Federal Register Vol. 81, No.216,

I. Background

Unless otherwise specified, the term “NOAA” refers to the Office for Coastal Management, within NOAA's National Ocean Service. The Office for Coastal Management formed in 2014 through the merger of the Office of Ocean and Coastal Resource Management and the Coastal Services Center.

The CZMA (16 U.S.C. 1451-1466) was enacted on October 27, 1972, to encourage coastal states, Great Lake states, and United States territories and commonwealths (collectively referred to as “coastal states” or “states”) to be proactive in managing the uses and resources of the coastal zone for their benefit and the benefit of the Nation. The CZMA recognizes a national interest in the uses and resources of the coastal zone and in the importance of balancing the competing uses of coastal resources. The CZMA established the National Coastal Zone Management Program, a voluntary program for states. If a state decides to participate in the program it must develop and implement a comprehensive management program pursuant to federal requirements. See CZMA § 306(d) (16 U.S.C. 1455(d)); 15 CFR part 923. Of the thirty-five coastal states that are eligible to participate in the National Coastal Zone Management Program, thirty-four have federally-approved management programs. Alaska is currently not participating in the program.

An important component of the National Coastal Zone Management Program is that state management programs are developed with the full participation of state and local agencies, industry, the public, other interested groups and federal agencies. See e.g., 16 U.S.C. 1451(i) and (m), 1452(2)(H) and (I), 1452(4) and (5), 1455(d)(1) and (3)(B), and 1456. The comprehensive state management programs must address the following areas pursuant to 15 CFR part 923:

1. Uses Subject to Management (Subpart B);

2. Special Management Areas (Subpart C);

3. Boundaries (Subpart D);

4. Authorities and Organization (Subpart E); and

5. Coordination, Public Involvement and National Interest (Subpart F).

NOAA approval is required for the establishment of a state management program. Once approved, changes to one or more of the program management areas listed above, including new or revised enforceable policies, must be submitted to NOAA for approval through the program change process.

Program changes are important for several reasons: The CZMA requires states to submit changes to their programs to NOAA for review and approval (16 U.S.C. 1455(e)); state programs are not static—laws and issues change, requiring continual operation of the CZMA state-federal partnership; and the CZMA “federal consistency” provisions require that federal actions that have reasonably foreseeable coastal effects be consistent with the enforceable policies of federally-approved management programs. The state-federal partnership is a cornerstone of the CZMA. The primacy of state decisions under the CZMA and compliance with the CZMA federal consistency provision is balanced with adequate consideration of the national interest in CZMA objectives; the opportunity for federal agency input into the content of state management programs; NOAA evaluation of management programs and NOAA review and approval of changes to management programs.

In establishing and maintaining their federally-approved management programs, states must consider national interest objectives of the CZMA in addition to state and local interests. The national interest objectives of the CZMA include:

• Effective management, beneficial use, protection and development of the coastal zone (16 U.S.C. 1451(a));

• important ecological, cultural, historic and esthetic values of the coastal zone are essential to the well-being of all citizens (16 U.S.C. 1451(d));

• anticipating and planning for the effects of climate change (16 U.S.C. 1451(l));

• managing coastal development to minimize the loss of life and property caused by improper development and coastal storms (16 U.S.C. 1452(2)(B)); and

• giving priority consideration to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries, recreation, and ports and transportation (16 U.S.C. 1452(2)(D)).

Some of the important issues NOAA must consider when evaluating program changes include whether the change would: (1) Affect CZMA national interest objectives; (2) attempt to regulate federal agencies, lands or waters, or areas outside state jurisdiction; (3) be preempted by federal law; (4) discriminate against particular coastal users or federal agencies; (5) include policies that are enforceable under state law; and (6) raise issues under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), National Historic Preservation Act (NHPA), Magnuson Stevens Fisheries Conservation and Management Act (MSFCMA) or other federal laws.

NOAA review and approval of program changes is also important because the CZMA provides for federal agency and public participation in the content of a state's management program. NOAA can only approve management programs and changes to management programs after federal agencies and the public have an opportunity to comment on the content of the program change. Within the context of the CZMA federal consistency provisions, an enforceable policy is a state policy that has been incorporated into a state's federally-approved management program, is legally binding under state law (e.g., through constitutional provisions, laws, regulations, land use plans, ordinances, or judicial or administrative decisions), and by which a state exerts control over private and public coastal uses and resources. See 16 U.S.C. 1453(6a) and 15 CFR 930.11(h) (enforceable policy). This means that enforceable policies must be given legal effect by state law and cannot apply to federal lands, federal waters, federal agencies or other areas or entities outside a state's jurisdiction, unless authorized by federal law. Also, the CZMA § 307 federal consistency provision requires that state enforceable policies are the standards that apply to federal agency activities, federal license or permit activities, outer continental shelf plans and federal financial assistance activities. 16 U.S.C. 1456; see also 15 CFR 930.11(h). Therefore, federal agencies and the public must have an opportunity to review proposed substantive changes to a state's enforceable policies.

Program changes are also important because the CZMA federal consistency provision applies only if the federal action has reasonably foreseeable coastal effects and a state has applicable policies approved by NOAA that are legally enforceable under state law. It is therefore important for states to submit to NOAA for approval timely updates to state management program enforceable policies.

The current program change regulations, 15 CFR part 923, subpart H, have been in place since the late 1970s. The CZMA was revised in 1990, in part, to place greater emphasis on state management program enforceable policies. This has led to an increase in the number of program changes submitted to NOAA and the workload for state and federal staff. States and NOAA have, therefore, recognized the need to clarify the program change procedures and to provide a more administratively efficient submission and review process. In 1996, NOAA made minor revisions to the regulations and also issued program change guidance that further described program change requirements. In 2013, NOAA issued an addendum to the 1996 program change guidance for added clarification. Over the years, states and NOAA have, at times, found the regulations difficult to interpret. For example, there has been confusion about determining: When a program change is “routine” versus an “amendment;” when a program change is “substantial;” what level of state analysis is required; what level of detail is needed for a policy to be enforceable; and what can be approved as an enforceable policy.

NOAA's objectives in revising the program change regulations are to:

1. Establish a clear, efficient and transparent process for program change review;

2. Describe approval criteria and how these apply;

3. Use terminology from the CZMA, including time lines and extensions;

4. Eliminate the distinction between “routine program changes (RPCs)” and “amendments.” This would remove the program change analysis currently done by states to determine if a change is substantial, and therefore an amendment, and instead require states to describe the nature of the program change and indicate whether the state believes the program change would impact CZMA program approvability areas, national interest objectives, or compliance with other federal laws. The distinction between RPCs and amendments, and the substantiality analyses by states are administrative and paperwork burdens with little or no benefit;

5. Continue to determine on a case-by-case basis the appropriate level of NEPA analysis warranted. With over 35 years of reviewing program changes, NOAA has determined that the vast majority of program changes do not, for purposes of NEPA, significantly affect the human environment;

6. Encourage states to use underline/strikeout documents for program change submissions to show changes to previously approved policies;

7. Create a program change form that all states would use to submit changes to NOAA, easing state and NOAA paperwork burdens, promoting more consistent submissions and NOAA analyses, and expediting NOAA's review;

8. Use a NOAA “Program Change Web site” through which NOAA would electronically post program changes and public comments received, and notify federal agencies and the public of the status of program changes; and

9. Require states to post program change public notices on the state's management program Web site.

In addition, the current regulations at 15 CFR part 923, subpart H, include “termination of approved management programs.” However, sanctions to and termination of management programs are described in detail in Subpart L—Review of Performance. Therefore, the proposed changes to subpart H would no longer include termination of approved management programs.

Comments were submitted on the ANPR by the Coastal States Organization (CSO), the U.S. Navy, the San Francisco Bay Conservation and Development Commission (BCDC) and the states of Delaware and Oregon. Most of the comments received on the ANPR supported NOAA's objectives and some comments offered suggestions for how some of these objectives might be achieved. NOAA presented eight points in the ANPR to help focus comments. These eight points and the comments submitted to NOAA are discussed below.

1. Establishing a clearer and more efficient and transparent process for program change review.

Comments: All commenters support this objective.

For minor changes to enforceable policies, local plans, etc., a simplified approach could be an annual report to NOAA using a NOAA form/checklist that would describe the change, scope of the change and impacts to enforceable policies (Oregon).

For changes to local enforceable policies such as comprehensive plan provisions, land use regulations and maps, Oregon suggests two alternatives:

Alternative A—NOAA would allow a state to determine that a change in local enforceable policies is consistent with the underlying enforceable policies of state statute or rule that were previously approved by NOAA. A state would submit an annual summary of local amendments that are consistent with underlying state enforceable policies, along with the dates of approval by the state management program of the changes; or,

Alternative B—NOAA and each state would enter into a Memorandum of Understanding that specifies the conditions under which a state would submit changes to local statutes and administrative rules and regulations, and local enforceable policies.

The Navy made various recommendations:

1. Develop specific and reasonable timelines that allow sufficient time for review, and set timelines for related issues such as extensions, preliminary approvals, and requesting mediation;

2. The public should be provided immediate notice of proposed and final program changes;

3. Impose a new requirement for states to assist with notification of the public and federal agencies that may wish to review proposed changes; and

4. Use modern information technology by providing that posting the proposed changes on the Internet, when combined with an email notification roster (listserv), serves as official notification. Create Web sites that include the state's proposed text, NOAA decisions and NEPA documents and links to state management programs.

NOAA Response: NOAA believes that the proposed program change regulations meet the proposal by Oregon for minor changes to state management programs. A state could submit program changes as they occur or on a cyclical basis (twice a year, once a year, etc.) and NOAA has included this in the proposed rule at § 923.81(a). NOAA believes that Oregon's proposal for local plans and policies: (1) Is not compatible with the CZMA requirement that states submit program changes to NOAA for review and approval (16 U.S.C. 1455(e)); (2) would not provide adequate opportunity for NOAA to determine if the local policies are consistent with the decision criteria described in § 923.84; and (3) would not provide adequate opportunity for federal agency or public comment. NOAA believes that the program change submission process in proposed § 923.82 provides an alternative for Oregon's proposal and still satisfies CZMA and NOAA approval requirements.

In response to the Navy, NOAA believes that all of the Navy's recommendations have been met in the proposed rule regarding use of both state and NOAA Web sites and listservs to provide notice of and access to program changes and NOAA's decisions as well as relevant timeframes and decision dates that are dictated primarily by statute.

2. Describing clearer approval/disapproval criteria and how these apply.

Comments: All commenters support this objective. NOAA's decision criteria need to be clearly defined (BCDC).

The only applicable criteria should be that (1) the program continues to meet the standards set forth in section 306 of the CZMA, and (2) that the revised program does not place an unacceptable burden on a federal agency operating in the coastal zone (CSO, Oregon).

Allow state policies to refer to state and allowable federal codes and regulations without including the full text of those authorities (Delaware).

NOAA Response: NOAA has described its program change decision criteria in proposed § 923.84 and believes that the proposed criteria, as well as the program change documentation and form, will clearly define the NOAA decision process. NOAA disagrees that its only approval criteria should be a finding that the program continues to meet the program approval criteria and does not place an unacceptable burden on federal agencies. NOAA believes that in order to meet its obligations under the CZMA, the proposed decision criteria, which NOAA has been using as a matter of policy and practice for many years, are needed to comply with the CZMA and Congressional intent for NOAA oversight. In addition, determining what would be an “unacceptable burden” on federal agencies would be subjective at best; rather, NOAA's decision criteria provide a more objective and legally sound basis on which to evaluate state program changes.

NOAA also disagrees that states should be able to impose standards “by reference” when those referenced standards have not been subjected to the program change process, NOAA review and opportunity for federal agency and public comment.

3. Using the simpler statutory language, including time lines, extensions, and preliminary approval.

Comments: All commenters support this objective.

NOAA Response: No response needed.

4. Keeping the “routine” concept to streamline the process for truly routine changes, but do away with “routine program changes (RPCs)” and “amendments” and replace with just “program changes.”

Comments: The commenters support keeping the routine concept and eliminating amendments. The level of analysis should be tailored to fit the complexity of the change to the state's program; assigning labels or categories to changes does not add to the process (BCDC, CSO, Delaware, Oregon).

The Navy welcomes NOAA's initiative towards improving the transparency and ease of the coastal zone management program change review and approval process. The Navy supports NOAA's suggestion that truly routine program changes be identified and their handling streamlined. However, the Navy supports a separate process for amendments (substantial changes) so that affected federal agencies can comment on the proposals. The Navy stated that NOAA should review the types of changes that have been approved over recent years and develop a list of examples deemed to be routine, and NOAA should use the list to prepare descriptive criteria for routine changes.

NOAA Response: Consistent with the comments from BCDC, CSO, Delaware and Oregon, the program change regulations will eliminate the distinction between “routine program changes” and “amendments.” States will be required to use a program change form to identify the changes being submitted for approval. The level of effort needed by NOAA to review changes will correspond to the type of changes proposed. All program changes will be submitted using the same process, which will eliminate the need for states to make the former distinction between amendments and routine program changes. Using the same process, in addition to a program change form, should make program change submissions and review more efficient for state and NOAA staff. Program changes identified in proposed § 923.82(b) will be reviewed by NOAA in a more expedited manner.

NOAA believes it has met the Navy's objectives without needing to use the current distinction between routine program changes and amendments. As explained elsewhere in the proposed rule, this distinction is unnecessary and the history of program changes shows that most changes are routine. Moreover, under the proposed program change regulations, NOAA will provide access to program change materials, send notices to federal agencies, and provide an opportunity for federal agencies to comment on all program changes. At the same time, administrative burdens on states and NOAA will be lessened.

NOAA's proposed removal of the distinction between routine changes and amendments is based on NOAA's review of almost one thousand changes to management programs over the past thirty-five years. The vast majority of these changes were modifications to existing parts of NOAA approved management programs. In only a few instances did NOAA prepare an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) and even rarer an Environmental Impact Statement (EIS). The determining factors in the few instances when NOAA prepared an EA or EIS, were the magnitude of the change proposed by a state, usually involving a major new component to the management program or a major change in focus to the existing management program. Most of these also involved controversial positions by the state.

From 1977 to March 2016, there have been approximately 862 changes to management programs approved by NOAA. Less than 2.5 percent, about twenty, were amendments; approximately 842 were RPCs. Seventy-five percent of the amendments (about fifteen) were before 1990 and many of these were for the addition of energy facility siting plans required by an amendment to the CZMA. For five of the amendments NOAA prepared an EIS (1998, 1991, 1997, 2004 and 2004) and two of these included informal ESA consultation. For fourteen of the amendments NOAA prepared an EA and FONSI. Of the approximately 842 RPCs, NOAA prepared an EA and FONSI for two of them.

State CZMA management programs are comprehensive programs that, when they are being developed, undergo extensive review by states, NOAA, federal agencies and the public, including environmental review and an EIS under NEPA. In most instances changes to management programs have added further details to the previously approved management program and have not presented issues not considered during initial program approval and subsequent program changes. Under NOAA's current program change regulations and guidance these would be routine program changes (RPCs) and not substantial changes, or amendments. NOAA intends to eliminate the distinction between RPCs and amendments and just have “program changes.”

5. Removing the “substantial” evaluations currently done by states and replacing such evaluations with a description of what the change is to the program. Further evaluations (by states or NOAA) would be for specific CZMA, NEPA, ESA, NHPA, etc., purposes, e.g., is an EA or EIS, or ESA consultation needed.

Comments: BCDC, CSO, Delaware, Oregon support removing the “substantial” evaluations.

Much of the difficulty in the current procedure for compiling and submitting program changes stems from the requirement for a detailed comparison of old and new versions of state laws, state rules and regulations, and local comprehensive plans and ordinances. While this side-by-side comparison may have some utility, it turns out to have little or no practical value to either NOAA or the state, and has become a barrier to making federal consistency determinations that reflect current conditions (Oregon).

For substantial changes, NOAA should also provide a Federal Register Notice to ensure that the public understands what changes are proposed. This provides agency personnel who may not be included on an email list or listserv with the opportunity to comment and express their concerns (Navy).

NOAA Response: NOAA does not believe that Federal Register notices, in general, are needed, especially since NOAA will be making program changes and related notices publicly available on its new “Program Change Web site.” Through the Web site, federal agencies and the public will be able to sign up to receive program change notices from NOAA. However, where there is a major change in a state's management program that may require a separate EA or EIS, NOAA may decide to publish notices in the Federal Register.

6. Establishing use of NEPA categorical exclusions.

Comments: CSO and the state of Oregon support this goal, but note that it requires further explanation.

The Navy recommended that NOAA consider, pursuant to 15 CFR 930.33(a)(3), developing a list of universal de minimis activities based on NEPA categorical exclusions and on existing federal activity de minimis lists that have been approved by state agencies, retaining the ability of states and federal agencies to mutually agree on additional de minimis activities. States could modify the universal de minimis lists by adding mitigating or compliance conditions. Such additions should be subject to the change review procedures.

NOAA Response: NOAA will determine on a case-by-case basis the appropriate level of NEPA analysis warranted for the action. NOAA has determined that, when applicable, a more appropriate process for NEPA compliance may be use of a categorical exclusion.

In response to the Navy's novel approach to using the de minimis provision of NOAA's federal consistency regulations, NOAA does not believe it could impose such a list of de minimis activities. NOAA does, however, encourage federal agencies to propose de minimis activities and submit these to the coastal states for their concurrence under the federal consistency provision. See 15 CFR 930.33.

7. Submitting underline/strikeout documents showing changes to previously approved policies.

Comments: BCDC supported the use of underline/strikeout documents, but stated that NOAA should provide flexibility to account for multiple and large-scale changes to a policy over time, large documents, etc.

CSO found this to be an unnecessary and overly burdensome requirement. CSO stated that there may be instances where such a technique is employed to clearly explain a program change, but this is more appropriately an available tool, rather than a strict requirement.

The Navy suggested that NOAA require submission of underline/strikeout documents showing changes to previously approved documents.

NOAA Response: NOAA encourages states to use underline/strikeout documents but recognizes that such documents are not always practicable.

8. Creating a program change checklist that states would submit to ease state and NOAA paperwork burdens and promote consistent submissions and NOAA analyses.

Comments: All commenters support this objective. One item on this checklist would be formal notification of federal agencies about program changes. In addition, CSO and Oregon suggested that a list of federal agencies and points of contact for notice of program changes updated and maintained by NOAA would greatly improve this step in the process. NOAA Response: Through the federal consistency Web site and the developing program change Web site there are and will be federal agency contacts maintained by NOAA. See http://www.coast.noaa.gov/czm/consistency/. In addition, federal agencies and the public will be able to view program changes posted to NOAA's new “Program Change Web site.”

This section describes the general requirements for program changes. Paragraph (a) states that the term “program changes” includes all terms used in the statute, CZMA § 306(e), and identifies the Office for Coastal Management as the NOAA office that administers these regulations. Paragraph (b), derived from CZMA § 306(e), states that a coastal state may not implement a change as part of its management program until NOAA approves the program change. Similarly, a coastal state may not use a state or local government policy or requirement as an “enforceable policy” for purposes of federal consistency unless NOAA has approved the state or local policy or requirement as an “enforceable policy.” State or local government law not approved by NOAA as part of a state's management program remain legal requirements for state and local government purposes, but will not be part of a state's management program and, therefore, cannot be used for CZMA federal consistency purposes.

Paragraph (d) states that the term “enforceable policies” has the same definition as that included in NOAA's CZMA federal consistency regulations at 15 CFR 930.11(h). NOAA has added enforceable policy decision criteria in proposed § 923.84. These criteria have been included in NOAA guidance and information documents and have been part of long-standing NOAA implementation of program changes and enforceable policies. See, e.g., NOAA's Program Change Guidance (July 1996) (http://coast.noaa.gov/czm/consistency/media/guidanceappendices.pdf) and NOAA's Federal Consistency Overview document (http://www.coast.noaa.gov/czm/consistency/media/FC_overview_022009.pdf).

Paragraph (e) notes that the submission of program changes may be required as a necessary action under NOAA's evaluation of management programs under CZMA § 312 and 15 CFR part 923, subpart L. Failure to comply with a necessary action to submit a program change can result in a suspension of CZMA grants pursuant to CZMA § 312 and the subpart L regulations.

This section sets forth various procedures for submitting program changes.

Paragraph (a). Program changes must be submitted by the Governor of a coastal state, the head of the single state agency designated under the management program to be the lead state agency for administering the CZMA, or the head of an office within the designated single state agency if the state has authorized that person to submit program changes.

NOAA would no longer require states to mail hard copies of program changes. Rather, all program changes would be submitted through the new Program Change Web site or through an alternative method, agreed to by the state and NOAA, if an electronic submission through the Web site is not possible.

All deadlines and timeframes would start on the first full business day after NOAA receives a program change (Day 1). For example, if a submission is received on a Thursday, Day one for timeline purposes would be Friday; if the day of receipt is Friday and Monday is a federal holiday, Day 1 would be Tuesday. All days, starting with Day 1, are included in the calculation of total time for a deadline, including weekends and federal holidays. States may request that the official start date occur at a later time; this is an administrative convenience NOAA has allowed states to use in the past to account for various state administrative purposes.

Paragraph (b). NOAA shall confirm receipt of all program changes and future deadlines. During NOAA's review of a program change, NOAA may request additional information that it needs to make its decision.

Paragraph (c). This paragraph sets forth the deadlines NOAA must follow in responding to state program change requests. The deadlines in paragraph (c) are the same as NOAA's current practice and clarify a discrepancy that exists in the current program change regulations and the CZMA. NOAA is required by the Act to respond within 30 calendar days of receipt of a program change request. The 30-day period starts on Day 1 (the first full business day after receipt of a program change request). If NOAA does not respond within the 30-day period, then NOAA's approval is presumed. NOAA may extend its review period up to 120 days after receipt of a program change request, if NOAA so notifies the state during the 30-day period. NOAA may continue to extend its review period up to 120 days and can extend beyond 120 days for NEPA compliance; NOAA would have to notify the state of the NEPA extension during the 120-day review period.

Paragraph (d). This paragraph codifies the current practice of pre-submission consultation with NOAA to identify any potential approval issues prior to submitting a program change submission. States are encouraged to submit draft program changes to NOAA for informal review and to consult with NOAA, to the extent practicable, prior to state adoption of new or revised laws, policies and other provisions that the state intends to submit as a program change.

Paragraph (e). NOAA is simplifying the public notice and comment procedures for program changes. Given the reliance on electronic means of communication and the demise of hard copy notices in newspapers and other formats, all states would be required to post public notices on state management program's Web site and directly email or mail notices to applicable local and regional offices of relevant federal agencies, federal agency headquarter contacts, affected local governments and state agencies, and any individuals or groups requesting direct notice. NOAA's program change review period would not begin until such notice is provided. NOAA will also post the state notices on its Program Change Web site and directly notify via email federal agency headquarter contacts and any other individual or group requesting direct notice. The state's public notice would describe the program change, any new or modified enforceable policies, and indicate that any comments on the program change shall be submitted to NOAA. NOAA will post the program change and all NOAA decisions on its Web site and notify federal agency headquarter contacts and other individuals or groups requesting notification. NOAA may extend the public comment period.

Paragraph (f). This paragraph states that program changes to enforceable policies can only be applied for CZMA federal consistency review purposes on or after the date NOAA approves the changes. The effective date for the approved changes will be the date on NOAA's approval letter. NOAA will post its program change decision letters on its Program Change Web site. This section would also codify in regulation NOAA's long-standing position that a state enforceable policy cannot apply retroactively to previously proposed federal actions; proposed federal actions are only subject to the management program enforceable policies approved at the time the federal action is proposed under the various subparts of 15 CFR part 930. Applying newly approved program changes retroactively to proposed federal actions would be contrary to Congressional intent that federal consistency apply in an expeditious and timely manner, and could impose unfair requirements on applicants and federal agencies.

The changes described in § 923.82(b) are editorial or are minor in scope, both procedurally and substantively. These changes are not controversial and pose little or no impact on federal agencies or the public. Therefore, NOAA's review of changes under § 923.82(b) would be expedited.

Paragraphs (b)(1) through (4) describe program changes that are either editorial in nature or are minor in scope, both procedurally and substantively. Paragraph (b)(1) addresses editorial or non-substantive changes to state laws, regulations, enforceable policies, local government coastal programs or plans that contain enforceable policies, and other authorities. Paragraph (b)(2) covers changes to special area management plans that do not change a state's coastal zone boundary, enforceable policies or geographic location descriptions, and are not otherwise used by the state for federal consistency review. Paragraph (b)(3) covers most organizational changes where the primary structure and responsibilities of the management remain intact. NOAA will closely monitor organizational changes to ensure that major overhauls of a state's management program structure would not weaken a coastal program.

Paragraph (b)(4). Most program changes, even those that result in some substantive change to a management program, have historically been routine and non-controversial, and have not posed any approval issues or resulted in any comments from federal agencies or the public. NOAA's review of these types of program changes should be expedited so long as these minor substantive changes would only apply to revised enforceable policies, not wholly new enforceable policies, and the changes are consistent with the scope and application of the previously approved enforceable policy.

The types of program changes under § 923.82(c) are self-explanatory and include: any changes that are not covered under § 923.82(b) and would be used for federal consistency purposes (new or revised enforceable policies, changes to state lists of federal actions subject to federal consistency review, geographic location descriptions outside the coastal zone, necessary data and information); new or revised coastal uses; changes in the coastal zone boundary; program approval authorities; and special area management plans.

Paragraph (c)(4), recognizes that for some states with local coastal programs or plans, the state can respond to federal consistency reviews without having to refer to the local programs or plans. In such cases, while the local programs and plans are important implementing mechanisms for coastal management in the state, states do not need to submit updates to the local programs or plans if they do not contain enforceable policies for federal consistency purposes. This would remove the substantial administrative burden for states and NOAA to submit and review local coastal programs.

Paragraph (d) addresses changes to state Clean Air Act (CAA) and Clean Water Act (CWA) Pollution Control Requirements. CZMA § 307(f) states that CAA and CWA requirements established by the Federal Government or by any state or local government pursuant to the CWA and CAA shall be incorporated in state management programs and shall be the water pollution control and air pollution control requirements applicable to such management program. NOAA's long-standing interpretation of 307(f) has been that these CWA and CAA pollution control requirements are automatically enforceable policies of the state management programs and, therefore, states are not required to submit as program changes any changes to state CAA and CWA provisions.

Section 923.83 describes all the program change information a state would submit to NOAA. These requirements are self-explanatory. NOAA intends to transform each of these paragraphs into a form that would, to the greatest extent practicable, use check-boxes or “radio-buttons,” and require minimal text input. While the same form would be used for all program changes, there would be less information needed for those changes that fall under § 923.82(b).

Paragraph (a)(2)(vi) codifies NOAA interpretation and long-standing practice of the term “enforceable mechanism.” An enforceable mechanism is the state legal authority that makes a state policy enforceable under state law. In order to be an “enforceable policy,” CZMA § 304(6a) requires that the policies be legally binding under state law. NOAA has interpreted this to mean that the enforceable policy must be incorporated into the state's NOAA-approved management program, but the underlying enforceable mechanism does not necessarily have to be incorporated into a state's management program or submitted for NOAA approval. Some enforceable mechanisms are integral parts of the management program or are needed for NOAA approval of a state's management program and changes to these enforceable mechanisms would be submitted to NOAA as program changes (e.g., core management program statutes, regulatory permit programs that implement a part of a management program). States need to identify the enforceable mechanism for each enforceable policy. This is needed not only so NOAA can concur that a state policy is legally binding under state law, but an enforceable mechanism may be changed in such a way that makes an enforceable policy no longer legally binding under state law. In such cases, that policy, while previously approved by NOAA as part of the state's management program, would no longer be an enforceable policy that could be used for federal consistency purposes.

States are encouraged to show the changes, additions and deletions to enforceable policies using an underline/strikeout format or other similar format. If a state uses an underline/strikeout format, the state should only show the changes from the version of the policy last approved by NOAA and the most current version that is being submitted to NOAA; a state does not need to show any changes to the policy that might have been made in between NOAA's last approval and the current version.

States are also encouraged to post comprehensive lists of the enforceable policies to the state's coastal management program Web site.

The decision criteria in this section are taken from the current Program Change Guidance (1996) and NOAA's Federal Consistency Overview document. NOAA has applied these criteria since at least 1996 when reviewing program change requests. These criteria are generally self-explanatory and states would use a program change form to be developed by NOAA to assess whether these criteria are satisfied. For enforceable policies under paragraph (b) of this section, a policy must contain a standard; if a provision of a state law or regulation merely directs a state agency to develop standards, then that provision would not be an enforceable policy as it does not contain a standard. An enforceable policy should contain terms such as “shall,” “must,” or other terms interpreted under state law that mandate some action or compliance. Paragraph (b) also clarifies that it does not always make sense to parse out the enforceable policies within a statute or regulation that also contain parts that are necessary details for applying enforceable policies even though not enforceable themselves. This includes definitions, procedures, and information requirements that are essential elements of interpreting the substantive standards and determining consistency with the standards. Therefore, in some cases NOAA may find that a statute or regulation in its entirety is enforceable.

Paragraph (b) also clarifies that enforceable policies must: Apply to areas and entities within state jurisdiction; not assert regulatory authority over federal agencies, lands or waters unless federal law authorizes such jurisdiction; not be preempted on their face by federal law; not attempt to incorporate by reference other state or local mandatory requirements not submitted to, reviewed, and approved by NOAA; not discriminate against a particular activity or entity; and not adversely affect the national interest in the CZMA objectives.

For example, if a state is concerned about having policies that would apply to offshore oil and gas activities, the state would need to develop policies that would apply to any activity or industry that would have similar coastal effects; the state could not single out offshore oil and gas unless there are specific activities or coastal effects that only apply to the offshore oil and gas industry. Likewise, if a state wants to promote marine renewable energy in its enforceable policies, it may do so, but could not at the same time prohibit other forms of energy development without sufficient justification. Blanket prohibitions are generally not approved by NOAA as part of a state's management program unless a state provides sufficient justification. NOAA will not approve proposed enforceable policies which can be applied in an arbitrary or in a discriminatory manner. An enforceable policy cannot prohibit an activity due to the nature of its effects, e.g., potential marine mammal ship strikes, if other activities pose the same kind and degree of risk and are not prohibited. There must be a sufficient justification for discriminatory policies. NOAA would evaluate such proposed program changes to determine if such discrimination is warranted and also whether a prohibition of an activity would violate the national interest objectives of the CZMA.

Paragraph (c) codifies long-standing NOAA practice and guidance when previously NOAA-approved enforceable policies are no longer enforceable for purposes of federal consistency review. If an underlying enforceable mechanism, e.g., a state law, is repealed or changed in such a way so that an enforceable policy is no longer supported by the law, or a court determines a policy is not enforceable, then the policy is no longer legally binding under state law and could no longer be used for federal consistency purposes. The same applies if a policy previously approved by NOAA is subsequently preempted by federal law or impacted by a court decision.

Paragraph (d) describes NOAA criteria for states to amend their lists of federal actions subject to federal consistency review and to propose geographic location descriptions (GLDs) to review federal actions outside the coastal zone, either landward or seaward. This paragraph focuses on the need for a state to make an adequate justification based on reasonably foreseeable effects to the state's coastal uses or resources. For NOAA to find that an activity in a proposed GLD outside the coastal zone may have coastal effects, a state must show that the impact from an activity will have a reasonably foreseeable effect to coastal uses or resources of the state. A state's burden to demonstrate coastal effects means that a mere assertion that an activity in federal waters will have an impact is insufficient to make a finding of reasonably foreseeable coastal effects. Moreover, a state's effects analysis must provide more than general assertions of impacts or that resources or uses are “important,” or should be reviewed because of the proximity of an activity to state coastal uses or resources. A persuasive coastal effects analysis should identify:

1. The affected uses (e.g., commercial and recreational fishing, boating, tourism, shipping, energy facilities) and resources (e.g., fish, marine mammals, reptiles, birds, landmarks).

2. Where and in what densities the uses and resources are found.

3. How the state has a specific interest in the resource or use. Be specific in showing their connection to the coastal zone of the state (e.g., economic values, harvest amounts, vulnerabilities, seasonal information relevant to the proposed activity).

4. Where the proposed activity overlaps with these resources, uses and values.

5. Impacts to the resources or uses from the proposed activity.

6. The causal connection to the proposed activity, including how any impacts from the activity results in reasonably foreseeable effects on the state's coastal uses or resources.

7. Why any proposed mitigation may be inadequate.

8. Empirical data and information that supports the effects analysis and can be shown to be reliable; visualizes the affected area, resources and uses with maps; and shows values, trends and vulnerabilities.

This section describes compliance and consultations under other federal law such as ESA, NHPA, MSFCMA or MMPA. This has to do with the nature of NOAA's action in approving a program change, in that NOAA can approve or deny a program change, but cannot affect the state's ability to enact a law and implement it at the state level. NOAA's approval of any state or local provisions as enforceable policies of the state's management program means those provisions can be used during a state's CZMA federal consistency review.

In addition, it is important to understand the nature of NOAA's discretion for the review and approval of program changes when informally or formally consulting on Endangered Species Act, other federal consultations and addressing tribal concerns.

The CZMA is not a delegated program; there are not federal CZMA standards, there is not a federal coastal zone, and NOAA does not implement management programs. The CZMA is a voluntary program and if a state chooses to participate it develops a management program unique to each state, based on state laws and policies pursuant to general program requirements in the CZMA and NOAA's regulations.

Once NOAA approves a state's management program, NOAA cannot require a state to change its program. NOAA can, through periodic evaluations of a state's management program under CZMA § 312, establish necessary actions if NOAA finds a state is not adhering to its NOAA-approved program, but NOAA can only recommend that a state change its program to create a different state standard or to address emerging issues. If NOAA finds that a state is not adhering to its management program and the state does not remedy the issue, NOAA's only recourse is to impose financial sanctions by withholding a part of a state's annual CZMA implementation grant until the state remedies the issue or ultimately NOAA could decertify a state's management program.

If a state submits a program change, NOAA can approve or disapprove that program change. When NOAA reviews a program change, NOAA has a limited ability to require a state to make changes to state policies. If NOAA disapproves, this does not require a state to change state law. Therefore, there is no effect from NOAA's denial on the implementation of state law at the state (or local government) level. NOAA's denial means the disapproved state policy is not part of the state's NOAA approved management program and cannot be used for CZMA federal consistency purposes. NOAA cannot use a program change to require changes to other parts of a state's management program.

This program is subject to Executive Order 12372.

NOAA has concluded that this regulatory action is consistent with federalism principles, criteria, and requirements stated in Executive Order 13132. The proposed changes in the program change regulations are intended to facilitate federal agency coordination with coastal states, and ensure compliance with CZMA requirements. The CZMA and these revised implementing regulations promote the principles of federalism articulated in Executive Order 13132 by granting the states a qualified right to amend their federally-approved management programs to address activities that affect the land and water uses or natural resources of state coastal zones and to apply these amended management programs to federal actions through the CZMA federal consistency provision. CZMA § 307 and NOAA's implementing regulations (15 CFR part 930) balance responsibilities between federal agencies and state agencies whenever federal agencies propose activities, or applicants for a required federal license or permit propose to undertake activities, affecting state coastal uses or resources. Through the CZMA, federal agencies are required to carry out their activities in a manner that is consistent to the maximum extent practicable with federally-approved state management programs while licensees and permittees are to be fully consistent with the state programs. The CZMA and these implementing regulations, rather than preempting a state, provide a mechanism for it to object to federal actions that are not consistent with the state's management program. A state objection prevents the issuance of the federal permit or license, unless the Secretary of Commerce overrides the objection. Because the CZMA and these regulations promote the principles of federalism and enhance state authorities, no federalism assessment need be prepared.

This regulatory action is not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation for the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The term “small entity” includes small businesses, small organizations, and small governmental jurisdictions. The Regulatory Flexibility Act (RFA) defines a small jurisdiction as any government of a district with a population of less than 50,000.

The existing regulations do not have a significant economic impact on a substantial number of small entities and, thus, these clarifying changes will not result in any additional economic impact on affected entities. The proposed rule revises provisions of the program change regulations to provide for a more effective and efficient process for states to amend their management programs, NOAA to review the proposed changes, and for federal agencies and the public to comment. The program change regulations, and the proposed rule, primarily affect states; the proposed changes do not impose any requirements on small entities.

The existing regulations do not, and the proposed rule will not, if adopted, have a significant economic impact on a substantial number of small entities. Accordingly, an Initial Regulatory Flexibility Analysis was not prepared.

This proposed rule contains no additional collection-of-information requirement subject to review and approval by the Office of Management and Budget under the Paperwork Reduction Act; rather it changes the manner in which states provide information to NOAA and, in some cases, eliminates or reduces information currently required.

NOAA has concluded that this proposed regulatory action does not have the potential to pose significant impacts on the quality of the human environment. Further, NOAA has concluded that this proposed rule, if adopted, would not result in any changes to the human environment. Therefore, NOAA has concluded that, pursuant to sections 5.05 and 6.03c.3(i) of NAO 216-6, this proposed rulemaking does not have a significant impact on the human environment and is categorically excluded from the need to prepare an environmental assessment or environmental impact statement pursuant to the requirements of NEPA in accordance with NAO 216-6. See also the description above on NEPA compliance for program changes.

For the reasons stated in the preamble, NOAA proposes to revise 15 CFR part 923 as follows:

We are announcing the availability of a draft guidance for industry entitled “Questions and Answers Regarding Food Facility Registration (Seventh Edition): Guidance for Industry.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of the 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 alternate approach if it satisfies the requirements of the applicable statutes and regulations.

On October 10, 2003, FDA issued an interim final rule (68 FR 58893) to implement amendments to the FD&C Act made by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act) (Pub. L. 107-188). Section 415 of the FD&C Act (21 U.S.C. 350d) requires domestic and foreign facilities that manufacture, process, pack, or hold food for human or animal consumption in the United States to register with FDA by December 12, 2003. Section 102 of the FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353), enacted on January 4, 2011, amended section 415 of the FD&C Act to, among other things, require facilities engaged in manufacturing, processing, packing, or holding food for consumption in the United States to submit additional registration information to FDA. Section 102 of FSMA also directed FDA to amend the definition of “retail food establishment” in 21 CFR 1.227. On July 14, 2016, FDA issued a final rule (Registration Final Rule) to amend and update FDA's registration regulation and implement the FSMA revisions (81 FR 45912; July 14, 2016).

This draft guidance was developed to answer frequently asked questions relating to the registration requirements of section 415 of the FD&C Act. The first edition of the guidance was issued as Level 2 guidance consistent with our good guidance practices regulation (21 CFR 10.115) and was made available on FDA's Web site on December 4, 2003. The second, third, fourth, and fifth editions of the guidance were issued as Level 1 guidance documents under 21 CFR 10.115 and were made available on FDA's Web site on January 12, 2004; February 17, 2004; August 6, 2004; and December 17, 2012, respectively. The sixth edition of the guidance was issued as Level 1 guidance and included one additional question and answer relating to a proposed amendment to the “farm” definition in 21 CFR 1.227 (see 79 FR 58523; September 29, 2014). Since publication of the sixth edition of the guidance, we have issued the Registration Final Rule. In addition, we have issued the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food final rule (Preventive Controls for Human Food Final Rule) (80 FR 55908; September 17, 2015) that, among other things, revised the definition of “farm” in 21 CFR 1.227. We have also issued the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals final rule (Preventive Controls for Animal Food Final Rule) (80 FR 56169; September 17, 2015). We are issuing a seventh edition of the guidance to add information relating to the Registration Final Rule and the revised “farm” definition, as well as to address questions received from stakeholders since publication of the sixth edition. We are reserving two sections in the draft guidance and will issue a revised draft guidance at a later date that includes those reserved sections. The sections that we are announcing are as follows:

• Section A. Who Must Register?

• Section D: When Must You Register or Renew Your Registration?

• Section E: How and Where Do You Register or Renew Your Registration?

• Section F: What Information is Required in the Registration?

• Section G: What Optional Items are Included in the Registration?

• Section H: How and When Do You Update Your Facility's Registration Information?

• Section I: How and When Do You Cancel Your Facility's Registration Information?

• Section J: What Other Registration Requirements Apply?

• Section K: What are the Consequences of Failing to Register, Renew, Update, or Cancel Your Registration?

• Section L: What Does Assignment of a Registration Number Mean?

• Section M: Is Food Registration Information Available to the Public?

• Section N: Waiver Request

• Section O: General Registration Questions

• Section P: Suspension of Registration

• Section Q: Compliance Dates

We intend to announce the availability for public comment of the remaining sections of the draft guidance in a revised draft guidance.

This edition of the draft guidance also revises information in existing questions and answers, removes some questions and answers, and makes editorial changes (e.g., we reorganized existing questions and answers) to improve clarity. For the revised questions and answers, we are not adding a date indicating when the questions and answers were revised. As in the previous editions, the following indicators are used to help users identify revisions: (1) The guidance is identified as a revision of a previously issued document; (2) the revision date appears on the cover of the guidance; (3) the edition number of the guidance is included in its title; and (4) questions and answers that have been added are identified as such in the body of the guidance. In addition, we indicated certain sections in the draft guidance as “Reserved.”

Persons with access to the Internet may obtain the draft guidance at either http://www.fda.gov/Food/GuidanceRegulation/FoodFacilityRegistration/default.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.

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 21 CFR 1.230 through 1.235 and 21 CFR 1.245 have been approved under OMB control number 0910-0502.

Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5)), notice is given that a food additive petition (FAP 2295) has been filed by Novus International, Inc., 20 Research Park Dr., Saint Charles, MO 63304. The petition proposes to amend part 573 (21 CFR part 573) Food Additives Permitted in Feed and Drinking Water of Animals to provide for the safe use of poly (2-vinylpyridine-co-styrene) as a nutrient protectant for methionine hydroxy analog in animal food for beef cattle, dairy cattle, and replacement dairy heifers, and to provide for the safe use of ethyl cellulose as a binder for methionine hydroxy analog to be incorporated into animal food.

The potential environmental impact of this action is being reviewed. To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), the Agency is placing the environmental assessment submitted with the petition that is the subject of this notice on public display at the Division of Dockets Management (see ADDRESSES) for public review and comment. Interested persons may submit to the Division of Dockets Management (see DATES and ADDRESSES) either electronic or written comments regarding this document. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. FDA will also place on public display any amendments to, or comments on, the petitioner's environmental assessment without further announcement in the Federal Register. If, based on its review, the Agency finds that an environmental impact statement is not required and this petition results in a regulation, the notice of availability of the Agency's finding of no significant impact and the evidence supporting that finding will be published with the regulation in the Federal Register in accordance with 21 CFR 25.51(b).

1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number);

• Follow directions and organize your comments;

• Explain why you agree or disagree;

• Suggest alternatives and substitute language for your requested changes;

• Describe any assumptions and provide any technical information and/or data that you used;

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced;

• Provide specific examples to illustrate your concerns, and suggest alternatives;

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,

• Make sure to submit your comments by the comment period deadline identified.

On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary eight-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008). Subsequently, on October 15, 2008, the EPA revised the level of the primary and secondary Pb NAAQS from 1.5 micrograms per cubic meter (μg/m3) to 0.15 μg/m3 (73 FR 66964, Nov. 12, 2008). On January 22, 2010, the EPA promulgated a new one-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb) while retaining the annual standard of 53 ppb. The 2010 NO2 NAAQS is expressed as the three-year average of the 98th percentile of the annual distribution of daily maximum one-hour average concentrations. The secondary NO2 NAAQS remains unchanged at 53 ppb (75 FR 6474, Feb. 9, 2010). On June 2, 2010, the EPA promulgated a revised primary SO2 standard at 75 ppb, based on a three-year average of the annual 99th percentile of one-hour daily maximum concentrations (75 FR 35520, June 22, 2010). Finally, on December 14, 2012, the EPA promulgated a revised annual PM2.5 standard by lowering the level to 12.0 μg/m3 and retaining the 24-hour PM2.5 standard at a level of 35 μg/m3 (78 FR 3086, Jan. 15, 2013).

Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for PM2.5, ozone, Pb, NO2, and SO2 already meet those requirements. The EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, the EPA issued an additional guidance document pertaining to the 2006 PM2.5 NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo), followed by the October 14, 2011, “Guidance on Infrastructure SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)” (2011 Memo). Most recently, the EPA issued “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” on September 13, 2013 (2013 Memo).

The EPA is acting upon the SIP submissions from Wyoming that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2008 Pb, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within three years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA; “regional haze SIP” submissions required by the EPA rule to address the visibility protection requirements of CAA section 169A; and nonattainment new source review (NSR) permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.1 The EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, the EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

Examples of some of these ambiguities and the context in which the EPA interprets the ambiguous portions of section 110(a)(1) and 110(a)(2) are discussed at length in our notice of proposed rulemaking: Promulgation of State Implementation Plan Revisions; Infrastructure Requirements for the 1997 and 2006 PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 National Ambient Air Quality Standards; South Dakota (79 FR 71040, Dec. 1, 2014) under “III. What is the Scope of this Rulemaking?”

With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and the EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”).

CAA section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements such as modeling, monitoring and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency powers.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

A detailed discussion of each of these elements is contained in the next section.

Two elements identified in section 110(a)(2) are not governed by the three-year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment NSR”) required under part D, and (2) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS.

The Wyoming Department of Environmental Quality (Department or WDEQ) submitted certification of Wyoming's infrastructure SIP for the 2008 Pb NAAQS on October 12, 2011; 2008 ozone NAAQS on February 6, 2014; 2010 NO2 NAAQS on January 24, 2014; 2010 SO2 NAAQS on March 6, 2015; and 2012 PM2.5 on June 24, 2016. Infrastructure SIPs were taken out for public notice and Wyoming provided an opportunity for public hearing, as indicated in the cover letter of each certification (available within this docket). Wyoming's infrastructure certifications demonstrate how the State, where applicable, has plans in place that meet the requirements of section 110 for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. These plans reference the Wyoming Air Quality Standards and Regulations (WAQSR) and Wyoming Statutes. These submittals are available within the electronic docket for today's proposed action at www.regulations.gov. The WAQSR and Wyoming Statutes referenced in the submittals are publicly available at http://soswy.state.wy.us/Rules/default.aspx and http://legisweb.state.wy.us/LSOWEB/wyStatutes.aspx. Air pollution control regulations and statutes that have been previously approved by the EPA and incorporated into the Wyoming SIP can be found at 40 CFR 52.2620.

1. Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this Act.

The State's submissions for the 2008 Pb, 2008 ozone 2010 NO2, 2010 SO2, and 2012 p.m.2.5 infrastructure requirements cite three non-regulatory documents (e.g., Control Strategy, Source Surveillance, and Compliance Schedule) which were approved by EPA on May 31, 1972 (37 FR 10842). The State's submissions also cite regulatory documents included in Chapters 1, 3, 4, 8, 10 and 13 of the WAQSR. The SIP approved non-regulatory documents cited in combination with multiple SIP-approved state air quality regulations within WAQSR and cited in Wyoming's certifications, provide enforceable emission limitations and other control measures, means of techniques, schedules for compliance, and other related matters necessary to meet the requirements of the CAA section 110(a)(2)(A) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, subject to the following clarifications.

First, this infrastructure element does not require the submittal of regulations or emission limitations developed specifically for attaining the 2008 Pb, 2008 ozone 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. Wyoming's certifications (contained within this docket) generally list provisions and enforceable control measures within its SIP which regulate pollutants through various programs. This includes its stationary source permit program which requires sources to demonstrate that emissions will not cause or contribute to a violation of any NAAQS. This suffices, in the case of Wyoming, to meet the requirements of section 110(a)(2)(A) for the 2008 Pb, 2008 ozone 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

Second, as previously discussed, the EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the agency plans to take action in the future to address such state regulations. In the meantime, the EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

Finally, in this action, the EPA is also not proposing to approve or disapprove any existing state provision with regard to excess emissions during SSM of operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance 2 and the agency is addressing such state regulations separately (80 FR 33840, June 12, 2015).

Therefore, the EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2008 ozone 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(A) to include enforceable emission limitations and other control measures, means, or techniques to meet the applicable requirements of this element.

2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to “provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary” to “(i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.”

The State's submissions cite five non-regulatory documents (e.g., Air Quality Surveillance, Air Quality Surveillance Network, Implementation Plan for Lead, Wyoming Ambient Air Monitoring Network Plan, and the EPA Performance Partnership Agreement). The State's submissions also cite regulatory documents included in Chapters 1 and 2 of the WAQSR. Provisions contained in Chapter 6, Section 2(b)(i) of the WAQSR provide the legal authority and framework for the Air Quality Division (AQD) Administrator to require that permit applicants submit adequate monitoring data. Additionally, Chapter 6, Section 2(f)(iv) enables the AQD Administrator to impose reasonable conditions upon an approval to construct, modify, or operate, including ambient air quality monitoring. Additionally, the State of Wyoming submits data to the EPA's Air Quality System database in accordance with 40 CFR 58.16. Finally, Wyoming's 2015 Annual Monitoring Network Plan was approved through a letter dated September 24, 2015 (available within the docket). The State provides the EPA with prior notification when changes to its monitoring network or plan are being considered.

We find that Wyoming's SIP and practices are adequate for the ambient air quality monitoring and data system requirements and therefore propose to approve the infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS for this element.

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to “include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [NAAQS] are achieved, including a permit program as required in parts C and D.”

To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs that are adequate to implement the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS. The EPA already proposed approval of section 110(a)(2)(C) for the 2008 ozone NAAQS in a separate rulemaking at 81 FR 53365 (Aug. 12, 2016). As explained elsewhere in this action, the EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. The EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by section 110(a)(2)(C).

Wyoming's Rule (02) II, Legal Authority, which the EPA approved into Wyoming's SIP,3 allows the State to enforce applicable laws, regulations, and standards; to seek injunctive relief; and to provide authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with prevention of significant deterioration requirements.

With respect to Elements (C) and (J), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) prong 3 may also be satisfied by demonstrating the air agency has a complete PSD permitting program that applies to all regulated NSR pollutants. Wyoming has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On July 25, 2011 (76 FR 44265), we approved a revision to the Wyoming PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). As a result, the approved Wyoming PSD program meets the current requirements for ozone.

With respect to GHGs, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, (anyway sources) contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway sources.” 4 With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent D.C. Circuit opinion. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions.

At present, the EPA has determined that Wyoming's SIP is sufficient to satisfy Elements (C), (D)(i)(II) prong 3 and (J) with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to Wyoming's PSD program on December 6, 2013 (78 FR 73445). The approved Wyoming PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit's amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C), (D)(i)(II) prong 3 and (J). The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Wyoming's infrastructure SIP as to the requirements of Elements (C), (D)(i)(II) prong 3, and (J).

Finally, we evaluate the PSD program with respect to current requirements for PM2.5. In particular, on May 16, 2008, the EPA promulgated the rule, “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 28321) (2008 Implementation Rule). On October 20, 2010 the EPA promulgated the rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of these PM2.5 rules as a necessary requirement when assessing a PSD program for the purposes of Element (C).

On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), issued a judgment that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas.

The 2008 Implementation Rule addressed by Natural Resources Defense Council, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” (73 FR 28321, May 16, 2008), promulgated NSR requirements for implementation of PM2.5 in nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 Implementation Rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation Rule in order to comply with the court's decision. Accordingly, the EPA's proposed approval of Wyoming's infrastructure SIP as to Elements (C), (D)(i)(II) prong 3, and (J) with respect to the PSD requirements promulgated by the 2008 Ozone Implementation rule does not conflict with the court's opinion.

The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation Rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

The second PSD requirement for PM2.5 is contained in the EPA's October 20, 2010 rule, “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (75 FR 64864). The EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of Element (C). On July 25, 2011 (76 FR 44265), the EPA approved SIP revisions that revised Wyoming's PSD program which incorporated the 2008 Implementation Rule. The EPA approved revisions to reflect the 2010 PM2.5 Increment Rule on December 6, 2013 (78 FR 73445). Therefore, Wyoming's SIP approved PSD program meets current requirements for PM2.5.

Therefore, the EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the requirement in section 110(a)(2)(C) to include a PSD permitting program in the SIP that covers the requirements for all regulated NSR pollutants as required by part C of the Act.

The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act. The minor NSR program is found in Chapter 6, Section 2 of the WAQSR. The EPA previously approved Wyoming's minor NSR program into the SIP (at that time as Chapter 1, Section 21), and has subsequently approved revisions to the program, and at those times there were no objections to the provisions of this program. (See, for example, 47 FR 5892, February 9, 1982). Since then, the State and the EPA have relied on the State's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting program do not interfere with attainment and maintenance of the NAAQS.

The EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement of control measures in the SIP, and the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved.

4. Interstate transport: The interstate transport provisions in CAA section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct prongs related to the impacts of air pollutants transported across state lines. The two prongs under 110(a)(2)(D)(i)(I) require SIPs to contain adequate provisions to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will (prong 1) contribute significantly to nonattainment in any other state with respect to any such national primary or secondary NAAQS, and (prong 2) interfere with maintenance by any other state with respect to the same NAAQS. The two prongs under 110(a)(2)(D)(i)(II) require SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C (prong 3) to prevent significant deterioration of air quality or (prong 4) to protect visibility. In this action, the EPA is only addressing prong 3 of CAA section 110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 SO2, 2010 NO2 and 2012 PM2.5 NAAQS. All other transport prongs will be addressed in separate rulemaking actions.

With regard to the PSD portion of CAA section 110(a)(2)(D)(i)(II), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA-approved PSD permitting program in the SIP that applies to all regulated NSR pollutants and that satisfies the requirements of the EPA's PSD implementation rules.5 As noted in the discussion for infrastructure element (C) earlier in this notice, the EPA is proposing to approve CAA section 110(a)(2) element (C) for Wyoming's infrastructure SIP for the 2008 Pb, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS with respect to PSD requirements. As discussed in detail in that section, Wyoming's SIP meets the current PSD-related requirements of section 110(a)(2)(C). For this reason, we are also proposing to approve Wyoming's infrastructure SIP as meeting the 110(a)(2)(D)(i)(II) prong 3 (PSD) requirements for the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

In-state sources not subject to PSD for a particular NAAQS because they are in a nonattainment area for that standard may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state.6 One way a state may satisfy prong 3 with respect to these sources is by citing an air agency's EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Wyoming has a SIP-approved nonattainment NSR program which ensures regulation of major sources and major modifications in nonattainment areas, and therefore satisfies prong 3 with regard to this requirement.7

The EPA is proposing to approve the infrastructure SIP submission with regard to the requirements of prong 3 of section 110(a)(2)(D)(i)(II) for the 2008 Pb, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

5. Interstate and International transport provisions: CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement, respectively). Specifically, section 126(a) of the CAA requires major new or modified sources to notify affected, nearby states of the source's potential impacts on air pollution. Sections 126(b) and (c) pertain to petitions affected states may seek from the Administrator of the EPA (Administrator) regarding sources violating the “interstate transport” provisions of section 110(a)(2)(D)(i). Section 115 of the CAA similarly pertains to international transport of air pollution.

As required by 40 CFR 51.166(q)(2)(iv), Wyoming's SIP-approved PSD program requires major new or modified sources to provide notice to states whose air quality may be impacted by the emissions of sources subject to PSD.8 This suffices to meet the notice requirement of section 126(a).

Wyoming has no pending obligations under sections 126(c) or 115(b) of the CAA; therefore, its SIP currently meets the requirements of those sections. In summary, the SIP meets the requirements of CAA section 110(a)(2)(D)(ii), and the EPA is therefore proposing approval of this element for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

6. Adequate resources: Section 110(a)(2)(E)(i) requires states to provide “necessary assurances that the state [. . .] will have adequate personnel, funding, and authority under State law to carry out [the SIP] (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof).” Section 110(a)(2)(E)(ii) also requires each state to “comply with the requirements respecting state boards” under CAA section 128. Section 110(a)(2)(E)(iii) requires states to provide “necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any [SIP] provision, the State has responsibility for ensuring adequate implementation of such [SIP] provision.”

The provisions contained in Articles 1 and 2 of the Wyoming Environmental Quality Act (WEQA) (Chapter 11, Title 35 of the Wyoming Statutes) give the State adequate authority to carry out its SIP obligations with respect to the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

With respect to funding, the State receives sections 103 and 105 grant funds through its Performance Partnership Grant along with required state matching funds to provide funding necessary to carry out Wyoming's SIP requirements.

Wyoming's Performance Partnership Agreement (available within the docket) with the EPA documents resources needed to carry out agreed upon environmental program goals, measures, and commitments, including developing and implementing appropriate SIPs for all areas of the State. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. Wyoming satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015. Furthermore, WAQSR Chapter 6, Section 2(a)(v), Permit for construction, modification, and operation, requires the owner and operator of each new major source or major modification to pay a fee sufficient to cover the cost of reviewing and acting on permit applications. Collectively, these rules and commitments provide evidence that the Wyoming DEQ has adequate personnel (see non-regulatory document, Resources Document, cited in Wyoming's certifications), funding, and legal authority to carry out the State's implementation plan and related issues.

With respect to section 110(a)(2)(E)(iii), the State does not rely upon any other local or regional government, agency or instrumentality for implementation of the SIP. Therefore, we propose to approve Wyoming's SIP as meeting the requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

Section 110(a)(2)(E)(ii) requires each state's SIP to contain provisions that comply with the requirements of section 128 of the CAA. Section 128 contains two explicit requirements: (i) That “any board or body which approves permits or enforcement orders under [the CAA] shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders” under the CAA; and (ii) that “any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed.”

In our December 6, 2013 (78 FR 73445) action, we disapproved Wyoming's March 26, 2008 and August 19, 2011 infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS for CAA Section 110(a)(2)(E)(ii) because the Wyoming SIP did not contain provisions meeting requirements of CAA section 128(a)(1) or (2). Under section 110(c)(1)(B), this disapproval started a two-year clock for the EPA to promulgate a federal implementation plan (FIP) to address the deficiency.

On May 31, 2016, the EPA received a submission from the State of Wyoming to address the requirements of section 128 by adopting revisions to Chapter 1, Section 16 of the Wyoming Department of Environmental Quality General Rules of Practice and Procedure. The Wyoming Environmental Quality Council approved these revisions on March 2, 2016. A copy of the submission, which includes as revisions, the addition of Section 16, Air Quality Division, State Implementation Plan, to Chapter 1, is available within this docket. These rules address board composition and conflict of interest requirements of section 128(a)(1) and (2). We propose to approve this new rule language as meeting the requirements of section 128 for the reasons explained in more detail below. Because this revision meets the requirements of section 128, we also propose to approve the State's infrastructure SIP submissions for element 110(a)(2)(E)(ii). The State submitted the provisions to meet section 128 separately, but section 128 is not NAAQS-specific and once the State has met the requirements of section 128, that is sufficient for purposes of section 110(a)(2)(E)(ii) for all NAAQS. If we finalize this proposed approval for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS, this will also resolve the prior disapproval for element 110(a)(2)(E)(ii) for the 1997 and 2006 PM2.5 NAAQS and terminate the EPA's FIP obligation.

We are proposing to approve the State's May 31, 2016 SIP submission as meeting the requirements of section 128 because we believe that it complies with the statutory requirements and is consistent with the EPA's guidance recommendations concerning section 128. In 1978, the EPA issued a guidance memorandum recommending ways states could meet the requirements of section 128, including suggested interpretations of certain key terms in section 128.9 In this proposed notice, we discuss additional relevant aspects of section 128. We first note that, in the conference report of the 1977 amendments to the CAA, the conference committee stated, “[i]t is the responsibility of each state to determine the specific requirements to meet the general requirements of [section 128].” 10 This legislative history indicates that Congress intended states to have some latitude in adopting SIP provisions with respect to section 128, so long as states meet the statutory requirements of the section. We also note that Congress explicitly provided in section 128 that states could elect to adopt more stringent requirements, as long as the minimum requirements of section 128 are met.

In implementing section 128, the EPA has identified a number of key considerations relevant to evaluation of a SIP submission. The EPA has identified these considerations in the 1978 guidance and in subsequent rulemaking actions on SIP submissions relevant to section 128, whether as SIP revisions for this specific purpose or as an element of broader actions on infrastructure SIP submissions for one or more NAAQS.

Each state must meet the requirements of section 128 through provisions that the EPA approves into the state's SIP and are thus made federally enforceable. Section 128 explicitly mandates that each SIP “shall contain requirements” that satisfy subsections 128(a)(1) and 128(a)(2). A mere narrative description of state statutes or rules, or of a state's current or past practice in constituting a board or body and in disclosing potential conflicts of interest, is not a requirement contained in the SIP and does not satisfy the plain text of section 128.

Subsection 128(a)(1) applies only to states that have a board or body that is composed of multiple individuals and that, among its duties, approves permits or enforcement orders under the CAA. It does not apply in states that have no such multi-member board or body that performs these functions, and where instead a single head of an agency or other similar official approves permits or enforcement orders under the CAA. This flows from the text of section 128, for two reasons. First, as subsection 128(a)(1) refers to a majority of members of the board or body in the plural, we think it reasonable to read subsection 128(a)(1) as not creating any requirements for an individual with sole authority for approving permits or enforcement orders under the CAA. Second, subsection 128(a)(2) explicitly applies to the head of an executive agency with “similar powers” to a board or body that approves permits or enforcement orders under the CAA, while subsection 128(a)(1) omits any reference to heads of executive agencies. We infer that subsection 128(a)(1) should not apply to heads of executive agencies who approve permits or enforcement orders. States with no multi-member board or body that performs these functions, and instead have a single head of an agency or other similar official who approves CAA permits or enforcement orders, can satisfy the requirements of CAA 128(a)(1) with a negative declaration to that effect.

Subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that approves permits or enforcement orders under the CAA. Although the title of section 128 is “State boards,” the language of subsection 128(a)(2) explicitly applies where the head of an executive agency, rather than a board or body, approves permits or enforcement orders. In instances where the head of an executive agency delegates his or her power to approve permits or enforcement orders, or where statutory authority to approve permits or enforcement orders is nominally vested in another state official, the requirement to adequately disclose potential conflicts of interest still applies. In other words, the EPA interprets section 128(a)(2) to apply to all states, regardless of whether a state board or body approves permits or enforcement orders under the CAA or whether a head of a state agency (or his/her delegates) performs these duties. Thus, all state SIPs must contain provisions that require adequate disclosure of potential conflicts of interest in order to meet the requirements of subsection 128(a)(2). The question of which entities or parties must be subject to such disclosure requirements must be evaluated by states and the EPA in light of the specific facts and circumstances of each state's regulatory structure.

A state may satisfy the requirements of section 128 by submitting for adoption into the SIP a provision of state law that closely tracks or mirrors the language of the applicable provisions of section 128. A state may take this approach in two ways. First, the state may adopt the language of subsections 128(a)(1) and 128(a)(2) verbatim. Under this approach, the state will be able to meet the continuing requirements of section 128 without any additional, future SIP revisions, even if the state adds or removes authority, either at the state or local level, to individual or to boards or bodies to approve permits or enforcement orders under the CAA so long as the state continues to meet section 128 requirements.

Second, the state may modify the language of subsections 128(a)(1) (if applicable) and 128(a)(2) to name the particular board, body, or individual official with approval authority. In this case, if the state subsequently modifies that authority, the state may have to submit a corresponding SIP revision to meet the continuing requirements of section 128. If the state chooses to not mirror the language of section 128, the state may adopt state statutes and/or regulations that functionally impose the same requirements as those of section 128, including definitions for key terms such as those recommended in the EPA's 1978 guidance. While either of these approaches would meet the minimum requirements of section 128, the statute also explicitly authorizes states to adopt more stringent requirements, for example, to impose additional requirements for recusal of board members from decisions, above and beyond the explicit board composition requirements. Although such recusal alone does not meet the requirements of section 128, states have the authority to require such recusal over and above the explicit requirements of section 128. These approaches give states flexibility in implementing section 128, while still ensuring consistency with the statute.

As previously explained, the EPA interprets subsection 128(a)(1) to apply only to states that have a board or body with multiple members that, among its duties, approves permits or enforcement orders under the Act. Wyoming's Environmental Quality Act establishes the Environmental Quality Council (EQC or Council), a separate agency of state government. See Wyoming Statutes 35-11-111(a). The members of the Council are appointed by the Governor. Among the duties of the Council are conducting hearings in any case contesting the administration or enforcement of any law, rule, regulation, standard or order issued or administered by DEQ or by any division of DEQ. Id. at 35-11-112(a)(iii). In particular, a person subject to a DEQ order may request a hearing before the Council. Id. at 35-11-701(c)(ii)-(iv). The Council must also conduct hearings in any case contesting the grant, denial, suspension, revocation or renewal of any permit authorized or required by the Environmental Quality Act. Id. at 35-11-112(a)(iv). Under Article 2, Air Quality, and Article 8, Permits, of the Environmental Quality Act, any applicant for an air permit may petition the Council for a hearing to contest DEQ's decision on the permit. See id. at 35-11-208; 35-11-802.

Given the duties and authorities of the Council, the Council appears to be a “board or body which approves permits or enforcement orders” under the CAA.11 As the EPA has explained in other rulemaking actions, e.g., 78 FR 32613 (May 31, 2013), we interpret section 128(a)(1) to mean that boards that are the potential final decisionmaker via permit and enforcement order appeals “approve” those permits and enforcement orders. For example, by being the final decisionmaker with respect to questions such as whether a source receives a permit and the specific contents of such a permit, the Council is an entity that approves the permit within the meaning of 128(a)(1). Thus, the EQC is subject to the requirements of 128(a)(1). Wyoming's May 31, 2016 submission includes a provision in the Wyoming DEQ Chapter 1, General Rules of Practice and Procedure Section 16(a)(i), Air Quality Division, State Implementation Plan, which provides that the Council “shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to Air Quality permits or enforcement orders, as required by the Clean Air Act, Section 128(a)(1).” We propose to approve this submission as satisfying the requirements of subsection 128(a)(1).

The State's May 31, 2016 submittal includes requirements that Council members “disclose any potential conflicts of interest in a public meeting of the Council as required by the Clean Air Act, Section 128(a)(2).” Thus, Wyoming's submittal addresses disclosure of potential conflicts of interest from Council members that approve permits and enforcement orders under the Act. We therefore propose to approve this submission as satisfying the requirements of subsection 128(a)(2).

In summary, the EPA proposes to approve Wyoming's May 31, 2016 submittal into the SIP to meet the requirements of section 128 of the Act. We also propose to approve Wyoming's infrastructure SIP with respect to the requirements of Section 110(a)(2)(E)(ii) for 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

7. Stationary source monitoring system: Section 110(a)(2)(F) requires: (i) “The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources; (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources; and (iii) correlation of such reports by the State agency with any emission limitations or standards established pursuant to [the Act], which reports shall be available at reasonable times for public inspection.”

Wyoming's SIP approved monitoring provision cited by Wyoming in its certifications (WAQSR Chapter 6, Section 2, Permit requirements for construction, modification, and operation), pertains to its program of periodic emissions testing and plant inspections of stationary sources, and related testing requirements and protocols (including periodic reporting) to assure compliance with emissions limits. Additionally, WAQSR Chapter 7, Section 2 (Continuous monitoring requirements for existing sources), requires certain sources to install and maintain continuous emission monitors to assure compliance with emission limitations.

Furthermore, Wyoming is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar-year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Wyoming made its latest update to the NEI in May 2016. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site https://www.epa.gov/air-emissions-inventories.

Based on the analysis above, we propose to approve the Wyoming SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2 and 2012 PM2.5 NAAQS.

8. Emergency powers: Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to “provide for authority comparable to that in [CAA section 303] and adequate contingency plans to implement such authority[.]”

Under CAA section 303, the EPA Administrator has authority to bring suit to immediately restrain an air pollution source that presents an “imminent and substantial endangerment to public health or welfare, or the environment.” 12 If such action may not practicably assure prompt protection, then the Administrator has authority to issue temporary administrative orders to protect the public health or welfare, or the environment, and such orders can be extended if the EPA subsequently files a civil suit. We propose to find that Wyoming's infrastructure SIP submittals provide for authority for the State comparable to that granted to the EPA Administrator to act in the face of an imminent and substantial endangerment to the public's health or welfare, or the environment.

This is a summary of the Commission's Further Notice of Proposed Rulemaking 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 Further Notice of Proposed Rulemaking seeks comment on potential new or revised proposed information collection requirements. If the Commission adopts any new or revised final information collection requirements when the final rules are adopted, the Commission will publish a notice in the Federal Register inviting further comments from the public on the final information collection requirements, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

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

2. With this FNPRM, we take another step towards strengthening Wireless Emergency Alerts (WEA) by proposing revisions to our rules to empower alert originators to participate more fully in WEA, to empower consumers to make more informed decisions about the kind of WEA service that their CMS Provider offers, and to enhance the utility of WEA as an alerting tool. Our proposals fall into four categories, ensuring the provision of effective WEA Alert Messages, incorporating future technical advancements to improve WEA, developing consumer education tools, and improving WEA transparency.

3. Specifically, with respect to ensuring the provision of effective WEA Alert Messages, we propose to establish clear definitions and requirements for CMS Providers participating in WEA in whole and in part. We ensure the provision of effective WEA Alert Messages by removing language from our rules that may contribute to emergency management agencies' uncertainty about WEA's quality of service. We require Participating CMS Providers to offer subscribers a method of accessing pending Alert Messages. We propose to require that earthquake-related alerts be delivered to the public in fewer than three seconds. We also seek comment on how to leverage the improvements to WEA that we adopt today to continue to improve WEA's value during disaster relief efforts. With respect to incorporating future technical advancements into WEA, we seek comment on and propose of a number of technological innovations that could expand WEA's multimedia, multilingual and geo-targeting capabilities, including innovations on 5G networks. With respect to developing consumer education tools, we propose to promote more informed consumer choice through improvements to the point-of-sale notifications for Participating CMS Providers' mobile devices, and to the WEA interface. Finally, we propose to improve WEA transparency through requiring Participating CMS Providers to disclose their performance along three key metrics, latency, geo-targeting, and reliability, and we seek comment on whether additional alert logging could be instrumental in allowing them to collect relevant data.

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

5. The proposed action in this WEA Further Notice of Proposed Rulemaking is authorized on the basis of 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.

6. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

7. 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.

8. 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 1,000 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. This FNPRM proposes new or modified reporting or recordkeeping requirements. We seek comment on whether the reporting, recordkeeping, and other compliance requirements we adopt today should affect all entities in the same manner, or whether we should make special accommodations for non-nationwide entities.

28. We propose to require Participating CMS Providers, to gather, analyze and report on system performance metrics such as the geo-targeting, latency, and availability and reliability. We propose to require Participating CMS Providers to offer potential subscribers notice at the point of sale that more accurately reflects the extent to which they will offer WEA. We seek comment on whether Participating CMS Providers should be required to update their election to participate in WEA. We seek comment on the costs of compliance.

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

30. As noted in paragraph 1 above, this FNPRM initiates a rulemaking to update the rules governing the WEA system by which Participating CMS Providers may elect to transmit emergency alerts to the public, a goal mandated by the WARN Act and consistent with the Commission's obligation to protect the lives and property of the public. Primarily, this FNPRM seeks comment on four general categories of proposed rule changes: Ensuring the provision of effective WEA Alert Messages, incorporating future technical advancements to improve WEA, developing consumer education tools, and improving WEA transparency.

31. With respect to ensuring the provision of effective WEA Alert Messages, we seek comment on whether there are any particular considerations that we should take into account when defining the nature of a Participating CMS Provider's participation in WEA due to the electing entity's size. We also seek comment on whether non-nationwide Participating CMS Providers require the regulatory flexibility implicated by certain provisions of Sections 10.330 and 10.500, and if so, whether we should retain the flexibility that the current language of those rules may provide only as applicable to them. With respect to incorporating technical advancements to improve WEA, we seek comment on whether support for additional languages would be unduly burdensome for non-nationwide Participating CMS Providers, and if so, whether there are steps that we can take to accommodate these entities to make compliance more feasible. We also seek comment on whether alternative geo-targeting standards would be appropriate for non-nationwide Participating CMS Providers. With respect to developing consumer education tools, we seek comment on whether we should give special consideration to non-nationwide entities if we were to require Participating CMS Providers to offer a consistent menu of opt-out choices, and on whether non-nationwide Participating CMS Providers should be required to make more lenient disclosures at the point of sale. Finally, with respect to improving WEA transparency, we propose the use of performance, rather than design standards to collect information relevant to our analysis of WEA's system integrity. We also seek comment on whether it would be appropriate to adopt an alternative, less frequent reporting requirement for non-nationwide Participating CMS Providers, and on whether such Participating CMS Providers should also be allowed to collect less granular data on system performance in order to reduce any cost burdens entailed by these proposed recordkeeping and reporting requirements.

32. None.

33. We propose to adopt definitions for participation in WEA “in whole” and “in part” based on the attestations that CMS Providers are required to offer in their election letters, and on the notifications that CMS Providers offer potential subscribers at the point of sale. Specifically, we propose to define CMS Providers participating in WEA “in whole” as CMS Providers that have agreed to transmit WEA Alert Messages in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission in the entirety of their geographic service area and to all mobile devices on their network. Similarly, we propose to define CMS Providers participating in WEA “in part” as CMS Providers that have agreed to transmit WEA Alert Messages in a manner consistent with the technical standards, protocols, procedures, and other technical requirements implemented by the Commission in some, if not all of their geographic service area, and to some, if not all of the mobile devices on their network. We seek comment on these proposed definitions for CMS Provider participation in WEA. What are the technical prerequisites to offering WEA in a geographic area where a commercial mobile service is available? What factors lead Participating CMS Providers to offer WEA in a geographic area smaller than the area in which they offer commercial mobile service, or to fewer than all mobile devices on their network?

34. We also seek comment on our proposal to incorporate the extent to which CMS Providers offer WEA on mobile devices on their networks into our definitions of participation in whole and in part. Bluegrass Cellular states that “participation in whole has no bearing on the number or percentage of devices on the network that are WEA capable.” If this were the case, however, could a CMS Provider that offers WEA on only one mobile device qualify as participating in whole? Would this be consistent with a common-sense interpretation of “in whole” participation, or with our requirement that only CMS Providers participating in part must disclose at the point of sale that WEA may not be available on all devices on this provider's network?

35. If participation in WEA in whole entails offering WEA on all mobile devices on the network, we seek comment on how “mobile devices” should be defined. For purposes of WEA, Section 10.10(j) defines “mobile devices” as “[t]he subscriber equipment generally offered by CMS providers that supports the distribution of WEA Alert Messages.” This definition would encompass any mobile device connected to a Participating CMS Providers' network that is capable of receiving WEA Alert Messages, including but not limited to LTE-enabled and future generation tablet computers, and phablets. The record shows, however, that there is significant variation among Participating CMS Providers with respect to mobile devices on their networks that support WEA capability. For example, the Department of Homeland Security's WEA Mobile Penetration Strategy Report shows that WEA is already available on some tablets, including iPads running iOS 6 or greater, and emergency managers agree that WEA should be made available to the public “by all available means,” including on tablets. On the other hand, CTIA suggests that while 4G-LTE tablets can be WEA capable, Wi-Fi-only tablets cannot, and states that “even if there are LTE-enabled tablets with the capability to receive cell broadcast messages through the network infrastructure, additional mobile device behavior standards and device development are required to support the handling and presentation of WEA messages.” AT&T simply concludes that they “do not believe customers could view WEA messages on their existing tablets.” We seek comment on the technical characteristics needed in a device to allow it to receive WEA Alert Messages. Would it be advisable for us to revise our definition of the term “mobile device” in our Part 10 rules to reflect the technical prerequisites to supporting WEA service? Finally, we seek comment on whether there are any barriers that may prevent the delivery of WEA to the full range of consumer devices for which Participating CMS Providers may wish to provide emergency alerts, and which could fall within the scope of the WARN Act.

36. In addition to defining participation in WEA in whole and in part with reference to the extent to which Participating CMS Providers offer WEA in the entirety of their geographic service area and to all mobile devices operating on their networks, we seek comment on whether these definitions should include the extent to which Participating CMS Providers make WEA available using all available network technologies. To what extent should Participating CMS Providers' attestation that they will “support the development and deployment of technology for the `C' interface, the CMS Provider Gateway, the CMS Provider infrastructure, and mobile devices with WEA functionality” be read as a commitment to support WEA using all available network technologies? To what extent do Participating CMS Providers currently use available technologies, such as Wi-Fi and small cells, in support of their WEA deployments? To the extent that Participating CMS Providers do not leverage all available technologies to further their participation in WEA, we seek comment on any factors that have contributed to this decision. We seek comment on any additional technologies already commercially deployed in CMS networks that could be leveraged in support of WEA, and on any additional functionalities that they may enable.

37. We seek comment on whether, in the event we adopt new definitions for participation in WEA, it would be appropriate to require CMS Providers to refresh and renew their election to participate in WEA. Further, notwithstanding whether we ultimately adopt new definitions for WEA participation, have the nature of CMS networks (having evolved from 2 and 3G to 4G technologies) and the requirements of Part 10 changed sufficiently since WEA's deployment to merit a renewed election? How frequently, if at all, should Participating CMS Providers be required to update their election in order to provide the Commission and the public with an up-to-date account of their WEA service offerings? Alternatively, should the occurrence of a certain event or events trigger a Participating CMS Provider's obligation to renew their election? If so, what specific event or events should give rise to a requirement for a Participating CMS Provider to renew their election? We seek comment on steps that we can take to mitigate any burden that disclosure of this information may present for Participating CMS Providers, and especially non-nationwide Participating CMS (e.g., small, regional, and rural providers). To what extent would any information that Participating CMS Providers may be required to disclose be considered sensitive? As WEA has evolved into a vital and relied-upon component of the Nation's public safety infrastructure, has this information become necessary to understanding the Nation's readiness in times of disaster?

38. We anticipate that adopting these definitions for the modes of Participation in WEA would improve long-term participation in WEA while incenting achievement of evolving WEA objectives, consistent with Participating CMS Providers technology refresh cycle. We seek comment on this analysis. What steps can we take to encourage Participating CMS Providers to increase their engagement with WEA voluntarily? Further, we seek comment on whether clearly delineated modes of participation in WEA, taken together with a renewed election requirement, would facilitate emergency management agencies' response planning efforts by evincing the extent to which WEA is available in local communities. To what extent could information about each Participating CMS Provider's WEA service offerings by geographic area, device, and technology facilitate community reliance on WEA as an emergency management tool? What steps can we take to make this information as useful as possible to emergency management agencies while limiting burdens on Participating CMS Providers? Are there alternative approaches that we could consider in order to accomplish our objective of incenting increased engagement with WEA by Participating CMS Providers and emergency management agencies?

39. We propose to amend Sections 10.330 and 10.500 to delete parallel statements that “WEA mobile device functionality is dependent on the capabilities of a Participating CMS Provider's delivery technologies” and that “[i]nfrastructure functions are dependent upon the capabilities of the delivery technologies implemented by a Participating CMS Provider.” Since the time these provisions were adopted, Participating CMS Providers have overwhelmingly elected to utilize cell broadcast technology in fulfillment of their WEA election. Participating CMS Providers' infrastructure has proven to be universally capable of the basic functionalities described by Section 10.330 and 10.500. Accordingly, we believe these provisions are no longer necessary. Moreover, removing these provisions from our Part 10 rules would likely clarify for emergency management agencies considering whether to become authorized as WEA alert initiators that the alerting service WEA offers is capable of providing these critical functions, especially when taken together with the performance reporting and alert logging requirements discussed below. We seek comment on this analysis.

40. We seek comment on whether Providers CMS Providers, and particularly non-nationwide CMS Providers (small, rural or regional Participating CMS Providers), continue to require the flexibility that this language may provide. There is no record about why these caveats remain necessary given changes in technology over the four years since WEA's deployment. Does the flexibility that this language may provide enable CMS Providers to participate in WEA that otherwise would be unable to do so? We invite comment from any Participating CMS Provider that would no longer be able to participate in WEA in whole or in part were we to remove this language from Sections 10.330 and 10.500. Such commenters should specify the manner in which their WEA service would be unable to comply with the requirements of Sections 10.330 and 10.500 were we to remove the prefatory language from those Sections, while still being capable of providing the WEA service described elsewhere in Part 10. Similarly, would removing this language make any WEA-capable mobile devices incapable of continuing to support WEA? If so, why? We seek comment on whether, if we retain this language at all, it should be modified to apply only to non-nationwide Participating CMS Providers.

41. We propose to amend Section 10.500 to state that WEA-capable mobile devices must preserve Alert Messages in an easily accessible format and location until the Alert Message expires. We seek comment on this proposal. We seek comment on the various approaches that Participating CMS Providers currently take to Alert Message preservation, and on any best practices that have emerged in this area. We seek comment on whether we should standardize the manner in which Participating CMS Providers preserve Alert Messages, informed by relevant best practices.

42. We seek comment on the extent to which Participating CMS Providers currently offer users the ability to access Alert Messages after they have been viewed and dismissed. Is Blackberry, Android and Windows' practice of providing access to dismissed Alert Messages in an “inbox” or in “message history” consistent among all devices and providers? Section 10.420 specifies “Expiration Time” as a required CAP element in WEA Alert Messages. Is it feasible to use this CAP element as a basis for identifying the time at which an Alert Message should be discarded? If WEA Alert Messages are retained past this expiration time, Denver OEMHS expresses concern that users will view expired Alert Messages and assume that they are current, causing confusion and panic. Where Alert Messages are preserved for user review, for how long are they preserved? If Alert Messages continue to be preserved after the underlying emergency condition has expired, are expired Alert Messages clearly marked as such to prevent user confusion? To what extent do Participating CMS Providers' existing practices achieve our goal of providing subscribers with a straightforward method of accessing Alert Messages until they expire?

43. Based on the comments, we believe that having continued access to WEA Alert Messages, including information regarding protective measures the public can take to protect life and property, could promote superior public safety outcomes. NYCEM and APCO have already suggested several use cases in which public response outcomes could be improved through easy access to active Alert Messages, such as to review details about shelter locations and commodity distribution points, and to recall complex information presented in longer WEA Alert Messages. Further, FEMA states that requiring appropriate alert preservation “would reduce user confusion, make training easier, and would require only one educational campaign if preservation was consistent across platforms.” FEMA further states that requiring appropriate alert preservation “could alleviate some milling behavior, as some will search for alerts on the internet once dismissed to find the content.” We seek comment on these analyses, as well as on additional use cases in which access to pending Alert Messages could have public safety benefits.

44. As we discussed in the Report and Order, Sections 10.320 and 10.410 of the Commission's WEA rules require Participating CMS Providers to program their Alert Gateways to process Alert Messages on a FIFO basis, except for Presidential Alerts, which must be processed “upon receipt,” before any non-Presidential Alert Messages that may also be queued for transmission. In the WEA NPRM, we sought comment on whether we should amend Section 10.410 of the Commission's rules to address prioritization at the CMS Provider's Gateway, in transit, and at the mobile device. Subsequently, the FY2016 Omnibus Appropriations Explanatory Statement directed the FCC to report to the Appropriations Committee on all regulatory and statutory changes that would be necessary to ensure that earthquake-related emergency alerts can be received by the public in fewer than three seconds using IPAWS and its associated alerting systems, including WEA. Earthquake warnings are currently issued as Imminent Threat Alerts, but it is unclear whether Participating CMS Providers' WEA infrastructure is able to process and transmit these Alert Messages fast enough for them to provide timely warning to the public, particularly to those that are closest to the epicenter. To be effective, it is crucial that these messages are delivered as rapidly as possible because, in order to be effective, they must be delivered to the public in advance of fast-travelling seismic waves. ATIS states that it would be technically feasible to transmit earthquake-related Alert Messages from the Alert Gateway upon receipt in order to expedite their transmission to the public. AT&T states, however that “[w]ithout a re-design of the entire system, it is not possible to prioritize WEA messages on anything other than a FIFO basis.”

45. We propose to require Participating CMS Providers to deliver earthquake-related Alert Messages to the public in fewer than three seconds, measured from the time an earthquake-related Alert Message is created to when it is delivered and displayed at the mobile device. We seek comment on the parameters for WEA to deliver earthquake alerts in less than three seconds, including any operational or regulatory changes that may be necessary in order to achieve this objective. We seek comment on the appropriate points by which to measure the applicable delivery timeframe. Should the applicable timeframe be measured from the time the alert originator issues the earthquake alert to the time it arrives at the end user device? In order to meet our end-to-end latency objective while respecting the limitations of Participating CMS Provider infrastructure, should the delivery delay from the IPAWS Alert Gateway to the end user be limited to two seconds? If Alert Messages are not received by all WEA-capable mobile devices in the target area simultaneously, how should we determine whether earthquake alerts are being delivered on time to meet our proposed requirement? We seek comment on these proposals, as well as any potential alternatives. We also seek comment on their costs and benefits. In addition, we seek comment on the implementation timeframe in which delivery of earthquake alerts in fewer than three seconds could be achieved. Would this be achievable within the next thirty months? If not, how much time would be needed?

46. In order to help eliminate any delays that could unnecessarily affect the delivery of an earthquake alert, we seek comment on whether we should require prioritization of earthquake-related Alert Messages at the CMS Provider Alert Gateway by processing them “upon receipt,” before any non-Presidential Alert that may also be queued for transmission. We expect that prioritization at the CMS Provider Alert Gateway would remove the possibility of any queuing delay that may occur due to simultaneous arrival of multiple alerts. We seek comment on the extent to which prioritizing earthquake alerts at the Alert Gateway would reduce their end-to-end latency in instances where the Alert Gateway is processing more than one Alert Message at a time, as well as in other instances. We also seek comment on whether it would be appropriate to prioritize earthquake alerts in transit over other Alert Messages or control channel activity if giving them elevated priority at the Participating CMS Provider Alert Gateway would not sufficiently reduce delivery latency for them to arrive on time to save lives. We note that WEA Alert Message segments are transmitted by the Radio Access Network (RAN) every 80ms to 5.12 seconds. Could standardizing the transmission periodicity of WEA message segments reduce end-to-end alert delivery latency for all WEA Alert Messages? What are the advantages and disadvantages of shorter WEA transmission periods? Can they be changed dynamically? We seek comment on the extent to which giving earthquake alerts priority at the Alert Gateway, in transit, and through other means could enable earthquake-related Alert Messages to be delivered to the public in fewer than three seconds. Even if prioritization of earthquake alerts at the Alert Gateway, by itself, would not be sufficient, should we require such prioritization as an intermediate step towards this goal? We also seek comment on whether any other types of events merit higher priority treatment because of their extreme time sensitivity (e.g., hurricane, tornadoes, bioterrorism, epidemic crises).

47. We seek comment on any technical issues that prioritizing earthquake alerts in transit might present for Participating CMS Providers, and on when this standard could feasibly be achieved. In the alternative, we seek comment on whether a different Alert Message latency requirement would strike a more appropriate balance between the costs of prioritization and the benefits of earthquake early warning. With respect to AT&T's perspective that changing the way that Alert Messages are prioritized would require a “re-design of the entire system,” we seek comment on what, if any aspects of the WEA system would need to be redesigned in order to allow earthquake alerts to be delivered to the public in fewer than three seconds. Why, if at all, would changing the way that the Participating CMS Provider Alert Gateway prioritizes WEA Alert Messages affect any aspect of the WEA system other than the Participating CMS Provider Alert Gateway itself? From a technical standpoint, how is it currently possible to prioritize Presidential Alerts but not other types of Alert Messages? We anticipate that changing the manner in which this Gateway handles earthquake alerts would necessitate revisions to Gateway software, and relevant standards. We seek comment on this analysis. Can the Participating CMS Provider Alert Gateway's standards and software be updated to allow it to distinguish earthquake alerts from other Imminent Threat Alerts, for example, by reference to the its CAP “event code” parameter? If not, what steps should we take to allow for earthquake-related alerts to be treated differently from other Imminent Threat Alerts? We anticipate that reducing the end-to-end latency for earthquake alerts will facilitate the use of WEA during such incidents, providing a unique mechanism in the United States for warning the public about earthquakes before the damaging tremors occur. We observe that Japan's Earthquake and Tsunami Warning System (ETWS) is currently the only earthquake early warning service in the world that integrates mass earthquake-related communications with cellular networks. We anticipate that making WEA an effective platform for early earthquake warnings could, in combination with other earthquake mitigation efforts, help to mitigate the $4.4 billion dollars in earthquake-related losses FEMA estimates that the United States suffers annually, by saving lives and preventing and mitigating injuries, thereby reducing income loss and by helping to mitigate damage to infrastructure by alerting members of the public who are in a position to take preparatory actions to prevent damage in the event of an earthquake. We seek comment on this analysis, including to on the extent to which such prioritization would mitigate earthquake-related losses and on the costs of any related upgrades to WEA to permit such prioritization.

48. Commenters address several potential uses for WEA as a secondary messaging service, i.e., a tool for communicating to the public emergency instructions intended to supplement information provided in the initial (primary) message. For example, NYCEM, Ashtabula County EMA and the California Governor's OES observe that our new Alert Message classification, Public Safety Messages, creates a framework for secondary messaging that can assist with disaster recovery efforts. In the Alerting Paradigm NPRM as well as in the WEA NPRM, we sought comment on the extent to which emergency managers leverage targeted community feedback during and after emergency situations to disseminate and gather information. We observed that the Peta Jakarta initiative in Indonesia may provide an example of how a government alert initiator can leverage crowdsourced data to increase the overall effectiveness of alerts. While many emergency management agencies expressed concern about the potential for an additional data stream for crowdsourced information to overwhelm already understaffed Public Safety Answering Points (PSAPs), “NYCEM strongly believes that the future of crowdsourcing is through leveraging individual consumer cellular phones by upgrading the Wireless Emergency Alert System to support bidirectional, “many-to-one” communication.” CSRIC V finds that the ability to gather information from the community (many-to-one communication) can make alerting (one-to-many communication) more effective if “appropriately integrated into operations in a way that is responsive to the context of operation.” CSRIC V identifies three use cases where many-to-one communications could be a particularly beneficial supplement to one-to-many communications, gathering targeted community feedback, assessing evacuation compliance, and during active shooter scenarios. CSRIC V recommends that “FEMA should investigate modifying IPAWS to support `[m]any to one' communication and data collection,” that “ATIS should study the feasibility of mechanisms for the delivery of “many to one” data to FEMA IPAWS,” and that the Commission should convene a panel of relevant experts to promote data science literacy among emergency managers and establish best practices for using data gathered from “social media” monitoring. NAB and NPR also encourage the Commission to recognize the consumer benefits of Alert Messages that direct the public to turn on their radios for additional information during disaster recovery efforts.

49. In light of the foregoing, we seek comment on the potential for WEA to serve as a secondary messaging tool for emergency managers, specifically during disaster relief efforts. Specifically, we seek comment on how to enhance WEA's support for many-back-to-one communication to facilitate emergency managers' response planning efforts, and on whether WEA can be made a more useful tool during and after emergencies by facilitating its ability to interface other authoritative sources of information. Are there existing needs or gaps in the public communications tools currently available to emergency managers for use during disaster relief efforts that WEA can fill? What, if any, critical capacities does WEA lack that could inhibit its utility for post-disaster communications?

50. We seek comment on improvements to WEA that we should consider in order to ensure that it is optimized for this use, including by enabling WEA to be used as a tool for queueing the collection of targeted community feedback during disaster recovery efforts, to measure evacuation effectiveness, and during active shooter scenarios, as recommended by CSRIC V. We seek comment on whether using WEA in this manner could assist emergency management agencies' resource-need pairing during emergencies, and on any additional use cases where “many-to-one” feedback could improve emergency response. We seek comment from technology vendors who have developed innovative solutions to aggregating and analyzing public response on the potential for implementation of those technologies in the emergency management context. We seek comment on whether best practices based in data science literacy are available to facilitate emergency managers' skillful use of targeted community feedback, and if not, on whether we should direct the Public Safety and Homeland Security Bureau to convene a panel of experts to produce recommendations for this purpose, as recommended by CSRIC V. We also seek comment on the extent to which WEA can be used to funnel milling behavior towards other authoritative sources of information, such as radio or television, that may be better fit to provide critical information to the public in certain circumstances. Would such an approach make WEA more useful to emergency managers in disaster relief situations?

51. As noted above, we are committed to allowing the public to realize the benefits of multimedia content in WEA, and we propose that an appropriate path to achieve this goal would be to require support for certain multimedia content, including thumbnail-sized images and hazard symbols, in Public Safety Messages on 4G LTE and future networks. We recognize that Participating CMS Providers have concerns about message delivery latency and network congestion that may result from including multimedia in WEA Alert Messages. Further, we acknowledge the record indicates that further standards development is necessary to support multimedia capabilities in WEA. As we discuss in further detail below, we believe these issues can be addressed given an appropriate regulatory framework and timeframe for compliance. Accordingly, we seek to develop the record on data constraints and technical parameters that should be associated with developing and implementing this functionality, and on a reasonable timeframe within which to require Participating CMS Providers to support it. Pursuant to the approach we propose to adopt, emergency management agencies could use Public Safety Messages to transmit thumbnail-sized images of evacuation routes in connection with Imminent Threat Alerts, an image of the face of a missing child after an AMBER Alert, or specific instructions for protective action to the access and functional needs community through the use of hazard symbols. We invite commenters to offer additional use cases where this functionality could help meet the public's need for actionable, multimedia-enabled content during emergencies.

52. With respect to the potential for alert delivery latency, we observe that, according to the ATIS Feasibility Study for LTE WEA Message Length, WEA Alert Message segments can be transmitted every 80 milliseconds to 5.12 seconds. We reason, therefore, that a thumbnail-sized image could be transmitted over WEA cell broadcast in between 0.88 seconds and 56.32 seconds. We would not want the transmission of multimedia content to delay receipt of the most time-sensitive Alert Message text. At the same time, however, we also believe that there are circumstances where the public would benefit from the receipt of multimedia content over WEA cell broadcast, even if they have to wait a minute to receive it. We therefore propose to require support for multimedia content only in Public Safety Messages, which may contain information that is not as time-sensitive as other types of Alert Messages. As Alert Messages in the Public Safety Message classification are designed for issuance for in connection with Alert Messages of other types, we believe they would provide an appropriate vehicle for multimedia-enabled content even when they cannot be delivered until minutes after the initial Imminent Threat or AMBER Alert delivers the primary, text-based Alert Message. We seek comment on this analysis.

53. We seek comment on any appropriate technical constraints that should apply to the multimedia content that Participating CMS Providers would be required to support. We anticipate that constraints on the permissible size of multimedia data files would also help Participating CMS Providers to manage network loading. The ATIS Feasibility Study for WEA Supplemental Text shows that transmitting a thumbnail-sized photo over WEA cell broadcast would require the transmission of at least eleven WEA binary messages. The ATIS Feasibility Study for WEA Supplemental Text considers a “thumbnail-sized photo” to be approximately 1.5 x 1.5 inches, to have a resolution of 72 dots per inch (DPI), and to be presented as using 120 x 120 pixels. ATIS reasons that a thumbnail-sized image would be 14,400 bytes in size if an 8-bit color scale is used, and would require the broadcast of 3600 octets, assuming 25 percent compression. We seek comment on whether that 14,400 bytes would be an appropriate maximum size for any multimedia content that a Participating CMS Provider could be required to transmit, as well as on any additional technical specifications or parameters that could facilitate multimedia transmission. We seek comment on any other implications or considerations we should take into account.

54. With respect to the integration of support for hazard symbols into WEA's core functionality, CSRIC IV and CSRIC V recommend further study. The ATIS Feasibility Study for WEA Supplemental Text recommends that a study of the “User Experience Design” covering the “human-computer interaction” between mobile users and hazard symbols should be undertaken by the WEA stakeholders followed by global standardization. According to ATIS, standards would be needed to identify the specific hazard symbols appropriate for this use, and to describe hazard warning icon delivery to the mobile device, either via mobile device software or cell broadcast. We seek comment on this analysis. Would it be feasible to integrate support for hazard symbols into WEA using the GSM-7 character set or a Unicode character set? If so, would this approach offer a less burdensome alternative to supporting hazard symbols in all Alert Messages?

55. With respect to concerns in the record regarding the possibility for increased network load, we propose to allow Participating CMS Providers to use network congestion mitigation strategies to feasibly and timely deliver multimedia-enabled Public Safety Messages. For example, we seek comment on whether staggering transmission of multimedia message segments could facilitate delivery of this content to subscribers, while mitigating potential network congestion concerns. Would it make sense to constrain any requirement to support multimedia to devices operating on 4G LTE and future networks? We seek comment on best practices that emergency management agencies could implement with respect to multimedia messaging if the transmission of such content implicated greater delay than text-only Alert Messages, and if Alert Messages that contained multimedia content could not be received by members of their communities on legacy networks or that are using legacy devices that no longer accept software updates. Recognizing the limitations of cell broadcast technology, to what extent would a requirement to support thumbnail-sized images and hazard symbols spur Participating CMS Providers to integrate new technologies into their WEA systems that could improve their ability to support the low-latency transmission of high-quality multimedia content? For example, commenters agree that Multimedia Broadcast Multicast Service (eMBMS) would permit the broadcast of “large amounts of data, including multimedia content.” We seek comment on the technical steps that would be required to integrate technology that supports the transmission of multimedia content into WEA.

56. Allowing multimedia content in WEA Alert Messages would have tremendous public safety benefits. NYCEM, FEMA and TDI, for example, believe that allowing multimedia content in WEA Alert Messages would significantly contribute to Alert Message comprehension, particularly for individuals with disabilities, and FEMA adds that the use of graphical symbols could improve Alert Message interpretation by individuals with limited English proficiency. NCMEC states that multimedia content would “greatly enhance the immediate usefulness of AMBER Alerts.” San Joaquin County OES adds that multimedia content in WEA Alert Messages would hasten protective action taking and reduce milling. We seek comment on these analyses, as well as on any additional public safety benefits that multimedia messaging may enable. Even though Chester County EMA and The Weather Company suggest the inclusion of multimedia would be unnecessary in light of the availability of embedded references and “third party apps and television that users normally use,” we find that unique benefits could result from including multimedia content in Alert Messages, especially as Participating CMS Providers' ability to support this functionality evolves along with advancements in technology. For example, WEA Public Safety Messages could be used to push an authoritative interactive map to every community member with a WEA-capable mobile device that shows the recipient's location relative to evacuation routes, shelter locations or resource distribution points. For communities struggling to recover from natural disasters, for example, this functionality would hold tremendous public safety value above and apart from multimedia-enabled emergency information available through other sources that in any case may not be as readily available as a consumer's mobile device. We also seek comment on whether those benefits would be particularly acute when implemented in an authoritative alerting services such as WEA that the public receives by default.

57. We observe that, according to commenters, expanding the language capabilities of WEA has potential to yield particular benefits for those with limited English proficiency. The record suggests, however, that the technical issues that prevented Participating CMS Providers from supporting multilingual Alert Messages when WEA was first deployed continue to limit their ability to support Alert Messages in languages other than English and Spanish. While FEMA states that IPAWS and CAP have the capacity to support Alert Messages in languages other than English and Spanish, additional languages are not currently supported in Participating CMS Provider networks. According to Participating CMS Providers, significant standards-setting work and potentially support for new character sets would be required in order to enable them to support WEA Alert Messages in languages other than English and Spanish. Further, AT&T and Verizon observe that each additional WEA Alert Message language option will require Participating CMS Providers to transmit an additional Alert Message, which could threaten network capacity and risk alert delivery delays. In light of these ongoing issues and additional data, we agree with T-Mobile that “[t]he Commission should promote further study of the technical impact of multilingual WEA messages so that such messages can be incorporated into the WEA system in the future without creating unintended, adverse impacts.”

58. Only 79 percent of individuals living in the United States that are 5-years old or older speak only English at home. According to the ACS Language Report, the top ten most spoken languages in the U.S. among individuals 5-years old or older are English, Spanish or Spanish Creole, Chinese, French or French Creole, Tagalog, Vietnamese, Korean, Arabic, Russian, and African languages. English-speaking ability varies greatly, even among speakers of the top ten languages in the United States. According to recent census data, “less than 50 percent of those who spoke Korean, Chinese, or Vietnamese spoke English ‘very well.’ ” According to the ACS Language Report, “[p]eople who cannot speak English ‘very well’ can be helped with translation services, education, or assistance in accessing government services.”

59. We seek comment on the potential benefits of requiring Participating CMS Providers to support Alert Messages in languages other than English and Spanish. To what extent would emergency management agencies initiate Alert Messages in languages in addition to English and Spanish were Participating CMS Providers required to support them? To what extent would CMS Provider support for additional languages incent emergency management agencies to further develop their capabilities in initiating Alert Messages in those languages where relevant to their respective communities? What, if any, additional steps can we take to support emergency management agencies' efforts to develop multilingual alerting capabilities? We expect that emergency management agencies already integrate individuals who don't speak English very well into their communities' emergency response plans, and we seek comment on whether increasing emergency management agencies' multilingual alerting capability could help to further improve disaster preparedness for these communities. How do emergency management agencies currently expect individuals with limited English proficiency to receive and respond to emergency information? Are the emergency management mechanisms currently in place sufficient to safeguard those individuals during crises?

60. If we were to adopt rules to deepen WEA's language capabilities, we seek comment on whether we should prioritize support for those languages predominantly spoken in communities where, according to Census data, 50 percent or fewer speak English “very well” (e.g., Vietnamese, Chinese, Korean). Is the area of greatest need with respect to WEA's language capabilities ensuring that people who struggle with English comprehension can understand emergency communications? In the alternative, should we prioritize support for the largest language communities in the United States, notwithstanding the tendency of individuals in those language groups to speak English “very well”? We observe, for example, that, according to recent Census data, English and Spanish are by far the most popular languages in the United States, with Chinese and French a distant third and fourth.

61. We seek comment on whether supporting Alert Messages written in ideographic languages, such as Vietnamese, Chinese and Korean, would pose unique challenges for WEA stakeholders, including Participating CMS Providers and emergency mangers. We note that WEA messages use GSM 7-bit encoding, and that the 3GPP standard for cell broadcast allows switching to the basic Unicode (UCS-2) character set, which includes all living languages, in order to provide support for modern, ideographic languages such as Kanji. Do Participating CMS Providers' WEA infrastructure and WEA-capable mobile devices support this functionality? If not, what steps would be necessary to incorporate Unicode into WEA? We also seek comment on whether emergency management agencies would face particular difficulties in initiating Alert Messages in ideographic languages. Does alert origination software currently support initiating Alert Messages in ideographic languages? If not, what steps would be required in order to upgrade this software? Are there additional standards, protocols and system updates that would be required to enable alerting in Vietnamese, Chinese and Korean in particular? Further, we seek comment on whether WEA Alert Messages can be made available in American Sign Language (ASL) for subscribers that are deaf or hard of hearing. How would the provision of WEA Alert Messages in ASL allow for better accessibility to those who are ASL-fluent?

62. In addition to any potential changes to the WEA character set that may be required, we seek comment on any necessary preconditions to supporting additional languages in WEA in general, and to supporting Korean, Vietnamese or Chinese Alert Messages in particular. We also seek comment on whether support for additional languages would be burdensome for non-nationwide (e.g., regional, small, and rural) Participating CMS Providers, and if so, whether there are steps that we can take to accommodate these entities to make compliance more feasible. Would it be more appropriate for non-nationwide Participating CMS Providers to be required to support only the those particular languages, other than English and Spanish, that are predominant in the particular areas in which they provide service? We seek comment on any alternative approaches that would help achieve our objective of promoting accessibility of WEA Alert Messages.

63. While our geo-targeting requirement, as amended above, will improve WEA geo-targeting by facilitating the delivery of Alert Messages to a more granular polygon level, the limitations of cell broadcast-based geo-targeting may result in continued over-alerting. According to CSRIC IV, the “ideal case” from an alert originator perspective would be where “all WEA-enabled mobile devices in the geographic area affected by an emergency event would receive the WEA Alert Message broadcast, and no mobile devices outside the defined alert area would receive those particular WEA Alert Message broadcasts.” “However,” CSRIC IV reports, “this ideal case cannot be realized using currently deployed cell broadcast alone.” CSRIC V recommends that the Commission collaborate with WEA stakeholders to develop standards and implement systems that support enhanced, device-based geo-targeting. CSRIC V recommends that the Commission set a goal that Participating CMS Providers geo-target Alert Messages in a manner that includes “100% of the targeted devices within the specified alert area with not more than .10 mile overshoot,” and states that WEA stakeholders, including Participating CMS Providers, “have committed to working to close the gap between current capabilities and aspirational goals.”

64. As we emphasize above, more granular geo-targeting remains a critical need for both consumers and emergency managers. Accordingly, we propose to require Participating CMS Providers to match the target area specified by alert originators. We anticipate that this may require Participating CMS Providers to leveraging the location sense of WEA-capable mobile devices on their networks. In the following paragraphs, we seek comment on how we should define “matching” the target area for purposes of any such requirement, as well as on steps that alert initiators and Participating CMS Providers can take to minimize alert delivery latency and maximize the amount of data available for other Alert Message content. We also seek comment on the readiness of innovations that could allow alert initiators to geo-target more flexibly, and to smaller areas.

65. As an initial matter, should a Participating CMS Provider be considered to have “matched” the targeted area for the purpose of this requirement if, as recommended by CSRIC V, 100 percent of devices within the targeted area receive the Alert Message with not more than 0.1 mile overshoot? In the alternative, if providers are leveraging the same technology in the WEA context that is being used to provide indoor location, would it make sense to harmonize our geo-targeting accuracy requirement for WEA with our wireless E911 indoor location accuracy requirements? If not, why not? Further, would an alternative accuracy requirement be appropriate for non-nationwide Participating CMS Providers? We seek comment on any alternative approaches to defining “matching” for the purposes of assessing compliance with our proposed requirement. In circumstances where Participating CMS Providers are unable to match the target area, we propose that they should be required to provide their best approximation of the target area, as we require in the Order. We seek comment on this approach.

66. The record indicates that it will be technically feasible for Participating CMS Providers to comply with our requirement that they geo-target Alert Messages to an area that matches the target area, given appropriate time for the development of relevant standards and network modifications. We expect that Participating CMS Providers will be able to geo-fence their transmission of Alert Messages by transmitting target area coordinates to 100 percent of mobile devices in the target area, erring on the side of over-inclusion where necessary. WEA-capable mobile devices would receive the Alert Message, including the target area coordinates, and determine whether they are currently located within the area those coordinates describe. If and only if the mobile device is within the target area, it would display the Alert Message to the subscriber. Commenters indicate that the suppression of the Alert Messages on mobile devices that are outside of the target area (geo-fencing) would allow Participating CMS Providers to match the target area specified by alert originators. We seek comment on this analysis, including any alternative approaches that Participating CMS Providers could use to match the target area or to implement a device-based approach to geo-targeting. The record indicates that technical issues, such as potential increases in message delivery latency, and reductions in the amount of data available for Alert Message text, can be resolved. We seek comment on how Participating CMS Providers will address these issues in conversation with other relevant WEA stakeholders. We seek comment on feasible methods Participating CMS Providers could use to mitigate sources of alert delivery latency that may be implicated by geo-targeting Alert Messages to an area that matches the target area specified by the alert originator. Participating CMS Providers and ATIS agree that meeting such an accurate geo-targeting standard could cause message delivery delay due to the device needing to determine its location before displaying the message, and due to network constraints. ATIS states that “the only currently readily available technology [for device-based geo-fencing] is GPS/GNSS” and that, without network assistance, the “time to acquire a GPS position can be over 13 minutes from a cold start . . . and up to 30 seconds for a warm start.” To what extent could Assisted GPS reduce these times and to what extent would the CMS network be burdened by providing this assistance? Further, we seek comment on how long the mobile device should wait while attempting to determine its current location (e.g., acceptable Time-To-First-Fix (TTFF))? We note that, in the 911 context, we have established a maximum TTFF latency standard of 30 seconds for outdoor calls. Would that same standard be appropriate for geo-targeting to an area that matches the target area in light of our concerns about alert delivery latency? Finally, what should be the action of the mobile device if the mobile device location cannot be determined or cannot be determined within the time limit, for example, if a mobile device is turned off, or if its location services are turned off? Should the default setting be to display the Alert Message?

67. We seek comment on the extent to which polygon compression techniques and alert originator best practices could maximize the amount of data that remains for Alert Message content if Alert Message coordinates are transmitted along with content to WEA-capable mobile devices. ATIS concludes that each coordinate pair would require data equivalent to that needed to display thirteen characters using current methods. However, researchers have examined methods of compressing coordinate data to consume between 9.7 percent and 23.6 percent of this data. We seek comment on feasible methods of leveraging polygon compression techniques in WEA. Should such techniques be used to set a maximum on the amount of data that can be consumed by polygon coordinates? Further, we seek comment on appropriate best practices for the number of decimal places to which a coordinate should be specified in order to conserve Alert Message space for text. CSRIC V recommends that alert originators determine the granularity of alert areas using vertices with two to five decimal places, depending on the nature of the hazard. CSRIC V finds that this would allow alert originators to target Alert Messages to with precision from 1.1 km to 1.1 meters. We seek comment on this recommendation and analysis. We note that, under current standards, a valid polygon consists of one-hundred coordinate pairs or fewer. Would rules or best practices be appropriate to determine the maximum number of coordinate pairs that should be included in an Alert Message? We seek comment on any additional technical challenges that Participating CMS Providers may face in complying with a more accurate geo-targeting standard, and on feasible methods of overcoming them.

68. While we believe that a device-based approach is most likely to enable Participating CMS Providers to match the target area, we seek comment on whether continued focus on network-based approaches could enable Participating CMS Providers to meet this accuracy requirement. For example, could geo-targeting be improved by leveraging the relatively smaller coverage areas of network-based technologies, such as small cell technology, distributed antenna systems (DAS), Wi-Fi access points, beacons, commercial location-based services (cLBS), institutional and enterprise location systems, or smart building technology? We observe that these network-based technologies are widely deployed across the United States, and particularly in urban areas. Are CMS Provider networks configured to be able to send a WEA Alert Message over the control channel to these network-based technologies? What steps would be necessary to enable these technologies to assist in geo-targeting? Since the radio frequency propagation areas of these technologies are significantly smaller than the propagation areas for large cell sites, do they hold potential to improve geo-targeting? If not, why not? We also seek comment on the reliability of network-based technologies relative to the larger transmission facilities Participating CMS Providers traditionally use for WEA cell broadcast. Would relying on these technologies as a path forward to further improving geo-targeting leave the system vulnerable to becoming far less accurate when its accuracy is needed most, including during Imminent Threat Alerts?

69. Finally, we seek comment on whether additional, incremental improvements to geo-targeting could be achieved through standards updates that could allow Participating CMS Providers to support “nesting polygons.” Nesting polygons describe overlapping geographic areas where one polygon is situated, or “nests,” at least in part, within the boundaries of another, larger polygon. We seek comment on the extent to which existing network technologies can be leveraged to support nesting polygons, provided that relevant standards are updated to support them. We anticipate that a scenario where nesting polygons could be useful would be where one WEA Alert Message is appropriate for broadcast in the area where an incident, such as a chemical spill, has occurred (e.g., an instruction to shelter in place), and another WEA Alert Message is appropriate for broadcast in the surrounding area (e.g., an instruction to evacuate). We seek comment on this example, and invite commenters to specify additional use cases where it would be useful to be able to specify nesting polygons as a target area. According to ATIS, current standards support geo-targeting Alert Messages to multiple polygons, but existing standards would interpret multiple, overlapping polygons as the union of those polygons. Nesting polygons, on the other hand, would require CMS networks to sometimes interpret overlapping polygons as providing an instruction to “subtract” the internal polygon from the external polygon. According to ATIS, this functionality would require an update to J-STD 101 as well as to the CAP standard. Would additional updates to alert origination software be required to support sending different messages to nested polygons?

70. We reason that achieving a geo-targeting standard whereby Participating CMS Providers can match the target area specified by an alert originator, either through device- or network-based techniques, would have tremendous benefits for public safety, and would eliminate the current dangers of poor geo-targeting that deter many emergency managers from becoming authorized as WEA alert originators. As discussed above, alert originators continue to demand more accurate geo-targeting from WEA before they will rely on it for emergency messaging in situations where it could be dangerous for individuals in areas adjacent to the target area to receive instructions intended only for individuals within the target area. Further, each incremental improvement that Participating CMS Providers can make to geo-targeting incrementally reduces alert fatigue, and increases the public's trust in WEA as an alerting platform, thereby reducing milling and, potentially, network congestion. We seek comment on this reasoning. Finally, we note that the ATIS Feasibility Study for Supplemental Text observed that delivering target area coordinates to the mobile device consistent with a device-based approach to geo-targeting would be the first step towards enabling WEA Alert Messages to support high-information maps, an improvement that emergency managers universally endorse. We seek comment on this observation. We also seek comment on alternative approaches we can take to improving WEA geo-targeting that would meet emergency managers' objectives while presenting lesser cost burdens to Participating CMS Providers.

71. As we noted in our Spectrum Frontiers proceeding in July 2016, 5G networks “will enable valuable new services, and accelerating the deployment of those services is a national priority.” As 5G networks and devices are developed, we expect WEA capabilities to evolve as well, consistent with Congress' vision in enacting the WARN Act. Given the importance of our Nation's public alert and warning systems to promoting emergency response readiness, we must ensure that WEA Alert Messages continue to provide the public with vital and necessary information to take appropriate action to protect their families and property.

72. While we understand that specific WEA capabilities for 5G networks and devices are not yet developed, we believe it is appropriate to seek comment on those capabilities now in light of the importance of designing these networks and devices with WEA capabilities in the early stages of development and throughout their development process. We disagree with CTIA that “it is premature at this time to address specific WEA capabilities that 5G might enable.” Participating CMS Providers are already examining how best to integrate 5G technologies into their networks and industry stakeholders are currently working to shape the strategic development of the 5G ecosystem. We observe that Verizon is expected to begin 5G field trials in the next few months, and most experts predict that 5G will be widely available as soon as 2020. Further, the record suggests that technological upgrades can be costly and time-consuming, and we reason that including WEA alerts and warnings in 5G from the beginning can reduce total costs for Participating CMS Providers and hasten the deployment of improvements to WEA that could benefit the public. We therefore seek to initiate a dialogue that will foster a better understanding of how Participating CMS Providers intend to incorporate WEA capabilities into their 5G offerings, as well as to identify areas where we can help provide regulatory clarity, where needed, that can drive design and investment. For example, AT&T opines that “[w]ith the standards for 5G now under development, it is important to have agreement that 360 characters is the maximum length for 4G and future services.”

73. In light of the foregoing, we seek comment on how to best incorporate alerts and warnings into the development of 5G technologies, and on how 5G technologies may enable further enhancements to WEA. What additional measures could the Commission take to facilitate the incorporation of WEA capabilities into 5G as these networks and devices are being designed? We seek comment on what, if any, steps the Commission should take to continue to ensure that WEA evolves along with advancements in technology in the 5G environment. What standards need to be developed or what other mechanisms need to be in place to ensure that WEA will be incorporated, and what actions are providers undertaking already? Elsewhere in this FNPRM, we seek comment on how improvements in technology can help improve WEA, in terms of microtargeting delivery of Alert Messages to a precise geographic location, incorporating multimedia capabilities to improve message content, and facilitating swifter delivery of critical early earthquake alerts where every second counts. Is it anticipated that there will be additional space for WEA in 5G system information blocks than is currently allocated on the 4G control channel? To what extent will 5G introduce new capabilities that will permit additional life-saving enhancements to WEA? Are there any existing rules governing WEA that would be inapplicable to 5G or that would otherwise require adaptation to address 5G capabilities? We seek comment on how to enable further enhancements to WEA in 5G technologies, and on the obligations that CMS Providers that elect to provide WEA on 5G networks should incur, including related costs and benefits.

74. In the WEA Third Report and Order, the Commission adopted certain disclosure requirements in order to ensure that CMS Providers “convey sufficient information” to the public about the nature of their participation in WEA. CMS Providers electing in whole to transmit WEA Alert Messages are not required to provide notification of their participation at the point of sale. CMS Providers participating in part, on the other hand, are required to provide clear and conspicuous notice to new subscribers of their partial election at the point of sale. Specifically, CMS Providers participating in part must, at a minimum, state the following:

75. Similarly, CMS Providers electing not to transmit WEA Alert Messages are required to offer, at a minimum, the following point-of-sale notification, “[[CMS provider]] presently does not transmit wireless emergency alerts.” We noted that our decision allowed, but did not require the disclosure of additional information regarding the technical limitations of the WEA service offered by a Participating CMS Provider.

76. We propose to require CMS Providers to disclose sufficient information at the point of sale to allow customers to make an informed decision about whether they would consistently receive WEA Alert Messages if they were to become a subscriber. To what extent do CMS Providers voluntarily provide additional information at the point of sale regarding the nature of their WEA participation beyond any disclosure required by our rules? Is our existing requirement, which requires CMS Providers participating in part to inform consumers at the point of sale that WEA “may not be available on all devices or in the entire service area,” sufficient to inform potential subscribers of whether they will receive a potentially life-saving alert through the Participating CMS Provider's network? If this point-of-sale notification is insufficient to support educated consumer choice among providers, what additional information would help to inform this choice and allow market forces to more aptly influence further improvements to WEA?

77. If we base our proposed definitions of modes of participation in WEA on the devices a Participating CMS Provider makes WEA capable, the extent to which WEA is offered in their geographic service area, and the technologies they commit to use in support of their WEA service, would it be reasonable to require corresponding adjustments to consumer disclosures? We propose that, as a baseline, CMS Providers should provide information regarding the extent to which they offer WEA (in what geographic areas, and on what devices) at the point of sale. Would this information be sufficient to promote informed consumer choice? Should we also require CMS Providers to disclose at the point of sale the specific network technologies that they commit to use in offering WEA? We seek comment on the extent to which knowledge of the specific technologies that competing CMS Providers will use to support WEA would promote more informed consumer choice between CMS Providers. Should this disclosure also include the extent to which the Participating CMS providers' networks are able to offer full 360-character Alert Messages? Would it be sufficient for Participating CMS Providers to provide potential subscribers with a link to a Web site describing their WEA capability at the point of sale, and would this approach help Participating CMS Providers to control costs associated with this proposal? With respect to CMS Providers who elect not to participate in WEA, should they be required to make any additional disclosures at the point of sale to ensure that consumers are aware that they will not be able to receive any potentially life-saving alerts through service with this carrier? We seek comment on the potential benefits and costs that might be associated with additional point-of-sale disclosures.

78. Section 602(b)(2) of the WARN Act provides that “any commercial mobile service licensee electing to transmit emergency alerts may offer subscribers the capability of preventing the subscriber's device from receiving such alerts, or classes of such alerts, other than an alert issued by the President.” Section 10.500 of the Commission's rules requires Participating CMS Providers' WEA-capable mobile devices to maintain consumers' opt-out preferences and display alerts to the consumer consistent with those selections. Pursuant to Section 10.280, a Participating CMS Provider may provide their subscribers with the option to opt out of Imminent Threat and AMBER Alerts, and must present the consumer “with a clear indication of what each option means, and provide examples of the types of messages the customer may not receive as a result of opting out.” The Commission adopted these requirements in the First Report and Order and the Third Report and Order, respectively, in order to allow Participating CMS Providers to accommodate variations in their infrastructures. In the WEA NPRM, we sought comment on the factors that lead consumers to opt out of receiving certain Alert Messages, including whether the manner in which Participating CMS Providers present their customers with opt-out choices impacts customer participation. We sought comment on whether Participating CMS Providers could offer customers a more nuanced opt-out menu in order to improve consumer choice.

79. Apple states that “enabling users to opt out of certain alerts at particular times or under specified conditions (such as when Do Not Disturb mode is turned on) would likely increase end-user participation.” Microsoft agrees that consumers should have control over what types of alerts are received, and when. NWS observes that opt-out choices are currently presented in an inconsistent manner across devices and operating systems, and recommends standardizing the presentation of opt-out choices. On the other hand, ATIS expresses concern that “adding complexity to the opt-out options may actually increase the number of subscribers choosing to opt-out of WEA,” and Blackberry urges us to leave opt out functionality such as “scheduling” and “time of day” features to device manufacturers' discretion. CSRIC V recommends that Commission collaborate with WEA stakeholders to create a set of “minimum specifications for an enhanced, secured and trusted, standards-based, CMSP-controlled WEA mobile device based application . . . in order to ensure high level support.”

80. We propose to require Participating CMS Providers to implement changes to the WEA application that would provide the public with more granular options regarding whether they receive WEA Alert Messages. In essence, Participating CMS Providers should provide consumers with tools that allow them to receive the alerts that they want to receive, in the manner they wish to receive them, and during the times they wish to receive them.

81. First, we propose to amend Section 10.280(b) to require that Participating CMS Providers offer their subscribers more informed choices among the Alert Message classifications that they wish to receive. We seek comment on the approaches that Participating CMS Providers currently take to “provide their subscribers will a clear indication of what each [Alert Message] option means,” and on specific improvements that they could make to the WEA application to enable consumers to make more informed choices among the different types of WEA Alert Messages they will receive. As demonstrated in Appendix F, some Participating CMS Providers offer their subscribers the option to choose whether to receive “Extreme” and “Severe” Alert Messages, as well as AMBER Alerts. Are these options sufficiently clear to empower consumers to make informed choices among Alert Messages? Would it be more clear if the options that Participating CMS Providers offered their subscribers tracked our alert message classifications (i.e., “AMBER Alerts,” “Imminent Threat Alerts,” and “Public Safety Messages”), or would other names or phrases be more effective in promoting clear consumer choice about the types of Alert Messages they will receive? Would it be helpful to offer consumers a full explanation of the kinds of emergency situations about which they will receive information by virtue of remaining opted in to receive Alert Messages of that category? For example, should consumers be informed that by remaining opted in to receive Imminent Threat Alerts they will receive information about imminent threats to their life and property, including significant or extraordinary threats that have either been observed in their area or likely to occur in the near future? Should consumers be informed that by remaining opted in to receive AMBER Alerts they will receive information that will empower them to assist law enforcement in locating abducted, lost, or otherwise missing children in their area that may be in imminent danger? We seek comment on best practices that have been developed with respect to the WEA interface that offer consumers a clear and easy-to-navigate menu of choices about whether and how to receive emergency alerts.

82. We also propose to require that Participating CMS Providers enhance their subscribers' ability to personalize how they receive the Alert Messages of their choosing. In the Report and Order we allow Participating CMS Providers to offer their consumers the option to change the attention signal and vibration cadence for Public Safety Messages, and to receive Public Safety Messages only during certain hours. We also allow Participating CMS Providers to provide their customers 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. We seek comment on whether we should require Participating CMS Providers to offer their subscribers a more granular suite of choices for Imminent Threat Alerts and AMBER Alerts as well, including but not limited to the options that we allow Participating CMS Providers to offer to their subscribers for Public Safety Messages, and including the ability to modify the attention signal and vibration cadence that is presented when an Alert Message is received when the phone is idle. For example, would it be feasible to require Participating CMS Providers to allow users to limit the hours within which they receive WEA AMBER Alerts (e.g., only between 8:00 a.m. and 8:00 p.m.)? Would it make more sense to offer consumers the option to modify or mute the attention signal and vibration cadence for Imminent Threat Alerts at night than to offer them the option to not receive Imminent Threat Alert during the night? In the alternative, we seek comment on whether we should require Participating CMS Providers to offer their subscribers the option to cache Alert Messages, rather than simply to opt in or out. Cached Alert Messages could be received without the associated attention signal and vibration cadence, and stored in a “WEA Inbox.” We seek comment on this approach. Taken together with our proposal that Alert Messages be appropriately preserved for user review, would providing users with the option to receive and cache Alert Messages provide many consumers with an appropriate balance between their perceived need to receive critical information during emergencies, and their desire to minimize the intrusiveness of the WEA attention signal and vibration cadence? We seek comment on the most common reasons why consumers opt out of receiving WEA AMBER Alerts and Imminent Threat Alerts, and on any additional steps that we can take to reduce these pain points through changes to the WEA opt-out menu.

83. In the alternative, we seek comment on whether to require all Participating CMS Providers to adopt a standardized opt-out menu, as recommended by NWS, and in a manner consistent with CSRIC V's recommendation. In particular, we seek comment on the model opt-out menu produced by NWS that we attach as Appendix F. Would the subscriber choices modeled here be appropriate to standardize among Participating CMS Providers and device manufacturers? Would a standardized opt-out menu facilitate familiarity with emergency alerts across service providers, promote personalization and improve the consumer experience with WEA? We seek comment on how we could design a model WEA opt-out menu in a manner that would improve personalization without significantly increasing user-facing interface complexity? Would it be appropriate for the Commission to host a workshop for this purpose? We encourage commenters to submit visual representations of ideal WEA interfaces into the record to facilitate discussion and review of alternatives to this model opt-out interface. We anticipate that requirements for subscriber opt-out choices would implicate changes to the ATIS/TIA Mobile Device Behavior Specification and to WEA application software. We seek comment on this analysis. In our consideration of whether to require a standardized WEA opt-out menu, should we make any particular accommodations for non-nationwide Participating CMS Providers (e.g., small, regional, and rural providers)?

84. The Commission's Part 10 WEA rules do not establish a procedure for Participating CMS Providers to report the results of any required tests to alert originators or to government entities. As such, there is no available method for analyzing the success of C-interface, Required Monthly, or State/Local WEA Tests. In the WEA NPRM, we sought comment on whether we should formalize a test reporting procedure for WEA and, if so, on the format and specific information that we should require Participating CMS Providers to report.

85. Hyper-Reach and the majority of public safety commenters support requiring Participating CMS Providers to report the extent of alert delivery latency, the accuracy of geo-targeting, and the availability and reliability of their WEA network because it would improve transparency and understanding of IPAWS/WEA among emergency managers, and because this transparency, in turn, could increase WEA adoption by non-participating emergency managers. CSRIC V states, for example, that “confidence in WEA among [Alert Originators] is dampened by perceived unpredictability of WEA geo-targeting,” and building confidence “will require a means by which they can know that the polygon provided is what is actually delivered at the towers for distribution.” Accordingly, CSRIC V recommends that ATIS and CTIA study methods of passively collecting and sharing data on the accuracy of geo-targeting with emergency management agencies. As demonstrated in Appendix G, NYCEM already independently generates performance reports on WEA geo-targeting, latency and reliability from actual Alert Messages issued in New York City. These tests demonstrate that some mobile devices in the target area do not receive WEA Alert Messages that are intended for them, and that some mobile devices do not receive Alert Messages intended for them until almost an hour after they are initially transmitted. APCO and Pinellas County EM urge the Commission to adopt reporting requirements specific enough to result in the production of uniform reports to emergency management agencies. While AT&T would support a requirement for Participating CMS Providers to report the results of RMTs, Sprint states that the kind of information we proposed to gather through test reporting (i.e., the extent of geo-targeting and alert delivery latency) is not technically feasible to deliver. Sprint and ATIS state that test reporting should be FEMA's responsibility.

86. We propose to amend Section 10.350 to require Participating CMS Providers to submit annual reports to the Commission that demonstrate the following system performance metrics for their nationwide WEA deployment (Annual WEA Performance Reports).

• Geo-targeting. The accuracy with which the Participating CMS Provider can distribute WEA Alert Messages to a geographic area specified by an alert originator.

• Latency. An end-to-end analysis of the amount of time that it takes for the Participating CMS Provider to transmit a WEA Alert Message.

• Availability and Reliability. The annual percentage of WEA Alert Messages that the Participating CMS Provider processes successfully, and a summary of the most common errors with Alert Message transmission.

We seek comment on these reporting elements and on the assessment methodologies Participating CMS Providers could use to produce Annual WEA Performance Reports below.

87. First, we seek comment on whether an annual requirement would achieve the right frequency of reporting. We reason that WEA performance data recorded over a period of one year would be sufficient to provide a statistically significant sample of data to inform Annual WEA Performance Reports. We seek comment on this rationale. We note that the record reflects concern that reporting requirements will “result in an increased burden for carriers participating in the service on a voluntary basis,” as well as concern that there is currently no method available to alert originators to verify system availability and reliability except anecdotally. Does our proposed approach strike the appropriate balance between these concerns? If not, we invite commenters to recommend alternative periodicities within which such reports should be required.

88. In the alternative, would a single performance report to become due on a date certain, rather than an annual requirement, suffice to inform emergency managers and the public about WEA's capabilities? What types of changes, if any, would be substantive enough to warrant additional reporting beyond the initial report? For example, as Participating CMS Providers make material upgrades to their networks to incorporate new or updated technologies (e.g., 5G network technologies), would additional performance reporting be appropriate to demonstrate that WEA continues to satisfy its performance requirements, or to highlight the extent to which any system improvements may improve a Participating CMS Providers' WEA service? Would it be appropriate to adopt an alternative, less frequent reporting requirement for non-nationwide Participating CMS Providers?

89. We seek comment on the methodology by which Participating CMS Providers may develop Annual WEA Performance Reports. We anticipate that State/Local WEA Tests would be an effective method of collecting annual report data since they are test messages that may be used by state and local emergency managers to evaluate system readiness, and are required to be processed consistent with our Alert Message requirements. We seek comment on this analysis. Would a different classification of WEA Alert Message be more appropriate for use to collect performance data, be more likely to produce results that are representative of Alert Message delivery under actual emergency conditions, or be less burdensome to implement? For example, AT&T states that Participating CMS Providers' reporting obligations should be limited to RMTs. We observe that Section 10.350 does not require Participating CMS Providers to deliver RMTs to mobile devices, and allows RMTs to be distributed “within 24 hours of receipt by the CMS Provider Gateway unless pre-empted by actual alert traffic or unable due to an unforeseen condition.” Given these limitations, we seek comment on the value of RMTs as the basis for collecting Annual WEA Performance Report data. For example, could it be less burdensome and comparably effective for Participating CMS Providers to collect geo-targeting data from cell sites to which RMTs are delivered, as opposed to from mobile devices to which State/Local WEA Tests are delivered? To what extent could an analysis of the radio frequency propagation characteristics of the particular constellation of cell sites and cell sectors chosen to geo-target an RMT be used as an accurate proxy for the geographic area to which an Alert Message with the same target area would actually be delivered? Further, we seek comment on whether RMTs could provide meaningful data about alert delivery latency, given that Participating CMS Providers are allowed to delay up to 24 hours before retransmitting them. For example, would it be less burdensome and comparably effective to allow Participating CMS Providers to schedule performance analyses during times when network usage is light? Would it be feasible and desirable to “pause the timer” on any applicable latency measurement at the CMS Provider Alert Gateway until such a time within 24 hours as becomes convenient to distribute the test message? Would such an approach undermine the representativeness of the latency data collected because actual Alert Messages are not held for any period of time in order to await more ideal network conditions?

90. We seek comment on the specific data that Participating CMS Providers would be required to gather in order to complete statistically significant reports on the accuracy of WEA geo-targeting, the extent of alert delivery latency, and system availability and reliability. Would determining the accuracy of geo-targeting require either a measurement of the contours of the geographic area within which WEA-capable mobile devices receive the message, or an estimation of the radio frequency propagation contours of the cell broadcast facilities selected to geo-target the Alert Message? Would it require comparing the target area to the alert area? Would an average deviation from the target area be an adequate measure of the accuracy of geo-targeting, or would emergency managers benefit from a report on the specific percentage of instances in which a Participating CMS Provider is able to meet our geo-targeting standard? Further, we seek comment on whether there are WEA geo-targeting scenarios that pose particular challenges to Participating CMS Providers. If so, should Participating CMS Providers be required to collect, analyze and report on geo-targeting under those specific circumstances? In any case, should Participating CMS Providers be required to collect, analyze and report on their ability to geo-target Alert Messages to geocodes, circles, and polygons of varying complexities, and in varying geographic morphologies? How many samples of each type would be necessary to produce a statistically significant report on the accuracy of a Participating CMS Providers' WEA geo-targeting capability nationwide?

91. Further, we seek comment on the specific data points that Participating CMS Providers would be required to gather in order to measure alert delivery latency. Would it be satisfactory to simply measure the amount of time that elapses from the moment that an alert originator presses “send” using their alert origination software to the moment that the Alert Message is displayed on the mobile device? Would this single measurement suffice to give an alert originator an informed perspective on when the public could reasonably be expected to receive an Alert Message that they may send in a time-sensitive crisis? Would it also provide sufficient insight into system functionality to allow us to diagnose and address specific causes of alert delivery latency? Alternatively, would it be advisable to collect latency data at points in addition to the time of initial transmission and the time of receipt on the mobile device? For example, would it be advisable to analyze time stamps for Alert Messages received and transmitted at each of the A-E interfaces that comprise the WEA system in order to diagnose specific causes of latency, and to promote sufficient transparency to facilitate Commission action in the public interest? We seek comment on whether there are any particular circumstances in which Alert Messages are delivered more slowly than others. If so, should Participating CMS Providers be required to collect, analyze and report on alert delivery latency under those specific circumstances? In any case, should Participating CMS Providers be required to collect, analyze and report on alert delivery latency in varying geographic morphologies? How many independent measurements would be necessary to produce a statistically significant report on the degree of alert delivery latency at each WEA interface?

92. Similarly, we seek comment on the specific data points that Participating CMS Providers would be required to collect in order to satisfactorily measure the regularity of system availability and reliability. Would the alert logging requirement that we adopt today suffice to determine the WEA system's rate of success at delivering Alert Messages? Where do errors with Alert Message transmission tend to occur? If at junctures other than the C-interface, does this militate for the collection of system availability data at each interface in the alert distribution chain in addition to the CMS Provider Alert Gateway? If less than 100 percent of WEA-capable mobile devices in the target area receive a WEA message intended for them, would this implicate shortcomings in system availability or reliability? If so, should Participating CMS Providers also be required to collect data on the percentage of WEA-capable mobile devices for which an Alert Message is intended that actually receive it, and to report this data to the Commission as a fundamental aspect of system availability and performance? Would this more nuanced approach be necessary in order to allow Participating CMS Providers to diagnose and correct any issues in alert distribution that may arise, and to promote sufficient transparency to facilitate Commission action in the public interest? Would an average measure of the rate of system availability be sufficient to grow emergency managers' confidence that the system will work as intended when needed, or do emergency managers require more granular data? Would it be necessary for Participating CMS Providers to log and report the CMAC attributes of each Alert Message at each of the C-E interfaces in order to establish whether the WEA system is able to deliver Alert Messages with “five nines” of reliability (i.e., to establish whether 99.999 percent of WEA Alert Messages are delivered successfully)? Is this an appropriate standard of reliability for the WEA system? If not, why not?

93. We seek comment on whether emergency managers need any additional information beyond the accuracy of geo-targeting, the extent of alert delivery latency, and the regularity of system availability and reliability in order to understand the strengths and weaknesses of WEA as an alert origination tool. What, if any, additional data could Participating CMS Providers collect without incurring additional cost burdens, if we were to require them to collect each of the aforementioned data points? In the alternative, we seek comment on whether, and if so, to what extent making alert logs available upon emergency management agencies' request could satisfy their need for this information. Further, in addition to the possibility of requiring performance reports less frequently from non-nationwide Participating CMS Providers, we seek comment on whether such Participating CMS Providers should also be allowed to collect less granular data on system performance in order to reduce any cost burdens entailed by these proposed recordkeeping and reporting requirements.

94. We seek comment on whether we should defer to Participating CMS Providers regarding how they collect annual report data. Does such an approach provide Participating CMS Providers with increased flexibility that will reduce the burdens of these recordkeeping and reporting requirements? Would this approach only be appropriate for non-nationwide Participating CMS Providers? We seek comment on whether one effective and efficient method of generating national data for annual submission to the Commission might be through the use of a representative sample of the different real world environments in which the WEA system would be used (e.g., the dense urban, urban, suburban and rural morphologies defined by the ATIS-0500011 standard). We anticipate that the use of a representative sample of geographic morphologies could reduce any burdens that may be associated with providing Annual WEA Performance Reports by allowing Participating CMS Providers to collect less data. We seek comment on this analysis.

95. In the alternative, we seek comment on whether our State/Local WEA Testing model provides a framework to emergency managers that is sufficient to enable them to collect localized geo-targeting, latency, and system availability data without requiring additional involvement from Participating CMS Providers. We observe that, even in the absence of State/Local WEA Tests, NYCEM deployed a network of volunteers using mobile device offered by an assortment of Participating CMS Providers to collect data on WEA geo-targeting and latency in New York City. We applaud NYCEM for their voluntary effort to improve awareness about WEA system performance. We seek comment on whether such tests demonstrate that it would be feasible for any emergency management agency that wishes to gather performance statistics about WEA to do so for themselves. We seek comment on whether NYCEM's tests were able to produce statistically significant results, and if not, we seek comment on whether emergency managers would be willing to voluntarily collaborate and share test results with one another such that their findings could be aggregated into a statistically significant sample size.

96. We propose to treat Annual WEA Performance Reports submitted to the Commission as presumptively confidential, as we have reports in the E911, Emergency Alert System (EAS), and Network Outage Reporting System (NORS) contexts. Similarly, we propose to require that Participating CMS Providers grant emergency management agencies' requests for locality-specific versions of these performance metrics if and only if the requesting entity agrees to provide confidentiality protection at least equal to that provided by FOIA. Would the production of the proposed performance metrics require Participating CMS Providers to disclose information that they consider to be proprietary? Would offering such aspects of Annual WEA Performance Reports presumptively confidential treatment and only requiring that that Participating CMS Providers share them with entities that agree to provide confidentiality protection at least equal to that provided by FOIA ameliorate any concerns about the disclosure of potentially sensitive competitive information? Further, we seek comment on steps that Participating CMS Providers can take to protect consumer privacy if producing reliable performance data requires information to be extracted from end user mobile devices. We observe that we are not requesting data at the end user/mobile device level, and therefore assume that any such information would be aggregated or, at a minimum, de-identified.

97. We anticipate that requiring Annual WEA Performance Reports would be likely to benefit emergency managers and the public. For example, we agree with Jefferson Parish EM that performance reports would help to improve system transparency with respect to “how long it took for the alert to reach the public,” whether there was “under alerting or overlap of the alerts,” and how often there are network conditions in which “Emergency Managers . . . could not send alerts.” We also agree with NYCEM that “[a]s with any other mission-critical system, mobile service providers should be required to capture and report system errors” in order to improve the system's security posture. Further, FEMA and other commenting emergency management agencies agree that reporting geo-targeting, latency and system availability and reliability data could provide a compelling demonstration of WEA's capacity to deliver timely, geo-targeted Alert Messages to specific areas and localities on a national scale, which could potentially increase WEA adoption by non-participating emergency managers who are “reluctant to activate WEA” without demonstrations of “coverage and delivery latency within their jurisdiction.” We seek comment on this assessment. We also seek comment on whether the greater transparency promoted by Annual WEA Performance Reports would better support alert originator and emergency operations center response planning. At the same time, we anticipate that regular performance reporting requirements may also be useful to us in our efforts to bring to light and address potential areas for improvement in the WEA system nationwide. Regardless, we seek comment on whether increases in system transparency created by Annual WEA Performance Reports would be likely to improve our ability to act in the public interest to remediate any issues that the reports may reveal. We seek comment on our analysis of these potential benefits, and on any other benefits that Annual WEA Performance Reports may provide.

98. As discussed above, we require Participating CMS Providers to log their receipt of Alert Messages at their Alert Gateway and to appropriately maintain those records for review. We now seek comment on whether and, if so, how to create a uniform format for alert logging, and on how the collection of more detailed system integrity data could be integrated into Annual WEA Performance Reports. We seek comment on the extent to which emergency managers would benefit from standardization of the format of Participating CMS Providers' alert logs. Emergency managers confirm that there is value in log keeping by Participating CMS Providers, but CMS Providers confirm there is significant variation among them with respect to log keeping. Absent standardization of alert logging capabilities, would emergency managers be forced to contend with this variation in a manner that may significantly decrease the value of alert logs? Does this support the value proposition of a uniform standard consistently applied to Participating CMS Providers' log keeping? Would the creation of a uniform format require the modification of standards relevant to Alert Gateway functionality? Would updates to Alert Gateway software also be required?

99. We also seek comment on whether the logging requirements we adopt today should extend beyond the CMS Provider Alert Gateway to the RAN and to WEA-capable mobile devices in furtherance of our goal of improving WEA transparency. We anticipate that alert logging beyond the Alert Gateway will continue to improve the transparency of the WEA system, will contribute to emergency managers' confidence that the system will work as intended when needed, and will improve our ability to detect and remediate any latent issues. We seek comment on this analysis. Will requiring Participating CMS Providers to log error reports and the CMAC attributes of Alert Messages at the CMS Provider Alert Gateway, as we do today, be sufficient to safeguard the integrity of WEA? If not, would it be advisable to require that Participating CMS Providers log this information at each of the C-E interfaces? We also seek comment on whether data other than, or in addition to error reports and CMAC attributes can be utilized as indicia of system integrity. Do Participating CMS Providers currently safeguard WEA system integrity through mechanisms other than, or in addition to alert logging? Further, we seek comment on whether requiring Participating CMS Providers to log data relevant to the accuracy of geo-targeting, the extent of alert delivery latency, and the system availability and reliability could contribute to the collection of data for Annual WEA Performance Reports? For example, if we were to require Participating CMS Providers to log alert receipt and transmission time stamps at each of the C-E interfaces, would that data contribute to their ability to report on specific sources of alert delivery latency?

100. The rules we propose in this FNPRM would leverage commercially available technologies to improve public safety. In this regard, we take notice of the current state of technology, and propose timeframes that are informed by the processes and procedures that Participating CMS Providers and mobile device manufacturers state are necessary to implement changes to their WEA service. For ease of reference, the table below sets forth proposed timeframes for compliance with our proposed rules. We also seek comment on timeframes within which we could reasonably expect Participating CMS Providers to reach other policy objectives we discuss in this FNPRM.

101. We propose a 30-month compliance timeframe for each proposed rule where compliance would be expected to require updates to standards and system specifications, as well as software updates for various components of the WEA system. These proposals include requiring Participating CMS Providers make changes to the WEA interface to promote informed consumer choice, requiring them to expedite delivery of earthquake-related Alert Messages, requiring them to provide a method of accessing pending Alert Messages, requiring support for multimedia content in Public Safety Messages, and requiring them to track and report on critical system performance metrics. We seek comment on this approach and analysis. In the Report and Order, we concluded that 30 months was an appropriate timeframe within which to require Participating CMS Providers to comply with rules that required updates to software and standards because it takes twelve months for appropriate industry bodies to finalize and publish relevant standards, another twelve months for Participating CMS Providers and mobile device manufacturers to develop and integrate software upgrades consistent with those standards into embedded plant and to complete required “technical acceptance testing,” and then six more months for Participating CMS Providers and mobile device manufacturers to deploy this new technology to the field. We seek comment on whether, unlike changes to WEA Alert Message content we adopt in the Report and Order, our WEA interface and Alert Message preservation proposals will likely only require changes to WEA-capable mobile devices, not Participating CMS Providers' networks. If so, would mobile device manufacturers be able to integrate these enhanced capabilities into their mobile devices on a faster timeline than we allow for compliance with rules that implicate more systemic changes?

102. With respect to our proposal to require Participating CMS Providers to produce and share critical system performance metrics, we anticipate that compliance would require updates to software and standards, as well as the coordinated efforts of professionals employed by Participating CMS Providers in order to design and implement appropriate data collection and sharing mechanisms. We seek comment on this reasoning. We seek comment whether compliance with this proposal would require updates to software and standards akin to those required by rules we adopt in the Report and Order, and, relatedly, on whether we could reasonably expect Participating CMS Providers to complete these updates within thirty months. We anticipate that some portion of the design planning required to determine the types of data and data collection methodologies appropriate for this task will take place during the course of this proceeding as industry stakeholders consider what compliance with our proposal would require of them. We also anticipate that this work could continue in parallel with the development of appropriate standards that describe this data collection task. Accordingly, we do not anticipate that any unique project planning component of this proposal will militate for allowing Participating CMS Providers additional time within which to comply, but we seek comment on this analysis. We also propose to provide Participating CMS Providers with a period of one year from the date of required compliance to produce their first annual WEA performance report (i.e., within 42 months of publication in the Federal Register of a notice announcing the approval by the Office of Management and Budget of the modified information collection requirements). We anticipate that one year will be sufficient for Participating CMS Providers to schedule any required data collections, and to aggregate that data into useful reports. We seek comment on this analysis.

103. We propose to require Participating CMS Providers to match the target area specified by alert originators within 42 months of the rules' publication in the Federal Register, or within 24 months of the completion of all relevant standards, whichever is sooner. This is consistent with CSRIC V's recommendations that we allow 18 months for the development of standards “in consideration of device compatibility, potential privacy issues, network congestion and consumer impacts due to increased data plan usage,” and that “[o]nce the standards work is complete, full system deployment including new handsets should be deployed within no more than 24 months.” We seek comment on this proposal. We also seek comment on whether and how this timeframe could be expedited, given the critical public need to employ more precise geo-targeting standards. Rather than adopting a single implementation timeframe, should we benchmark compliance timeframes based on a percentage of Alert Messages that meet the standard (e.g., 40 percent of Alert Messages within two years, 80 percent of Alert Messages within six years)? Could this approach enable compliance for a percentage of Alert Messages in a shorter timeframe by enabling Participating CMS Providers to implement improvements to geo-targeting by facilitating implementation on a rolling basis and without waiting for industry standardization? We note that Participating CMS Providers voluntarily improved geo-targeting relative to our foregoing county-level requirement without industry standardization. We seek comment on why standards would be necessary to support a “matching” requirement where they do not seem to have been needed to support a “best approximate” requirement. Further, CSRIC V finds that Participating CMS Providers would need 36-48 months to support nesting polygons, where 18-24 months is allocated to the modification of appropriate standards, and 18-24 months is allocated for development and implementation in Participating CMS Providers' networks. We seek comment on this analysis. Why would enabling geo-targeting to nesting polygons require more time than the record shows is necessary to modify standards and software to support rules we adopt today? We seek comment on a reasonable timeframe within which to integrate additional network-based technologies, such as small cells, into the WEA infrastructure in order to achieve incremental improvements to WEA geo-targeting. Could such an integration take place within a shorter timeframe that that which we may allow for the integration of eMBMS or another ulterior technology into WEA because the network components that we consider above are already integrated into Participating CMS Providers 4G-LTE networks?

104. We propose to require compliance with our proposed point-of-sale notification requirements, and with our new definitions of the modes of participation in WEA insofar as they necessitate a renewed obligation to file election letters within 120 days of the rule's publication in the Federal Register. We anticipate that compliance with these proposed rules would require time and effort on the part of attorneys and communications professionals employed by Participating CMS Providers in order to update any required point-of-sale notifications, and potentially to update Participating CMS Providers' election letters on file with the Commission. We seek comment on this analysis, and relatedly, we seek comment on whether 120 days would be a sufficient period of time within which to expect Participating CMS Providers to complete this task. We observe that in the Ensuring the Continuity of 911 Communications Report and Order, the record supported allowing Participating CMS Providers 120 days to update their point-of-sale notification to advise consumers of the availability of a backup power solution that provides 911 access during a commercial power loss. We seek comment on whether 120 days would also be adequate in this context, and if not, we invite commenters to provide specific details as to how our proposal presents unique challenges. We also seek comment on whether we could reasonably expect Participating CMS Providers to file any required update to their election letter within this 120-day timeframe, noting that in the WEA Third Report and Order, we required CMS Providers to file their election letter within 30 days.

105. We propose to require compliance with our WEA infrastructure functionality proposal within 30 days of the rules' publication in the Federal Register. We do not anticipate that Participating CMS Providers would need to take any action to achieve compliance with this proposed rule, if adopted, because, as we reason above, Participating CMS Providers do not rely on the language we propose to remove. We seek comment this analysis. If the deletion of this language would require CMS Providers otherwise in compliance with our Part 10 rules to take action in order to continue to participate, what specific steps would be necessary to comply with these rules as revised? How much time would those steps take to complete? If any Participating CMS Provider were to fall within this category, would it likely be a non-nationwide Participating CMS Provider? If so, would it be appropriate to make any special accommodations for non-nationwide Participating CMS Providers to facilitate their continued participation?

106. We also seek comment on reasonable timeframes in which to expect Participating CMS Providers to be able to reach the other policy objectives that we discuss above, including developing a uniform standard for alert log formatting and developing additional alert logging capabilities throughout the WEA system and deepening WEA's language support capabilities. With respect to alert logging, we seek comment on whether one year would be sufficient for industry to complete a standard to describe a uniform alert log format that will facilitate comparison of Participating CMS Providers' WEA services, as we concluded would be appropriate for standards necessitated by rules we adopt in the Report and Order. We also seek comment on whether 30 months would be an appropriate period of time within which to require logging at additional junctures in the WEA system. Would software updates be required to implement this change?

107. We seek comment on a reasonable timeframe within which to require Participating CMS Providers to support transmission of Alert Messages in languages in addition to English and Spanish. Could standards appropriate to support additional languages in WEA, including ideographic languages, be completed or otherwise integrated into WEA within one year, consistent with our reasoning about the time that it takes to complete standards in the Report and Order. We seek comment on whether software would need to be updated in order to support additional languages as well given the two-year timeframe that we allow Participating CMS Providers to update software to support a language in addition to English (i.e., Spanish) in the Report and Order. Would it be possible for Participating CMS Providers to bundle software upgrades enabling support for additional languages into any software upgrades that they may undertake in order to comply with our Spanish-language requirement? If not, why not?

108. Finally, we seek comment on a reasonable implementation timeframe for our proposal to prioritize earthquake-related Alert Messages at the Participating CMS Provider Alert Gateway. Would Participating CMS Providers be able to implement this change on the same 30-month timeframe that we allow for other proposals anticipated to necessitate changes to software and standards? Could any changes to the prioritization of earthquake-related Alert Messages in transit be completed within the same timeframe? If not, what additional considerations should we take into account in our analysis of what changes in Alert Message prioritization in transit will require? We seek to implement each of our proposed rules in as swift of a timeframe as possible, while ensuring that our proposed rules do not pose undue burdens for Participating CMS Providers, recognizing the current state and technology. We invite commenters to offer into the record any additional considerations relevant to compliance with our proposed rules.

109. 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.

110. It is further ordered that the Commission's Consumer and 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.

One of the purposes of this advance notice of proposed rulemaking (ANPR) is to solicit public comments on developing and administering a co-management framework to manage the subsistence use of polar bears in Alaska. This effort would include implementation of the sustainable harvest management obligations of the Agreement between the Government of the United States of America and the Government of the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population (U.S.-Russia Agreement) as implemented under title V of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.). Activities under a cooperative agreement could include the following: collaborating to collect information on the distribution, abundance, and health of polar bears; managing human and polar bear conflicts; assessing and protecting important habitats; and monitoring and managing subsistence harvest. We are also soliciting preliminary ideas about the content of regulations to facilitate implementation of harvest regulations for polar bears in the Alaska-Chukotka population in accordance with our obligations under the U.S.-Russia Agreement.

As previously mentioned, the U.S.-Russia Agreement is implemented in the United States through title V of the MMPA. Congress passed the MMPA in 1972 to prevent marine mammal species and population stocks from declining beyond the point at which they ceased to be significant functioning elements in the ecosystems of which they are a part. The MMPA prohibits, with certain exceptions and exemptions, the take of marine mammals. Prior to enactment of title V of the MMPA and ratification of the U.S.-Russia Agreement, section 101(b) of the MMPA governed the take of polar bears from the Alaska-Chukotka population, providing a general exemption for the taking of all marine mammals by any Indian, Aleut, or Eskimo who lives in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking is for subsistence purposes or for the purpose of creating and selling authentic native articles of handicraft and clothing, provided that the taking is not accomplished in a wasteful manner. Under MMPA section 101(b), if the Secretary determines any species or stock of marine mammal subject to taking by Indians, Aleuts, or Eskimos is depleted, the taking may be regulated.

The MMPA also recognizes the intrinsic role that marine mammals have played and continue to play in the subsistence, cultural, and economic lives of Alaska Natives. The Service, in turn, recognizes the important role that Alaska Natives can play in the conservation of marine mammals such as the polar bear. Amendments to the MMPA in 1994 acknowledged this role by authorizing the Service to enter into cooperative agreements with Alaska Natives for the conservation and co-management of subsistence use of marine mammals (16 U.S.C. 1388).

Upon enactment of title V of the MMPA and ratification of the U.S.-Russia Agreement in 2007, the MMPA's Alaskan Native exemption under section 101(b) no longer applied with respect to take from the Alaska-Chukotka population of polar bears (16 U.S.C. 1423g). The U.S.-Russia Agreement and title V of the MMPA continues to allow consumptive use of polar bears for subsistence purposes or the creation of authentic native handicrafts and clothing by Alaskan natives, but subjects that use to a number of restrictions, including those adopted by the U.S.-Russia Polar Bear Commission (Commission), the bilateral authority established under the U.S.-Russia Agreement.

The 2007 amendments to the MMPA also identified the Alaska Nanuuq Commission (ANC), and any successor entity, as the Alaska Native entity that represents all villages in the State of Alaska that engage in the annual subsistence taking of polar bears from the Alaska-Chukotka population. The ANC was established in 1995 to represent the interests of subsistence users and polar bear hunters on issues relating to the subsistence harvest of polar bears in Alaska. The 2007 amendments to the MMPA allow for the Service to share authority for the management of the taking of polar bears from the Alaska-Chukotka population for subsistence purposes with the ANC, or a successor entity, provided certain criteria are met, including: Entering into a cooperative agreement with the Secretary of the Interior (Secretary) under section 119 for the conservation of bears; meaningfully monitoring compliance with title V and the U.S.-Russia Agreement by Alaska Native people; and administering a co-management program for polar bears in accordance with title V and the U.S.-Russia Agreement.

In 2008, the Service listed polar bears as a threatened species worldwide under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) due to range-wide declines in sea ice. A threatened species is any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Critical habitat has also been designated for polar bears in the United States. In addition, under section 4(d) of the ESA, the Secretary has discretion to issue such regulations as she deems necessary and advisable to provide for the conservation of threatened species. The Service determined that a section 4(d) rule was appropriate for polar bears and issued one that adopts the existing conservation regulatory requirements under the MMPA and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES; 27 U.S.T. 1087) as the primary regulatory provisions for the polar bear. The Service has been working with a diverse team to develop a Conservation Management Plan for polar bears, and the final version is expected to be released by the end of the calendar year. Because polar bears are listed under the ESA, they are considered depleted under the MMPA.

In addition to the national legislation just discussed, polar bear management in the United States is guided by multi- and bilateral agreements. In 1973 the Governments of Canada, Denmark (on behalf of Greenland), Norway, the Soviet Union, and the United States entered into the Agreement on the Conservation of Polar Bears (Range States Agreement). In entering into the Range States Agreement, the Parties acknowledged that additional protection was required for polar bears and that it was best achieved through coordinated measures. Parties to the Range States Agreement have committed to protect the ecosystems of which polar bears are a part and to manage polar bear populations in accordance with sound conservation practices based on the best available scientific data. Parties agreed that polar bears could be taken for scientific purposes, for conservation purposes, to prevent serious disturbance of the management of other living resources, by local people using traditional methods in the exercise of their traditional rights, or wherever polar bears have or might have been subject to taking by traditional means. Under the Range States Agreement, a Circumpolar Action Plan was adopted in 2015 that includes a number of management and research efforts to further the conservation of the species.

In 1988, the Inuvialuit-Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea was signed by the Inuvialuit Game Council and the North Slope Borough Fish and Game Committee (I-I Agreement). The I-I Agreement noted that the Inupiat of the United States and the Inuvialuit of Canada have traditionally harvested a portion of polar bears from the same population in the southern Beaufort Sea and recognized that the maintenance of a sustained harvest for traditional users in perpetuity requires that the number of polar bears taken annually not exceed the productivity of the population. Objectives of the I-I Agreement include maintaining a healthy viable population of polar bears in the southern Beaufort Sea and managing polar bears on a sustained-yield basis in accordance with all the best information available. The I-I Agreement provides protection to denning bears and family groups and establishes a process for determining an annual sustainable harvest.

In 2000, the Government of the United States and the Government of the Russian Federation signed the U.S.-Russia Agreement. The U.S.-Russia Agreement pledges cooperation with the goal of ensuring the conservation of the Alaska-Chukotka polar bear population (ACPBP), conservation of its habitat, and the regulation of its use for subsistence purposes by native people. It prohibits the taking of polar bears from this population inconsistent with the terms of the U.S.-Russia Agreement or the Range States Agreement.

The U.S.-Russia Agreement entered into force on September 23, 2007. The U.S.-Russia Agreement, among other things, provides legal protections for the ACPBP, found in the Chukchi-Northern Bering Sea. The U.S.-Russia Agreement is implemented in the United States through title V of the MMPA and builds upon those protections provided to polar bears through the 1973 Range States Agreement. The U.S.-Russia Agreement establishes a common legal, scientific, and administrative framework specifically for the conservation and management of the ACPBP shared between the United States and the Russian Federation. During the negotiation of the U.S.-Russia Agreement, it was recognized that continued availability of bears from the ACPBP for subsistence hunting in Alaska depended upon a coordinated management regime between the two countries. The negotiators, including those representing Alaskan Natives, determined that the best path forward was to replace the general subsistence take exemption contained in section 101(b) of the MMPA with the U.S.-Russia Agreement, which pledges coordinated management with the Russian Federation and provides for an equal role in management for government representatives and Native people in both Alaska and Russia.

Importantly, article 8 of the U.S.-Russia Agreement establishes the Commission, which is tasked with coordinating measures for the conservation and study of the ACPBP. The Commission includes a U.S. section and a Russian section, with each national section comprising two members; for the United States, there is one representative of the Federal Government and one representative of the Alaska Native interest. Under the U.S.-Russia Agreement, each section has one vote, and all decisions of the Commission may be made only with the approval of both sections. Consequently, the U.S. Native representative has an integral role in Commission actions and must be knowledgeable of, or have expertise in, polar bears. To date, although not required under title V of the MMPA, the U.S. Native Commissioner has been associated with the ANC, the recognized co-management entity, and through that entity, the Commissioner received input to help form positions with the U.S. Federal Commissioner.

As identified above, the Federal Government has responsibility for the management and conservation of polar bears under a number of multi- and bilateral agreements and domestic laws and agreements. The Service has implemented its authorities in cooperation and collaboration with Alaskan Natives, to the extent allowable by law and regulation. We believe the active engagement and participation of Alaskan Natives is instrumental to successful implementation of our management actions, and we are committed to working to strengthen relationships to that end. We recognize that effective management of polar bears and human activities affecting polar bears and their habitat is greatly strengthened through the engagement, participation, and contribution of Alaskan Natives.

From 1997 to 2016, the Service has maintained cooperative agreements with the ANC. Through these cooperative agreements, the Service has worked to better understand the needs and interests of Alaska Native subsistence hunters and to exchange information on polar bears and their habitat. Since 2007, the Service's cooperative agreements with the ANC have focused on accomplishing polar bear conservation and implementing the U.S.-Russia Agreement.

The cooperative agreements between the Service and the ANC included a commitment to hold an annual meeting of the ANC. Commissioners from each of the 15 primary polar bear harvesting villages were appointed by their respective tribal governments to serve on the ANC Board. The cooperative agreements also included a requirement for coordination between the ANC Chairman and the ANC Commissioners to ensure: (1) That all Commissioners were fully informed of the taking limitation that will be implemented for the ACPBP; (2) that community concerns about conservation, management, and subsistence use of polar bears were shared with the ANC executive leadership with copies to the Service; and (3) that Commissioners attended local tribal government meetings, including those with the ANC leadership and Service employees, to present information on the polar bear harvest and other information about polar bear management and conservation and provide relevant reports from these meetings to the ANC executive leadership with copies to the Service.

Consistent with these agreements, the ANC was requested to assist in monitoring polar bear harvest in the local community by providing information to the hunters and community on progress of the harvest and, when appropriate, helping to ensure that Marking, Tagging, and Reporting Program (MTRP) taggers completed their tagging and reporting requirements. The MTRP, established pursuant to section 109(i) of the MMPA, requires hunters to present polar bear hides and skulls within 30 days of harvesting for tagging. The MTRP involves a network in 105 communities throughout Alaska and includes approximately 170 individuals hired as taggers. The ANC also committed to develop and implement steps to obtain authority from the tribal village governments to implement and enforce the annual taking limit under the U.S.-Russia Agreement and to develop a harvest monitoring system that included: Allocation procedures; reporting, tracking, and enforcement mechanisms; notification measures for providing real-time information on progress of harvest; and outreach and education materials.

At the second annual meeting of the Commission, which took place June 7-10, 2010, in Anchorage, Alaska (75 FR 65507, October 25, 2010), the Commissioners adopted an annual limit of polar bears that may be removed from the ACPBP of no more than 58 bears per year, of which no more than 19 may be females, to be divided evenly between the two nations. The Commission determined that all forms of human-caused removal of individuals from the ACPBP will be incorporated in this annual taking limit. The Commission, at each of its subsequent annual meetings held in 2011, 2012, 2013, 2014, and 2015, has maintained this take limit to ensure the continued harvest of polar bears remains sustainable (81 FR 3153, January 20, 2016). In 2012, the Commission adopted a multiyear quota system establishing a 5-year harvest level allowing annual adjustments to increase or decrease the taking limit depending on the harvest in the preceding year(s).

It is important to recognize that the subsistence harvest of polar bears is the primary way animals are removed from the population, but not the only way that humans take polar bears; all forms of removal are incorporated in the annual taking limit adopted by the Commission. For example, pursuant to article 6 of the U.S.-Russia Agreement, polar bears from the ACPBP may be taken when human life is threatened. Article 6 also authorizes the take of polar bears for scientific research and for the purpose of rescuing or rehabilitating injured polar bears, consistent with the Range States Agreement. Thus, in the course of the U.S. subsistence harvest season, which currently consists of the entire calendar year, the annual taking limit will need to be adjusted to account for subsistence harvest and other forms of removal, should they occur.

Of equal importance for Alaska Native polar bear hunters to understand is that the Commission adopted an annual taking limit in which no more than one-third of the overall limit may be female. Therefore, in the implementation of the annual taking limit, neither the limit on the total number of polar bears that may be removed from the population, nor the limit on the number of females that may be removed, can be exceeded.

The Service recognizes that federally enforced harvest limitations or closures for Alaska Native polar bear subsistence hunters have never been in place, and, therefore, we believe that the effectiveness of such measures is predicated on consultations and a collaborative co-management relationship with Alaska Natives and Tribal Governments. Such consultation is not only a crucial element of success, but also part of our responsibilities under the MMPA, and:

• The President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951);

• Executive Order 13175;

• Department of the Interior Secretarial Order 3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses in Alaska (Supplement to Secretarial Order 3206)];

• Department of the Interior Secretarial Order 3317 of December 1, 2011 (Tribal Consultation and Policy);

• Department of the Interior Memorandum of January 18, 2001 (Alaska Government-to-Government Policy);

• the Department of the Interior's manual at 512 DM 2; and

• the Native American Policy of the U.S. Fish and Wildlife Service, January 20, 2016 (in the Service Manual at 510 FW 1).

In addition to working through and with our co-management partner, the ANC, the Service has conducted government-to-government consultations with tribal governments and held many informational meetings in villages and at other relevant forums and conferences. During these meetings, we have heard varying levels of awareness and satisfaction with the way the above duties assigned and agreed to by the ANC were implemented.

We have heard from Alaska Native tribal governments and stakeholders that communication regarding the subsistence use of polar bears has been imperfect in the past, and we realize that effective communication is essential to success. With that in mind, we wish to ensure that our future co-management partner: Is capable of and committed to effectively facilitating communication between Alaska Native polar bear subsistence hunters and the Service; can ensure that Alaska Native tribal governments and their constituent members are fully informed of management plans, polar bear harvest regulation, and other relevant information about polar bear management and conservation; and effectively documents and communicates to the Service community concerns about polar bears and subsistence use. To do this, we anticipate an effective co-management partner will need to travel to Alaska Native villages, independently as well as with the Service, in order to facilitate full input by the Alaska Native community. Our co-management partner must also take steps to remain informed about the conservation, subsistence use, and co-management of polar bears, which may include participation in relevant local, state, national, and international meetings.

The ANC has been working towards developing details of a co-management plan for polar bears taken from the ACPBP. However, the Service has recently determined that we will not be able to continue to provide financial support for the ANC's operations, and it is thus unlikely that the ANC will be able to continue to serve as the representative of Alaska Native people for polar bear subsistence use, as defined in title V of the MMPA, as well as for Alaska Native polar bear hunters taking bears from the Southern Beaufort Sea population. We continue to believe that the activities included in previous agreements with the ANC are important, and we are interested in feedback as well as suggestions for improved delivery methods to increase effectiveness.

The Service is seeking a co-management partner, as a successor entity to the ANC, that will provide the Commission with relevant information about the Chukchi Sea population in its deliberative process and serve as a co-management partner with the Service for managing the ACPBP in accordance with the U.S.-Russia Agreement. We also seek a partner to represent Alaska Native polar bear subsistence hunters who harvest polar bears from the Southern Beaufort Sea population, a population that is not regulated under the U.S.-Russia Agreement and title V of the MMPA. We are interested in Alaska Native input on the formation of a new co-management partner who is able to:

(1) Involve subsistence users in conservation and management of polar bears in Alaska, including the creation of effective two-way communication;

(2) Collect and exchange local observations on polar bears for the development of sound management practices for polar bears in Alaska;

(3) Develop a regional harvest management system in accordance with title V of the MMPA and the U.S.-Russia Agreement, including promulgation of local ordinances or regulations that restrict the taking of polar bears for subsistence purposes, allocation of a quota to Alaska Native subsistence hunters, monitoring Alaska Native subsistence harvest of polar bears, and, if necessary, enforcement by the co-management partner that complements Federal regulations; and

(4) Develop a polar bear co-management structure, which requires obtaining delegated governmental authority to represent, at a minimum, the 15 tribal governments in the State of Alaska that engage in the annual subsistence taking of polar bears from the Alaska-Chukotka population and the Southern Beaufort Sea population.

Thus, the appropriate Alaska Native Organization (ANO) would play an important role in informing positions of the United States at the Commission meetings. A committed and engaged partner is particularly important at this time given the commitments to implement the U.S.-Russia Agreement.

As noted above, we are also soliciting preliminary ideas about the content of regulations to facilitate implementation of harvest regulations for polar bears in the Alaska-Chukotka population. In order to ensure the annual taking limit established by the Commission is not exceeded, we believe it is necessary and appropriate to require more timely reporting, and we also need to ensure that hunters have effective notice of current information regarding the number and sex of bears that have been harvested relative to the annual taking limit. Therefore, we are seeking ideas and insights on: (1) The most effective ways to keep hunters informed of the number of bears available to harvest during the course of a season and when the annual taking limit has been met; and (2) the quickest and easiest ways for hunters to report their harvest.

We request comments and suggestions and encourage the submission of new ideas, materials, and recommendations from: The public; Alaska Native tribal governments, corporations, and organizations; environmental organizations; local, State, and Federal agencies; and any other interested party. Please ensure that the comments pertain only to the issues presented in this ANPR. You must submit your comments and supporting materials by one of the methods listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request that we withhold this information from public review, but we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov. Comments and materials we receive will be available for public inspection at http://www.regulations.gov, or by appointment, during normal business hours, at the Service (see FOR FURTHER INFORMATION CONTACT).

We are interested in hearing from leaders and members of the Alaskan Native community, hunters, and tribal governments. We also welcome comments and information from Native Corporations, the State of Alaska, other governmental agencies, nongovernmental organizations, and members of the public. To be most useful, and most likely to inform decisions, comments should be specific, be substantive, explain the reasoning behind the comment, and address the issues outlined in this ANPR.

For the purposes of this ANPR, we are seeking input on the development and implementation of a co-management framework to manage subsistence use of polar bears in Alaska, including the sustainable harvest management obligations of the U.S.-Russia Agreement as implemented under title V of the MMPA. We are also soliciting preliminary ideas about the content of regulations to facilitate implementation of harvest regulations for polar bears in the Alaska-Chukotka population. Because establishment and implementation of a co-management framework would not alter existing international obligations or national laws and regulations affecting polar bear management, including the U.S.-Russia Agreement, we are not seeking comments on those topics.

We are seeking comments on: (1) The appropriate activities and functions to be carried out by a co-management partner; (2) candidate organizations or entities to serve in the capacity of a co-management partner; (3) recommendations for improving the process for obtaining the input and engagement of Alaskan Natives in polar bear conservation and management; (4) recommendations for improving the exchange of information between the Federal Government and Alaskan Natives on polar bear conservation and management; and (5) methods and measures for effective implementation of polar bear harvest management, consistent with the obligations of the U.S.-Russia Agreement.

We are particularly interested in receiving comments on the following questions relating to the establishment and maintenance of a cooperative agreement with an ANO for polar bear conservation and management and the promulgation of regulations to monitor and manage the harvest of polar bears from the Alaska-Chukotka population:

1. Should the Service enter into a cooperative agreement with a new ANO for polar bear conservation and management?

2. What functions and roles should a polar bear co-management entity perform?

3. How should a polar bear co-management entity be formed?

4. Are there existing organizations or entities that are capable of and interested in serving in the role of the polar bear co-management entity?

5. What methods are most effective for the exchange of information between the Federal Government and Alaskan Natives?

6. Should harvest regulations for polar bears in the Alaska-Chukotka population be promulgated only at the Federal level or issued by the polar bear co-management entity and then adopted in Federal regulations?

7. What is the appropriate timing for reporting of harvested bears?

8. What is the most effective method for reporting of harvested bears in a timely manner?

For all of the reasons identified above, the Service is interested in identifying a co-management partner in the immediate future so that we can ensure the effective engagement of Alaskan Natives in the many ongoing and time-critical polar bear management and conservation actions. It is our goal to have a co-management partner in place in 2017 so that they can proceed with securing the necessary authorizations from tribal governments and, assuming that option is preferred, establish a program of locally enforceable ordinances for polar bear harvest from the ACPBP. Further, as discussed above, the U.S.-Russia Agreement is in effect, including the annual taking limit established by the Commission, and we have an obligation to take actions necessary for its implementation. Thus, one management option being considered by the Service is, in the absence of ordinances adopted by the ANC or its successor by which Federal regulations would be based, to proceed with promulgation of regulations at only the Federal level.

Authority: We issue this ANPR under the authority of title V of the MMPA (16 U.S.C. 1423 et seq.).