conversation form, and ease of use—will facilitate the transition to end-to-end Next Generation 911 (NG911), and will meet the needs of legacy TTY users during the transition. The Commission tentatively concludes that deployment of RTT on IP networks will offer functionality greatly superior to that of TTY technology, and it seeks comment on this tentative conclusion.

24. Off-the-Shelf Devices. Commenters also state that RTT will allow consumers with disabilities to make calls using the built-in functionality of a wide selection of off-the-shelf devices, including smartphones, tablets, computers and other Internet-enabled devices that have the ability to send, receive, and display text. These parties point out that this can eliminate the high costs and other challenges involved in finding, purchasing, and making effective use of assistive devices such as TTYs. The Commission tentatively concludes that the ability to acquire off-the-shelf RTT-capable devices will be beneficial for text communication users, and seeks comment on this tentative conclusion.

25. Substitution for Telecommunications Relay Services. Section 225 of the Act directs the Commission to ensure that TRS is available “in the most efficient manner.” 47 U.S.C. 225(b)(1). The record suggests that, because RTT will provide greater opportunities for direct, point-to-point text communication and can enable text to be intermixed with voice, it can reduce reliance on relay services and thereby provide consumers with greater privacy and independence, while reducing overall costs for telecommunications users. For example, one form of TRS, captioned telephone relay service (CTS), currently uses communication assistants (CAs) to enable people who are hard of hearing to receive captions of conversation spoken by other parties to a telephone call. The Commission expects that RTT users might not need these services if they were able to receive RTT over VoIP phones to supplement incoming voice conversations for difficult-to-understand words. Similarly, the Commission predicts that people with speech disabilities who can type will be able to use standard phones capable of generating RTT to communicate with other persons who also have VoIP phones with displays. However, the Commission notes that these results are likely to be achieved only to the extent that RTT capabilities in end user devices truly become ubiquitous—i.e., are enabled by default in all or most wireless (and eventually wireline) terminal equipment. To the extent that RTT is “supported” but not fully incorporated as a native or default function of devices—and is merely available for users to download or install—commenters suggest that the universal reach of text as a substitute for relay services will be less likely to be achieved, because many individuals who do not rely on text may not install this extra functionality. The Commission seeks comment on whether these assumptions are correct.

26. Improvement of Telecommunications Relay Services. In addition to substituting for TRS in some circumstances, the Commission believes that RTT can be used to enhance the ability of TRS to provide functionally equivalent telephone service. For example, it would appear that for text-based forms of TRS, RTT can improve the speed and reliability of communications in an IP environment. The Technology Research Centers further note that individuals may be able to use RTT to supplement communications in sign language with text during video relay service (VRS) calls, reducing the time needed for CAs to convey detailed information, such as addresses and URLs. The Commission seeks comment on these assertions and whether there are other ways that RTT can improve the provision of TRS for its users.

27. Advantages Over Messaging-Type Services. Text-based accessibility solutions include RTT, SMS, instant messaging and similar chat-type functions, and email. With the exception of RTT, each of these technologies requires parties to complete their messages and to press “send,” “enter,” or a similar key to transmit the message to its recipient. By contrast, when a message is sent in real time, it is immediately conveyed to and received by the call recipient as it is being composed. Several commenters maintain that RTT is the only type of text communication that allows a natural flow of conversation akin to voice telephone calls, and therefore the only form that meets the criterion of functional equivalency. Without the turn-taking and delays characteristic of messaging-type communications, these parties state, RTT gives call recipients “an opportunity to follow the thoughts of the sender as they are formed into words.” The Technology Research Centers note what they consider additional drawbacks of these alternatives: The delivery of messages over SMS is not guaranteed; instant messaging is not interoperable; and certain features, such as conference calling, are not available via instant messaging across multiple providers.

28. Access to 911 Emergency Services. Perhaps the most compelling case to be made in favor of RTT over messaging-type services is in the context of emergency calls to 911. Recent studies reveal a preference for RTT in simulated emergency situations by 100 percent of participants. According to the Technology Research Centers, a principal reason for preferring RTT over SMS is that the latter can result in “[c]rossed messages [that] can lead to misunderstanding and loss of time. . . . In an emergency situation, a panicked caller may ask a second or third question if there is no immediate visible response from the 9-1-1 call-taker. This can lead to confusion, crossed answers, and error.” In contrast, these groups explain, RTT enables “emergency call-takers [to] view the message as it is being typed and respond, refer, interrupt, or guide the information being sent to speed up communication and make it more helpful to emergency responders.” In this manner, they say, RTT “allows for the efficient exchange of information and a continued sense of contact,” as well as the delivery of even incomplete messages, which can result in potentially saving lives in an emergency.

29. The Commission recognizes that, two years ago, it adopted rules that could be met through the provision of SMS-based text-to-911 service. The Commission's goal in doing so was to ensure that, in the near term, individuals have a direct and familiar means of contacting 911 via text through mass market communication devices that are already available to people with disabilities and other members of the general public. The Commission noted that some commenters were less supportive of SMS-to-911 because it does not support the ability to “send and receive text simultaneously with the time that it is typed without having to press a ‘send’ key.” At the same time, the Commission recognized that many stakeholders would choose to text to 911 through an interim SMS-based solution because of its ease of use for people with disabilities and ubiquity in mainstream society. It went on to note that RTT “provides an instantaneous exchange, character by character or word by word,” a feature that commenters to this proceeding say is critical in an emergency. The record in the instant proceeding continues to reflect major concerns by several commenters about using SMS as a long term 911 accessibility solution. While the Commission does not propose to make any changes to its existing text-to-911 rules in this proceeding, it believes that its proposals to facilitate the wider availability of RTT for people with disabilities could have a beneficial impact on the future evolution of text-to-911.

30. The Commission proposes that RTT will be more effective than messaging-type services in meeting the communication needs of consumers with disabilities, including their emergency communication needs, and seeks comment on this proposal. Are there other text-based communication solutions that can meet the general communication needs of this population as effectively as RTT, and if so, how? How would the deployment of RTT or other text-based solutions impact the transition to NG911? The Commission asks commenters to address concerns about the costs, benefits, and feasibility of using RTT for accessing 911 services, and seeks comment on the technical and operational impact on Public Safety Answering Points (PSAPs) receiving RTT-based 911 calls.

31. The DAC recommends that the Commission “consider how telecommunication and advanced communications services and equipment that support RTT [can] provide the users of RTT (either in isolation or in conjunction with other media) with access to the same telecommunication and advanced communications functions and features that are provided to voice-based users of the services and equipment.” The Commission believes that this formulation captures the objectives of sections 225, 255, and 716 of the Act, which are to provide functionally equivalent communications and to ensure that telecommunications and ACS are fully accessible to and usable by people with disabilities. The Commission proposes that, in amending its rules to recognize IP-based text alternatives and facilitate the transition away from TTY technology, the Commission should consider the extent to which RTT's features, functions, and capabilities can provide people with disabilities with telephone service that is as accessible, usable, and otherwise as effective as voice-based services over IP networks. The Commission seeks comment on this proposed approach.

32. The Commission tentatively concludes, proposes, or seeks comment on the following basic functionalities that it believes are necessary for a wireless provider's implementation of RTT to be considered compliant with the rules adopted by the Commission in this proceeding. The Commission seeks comment on the extent to which each is necessary to achieve effective telephone access for individuals with disabilities, as well as its costs, other benefits, and any technical or other challenges that may be associated with its provision. Finally, the Commission seeks comment on the extent to which each of these features will be enabled or facilitated through the use of RFC 4103. RFC 4103, http://www.ietf.org/rfc/rfc4103.txt.

33. The Commission tentatively concludes that people who rely on text to communicate can only achieve effective RTT communications across multiple platforms and networks if the communication transmissions carried across, and the terminal equipment used with, those platforms and networks are interoperable with one another. The Commission seeks comment on this tentative conclusion. The Commission notes that there is consensus among commenters on AT&T's petition for rulemaking with respect to the need for seamless interconnection of RTT services across networks, service providers, and devices. Virtually all commenters agree with AT&T on the importance of not locking users into a single network, service provider, or device, as well as the value of ensuring that people with disabilities have the same kinds of choices in a competitive market as the population in general. Some commenters note that if service providers were to adopt proprietary standards that do not interoperate, RTT users might not be able to communicate with other users in emergency situations.

34. Commission rules reflect a longstanding commitment to policies favoring the openness of telecommunications services across providers and devices, so that anyone can make a voice call to anyone else, regardless of the provider or device they are using. For example, the Commission has promulgated a series of rules to ensure the interconnection of terminal equipment to the telephone network. The Commission's rules also prohibit telecommunications carriers and ACS providers from installing network features, functions, or capabilities that impede the accessibility or usability of telecommunications and ACS services. Further, in the Emerging Wireline Order and Further Notice, the Commission tentatively concluded that a carrier seeking to discontinue an existing retail communications service in order to transition to a newer technology must demonstrate that the replacement service offered by that carrier, or alternative services available from other providers in the affected service area, provides voice and non-voice device and service interoperability—including interoperability with third party services—as much as or more than the interoperability provided by the service to be retired. Technology Transitions, Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking, published at 80 FR 63321, October 19, 2015 (Emerging Wireline Order and Further Notice). The Commission believes that preserving interoperability is equally important in the transition from TTY to RTT technology. The Commission further believes that, in the absence of interoperability, multiple versions of RTT may need to be supported, not only by user devices, but also by TRS call centers and 911 PSAPs—a burden that could entail a prohibitive expense for many such entities. The Commission seeks comment on this analysis.

35. RFC 4103 as a Safe Harbor RTT Standard The Commission next considers how best to achieve RTT interoperability across communication platforms, networks, and devices. Some commenters maintain that having a single standard will ensure that RTT is a valuable and universally usable communications medium and that it will be less expensive for carriers to develop and deploy a single, interoperable RTT system now, than to each develop their own versions of RTT service and later try to reconfigure these to be interoperable. Various commenters point out that the lack of a common standard sometimes has impeded the interoperability of communications technologies needed by people with disabilities, reporting that the lack of an international standard for TTY technology has prevented TTY users from communicating by text in real-time with people living or visiting countries abroad, the lack of a common standard for instant messaging sometimes prevents instant messaging users from being able to contact each other across platforms, and the lack of a common VRS standard has impeded full interconnection for users of this service since the early 2000s.

36. The Commission agrees with consumers and researchers that standards can be especially important to ensuring interoperability of technologies needed by people with disabilities, and that common technical specifications will allow connectivity to occur seamlessly from one end of the call to the other without incurring obstacles along the way. At the same time, the Commission acknowledges the need for its rules to incorporate “key principles of flexibility and technology neutrality” as recommended by industry commenters. The Commission tentatively concludes that a middle ground between these two approaches can be achieved by referencing a technical standard as a safe harbor. The Commission believes that this approach will ensure RTT interoperability and product portability, while at the same time providing sufficient flexibility for covered entities adhering to different internal RTT standards—so long as their RTT support offers the same functions and capabilities as the selected standard, and is interoperable with the standard's format where they connect with other providers. The Commission seeks comment on this tentative conclusion and analysis.

37. To the extent that any commenter believes that reference to a safe harbor standard is unnecessary, the Commission seeks comment on how it can otherwise ensure that RTT communications are interoperable, not just among different implementations of RTT, but also with legacy interconnected TTY devices. Likewise, the Commission asks commenters who support adoption of a mandatory technical standard to explain why a safe harbor, combined with performance objectives, would be insufficient to achieve effective and interoperable RTT communications. Further, will a safe harbor be sufficient to provide incentives for manufacturers and providers to invest in research and development of RTT functionalities?

38. For the reasons discussed below, the Commission tentatively concludes that RFC 4103 is the appropriate standard to which covered entities should adhere as a safe harbor, conformity with which should be deemed to satisfy the Commission's interoperability requirements and certain of the Commission's performance objectives for RTT communications. The Commission seeks comment on this tentative conclusion. Use of RFC 4103 for RTT communications is well supported by the record to date. First, RFC 4103 is a non-proprietary, freely available standard that has been widely referenced by leading standards organizations. This standard, developed by the IETF, has been adopted by the International Telecommunications Union Telecommunication Standardization Sector, the European Telecommunications Standards Institute, 3rd Generation Partnership Project, a partnership of seven telecommunications standards organizations (3GPP), and Groupe Speciale Mobile Association.

39. Second, RFC 4103 is already being used or has been widely designated for implementation by numerous carriers and other organizations, both domestic and foreign. Domestically, both AT&T and Verizon have specified RFC 4103 as the standard protocol to be implemented in their IP-based wireless networks as the successor to TTY technology, the National Emergency Number Association has specified RFC 4103 for interoperable use in IP-based Next Generation emergency text communications where Session Initiation Protocol (SIP) technology is used, and the Access Board has proposed requiring RFC 4103 for federal procurements associated with the transmission of SIP-based RTT to achieve compliance with section 508 of the Rehabilitation Act. In addition, RFC 4103 is specified in the SIP Forum's interoperability profile for VRS providers. Some commenters note that outside the United States, RFC 4103 has been implemented in text or video relay services in France, the Netherlands, Sweden, and Norway.

40. Third, according to commenters, RFC 4103 has a number of features that make it particularly suitable for RTT. According to the Technology Research Centers, RFC 4103 eliminates the need to transcode at the borders of a network, permits a wide range of hardware, supports the international character set (Unicode), has built-in redundancy, is bandwidth efficient, is based on the same transmission protocol (RTP) as audio and video, and is supported by existing open source and commercial codecs. The Commission seeks comment on the value of each of these features and the extent to which they can contribute to making RFC 4103 a feasible and flexible means of achieving RTT interoperability and functionality. The Commission also seeks comment on which of the user functionalities necessary to an effective communications system, in addition to interoperability, can be made possible with adherence to RFC 4103. Further, to what extent can other RTT standards “coexist” with RFC 4103 in networks, technologies, and terminal equipment on which RTT is being used, to allow RTT to provide a universally accessible communications environment for people who are deaf, hard of hearing, speech disabled, or deaf-blind?

41. Next, the Commission seeks comment on whether RFC 4103 is sufficiently flexible to spur innovation in accessibility solutions. Are there any non-SIP-based networks for which implementation of RTT would serve the public interest, and if so, how could RTT be implemented on such networks so as to be interoperable with networks adhering to RFC 4103? Finally, if any adverse effects would result from adopting RFC 4103 as a safe harbor, the Commission asks commenters to identify these, and to explain specifically how such effects could be mitigated by modifying the standard or allowing an alternative protocol.

42. In the event that the Commission decides to adopt RFC 4103 as a safe harbor for RTT, the Commission seeks comment on how this standard can be updated and amended to accommodate successor non-proprietary RTT technologies that are developed in the future. The Technology Research Centers point out that the path for incorporating innovations into RTT can be the same as that used to update voice standards and codecs, i.e., by phasing in new formats and technologies while continuing to support the existing technology until its retirement. How can the Commission design its rules to allow these capabilities to continue evolving with technological advances and ensure the flexibility requested by industry, while not compromising the effectiveness of this technology for people with disabilities?

43. The Commission believes that it has sufficient authority to adopt RFC 4103 as a safe harbor. Section 716 of the Act explicitly allows the Commission to “adopt technical standards as a safe harbor for such compliance if necessary to facilitate the manufacturers' and service providers' compliance with section [716](a) through (c) of the Act.” 47 U.S.C. 617(e)(1)(D). Additionally, section 106 of the CVAA expressly authorizes the Commission “to promulgate regulations to implement the recommendations proposed by the EAAC, as well as any other regulations, technical standards, protocols, and procedures as are necessary to achieve reliable, interoperable communication that ensures access by individuals with disabilities to an Internet protocol-enabled emergency network, where achievable and technically feasible.” 47 U.S.C. 615c(g) (emphasis added). The Commission seeks comment on this analysis. Further, the Commission asks commenters who support a mandatory standard to provide legal authority for their proposal. CTIA—The Wireless Association points out that section 716 of the Act does not permit the Commission's regulations implementing that section to mandate technological standards, except as a safe harbor to facilitate the manufacturers' and service providers' compliance with section 716 of the Act. At the same time, as noted, section 106 of the CVAA expressly authorizes the Commission to adopt technical standards to ensure access by people with disabilities to an IP-based emergency network. In the event that the Commission deems it necessary to adopt a mandatory RTT standard, would the Commission's specific standard-setting authority under section 106 of the CVAA, as well as its authority under 47 U.S.C. 225(d), provide sufficient authority for the Commission to establish a mandatory technical standard for RTT, notwithstanding the standard-setting restriction of section 716 of the Act?

44. The DAC points out that while TTY usage continues to be in steady decline, some people who are deaf, hard of hearing, deaf-blind, or speech disabled, including senior citizens and rural residents, continue to rely on TTYs. In order to ensure that TTY-reliant consumers continue to have a method of communicating during the transition to RTT technology, the Commission proposes that, to comply with the rules adopted in this proceeding, wireless service providers must ensure that their RTT technology is interoperable with TTY technology. The Commission seeks comment on this proposal. Among other things, with this requirement, the Commission believes it will remain possible for consumers to use their TTYs to communicate with a TRS call center that is set up to receive RTT calls and for consumers who use RTT technology to communicate with a TRS call center that is set up to provide traditional TTY-based TRS. The Commission seeks confirmation on whether it is feasible to use gateways and RFC 4103 to achieve backward compatibility, as proposed by the Technology Research Centers, and if not, how transcoding between RTT packets used with IP-based services and TTY Baudot tones can be achieved, in accordance with the accuracy criteria the Commission proposes for RTT. Is it correct that such interoperability can be achieved without added costs to TTY users and PSAPs as suggested by AT&T? The Commission asks commenters to discuss the costs, benefits, and technical feasibility of using any alternative standards for this purpose.

45. A particular concern regarding backward compatibility with TTYs is the fact that TTYs can only send and display a small subset of Unicode characters, namely upper-case letters, numbers, the pound and dollar signs, and some punctuation marks. Thus, gateways between RTT systems and legacy TTYs need to be able to convert the much larger Unicode set used with RTT into readable TTY characters. In general, such character conversion is called “transliteration.” Thus, accented characters may be rendered as multiple characters—e.g., “ä (a umlaut)” may become “AE.” In some cases, words must be used in the transliteration, but all Unicode characters can be described unambiguously, if necessary, by their Unicode character name. According to the Unicode Consortium, transliterations should be standard, complete, predictable, pronounceable, and reversible. See Unicode Common Locale Data Repository, http://cldr.unicode.org/index/cldr-spec/transliteration-guidelines. Should the rules require a standard transliteration approach or standard table, or should each entity responsible for offering gateways between RTT and TTY choose its own transliteration approach? What standards should be referenced? If each gateway may choose its own transliteration approach, should it meet, for example, the general transliteration guidelines formulated by the Unicode Consortium or other standards body? Should there be a standard indicator that a character string is a Unicode emoji, e.g., “(* GOLFER *)” for Unicode U+1F3CC? With respect to PSAPs employing TTYs, what impact might transliteration have on PSAPs' ability to handle the RTT 911 call?

46. The Commission also seeks comment on whether there are other assistive devices used with the PSTN, such as Braille-capable devices used by people who are deaf-blind, that would require or benefit from backward compatibility, and what additional steps are necessary to achieve this, beyond the steps necessary to achieve backward compatibility for TTYs.

47. Finally, the Commission seeks comment on what events or measures should trigger a sunset of the residual obligation for wireless networks to be backward compatible with TTY technology. In the CVAA, Congress explicitly asked the EAAC to consider “the possible phase out of the use of current-generation TTY technology to the extent that this technology is replaced with more effective and efficient technologies and methods to enable access to emergency services by individuals with disabilities.” 47 U.S.C. 615c(c)(6). The EAAC recommended against “imposing any deadline for phasing out TTY at the PSAPs until the analog phone system (PSTN) no longer exists, either as the backbone or as peripheral analog legs, unless ALL legs trap and convert TTY to IP real-time text and maintain [Voice Carry Over (VCO)] capability.” Since then, however, the DAC has requested the Commission to “consider a TTY sunset period when declining wireline TTY minutes reaches a certain threshold to be determined, while addressing the needs of people who are deaf-blind, speech disabled, and have cognitive impairments as well as for relay services and rural access.”

48. The Commission notes that the NG911 Now Coalition has set a goal of transitioning to nationwide NG911 by the end of 2020. See NG911 Now Coalition, http://www.ng911now.org/#about. The Commission seeks comment on whether this is an appropriate benchmark for terminating the requirement for backward compatibility, or whether a different indicator should be used to make this determination. Would it be more appropriate for the Commission to set the end date based on TTY usage falling below a threshold level? If the latter, should TTY usage be assessed based on usage of TTY-based forms of TRS, or a different indicator? The Commission is concerned about ensuring that people with disabilities continue to have a means of using text to make emergency and non-emergency calls after a TTY phase-out and generally seeks comment on safeguards needed to address these communications needs.

49. In addition to ensuring interoperability, in this section the Commission seeks comment on a number of other features and capabilities that it believes will be necessary to ensure that RTT is as accessible, usable, and effective for people with disabilities as voice telephone wireless service is for people without disabilities.

50. As a preliminary matter, the Commission proposes that wireless service providers and manufacturers be required to configure their networks and devices so that RTT communications can be initiated and received to and from the same telephone number that can be used to initiate and receive voice communications on a given terminal device. Among other things, the Commission tentatively concludes that enabling access to ten digit telephone numbers is necessary to reach and be reached by any other person with a phone number, and to ensure that RTT users can access 911 services. The Commission tentatively concludes that a similar ability is an essential part of the provision of RTT, and seeks comment on this tentative conclusion and proposal, including its costs, benefits and technical feasibility.

51. As the Commission has previously stated, “[t]he ability of consumers to contact 911 and reach the appropriate PSAP and for the PSAP to receive accurate location information for the caller is of the utmost importance.” Emerging Wireline Order and Further Notice. The Commission proposes that the implementation of RTT in IP networks must be capable of transmitting and receiving RTT communications to and from any 911 PSAP served by the network in a manner that fully complies with all applicable 911 rules, and seeks comment on this proposal. Are specific measures or rule amendments necessary to ensure that RTT supports legacy 911, text-to-911, and NG 911 services? Given that RTT is in an all-IP environment, and that there may be outages during a loss of commercial power, or RTT may be unavailable due to the limited battery backup inherent in IP-based equipment, are there additional ways to ensure continued access to emergency communications in the event of a power failure to the same extent this will be guaranteed for voice telephone users?

52. Based on comments in the record, the Commission proposes that compliant RTT must be capable of transmitting text instantly, so that each text character appears on the receiving device at roughly the same time it is created on the sending device. To achieve this, the Commission further proposes requiring that RTT characters be transmitted within one second of when they are generated, with no more than 0.2 percent character error rate, which equates to approximately a one percent word error rate. The Commission believes that this will allow text to appear character-by-character on the recipient's display while the sender is typing it, with a point-to-point transmission latency that is no greater than that provided for voice communication. The Commission seeks comment on these proposals, as well as whether the Commission should adopt other measures regarding the latency and error rate for RTT. For example, is it feasible, and necessary for effective communication, to provide users with the ability to edit individual characters or groups of words in real-time—for example, by backspacing and retyping?

53. The Commission also notes that, according to the Technology Research Centers, any RTT system also can be programmed to first receive and hold the sender's communication while it is being composed, and to then send the entire message together when triggered to do so, in a manner akin to instant messaging. Is this “block mode” feature desirable for certain individuals? For example, would it alert people who are deaf-blind to incoming messages so that they know when it is appropriate to respond? If so, should the Commission allow or require that this capability be made available on compliant RTT technology? If such a feature is permitted or required, should the Commission require nevertheless that RTT service revert to the character-by-character mode when 911 calls are detected by the IP network, in order to ensure the rapid exchange of information during such calls?

54. The Commission seeks comment on any other relevant considerations pertaining to the transmission and delivery of RTT that may affect its utility and effectiveness for people with communication disabilities.

55. The Commission proposes to require that, for a manufacturer's or service provider's implementation of RTT to be considered compliant with the rules the Commission adopts in this proceeding, users of RTT must be able to send and receive both text and voice simultaneously in both directions over IP on the same call and via a single device. The Commission seeks comment on this proposal.

56. According to the 3GPP Technical Specification for Global Text Telephony, which is cited by the DAC, RTT that is implemented under RFC 4103 allows text to be transported alone or in combination with other media, such as voice and video, in the same call session. The DAC therefore asks the Commission to consider “whether telecommunication and advanced communications systems can support the use of RTT simultaneously in conjunction with the other Real-Time media supported by the system.” The DAC also recommends that the Commission consider whether RTT equipment and services should support, among other features, the user's ability to “intermix voice and text on the same call, including, for example, `Voice Carry Over' and `Hearing Carry Over.' ” Such “carry over” modes currently are available as types of TRS. VCO allows people who are deaf and hard of hearing to use their own voices (where possible) and receive text back during a captioned telephone or TTY-based relay call, while HCO generally allows people with speech disabilities on speech-to-speech relay calls to hear directly what the other party says and use the CA to repeat what the person with the speech disability says. However, in an RTT network, can these features also serve as a mode of direct point-to-point communications, reducing the need for reliance on TRS?

57. A coalition of consumer groups points out that simultaneous voice and text on the same call also would allow callers to initiate a call using either text or voice and to switch to the other mode at any time during the call. Users would be able to send text in one direction and speech in the other, speak in parallel with text for captioned telephony, and supplement speech for difficult-to-hear words, addresses, and numbers. Others report findings that the quality, intelligibility, speed, and flow of communications improve when text is added to voice. Finally, the Technology Research Centers point out that the ability to use synchronized voice and text transmissions can improve communications on TRS calls. The Commission seeks comment on these assertions and the extent to which synchronized voice and text transmission is necessary for effective communication via RTT.

58. Next, the Commission seeks comment on whether to require that, where covered service providers support the transmission of other media, such as video and data, simultaneously with voice, they also provide the capability for the simultaneous transmission of RTT and such other media. The Commission notes that in studies conducted by the Technology Research Centers, participants generally expressed the desire to add video to RTT calls, “to express feelings, and to provide for more natural communication with sign language and the possibility of lip reading.” In addition, some commenters highlight the benefits that multimedia capabilities can have in the TRS context, including the ability to supplement sign language communications with text on video relay calls. By enabling voice, text, and video to be delivered to users so that each of these types of media can be available at the same time, over the same call session, some parties also state that RTT can reduce overall reliance on TRS and also reduce or eliminate the need for TRS users to acquire the dedicated terminal equipment that is often needed to access these services. They claim that increasingly, people with and without disabilities would be able to converse with each other directly, using whichever mode of communication—voice, text, or video—is most suitable for getting their messages across.

59. To what extent is requiring such multimedia capabilities necessary to achieve telephone communications for text users that are as effective as those available to voice users? To what extent can such capabilities enhance the accuracy and speed of TRS or reduce overall reliance on conventionally defined forms of TRS, to ensure that TRS is available “in the most efficient manner”? 47 U.S.C. 225(b)(1). Would the inclusion of video capability with RTT be likely to lead to congestion problems, and how could such congestion be prevented or alleviated? For example, if simultaneous voice, RTT, and video are all available over the same telephone connection, could the parties to the call better simulate an in-person communication, which can be supplemented with RTT as needed, and thereby eliminate the need for a CA to serve as a communications bridge between the parties?

60. The Commission generally seeks comment on how to integrate RTT into the provision of TRS. Specifically, should the Commission amend its TRS rules to authorize or require TRS providers to incorporate RTT capabilities into platforms and terminal equipment used for certain forms of TRS, in order to enhance its functional equivalence? For example, Omnitor AB asks the Commission to require relay providers to incorporate RTT into their systems, so that callers can use RTT terminals to access TRS with a single step, using ten digit numbers. The Commission notes that at present, some forms of TRS are provided over the PSTN, while others are made available via IP networks. In light of the ongoing migration of communications from the circuit-switched PSTN to IP-based technologies, it appears that ultimately all PSTN-based TRS will be phased out and all TRS will be IP-based. If this occurs, should the Commission authorize or require IP Relay or other TRS providers to support an RTT mode between the user and the CA? If so, what timeline would be appropriate for implementing such capability? The Technology Research Centers suggest this is needed to improve the functional equivalence of the IP Relay interface, as well as to facilitate relay service modes, such as VCO and HCO. Should the Commission also authorize or require IP CTS or other TRS providers to support RTT transmission in any voice channels they provide and in any off-the-shelf equipment provided to IP CTS users? Finally, should the Commission authorize or require VRS providers to support an RTT mode between the user and the CA, so that RTT can be used to supplement communications in sign language with text during VRS calls? What other requirements are appropriate to assign to RTT or TRS providers to ensure the compatibility of their services as the transition to RTT takes place?

61. Commenters in this proceeding point out that one advantage of RTT is that it allows communications using the full Unicode character set, as compared with the more limited character set available on TTY transmissions. They point out that besides facilitating communication in languages other than English, this capability allows users to transmit emoticons, graphic symbols that represent ideas or concepts—independent of any particular language—and specific words or phrases that have become integral to text communications in our society. In addition, commenters report that RTT can be equipped with the ability for users to control text settings such as font size and color, to adjust text conversation windows, and to set up text presentation.

62. The Commission seeks comment on the technical feasibility, costs, and benefits of requiring that these features of RTT be supported by a covered service provider's implementation of RTT. How can each of these capabilities meet the needs of people with specific disabilities? For example, can the availability of emoji characters help people with cognitive disabilities better communicate with and receive information from others? How well do special characters and emojis translate into voice, and what are the challenges of and best practices for enabling this capability? Is it necessary or desirable to have characters based on Unicode for them to be accessible to screen readers used by people who are blind, visually impaired or deaf-blind? Similarly, to what extent can the ability to set text style and text presentation layout contribute to usability, readability and comprehension of RTT? Should there be an option for the user, depending on preferences and needs, to configure the display of incoming and outgoing text in a certain way? Finally, the Commission seeks comment on the extent to which these capabilities are affected by the properties of network transmissions.

63. The Commission believes that RTT is appropriately classified as an “electronic messaging service” and that as such, both RTT services and the equipment used with them are subject to the requirements of section 716 of the Act and part 14 of the Commission's rules. 47 CFR 14.10(i). Therefore, the Commission believes that, independently of any rules specific to RTT that are adopted in this proceeding, RTT services and end user equipment used with them must be accessible, usable, and compatible with assistive technologies, as defined by part 14, to the same extent as is currently required for telecommunications and advanced communications services and equipment under the Commission's accessibility regulations. See 47 U.S.C. 617(a)-(b); 47 CFR 14.21. The Commission seeks comment on this position.

64. The Commission also seeks comment on whether it is possible to identify, more specifically than is currently identified by its part 14 rules, certain RTT features or functional capabilities that are needed to meet the communication needs of individuals who are deaf-blind, people with cognitive disabilities, or other specific segments of the disability community. For example, should the Commission require compatibility with certain assistive technologies used by people who are deaf-blind, such as refreshable Braille displays or screen enlargers? In addition to providing emoji's, are there other measures that can be taken or required to make RTT effective for people with cognitive disabilities? For example, should there be a mechanism for slowing up the receipt of text, or an option to enable message turn-taking to make it easier for these individuals to receive and read incoming messages? What features should be incorporated on terminal equipment used by these individuals to allow easy activation and operation of RTT functions?

65. In addition to the above specific capabilities, the DAC recommends that the Commission consider whether compliant RTT equipment and services should be required to support the following telecommunications functions that are available to voice-based telephone users:

• The ability to “transfer a communication session using the same procedures used in voice telecommunication endpoints on the system”;

• The ability to “initiate a multi-party teleconference using the same procedures used in voice telecommunication endpoints on the system”;

• The ability to “use messaging, automated attendant, and interactive voice response systems”; and

• The ability to use caller identification and similar telecommunication functions.

The Commission tentatively concludes that such functions should be available to RTT users as necessary for effective communication, and it seeks comment on this tentative conclusion, including the costs, benefits, and technical feasibility of supporting these functions. The Commission also seeks comment on the extent to which the availability of each of these functions may be affected by how a service provider implements RTT in an IP network.

66. Additionally, the Commission seeks comment on whether to require that compliant RTT provide the ability to participate on multiple calls simultaneously and to leave and access voice and text mail, both of which are also telecommunications functions that must be made accessible to people with disabilities by federal agencies under section 508 of the Rehabilitation Act. See 36 CFR 1194.23, 1194.31(c), (e). Some commenters explain that when retrieving messages from voice mail, text information, including the name of the caller, return number (from caller ID), length of the call, time of the call, and related details could be sent and be viewable on screens. For interactive voice response prompts, they report, instant text of all the choices could be made available to callers.

67. The Commission proposes to require that handsets and other end user devices subject to an RTT support requirement be required to support each of the RTT functionalities discussed above for service providers. The Commission seeks comment on this proposal, including its costs, benefits, and technical feasibility. To what extent are these features and functions under the service provider's or manufacturer's control? Are there other features and functionalities that should be required for end user devices to effectively support RTT? Further, to what extent can such features and functionalities and their associated benefits be obtained if RTT is not fully incorporated as a native function of end user devices, but is merely available for users to download or install as an over-the-top application? To what extent would it make a difference if an RTT application is installed as a “default” app prior to sale of a handset or end user device?

68. In order to ensure that individuals can use a single device on multiple networks, to the same extent as is currently possible with voice communications, there must be a stable interface between user equipment and VoIP networks. For example, if subscribers to one wireless provider were to lose RTT communication capability when they insert a subscriber identity module (SIM) card for another wireless provider into their smartphones, then the inter-network portability achieved for voice users' smartphones would be unavailable to RTT users, and the Commission's rules may fail to achieve functional equivalence in this critical respect. Therefore, the Commission proposes to require, at a minimum, that covered service providers enable device portability for their RTT services to the same extent as they enable device portability for voice services. The Commission seeks comment on this proposal.

69. The Commission also seeks comment on the extent to which all necessary functionalities for effective use of RTT can be made available through provider-approved devices and applications, or whether third party software applications will be needed for some RTT features and functions. To what extent will consumers need access to third party RTT software applications on user devices to supplement native RTT capabilities that are integrated into such devices, in order to achieve functional equivalence with voice communications? Should the Commission require providers to offer an “app interface” to facilitate access to third party applications?

70. In the event that the Commission adopts requirements for device portability or the enabling of third party applications, or both, it seeks comment on the availability or feasibility of a safe-harbor standard for a user-network interface that could support the RTT capabilities of user devices and applications from multiple manufacturers and providers. Alternatively, are there reasonable performance criteria that could be applied to ensure that a network-user interface can support multiple third party devices and applications?

71. Last, the Commission seeks comment on equipment costs to consumers that may result from the transition from TTY to RTT technology. Specifically, the Commission seeks comment on whether there are measures it could take in the context of this proceeding to ensure the affordability of new terminal equipment or assistive devices that may be needed as a consequence of the migration to RTT technology, and whether such measures are appropriate. The Commission expects that many off-the-shelf VoIP devices will be usable with RTT—eliminating altogether the need for specialized equipment. In addition, the Commission notes that several states have programs that distribute specialized communications equipment to people, often based on their economic need. Similarly, the Commission administers the National Deaf-Blind Equipment Distribution Program, which provides funding for certified state programs to distribute communications equipment and provide related services to low income individuals who are deaf-blind across the United States. 47 CFR 64.610. AARP recommends that carriers seeking to transition to IP systems be required to work with governmental agencies that distribute such assistive equipment to qualified individuals with disabilities. The Commission seeks comment on the appropriateness of this suggestion, and other ways that the Commission can alleviate any burdens that might be associated with acquiring new equipment or software, particularly for those who do not qualify for existing state and federal equipment distribution programs or for those will need to replace devices not covered by such programs.

72. To ensure a seamless TTY-RTT transition, the Commission seeks comment on the best means of informing the public, including businesses, governmental agencies, and individuals with disabilities who will be directly affected by the transition, about the migration from TTY technology to RTT and the mechanics of how this technology will work. To be effective, RTT must be usable by people with and without disabilities. Accordingly, the Commission tentatively concludes that such outreach should not only focus on people with disabilities, but also on the general public that will be communicating with such individuals, and seeks comment on this tentative conclusion. The Commission seeks comment on whether the statutory authority on which it proposes to rely for the purpose of regulating the provision of RTT is sufficient to authorize outreach requirements with respect to RTT. The Commission notes that it has previously used its authority under section 225 of the Act to require service providers to conduct outreach about TRS, and now asks whether it can rely upon such authority to require outreach on RTT. See 47 CFR 64.604(c)(3). What are the most effective methods to provide such notification, and to what extent should covered entities coordinate with consumer and industry stakeholders to develop effective messaging and outreach initiatives? Further, to what extent should the outreach conducted by manufacturers and service providers include outreach to the operators of public TTYs and Wi-Fi phone installations?

73. Prior to the adoption of document FCC 16-53, the Commission's Consumer and Governmental Affairs Bureau, together with three other bureaus within the Commission, granted various wireless carriers temporary waivers of the Commission's requirements to support TTY technology on IP-based wireless networks subject to certain conditions. The Commission proposes that the conditions imposed in the bureaus' waiver orders remain in effect until the full implementation of rules adopted in this proceeding. These conditions include a requirement for waiver recipients to apprise their customers, through effective and accessible channels of communication, that (1) until TTY is sunset, TTY technology will not be supported for calls to 911 services over IP-based wireless services, and (2) there are alternative PSTN-based and IP-based accessibility solutions for people with communication disabilities to reach 911 services. These notices must be developed in coordination with PSAPs and national consumer organizations, and include a listing of text-based alternatives to 911, including, but not limited to, TTY capability over the PSTN, various forms of PSTN-based and IP-based TRS, and text-to-911 (where available). The Commission tentatively concludes that the provision of this information is necessary to ensure that, during the transition period, there is no expectation on the part of consumers with disabilities that TTY technology will be supported by IP-based wireless services, and to ensure that these consumers know that alternative accessible telecommunications options exist, and seeks comment on this belief. The Commission further proposes that all information and notifications about the RTT transition be provided in accessible formats, such as large print, Braille, and other appropriate means to make information accessible to people with disabilities, and seeks comment on this proposal. Are any different or additional notices needed to ensure that consumers are aware of potential issues regarding 911 communications during a TTY-RTT transition?

74. Finally, the Commission tentatively concludes that, consistent with the usability requirements of its rules implementing sections 255 and 716 of the Act (see 47 CFR 6.11(a)(3), 7.11(a)(3)) as well as previous actions by the Commission to educate consumers about TRS (see 47 CFR 64.604(c)(2)), covered entities should be required to implement a mechanism to provide information and assistance during business hours to their consumers regarding the TTY-RTT transition, and seeks comment on this tentative conclusion. The Commission seeks comment on how this can best be achieved. For example, to what extent should covered entities be required to designate staff trained to assist consumers with the complex issues related to the TTY-RTT transition? Are there additional mechanisms for outreach education and assistance that should be adopted?

75. Security Concerns. The Commission seeks comment on security risks that may be associated with the adoption of RTT technology and that require the Commission's attention. The Technology Research Centers point out the availability of technical methods to secure SIP calls, both for call control security and media security. They also caution against “blocking of RTT,” which they say could occur where security or IT management personnel are not aware of the need to support real-time text. They explain that this can be remedied by the use of a “SIP-aware firewall,” which will allow the proper pass-through of RTT once deployed. The Commission seeks comment on these and other security concerns that should be addressed through this proceeding, including the costs, benefits, and technical feasibility of implementing specific security measures.

76. The Commission seeks comment on whether, in addition to requiring the implementation of RTT by wireless service providers, the Commission should amend its rules to require the implementation of RTT in IP-based wireline networks. As discussed above, problems associated with TTY transmissions are not limited to those that occur over IP wireless networks. Because TTYs were not designed for the IP environment, they have not performed well in any IP-based system; in fact, many of the problems associated with TTY use over IP-enabled wireless networks—e.g., dropped packets and data connection stability issues—also occur in wireline networks. Thus, as an initial matter, the Commission seeks comment on the extent to which wireline IP networks can reliably support TTY communications.

77. Moreover, there is considerable information in the record that in any communications environment, TTYs remain inadequate with respect to their speed, their limited character set, and their failure to allow the simultaneous communication enjoyed by voice communications users. The Commission thus next seeks comment on whether the Commission should amend its rules at parts 6, 7, 14, and 64, to allow or require wireline VoIP service providers to support RTT, as the Commission is proposing to do for wireless services. What would be the costs, benefits, and technical feasibility of such requirements? The Commission believes that for RTT to effectively replace TTYs and allow full integration by people with disabilities into our nation's mainstream communications system, the ability to access our nation's wireline VoIP services using RTT will be just as important as the ability to access wireless services, especially if TTY technology is phased out. Many, if not most businesses, government agencies, and retail establishments continue to rely on wireline services, and having telephone access to such enterprises will be necessary for people with disabilities who rely on text to maintain their independence, privacy, and productivity.

78. If the Commission amends its rules governing wireline services to incorporate RTT support obligations, how can the Commission ensure that end users can readily connect to and use such RTT capabilities in wireline IP networks? For example, given that wireline part 68 customer premise equipment such as wired and cordless phones currently cannot readily support real-time text, would it be feasible and practical for wireline VoIP service providers to offer over-the-top RTT applications downloadable to text-capable devices such as smartphones, tablets, and computers, that could then be used to connect to the carrier's VoIP service platform? Should wireline VoIP providers be required to ensure the compatibility of their services with third-party RTT applications present in stand-alone devices or downloaded onto text-capable devices such as smartphones, tablets, and computers? To what extent should wireline VoIP manufacturers have RTT support obligations for their equipment that is otherwise capable of sending, receiving, and displaying text? To the extent that IP-based wireline service providers and manufacturers have an obligation under the Commission's rules to support RTT, should they be required to adhere to the same interoperability requirements, minimum functionalities, and outreach obligations that the Commission proposes to require for wireless VoIP services and end user devices? Finally, is RFC 4103 an appropriate standard to reference as the safe harbor for wireline VoIP services and text-capable end user equipment to ensure interoperability and compliance with the rules proposed for wireless services?

79. The Commission also seeks comment on the appropriate timing for incorporation of RTT capabilities into wireline VoIP services and end user devices, in the event that rules requiring such capabilities are adopted, and the extent to which such timing should be determined by the manufacture or sell date of new devices. Similarly, should requirements for RTT support also be triggered at “natural opportunities”? The Commission also seeks comment on whether RTT would be particularly beneficial in the context of Inmate Calling Services (ICS), particularly given the problems ICS users have encountered in trying to use TTYs, and whether there are specific issues the Commission would need to consider in relation to the use of RTT by inmates.

80. Finally, how should TTY support obligations be modified as wireline networks discontinue their circuit-switched services? Should wireline providers that support RTT on their IP networks be permitted to cease supporting TTY technology at all, and if so, on what timetable? In comments filed in response to the Emerging Wireline Order and Further Notice, AARP has raised concerns about establishing firm dates for the sunset of TTY technology, given that a large number of carriers “serving millions of subscribers, may continue to deliver voice services over legacy facilities for an extended period.” AARP claims that “[a]dopting hard and fast sunset dates may lead to customer confusion, and place undue burdens on some service providers and their customers” and urges that, if the Commission establishes a termination date for TTY technology, it do so only for specific carriers that have filed for relief under section 214 of the Act. The Commission seeks comment on these claims and how it should consider the needs of consumers who still use TTYs in framing rules to address a transition to wireline implementation of RTT.

81. The Commission believes that it has sufficient legal authority to adopt the proposed rules to specify support for RTT communications by wireless IP-based services and equipment. The Commission also believes that it has sufficient legal authority, should it so decide, to amend the Commission's rules to similarly specify support of RTT technology by wireline IP-based services and equipment. Further, the Commission believes that it may rely on the sources of authority identified above, as well as the specific authorities discussed below, to require that RTT provided pursuant to the proposed rule amendments must meet the interoperability, minimum functionality, and outreach requirements proposed above. The Commission seeks comment on these views, as well as whether there are other sources of authority beyond those described herein to support the proposals herein.

82. The Commission believes its proposal to amend § 20.18(c) of its rules to require wireless VoIP service providers to ensure that their services, handsets, and other authorized devices are capable of transmitting 911 calls through RTT technology over IP networks, in lieu of transmitting 911 calls from TTYs, is within the Commission's Title III authority to regulate wireless service providers. Title III authorizes the Commission, among other things, to prescribe the nature of the service to be rendered by licensed service providers and to modify the terms of existing licenses where such action will promote the public interest, convenience, and necessity. 47 U.S.C. 303(b), (g), 316(a)(1). The Commission relied on Title III in regulating the location capabilities of wireless services and handsets and in adopting the rule requiring wireless providers to transmit 911 calls from individuals made on non-handset devices such as TTYs. The Commission further relied on Title III in requiring wireless providers to support text-to-911 service, concluding that Title III confers broad authority to prescribe the nature of the emergency service obligations of wireless providers, including deployment of text-to-911 capabilities.

83. The Commission further believes that its RTT-related proposed amendments to section 20.18 of its rules are within the Commission's direct statutory authority under section 106 of the CVAA to implement recommendations proposed by the EAAC (47 U.S.C. 615c(c)), as well as “to promulgate . . . any other regulations, technical standards, protocols, and procedures as are necessary to achieve reliable, interoperable communication that ensures access by individuals with disabilities to an Internet protocol-enabled emergency network, where achievable and technically feasible.” 47 U.S.C. 615c(g). The Commission relied on this authority to impose text-to-911 requirements on wireless providers and interconnected text service providers, as well as to require bounce-back messaging when a PSAP is unable to accept a text calls. The Commission's determination rested on two grounds: (1) That it was a proper exercise of the agency's authority to promulgate EAAC recommendations, and (2) that it was a lawful exercise of the agency's CVAA authority to promulgate certain “other regulations.” See 47 U.S.C. 615c(g).

84. The EAAC submitted several recommendations to the Commission that appear to be particularly relevant to this proceeding. For example, the EAAC recommended “that the FCC adopt requirements that ensure that the quality of video, text and voice communications is sufficient to provide usability and accessibility to individuals with disabilities based on industry standards for the environment.” The EAAC also recommended “that the FCC remove the requirement for TTY (analog real-time text) support for new IP-based consumer services that implement IP-based text communications that include at a minimum real time text or, in an LTE environment, IMS Multimedia Telephony that includes real-time text.” The Commission seeks comment on whether these or other of the EAAC's recommendations, including those involving the migration to a national IP-enabled network,” provide an additional basis for the Commission to rely on its authority under 47 U.S.C. 615c(g) to adopt the amendments proposed here. The Commission also seeks comment generally on the scope of the Commission's authority under section 106 of the CVAA with respect to adoption of rules governing access to emergency services via RTT. 47 U.S.C. 615c.

85. The Commission also has been granted broad authority to ensure effective telephone access to emergency services that may be relevant here, given the suggested importance of RTT as a means of securing emergency assistance. This includes, for example, the specific delegation of responsibility to the Commission under 47 U.S.C. 251(e)(3) to “designate 911 as the universal emergency telephone number for reporting an emergency to appropriate authorities and requesting assistance,” the Wireless Communications and Public Safety Act of 1999 (codified at 47 U.S.C. 615-615b) and the NET 911 Improvement Act of 2008 (codified at 47 U.S.C. 615a). The Commission seeks comment on the possible relevance of these sources of authority to this proceeding.

86. Generally, the Commission tentatively concludes that the sources of legal authority for the actions taken in connection with the above-described 911 initiatives support the initiative the Commission is launching today, given the similarities—and despite the differences—between them. Major objectives of these 911 initiatives have been to ensure that (1) CMRS and other covered wireless providers provide an interim mobile text solution for this important constituency during the transition to NG911, and (2) the needs of people with disabilities do not get left behind as technology develops. The proceeding here addresses a current gap in the availability of emergency communications services by people with disabilities vis-à-vis those now widely available to the population at large, namely, the disparity in the opportunity to engage in real-time communications with emergency providers. To rectify this deficiency, RTT offers the opportunity to engage in text communications on a real-time basis, which comes much closer to voice than the currently available text-based communications vehicles. Analogous to the earlier 911 initiatives, the above-cited legal authorities support the Commission's use of the measures proposed here to provide people who are deaf, hard of hearing, deaf-blind, and speech-disabled with the opportunity to access real time communications service in emergency situations when the need for such capabilities is most pressing. The Commission seeks comment on its tentative conclusion and assessment.

87. The Commission believes that it is within its authority under sections 251, 255, and 716 of the Act to amend parts 6 and 7 of the Commission's rules to require providers of interconnected wireless VoIP service (as well as manufacturers of equipment used with such services) to support RTT, if readily achievable (under parts 6 and 7), and to amend part 14 to require wireless providers of VoIP service (as well as manufacturers of equipment used with such services) not subject to parts 6 and 7 to support RTT, unless this requirement is not achievable (under part 14). Likewise, given that the Commission seeks comment above on whether to provide for support of RTT on wireline networks, the Commission notes its belief that the Commission has sufficient authority under these provisions to amend its rules to similarly require providers of wireline VoIP services and manufacturers of equipment used with such services to support RTT, should the Commission so decide. The Commission further believes that these sections provide sufficient authority to impose requirements to ensure that RTT is compatible with assistive technologies used by people with disabilities, such as refreshable Braille displays used by people who are deaf-blind, and seeks comment on this position.

88. Section 255 of the Act requires providers of telecommunications service and manufacturers of telecommunications and customer premises equipment to ensure that their services and equipment are accessible to and usable by individuals with disabilities, if readily achievable. Section 251(a)(2) of the Act provides that telecommunications carriers may not install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 of the Act. 47 U.S.C. 251(a)(2). Section 716 of the Act requires providers of ACS and manufacturers of equipment used with ACS to ensure that their services and equipment are accessible to and usable by individuals with disabilities, unless such requirements are not achievable, and directs the Commission to promulgate implementing regulations. 47 U.S.C. 617. ACS, in turn, is defined to include interconnected and non-interconnected VoIP service, as well as electronic messaging service and interoperable video conferencing service. 47 U.S.C. 153(1). Both sections 255 and 716 of the Act require that, to the extent that it is not achievable to make a service accessible and usable, service providers “shall ensure that [their] equipment or service is compatible with existing peripheral devices or specialized customer premises equipment [SCPE] commonly used by individuals with disabilities to achieve access,” if readily achievable, under section 255 of the Act, or unless not achievable, under section 716 of the Act. 47 U.S.C. 255(d), 617(c). The Commission seeks comment on whether these statutory provisions provide sufficient authority to establish RTT requirements for wireless and wireline services and equipment.

89. Congress intended for these provisions collectively to ensure access by people with disabilities to our nation's telecommunications and advanced communications services, and gave the Commission broad authority to determine how to achieve this objective. 47 U.S.C. 154(i). For example, section 716 of the Act directs the Commission to prescribe regulations that “include performance objectives to ensure the accessibility, usability, and compatibility of advanced communications services and the equipment” and “determine the obligations under this section of manufacturers, service providers, and providers of applications or services accessed over service provider networks.” 47 U.S.C. 617(e)(1)(A), (C). Given the limitations of TTY technology, the Commission believes that RTT is best suited to replace TTY technology for rendering voice IP services accessible to people who are deaf, hard of hearing, deaf-blind, or speech-disabled. The Commission seeks comment on this analysis.

90. The Commission believes that it has sufficient authority under the Act to adopt the proposed amendments to part 64 of its rules to require wireless VoIP service providers to support the provision of and access to TRS via RTT. The Commission also believes that the Commission has sufficient authority under these provisions to adopt similar amendments to require wireline VoIP service providers to support RTT for the provision of and access to TRS.

91. Section 225 of the Act directs the Commission to “ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals in the United States,” and further to prescribe implementing regulations, including functional requirements and minimum standards. 47 U.S.C. 225(b)(1), (d)(1). Congress initially placed the obligation to provide TRS on common carriers “providing telephone voice transmission services,” either on their own or through a state-supported TRS program, in compliance with the implementing regulations prescribed by the Commission. 47 U.S.C. 225(c). Pursuant to the Commission's ancillary jurisdiction, the Commission extended the TRS obligations to interconnected VoIP providers. Included in the TRS obligations of carriers and interconnected VoIP service providers is the obligation to support access to TRS call centers, including through abbreviated 711 dialing access for TRS calls initiated by TTYs. The Commission believes that it has sufficient authority under these provisions to require VoIP service providers to support TRS access via RTT in lieu of requiring support for TTY technology. Section 225 of the Act does not require that TRS be provided or accessed with TTYs. See 47 U.S.C. 225(a)(3). Further, section 225 of the Act expressly directs the Commission to “ensure that regulations prescribed to implement this section encourage . . . the use of existing technology and do not discourage or impair the development of improved technology.” 47 U.S.C. 225(d)(2). The Commission seeks comment on this analysis.

92. As required by the Regulatory Flexibility Act, 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 document FCC 16-53. 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 specified in the DATES section. The Commission will send a copy of document FCC 16-53, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a).

93. In document FCC 16-53, the Commission proposes amendments to its rules to facilitate a transition from outdated text telephony (TTY) technology to a reliable and interoperable means of providing real-time text (RTT) communication over Internet Protocol (IP) enabled networks and services for people who are deaf, hard of hearing, speech disabled, and deaf-blind. Real-time text is a mode of communication that permits text to be sent immediately as it is being created. The Commission's proposals would replace existing requirements mandating support for TTY technology with rules for wireless IP-based voice services to support RTT technology instead. The Commission's action seeks to ensure that people who are deaf, hard of hearing, speech disabled, and deaf-blind can fully utilize and benefit from twenty-first century communications technologies as the United States migrates from legacy circuit-switched systems to IP-based networks and services.

94. The Commission seeks comment on the following:

• Its proposal to replace the Commission's rules that require wireless service providers and equipment manufacturers to support TTY technology with rules defining the obligations of these entities to support RTT technology over IP-based voice services.

• Its tentative conclusions that the technical and functional limitations of TTYs make this technology unsuitable as a long-term means to provide full and effective access to IP-based wireless telephone networks, that there is a need to provide individuals who rely on text communication with a superior accessibility solution for the IP environment, and that RTT can best achieve this goal because it can be well supported in the wireless IP environment, will facilitate emergency communications to 911 services, allows for more natural and simultaneous interactions on telephone calls, will largely eliminate the need to purchase specialized or assistive devices that connect to mainstream technology, and may reduce reliance on telecommunications relay services.

• Its proposal to make the above amendments effective by December 31, 2017, for large wireless service providers and manufacturers of user devices authorized for their services, its proposal to give additional time for compliance by smaller service providers and manufacturers of user devices authorized for their services, and the amount of additional time that would be appropriate.

• Its tentative conclusions that deployment of RTT on IP networks will offer functionality greatly superior to that of TTY technology; that the ability to acquire off-the-shelf RTT-capable devices will be beneficial for text communication users; and that RTT will be more effective than messaging-type services such as short messaging services (SMS) in meeting the communication needs of consumers with disabilities, including their emergency communication needs.

• Its tentative conclusion that for effective RTT communications across multiple platforms and networks, such communications and the associated terminal equipment must be interoperable with one another.

• Its proposal to adopt a standard developed by the Internet Engineering Task Force (IETF), RFC 4103, as a safe harbor technical standard, adherence to which will be deemed to satisfy the interoperability requirement for RTT communications.

• Its proposal that service providers should be required to make their RTT services interoperable with TTY technology supported by circuit-switched networks, and when that requirement should sunset.

• Its proposal to require that wireless providers and equipment manufacturers implementing RTT support the following telecommunications functions:

• Use of the same North American Numbering Plan numbers used for voice, to initiate and receive calls;

• 911 emergency communications in full compliance with all applicable 911 rules;

• transmission of characters within one second of when they are generated, with no more than a 0.2 percent character error rate, which equates to approximately a one percent word error rate;

• simultaneous voice and text transmission;

• TRS access;

• a comprehensive character set and the ability to control text settings such as font size and color, to adjust text conversation windows, and to set up text presentation;

• compliance with the Commission's existing accessibility regulations for “electronic messaging services”; and

• other calling features such as call transfer, teleconferencing, caller identification, voice and text mail, and interactive voice response systems.

• Its proposal to require wireless service providers implementing RTT to enable device portability for their RTT services to the same extent as for voice services and whether to require such providers to enable the use of third party RTT software applications on user devices to supplement the native RTT capabilities.

• Measures that may be needed to ensure the affordability of new terminal equipment or assistive devices that may be needed as a consequence of the migration to RTT technology.

• Its proposal to require wireless service providers to notify their customers about the inability to use TTYs with IP-based services and about alternative means of reaching 911 services.

• The best means of informing the public, including businesses, governmental agencies, and individuals with disabilities who will be directly affected by the transition, about the migration from TTY technology to RTT and the mechanics of how this technology will work.

• Security risks that may be associated with the adoption of RTT technology and that require the Commission's attention.

• Whether to require the implementation of RTT in IP-based wireline networks, including:

• Whether to require wireline voice-over-IP (VoIP) service providers to support RTT, as the Commission is proposing to do for wireless services;

• How to ensure that end users can readily connect to and use RTT capabilities in wireline networks, and whether it would be feasible and practical for wireline VoIP service providers to offer downloadable over-the-top RTT software applications;

• Whether to require VoIP providers to ensure the compatibility of their services with third-party RTT software applications downloaded onto text-capable devices such as smartphones, tablets, and computers;

• The extent to which wireline VoIP manufacturers should have RTT support obligations for their equipment that is otherwise capable of sending, receiving, and displaying text;

• Whether IP-based wireline service providers and manufacturers should be required to adhere to the same interoperability requirements, minimum functionalities, and outreach obligations as those proposed for wireless VoIP services and end user devices;

• Whether RFC 4103 is an appropriate standard to reference as the safe harbor for wireline VoIP services and end user equipment to ensure interoperability and compliance with the rules proposed for wireless services; and

• The appropriate timing for incorporation of RTT capabilities into wireline VoIP services and end user devices.

95. The proposed action is authorized under sections 1, 2, 4(i), 225, 255, 303, 316, and 716 of the Act, section 6 of the Wireless Communications and Public Safety Act of 1999, and section 106 of the CVAA; 47 U.S.C. 151, 152, 154(i), 225, 255, 303, 316, 615a-1, 615c, 617.

96. The RFA directs agencies to provide a description 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.

97. The majority of the Commission's proposals in document FCC 16-53 will affect obligations on telecommunications carriers and providers, VoIP service providers, wireline and wireless service providers, ACS providers, and telecommunications equipment and software manufacturers. Other entities, however, that choose to object to the substitution of RTT for TTY technology under the Commission's new proposed rules may be economically impacted by the proposals in document FCC 16-53.

98. A small business is an independent business having less than 500 employees. Nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. Affected small entities as defined by industry are as follows.

99. Wired Telecommunications Carriers. The Census Bureau defines this industry as comprising “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. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. According to Census Bureau data for 2007, there were 3,188 firms in this category, total, that operated for the entire year. Of this total, 3,144 firms had employment of 999 or fewer employees, and 44 firms had employment of 1000 employees or more. Thus, under this size standard, the majority of firms can be considered small.

100. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,307 carriers reported that they were incumbent local exchange service providers. Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500 employees. Consequently, the Commission estimates that most providers of local exchange service are small entities.

101. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,307 carriers reported that they were incumbent local exchange service providers. Of these 1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 301 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small entities.

102. The Commission has included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard (e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. The Commission has therefore included small incumbent LECs in this RFA analysis, although the Commission emphasizes that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts.

103. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. In addition, 72 carriers have reported that they are Other Local Service Providers. Of the 72, seventy have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and other local service providers are small entities.

104. Interexchange Carriers. Neither the Commission nor the SBA has developed a small business size standard specifically for providers of interexchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 359 carriers have reported that they are engaged in the provision of interexchange service. Of these, an estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 employees. Consequently, the Commission estimates that the majority of IXCs are small entities.

105. Other Toll Carriers. Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable size standard under SBA rules is for Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage. Of these, an estimated 279 have 1,500 or fewer employees and five have more than 1,500 employees. Consequently, the Commission estimates that most Other Toll Carriers are small entities.

106. Wireless Telecommunications Carriers (except Satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. The Census Bureau defines this industry as comprising “establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular phone services, paging services, wireless Internet access, and wireless video services.” Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. For the category of Wireless Telecommunications Carriers (except Satellite), census data for 2007 show 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. 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 entities.

107. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that there are currently 4,600 active cable systems in the United States. Of this total, all but nine cable operators nationwide are small under the 400,000-subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Current Commission records show 4,600 cable systems nationwide. Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers. Thus, under this standard, the Commission estimates that most cable systems are small entities.

108. All Other Telecommunications. The Census Bureau defines this industry as including “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or Voice over Internet Protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” The SBA has developed a small business size standard for this category; that size standard is $32.5 million or less in average annual receipts. According to Census Bureau data for 2007, there were 2,383 firms in this category that operated for the entire year. Of these, 2,346 firms had annual receipts of under $25 million. Consequently, the Commission estimates that the majority of these firms are small entities.

109. TRS Providers. These services can be included within the broad economic category of All Other Telecommunications. Seven providers currently receive compensation from the Interstate Telecommunications Relay Service (TRS) Fund for providing TRS: ASL Services Holdings, LLC; CSDVRS, LLC; Convo Communications, LLC; Hamilton Relay, Inc.; Purple Communications, Inc.; Sprint Communications, Inc. (Sprint); and Sorenson Communications, Inc. However, because Sprint's primary business fits within the definition of Wireless Telecommunications Carriers (except Satellite), Sprint is not considered to be within the category of All Other Telecommunications. As a result, six of the authorized TRS providers can be included within the broad economic census category of All Other Telecommunications. The SBA has developed a small business size standard for All Other Telecommunications, which consists of all such firms with gross annual receipts of $32.5 million or less. Under this category and the associated small business size standard, approximately half of the TRS providers can be considered small.

110. Entities manufacturing equipment used to provide interconnected VoIP, non-interconnected VoIP, or both are generally found in one of two Census Bureau categories, “Electronic Computer Manufacturing” or “Telephone Apparatus Manufacturing.” While the Commission recognizes that the manufacturers of equipment used to provide interconnected VoIP will continue to be regulated under section 255 of the Act rather than under section 716 of the Act, the Commission includes here an analysis of the possible significant economic impact of the Commission's proposed rules on manufacturers of equipment used to provide both interconnected and non-interconnected VoIP because it was not possible to separate available data on these two manufacturing categories for VoIP equipment. In light of this situation, the estimates below are in all likelihood overstating the number of small entities that manufacture equipment used to provide interconnected VoIP and which are subject to the proposed section 716 rules. However, in the absence of more accurate data, the Commission presents these figures to provide as thorough an analysis of the impact on small entities as it can at this time, with the understanding that it will modify its analysis as more accurate data becomes available in this proceeding.

111. Electronic Computer Manufacturing. The Census Bureau defines this category to include “. . . establishments primarily engaged in manufacturing and/or assembling electronic computers, such as mainframes, personal computers, workstations, laptops, and computer servers. Computers can be analog, digital, or hybrid. Digital computers, the most common type, are devices that do all of the following: (1) Store the processing program or programs and the data immediately necessary for the execution of the program; (2) can be freely programmed in accordance with the requirements of the user; (3) perform arithmetical computations specified by the user; and (4) execute, without human intervention, a processing program that requires the computer to modify its execution by logical decision during the processing run. Analog computers are capable of simulating mathematical models and contain at least analog, control, and processing elements. The manufacture of computers includes the assembly of or integration of processors, co-processors, memory, storage, and input/output devices into a user-programmable final product. The manufacture of computers includes the assembly or integration of processors, coprocessors, memory, storage, and input/output devices into a user-programmable final product.” In this category, the SBA has deemed an electronic computer manufacturing business to be small if it has fewer than 1,000 employees. According to Census Bureau data for 2007, there were 425 establishments in this category that operated that year. Of these, 419 had less 1,000 employees. Consequently, the Commission estimates that the majority of these establishments are small entities.

112. Telephone Apparatus Manufacturing. The Census Bureau defines this category to comprise “establishments primarily engaged in manufacturing wire telephone and data communications equipment.” The Census Bureau further states: “These products may be stand alone or board-level components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data communications equipment, such as bridges, routers, and gateways.”

113. In this category, the SBA has deemed a telephone apparatus manufacturing business to be small if it has fewer than 1,000 employees. For this category of manufacturers, Census data for 2007 show that there were 398 such establishments that operated that year. Of those 398 establishments, 393 (approximately 99%) had fewer than 1,000 employees and, thus, would be deemed small under the applicable SBA size standard. Accordingly, the majority of establishments in this category can be considered small under that standard. On this basis, the Commission continues to estimate that approximately 99% or more of the manufacturers of equipment used to provide VoIP in this category are small entities.

114. Computer Terminal Manufacturing. This category “comprises establishments primarily engaged in manufacturing computer terminals. Computer terminals are input/output devices that connect with a central computer for processing.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 2007, there were 43 establishments in this category that operated that year. Of this total, all 43 had less than 500 employees. Consequently, the Commission estimates that the majority of these establishments are small entities.

115. Entities that manufacture equipment (other than software) used to provide electronic messaging services are generally found in one of three Census Bureau categories: “Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing,” “Electronic Computer Manufacturing,” or “Telephone Apparatus Manufacturing.”

116. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this industry as comprising “establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by the 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 established a size standard for this industry that classifies any business in this industry as small if it has 750 or fewer employees. Census Bureau data for 2007 indicate that in that year 939 such businesses operated. Of that number, 912 businesses operated with less than 500 employees. Based on this data, the Commission concludes that a majority of businesses in this industry are small by the SBA standard.

117. Electronic Computer Manufacturing. This category “comprises establishments primarily engaged in manufacturing and/or assembling electronic computers, such as mainframes, personal computers, workstations, laptops, and computer servers. Computers can be analog, digital, or hybrid. Digital computers, the most common type, are devices that do all of the following: (1) Store the processing program or programs and the data immediately necessary for the execution of the program; (2) can be freely programmed in accordance with the requirements of the user; (3) perform arithmetical computations specified by the user; and (4) execute, without human intervention, a processing program that requires the computer to modify its execution by logical decision during the processing run. Analog computers are capable of simulating mathematical models and contain at least analog, control, and programming elements. The manufacture of computers includes the assembly or integration of processors, coprocessors, memory, storage, and input/output devices into a user-programmable final product.” The SBA has developed a small business size standard for this category of manufacturing; that size standard is 1,000 or fewer employees. According to Census Bureau data for 2007, there were 425 establishments in this category that operated that year. Of these, 419 had less 1,000 employees. Consequently, the Commission estimates that the majority of these establishments are small entities.

118. Other Communications Equipment Manufacturing. Entities that manufacture equipment used to provide interoperable and other video conferencing services are generally found in the Census Bureau category: “Other Communications Equipment Manufacturing.” The Census Bureau defines this category to include: “. . . establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment).” In this category, the SBA has deemed a business manufacturing other communications equipment to be small if it has fewer than 750 employees. For this category of manufacturers, Census data for 2007 show that there were 452 such establishments that operated that year. Of those 452 establishments, all 452 (100%) had fewer than 1,000 employees and 448 of those 452 (approximately 99%) had fewer than 500 employees. Between these two figures, the Commission estimates that about 450 establishments (approximately 99.6%) had fewer than 750 employees and, thus, would be considered small under the applicable SBA size standard. Accordingly, the majority of establishments in this category can be considered small under that standard. On this basis, Commission estimates that approximately 99.6% or more of the manufacturers of equipment used to provide interoperable and other video conferencing services are small entities.

119. Entities that publish software used to provide interconnected VoIP, non-interconnected VoIP, electronic messaging services, or interoperable video conferencing services are found in the Census Bureau category “Software Publishers.”

120. Software Publishers. This category “comprises establishments primarily engaged in computer software publishing or publishing and reproduction. This industry comprises establishments primarily engaged in computer software publishing or publishing and reproduction. Establishments in this industry carry out operations necessary for producing and distributing computer software, such as designing, providing documentation, assisting in installation, and providing support services to software purchasers. These establishments may design, develop, and publish, or publish only.” The SBA has developed a small business size standard for software publishers, which consists of all such firms with gross annual receipts of $38.5 million or less. For this category, census data for 2007 show that there were 5,313 firms that operated for the entire year. Of those firms, a total of 4,956 had gross annual receipts less than $25 million. Thus, a majority of software publishers potentially affected by the proposals in document FCC 16-53 can be considered small.

121. Although document FCC 16-53 proposes to require support for RTT in lieu of TTY technologies in all IP-based wireless services, and seeks comment on whether to require the implementation of RTT in IP-based wireline networks, document FCC 16-53, for the most part, does not propose or seek comment on new or modified reporting, recordkeeping, and other compliance requirements. However, document FCC 16-53 seeks comment on the best means of informing the public, including businesses, governmental agencies, and individuals with disabilities who will be directly affected by the transition, about the migration from TTY technology to RTT and the mechanics of how this technology will work.

122. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”

123. Document FCC 16-53 proposes rules intended to replace obsolete TTY technology with RTT to ensure consumer access to IP services via wireless text-based communications and seeks comment on whether to do the same for wireline text-based communications. RTT technology may simplify the accessibility obligations of small businesses, because RTT allows calls to be made using the built-in functionality of a wide selection of off-the shelf devices, and thus may alleviate the high costs and challenges faced by small businesses and customers in locating dedicated external assistive devices, such as specialty phones. Additionally, with the proposal to phase out TTY technology, the burden is reduced for small entities and emergency call centers to maintain such technology in the long term.

124. The Commission proposes an implementation deadline for RTT technology of December 31, 2017, for the wireless providers that offer nationwide service, and manufacturers of end user devices authorized for their services, and to reduce the burden and relieve possible adverse economic impact on small entities, seeks comment on an appropriate deadline for all other wireless providers and equipment manufacturers. In addition, the Commission seeks comment from providers of wireline VoIP services, including small entities, on the appropriate timing for incorporation of RTT capabilities into wireline VoIP services and end user devices.

125. In document FCC 16-53, while the Commission proposes a “safe harbor” technical standard to ensure RTT interoperability, it proposes to allow service providers and carriers to use alternative protocols for RTT, provided that they are interoperable. Further, throughout the item, flexibility is integrated in the proposed requirements in order to take into consideration the limitations of small businesses. For instance, the proposed requirement that equipment manufacturers supporting RTT offer certain functions as native features on VoIP-enabled terminal devices that can send, receive, and display text is subject to the condition that such features be achievable. As such, the Commission anticipates that these proposals will have little to no impact on small entities that are eligible to claim that the requirement is not achievable.

126. The Commission believes that any requirement for service providers and manufacturers to implement outreach and notification to consumers about the transition from TTY to RTT will not require significant additional resources for small entities, and in any event would be outweighed by the need for consumers to understand the changes in the services and associated equipment that they will be receiving.

127. None.

Pursuant to sections 4(i), 225, 255, 301, 303(r), 316, 403, 715, and 716 of the Communications Act of 1934, as amended, and section 106 of the CVAA, 47 U.S.C. 154(i), 225, 255, 301, 303(r), 316, 403, 615c, 616, 617, document FCC 16-53 IS ADOPTED.

The Commission's Consumer Information Bureau, Reference Information Center, SHALL SEND a copy of document FCC 16-53, 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 parts 6, 7, 14, 20, 64, and 67 as follows:

President Obama has made greenhouse gas (GHG) emissions reduction a priority. In 2015, the Administration announced a new target to reduce Federal Government emissions by 40 percent below 2008 levels by 2025. Through Executive Order (E.O.) 13693, Planning for Federal Sustainability in the Next Decade (published at 80 FR 15871, on March 19, 2015), the President established a strategy to reduce GHG emissions across Federal operations and the supply chain, including specific actions to better understand and manage the implications of supply chain emissions. To that end, E.O. 13693 requires the seven largest procuring agencies to implement procurements that take into consideration contractor GHG emissions and directs the Council on Environmental Quality to release an annual inventory of major suppliers that includes information on whether those suppliers publicly disclose GHG emissions and GHG reduction targets. E.O. 13693 supersedes E.O.s 13423 and 13514.

In order to identify opportunities to reduce supply chain emissions, develop and implement procurements that incorporate consideration of those emissions, and develop an accurate annual inventory that includes contractor GHG management practices, greater insight into the scope of GHG management by companies seeking to do business with the Federal Government is needed. This information will help the Government assess supplier GHG management practices and assist agencies in developing strategies to engage with contractors to reduce supply chain emissions as directed in E.O. 13693.

Public disclosure of GHG emissions and reduction goals or targets has become standard practice in many industries, and companies are increasingly asking their own suppliers about their GHG management practices. Performing a GHG inventory provides insight into operations, spurs innovation, and helps identify opportunities for efficiency and savings that can result in both environmental and financial benefits. By asking suppliers whether or not they publicly report emissions and reduction targets, the Federal Government will have accurate, up-to-date information on its suppliers. An annual representation will promote transparency and demonstrate the Federal Government's commitment to reducing supply chain emissions. Furthermore, by promoting GHG management and emissions reductions in its supply chain, the Federal Government will encourage supplier innovation, greater efficiency, and cost savings, benefitting both the Government and suppliers and adding value to the procurement process.

Accordingly, DoD, GSA, and NASA are proposing to revise the FAR to add an annual representation within the System for Award Management (SAM) for offerors to indicate if and where they publicly disclose GHG emissions and GHG reduction goals or targets. This representation would be mandatory only for vendors who received $7.5 million or more in Federal contract awards in the preceding Federal fiscal year. The representation would be voluntary for all other vendors. Additionally, as long as the vendor's emissions are reported publicly—either by the entity itself or rolled up into the public emissions report of a parent company—the emissions would be considered publicly reported.

In addition to adding the new representation at FAR 52.223-ZZ, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, this rule proposes to—

• Revise the definition of “greenhouse gases” at FAR 23.001 to add nitrogen trifluoride, in accordance with the definition in section 19 of E.O. 13693;

• Update the scope sections at FAR sections 23.000 and 23.800;

• Revise the authorities at FAR section 23.801 to add the new E.O. and delete the superseded E.O.s 13423 and 13514;

• Add a new FAR section 23.803, Contractor public disclosure of greenhouse gas emissions and reduction goals (current section 23.803 is redesignated as 23.802);

• Add a prescription at FAR section 23.804(b) for use of the new representation provision 52.223-ZZ. The provision will be required as an annual representation whenever provision 52.204-7 is included in the solicitation. It is therefore applicable to all solicitations, including solicitations for the acquisition of commercial items (including commercially available off-the-shelf items) and acquisitions that do not exceed the simplified acquisition threshold, except as provided in FAR section 4.1102(a); and

• Make other conforming changes in FAR sections 4.1202, 52.204-8, and 52.212-3.

Additionally, in furtherance of E.O. 13653, Preparing the United States for the Impacts of Climate Change (published at 78 FR 66819, on November 1, 2013), DOD, GSA, and NASA are considering the development of means and methods to enable agencies to evaluate and reduce climate change related risks to, and vulnerabilities in, agency operations and missions in both the short and long term, with respect to agency suppliers, supply chain, real property investments, and capital equipment purchases. This consideration reflects growing Federal and public interest in better understanding operational and supply chain risks facing agency suppliers and steps those suppliers are taking to identify and manage those risks. Agency suppliers that are public companies are already subject to requirements to disclose material risks, including relevant risks associated with climate change, per Securities and Exchange Commission Interpretation: Commission Guidance Regarding Disclosure Related to Climate Change (Release Nos. 33-9106; 34-61469; FR-82), including impacts to personnel, physical assets, supply chain and distribution chain. It is in this context that DOD, GSA, and NASA are considering approaches to make disclosures of climate change risk analyses from Government suppliers available to agencies to help inform agency inventory and management of climate related risks to Federal facilities, operations, and missions, including supply chains. Such disclosures might also include whether information is made available to the public, to allow agencies to access the information rather than asking companies to submit reports to the Government. Approaches could include representations like one or more of the following:

DOD, GSA, and NASA welcome thoughts on these and/or other possible FAR revisions addressing climate change that might be appropriately considered to further the objectives described above.

The Federal Acquisition Regulatory Council has made preliminary determinations that the rule will apply, in certain circumstances, to acquisitions under the simplified acquisition threshold (SAT), acquisitions of commercial items, and commercially available off-the-shelf (COTS) items—namely those situations where the contractor has been awarded contracts of more than $7.5 million in goods and services during the prior Government fiscal year. In making its initial determination the FAR Council considered the following factors: (i) The benefits of the policy in furthering Administration goals; (ii) the extent to which the benefits of the policy would be reduced if exemptions are provided; and (iii) the burden on contractors if the policy is applied to these categories of spend.

With respect to the first factor, as explained above, the President has made GHG emissions reduction a priority and E.O. 13693 establishes a strategy to reduce GHG emissions across Federal operations and the supply chain that is rooted in developing an inventory of contractor GHG management practices so that the Government can more fully understand the current state of activity by companies doing business with the Government and work with contractors over time to develop appropriate strategies to reduce supply chain emissions. Unfortunately, there is currently no single place where this information can be easily evaluated and no established method to collect this information. This rule will address that shortcoming and facilitate the Administration's goal by making data available in a standardized format to enhance the Federal Government's ability to track GHG management trends within the Federal supply chain and help to inform agency procurement strategies to reduce supply chain emissions.

With respect to the second factor—impact of excluding commercial items and COTS purchases on the overall benefits of the underlying policy—the FAR Council notes that GHG reporting is becoming increasingly commonplace in the commercial marketplace. Because reporting is done annually by contractors and not by individual acquisition, the FAR Council is concerned that if an exclusion were provided to sellers of commercial items and COTS, a large number of contractors that sell in both the commercial and Federal marketplace would be exempted and the rule would fail at providing the type of information and insight that is needed to help agencies assess supplier GHG management practices. As a general matter, the FAR Council does not seek to burden small businesses or other entities that primarily transact in amounts under the SAT and believes by setting a threshold of $7.5 million, most of those sellers will not be covered.

With respect to the third factor, the FAR Council has sought to minimize burden associated with the disclosure requirement. Specifically, the disclosure will apply only to major Federal suppliers who have been awarded contracts totaling more than $7.5 million in goods and services in the prior Government fiscal year. Based on Fiscal Year (FY) 2015 data, the FAR Council expects this requirement will cover approximately 5,500 unique entities, including about 2,700 small businesses. This represents approximately 3.5 percent of total entities that did business with the Federal Government in FY 2015, and 2.6 percent of small businesses. The FAR Council projects a minimal paperwork burden associated with the disclosure, approximately .25 hours per response for annual reporting for the 5,500 contractor, or 1,375 hours (see discussion on the Paperwork Reduction Act under section VI).

Accordingly, for the reasons set forth above, the FAR Council has made a preliminary determination that it is in the best interest of the Government not to exclude application of the rule for acquisitions, or sellers, of commercial items or COTS, or purchases below the SAT.

Since the rule is not based in statute, the formal determination requirements of 41 U.S.C. 1905, 1906, and 1907 do not apply, but the FAR Council is providing this discussion as part of its commitment to transparency and accountability in the application of new regulatory requirements to these purchases and will consider public feedback in response to this discussion before making a final determination on the scope of the final rule.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity).

E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

DoD, GSA, and NASA do not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) has been performed, and is summarized as follows:

The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C 610 (FAR Case 2015-024), in correspondence.

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat has submitted a request for approval of a new information collection requirement concerning the disclosure of greenhouse gas emissions and reduction goals to the Office of Management and Budget.

A. Public reporting burden for this collection of information is estimated to average .25 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

The annual reporting burden estimated as follows:

Respondents: 5,500.

Responses per respondent: 1.

Total annual responses: 5,500.

Preparation hours per response: .25.

Total response burden hours: 1,375.

B. Request for Comments Regarding Paperwork Burden. Submit comments, including suggestions for reducing this burden, not later than July 25, 2016 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001. Please cite OMB Control Number 9000-0194, Public Disclosure of Greenhouse Gas Emissions and Reduction Goals—Representation, in all correspondence.

Therefore, the DoD, GSA, and NASA propose amending 48 CFR parts 1, 4, 23, and 52 as set forth below:

The revisions read as follows:

The revisions and addition read as follows:

The revision and addition read as follows:

The revision and addition read as follows:

The Council and NMFS manage the bottomfish fishery in federal waters in the CNMI under the Fishery Ecosystem Plan for the Mariana Archipelago (Mariana FEP). The Mariana FEP and implementing Federal regulations currently prohibit medium and large vessels (vessels over 40 ft) from fishing for bottomfish in certain Federal waters around the CNMI. The prohibited areas include waters within approximately 50 nautical miles (nm) of the Southern Islands (i.e., Rota, Aquijan, Tinian, Saipan and Farallon de Medenilla) and within 10 nm of Alamagan Island.

The Council established the prohibited areas in 2008 in response to concerns expressed by CNMI fishermen that Guam bottomfish fishermen would travel to fish in CNMI waters after establishment of the large vessel prohibited fishing area in Guam. CNMI fishermen were concerned that such additional fishing by the vessels from Guam would create localized depletion of bottomfish, gear conflicts, and catch competition.

The CNMI bottomfish fishery has changed since 2008, and the conditions that led the Council and NMFS to establish the prohibited areas are no longer present. Large vessels from Guam have not shown interest in fishing for CNMI bottomfish. The prohibited areas may also be negatively impacting the CNMI bottomfish fishery. Only a few small vessels have been operating on a regular basis, and the few medium and large vessels have faced declining participation, possibly as a result of higher fuel costs that prevent them from traveling beyond the prohibited areas. The CNMI bottomfish fishery may not be achieving optimum yield, and the prohibited areas may be contributing to the potential under-utilization of the bottomfish resource in CNMI.

To address fishery conditions resulting from the BF prohibited areas, the Council recommended that NMFS remove them. The Council and NMFS would continue to manage the fishery under a suite of management requirements that include the specification of annual catch limits and accountability measures, post-season review of catches and effort including against ACLs, requirements for vessel markings, federal catch and sales reporting, and the vessel monitoring system. The fishing requirements for the Marianas Trench Marine National Monument would also remain unchanged.

Amendment 4 is intended to improve the efficiency and economic viability of the CNMI bottomfish fishery. The Council and NMFS will annually review the effects of the proposed amendment. Any future changes would be subject to additional environmental review and opportunity for public review and comment.

NMFS must receive comments on Amendment 4 by the date provided in the DATES section to be considered by NMFS in the decision to approve, partially approve, or disapprove the amendment. NMFS soon expects to publish and request public comment on a proposed rule that would implement the measures recommended in Amendment 4.