Federal Register Vol. 81, No.211,

The Food and Nutrition Service (FNS) published a final rule in the Federal Register, 81 FR 24348, on April 25, 2016, to update the meal pattern requirements for the Child and Adult Care Food Program and extended several of the changes to the National School Lunch Program, School Breakfast Program, and Special Milk Program. The final rule included typographical errors in 7 CFR 210.10(a)(1)(i), 220.8(a)(1), 220.8(o)(1), and 220.8(p)(1), the incorrect information for the serving size of yogurt in the infant meal pattern that appears in 7 CFR 210.10(q)(2), 220.8(p)(2), 226.20(b)(4)(ii)(A) and 226.20(b)(5), and a technical error for offer versus serve in 7 CFR 226.20(o). In addition, FNS is correcting the breakfast cereal sugar limit. The final rule provided a sugar limit of no more than 6 grams of sugar per dry ounce (no more than 21 grams sucrose and other sugars per 100 grams of dry cereal). The intent of that limit was to be consistent with the Special Supplemental Nutrition Program for Woman, Infants, and Children (WIC). However, due to rounding, the breakfast cereal sugar limit in the final rule that appears in 7 CFR 210.10(o)(3)(ii), 210.10(o)(4)(ii), 210.10(p)(2), 220.8(o)(2), 226.20(a)(4)(ii), 226.20(b)(5), and 226.20(c)(1) through 226.20(c)(3) is inconsistent with WIC's breakfast cereal sugar limit of no more 21.2 grams of sucrose and other sugars per 100 grams of dry cereal. This correction amends the breakfast cereal sugar limit to align with WIC's breakfast cereal sugar limit and corrects the other errors described above. Note that the Special Milk Program regulations at 7 CFR part 215 were amended in the final rule, but no technical corrections are necessary in this amendment.

Accordingly, 7 CFR parts 210, 220, and 226 are corrected by making the following correcting amendments:

The Food and Nutrition Service published a final rule in the Federal Register, 81 FR 23086, on April 19, 2016, to amend Food Distribution regulations at 7 CFR part 250 to revise and clarify requirements to ensure that USDA donated foods are distributed, stored and managed in the safest, most efficient and cost-effective manner, at State and recipient agency levels. This final rule correction makes a technical correction in 7 CFR 250.30(c)(2) by correcting the prior amendatory instructions to allow the paragraph at (c)(2) to publish in the CFR in lieu of a “reserved” paragraph. All other information in the final rule remains unchanged.

Accordingly, 7 CFR part 250 is corrected by making the following correcting amendments:

Discussion

On January 15, 2013, we issued AD 2013-02-06, Amendment 39-17327 (78 FR 5710, January 28, 2013), (“AD 2013-02-06”), for all Engine Alliance GP7270 and GP7277 turbofan engines with an HPT stage 2 nozzle, P/N 2101M24G01, 2101M24G02, or 2101M24G03, installed. AD 2013-02-06 required initial and repetitive BSIs and removal from service of these nozzles before further flight if any burn holes were detected in the affected nozzles. AD 2013-02-06 also required removal from service of the affected nozzles at the next engine shop visit. AD 2013-02-06 resulted from a report of inadequate cooling of the HPT stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. We issued AD 2013-02-06 to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

Since we issued AD 2013-02-06, we received another report of inadequate cooling of the HPT stage 1 shroud and stage 2 nozzle, leading to damage to the HPT stage 2 nozzle, burn-through of the turbine case, and in-flight shutdown. This event occurred with HPT stage 2 nozzle, P/N 2101M24G04, 2101M24G05, or 2101M24G06 installed. Investigation revealed that the event was caused by damage to the HPT stage 2 nozzle due to inadequate part cooling. We are issuing this AD to prevent HPT stage 2 nozzle failure, uncontrolled fire, in-flight shutdown, and damage to the airplane.

We reviewed EA Service Bulletins EAGP7-72-190, dated December 6, 2012 and EAGP7-72-262, Revision No. 5, dated December 18, 2015. This service information describes procedures for inspecting the HPT stage 2 nozzle segments.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires initial and repetitive BSIs of the HPT stage 1 shroud and HPT stage 2 nozzle segments and removal from service of these nozzle segments before further flight if one or more burn holes are detected on the HPT stage 2 nozzle or if the HPT stage 1 shroud is found distorted. This AD also requires removal from service of any HPT stage 2 nozzle segment, P/N 2101M24G01, 2101M24G02, 2101M24G03, 2101M24G04, 2101M24G05, or 2101M24G06, at next piece-part exposure.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-1293 and Directorate Identifier 2012-NE-45-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD will affect no engines installed on airplanes of U.S. registry. We also estimate that it will take about two hours per engine to perform a BSI of the HPT stage 2 nozzle. The average labor rate is $85 per hour. Required parts cost about $504,486 per engine. Based on these figures, we estimate the cost of this AD to U.S. operators to be $0.

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain PW PW4164, PW4164-1D, PW4168, PW4168-1D, PW4168A, PW4168A-1D, and PW4170 turbofan engines. The NPRM published in the Federal Register on April 20, 2016 (81 FR 23217) (“the NPRM”). The NPRM was prompted by several instances of fuel leaks on PW engines installed with the Talon IIB combustion chamber configuration. The NPRM proposed to require initial and repetitive inspections of the affected fuel nozzles and their replacement with parts eligible for installation. We are issuing this AD to prevent failure of the fuel nozzles, which could lead to engine fire and damage to the airplane.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta Air Lines (Delta) requested that the definition of an “engine shop visit” be defined as the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges. Delta requested this change so that the definition of an engine shop visit in this AD would be consistent with prior ADs.

We disagree. The redefined shop visit interval as requested would result in less frequent replacements of fuel nozzles and an unacceptable fleet risk. We did not change this AD.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed.

We reviewed PW Alert Service Bulletin (ASB) PW4G-100-A73-45, dated February 16, 2016. The ASB describes procedures for inspecting and replacing the fuel nozzles. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD will affect 72 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2.2 hours per engine to perform each inspection and 48 hours per engine to replace the fuel nozzle. The average labor rate is $85 per hour. We also estimate that parts cost would be $15,780 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,443,384.

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on July 28, 2016 (81 FR 49575). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6990.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 49575, July 28, 2016) or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed.

Turbomeca S.A. has issued Mandatory Service Bulletin (MSB) 292 72 0848, Version B, dated April 13, 2016. The MSB describes procedures for reducing the life limit of the centrifugal impellers affected by an anomaly that occurred during the grinding operation required by modification TU376. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 3 engines installed on helicopters of U.S. registry. We also estimate that it would take about 22 hours per engine to comply with this AD. The average labor rate is $85 per hour. Required parts cost about $96,518 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $295,164.

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

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

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

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

I. Introduction

In a document published in the Federal Register of March 22, 2016 (81 FR 15173), we announced that we had filed a color additive petition (CAP 6C0305), submitted by Milton W. Chu, M.D. (petitioner), 5800 Santa Rosa Rd., Suite 111, Camarillo, CA 93012. The petition proposed to amend the color additive regulations in § 73.3126 (21 CFR 73.3126) and § 74.3045 (21 CFR 74.3045) to provide for the safe use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for intraocular lenses (IOLs). IOLs are devices made of materials such as glass or plastic and are intended to be implanted to replace the natural lens of an eye (21 CFR 886.3600). The orientation marks are intended to aid the surgeon in visualization and placement of IOLs during lens implantation surgery. Because IOLs are permanently implanted, titanium dioxide and [phthalocyaninato (2-)] copper, in the colored orientation marks, will come into direct contact with a patient's eye for a significant amount of time. These color additives are, therefore, subject to section 721 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379e).

Titanium dioxide is already approved as a color additive for foods (§ 73.575), drugs (§ 73.1575), cosmetics (§ 73.2575), and medical devices (§ 73.3126). Regarding its use in medical devices, titanium dioxide (CAS Reg. No. 13463-67-7, Color Index No. 77891) is currently approved under § 73.3126(b)(1) for use as a color additive in contact lenses in amounts not to exceed the minimum reasonably required to accomplish the intended coloring effect and must meet the identity and specification requirements in § 73.575(a)(1) and (b). Titanium dioxide is exempt from certification under section 721(c) of the FD&C Act because we previously determined that certification was not necessary for the protection of public health (51 FR 24815, July 9, 1986).

[Phthalocyaninato (2-)] copper (CAS Reg. No. 147-14-8, Color Index No. 74160) is currently approved as a color additive under § 74.3045(c)(1) for use in coloring certain non-absorbable sutures for general and ophthalmic surgery, and for use in coloring specific monofilaments used as supporting side struts (haptics) that hold the IOLs in place in the eye, at a level up to 0.5 percent by weight of the suture or haptic material. In addition, it is currently approved as a color additive under § 74.3045(c)(2) for use in coloring contact lenses in amounts not to exceed the minimum amount reasonably required to accomplish the intended coloring effect. We previously determined that batch certification was necessary to ensure the safety of [phthalocyaninato (2-)] copper (34 FR 6777, April 23, 1969).

Under section 721(b)(4) of the FD&C Act, a color additive may not be listed for a particular use unless the data and information available to FDA establish that the color additive is safe for that use. Our color additive regulations at 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive. To establish with reasonable certainty that these color additives intended to color IOL orientation marks are not harmful under their intended conditions of use, we considered exposure to the additives and their impurities, each additive's toxicological data, and other relevant information (such as published literature) available to us.

Regarding the petitioned use, titanium dioxide and [phthalocyaninato (2-)] copper are intended to color orientation marks for IOL materials (polymers) to create white and translucent or opaque blue marks that are typically 100-250 microns (μm) in diameter and 80-150 μm in depth. Titanium dioxide will be used in amounts not to exceed the minimum reasonably required to accomplish the intended coloring effect of the orientation marks. [Phthalocyaninato (2-)] copper will be used at levels not to exceed 0.5 percent by weight of the orientation marks.

To assess safety, we compared an individual's estimated exposure to these two color additives for the petitioned use to color IOL orientation marks to the approved uses of these color additives, including in IOL haptics and opaque contact lenses, because these uses are similar. As part of our previous approval for titanium dioxide used to color contact lenses, we estimated exposure to titanium dioxide from this use to be 270 nanograms per person per day (ng/p/d) over the lens lifetime (51 FR 24815), which does not significantly contribute to the cumulative exposure when compared to the exposure to titanium dioxide from the approved uses of mica-based pearlescent pigments (of which titanium dioxide is a component) in food and pharmaceuticals (Ref. 1). Similarly, we previously estimated exposure to [phthalocyaninato (2-)] copper from the use of surgical sutures, contact lenses, and specific monofilaments used as supporting haptics for IOLs to be 310 ng/p/d, 280 ng/p/d, and 0.3 ng/p/d, respectively (64 FR 23185, April 30, 1999; 51 FR 39370, October 28, 1986; and 52 FR 15944, May 1, 1987). With respect to the petitioned use, we estimated that the worst-case lifetime exposure to titanium dioxide and [phthalocyaninato (2-)] copper used to color orientation marks would be no greater than 0.06 ng/p/d and 0.004 ng/p/d, respectively, over a 70-year lifetime (Ref. 2). This exposure estimate is conservative as it assumes 100 percent migration of the color additives from the IOLs into the ocular fluid of the eye over a lifespan of 70 years following lens implantation. However, we expect that the color additives in the orientation marks will most likely be either chemically bound or otherwise integrated into the lens material, which would limit migration of the color additives into the ocular fluid of the eye. This means that the actual exposures to titanium dioxide and [phthalocyaninato (2-)] copper to color IOL orientation marks are expected to be far less than the worst-case exposure estimates for these color additives and insignificant in comparison to the cumulative exposures from the other approved uses of these color additives that we have already established to be safe (Ref. 2).

In assessing biocompatibility and toxicity of IOLs, we consider the International Standard for intraocular lens testing for biocompatibility (ISO 11979-5) as an appropriate standard. In general, ISO 11979-5 recommends investigations on the following biological endpoints: Cytotoxicity, genotoxicity, local effects after implantation, and sensitization potential, in the context of physicochemical properties.

The petitioner conducted a cytotoxicity study in which cultured cells were exposed to a mixture of titanium dioxide and [phthalocyaninato (2-)] copper in direct contact for at least 24 hours. Both color additives were found to be noncytotoxic in this study. Cytotoxicity studies of [phthalocyaninato (2-)] copper in previous petitions also indicated no cytotoxicity (Ref. 3). Additionally, the toxicology data for [phthalocyaninato (2-)] copper from previous petitions, as well as relevant data found in the Organization for Economic Cooperation and Development's Screening Information Dataset (OECD's SIDS) database, all indicated negative results for genotoxicity, carcinogenicity, implantation safety, and sensitization potential (Ref. 3). Similarly, data on titanium dioxide in OECD's SIDS database reported negative results for genotoxicity and sensitization potential. We conclude that the available toxicology data are sufficient to support the safety of the proposed expanded uses of titanium dioxide and [phthalocyaninato (2-)] copper.

Based on the data and information in the petition and other relevant material, we conclude that the petitioned use of titanium dioxide and [phthalocyaninato (2-)] copper to color orientation marks for IOLs is safe. We further conclude that these additives will achieve their intended technical effect and are suitable for the petitioned use. Consequently, we are amending the color additive regulations in parts 73 and 74 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of titanium dioxide remains unnecessary for the protection of the public health. We also conclude that batch certification of [phthalocyaninato (2-)] copper continues to be necessary to protect the public health.

In accordance with § 71.15 (21 CFR 71.15), the petition and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 71.15, we will delete from the documents any materials that are not available for public disclosure.

We previously considered the environmental effects of this rule, as stated in the March 22, 2016, notice of petition for CAP 6C0305 (81 FR 15173). We stated that we had determined, under 21 CFR 25.32(l), that this action “is of a type that does not individually or cumulatively have a significant effect on the human environment” such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

This rule is effective as shown in the DATES section except as to any provisions that may be stayed by the filing of proper objections. If you will be adversely affected by one or more provisions of this regulation, you may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. You must separately number each objection, and within each numbered objection you must specify with particularity the provision(s) of the regulation to which you object and the grounds for your objection. Within each numbered objection, you must specifically state whether you are requesting a hearing on the particular provision that you specify in that numbered objection. If you do not request a hearing for any particular objection, you waive the right to a hearing on that objection. If you request a hearing, your objection must include a detailed description and analysis of the specific factual information you intend to present in support of the objection in the event that a hearing is held. If you do not include such a description and analysis for any particular objection, you waive the right to a hearing on the objection.

Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov. We will publish notice of the objections that we have received or lack thereof in the Federal Register.

The following references are on display in the Division of Dockets Management (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at http://www.regulations.gov.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and re-delegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR parts 73 and 74 are amended as follows:

In the Federal Register of September 17, 2015 (80 FR 55908), we issued a final rule titled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food” (the final rule) in which we modernized the longstanding current good manufacturing practice requirements in 21 CFR part 110 and added the requirements for facilities subject to registration to establish and implement hazard analysis and risk-based preventive controls for human food. The final rule, which is codified at part 117 (21 CFR part 117), became effective November 16, 2015 (except for the amendment to part 110 in instruction 13, which is effective September 17, 2018, and paragraph (2) of the definition of “qualified auditor” in § 117.3, and §§ 117.5(k)(2), 117.8, 117.405(a)(2), 117.405(c), 117.410(d)(2)(ii), 117.430(d), 117.435(d), 117.475(c)(2), and 117.475(c)(13)) but has compliance dates staggered over several years after publication of the final rule.

We examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the rule.

We are issuing the SECG consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 117 have been approved under OMB control number 0910-0751.

Persons with access to the Internet may obtain the SECG at either http://www.fda.gov/FoodGuidances, or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

In the Federal Register of September 17, 2015 (80 FR 56170), we issued a final rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals” (the final rule) in which we established requirements for facilities subject to food registration to implement current good manufacturing practices and establish and implement hazard analysis and risk-based preventive controls for food for animals. The final rule, which is codified at part 507 (21 CFR part 507), became effective November 16, 2015 (except for paragraph (2) of the definition of “qualified auditor” in § 507.3, and §§ 507.12(a)(1)(ii), 507.105(a)(2), 507.105(c), 507.110(d)(2)(ii), 507.130(d), 507.135(d), 507.175(c)(2), and 507.175(c)(13)) but has compliance dates staggered over several years after publication of the final rule.

We examined the economic implications of the final rule as required by the Regulatory Flexibility Act (5 U.S.C. 601-612) and determined that the final rule will have a significant economic impact on a substantial number of small entities. In compliance with section 212 of the Small Business Regulatory Enforcement Fairness Act (Pub. L. 104-121, as amended by Pub. L. 110-28), we are making available the SECG to explain the actions that a small entity must take to comply with the rule.

We are issuing the SECG consistent with our good guidance practices regulation (21 CFR 10.115(c)(2)). The SECG represents the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.

This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 507 have been approved under 0910-0789.

Persons with access to the Internet may obtain the SECG at http://www.fda.gov/AnimalVeterinary/GuidanceComplianceEnforcement/GuidanceforIndustry/default.htm, http://www.fda.gov/Food/GuidanceRegulation/FSMA/ucm253380.htm, or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the guidance.

From 6 p.m. to 8 p.m. on November 19, 2016, the Coast Guard will enforce regulations in 33 CFR 165.506 for the safety zone in the Delaware River in Philadelphia, PA listed in row (a)(16) in the table in that section. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display.

Our regulations for recurring firework events in Captain of the Port Delaware Bay Zone, appear in § 165.506, Safety Zones; Fireworks Displays in the Fifth Coast Guard District, which specifies the location of the regulated area for this safety zone as all waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline at latitude 39°56′31.2″ N., longitude 075°08′28.1″ W.; thence to latitude 39°56′29″ .1 N., longitude 075°07′56.5″ W., and bounded on the north by the Benjamin Franklin Bridge.

As specified in §  165.506, during the enforcement period no vessel may transit this safety zone without approval from the Captain of the Port Delaware Bay. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.506 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the Federal Register, the Coast Guard will provide the maritime community with advanced notification of this enforcement period via Broadcast Notice to Mariners (BNM).

If the Captain of the Port Delaware Bay determines that the regulated area need not be enforced for the full duration, a BNM to grant general permission to enter the safety zone may be used.

I. Background

In 1998, Congress enacted section 512 of title 17, United States Code, as part of the Digital Millennium Copyright Act (“DMCA”).1 Among other things, section 512 provides safe harbors from copyright infringement liability for online service providers that are 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 to the public on its Web site, and by providing such information to the Copyright Office.3 The safe harbors in subsections 512(b) (for system caching) and (d) (for information location tools) incorporate the notice provisions of section 512(c) and thus also require that notices of infringement be sent to “the designated agent of a service provider” 4 —that is, an agent that has been designated by the service provider as described above.5

The language of section 512(c)(2) makes clear that a service provider must maintain the same contact information required under section 512(c)(2)(A) and (B) both on its Web site and at the Copyright Office.6 A service provider that fails to maintain current and accurate information, both on its Web site and with the Office, may not satisfy the statutory requirements necessary for invoking the limitations on liability in section 512.

As Congress made clear in enacting section 512(c)(2), its expectation was that “the parties will comply with the functional requirements of the notification provisions—such as providing sufficient information so that a designated agent or the complaining party submitting a notification may be contacted efficiently—in order to ensure that the notification and take down procedures set forth in this subsection operate smoothly.” 7 A service provider's failure to maintain up-to-date information would be contrary to that congressional intent, and would substantially undermine the statutory regime, as inaccurate or outdated information could significantly affect the ability of a copyright owner to contact a service provider's designated agent. The end result in such a case would be the same as if the service provider had not designated an agent at all—notifications of claimed infringement cannot effectively be submitted. Because providing inaccurate or outdated information can be functionally equivalent to not designating an agent, it follows that just as designating an agent is a prerequisite for obtaining safe harbor protection,8 keeping that designation current and accurate must be an ongoing prerequisite as well.9

Moreover, the statute specifically directs the Copyright Office to “maintain a current directory of agents,” and authorizes a fee to cover the “costs of maintaining the directory.” 10 The purpose of this central repository of designated agent information—separate and apart from the information required to be maintained on each service provider's Web site—is “[t]o facilitate easy access to the identity of all designated agents” for public use.11 If designated agent contact information contained in the Office's directory is inaccurate or out of date, it would significantly hinder the ability of copyright owners to efficiently contact the service provider's agent. This is especially so because it may be difficult to locate contact information for a designated agent on a service provider's own Web site.12 Thus, in adopting regulations to implement the statute, the Office's ultimate task is to ensure that the directory fulfills its essential purpose as a convenient repository for “current” designated agent information.13

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 interim regulations governing the designation of agents to receive notifications of claimed infringement without the opportunity for a public comment period.14 While the information required to be provided by the interim regulations was originally submitted to the Office in paper hardcopy, the Office later began accepting scanned submissions of paper designations via email. Once received, the Office then scanned the filings, if necessary, and posted them to the directory on its Web site.15 This system has continued to this day.

Over time it has become clear to the Office that the designation process established under the interim regulations needs to be updated to better fulfill the objectives of section 512(c)(2). The paper designation system is inefficient and expensive for service providers, and represents a significant drain on Office resources due to the largely manual process of scanning paper designations and posting them online. Furthermore, the search capabilities of the paper-generated directory, even in its online format, are limited. To effectuate an update of the interim regulations, the Office issued a notice of proposed rulemaking on September 28, 2011 (“NPRM”) proposing a new fully-electronic system through which service providers could more efficiently designate agents and maintain service provider and agent information with the Copyright Office, and the public could more easily search for agents in an online directory.16 At the time of the NPRM, the Office also expressed concern that a sizable portion of the designations in the paper-generated directory appeared to be outdated or for defunct service providers. The Office had examined a small random sampling of designations from the directory, which revealed that a number of existing designations were associated with businesses that had ceased operations.17 Thus, although the interim regulations required a service provider that ceased operations to notify the Copyright Office of such,18 it seemed that few actually did so.19 The Office also noted that although it was unable to “discern the precise percentage of designations that contain outdated information, the number of amended designations that the Office does receive suggests that many designations are probably outdated.” 20

In 2013, the Department of Commerce's Internet Policy Task Force 21 reiterated concerns regarding the accuracy of the Office's existing directory in a paper addressing various issues involving copyright and new technologies. Relying on an industry study, the Task Force found that “the database is not current and reliable.” 22

More recently, to confirm the NPRM's initial assessment of the quality of the information in the current designated agent directory, the Office examined a larger sampling of 500 existing paper designations and found that approximately 70% either had inaccurate information or were for defunct service providers. Specifically, 110 (22%) appeared to be for defunct service providers.23 For the remaining, non-defunct service providers, to determine whether a service provider's designation contained inaccurate or outdated information, the Office compared the information provided in the paper designation to the information the service provider currently provides on its own Web site. As noted above, the DMCA requires a service provider to maintain the same information both on its Web site and at the Copyright Office. Where there is a discrepancy between these sources, it is fair to assume that the information in the Copyright Office's directory, rather than the information on the service provider's own Web site, is out of date, as service providers are more likely to update their own Web sites on a regular basis.

Accordingly, for each of the 390 non-defunct service providers in the sample, the Office assessed whether the telephone number, physical mail address, and email address listed for the designated agent in the Office's directory matched the contact information on the service provider's Web site. The Office found that the Web sites for 20 service providers did not appear to contain any contact information whatsoever. Although these service providers' failure to provide designated agent information on their Web sites renders them ineligible for the section 512 safe harbors, that failure also meant that the Office could not ascertain the accuracy of the designations in the Office's directory one way or the other, because there was no information against which to compare. This left the Office with a sample of 370 service providers that had at least some of the required contact information on their Web sites that the Office could use to compare against the paper designations filed with the Office.24 Out of these 370 designations, 241 (approximately 65%) were out of date, as evidenced by the fact that one or more of the telephone number, physical mail address, or email address listed for a designated agent did not match the contact information on the corresponding service provider's Web site.25

As this analysis shows, the apparent volume of designations in the Office's directory belonging to defunct service providers or containing inaccurate information is extremely high. These findings are particularly concerning because they show that service providers might unwittingly be losing the protection of the safe harbors in section 512 by forgetting to maintain complete, accurate, and up-to-date information with the Copyright Office. These findings are also concerning because the directory in many cases would seem to be an unreliable resource, at best, to identify or obtain contact information for a particular service provider's designated agent.

Though the Office did not yet know the full extent of the inaccuracy of the current directory, the Office issued the NPRM with these general concerns of accuracy, cost, and efficiency in mind. In addition to describing the proposed electronic system, the NPRM sought public comment on modified regulations that would govern the submission and updating of information relating to designated agents through such proposed system.26 In response to the NPRM, the Office received comments from trade organizations and others representing the interests of internet service providers and copyright owners.27

To effectuate the system described in the NPRM, the Library of Congress authorized the necessary software development effort through its Information and Technology Services unit (now called the Office of the Chief Information Officer). Over the past year, the Library has committed development resources to this effort and it is now anticipated that the new electronic system to register designated agents with the Office will be launched on December 1, 2016.

As the software development effort was reaching its final stages, the Office on May 25, 2016 issued a notice of proposed rulemaking to lower the fee for designating an agent through the new system (“Fee NPRM”).28 The Fee NPRM proposed reducing the current fee of $105, plus an additional fee of $35 for each group of one to ten alternate names used by the service provider, to a flat fee of $6 per designation—whether registering a new designation, or amending or resubmitting a previously registered designation.29 The Office solicited comments on the proposed change in fees and received a number of comments in response.30

Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:

The Clean Air Act (CAA) requires that state 1 regulatory agencies implement the emission guidelines and compliance times using a state plan developed under sections 111(d) and 129 of the CAA.

The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants.

Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including OSWI units. Section 129 mandates that all plan requirements be at least as protective and restrictive as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.

States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d) and 129. If a State does not have any existing OSWI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the State (i.e., negative declaration) in lieu of a state plan.

The negative declaration exempts the State from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d)/129 plan.

On March 21, 2011 (76 FR 15372), the EPA established emission guidelines and compliance times for existing OSWI units. The emission guidelines and compliance times are codified at 40 CFR 60, subpart FFFF.

In order to fulfill obligations under CAA sections 111(d) and 129, the State of New York submitted a negative declaration letter to the EPA on November 13, 2006, the State of New Jersey submitted a negative declaration letter to the EPA on April 5, 2006 and the Commonwealth of Puerto Rico submitted a negative declaration letter to the EPA on September 25, 2006.

The submittal of these declarations exempts the State of New York, State of New Jersey and Commonwealth of Puerto Rico from the requirement to submit a state plan for existing OSWI units.

In this Direct Final action, the EPA is amending part 62 to reflect receipt of the negative declaration letters from the State of New York, State of New Jersey and Commonwealth of Puerto Rico, certifying that there are no existing OSWI units subject to 40 CFR part 60, subpart FFFF, in accordance with section 111(d) of the CAA.

The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment.

However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the negative declaration if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

Under the CAA, the Administrator is required to approve a section 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04.

Thus, in reviewing section 111(d)/129 plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA.

Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law.

For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) note, because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition this action does not have tribal implications as specified by Executive Order 13175 because the section 111(d)/129 plan is not approved to apply in Indian country located in the state, and EPA notes will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this section.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2017.

Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

For the reasons stated in the preamble, EPA amends 40 CFR part 62 as set forth below:

This is a summary of the Commission's Report and Order in PS Docket No. 15-91, No. 15-94, FCC 16-127, released on September 29, 2016. The document is available for download at http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0929/FCC-16-127A1.pdf. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

This Report and Order adopts new or revised information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C. 3501-3520). The requirements will be submitted to the Office of Management and Budget (OMB) for review under Section 3507 of the PRA. The Commission will publish a separate notice in the Federal Register inviting comment on the new or revised information collection requirements adopted in this document. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA) the Commission incorporated an 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 the WEA NPRM (80 FR 77289, Dec. 14, 2015). No comments were filed addressing the IRFA regarding the issues raised in the WEA NPRM. Because the Commission amends the rules in this WEA Report and Order, the Commission has included this Final Regulatory Flexibility Analysis (FRFA). This present FRFA conforms to the RFA

2. Today's WEA Report and Order adopts rules to empower alert originators to participate more fully in WEA and to enhance the utility of WEA as an alerting tool. In this WEA Report and Order, we adopt rules that fall into three categories, message content, message delivery, and testing and outreach.

3. Specifically, with respect to message content, we increase the maximum Alert Message length from 90 to 360 characters for 4G-LTE and future networks only. We classify Public Safety Messages as an Alert Message eligible to be issued in connection with any other class of Alert Message. We require Participating Commercial Mobile Service (CMS) Providers to support embedded references, and allow Participating CMS providers to include embedded references in all Alert Message types for the purpose of an industry-led pilot of this functionality. We also require Participating CMS Providers to support transmission of Spanish-language Alert Messages.

4. With respect to message delivery, we require Participating CMS Providers to narrow their geo-targeting of Alert Messages to an area that best approximates the alert area specified by the alert originator. We require that mobile devices process and display Alert Messages concurrent with other device activity. We also require Participating CMS Providers to log Alert Messages, to maintain those logs for at least 12 months, and to make those logs available upon request.

5. With respect to testing and outreach, we require support for State/Local WEA Tests and encourage emergency managers to engage in proficiency training exercises using alert origination software. We require periodic testing of the broadcast-based backup to the C-interface. Finally, we allow federal, state, local, tribal and territorial entities, as well as non-governmental organizations (NGOs) in coordination with such entities to issue Public Service Announcements (PSAs) aimed at raising public awareness about WEA.

6. No commenter raised issues in response to the IRFA included in the WEA NPRM. We conclude that these mandates provide Participating CMS Providers with a sufficient measure of flexibility to account for technical and cost-related concerns. In the event that small entities face unique circumstances that restrict their ability to comply with the Commission's rules, we can address them through the waiver process. We have determined that implementing these improvements to WEA is technically feasible and the cost of implementation is small.

7. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules. 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.

8. Small Businesses, Small Organizations, and Small Governmental Jurisdictions. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88, 506 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small.

9. Wireless Telecommunications Carriers (except satellite). This industry comprises 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. The appropriate size standard under SBA rules for the category Wireless Telecommunications Carriers (except satellite) is that a business is small if it has 1,500 or fewer employees. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of fewer than 1000 employees. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small.

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

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

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

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

14. 700 MHz Guard Band Licensees. In 2000, in the 700 MHz Guard Band Order, the Commission adopted size standards for “small businesses” and “very small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business in this service is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $40 million for the preceding three years. Additionally, a very small business is an entity that, together with its affiliates and controlling principals, has average gross revenues that are not more than $15 million for the preceding three years. SBA approval of these definitions is not required. An auction of 52 Major Economic Area licenses commenced on September 6, 2000, and closed on September 21, 2000. Of the 104 licenses auctioned, 96 licenses were sold to nine bidders. Five of these bidders were small businesses that won a total of 26 licenses. A second auction of 700 MHz Guard Band licenses commenced on February 13, 2001, and closed on February 21, 2001. All eight of the licenses auctioned were sold to three bidders. One of these bidders was a small business that won a total of two licenses.

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

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

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

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

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

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

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

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

23. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The Small Business Administration has established a size standard for this industry of 750 employees or less. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 819 establishments operated with less than 500 employees. Based on this data, we conclude that a majority of manufacturers in this industry is small.

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

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

26. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent. There are also 2,117 low power television stations (LPTV). Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.

27. The Commission has, under SBA regulations, estimated the number of licensed NCE television stations to be 380. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. The Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.

28. In the WEA Report and Order, we amend our Part 10 rules for Participating CMS Providers, as defined in the WEA rules, to require them to create and maintain logs of Alert Messages received at their Alert Gateway from FEMA IPAWS, and to make available to emergency management agencies information about the measures they take to geo-target Alert Messages transmitted by that agency.

29. We consider compliance costs associated with the alert logging and geo-targeting disclosure rules that we adopt today to be reporting and recordkeeping costs. These costs include a one-time expense to establish the Alert Gateway logging capability for the few Participating CMS Providers that may not already have this capability, and the small, annual expense of automatically generating and maintaining alert logs, and the potentially larger expense of the employment of a clerical worker to respond to emergency management agencies' requests for alert log data or requests for information about geo-targeting. These alert logging and reporting requirements represent a somewhat more lenient version of the alert logging requirements we proposed in the WEA NPRM. To the extent these costs may still present a burden to non-nationwide Participating CMS Providers, we offer such entities an extended timeframe for compliance with our alert logging requirement in order to allow them to standardize appropriate gateway behavior and integrate any updates into their regular technology refresh cycle.

30. The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its conclusions, 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.”

31. The compliance requirements in this WEA Report and Order have been adjusted to accommodate the special circumstances of non-nationwide Participating CMS Providers with respect to our WEA geo-targeting requirements and our alert logging requirements. According to the Annual Competition Report, “there are four nationwide providers in the U.S. with networks that cover a majority of the population and land area of the country—Verizon Wireless, AT&T, Sprint, and T-Mobile.” Consistent with the Annual Competition Report, we refer to other providers with “networks that are limited to regional and local areas” as non-nationwide Participating CMS Providers. We allow non-nationwide Participating CMS Providers one year within which to comply with our WEA geo-targeting rules and two years to comply with our alert logging rules, instead of sixty days from the rules' publication in the Federal Register, in light of a non-nationwide Participating CMS Provider's inability to meet that standard immediately, and our concern that other non-nationwide Participating CMS Providers may be similarly situated. We believe that applying the same rules equally to all entities in this context is not necessary to alleviate potential confusion from adopting different rules for Participating CMS Providers because most consumers do not have insight into the relative accuracy of various Participating CMS Providers geo-targeting capabilities, and because alert logging is not a consumer facing service. We believe, and the record in this proceeding confirms, that the costs and/or administrative burdens associated with the rules will not unduly burden small entities, particularly in light of the special consideration we provide to them. These requirements will implicate no additional legal concerns, and will require no additional professional assistance for non-nationwide Participating CMS Providers.

32. Based on our review of the record, we find that it is practicable for all Participating CMS Providers, including non-nationwide Participating CMS Providers, to implement WEA improvements without incurring unduly burdensome costs, especially considering the special treatment that we afford non-nationwide Participating CMS Providers. The WEA Report and Order recognizes that technical and operational issues must be addressed before compliance can be required, and allows sufficient time for nationwide and non-nationwide Participating CMS Providers to achieve compliance with today's rules.

33. In considering the record received in response to the WEA NPRM, we examined additional alternatives to ease the burden on non-nationwide EAS Participants. These alternatives included adopting longer compliance timeframes than those initially proposed; requiring Participating CMS Providers to support WEA Alert Messages that contain only 360 characters, as opposed to 1,380, as considered by the Updated START Report; requiring support for only additional languages that are currently supported by standards, as opposed to others as initially proposed; and allowing Participating CMS Providers geo-target an Alert Message to an area that “best approximates” the target area, as opposed to one that is “no larger than” the target area using device-based geo-fencing techniques, as proposed. Additionally, the rules adopted in this WEA Report and Order are technologically neutral in order to enable small entities flexibility to comply with our rules using technologies offered by a variety of vendors. Finally, we sought further comment on some issues where the record demonstrated that it would be premature to adopt rules at this time, particularly for non-nationwide CMS Providers.

34. Finally, in the event that small entities face unique circumstances with respect to these rules, such entities may request waiver relief from the Commission. Accordingly, we find that we have discharged our duty to consider the burdens imposed on small entities.

35. The legal basis for the actions taken pursuant to this WEA Report and Order is contained in 47 U.S.C. 151, 152, 154(i) and (o), 301, 301(r), 303(v), 307, 309, 335, 403, 544(g), 606 and 615 of the Communications Act of 1934, as amended, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act.

36. None

37. The Commission will send a copy of this Report & Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

A. Alert Message Content

38. We amend Section 10.430 to expand the character limit for Alert Messages from 90 to 360 characters for 4G-LTE and future networks. A 360-character maximum Alert Message length balances emergency managers' needs to communicate more clearly with their communities with the technical limitations of CMS networks. While Hyper-Reach states that support for “1,000+” characters would be preferable because it would be consistent with the START Report's findings that messages longer than 1,380 characters produce “better outcomes for interpretation, personalization and milling, than did the standard 90-character WEA message,” this approach is not supported by the weight of the record. Beaufort County cautions, for example, that “people will stop reading” Alert Messages once they get past the second screen of text, diminishing the value of any additional characters that extend beyond that, and moreover, longer Alert Messages may contribute to distracted driving. On balance, we find that a 360-character maximum for Alert Message text “is appropriate for disseminating official, targeted, immediate, and actionable information.” We note that establishing 360 characters as the maximum character length leaves emergency managers free to issue Alert Messages that are shorter than 360 characters in appropriate situations. We defer to emergency managers' experience and best practices to determine the appropriate message length for their particular needs.

39. We also find that expanding the maximum character length to 360 for 4G-LTE networks is technically feasible. As we observed in the WEA NPRM, CSRIC IV recommended that the Commission expand the character limit for WEA Alert Messages on 4G LTE networks to a maximum of 280 characters, pending confirmation by the Alliance for Telecommunications Industry Solutions (ATIS) that such an increase would be feasible. Not only did ATIS' feasibility study conclude that it was feasible for 4G-LTE networks to transmit 280-character WEA Alert Messages, but it found that Participating CMS Providers could transmit 360-character Alert Messages just as easily. ATIS found that transmission of WEA Alert Messages longer than 360 characters, on the other hand, would cause additional delays in the delivery of the Alert Message and could drain battery life. Commenting Participating CMS Providers and device manufacturers agree. In addition to the feasible steps that compliance with this rule will require Participating CMS Providers to take, FEMA states that the increased message length will require “software modifications to CAP message authoring tools, IPAWS OPEN, [and] the ‘C’ Interface.” We find that we can achieve our goal of expanding the maximum character limit for WEA Alert Messages on 4G-LTE networks without presenting WEA stakeholders with undue technical burdens.

40. We also find, however, that we should continue to allow Participating CMS Providers to transmit 90-character Alert Messages on legacy networks until those networks are retired. While many public safety commenters, including APCO and Harris County OSHEM, state that it would be feasible and desirable to support 360-character Alert Messages on legacy networks by linking together (concatenating) multiple 90-character messages, we are convinced by AT&T that message concatenation would be problematic because “[m]essages are not guaranteed to be received by the device in the correct order,” which would likely cause confusion that would be exacerbated during the pendency of multiple alerts. Further, according to AT&T, concatenating 90-character Alert Messages on legacy networks would have an adverse effect on mobile device battery life. T-Mobile, Sprint and Microsoft agree that, unlike 4G-LTE networks, it would be infeasible to expand the character limit for legacy networks due to the technical limitations of those networks, and because of financial disincentives to continue to update networks that will soon be retired. The risks that public confusion and other complications would result from Alert Message concatenation are too great for public safety messaging where the potential for panic is heightened, and the consequences of misinterpretation could be deadly.

41. Emergency managers will be free to transmit an Alert Message containing as many as 360 characters as of the rules' implementation date. FEMA IPAWS will make this possible, while also ensuring that all community members in the target area, including those on legacy networks, can receive an Alert Message, by automatically generating a 90-character Alert Message from the CAP fields of a 360-character message for distribution on legacy networks whenever an emergency manager transmits only a 360-character Alert Message. Once a CMS network is able to support 360-character messages, it will cease to receive the 90-character version, and begin to receive the full 360-character version instead. CSRIC IV and FEMA attest that this co-existence of 90- and 360-character Alert Messages is technically feasible. Indeed, FEMA IPAWS already treats Alert Messages that do not contain free-form text in this manner, and their approach is consistent with the methodology that the Participating CMS Provider Alert Gateway will use to process Alert Messages in multiple languages. For example, if FEMA IPAWS receives an Alert Message today without free-form text, it will use the CAP parameters [hazard][location][time][guidance][source] to generate Alert Message text along the lines of “Tornado Warning in this area until 6:30 p.m. Take Shelter. Check Local Media.—NWS.” The CMS Provider Alert Gateway will send the longer free-form message to devices on 4G-LTE networks, and the automatically generated 90-character Alert Message to mobile devices on legacy networks. Pursuant to the approach we adopt today, no matter how an alert originator transmits a WEA Alert Message, members of their community in the target area will receive a version of it.

42. Increasing the maximum character length for WEA Alert Messages will produce valuable public safety benefits. Emergency managers state that the current 90-character limit is insufficient to communicate clearly with the public because 90-character Alert Messages rely on difficult-to-understand jargon and abbreviations. Expanding the character limit will reduce reliance on these potentially confusing terms and will allow emergency managers to provide their communities with information that is clear and effective at encouraging swift protective action. The value of this benefit will be increased when taken together with several of the improvements that we adopt in this Report and Order. For example, according to Jefferson Parish Emergency Management, the additional characters are necessary to adequately communicate critical information, such as shelter locations, that could prevent unnecessary loss of life and property damage. The additional characters will also support the inclusion of embedded references in Alert Messages, help facilitate message comprehension for individuals with disabilities, and will facilitate the translation of English-language Alert Messages into the Spanish language. Further, our approach to the co-existence of 90- and 360-character Alert Messages has the additional benefit of ensuring that emergency managers will be able to simply initiate one 360-character Alert Message in instances where every second counts. In sum, this action will improve the likelihood that the public will understand and properly respond to WEA Alert Messages, increasing the likelihood that WEA will save lives.

43. We amend Section 10.400 to create a fourth classification of Alert Message, “Public Safety Message.” The current rules only provides for three classes of WEA: (1) Presidential Alert; (2) Imminent Threat Alert; and (3) AMBER Alert. For an alert originator to issue an Alert Message using WEA, it must fall within one of these three classifications. Whereas we proposed to name this new Alert Message classification “Emergency Government Information” in the WEA NPRM, we agree with FEMA that it should be named “Public Safety Message” because the title “Emergency Government Information” is “vague and could be confusing,” and because FEMA's recommended title more accurately describes the intended message content. We define a Public Safety Message as “an essential public safety advisory that prescribes one or more actions likely to save lives and/or safeguard property,” as we proposed. By defining Public Safety Messages in this way and by tailoring their use as we describe below, we strike an appropriate balance between some commenters' requests for discretion in the use of this new Alert Message classification, and others' warnings that Public Safety Messages may be overused and contribute to alert fatigue if they are defined in an over-inclusive manner.

44. Public Safety Messages will only be eligible for issuance in connection with an Imminent Threat Alert, an AMBER Alert, or a Presidential Alert, as recommended by AT&T, CTIA and several emergency management agencies. We do not expand the definition of an “emergency” situation in which it is appropriate to issue an Alert Message so as to avoid alert fatigue. Instead, we add a tool for emergency managers to better communicate with the public during and after emergencies, in a manner that naturally complements existing Alert Message classifications. We note that several commenters state that our new Alert Message classification should be eligible for issuance even in the absence of another Alert Message type. If we were to allow Public Safety Messages to stand alone, however, it would expand the definition of an “emergency” during which the issuance of a WEA Alert Message is appropriate, contrary to our reasoning in the WEA First Report and Order that the existing Alert Message classifications are sufficient to communicate information about “bona fide emergencies.” Further, we believe that a broader definition of an “emergency” would risk increasing alert fatigue and consumer opt out.

45. Any entity authorized to use WEA may initiate Public Safety Messages. Some commenters state that we should limit eligibility to issue Public Safety Messages to government entities. This may be because it would not make sense for non-governmental entities to issue Alert Messages under our proposed title, “Emergency Government Information.” Moreover, we agree with the majority of emergency managers treating the issue that all entities that have completed FEMA IPAWS alert originator authorization process may send Public Safety Messages. We thus defer to FEMA, as we have done since WEA's deployment, to determine the suitability of agencies as WEA alert originators.

46. Within this framework, we agree with commenters that the development of best practices around the use of Public Safety Messages will help ensure that this new Alert Message classification is used appropriately. NYCEM offers a number of best practices that would help inform emergency managers' determination of whether it is appropriate to send a Public Safety Message. These best practices include answering the following questions prior to initiating a Public Safety Message: “ ‘Is your emergency operations center activated?' `Has a competent, authorized party declared a state of emergency and/or are emergency orders being issued?' `Is there a need for broad public action or awareness of a condition that is occurring or likely to occur?' `Will the message prevent public fear or serve to preserve critical public safety functions that are (or could be) overwhelmed (e.g., inappropriate use of 911)?’ ” We encourage emergency management agencies to build upon these best practices and incorporate them into any alert origination training modules that they may develop for their staff. We expect that emergency managers will be best positioned to determine the specific situations in which it is appropriate to issue Public Safety Messages. We will monitor the use of this new Alert Message classification, and will take further action in the event it becomes evident that our adopted definition is either too narrow or too broad.

47. We do not agree with commenters that, rather than create a new Alert Message classification, we should clarify that the types of Alert Messages that would be issued as Public Safety Messages can be issued as Imminent Threat Alerts. The term “Imminent Threat Alert” is defined in our rules as “an alert that meets a minimum value for each of three CAP elements: Urgency, Severity, and Certainty.” Public Safety Messages would not fit within this definition because the “severity” and “urgency” elements of an Imminent Threat Alert describe the underlying imminently threatening emergency condition, whereas Public Safety Messages are intended to provide supplemental instructions about how to protect life or property during an AMBER Alert, Presidential Alert, or Imminent Threat Alert. We anticipate that this separate and broader applicability for Public Safety Messages will make them more versatile emergency management tools than if we were to limit such Alert Messages to the preexisting definition of an Imminent Threat Alert.

48. In addition to tailoring the scope of emergency managers' use of Public Safety Messages, we also take steps to ensure that the public receives Public Safety Messages in an appropriate manner. Specifically, we amend Section 10.280 to specify that Participating CMS Providers shall provide for their subscribers to receive Public Safety Messages by default, and may provide their subscribers with the option to opt out of receiving Public Safety Messages if they decide that they no longer wish to receive them. We agree with the majority of commenters that the public should be opted in to receiving Public Safety Messages by default because the information that they provide is essential by definition. We agree with Hyper-Reach that treating Public Safety Messages in this manner ensures that a greater percentage of the public will receive the information that Public Safety Messages are intended to provide than would be possible if the public were opted out of receiving Public Safety Messages by default.

49. Further, we allow, but do not require Participating CMS Providers to associate a unique attention signal or vibration cadence with Public Safety Messages. We agree with ATIS that requiring a new, unique attention signal and vibration cadence could create “significant technical impacts” for currently deployed WEA-capable mobile devices. We also agree with FEMA, however, that “the option to silence alerts that do not present an immediate threat” may have value in reducing consumer opt out. By allowing Participating CMS Providers to offer this functionality, we allow the market to determine whether or not any costs that may be implicated by these personalization options are outweighed by the benefits. Similarly, we will allow, but do not require Participating CMS Providers to provide their customers with the ability to turn off Public Safety Messages during certain hours. For example, if customers want to receive Public Safety Messages, but only during the daytime, they may be given the option to suppress the presentation of Public Safety Messages during nighttime hours.

50. APCO and many emergency management agencies support our creation of a new Alert Message classification because it “will enable public safety alert originators to take advantage of WEA when helpful, as compared to less secure and less immediate methods they may be employing presently.” We agree with commenters that adding a new Alert Message classification will allow emergency managers to expand their “capabilities of informing the public . . . to keep the residents and community safe and aware of potential situations” during and after emergencies in a manner that complements existing Alert Message classifications. We also agree with Peoria County EMA that a new classification of Alert Messages would allow emergency managers to include specific secondary information, like shelter locations and other helpful disaster recovery instructions in WEA for the first time. Finally, we agree with commenters and CSRIC IV that it is technically feasible to support the transmission of this new Alert Message classification provided the sufficient time that we allow industry to update relevant standards.

51. We require Participating CMS Providers to support embedded references, as proposed. Accordingly, Participating CMS Providers must support the transmission of embedded URLs and phone numbers in WEA Alert Messages. This rule will become effective one year from the rules' publication in the Federal Register. Further, thirty days from the date the rules are published in the Federal Register, we allow voluntary, early adoption of embedded references through an industry-established and industry-led pilot program. With respect to multimedia, we find that the inclusion of multimedia capability in WEA Alert Messages can result in tremendous public safety benefits. At the same time, however, we recognize that additional standards development remains necessary. Accordingly, we seek comment in the Further Notice regarding the establishment of an appropriate regulatory framework and timeframe for incorporating multimedia capability into WEA Alert Messages. In order to facilitate the development of standards for multimedia in the swiftest timeframe possible, we allow voluntary, early prototyping of certain multimedia capabilities in Public Safety Messages 30 months from the effective date of the rules, as described in greater detail below.

52. Participating CMS Providers express concern that allowing embedded references in Alert Messages would risk network congestion, but the weight of the record supports our conclusion that this action will be more likely to reduce network loading than to increase it. The public already accesses public safety and other resources using the data network upon receipt of WEA messages that do not include embedded references. This behavior, known as “milling,” is a predictable public response to receiving an Alert Message, as members of the public will seek to confirm that the indicated emergency condition is indeed occurring, and to gather additional information not provided by the Alert Message to inform their response. Milling is considered undesirable from a public safety perspective because it increases the delay between receiving an Alert Message and taking an appropriate protective action, and from a network management perspective because it increases use of the data network. We agree with FEMA, the National Weather Service (NWS), NYCEM, Dennis Mileti, Professor Emeritus of Sociology at The University of Colorado, and the many emergency managers treating this issue that providing access to additional text and resources through URLs embedded in WEA Alert Messages could actually reduce network congestion by channeling the public's milling behavior through a single authoritative and comprehensive resource. This finding is also supported by the 2014 and 2015 START Reports, which state that providing the public with access to enhanced information in WEA Alert Messages can help to convince people to take protective action more quickly. Upon review of these studies and expert analyses, we are persuaded that embedded references are likely to reduce network load when included in Alert Messages.

53. Finally, Participating CMS Providers who claim that embedded references will result in harmful network congestion have offered no network models, or any other form of rigorous network analysis, to support their proposition that allowing embedded references in WEA would cause or contribute to network congestion. While all network activity contributes to network congestion to some degree, the unsupported assertion of a risk of network congestion cannot be the sole basis for declining to adopt any measure that utilizes the data network, particularly a measure that has been demonstrated to have a statistically significant impact on WEA's ability to save lives. In the absence of data to the contrary, and in light of the significant record outlined above, we conclude that even if support for embedded references were to result in an incremental increase in data network usage in some cases, this increase would be insufficient to affect network performance during emergencies. Further, we observe that many WEA-capable mobile devices are set to offload network usage to Wi-Fi where available by default, and nearly all smartphones make this option available through the settings menu. Thus, many individuals who choose to click on an embedded reference will not use the mobile data network to access them at all.

54. At the same time, however, we seek to ensure that Participating CMS Providers are able to assess the performance of their networks in real-world conditions and have an opportunity to make any necessary adjustments to accommodate embedded references. AT&T and CCA support “moving ahead with a time-limited trial on their wireless network for purposes of determining whether embedded URLs result in unmanageable congestion when included in Amber Alerts.” We therefore allow voluntary, early adoption of embedded references through an industry-established and industry-led pilot. In this regard, we allow Participating CMS Providers, if they choose, to “pressure test” the use of embedded references in Alert Messages in a sample of their network area or subscriber base, prior to full implementation. To this end, Participating CMS Providers may voluntarily coordinate with NCMEC, NWS, FEMA, and other stakeholders to accomplish a targeted, pilot deployment of embedded references in WEA in a particular geographic location, Alert Message classification, or to a particular subset of subscribers thirty days from the rule's publication in the Federal Register, and prior to the effective date of our rule requiring support for embedded references. We encourage all WEA alert initiators to work with Participating CMS Providers as this functionality is piloted and deployed in order to establish best practices for the inclusion of embedded references in Alert Messages, including the development of any network congestion mitigation strategies as appropriate. For example, stakeholders could voluntarily agree to constrain the amount of data that is made available through an embedded reference. We note that NCMEC already states that it intends to use a low-bandwidth (15kB or less), mobile-friendly version of their Web site (missingkids.com) in connection with their issuance of WEA AMBER Alerts. C Spire, FEMA and NWS have suggested that limiting the bandwidth requirements of embedded references will likely mitigate the risk of network congestion by limiting the amount of data that will need to be transferred. We defer to Participating CMS Providers to identify the specific terms and timeframe of any such pilot deployment on their own initiative, as well as to undertake any necessary coordination, whether they do so individually or through a third-party coordinator of their choosing.

55. CSRIC IV and FEMA agree that support for embedded references in alert origination software, IPAWS, the C-interface, and on mobile devices can be enabled through a straightforward process of updating standards and software. The successful use of embedded references will also require the development of appropriate best practices. Specifically, CSRIC IV observes that some individuals, particularly those with feature phones, may not have access to the data connection necessary to access content made available by URLs. We share this concern, and urge emergency managers to continue to convey the most important actionable information through the Alert Message text to ensure that all members of the public are able to receive that information, even if they are unable to access the URL. Commenters also express concern that inadequately prepared web servers or call centers may become overloaded as a result of mass access. NCMEC assures us that the AMBER Alerts Web site is capable of handling the expected increase in traffic, and we urge all alert originators to take appropriate steps to ensure the preparedness of their web hosting service before initiating an Alert Message that contains a URL. Further, we urge emergency managers to consider the capacity of their call centers or hotlines before embedding a phone number in an Alert Message.

56. Finally, commenters express concern that allowing embedded references in Alert Messages may provide an opportunity for a malicious actor to compromise WEA. To the extent that Participating CMS Providers take part in this opportunity to pilot the use of embedded references in WEA Alert Messages, they should take appropriate steps, in concert with their pilot program partners, to ensure the integrity of the embedded references they transmit. We also encourage emergency management agencies to continue to work with FEMA and Participating CMS Providers to ensure the authenticity and integrity of every Alert Message they initiate. For example, NCMEC confirms that it already authenticates the content on every AMBER Alert on its Web site and that it will take measures to ensure the security of any URL that it might embed in a WEA AMBER Alert. We note that all WEA Alert Messages are protected with a CAP digital signature that effectively prevents malicious intrusion into Alert Message content in transit. We also note that industry has already begun to take steps to address any particular cybersecurity issues that may be implicated by allowing URLs to be included in WEA. Pursuant to the recommendation of CSRIC V, ATIS is completing a best practice standard to address potential threat vectors for WEA, including embedded references. We also encourage Participating CMS Providers and alert originators to work with FEMA to develop protocols that may help to mitigate potential risks.

57. Commenters identify the inclusion of embedded references in Alert Messages as the most critical among all of our proposed improvements to WEA. NCMEC, in particular, has found this capability to be paramount to the success of AMBER Alerts. We agree that allowing emergency managers to embed URLs in Alert Messages empowers them to offer the public multimedia-capable, comprehensive emergency response resources. Including an authoritative URL will also likely lead to swifter community response by reducing the likelihood that consumers will seek to verify information through additional sources before taking action. We also agree with commenters that allowing URLs to be included in Alert Messages will improve WEA accessibility, could streamline the public's use of 911 services, and would provide alert originators with a method to ensure the public has access to up-to-date information.

58. In addition to embedded URLs, allowing embedded phone numbers to be included in Alert Messages will offer the public significant public safety benefits. We agree with emergency managers, disability rights advocates and individuals that support including phone numbers in Alert Messages because integrating clickable phone numbers into WEA will provide an accessible method to quickly contact public safety officials. This capability may be particularly relevant to WEA AMBER Alerts where emergency management organizations will often establish special hotlines or call centers to receive reports about missing children that may be reached at a phone number other than 911 that may not be as commonly known. According to FEMA, providing the public with a direct emergency telephone number could hasten emergency response, and help to ensure that calls to 911 will not have to be rerouted. In sum, allowing embedded references to be included in WEA Alert Messages will dramatically improve WEA's effectiveness at moving the public to take protective action.

59. With respect to multimedia, our decision to require support for embedded references in WEA Alert Messages is an important first step towards ensuring that WEA can be used to provide the public with actionable multimedia content during emergencies. The record shows that WEA's effectiveness depends on its ability to help the all members of the public to close the thought-action gap, and that including multimedia content in Alert Messages themselves would hasten protective action taking, reduce milling, and improve Alert Message accessibility. We therefore believe that support for multimedia content has the potential to provide tremendous public safety benefits and should be implemented as soon as technically feasible. Recognizing that further standards development remains necessary to integrate multimedia technology into WEA, we seek comment in the Further Notice on how best to implement the support of multimedia content in WEA Alert Messages in a reasonable timeframe. In particular, as described in greater detail in the Further Notice, we seek comment on the inclusion of thumbnail-sized images, including hazard symbols, in Public Safety Messages on 4G LTE and future networks. In the interim, in order to facilitate the swift development of standards for supporting multimedia content in WEA, we allow the industry to participate in voluntary prototyping of this functionality in Public Safety Messages, in coordination with FEMA, emergency management agencies, and other relevant WEA stakeholders, as of the effective date of our rule requiring support for Public Safety Messages.

60. We adopt a new Section 10.480 requiring Participating CMS Providers to support the transmission of Spanish-language Alert Messages. This, along with Section 10.500(e) of the Commission's WEA rules, which requires “extraction of alert content in English or the subscriber's preferred language,” will provide a framework to ensure that Spanish-language Alert Messages will be processed and displayed properly. Pursuant to this framework, we would expect that Spanish-language WEA Alert Messages would be displayed on and only on WEA-capable mobile devices where the subscriber has specified Spanish as their preferred language.

61. The record demonstrates that it is technically feasible for Participating CMS Providers to support Spanish-language Alert Messages. ATIS has developed standards that support the Alert Gateway, the CMS Provider network and mobile devices in receiving, transmitting and displaying Alert Messages in Spanish as well as English. We applaud ATIS for completing these standards, and encourage their continued efforts to standardize network functionality for Alert Messages in additional languages. According to Microsoft, multilingual alerting is already taking place in other countries.

62. We agree with Participating CMS Providers that they should not be responsible for Alert Message translation. Rather, emergency managers are the entities best equipped to determine message content, including content in other languages. We recognize that some emergency management agencies report that they do not currently have the capability to initiate Alert Messages in languages other than English. Other emergency management agencies, such as Harris County OHSEM, state that they do have this capability, and “NYCEM is in the final stages of preparing to offer . . . [its] 80 most common messages in the 13 most commonly spoken languages in New York City, including American Sign Language,” but those messages would have to be transmitted using alternative alerting platforms until WEA's multilingual alerting capabilities improve.

63. We anticipate that requiring Participating CMS Providers to support Spanish-language Alert Messages where available will encourage other emergency management agencies to continue to develop their multilingual alerting capabilities. Indeed, many emergency managers state that they can use State/Local WEA Tests as a tool to exercise and improve their multilingual alerting capability over time with the help of voluntary community feedback. We do not agree with NYCEM and Clark County OEM, however, that we should facilitate Alert Message translation by requiring Participating CMS Providers to “place a `translate' button/link” in WEA Alert Messages. Rather, we agree with FEMA and the majority of emergency management agencies that automatic translation technologies that may reside on some mobile devices are currently too inaccurate to support emergency messaging.

64. The overwhelming majority of emergency management agencies support expanding WEA's language capabilities because it will help them to reach members of their communities that are currently inaccessible to them. Emergency managers in areas with large Spanish-speaking populations, as well as those in areas popular among tourists, state that requiring support for Spanish-language WEA Alert Messages will be particularly beneficial. We also anticipate that this action will allow emergency managers to better facilitate the inclusion of Spanish-speaking individuals, and particularly those with limited English proficiency, into their emergency response plans.

65. We require Participating CMS Providers to log their receipt of Alert Messages at their Alert Gateway and to appropriately maintain those records for review. Specifically, we adopt a new Section 10.320(g) that will require Participating CMS Providers' Alert Gateways to log Alert Messages as described below. Based on the record, we have modified the rules we proposed in the WEA NPRM in order to accommodate the varied approaches Participating CMS Providers take to alert logging.

• Logging Requirements. Participating CMS Providers are required to provide a mechanism to log the CMAC attributes of all Alert Messages received at the CMS Provider Alert Gateway, along with time stamps that verify when the message is received, and when it is retransmitted or rejected by the Participating CMS Provider Alert Gateway. If an alert is rejected, a Participating CMS Provider is required to log the specific error code generated by the rejection.

• Maintenance of Logs. Participating CMS providers are required to maintain a log of all active and cancelled Alert Messages for at least 12 months after receipt of such alert or cancellation.

• Availability of Logs. Participating CMS Providers are required to make their alert logs available to the Commission and FEMA upon request. Participating CMS Providers are also required to make alert logs available to emergency management agencies that offer confidentiality protection at least equal to that provided by the federal Freedom of Information Act (FOIA) upon request, but only insofar as those logs pertain to alerts initiated by that emergency management agency. We encourage, but do not require, Participating CMS Providers to work with alert origination software vendors to automate transmission of alert log data to emergency managers' alert origination software.

66. We find that compliance with these minimal alert logging requirements will be technically feasible. Indeed, the approach we adopt today is a more flexible and less burdensome alternative to that which we proposed in the WEA NPRM, and allows Participating CMS Providers to take a variety of approaches to achieve compliance. T-Mobile, Verizon, AT&T, Bluegrass Cellular and C Spire already log Alert Messages, and we anticipate that many other Participating CMS Providers may already be doing so as well, as part of their own system maintenance best practices. While Participating CMS Providers have taken different approaches to logging Alert Messages relative to the Trust Model recommended by CMSAAC, we anticipate that those Participating CMS Providers that already do log Alert Messages would log at least the CMAC attributes of all Alert Messages received, and be capable of sending error reports to the FEMA Alert Gateway consistent with those stipulated in the CMSAAC Report. We recognize Verizon's concern that requiring logging of information more granular than CMAC attributes and time stamps, or requiring alert logging at junctures in the WEA system other than the Alert Gateway would “impose burdensome paperwork and IT-related requirements,” but the requirements that we adopt today require only basic logging functionality at the Alert Gateway. We also recognize T-Mobile's concern that a uniform system of alert logging would be required in order to aptly compare Participating CMS Provider alert logs. We do not require Participating CMS Providers to take a uniform approach to alert logging today, only that they log the relevant information, maintain that information and make it available to appropriate parties. Further, the CMSAAC Report already stipulates a standard set of error code messages for communication between Participating CMS Provider and FEMA Alert Gateways. Finally, we recognize CTIA's concern about requiring alert logs to be maintained longer than necessary. By requiring alert logs to be maintained for 12 months, rather than 36, as proposed, we reduce the burden that alert log maintenance may pose for Participating CMS Providers. CTIA observes that a shorter alert log maintenance timeframe would incentivize emergency management agencies to request alert log data after every test or alert out of concern that alert log data may be deleted if they delay. At the same time, however, necessitating emergency management agencies to request logging information after every test is burdensome for both CMS Providers (who must produce this data) and the emergency managers (who must request the data). We believe that requiring that alert logs be retained for one year strikes an appropriate balance that will allow emergency management agencies to request reports less frequently, posing lesser burdens on Participating CMS Providers and emergency management agencies, without requiring providers to retain logs for an extended period of time. Further, circumstances may arise that warrant a retrospective examination of prior log data that represents a sufficient period of time to accurately identify and represent trends or anomalies.

67. Alert logging has been a fundamental aspect of the WEA Trust Model. As we adopt changes to our rules that reflect our four years of experience with WEA and the underlying advancements of technology, it is time to ensure this fundamental component of system integrity is implemented. Authorized WEA alert originators agree that alert logs maintained at the Participating CMS Provider Alert Gateway have potential to increase their confidence that WEA will work as intended when needed. According to emergency managers, this increased confidence in system availability will encourage emergency managers that do not currently use WEA to become authorized. Alert logs are also necessary to establish a baseline for system integrity against which future iterations of WEA can be evaluated. Without records that can be used to describe the quality of system integrity, and the most common causes of message transmission failure, it will be difficult to evaluate how any changes to WEA that we may adopt subsequent to this Report and Order affect system integrity. We disagree with AT&T, Sprint and ATIS that the responsibility for alert logging properly belongs with FEMA IPAWS because FEMA has access to sufficient information to generate these reports. We find that alert logging is particularly important at Participating CMS Providers' Alert Gateway because even though FEMA IPAWS maintains an alert log at their Alert Gateway as well, that alert log alone could not capture and describe alert delivery across the C-interface, which is arguably the most critical interface in the WEA architecture because it describes the connection between the public aspect of WEA (FEMA IPAWS) and the private aspect (CMS Providers). Additionally, the time stamps that we require Participating CMS Providers to log for Alert Message receipt and retransmission may represent a useful model for collecting latency data throughout the WEA system, as proposed in the Further Notice. As discussed in further detail below, developing a stronger understanding of the extent of alert delivery latency is also crucial to building emergency managers' confidence that the system will work as intended when needed. We anticipate that the alert log maintenance requirements that we adopt today will serve to ensure that alert logs are available when needed, both to the Commission and to emergency management agencies. Indeed, any alert logging requirement would be seriously undermined if those logs could be overwritten as soon as they were recorded, or if they could not be reviewed in appropriate circumstances. Further, we observe that the alert log maintenance requirements that we adopt today are consistent with CMSAAC's initial recommendations for the WEA system. Finally, we observe that implementing these CMSAAC-recommended procedures would be beneficial in harmonizing our WEA logging requirements with those already in place for EAS Participants.

68. We narrow our WEA geo-targeting requirement from the current county-level standard to a polygon-level standard. Specifically, we amend Section 10.450 to state that a Participating CMS Provider must transmit any Alert Message that is specified by a geocode, circle, or polygon to an area that best approximates the specified geocode, circle, or polygon. While we initially proposed that Participating CMS Providers should transmit the Alert Message to an area “no larger than” the specified area, the record shows that implementation of such a standard, in the absence of geo-fencing, would routinely and predictably lead to under alerting. We acknowledge, as do many emergency managers, that cell broadcast technology has a limited capacity for accurate geo-targeting. The “best approximates” standard we adopt today, recommended by CSRIC IV and supported by Participating CMS Providers, requires Participating CMS Providers to leverage that technology to its fullest extent, given its limitations. At the same time, as we discuss below, we acknowledge that emergency managers need even more granular geo-targeting than the “best approximates” standard requires. We commend Participating CMS Providers for voluntarily geo-targeting Alert Messages more accurately than our rules require, where possible, in the years since WEA's deployment. We expect that Participating CMS Providers will continue to innovate in order to provide their subscribers with the best emergency alerting service it is feasible for them to offer. In this regard, we clarify that the geo-targeting requirement we adopt today does not preclude Participating CMS Providers from leveraging the location-sensing capability of WEA-capable mobile devices on their networks to geo-target Alert Message more accurately. As discussed below, the Commission will be adopting even more granular, handset-based, geo-targeting requirements. Our ultimate objective is for all Participating CMS Providers to match the target area provided by an alert originator.

69. Some alert originators remain concerned that a “best approximates” standard will continue to result in over-alerting and subsequent consumer opt-out. NYCEM, for example, warns that the “best approximates” approach is vague and risks weakening our current geo-targeting requirement. While we do not adopt specific parameters for what constitutes “best approximates,” we expect Participating CMS Providers to take reasonable efforts to leverage existing technology to its fullest extent, as noted above. We observe that in a recently adopted report, CSRIC V articulates expectations for cell broadcast-based geo-targeting in rural, suburban and urban areas pursuant to a “best approximates” approach. Specifically, in rural areas, CSRIC V expects that Participating CMS Providers would be able to approximate the target area with 30,000 meters of “overshoot.” In suburban areas, where cell broadcast facilities are likely to be more densely deployed, CSRIC V expects that geo-targeting would become more accurate, achieving an average overshoot of five miles. In urban areas, CSRIC V expects that geo-targeting would be more accurate still, averaging two miles of overshoot. We find that these values would satisfy reasonable efforts to “best approximate” the alert area, consistent with our requirement. In this regard, we believe we strike an appropriate balance between the limitations of Participating CMS Providers' current geo-targeting capabilities using cell broadcast, and WEA stakeholders' goal of sending WEA Alert Messages only to those members of the public who are at risk.

70. We find that compliance with this geo-targeting requirement is technically feasible, and, in fact, every commenting CMS Provider except one states that they already use network-based cell broadcast techniques, such as algorithm-based facility selection and cell sectorization, to geo-target Alert Messages to polygonal areas more granular than required by our current “county-level” requirement. In this sense, the rule we adopt today will require most Participating CMS Providers only to continue to employ the techniques that they have been deploying as a matter of best practice. Emergency managers such as the NWS have also already transitioned from county- to polygon-level geo-targeting, and express a need for WEA to keep pace with their ability to forecast with granularity the areas that will be impacted by weather events. We observe that in the event Participating CMS Providers are unable to practice polygon-level geo-targeting, we continue to allow Participating CMS Providers to transmit Alert Messages to an area not exceeding the propagation area of a single transmission site, as described in Section 10.450. We make conforming amendments to Section 10.450, however, to reflect the new geo-targeting standard that we adopt today and specify that “[i]f, however, the Participating CMS Provider cannot broadcast the Alert Message to an area that best approximates the target area, a Participating CMS Provider may transmit the Alert Message to an area not larger than the propagation area of a single transmission site.”

71. Participating CMS Providers' support for polygon-level geo-targeting will produce significant public safety benefits. Relative to county-level geo-targeting, we expect that polygon-level geo-targeting will reduce over-alerting. When the public regularly receives alerts that do not apply to them, it creates alert fatigue, a driving factor behind consumers' decisions to opt out of receiving WEA Alert Messages. Further, the Houston Office of Public Safety and Homeland Security comments that “[c]ounty-level WEA warning is not only inconvenient, but can be dangerous, as protective actions may vary depending on the proximity to the hazard.” Under-alerting also poses severe public safety risks. According to Austin Homeland Security and Emergency Management, under a county-level geo-targeting standard, “if there are no cell towers physically located in the warning area, the alert may not be transmitted at all by some carriers.” This would be impermissible under the “best approximates” standard we adopt today. We also agree with Dennis Mileti, Professor Emeritus of Sociology at The University of Colorado, that with improved geo-targeting, “it is quite likely that milling after a received WEA message would decrease since people would not need to determine if they are in the intended audience for the WEA.” A reduction in milling is desirable because it reduces the delay between the time an Alert Message is received, and the time that the public will begin to take protective action. This reduction in milling behavior is also likely to benefit Participating CMS Providers by reducing network usage at times when their network is otherwise vulnerable to congestion due to the pending emergency event. Finally, we agree with BRETSA and Douglas County Emergency Management that more granular alerting will encourage emergency managers to become authorized as WEA alert originators. Simply put, Participating CMS Providers' support for polygon-level geo-targeting is an important step towards ensuring that everyone affected by an emergency has access to the emergency information provided by WEA, and contributes to the public perception that “if you receive a WEA, take action, because it applies to you.”

72. Our decision to require support for Participating CMS Providers' best approximation of the target area is an important step towards ensuring that WEA Alert Messages can be sent to only those individuals for whom they are relevant. The record shows that over-alerting leads to alert fatigue, residents that ignore the Alert Messages, and public safety officials who refrain from using WEA in emergencies. The record also demonstrates consensus among emergency managers and Participating CMS Providers that we should clear a path forward for even more accurate geo-targeting, and that we should make progress towards the achievement of this goal by adopting an appropriate regulatory framework, and by continuing to collaborate with WEA stakeholders to establish standards and best practices, and to better understand technical issues. Recognizing that standards development and network modifications may be necessary to further improve geo-targeting, in the Further Notice we seek comment on any issues that remain to be addressed and on an appropriate timeframe for compliance.

73. Finally, we take action to ensure that emergency alert originators better understand the manner in which their messages will be geo-targeted. In the WEA NPRM we sought comment on whether to require Participating CMS Providers to report data to alert originators about their provision of WEA along key performance metrics, including the accuracy of geo-targeting. In response, emergency managers observe that information about geo-targeting, in particular, would be helpful to inform their emergency response planning efforts by improving transparency and understanding of IPAWS/WEA among emergency managers authorized to use WEA. Commenters also indicate that this transparency, in turn, could increase WEA adoption by non-participating emergency managers. In light of the demonstrated benefits of improving emergency managers' understanding of the geographic area to which their WEA Alert Messages will be targeted, we require that, upon request from an emergency management agency, a Participating CMS Provider will disclose information regarding their capabilities for geo-targeting Alert Messages (e.g., whether they are using network-based technology to “best approximate” the target area, or whether they are using device-based geo-fencing). A Participating CMS Provider is only required to disclose this information to an emergency management agency insofar as it would pertain to Alert Messages initiated by that emergency management agency, and only so long as the emergency management agency offers confidentiality protection at least equal to that provided by the federal FOIA.

74. We amend Section 10.510 to require WEA-capable mobile devices to present WEA Alert Messages as soon as they are received. We expect that devices engaged in active voice or data sessions on 4G-LTE networks will receive and prominently present WEA Alert Messages as soon as they are available, whereas WEA-capable mobile devices engaged in active voice or data sessions on legacy networks will not be able to receive available Alert Messages until the active voice or data session concludes. This approach is consistent with the ATIS/TIA Mobile Device Behavior Specification's treatment of Alert Message prioritization.

75. We also allow Participating CMS Providers to provide their subscribers with the option to specify how the vibration cadence and attention signal should be presented when a WEA Alert Message is received during an active voice or data session in a manner that does not “preempt” it. Pursuant to the ATIS/TIA Mobile Device Behavior Specification, a “momentary interruption of a voice call or active data session, such as a brief visual, audible and/or vibration indication that a CMAS message has been received, is not considered preemption so long as the voice call/data session is not terminated and facilities to support that voice call or data session are not seized or released.” We note that, according to ATIS, WEA-capable mobile devices currently take a variety of approaches to the use of the vibration cadence and audio attention signal to make the user aware of the receipt of an Alert Message while he/she is engaged in other device activity, but, according to AT&T, it “is possible to display the WEA alert in LTE VoLTE with the alert tone suppressed” during active voice sessions. We encourage Participating CMS Providers to leverage this capability by providing their customers with the option to change the manner in which the common attention signal and vibration cadence are used during active voice and data sessions.

76. This approach reflects the critical importance of a WEA Alert Message to its recipient, while also respecting that the Alert Message recipient may be using their mobile device to engage in a protective action that should not be interrupted, such as placing a call to 911, at the time the Alert Message is received. This approach is consistent with mobile device manufacturers' perspective that giving full priority to WEA Alert Messages during active voice calls “would be distracting to the user,” and that the WEA Alert Message should not disrupt the voice telephony capability of the device. It is also consistent with emergency managers' perspective that the readily recognizable common attention signal and vibration cadence should be presented to the public as quickly as technically possible, particularly during emergency situations where every second is critical. Conversely, we agree with commenters that a “priority access” requirement that would require ongoing voice and data sessions to be terminated by the receipt of a WEA Alert Message would not be in the public interest because it could result in the termination of other critical emergency communications.

77. We require Participating CMS Providers to support State/Local WEA Tests, as proposed in the WEA NPRM. Specifically, we adopt a new Section 10.350(c) to require Participating CMS Providers to support the receipt of State/Local WEA Tests from the Federal Alert Gateway Administrator, and to distribute such tests to the desired test area in a manner consistent with the Commission's Alert Message requirements. We reason that requiring State/Local WEA Tests to be received and delivered in accordance with our Alert Message requirements will ensure that emergency managers have the opportunity to test in an environment that mirrors actual alert conditions and evaluate, for example, the accuracy with which various Participating CMS Providers geo-target Alert Messages in their community. Unlike other Alert Messages, however, consumers will not receive State/Local WEA Tests by default. Participating CMS Providers should provide their subscribers with the option to receive State/Local WEA Tests, and subscribers would have to affirmatively select this option in order to receive these test messages. According to CTIA, “[t]his way, unwanted test messages will not disturb wireless consumers who could become confused or annoyed by test messages and opt out of WEA entirely.” We also agree with Sprint that making State/Local WEA Tests available on an opt-in basis minimizes any risk of call center congestion. Another respect in which a State/Local WEA Test will differ from an actual Alert Message is that we require State/Local WEA Tests to include conspicuous language sufficient to make clear to the public that the message is, in fact, only a test. This will minimize any chance that such test messages might be misconstrued as actual Alert Messages.

78. The 24-hour delivery window that currently applies to RMTs under Section 10.350(a)(2) will not apply to State/Local WEA Tests. Rather, we require that Participating CMS Providers transmit State/Local WEA Tests immediately upon receipt. We agree with commenters that allowing Participating CMS Providers to delay delivery of State/Local WEA Tests would make it impossible for emergency managers to evaluate message delivery latency, and might result in individuals who do opt in to receive State/Local WEA Tests receiving them in the middle of the night, which is unlikely to promote participation. A Participating CMS Provider may not forgo or delay delivery of a State/Local WEA Test, except when the test is preempted by actual Alert Message traffic, or if an unforeseen condition in the Participating CMS Provider infrastructure precludes distribution of the State/Local WEA Test. If a Participating CMS Provider Gateway forgoes or delays a State/Local WEA Test for one of these reasons, it shall send a response code to the Federal Alert Gateway indicating the reason consistent with how we currently require Participating CMS Providers to handle forgone RMTs. We anticipate that allowing Participating CMS Providers to forgo transmittal of a State/Local WEA Test if it is preempted by actual alert traffic or if unforeseen conditions arise will ensure that State/Local WEA Tests do not “overwhelm wireless provides' limited resources, ” as stated by CTIA. We defer to emergency managers to determine how frequently testing is appropriate, given this constraint.

79. We encourage emergency management agencies to engage in proficiency training exercises using this State/Local WEA Testing framework where appropriate. We agree with commenters that proficiency training exercises are a helpful and meaningful way for emergency managers to engage with alert and warning issues. Moreover, we agree with San Joaquin County OES that “proficiency training is an essential element of verifying competency” in the alert origination skill set necessary to issue effective WEA Alert Messages. We observe that our rules allow such proficiency training exercises now. We agree with APCO that alert origination software can be used to support internal proficiency training exercises where emergency managers wish to iterate alert origination best practices in a closed environment, and that the State/Local WEA Testing framework described above is sufficient to support cases where emergency management agencies find it appropriate to involve the public in their WEA exercises. We hope that proficiency training exercises will provide emergency management agencies with a method of generating their own WEA alert origination best practices, particularly with respect to the kinds of enhanced Alert Messages enabled by this proceeding (i.e., Alert Messages up to 360 characters in length that may include embedded references, may be issued in Spanish, and may be intended to supplement an already-issued Alert Message).

80. We find that requiring Participating CMS Providers to support this State/Local WEA Testing framework is technically feasible, requiring only updates to software and standards in order to allow users the option to opt in to receive such tests, and that it will result in significant public safety benefits. Specifically, we agree with Clarion County OES and the Lexington Division of Emergency Management that while occasional system failures are probable, a solid testing and training platform such as this can ensure that failures can be corrected during a period where no real emergency exists. We also agree with Calcasieu Parish Police Jury Office of Homeland Security and Emergency Preparedness that regular readiness testing and proficiency training are critical to maintaining WEA alert origination competency because “[i]f you don't use it you lose it.” According to FEMA, requiring Participating CMS Providers to support State/Local WEA Testing will improve WEA by providing confidence to the public that their handsets are capable of receiving an Alert Message from local emergency management agencies, and by rendering WEA suitable for use in coordinated public warning exercises, such as those required by the Nuclear Regulatory Commission for local emergency preparedness programs. Further, we agree with Harris County Office of Homeland Security and Emergency Management that State/Local WEA Tests, in conjunction with targeted outreach efforts, may be useful to emergency managers as a tool to improve their competency at initiating Alert Messages in languages other than English. Importantly, emergency managers may also use State/Local WEA Tests to voluntarily collect and share information about geo-targeting, alert delivery latency, and other vital performance metrics. We encourage emergency managers and related entities to engage in extensive outreach to their respective communities in order to socialize the benefits of public participation in State/Local WEA Tests, and otherwise to raise public awareness about the benefits of receiving WEA messages, including through the use of PSAs.

81. We agree with the public broadcasting and NCE commenters that in order to be fully effective and reflective of WEA system needs, a test of the public television broadcast-based backup to the C-interface should be implemented as an end-to-end test from the IPAWS to the CMS Provider Gateways. Accordingly, we amend our rules to make it clear that periodic C interface testing must include the testing of its public television broadcast-based backup. Pursuant to this framework, FEMA would initiate a test of the broadcast-based C-interface backup by sending a test message through that infrastructure to the CMS Provider Alert Gateway, which would respond by returning an acknowledgement of receipt of the test message to the FEMA Gateway. This approach ensures reliable continuity between FEMA and Participating CMS Providers, even during a disaster in which internet connectivity may be lost. We defer to FEMA as the IPAWS and Federal Alert Gateway administrator to determine the periodicity of these tests in conversation with Participating CMS Providers.

82. By requiring CMS Providers to participate in periodic testing of the broadcast-based backup to the C-interface, “we develop and implement the appropriate safeguards to ensure delivery of critical infrastructure services,” as recommended by the CSRIC v. WEA Security Report. PBS, APTS, and CPB agree that this approach to testing the C-interface backup presents NCE public broadcasting entities with no additional cost burdens. We agree with PBS, APTS, and CPB that this rule will require no “material intervention” by such stations because their receipt and retransmission of test messages will be entirely automated, and will use equipment already installed at their facilities. Accordingly, we anticipate that stations in compliance with our rules today will have to take no additional steps in order to comply with this new testing requirement.

83. We amend Sections 11.45 and 10.520 to allow federal, state and local, tribal and territorial entities, as well as non-governmental organizations (NGOs) in coordination with such entities, to use the attention signal common to EAS and WEA to raise public awareness about WEA. WEA PSAs that use the WEA attention signal must make clear that it is being used in the context of the PSA, “and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program,” including by explicitly stating that the WEA attention signal is being used in the context of a PSA for the purpose of educating the public about WEA.

84. We agree with commenters that facilitating federal, state, local, tribal and territorial governments' issuance of WEA PSAs, as proposed, is in the public interest, and that the utility of WEA PSAs will only be augmented by allowing NGOs to produce them in coordination with governmental entities by promoting effective community partnership. Specifically, WEA PSAs can be effective tools to raise public awareness about, and promote positive perceptions of WEA, which may reduce consumer opt-out and reduce milling. We note the PSA campaign of Minnesota Emergency, Community Health and Outreach (ECHO), a program and service of Twin Cities Public Television, as an example of how governmental entities can partner with NGOs to raise community awareness about the significance of the common alerting attention signal for EAS and WEA. We also note that WEA PSAs have become a critical part of FEMA's Ready campaign that has “shown that it can enhance the public's understanding of how the WEA functions and increase the public's benefits from the WEA and thereby benefit public safety generally.” We agree with commenters that the issuance of WEA PSAs is particularly appropriate in the context of the rules we adopt today. For example, with respect to increasing the maximum WEA character limit, FEMA notes that it will “need to . . . conduct additional public information efforts to inform people of the new format of Alert Messages they may receive on their cellular phones.” Additionally, we anticipate that PSAs will be an effective method to acclimate the public to the fact that they may receive supplemental instructions about how to respond to an emergency through the newly adopted WEA Public Safety Message classification. Indeed, we commit to work with WEA stakeholders to develop community outreach plans and raise public awareness about each of the WEA enhancements made possible by this Report and Order. Moreover, we agree with Professor Denis Mileti, Professor Emeritus, University of Colorado, that WEA PSAs can reduce milling by “build[ing] the reputation of the WEA system with the American public,” making it a more credible and authoritative single resource for emergency information.

85. Therefore, nationwide Participating CMS Providers' subscribers should have greater confidence that WEA Alert Messages they receive are intended for them as of February, 2017. Participating CMS Providers' subscribers should expect to be able to receive Alert Messages in Spanish by 2019. Then, by June 2019, they should expect to see 360-character maximum alerts on 4G LTE and future networks, Public Safety Messages, Alert Messages that contain embedded references, and State/Local WEA Tests presented as soon as they are received. While we expect that updates to our WEA PSA, C-interface backup testing, and alert logging rules will produce significant public safety benefits, as described below, we do not anticipate that consumers will immediately notice a change in service due to these updates.

86. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 301(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, as well as by sections 602(a), (b), (c), (f), 603, 604 and 606 of the WARN Act, 47 U.S.C. 1202(a), (b), (c), (f), 1203, 1204 and 1206, that the WEA Report and Order and Further Notice of Proposed Rulemaking in PS Docket Nos. 15-91 and 15-94 is hereby adopted.

87. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix A.

88. It is further ordered that the rules adopted herein will become effective as described herein,1 including those rules and requirements which contain new or modified information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act that will become effective after publication in the Federal Register of a notice announcing such approval and the relevant effective date.2

89. Governmental Affairs Bureau, Reference Information Center, shall send a copy of the WEA Report and Order and Further Notice of Proposed Rulemaking, including the Final and Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The rules in this part are issued pursuant to the authority contained in the Warning, Alert, and Response Network Act, Title VI of the Security and Accountability for Every Port Act of 2006, Public Law 109-347, Titles I through III of the Communications Act of 1934, as amended, and Executive Order 13407 of June 26, 2006, Public Alert and Warning System, 71 FR 36975 (June 28, 2006).

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

Background

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The notice must also specify the effective period and explain the terms and conditions of the exemption. The exemption may be renewed (49 CFR 381.300(b)).

On December 27, 2011 (76 FR 81133), FMCSA published a final rule amending its HOS regulations for drivers of property-carrying CMVs. The rule requires most drivers to take a rest break during the workday. Generally, if 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes, the driver may not operate a CMV until he or she takes at least 30 minutes off duty (49 CFR 395.3(a)(3)(ii)). FMCSA did not specify when drivers must take the 30-minute break. The HOS rules also limit drivers of property-carrying CMVs to a 14-hour driving window each duty day (49 CFR 395.3(a)(2)). The window begins when the driver comes on duty following at least 10 consecutive hours off duty. After the 14th consecutive hour from that point, the driver cannot operate a CMV until he or she obtains at least 10 consecutive hours off duty. The requirements of the HOS rules apply to drivers of CMVs and to their motor carrier employers who direct the drivers to operate the CMVs.

On June 18, 2015, FMCSA granted SC&RA an exemption from the 30-minute rest-break requirement for qualifying drivers operating certain large and heavy vehicles that require an oversize/overweight (OS/OW) permit issued by State or local government (80 FR 34957). The Agency granted this exemption for the maximum period of 2 years permitted by the FMCSRs at that time. On December 4, 2015, the President signed the “Fixing America's Surface Transportation Act” (FAST Act)(Pub. L. 114-94). Section 5206(a)(3) of the FAST Act amended 49 U.S.C. 31315(b) to give FMCSA the authority to grant exemptions for up to 5 years. In addition section 5206(b)(2)(A) extended any HOS exemption in effect on the date of enactment for a period of 5 years from the date it was issued. While that provision automatically extended SC&RA's June 2015 exemption for drivers of vehicles requiring an oversize/overweight permit, FMCSA is using its authority under 49 U.S.C. 31315(b)(2)(1) to issue the exemption from the 30-minute break requirement for mobile crane operators for 2 years from the date of this notice.

SC&RA advises that there are approximately 85,000 trained and certified mobile crane operators in the United States, and, of these, approximately 65,000 operate cranes with a lifting capacity over 30 tons. While some of these cranes require a permit due to their size or weight, others do not. SC&RA seeks an exemption from the 14-hour rule and the requirement for a 30-minute break for drivers operating mobile cranes with a rated lifting capacity of greater than 30 tons. SC&RA states that the HOS rules create complications because it is difficult to find suitable parking when crane drivers are required to go off duty. SC&RA cites data indicating that there is a shortage of parking places for CMVs in the United States and notes ongoing Federal and State efforts to address this problem. Parking for cranes is even more limited because of their size. SC&RA asserts that these two HOS rules often require crane drivers to stop operating a CMV to avoid violating their provisions. The result is that cranes are often parked on the shoulder of public roads. SC&RA states the width of some cranes means they cannot be parked entirely off the travel lanes, creating a safety hazard for their own drivers and others.

SC&RA describes the unpredictable nature of the typical workday of a crane operator. It lists a variety of variables that can complicate the scheduling of operations, including delays waiting for the item to be lifted to arrive at the work site or to be rigged for lifting. Unexpected inclement weather can also trigger delays. SC&RA asserts that the primary result is that the workday may be extended unexpectedly. Thus, timing a crane's movement from the worksite and onto public roads at the end of the day is highly problematic. It notes that State and local restrictions limit the hours of the day, and sometimes the days of the week, that cranes may move on public roads. In addition, the movement of cranes may require a pilot car, the display of signs and lights, and even a police escort. Cranes normally move much slower than the posted speed limit, and are highly susceptible to weather and traffic conditions.

SC&RA does not foresee any negative impact to safety from the requested exemption. It believes that granting the exemption would have a favorable impact on overall safety by reducing the frequency of cranes being parked along public roads. It points out that its members generally drive a crane less than 2 hours a day and have low crash rates.

FMCSA published the SC&RA exemption application for comment on March 16, 2016 (81 FR 14052). The Agency received 13 comments, most supporting the exemption. These commenters asserted that crane operators actually drive very little on public roads, and thus are less likely to suffer from driving fatigue than long-haul CMV drivers. Commenters also described the typical duty day of crane operators at the work site, and pointed out that there are substantial periods when they have to wait for others to complete preparations for the lift. These commenters also described the relatively short distances cranes are driven on public roads at the beginning and end of the day. NationsBuilders Insurance Services, Inc. commented that the drive unit of a crane generally logs only 60,000 miles in 9 years.

Commenters opposing the exemption suggest that motor carriers could avoid or ameliorate their scheduling difficulties by employing a second crane driver. Advocates for Highway and Auto Safety (Advocates) found the application for exemption fatally deficient because it “fails to include any analysis of the safety impacts of the requested exemption.” Advocates also stated that SC&RA ignored the requirement that it “carefully review the regulation to determine whether there are any practical alternatives already available” that would allow it to conduct its operations and comply with the HOS rules. Advocates also believes that SC&RA carriers could overcome the numerous variables affecting these operations by stronger management of their CMV fleets.

FMCSA has evaluated SC&RA's application and the public comments and has decided to grant an exemption from the 30-minute rule but to deny an exemption from the 14-hour rule. The Agency believes that the exempt crane drivers will likely achieve a level of safety that is equivalent to or greater than, the level of safety achieved without the exemption [49 CFR 381.305(a)]. The schedules of these CMV drivers are characterized by daytime hours, low-stress periods of waiting during the workday, and very limited hours of actual driving on public roads. In addition, these loads are sometimes escorted by other vehicles and operate at low speeds.

The unpredictable workday of a mobile-crane operator, with its frequent interruptions and down time, reduces the risk of cumulative fatigue and thus the urgency of a 30-minute break. Providing an exemption from the break will also reduce the number of situations where a crane operator has to park at roadside midway through a move between job sites in order to comply with the 30-minute break rule. The Agency is concerned with parking shortages, especially for very large vehicles. It is highly undesirable to have cranes parked on the shoulders of highways, much less extending into the travel lanes. No matter how well marked, trucks parked at roadside, especially at night, are too easily mistaken for moving vehicles and struck at full speed, with serious consequences.

However, the Agency is not granting exemption from the 14-hour rule. The absence of this limit would allow drivers to operate without any restriction on the length of their duty day. The risk that safety would deteriorate in the absence of this requirement is high. While we agree that the 30-minute break rule is unnecessarily restrictive for operators of large mobile cranes, the 14-hour window is far less restrictive. It is a critical factor in containing fatigue that might otherwise develop. The 14-hour rule is a limit that should be built into the planning of mobile crane operations.

For these reasons, the Agency grants an exemption from the 30-minute rest-break requirement, subject to the terms and conditions in this Federal Register notice, but denies an exemption from the 14-hour rule.

1. All motor carriers and drivers operating mobile cranes with a rated lifting capacity of greater than 30 tons are exempt from the 30-minute break requirement of 49 CFR 395.3(a)(3)(ii). The lifting capacity of the crane must be displayed on a manufacturer's certification plate on the crane or in manufacturer's documentation carried on the vehicle.

2. Drivers must have a copy of this exemption document in their possession while operating under the terms of the exemption. The exemption document must be presented to law enforcement officials upon request.

3. Motor carriers operating under this exemption must have a “Satisfactory” safety rating with FMCSA, or be “Unrated.” Motor carriers with “Conditional” or “Unsatisfactory” FMCSA safety ratings are prohibited from using this exemption.

This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is granted for the period from 12:01 a.m., November 1, 2016 through 11:59 p.m., November 1, 2018.

This exemption is limited to the provisions of 49 CFR 395.3(a)(3)(ii). These motor carriers and drivers must comply with all other applicable provisions of the FMCSRs.

In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.

Any motor carrier utilizing this exemption must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMV drivers operating under the terms of this exemption. The notification must include the following information:

a. Name of Exemption: “SC&RA cranes”

b. Name of operating motor carrier and USDOT number,

c. Date of the accident,

d. City or town, and State, in which the accident occurred, or closest to the accident scene,

e. Driver's name and license number and State of issuance

f. Vehicle number and State license plate number,

g. Number of individuals suffering physical injury,

h. Number of fatalities,

i. The police-reported cause of the accident,

j. Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and

k. The driver's total driving time and total on-duty time prior to the accident.

Reports filed under this provision shall be emailed to [email protected].

FMCSA believes motor carriers conducting crane operations under this exemption will continue to maintain their safety record while operating under this exemption. However, should safety be compromised, FMCSA will take all steps necessary to protect the public interest, including revocation or restriction of the exemption. The FMCSA will immediately revoke or restrict the exemption for failure to comply with its terms and conditions.

The Administrative Procedure Act (APA), 5 U.S.C. 553, provides exceptions to its notice and public comment rulemaking procedures where (1) the rules are rules of agency organization, procedure, or practice; or (2) the agency finds there is good cause to forego notice and comment, and incorporates the finding and a brief statement of reasons therefore in the rule issued. Generally, good cause exists where the agency determines that notice and public comment procedures are impractical, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b).

Parts 800, 803, and 804 govern internal agency organization, procedure, or practice. Part 800, subparts A and B, describes the organization of the agency. Part 800, subpart C, prescribes procedures for the agency's rulemakings. Part 803 describes the agency's seal and limits its use. Part 804 prescribes procedures for the agency's open meetings.

The amendments made in this final rule merely correct inadvertent errors and omissions, remove obsolete references, and make minor editorial changes to improve clarity and consistency. The technical amendments do not impose any new requirements, nor do they make any substantive changes to the Code of Federal Regulations. For these reasons, the NTSB finds good cause that notice and public comment on this final rule are unnecessary. For these same reasons, this rule will be effective on the date of publication in the Federal Register.

On June 25, 2012, the NTSB announced its plan to review its regulations, 49 CFR parts 800 through 850, to comply with Executive Order (E.O.) 13563, Improving Regulation and Regulatory Review, 76 FR 3821 (Jan. 21, 2011); E.O. 13579, Regulation and Independent Regulatory Agencies, 76 FR 41587 (July 11, 2011); and E.O. 13610, Identifying and Reducing Regulatory Burdens, 77 FR 28469 (May 14, 2012). NTSB Plan for Retrospective Analysis of Existing Rules, 77 FR 37865. Though the Executive Orders require retrospective review of only “significant regulations,” NTSB stated it would review all of its regulations to implement the principles in the Orders. Id. at 37867.

On January 8, 2013, after reviewing its regulations, the NTSB announced its plan to update its regulations, including revising internal agency procedures for which no public comment was required. Retrospective Analysis of Existing Rules; Notification, 78 FR 1193, 1194.

Pursuant to that plan, in this Final Rule, the NTSB makes editorial improvements and corrects obsolete information and citations in parts 800 (Administrative Rules), 803 (Official Seal), and 804 (Rules Implementing the Government in the Sunshine Act).

This rule does not require an assessment of its potential costs and benefits under section 6(a)(3) of E.O. 12866, Regulatory Planning and Review, 58 FR 51735 (Sept. 30, 1993), because it is not a “significant regulatory action” under section 3(f) of that Order. Thus, the Office of Management and Budget has not reviewed this rule under E.O. 12866. Likewise, this rule does not require an analysis under the Unfunded Mandates Reform Act, 2 U.S.C. 1501-71, or the National Environmental Policy Act, 42 U.S.C. 4321-47.

In addition, under the Regulatory Flexibility Act, 5 U.S.C. 601-12, the NTSB has considered whether this rule would have a significant economic impact on a substantial number of small entities. The NTSB certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. Moreover, in accordance with 5 U.S.C. 605(b), the NTSB will submit this certification to the Chief Counsel for Advocacy at the Small Business Administration.

Moreover, the NTSB does not anticipate this rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this rule does not have implications for federalism under E.O. 13132, Federalism, 64 FR 43255 (Aug. 4, 1999).

This rule also complies with all applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, 61 FR 4729 (Feb. 5, 1996), to minimize litigation, eliminate ambiguity, and reduce burden.

NTSB has evaluated this rule under: E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, 53 FR 8859 (Mar. 15, 1988); E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks, 62 FR 19885 (Apr. 21, 1997); E.O. 13175, Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (Nov. 6, 2000); E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, 66 FR 28355 (May 18, 2001); and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded that this Final Rule neither violates, nor requires further consideration under, those Orders and statutes.

For the reasons stated in the preamble, the National Transportation Safety Board amends 49 CFR parts 800, 803, and 804 as set forth below:

NMFS published a proposed rule for the 2016-2018 specifications on June 21, 2016 (81 FR 40253). The comment period on the proposed rule ended on July 21, 2016. NMFS received 32 comments, which are summarized in the “Comments and Responses” section of this final rule.

Regulations implementing the Atlantic Herring Fishery Management Plan (FMP) appear at 50 CFR part 648, subpart K. Regulations at § 648.200 require NMFS to make final determinations on the herring specifications recommended by the New England Fishery Management Council in the Federal Register, including: The overfishing limit (OFL); acceptable biological catch (ABC); annual catch limit (ACL); optimum yield (OY); domestic annual harvest (DAH); domestic annual processing (DAP); U.S. at-sea processing (USAP); border transfer (BT); management area sub-ACLs; and the amount to be set aside for the research set aside (RSA) (up to 3 percent of any management area sub-ACL) for 3 years. These regulations also allow for river herring/shad catch caps to be developed and implemented as part of the specifications. The 2016-2018 herring specifications are consistent with these provisions, and provide the necessary elements to comply with the ACL and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Complete details on the development of the herring specifications and river herring/shad catch caps were included in the proposed rule; NMFS has not repeated that information here.

An operational update to the herring stock assessment, completed in May 2015, indicated that herring was not overfished and overfishing was not occurring. However, the assessment contained a retrospective pattern suggesting that spawning stock biomass (SSB) is likely overestimated and fishing mortality (F) is likely underestimated. Following an adjustment for the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F at approximately half the fishing mortality threshold (FMSY).

The herring ABC of 111,000 mt (a 3-mt decrease from status quo) for 2016-2018 is based on the current control rule (constant catch with 50-percent probability that F > FMSY in last year) and is consistent with the Council's Scientific and Statistical Committee's (SSC) advice. The OFL is 138,000 mt in 2016, 117,000 mt in 2017, and 111,000 mt in 2018. While the ABC control rule does not explicitly adjust for herring's role in the ecosystem, herring's high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4) likely achieves ecosystem goals, including accounting for herring's role as forage. The herring ABC is typically reduced from the OFL to account for scientific uncertainty. Using the current constant catch control rule means that the ABC will equal the OFL in 2018. When the SSC considered the ABC of 111,000 mt, it concluded that the probability of the stock becoming overfished during 2016-2018 is near zero. Further, this final rule is consistent with the status quo specifications that set ABC equal to OFL in 2015 and overfishing did not occur.

Under the FMP, the herring ACL is reduced from ABC to account for management uncertainty, and the primary source of management uncertainty is catch in the New Brunswick weir fishery. Catch in the weir fishery is variable, but has declined in recent years. This final rule implements a management uncertainty buffer of 6,200 mt, which is equivalent to the value of the buffer in 2015. To help ensure catch in the New Brunswick weir fishery does not exceed the management uncertainty buffer, NMFS specifies a buffer greater than the most recent 3-year and 5-year average catch in the New Brunswick weir fishery. The resulting stockwide ACL will be 104,800 mt.

Given the variability of the New Brunswick weir catch and the likelihood that weir catch may be less than 6,200 mt, NMFS also specifies a New Brunswick weir fishery payback provision. Specifically, NMFS will subtract 1,000 mt from the management uncertainty buffer and add it to the ACL if the weir fishery harvests less than 4,000 mt by October 1. The 1,000 mt added to the ACL would also increase the sub-ACL for Herring Management Area 1A. NMFS selects the October 1 date to trigger the payback provision for two reasons. First, there is typically only minimal catch in the New Brunswick weir fishery after October 1 (less than four percent of total reported landings from 1978 to 2014) so the likelihood of weir catch exceeding the management uncertainty buffer after October 1 is low. Second, adding 1,000 mt to the Area 1A sub-ACL in October is expected to allow herring vessels to access the additional harvest before catch in the herring fishery is limited in Area 1A. NMFS implements a 2,000-lb (907-kg) herring possession limit in Area 1A when it projects that 92 percent the sub-ACL has been harvested. If New Brunswick weir catch is less than 4,000 mt by October 1, the management uncertainty buffer will be reduced to 5,200 mt, the ACL will be increased to 105,800 mt, and the Herring Management Area 1A sub-ACL will be increased to 31,300 mt. The New Brunswick weir fishery payback provision was last in effect during fishing years 2010-2012, so this final rule puts the payback provision back in place for 2016-2018. NMFS is currently awaiting final data to decide whether or not to subtract 1,000 mt from the management uncertainty buffer and increase the ACL and the Area 1A sub-ACL.

BT is a processing allocation available to Canadian dealers. The MSA provides for the issuance of permits to Canadian vessels transporting U.S.-harvested herring to Canada for sardine processing. The amount specified for BT has equaled 4,000 mt since 2000. As there continues to be interest in transporting herring to Canada for sardine processing, NMFS maintains BT at 4,000 mt.

The Atlantic Herring FMP specifies that DAH will be set less than or equal to OY and be composed of DAP and BT. DAP is the amount of U.S. harvest that is processed domestically, as well as herring that is sold fresh (i.e., bait). DAP is calculated by subtracting BT from DAH. DAH should reflect the actual and potential harvesting capacity of the U.S. herring fleet. Since 2001, total landings in the U.S. fishery have decreased, but herring catch has remained somewhat consistent from 2003-2014, averaging 91,925 mt. When previously considering the DAH specification, the Council evaluated the harvesting capacity of the directed herring fleet and determined that the herring fleet is capable of fully utilizing the available yield from the fishery. This determination is still true. NMFS therefore sets DAH at 104,800 mt and DAP at 100,800 mt for the 2016-2018 fishing years in this final rule.

A portion of DAP may be specified for the at-sea processing of herring in Federal waters. When determining this USAP specification, the Council considered the availability of shore-side processing, status of the resource, and opportunities for vessels to participate in the herring fishery. During the 2007-2009 fishing years, the Council maintained a USAP specification of 20,000 mt (Herring Management Areas 2/3 only) based on information received about a new at-sea processing vessel that intended to utilize a substantial amount of the USAP specification. At that time, landings from Areas 2 and 3-where USAP was authorized-were considerably lower than recent sub-ACLs for Areas 2 and 3. Moreover, the specification of 20,000 mt for USAP did not restrict either the operation or the expansion of the shoreside processing facilities during the 2007-2009 fishing years. However, this operation never materialized, and none of the USAP specification was used during the 2007-2009 fishing years. Consequently, NMFS set USAP at zero for the 2010-2015 fishing years. Lacking any additional information that would support changing this specification, NMFS maintains the USAP at zero for fishing years 2016-2018.

The herring ABC specification recommended by the SSC for 2016-2018 is not substantially different from the 2013-2015 ABC specification because, in part, key attributes of the herring stock (SSB, recruitment, F, and survey indices) have not significantly changed since the 2013-2015 herring specifications. Therefore, NMFS determined that there is no new information on which to modify the allocation of the total ACL between the herring management areas. This final rule maintains status quo percentage allocations for the herring sub-ACLs for the 2016-2018 specifications. The resulting sub-ACLs are slightly lower than 2013-2015 specifications (see Table 1).

NMFS maintains the 2016-2018 RSA specification at 3 percent of each herring management area sub-ACL. The herring RSA is removed from each sub-ACL prior to allocating the sub-ACL to the fishery. If an RSA proposal is approved, but a final award is not made by NMFS, or if NMFS determines that the RSA cannot be utilized by a project, NMFS shall reallocate the unallocated or unused amount of the RSA to the respective sub-ACL. On February 29, 2016, NMFS fully awarded the herring RSA for fishing years 2016-2018.

Herring regulations at § 648.201(e) specify that up to 500 mt of the Herring Management Area 1A sub-ACL shall be allocated for the fixed gear fisheries (weirs and stop seines) in Area 1A that occur west of 67°16.8′ W. long. This set-aside shall be available for harvest by the fixed gear fisheries within Area 1A until November 1 of each year; any unused portion of the allocation will be restored to the Area 1A sub-ACL after November 1. During the 2013-2015 fishing years, the fixed gear set-aside was specified at 295 mt. Because the proposed Area 1A sub-ACL for the 2016-2018 fishing years is not substantially different from the Area 1A sub-ACL in 2015, NMFS maintains the fixed gear set-aside at 295 mt.

Framework 3 to the Atlantic Herring FMP established gear and area-specific river herring/shad catch caps for the herring fishery in 2014. These included catch caps for midwater trawl vessels fishing in the Gulf of Maine, off Cape Cod, and in Southern New England, as well as for small-mesh bottom trawl vessels fishing in Southern New England. The caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Herring regulations at § 648.201(a)(4)(ii) state that once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery's ability to harvest the herring sub-ACL associated with that area is limited. The herring fleet's avoidance of river herring and shad combined with the catch caps are expected to minimize river herring and shad bycatch and bycatch mortality. Additionally, the herring fishery is expected to be able to harvest the herring ACL, provided the fishery continues to avoid river herring and shad.

As noted in Framework 3, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance or to evaluate the potential impacts of catch caps on the river herring and shad stocks. Specific biological impacts on river herring and shad are influenced by fishing activity, environmental factors, climate change, restoration efforts, and other factors. In the absence of sufficient data to specify biologically-based catch caps, the caps have been set using recent river herring and shad catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting fishing mortality is expected to result in positive impacts on the stocks.

To date the values of the caps have been specified using the median catch of river herring and shad catch over the previous 5 years (2008-2012). The 2016-2018 river herring/shad catch caps, as specified below in Table 2, are calculated using a revised methodology and updated data over a longer time period. The revised methodology uses a weighted mean catch of river herring and shad (versus median catch). This methodology better accounts for the inter-annual variability in the level of sampling by both observers and portside samplers by weighting years with higher sampling levels more heavily than years with lower sampling levels. Additionally, the revised methodology includes previously omitted catch data, including some shad landings and trips from catch cap areas where trips did not meet the 6,600-lb (3-mt) herring landing threshold, and updated extrapolation methodology (using sampled trips to estimate catch on unsampled trips). Lastly, by using a longer time series (the most recent 7 years versus 5 years), the value of the caps can be based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery's interactions with river herring and shad and overall fishing effort.

NMFS determined that using a longer time series, including more recent and previously omitted data, as well as using a weighted mean to generate the values for river herring/shad catch caps is consistent with using the best available science. Setting cap amounts using recent catch data better reflects current fishing behavior and catch levels. Similarly, relying more heavily on years with higher levels of sampling should provide cap values that more precisely reflect recent catch. Additionally, catch data may indirectly reflect stock abundance. For example, increases in stock abundance may potentially result in increased incidental catch whereas decreases in abundance may result in decreased incidental catch. Therefore, setting catch cap amounts based on catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions, while balancing the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL.

NMFS is adjusting the river herring/shad catch caps to reflect the use of best available scientific data and a revised, superior methodology. This adjustment increases the catch caps for three of the four river herring/shad catch caps in the herring fishery. Based on fishing practices to date, however, NMFS expects river herring and shad catch to remain below the catch cap amounts. For example, the herring industry currently has harvested only 57 percent of the total river herring and shad catch allowed under the 2015 river herring/shad catch caps. Because river herring and shad catch is currently well below allowable catch limits, NMFS does not expect that any catch cap increases implemented in this action will result in a substantial increase in river herring and shad catch. Rather, NMFS anticipates that the 2,000-lb (907-kg) herring possession limit that will result if a cap is harvested will continue to provide a strong incentive for the herring industry to avoid catching river herring and shad and that the herring industry will continue to harvest less than the river herring and shad catch allowed under the adjusted catch caps.

NMFS received 32 comment letters on the proposed rule: 9 from interested members of the public; 3 from herring industry participants; 2 from other fishing industry participants (Massachusetts Lobstermen's Association (MLA) and the Cape Cod Commercial Fishermen's Alliance); 4 from local watershed groups (Jones River, Ipswich River, Mystic River, and the Herring Ponds Watershed Associations); and 12 from non-governmental organizations (NGOs), including 6 prominent environmental advocacy groups (Conservation Law Foundation, Earth Justice, the Herring Alliance, Save the Bay-Narragansett, the Mohegan Tribe, and Alewife Harvesters of Maine). Two of the environmental advocacy group comments were form letters that contained signatures and personalized comments, including: A letter from PEW Charitable Trusts with 10,593 signatures and 931 personalized comments; and a letter from Earth Justice with 2,298 signatures and 234 personalized comments.

Comment 1: Three herring fishery participants and the MLA commented in support of the proposed 2016-2018 herring specifications and river herring/shad caps.

Response: NMFS approved the 2016-2018 herring specifications and river herring/shad catch caps because they promote achieving optimal yield, fishery conservation, are based upon best available science, and are consistent with the goals and objectives of the Atlantic Herring FMP.

Comment 2: The Cape Cod Commercial Fishermen's Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments claimed that the 2018 ABC does not adequately account for scientific uncertainty. Earth Justice commented that NMFS could revise the specifications to account for scientific uncertainty in a number of ways. They suggested NMFS could implement ABCs in 2017 and 2018 with the same scientific uncertainty buffer that was set for 2016 (27,000 mt) or implement the 2017 scientific uncertainty buffer (6,000 mt) in 2018. They further commented that NMFS could request advice from the SSC for an appropriate buffer in 2018. Additionally, the Herring Alliance, Mohegan Tribe, and Earth Justice commented that NMFS should use its authority to implement a revised ABC that appropriately buffers for scientific uncertainty in 2018.

Response: NMFS disagrees. The recent herring stock assessment update completed in May 2015 contained a retrospective pattern suggesting that the spawning stock biomass (SSB) is likely overestimated and fishing mortality (F) is likely underestimated. The assessment was adjusted to account for the retrospective pattern. Even with the adjustment to account for the scientific uncertainty associated with the retrospective pattern, the assessment estimated the herring stock at approximately double its target biomass (SSBMSY) and F is approximately half the fishing mortality threshold (FMSY). The stock assessment update generated catch projections for 2016-2018 based on the constant catch control rule. When the SSC evaluated the resulting ABC, it supported the resulting ABC and did not recommend specifying a scientific uncertainty buffer between OFL and ABC in 2018. Because the recent stock assessment update adjusted for scientific uncertainty and the SSC did not recommend that an additional scientific uncertainty buffer be specified for 2018, NMFS implements an ABC that equals OFL in 2018.

Comment 3: The Cape Cod Commercial Fishermen's Alliance, Jones River Watershed Association, Herring Alliance, Mohegan Tribe, and Earth Justice opposed setting the ABC equal to the OFL in 2018. Their comments noted that this introduces unnecessary risk of overfishing.

Response: NMFS disagrees. Herring are currently not overfished and overfishing is not occurring. While setting the ABC equal to the OFL in 2018 has a 50-percent probability of overfishing in 2018, the overall probability of overfishing herring during 2016-2018 is near zero. In addition, the realized catch in the fishery is generally well below ABC, further reducing the likelihood of overfishing. Lastly, setting the ABC equal to OFL in 2018 would continue to provide the herring fishery with some economic stability, an important consideration in the Council's harvest risk policy.

Comment 4: The Herring Alliance, Mohegan Tribe, and Earth Justice oppose using the current constant catch control rule because it does not adjust the ABC to explicitly account for herring's role as forage in the ecosystem and recommend that NMFS consider further reductions in ABC.

Response: NMFS disagrees. When generating ABC catch projections for 2016-2018, the 2015 stock assessment update adjusted for predator consumption of herring by maintaining a relatively high natural mortality rate. Additionally, the recent stock assessment update indicated that herring has a high biomass (approximately 74 percent of unfished biomass) and low fishing mortality (ratio of catch to consumption by predators is 1:4). The constant catch ABC control rule is expected to maintain the high herring biomass, bolstered by two very large year classes, and low fishing mortality. Thus, the ABC control rule should meet forage demands and maintain a biomass level consistent with forage-based control rules in the short-term while the Council continues its consideration of herring's role as forage in Amendment 8 to the Atlantic Herring FMP. For these reasons, NMFS concludes that the current constant control rule, as well as the associated ABC, sufficiently account for herring's role as forage in the ecosystem during 2016-2018.

Comment 5: Earth Justice commented that the ABC was not selected as part of a reasonable range of alternatives as required by the National Environmental Policy Act (NEPA) because none of the alternatives accounted for scientific uncertainty in 2018. They also stated that the EA acknowledged this lack of uncertainty buffer is not consistent with the best available science.

Response: NFMS disagrees. As described above, the ABC sufficiently accounts for scientific uncertainty. The Council developed three ABC alternatives and fully analyzed them in the EA supporting this action. NEPA requires a Federal agency to consider a range of alternatives, and that the alternatives are reasonable alternatives (i.e., those that meet the stated purpose and need, and objectives, for the action). The SSC recommended that the ABC for 2016-2018 remain relatively similar or modestly reduced compared to status quo. Consistent with SSC advice, the range of ABC alternatives considered in the EA were similar but reduced from status quo. For the status quo alternative, the EA cautioned that setting ABC equal to OFL for all three years appears to be inconsistent with best available science. The EA also explained that the ABC implemented in this action is more precautionary and expected to have more positive impacts than the status quo ABC because the scientific uncertainty buffer between the OFL and ABC during 2016 and 2017 results in a lower risk of overfishing. For these reasons, NMFS has determined that the range of ABC alternatives considered in this action was sufficient and consistent with the requirements of NEPA.

Comment 6: One member of the public commented that the herring ACL should be decreased to 90,000 mt.

Response: NMFS disagrees. The commenter provided no basis for setting the ACL at 90,000 mt. The most recent stock assessment update indicated herring was not overfished and overfishing was not occurring. Setting specifications always requires a balance between conservation and harvesting opportunity. The most current data show that an ABC of 111,000 mt would have a low positive economic impact on fishery-related businesses and communities while equaling less than half a sustainable fishery morality rate.

Comment 7: The Alewife Harvesters of Maine commented in favor of the proposed decrease of the Gulf of Maine river herring/shad catch cap. It also commented in support of using the revised methodology with the longer time series and weighted mean, however, it “would propose a more gentle increase in catch cap that accounts for the biological uncertainty, raising the cap to the full weighted mean estimate over the course of several years.”

Response: NMFS agrees with the Alewife Harvesters of Maine that using a longer time series and weighted mean is appropriate to calculate river herring/shad catch caps. But NMFS disagrees with the suggestion that the value of the cap, rather than the methodology, should be the primary consideration when setting catch caps. The catch cap methodology uses the best available science to reflect recent fishing behavior and recent catch levels. Without a reasonable basis for developing different methodologies for each area or gear type, the methodology used to calculate one catch cap should apply to all catch caps.

Comment 8: Five interested members of the public, six state and local advocacy groups, all four river watershed associations, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens expressed concern that raising the river herring/shad catch caps will set back ongoing efforts by the states and local advocacy groups to restore river herring and shad to sustainable levels. Additionally, the Mohegan Tribe, Mystic River Watershed, Earth Justice, and Conservation Law Foundation suggests that the herring fishery may be a contributing factor to declines in Southern New England river herring and shad stock, based on a study by Hasselman et al. in 2015.

Response: NMFS recognizes and supports the effort, time, and resources that states and local advocacy groups have devoted to river herring and shad restoration efforts. However, NMFS disagrees with the commenters that raising the river herring/shad catch caps will set back those efforts. Although the comments suggest otherwise, NMFS cannot directly link catch levels of river herring and shad in the herring fishery to impacts on river herring and shad recovery efforts by the states in specific rivers and streams. NMFS considered the Hasselman et al. study, despite it being published almost two months after the Council took final action at its meeting on September 29, 2015. NMFS acknowledges that certain river herring stocks may be disproportionately affected by the herring fishery, but points out the study also cautions that currently river herring and shad catch in the ocean cannot be confidently assigned to a specific population of origin. Instead, the catch caps are designed to minimize bycatch and bycatch mortality so that the catch of river herring and shad is kept below recent levels and limit fishing mortality to provide an opportunity for positive impacts on stocks. The incentive for the herring fishery to avoid river herring and shad catch comes from the potential that river herring and shad catch will limit the fishery's ability to harvest the ACL. While this action increases the value of caps off Cape Cod and in Southern New England, the incentive to avoid river herring and shad catch remains while the caps are in place and are set based on fishing activity. NMFS has determined that the river herring/shad catch caps implemented in this action will support ongoing conservation efforts by the states and local advocacy groups and will help achieve conservation and management objectives outlined in the River Herring Conservation Plan coordinated by the Atlantic States Marine Fisheries Commission and NMFS.

Comment 9: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that the caps do not provide an incentive to avoid river herring and shad. One interested member of the public, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice on behalf of numerous U.S. citizens commented that the herring industry has stayed well within the current river herring/shad catch caps since 2015 and does not need more river herring and shad catch to operate. Additionally, the Conservation Law Foundation, Earth Justice, Herring Alliance, The Mohegan Tribe, and Save the Bay-Narragansett further suggest that NMFS use its authority to implement river herring/shad catch caps that reduce catch and stay consistent with the incentive to avoid and minimize river herring and shad catch.

Response: NMFS disagrees with the commenters that the catch caps do not provide an incentive for the herring fishery to avoid river herring and shad catch. River herring/shad catch caps were first implemented in the herring fishery in 2014. As described previously, caps have been based on recent catch with the intent of keeping catch below its highest levels. Once 95 percent of a catch cap is harvested, the herring possession limit for vessels using that gear type and fishing in that area is reduced to 2,000 lb (907 kg) for the remainder of the fishing year. Implementation of this possession limit in a catch cap area decreases the herring fishery's ability to harvest the herring sub-ACL associated with that areas as well as the herring ACL.

The incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. For example, catch tracked against the Southern New England/Mid-Atlantic bottom trawl cap is currently 21 mt compared to 51 mt at this same time last year. This suggests that the existence of the catch caps is an effective incentive to avoid river herring and shad catch and more restrictive caps are not required to provide an incentive to continue to avoid river herring and shad catch.

The University of Massachusetts and Massachusetts Division of Marine Fisheries operate a river herring avoidance program for vessels participating in the herring fishery. This program is funded, in part, by the herring RSA for 2016-2018. The participation level of midwater trawl and bottom trawl vessels in the avoidance program has increased in recent years and currently includes the majority of midwater trawl and bottom trawl vessels. The river herring avoidance program provides vessels with near real-time information on where herring vessels are encountering river herring and encourages vessels to avoid and/or leave those areas. Select vessels that comply with the requirements of the avoidance program are able to harvest the herring RSA. Both the river herring avoidance program and the opportunity to harvest the herring RSA provide additional incentive for herring vessels to avoid river herring and shad.

For these reasons, NMFS concludes the catch caps implemented in this action are consistent with the incentives to avoid and minimize catch to the extent practicable.

Comment 10: Conservation Law Foundation, Earth Justice, Save the Bay-Narragansett, and the Earth Justice form letter stated that using a longer time series and a weighted mean to calculate the catch caps, compared to prior years, increases bias toward outlier years. Earth Justice, Conservation Law Foundation, Herring Alliance, Save the Bay-Narragansett, and the Earth Justice letter on behalf of 2,298 citizens commented that the industry had an incentive to catch more river herring and shad in 2013 and 2014 because it knew that more river herring and shad catch would mean higher catch caps in the future. Earth Justice and Save the Bay-Narragansett also commented that using the revised methodology is arbitrary and capricious in that it rewards the fleet for increasing river herring and shad catch 2013 and 2014.

Response: Catch caps were implemented in Framework 3 to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. Additionally, catch caps were intended to be adjusted when new information became available. The catch caps implemented in this action were calculated using updated data and a revised methodology.

Catch caps for the 2016-2018 fishing years were calculated by using previously omitted catch data and a longer time series (most recent 7 years rather than 5 years). This ensures that the value of the catch caps are based on more data, especially the most recent catch information, to better ensure the catch caps reflect the herring fishery's interactions with river herring and shad and overall fishing effort. Because catch data may indirectly reflect stock abundance, setting catch caps based on recent catch data are expected to result in catch caps that are more consistent with current fishing activity, and possibly stock conditions. Commenters provided no information to substantiate claims that the herring industry intentionally caught more river herring and shad in 2013 and 2014 in order to artificially inflate catch caps. Therefore, NMFS concludes extending the time series used to calculate caps to include the two most recent years (2013 and 2014) best reflects the recent catch of river herring and shad, makes the best use of new information, and is consistent with Framework 3.

Using a weighted mean, rather than the median or unweighted mean, to calculate catch caps best accounts for the inter-annual variability in the level of sampling (both observer and portside) of river herring and shad catch. Caps calculated using the median catch of river herring and shad would base the value of the cap on the total number of catch estimates, giving equal weight to all years regardless of sampling level. Using the unweighted mean, caps would be based on the average catch each year regardless of sampling level. In contrast, using a weighted mean to calculate catch caps adjusts for the sampling level each year and incorporates those averages into the overall average, thereby giving more weight to years with more sampling versus years with less sampling. Therefore, using a weighted mean helps account for the fluctuations in levels of sampling relative to observed catch of river herring and shad to help mitigate the effects of any outlier years.

The revised methodology was developed by the Herring Plan Development Team (PDT). The PDT is the Council's technical group responsible for developing and preparing analyses to support the Council's management actions. The PDT is responsible for generating analyses to calculate quotas, caps, or any other technical aspects of the FMP. For the 2016-2018 catch caps, the PDT reviewed updated river herring and shad catch data and generated a range of catch cap alternatives for the Council's consideration. The PDT concluded that using a weighted mean and longer time series would be the most technically sound approach for specifying the values of the caps because it is consistent with using the best available science. The Council ultimately decided to adopt the river herring/shad catch caps based on the revised methodology recommended by the PDT.

Using the revised methodology to calculate river herring/shad catch caps is consistent with using the best available science and it balances the incentive to avoid river herring and shad against the opportunity for the herring fishery to harvest the ACL. For these reasons, NMFS disagrees that the basis for setting river herring/shad catch caps implemented through this action, including the revised methodology, is arbitrary and capricious.

Comment 11: Conservation Law Foundation, Earth Justice, and Save the Bay-Narragansett expressed concern that basing the river herring/shad catch caps on historical landings and not on biological status is problematic and not scientifically sound. The Ipswich River Watershed also commented that there is no science to support raising the caps.

Response: NMFS disagrees. As described previously, available data are not robust enough to specify biologically-based catch caps that reflect river herring and shad abundance. Harvest limits are often based on recent catch when estimates of relative abundance are not available. For example, the herring ABC recommended by the SSC and implemented for 2010-2012 was based on recent catch because of scientific uncertainty associated with the 2009 herring stock assessment. In the absence of sufficient data to specify biologically-based catch caps, the catch caps are set based on recent catch data with the intent of keeping catch below its highest levels to limit fishing mortality on river herring and shad. Limiting catch to recent levels is expected to result in positive impacts on the stocks.

Comment 12: Letters generated by PEW Charitable Trusts and Earth Justice on behalf of numerous U.S. citizens commented that river herring and shad should be added as stocks in the Atlantic Herring FMP and managed based on science.

Response: The intent of this action is to set herring specifications and river herring/shad catch caps for the 2016-2018 fishing years. Adding river herring and shad as stocks in the fishery and developing management measures for both the river herring and shad stocks under the Atlantic Herring FMP are beyond the scope of this action and would require a regulatory amendment.

Comment 13: Earth Justice commented that the revised methodology used to set the river herring/shad catch caps for the 2016-2018 fishing years is not consistent with the Mid-Atlantic Fishery Management Council's (MAFMC) approach for setting the same cap in the Atlantic Mackerel, Squid, and Butterfish FMP. They also commented that implementing the proposed river herring/shad catch caps would interfere with the catch measures first implemented by the MAFMC and are thus inconsistent with the MSA's requirement that new regulations be consistent with existing FMPs, amendments, MSA, and applicable law as stated in U.S.C. 1854(b)(1).

Response: The MSA requires regulations to be consistent with the FMP. The MSA provision cited by the commenters does not require measures to be the same between FMPs. NMFS has determined that the river herring/shad catch caps for the herring and mackerel fisheries, including the associated methodologies for setting caps, are consistent with the Atlantic Herring FMP and the Atlantic Mackerel, Squid, and Butterfish FMP, respectively.

When the MAFMC developed the river herring and shad catch cap for the mackerel fishery, the catch cap was based on median river herring and shad catch in the mackerel fishery during 2005-2012. This methodology was identical to the river herring and shad catch cap methodology developed by the Council for the 2014-2015 herring fishery. However, the Council considers both observer and portside sampling data to set catch caps while the MAFMC only considers observer data. The MAFMC continues to use the median river herring and shad catch estimate from 2005-2012 to set the catch cap for the mackerel fishery. However, if the mackerel fishery harvests 10,000 mt of mackerel in a given year, the river herring and shad catch cap is scaled up to the match the median river herring and shad catch estimate based on the mackerel ACL.

NMFS agrees that river herring/shad catch caps for the herring and mackerel fisheries should not cause management inconsistencies between the two fisheries. Midwater trawl and bottom trawl vessels often participate in both the herring and mackerel fisheries. When fishing trips meet the minimum harvest threshold for catch caps in the herring fishery (6,600 lb (3 mt) of herring) and the minimum harvest threshold for the catch cap in the mackerel fishery (20,000 lb (9,072 kg) of mackerel), then river herring and shad catch on those trips is counted against both caps and vessels would be subject to the most restrictive catch cap. Rather than management inconsistencies, river herring/shad catch caps in both the herring and mackerel fisheries provide an additional incentive to avoid river herring and shad catch, thereby potentially limiting fishing mortality on these species.

Comment 14: Three NGOs, one interested member of the public, the Mystic River Watershed Association, Conservation Law Foundation, Earth Justice, Herring Alliance, and letters from PEW Charitable Trust and Earth Justice submitted on behalf of numerous U.S. citizens commented that raising the river herring/shad catch caps does not minimize bycatch and is inconsistent with the MSA and the goals and objectives of the Atlantic Herring FMP. Earth Justice further commented that raising the catch caps is inconsistent with National Standard 9, which requires that conservation and management measures minimize bycatch to the extent practicable. Lastly, Earth Justice commented that the small-mesh bottom trawl fleet in Southern New England discards an estimated 73 percent of its river herring and shad catch at sea, but NMFS does not explain how it plans to minimize this bycatch, consistent with the MSA.

Response: NMFS disagrees. The MSA, specifically National Standard 9, does not require the elimination of bycatch or bycatch mortality, nor does it require minimizing bycatch at the exclusion of other considerations. Rather, National Standard 9 requires minimizing bycatch and bycatch mortality to the extent practicable, which includes a consideration of the net benefits to the nation. This consideration includes evaluating the negative impacts on affected stocks and other species in the ecosystem, incomes accruing to participants in the directed fishery in both the short and long-term, changes in fishing practices and behavior, and environmental consequences.

As discussed previously, the incentive to minimize the catch of river herring and shad is to avoid the implementation of a herring possession limit. Once a 2,000-lb (907-kg) possession limit is in effect for a particular gear and area, the herring fishery's ability to harvest the herring sub-ACL associated with that area or the herring ACL is limited. This potential economic loss must be weighed against the role of river herring and shad in the herring fishery. River herring and shad are not target species in the herring fishery. Rather, they are harvested because they co-occur with herring and the incidental catch and bycatch of these species is low. Thus, the river herring/shad catch caps are not designed to eliminate all incidental catch. The caps are also not designed to remain static or continually decrease over time. These design features would not provide the flexibility for a full consideration of the net benefits to the nation because they may preclude an opportunity for herring industry to harvest its allowable catch.

When evaluating the river herring/shad catch caps recommended by the Council, NMFS considered the ecological and economic considerations associated with the catch caps, as well fishing practices and behavior. The catch caps are intended to minimize river herring and shad bycatch and bycatch mortality to the extent practicable, while allowing the herring fishery an opportunity to fully harvest the herring ACL. The total catch of river herring and shad (both retained and discarded) is tracked against the catch caps. Because total catch of river herring and shad catch is counted against the catch caps, these caps not only help minimize the retained catch of river herring and shad, but they also help minimize any river herring and shad catch that is discarded at sea. As described in the responses to previous comments, NMFS concludes that catch caps are calculated using new and updated information and are based on the best available science. NMFS also concludes that if vessels continue to avoid river herring and shad, they would have an opportunity to harvest the herring ACL. Additionally, NMFS concludes that catch caps may limit fishing mortality on river herring and shad, thereby supporting ongoing Federal, state, and local conservation efforts. For these reasons, NMFS determines the river herring/shad catch caps implemented in this action reduce bycatch and bycatch mortality to the extent practicable and are consistent with the MSA, National Standard 9, and the Atlantic Herring FMP.

Comment 15: The Mystic River Watershed Association, Conservation Law Foundation, Herring Alliance, and Earth Justice all commented that there is a lack of onboard monitoring and that it is highly likely that more river herring and shad are/will be discarded at sea than reported.

Response: In 2016, NMFS increased observer coverage allocated to New England midwater trawl vessels to approximately 440 days, consistent with the standardized bycatch reporting methodology (SBRM). This is an increase of 401 days (175 percent) over the 160 days observed on the New England midwater trawl fleet in 2015. Three of the four river herring/shad catch caps implemented in this action are for vessels using midwater trawl gear. Additionally, observer coverage allocated to New England small-mesh bottom trawl vessels in 2016 (798 days) is expected to be similar to days observed in 2015 (933 days). The increase in observer coverage should help NMFS more precisely track catch against river herring/shad catch caps. Portside sampling by the Commonwealth of Massachusetts and the State of Maine is expected to continue into the future, collecting data on river herring and shad that are landed by midwater trawl and small-mesh bottom trawl vessels participating in the herring fishery. NMFS is currently considering if it would be appropriate to use portside sampling data along with observer data to track the catch of river herring and shad. Lastly, the Council is considering increasing monitoring in the herring fishery in the Industry-Funded Monitoring Omnibus Amendment. The Council is expected to take final action on this amendment in early 2017.

Comment 16: Conservation Law Foundation, Herring Alliance, and Alewife Harvesters of Maine commented that all the biological uncertainty surrounding river herring and shad estimates demands a precautionary approach to management that requires either no increase in the catch caps or a more gradual increase.

Response: The river herring/shad catch caps were developed by the Council to minimize river herring and shad bycatch to the extent practicable while allowing the herring fishery an opportunity to fully harvest the herring ACL. While NMFS acknowledges the uncertainty in the abundance estimates in the stock assessment for river herring and shad, that uncertainty was not intended to directly factor into the calculation of the river herring/shad catch caps. In fact, because of the absence of sufficient data to specify biologically-based catch caps, the catch caps are set based on recent catch data. The methodology used to calculate the catch caps, which accounts for variability of catch from year to year, incorporates precaution by keeping the catch caps below the highest catch levels and by establishing an incentive for the herring industry to avoid river herring and shad catch.

Comment 17: Save the Bay-Narragansett commented that catch caps are being increased based on socio-economic concerns and that only the Council, and its supporting scientists, and the herring industry support increases to the catch caps.

Response: NMFS must consider all factors, biological and socio-economic factors, when determining whether to accept or reject the Council's recommendations. NMFS has determined that the Council's recommended river herring/shad catch caps are consistent with the Atlantic Herring FMP, the MSA, and other applicable laws, and that comments opposing the increased catch caps provide no compelling information to reject the Council's recommendations.

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed in the 2016-2018 herring specifications EA. A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for this action is contained in the preamble to the proposed rule (81 FR 40253), and is not repeated here. All of the documents that constitute the FRFA are available from NMFS and a copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES) or via the Internet at www.greateratlantic.fisheries.noaa.gov.

NMFS received 32 comment letters on the proposed rule. Those comments, and NMFS' responses, are contained in the Comments and Responses section of this final rule and are not repeated here. None of the comments addressed the IRFA and NMFS did not make any changes in the final rule based on public comment.

This final rule would affect all permitted herring vessels; therefore, the regulated entity is the business that owns at least one herring permit. From 2014 permit data, there were 1,206 firms that held at least one herring permit; of those, 1,188 were classified as small businesses. There were 103 firms, 96 classified as small businesses, which held at least one limited access permit. There were 38 firms, including 34 small businesses, which held a limited access permit and were active in the herring fishery. All four of the active large entities, held at least one limited access herring permit. The small firms with limited access permits had 60 percent higher gross receipts and 85 percent higher revenue from herring than the small firms without a limited access herring permit. Based on 2014 permit data, the number of potential fishing vessels in each permit category in the herring fishery are as follows: 39 for Category A (limited access, all herring management areas); 4 for Category B (limited access, Herring Management Areas 2/3); 46 for Category C (limited access, all herring management areas); 1,841 for Category D (open access, all herring management areas); and 4 for Category E (open access, Herring Management Areas 2/3).

On December 29, 2015, NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for RFA compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) previous standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors, respectively, of the U.S. commercial fishing industry.

An IRFA was developed for this regulatory action prior to July 1, 2016, using SBA's previous size standards. Under the SBA's size standards, 4 of 38 active herring fishing entities with limited access permits were determined to be large. NMFS has qualitatively reviewed the analyses prepared for this action using the new size standard. The new standard could result in fewer commercial finfish businesses being considered small (due to the decrease in size standards).

Taking this change into consideration, NMFS has identified no additional significant alternatives that accomplish statutory objectives and minimize any significant economic impacts of the proposed rule on small entities. The ACLs are fishery wide and any closures would apply to the entire fishery, and should be felt proportionally by both large and small entities. Further, the new size standard does not affect the decision to prepare a FRFA as opposed to a certification for this regulatory action.

This final rule does not introduce any new reporting, recordkeeping, or other compliance requirements.

Specification of commercial harvest and river herring/shad catch caps are constrained by the conservation objectives set forth in the FMP and implemented at 50 CFR part 648, subpart K under the authority of the MSA. Furthermore, specifications must be based on the best available scientific information, consistent with National Standard 2 of the MSA. With the specification options considered, the measures in this final rule are the only measures that both satisfy these overarching regulatory and statutory requirements while minimizing, to the extent possible, impacts on small entities. This rule implements the herring specifications outlined in Table 1 and the river herring/shad catch caps outlined in Table 2. Other options considered by the Council, including those that could have less of an impact on small entities, failed to meet one or more of these stated objectives and, therefore, cannot be implemented. Under Alternatives 1 and 2 for harvest specifications, small entities may have experienced slight increases in both gross revenues and herring revenues over the preferred alternative due to higher ACLs. However, Alternative 1 would fail to create a sustainable fishery because the ABC exceeds the ABC recommended by the SSC for 2016-2018 and has an increased risk of overfishing as compared to the preferred alternative. The ABC associated with Alternative 2 is equal to the ABC associated with the preferred alternative; however, the management uncertainty buffer is less under Alternative 2, resulting in a higher ACL than the preferred alternative. Rather than select an alternative with a higher ACL, the Council selected Alternative 3 to be more precautionary. Alternatives 1 and 2 for the river herring/shad catch caps failed to use the best available science as compared to the Alternative 3, which uses a longer time series, including more recent and previously omitted data, as well as a weighted mean, to best account for the inter-annual variability in the level of river herring and shad sampling, to generate the values for river herring/shad catch caps. The impacts of the specifications, as implemented by this final rule, are not expected to disproportionately affect large or small entities.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (GARFO), and the compliance guide, i.e., permit holder letter, will be sent to all holders of permits for the Atlantic herring fishery. The guide and this final rule will be posted or publicly available on the GARFO Web site.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2016 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,233 metric tons (mt), 4,970 mt, and 17,562 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016). The 2016 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,856 mt, 12,268 mt, and 5,090 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and following revision (81 FR 72740, October 21, 2016).

The Yukon Delta Fisheries Development Association has requested that NMFS exchange 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 73 mt of flathead sole and 606 mt of rock sole CDQ reserves for 679 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016), and following revision (81 FR 72740, October 21, 2016), are revised as follows:

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Yukon Delta Fisheries Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 24, 2016.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.