Federal Register Vol. 83, No.149,

Entities potentially affected by this action are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol, biodiesel, heating oil, renewable diesel, naphtha and liquefied petroleum gas. Potentially regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria in the referenced regulations. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

EPA is amending the RFS regulations to add a new definition of “distillers sorghum oil” and to replace existing references to “non-food grade corn oil” with the newly defined term “distillers corn oil.” This rule also adds the following pathways to rows F and H of Table 1 to 80.1426: (1) Biodiesel and heating oil produced from distillers sorghum oil and commingled distillers sorghum and corn oil via a transesterification process; and (2) renewable diesel, jet fuel, and heating oil produced from distillers sorghum oil and commingled distillers sorghum and corn oil via a hydrotreating process. Pathways for naphtha and LPG produced from distillers sorghum oil via a hydrotreating process are also added to row I of Table 1 to 40 CFR 80.1426. These pathways are approved for biomass-based diesel (D-code 4) or advanced biofuel (D-code 5) renewable identification numbers (RINs), depending on the fuel type and whether the production process involves co-processing renewable biomass and petroleum.2

Statutory authority for this action comes from Clean Air Act sections 114, 208, 211, and 301.

There are no incremental costs from this action. This action allows for additional flexibility and feedstock production options for participating in the Renewable Fuel Standard (RFS) program.

Section 211(o) of the Clean Air Act (CAA) establishes the RFS program, under which EPA sets annual percentage standards specifying the amount of renewable fuel, as well as three subcategories of renewable fuel, that must be used to reduce or replace fossil fuel present in transportation fuel, heating oil, or jet fuel. Non-exempt renewable fuels must achieve at least a 20 percent reduction in lifecycle greenhouse gas (GHG) emissions as compared to a 2005 petroleum baseline.3 Advanced biofuel and biomass-based diesel must achieve at least a 50 percent reduction, and cellulosic biofuel must achieve at least a 60 percent reduction.

In addition to the lifecycle GHG reduction requirements, there are other definitional criteria for renewable fuel (e.g., produced from renewable biomass as defined in the statute and regulations, and used to reduce or replace the quantity of fossil fuel present in transportation fuel, heating oil, or jet fuel) in CAA section 211(o) and the RFS regulations at 40 CFR part 80 subpart M.

Since the formation of the RFS program, EPA has periodically promulgated rules to add new pathways to the regulations.4 In addition, EPA has approved facility-specific pathways through the petition process in 40 CFR 80.1416. There are three critical components of approved fuel pathways under the RFS program: (1) Fuel type; (2) feedstock; and (3) production process. Each pathway is associated with a specific “D-code” that corresponds to one of the four categories of renewable fuel—general renewable fuel, advanced biofuel, cellulosic biofuel, or biomass-based diesel.

EPA's lifecycle analyses are used to assess the overall GHG emissions of a fuel throughout each stage of its production and use. The results of these analyses, considering uncertainty and the weight of available evidence, are used to determine whether a fuel meets the necessary GHG reductions required under the CAA. Lifecycle analysis includes an assessment of emissions related to the full fuel lifecycle, including feedstock production, feedstock transportation, fuel production, fuel transportation and distribution, and tailpipe emissions. Per the CAA definition of lifecycle GHG emissions, EPA's lifecycle analyses also include an assessment of significant indirect emissions, such as those from land use changes and agricultural sector impacts.

EPA received a petition from the National Sorghum Producers (NSP), submitted under partial claims of confidential business information (CBI), requesting that EPA evaluate the GHG emissions associated with biofuels produced using as a feedstock grain sorghum oil derived from dry mill ethanol production, and that EPA provide a determination of the renewable fuel categories, if any, for which such biofuels may be eligible. EPA issued a proposed rule in December 2017 5 to establish approved pathways for the use of grain sorghum oil, and received comments on this proposal. In this action, EPA is amending the RFS program regulations to define the term “distillers sorghum oil.” We are also adding pathways to rows F, H and I of Table 1 to 40 CFR 80.1426 for biodiesel, renewable diesel, heating oil, naphtha, and LPG produced from distillers sorghum oil, via transesterification or hydrotreating processes.

This preamble describes EPA's analysis of the GHG emissions associated with distillers sorghum oil when used to produce specified biofuels via particular processes. The analysis considers a scenario where distillers sorghum oil is recovered from distillers grains with solubles (DGS) at dry mill plants that produce biofuel from grain sorghum and where the remaining reduced-oil DGS co-product is used as animal feed. The distillers sorghum oil is then used as a feedstock for conversion into certain biofuels. As described in section III.B.8 of this preamble, we find that, under these circumstances, biodiesel and heating oil produced from distillers sorghum oil via a transesterification process meets the 50 percent GHG reduction threshold required for advanced biofuel and biomass-based diesel. We also find that, under these circumstances, renewable diesel, jet fuel, naphtha, and LPG produced from distillers sorghum oil via a hydrotreating process meets the 50 percent GHG emission reduction threshold required for advanced biofuel.

As discussed in section IV of this preamble, EPA is also amending the RFS regulations to add a new definition for “distillers corn oil” that is consistent with the new definition of distillers sorghum oil. The definitional change for distillers corn oil was proposed in the November 2016 Renewable Enhancement and Growth Support proposed rule (the “November 2016 REGS proposed rule”).6 Although that rule proposed to revise the definition of corn oil extraction, after considering the comments received, we decided it was more appropriate to leave the definition of corn oil extraction unchanged, and instead add and define the term distillers corn oil. This new term, distillers corn oil, will replace the existing term, non-food grade corn oil (which some parties have found unclear) in rows F and H of Table 1 to 40 CFR 80.1426. The primary difference between the existing and new terms is that the new definition of distillers corn oil allows for the recovery of corn oil at additional points in the ethanol production process (provided certain conditions are met). Thus, although the new definition allows additional corn oil to be used as a feedstock in the relevant pathways, the same life cycle considerations apply and the analyses for those pathways are unaffected.7 The purpose and practical effect of this final rule, to allow corn oil extraction at more stages of ethanol production, closely match the notice of proposed rulemaking on this topic. In light of the practical similarity between “non-food grade corn oil” and “distillers corn oil” and to avoid implementation difficulties from continuing to administer registrations with obsolete terms, fuel producers who are currently registered for pathways that include non-food grade corn oil as a feedstock will need to update their registration to include distillers corn oil feedstock through a company update in EPA's Central Data Exchange (CDX). After the effective date of this final rule, including a reasonable transition period to allow for adequate time for registration updates to be initiated and processed, the non-food grade corn oil feedstock code will be removed and RINs will not be able to be generated using that feedstock code.8 Fuel producers will be instructed on how and when to remove the non-food grade corn oil feedstock from their registration.

With no known exceptions, ethanol plants that recover grain sorghum oil also, and in most cases simultaneously, recover corn oil by the same methods. Thus, for practical implementation purposes, it is important to finalize the distillers corn oil definitional changes in this rulemaking, to provide consistency between these regulatory definitions. Finally, we also include in this rulemaking pathways for biodiesel and heating oil produced from commingled distillers sorghum oil and distillers corn oil via a transesterification process, and renewable diesel, jet fuel, and, heating oil produced from commingled distillers sorghum and corn oil via hydrotreating processes.

Sorghum is native to Africa, but was introduced to the U.S. in the early 17th century. Grain sorghum belongs to the species Sorghum bicolor (L.) Moench,9 which has been bred for different purposes including use as a grain (grain sorghum), a source of sugar (sweet sorghum), and animal forage (biomass sorghum). In the U.S., grain sorghum is commonly used as animal feed similar to feed corn, although in some parts of the world it is more often grown for human consumption. Pathways for ethanol produced from grain sorghum were approved in a rule published on December 17, 2012 (77 FR 74592). We also discussed biomass sorghum in a Federal Register Notice published on December 31, 2014 (79 FR 78857). In that notice, we stated that EPA does not consider hybrids of Sorghum bicolor and Johnsongrass (Sorghum halepense) to be biomass sorghum. We would also not consider such hybrids to be grain sorghum. Johnsongrass hybrids are explicitly excluded due to concerns regarding their potential to behave as an invasive species.

Dry mill ethanol and butanol 10 plants grind and ferment grain sorghum,11 produce ethanol or butanol from the fermented grain sorghum starch, and also produce a DGS co-product (made of non-fermentable solids, solubles syrup, and sorghum oil) that is sold as a type of livestock feed. A portion of the oil that would otherwise reside in the DGS can be recovered at the biofuel plant, typically through mechanical extraction. Sorghum oil is recovered through methods identical to that of corn oil recovered from DGS, and corn and sorghum oil recovery can occur at the same facilities.

The recovered distillers corn and sorghum oils contain a high concentration of free-fatty acids, greater than ten percent by weight,12 and are unsuitable for human consumption without further refining. It can, however, be used without further refining as a biofuel feedstock or as an ingredient in animal feed. There are existing approved RFS fuel pathways for biofuels produced from distillers corn oil 13 to qualify for advanced biofuel (D-code 5) or biomass-based diesel (D-code 4) RINs, depending on the production process used (see rows F and H of Table 1 to 40 CFR 80.1426). This rulemaking establishes similar pathways for the use of distillers sorghum oil as currently exist for the use of distillers corn oil, and also establishes an additional pathway in row I of Table 1 to 40 CFR 80.1426, as discussed further below.

In previous actions, EPA has approved pathways for the production of ethanol from grain sorghum made through a dry mill process as qualifying for renewable fuel (D-code 6) RINs, and in some cases advanced biofuel (D-code 5) RINs, depending on process energy sources used during production.14 In December 2016, EPA also approved (with conditions) a facility-specific pathway for advanced butanol (qualifying for (D-code 5) RINs) produced from grain sorghum as a feedstock.15

Currently about 30 percent of grain sorghum grown, or 120 million bushels a year, goes towards ethanol production.16 Most of this production occurs in Texas, Oklahoma, and Kansas.17 For comparison, in recent years over 5,200 million bushels of corn have been used for ethanol production annually.18 Distillers sorghum oil can be produced at these facilities and used for biofuel production or other uses. However, it is still a relatively niche product, and the NSP petition anticipates that with approval of an RFS pathway, a potential of 12 to 21 million ethanol-equivalent gallons of biofuel would be produced from the distiller sorghum oil per year.

To the extent that distillers sorghum oil is used as a biofuel feedstock, it will often be produced together with distillers corn oil at ethanol plants using a combination of grain sorghum and corn as feedstocks for ethanol production. The commingled distiller sorghum and corn oils will then be shipped as a mixture to a different biofuel production facility for use as a feedstock.19 Due to the recovery process of the oils from the DGS, where the ethanol plant is using a feedstock that combines grain sorghum and corn, it is not possible to physically separate the distillers sorghum and corn oils into two streams, nor is it possible to account for the volume of sorghum oil or corn oil in this mixture. Due to this specific recovery process and inability to separate or allocate volume associated with each oil in the mixture, we are allowing the mixture of distiller sorghum and corn oil to be reported together as one volume. For example, the RFS regulations at 40 CFR 80.1451(b)(ii)(K) require renewable fuel producers to submit RIN generation reports that include the “types and quantities of feedstocks used” for each batch of renewable fuel produced or imported. The regulations do not specify a method for fuel producers to use in determining the quantity of each feedstock when the feedstocks are received as a commingled shipment, as would likely be the case for distillers corn oil and distillers sorghum oil. A number of commenters recommended that EPA clarify the treatment of mixed distillers corn and sorghum oil in the final rule. Based on these comments, we believe it is appropriate to clarify the treatment of commingled distillers corn and sorghum oils in this rule. Given our expectation that a large share of distillers sorghum oil will be mixed with distillers corn oil when it is recovered, from a practical standpoint, approving a distillers sorghum oil pathway without clearly allowing for the use of commingled shipments would unnecessarily constrain the use of these potential feedstocks. Further, we acknowledge that it is not practical to require parties to separate the oils from this mixture and report the distillers sorghum and corn oils as individual feedstocks. Taking these factors into consideration and for ease of implementation, we are adding “Commingled distillers corn and sorghum oils” as a feedstock to rows F and H of Table 1 to 40 CFR 80.1426. Thus, facilities producing fuel through these pathways can treat commingled distillers corn oil and distillers sorghum oil as a single feedstock and report the combined volume of these oils in RIN generation reports under 40 CFR 80.1451(b)(ii)(K). They may also generate RINs in accordance with the formula in 40 CFR 80.1426(f)(2) for renewable fuel that can be described by a single pathway.

At this time, EPA is not adding “commingled distillers corn and sorghum oil” as a feedstock to row I of Table 1 to 40 CFR 80.1426 for the production of naphtha and LPG via a hydrotreating process. Non-food grade corn oil is not currently listed in that row, nor has EPA proposed to add it (or distillers corn oil). Thus, it would be premature for EPA to add either distillers corn oil or commingled distillers corn and sorghum oil as feedstocks in row I. Through the fuel pathway petition process, EPA previously approved two petitions allowing the generation of advanced biofuel (D-code 5) RINs for naphtha and LPG produced from non-food grade corn oil via a hydrotreating process.20 We intend to inform companies with existing facility-specific pathway approvals for non-food grade corn oil, granted through the 40 CFR 80.1416 petition process, that such pathway approvals will be interpreted by EPA as approvals for distillers corn oil. (This gives such producers the same treatment as producers who registered for non-food grade corn oil feedstock without first being approved for a facility-specific petition.) In order to generate (D-code 5) RINs for naphtha and/or LPG produced from distillers corn oil and/or commingled distillers corn and sorghum oil, a fuel producer would first need to petition EPA pursuant to 40 CFR 80.1416, have EPA review and approve their requested pathway, and then submit and have EPA accept the registration for the new pathway.

EPA sought comment in the December 2017 sorghum oil proposed rule on a proposed definition for distillers sorghum oil. We summarize comments received below, with a more detailed summary and analysis included in the docket for this rulemaking. EPA received one comment on the proposed definition, asking that EPA clarify the phrase “rendered unfit for food uses” to specify that this means human food uses and not animal food uses. In this comment EPA was also asked to finalize revisions to the definition of corn oil extraction that was proposed in the November 2016 REGS proposed rule. The requested clarification is consistent with EPA's intended meaning, and we are finalizing a definition that says, “the oil is unfit for human food use without further refining.” We are also removing the word “rendered” from this part of the definition, as it is unnecessary and seemed to raise questions for commenters without any clear benefit.

EPA received a number of comments on the November 2016 REGS proposed rule related to the proposed changes to the definition of corn oil extraction contained in that proposed rule. Based on these comments, we have made a number of changes to the proposed definition of distillers sorghum oil to ensure that it aligns with the definition of distillers corn oil. These comments and associated changes are discussed in section IV, and in more detail in a response to comment document in the docket for this rulemaking.

As part of this rule, we are adding a definition of distillers sorghum oil in 40 CFR 80.1401. So long as the criteria in the definition are met, a variety of recovery methods could be implemented. For example, this would include recovery of sorghum oil before fermentation from the slurry or from liquefaction tanks. It would also include recovery of sorghum oil after fermentation from the thin stillage and/or DGS. Further, it would also include recovery of sorghum oil by a third-party, and/or at a separate location from the biofuel plant. The definition of distillers sorghum oil is consistent with the definition of distillers corn oil, which is also being finalized in this rule (see section IV of this preamble).

EPA evaluated the GHG emissions associated with using distillers sorghum oil as a biofuel feedstock based on information provided by the petitioner, input from the U.S. Department of Agriculture (USDA), public comments, and other available data sources. GHG emissions include emissions from production and transport of grain sorghum, the production and transport of distillers sorghum oil; the processing of the oil into biofuel; transport of the biofuel from the production facility to the fuel-blender; and, ultimately the use of the biofuel by the end consumer.

EPA's lifecycle analyses include significant direct and indirect GHG emissions (including such emissions from land use changes) associated with producing a feedstock and transporting it to the processing facility. All of the emissions associated with growing, harvesting, and transporting grain sorghum as a biofuel feedstock were calculated and taken into account in EPA's evaluation of the lifecycle GHG emissions associated with grain sorghum ethanol and butanol.21

In the proposed rule we described our preliminary finding that biofuels produced from distillers sorghum oil reduce lifecycle GHG emissions by approximately 80 percent compared to the petroleum baseline. These results assumed zero indirect GHG emissions related to compensating for oil removal from DGS, based on the premise that certain types of livestock benefit from lower-fat DGS and therefore removing the sorghum oil would not result in significant indirect impacts. EPA received two comments arguing that extracting distillers sorghum oil from DGS reduces the mass, calorific, and fat content of the DGS, and that there would be significant indirect GHG emissions associated with replacing these losses with other sources of livestock feed. As discussed below, we have adjusted our analysis based on these comments and conducted further analysis to estimate the potential indirect GHG emissions associated with replacing the extracted distillers sorghum oil. After accounting for these emissions, based on available information and reasonable assumptions to account for uncertainties, our revised analysis continues to show that biofuels produced from distillers sorghum oil satisfy the 50 percent lifecycle GHG reduction threshold required to qualify as advanced biofuel or biomass-based diesel. Finally, some commenters on the proposed distillers sorghum oil rule suggested that EPA has an obligation to engage in consultation with the United States Fish and Wildlife Service and/or that National Marine Fisheries Service under Section 7 of the Endangered Species Act prior to finalizing the rule. Such consultation is required for actions in which the Agency has discretion to tailor its actions for the benefit of threatened or endangered species, or their critical habitat, and where the action in question “may effect” listed species. However, as described in the Response to Comments Document accompanying this rule, EPA does not have discretion under the statute to take into consideration possible impacts to threatened or endangered species or their critical habitat in determining which biofuels qualify under the renewable fuel standard program as advanced biofuel or biomass-based diesel and, even if it did have such discretion, today's rule will have no effect on threatened or endangered species. As a result, Section 7 consultation is not required.

During a typical dry mill fermentation process, DGS are produced. These DGS are then used as animal feed, thereby displacing feed crops and the GHG emissions associated with growing and transporting those feed crops. After distillers sorghum oil is removed, DGS continue to be produced and sold as livestock feed, but with reduced oil content.

We do not expect sorghum oil removal to have significant impact on the types and quantities of feed used in the livestock market. EPA's modeling for the December 2012 grain sorghum ethanol final rule assumed average dried DGS yield of 17 pounds per bushel of grain sorghum feedstock.22 The oil content of full oil DGS is approximately 1.71 pounds per bushel,23 of which approximately 0.67-0.88 pounds per bushel of grain sorghum feedstock can be recovered using commercially available mechanical extraction technologies.24 When oil is recovered from the DGS, the total mass of DGS produced could be reduced by up to approximately 6 percent. However, DGS from grain sorghum represents less than 3 percent of DGS fed to domestic livestock.25 Even if all distillers sorghum oil were removed from livestock feed, the overall impact on the livestock sector would be extremely small. To the extent that sorghum DGS are likely to be fed in combination with corn DGS and other livestock feed ingredients, the changes in oil content on the combined feed could potentially be too small to discern.26 In that case, it is unlikely that feedstock suppliers would find a need to replace the distillers sorghum oil with other oils. As mentioned previously, EPA has an existing pathway approved for non-food grade corn oil, now referred to as distillers corn oil. Much of the current corn DGS on the feed market is already de-oiled, and because all known current facilities using sorghum blend with corn DGS, we do not expect any significant changes in oil concentrations from what already exists on the market. However, based on the comments received, we have conducted additional analysis on the potential indirect GHG emissions impacts on a per pound of oil extracted basis.

Chemically, full-oil and reduced-oil sorghum DGS share similar compositions; they are primarily made up of crude protein, fat, and natural and acid detergent fibers.27 Where the two products differ most significantly is in their acid detergent fiber and fat concentrations.

The Social Security Act (the Act) provides the Secretary with tools and resources to combat fraud, waste, and abuse in Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). In particular, section 1866(j)(7) of the Act provides the Secretary with authority to impose a temporary moratorium on the enrollment of new Medicare, Medicaid, or CHIP providers and suppliers, including categories of providers and suppliers, if the Secretary determines a moratorium is necessary to prevent or combat fraud, waste, or abuse under these programs. Regarding Medicaid, section 1902(kk)(4) of the Act requires States to comply with any moratorium imposed by the Secretary unless the State determines that the imposition of such moratorium would adversely impact Medicaid beneficiaries' access to care. In addition, section 2107(e)(1)(F) of the Act provides that the Medicaid provisions in section 1902(kk) are also applicable to CHIP.

In the February 2, 2011 Federal Register (76 FR 5862), CMS published a final rule with comment period titled, “Medicare, Medicaid, and Children's Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers,” which implemented section 1866(j)(7) of the Act by establishing new regulations at 42 CFR 424.570. Under § 424.570(a)(2)(i) and (iv), CMS, or CMS in consultation with the Department of Health and Human Services' Office of Inspector General (HHS OIG) or the Department of Justice (DOJ), or both, may impose a temporary moratorium on newly enrolling Medicare providers and suppliers if CMS determines that there is a significant potential for fraud, waste, or abuse with respect to a particular provider or supplier type, or particular geographic locations, or both. At § 424.570(a)(1)(ii), CMS stated that it would announce any temporary moratorium in a Federal Register document that includes the rationale for the imposition of such moratorium. This document fulfills that requirement.

In accordance with section 1866(j)(7)(B) of the Act, there is no judicial review under sections 1869 and 1878 of the Act, or otherwise, of the decision to impose a temporary enrollment moratorium. A provider or supplier may use the existing appeal procedures at 42 CFR part 498 to administratively appeal a denial of billing privileges based on the imposition of a temporary moratorium; however, the scope of any such appeal is limited solely to assessing whether the temporary moratorium applies to the provider or supplier appealing the denial. Under § 424.570(c), CMS denies the enrollment application of a provider or supplier if the provider or supplier is subject to a moratorium. If the provider or supplier was required to pay an application fee, the application fee will be refunded if the application was denied as a result of the imposition of a temporary moratorium (see § 424.514(d)(2)(v)(C)).

Based on this authority and our regulations at § 424.570, we initially imposed moratoria to prevent enrollment of new home health agencies, subunits, and branch locations 1 (hereafter referred to as HHAs) in Miami-Dade County, Florida and Cook County, Illinois, as well as surrounding counties, and Medicare Part B ground ambulance suppliers in Harris County, Texas and surrounding counties, in a notice issued on July 31, 2013 (78 FR 46339).2 We exercised this authority again in a notice published on February 4, 2014 (79 FR 6475) when we extended the existing moratoria for an additional 6 months and expanded them to include enrollment of HHAs in Broward County, Florida; Dallas County, Texas; Harris County, Texas; and Wayne County, Michigan and surrounding counties, and enrollment of ground ambulance suppliers in Philadelphia, Pennsylvania and surrounding counties.

Then, we further extended these moratoria in documents issued on August 1, 2014 (79 FR 44702), February 2, 2015 (80 FR 5551), July 28, 2015 (80 FR 44967), and February 2, 2016 (81 FR 5444). On August 3, 2016 (81 FR 51120), we extended the current moratoria for an additional 6 months and expanded them to statewide for the enrollment of new HHAs in Florida, Illinois, Michigan, and Texas, and Part B non-emergency ambulance suppliers in New Jersey, Pennsylvania, and Texas. Our August 3, 2016 publication also announced the lifting of temporary moratoria for all Part B emergency ambulance suppliers.3 On January 9, 2017 (82 FR 2363) and July 28, 2017 (82 FR 35122), CMS again issued a document to extend the temporary moratoria for a period of 6 months.

On September 1, 2017, CMS lifted the statewide temporary moratorium on the enrollment of new Medicare Part B non-emergency ground ambulance suppliers in Texas under the authority of § 424.570(d). This lifting of the moratorium also applied to Medicaid and CHIP in Texas. This decision was a result of the Presidential Disaster Declaration signed on August 25, 2017 for several counties in the State of Texas due to Hurricane Harvey. Upon declaration of the disaster, CMS carefully reviewed the potential impact of continued moratoria in Texas, and decided to lift the temporary enrollment moratorium on non-emergency ground ambulance suppliers in Texas in order to aid in the disaster response. CMS published a formal announcement of this decision on November 3, 2017 (82 FR 51274).

Most recently, on January 30, 2018 (83 FR 4147), CMS announced the extension of the temporary moratoria for an additional six months.

In imposing these enrollment moratoria, CMS considered both qualitative and quantitative factors suggesting a high risk of fraud, waste, or abuse. CMS relied on law enforcement's longstanding experience with ongoing and emerging fraud trends and activities through civil, criminal, and administrative investigations and prosecutions. CMS' determination of a high risk of fraud, waste, or abuse in these provider and supplier types within these geographic locations was then confirmed by CMS' data analysis, which relied on factors the agency identified as strong indicators of risk. (For a more detailed explanation of this determination process and of these authorities, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475)).

Because fraud schemes are highly migratory and transitory in nature, many of CMS' program integrity authorities and anti-fraud activities are designed to allow the agency to adapt to emerging fraud in different locations. The laws and regulations governing CMS' moratoria authority give us flexibility to use any and all relevant criteria for future moratoria, and CMS may rely on additional or different criteria as the basis for future moratoria.

The February 2, 2011, final rule also implemented section 1902(kk)(4) of the Act, establishing new Medicaid regulations at § 455.470. Under § 455.470(a)(1) through (3), the Secretary may impose a temporary moratorium, in accordance with § 424.570, on the enrollment of new providers or provider types after consulting with any affected State Medicaid agencies. The State Medicaid agency must impose a temporary moratorium on the enrollment of new providers or provider types identified by the Secretary as posing an increased risk to the Medicaid program unless the State determines that the imposition of such moratorium would adversely affect Medicaid beneficiaries' access to medical assistance and so notifies the Secretary. The final rule also implemented section 2107(e)(1)(D) of the Act by providing, at § 457.990 of the regulations, that all of the provisions that apply to Medicaid under sections 1902(a)(77) and 1902(kk) of the Act, as well as the implementing regulations, also apply to CHIP.

Section 1866(j)(7) of the Act authorizes imposition of a temporary enrollment moratorium for Medicare, Medicaid, and/or CHIP, “if the Secretary determines such moratorium is necessary to prevent or combat fraud, waste, or abuse under either such program.” While there may be exceptions, CMS believes that generally, a category of providers or suppliers that poses a risk to the Medicare program also poses a similar risk to Medicaid and CHIP. Many of the anti-fraud provisions in the Act reflect this concept of “reciprocal risk” in which a provider that poses a risk to one program poses a risk to the other programs. For example, section 1902(a)(39) of the Act requires State Medicaid agencies to terminate the participation of an individual or entity if such individual or entity is terminated under Medicare or any other State Medicaid plan. Additional provisions in the Act also support the determination that categories of providers and suppliers pose the same risk to Medicaid as to Medicare. Section 1866(j) of the Act requires us to establish levels of screening for categories of providers and suppliers based on the risk of fraud, waste, and abuse determined by the Secretary. Section 1902(kk) of the Act requires State Medicaid agencies to screen providers and suppliers based on the same levels established for the Medicare program. This reciprocal concept is also reflected in the Medicare moratoria regulations at § 424.570(a)(2)(ii) and (iii), which permit CMS to impose a Medicare moratorium based solely on a State imposing a Medicaid moratorium. Accordingly, CMS has determined that there is a reasonable basis for concluding that a category of providers or suppliers that poses a risk to Medicare also poses a similar risk to Medicaid and CHIP, and that a moratorium in all of these programs is necessary to effectively combat this risk.

In consultation with the HHS Office of Inspector General (OIG) and the Department of Justice (DOJ), CMS previously identified two provider and supplier types in nine geographic locations that warrant a temporary enrollment moratorium. For a more detailed discussion of this consultation process, see the July 31, 2013 notice (78 FR 46339) or February 4, 2014 moratoria document (79 FR 6475).

In addition to consulting with law enforcement, CMS also analyzed its own data to identify specific provider and supplier types within geographic locations with significant potential for fraud, waste or abuse, therefore warranting the imposition of enrollment moratoria.

Beneficiary access to care in Medicare, Medicaid, and CHIP is of critical importance to CMS and its State partners, and CMS carefully evaluated access for the target moratorium locations with every imposition and extension of the moratoria. Prior to imposing and extending these moratoria, CMS reviewed Medicare data for these areas and found no concerns with beneficiary access to HHAs or ground ambulance suppliers. CMS also consulted with the appropriate State Medicaid Agencies and with the appropriate State Departments of Emergency Medical Services to determine if the moratoria would create access to care concerns for Medicaid and CHIP beneficiaries. All of CMS' State partners were supportive of CMS' analysis and proposals, and together with CMS, determined that continuation of these moratoria would not create access to care issues for Medicaid or CHIP beneficiaries.

Under § 424.570(a)(1)(iii), a temporary moratorium does not apply to any of the following: (1) Changes in practice location (2) changes in provider or supplier information, such as phone number or address; or (3) changes in ownership (except changes in ownership of HHAs that require initial enrollment under § 424.550). Also, in accordance with § 424.570(a)(1)(iv), a temporary moratorium does not apply to any enrollment application that a Medicare contractor has already approved, but has not yet entered into the Provider Enrollment, Chain, and Ownership System (PECOS) at the time the moratorium is imposed.

In accordance with § 424.570(b), a temporary enrollment moratorium imposed by CMS will remain in effect for 6 months. If CMS deems it necessary, the moratorium may be extended in 6-month increments. CMS will evaluate whether to extend or lift the moratorium before the end of the initial 6-month period and, if applicable, any subsequent moratorium periods. If one or more of the moratoria announced in this document are extended, CMS will publish a document regarding such extensions in the Federal Register.

As provided in § 424.570(d), CMS may lift a moratorium at any time if the President declares an area a disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, if circumstances warranting the imposition of a moratorium have abated, if the Secretary has declared a public health emergency, or if, in the judgment of the Secretary, the moratorium is no longer needed.

Once a moratorium is lifted, the provider or supplier types that were unable to enroll because of the moratorium will be designated to the “high” screening level in accordance with §§ 424.518(c)(3)(iii) and 455.450(e)(2) if such provider or supplier applies at any time within 6 months from the date the moratorium was lifted.

CMS currently has in place statewide moratoria on newly enrolling HHAs in Florida, Illinois, Michigan, and Texas and Part B non-emergency ambulance suppliers in New Jersey and Pennsylvania.

As provided in § 424.570(b), CMS may deem it necessary to extend previously-imposed moratoria in 6-month increments. Under this authority, CMS is extending the temporary moratoria on the Medicare enrollment of HHAs and Part B non-emergency ground ambulance providers and suppliers in the geographic locations discussed herein. Under the regulations at § 455.470 and § 457.990, these moratoria also apply to the enrollment of HHAs and non-emergency ground ambulance providers and suppliers in Medicaid and CHIP in those locations. Under § 424.570(b), CMS is required to publish a document in the Federal Register announcing any extension of a moratorium, and this extension of moratoria document fulfills that requirement.

CMS consulted with the HHS-OIG regarding the extension of the moratoria on new HHAs and Part B non-emergency ground ambulance providers and suppliers in all of the moratoria states, and HHS-OIG agrees that a significant potential for fraud, waste, and abuse continues to exist regarding those provider and supplier types in these geographic areas. The circumstances warranting the imposition of the moratoria have not yet abated, and CMS has determined that the moratoria are still needed as we monitor the indicators and continue with administrative actions to combat fraud and abuse, such as payment suspensions and revocations of provider/supplier numbers. (For more information regarding the monitored indicators, see the February 4, 2014 moratoria document (79 FR 6475)).

Based upon CMS' consultation with the relevant State Medicaid agencies, CMS has concluded that extending these moratoria will not create an access to care issue for Medicaid or CHIP beneficiaries in the affected states at this time. CMS also reviewed Medicare data for these states and found there are no current problems with access to HHAs or ground ambulance providers or suppliers. Nevertheless, the agency will continue to monitor these locations to make sure that no access to care issues arise in the future.

Based upon our consultation with law enforcement and consideration of the factors and activities described previously, CMS has determined that the current temporary enrollment moratoria should be extended for an additional 6 months.

CMS is executing its authority under sections 1866(j)(7), 1902(kk)(4), and 2107(e)(1)(D) of the Act to extend and implement temporary enrollment moratoria on HHAs for all counties in Florida, Illinois, Michigan, and Texas, as well as Part B non-emergency ground ambulance providers and suppliers for all counties in New Jersey and Pennsylvania.

Section 1866(j)(7)(B) of the Act states that there shall be no judicial review under section 1869, section 1878, or otherwise, of a temporary moratorium imposed on the enrollment of new providers of services and suppliers if the Secretary determines that the moratorium is necessary to prevent or combat fraud, waste, or abuse. Accordingly, our regulations at 42 CFR 498.5(l)(4) state that for appeals of denials based on a temporary moratorium, the scope of review will be limited to whether the temporary moratorium applies to the provider or supplier appealing the denial. The agency's basis for imposing a temporary moratorium is not subject to review. Our regulations do not limit the right to seek judicial review of a final agency decision that the temporary moratorium applies to a particular provider or supplier. In the preamble to the February 2, 2011 (76 FR 5918) final rule with comment period establishing this regulation, we explained that “a provider or supplier may administratively appeal an adverse determination based on the imposition of a temporary moratorium up to and including the Department Appeal Board (DAB) level of review.” We are clarifying that providers and suppliers that have received unfavorable decisions in accordance with the limited scope of review described in § 498.5(l)(4) may seek judicial review of those decisions after they exhaust their administrative appeals. However, we reiterate that section 1866(j)(7)(B) of the Act precludes judicial review of the agency's basis for imposing a temporary moratorium.

This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

CMS has examined the impact of this document as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major regulatory actions with economically significant effects ($100 million or more in any 1 year). This document will prevent the enrollment of new home health providers and Part B non-emergency ground ambulance suppliers in Medicare, Medicaid, and CHIP in certain states. Though savings may accrue by denying enrollments, the monetary amount cannot be quantified. Since the imposition of the initial moratoria on July 31, 2013, more than 1204 HHAs and 26 ambulance companies in all geographic areas affected by the moratoria had their applications denied. We have found the number of applications that are denied after 60 days declines dramatically, as most providers and suppliers will not submit applications during the moratoria period. Therefore, this document does not reach the economic threshold, and thus is not considered a major action.

The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any one year. Individuals and states are not included in the definition of a small entity. CMS is not preparing an analysis for the RFA because it has determined, and the Secretary certifies, that this document will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if an action may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, CMS defines a small rural hospital as a hospital that is located outside of a metropolitan statistical area (MSA) for Medicare payment purposes and has fewer than 100 beds. CMS is not preparing an analysis for section 1102(b) of the Act because it has determined, and the Secretary certifies, that this document will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any regulatory action whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. This document will have no consequential effect on state, local, or tribal governments or on the private sector.

Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017 (82 FR 9339, February 3, 2017). It has been determined that this notice is a transfer notice that does not impose more than de minimis costs and thus is not a regulatory action for the purposes of E.O. 13771.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed regulatory action (and subsequent final action) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Because this document does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, this document was reviewed by the Office of Management and Budget.

This is a summary of the Commission's Report and Order (Report and Order) in PS Docket No. 15-94, FCC 18-39, released on April 10, 2018. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-1257), 445 12th Street SW, Washington, DC 20554, or online at: https://www.fcc.gov/document/fcc-make-emergency-alert-system-more-effective.

1. This Report and Order revises the Commission's EAS rules to establish the Alert Reporting System (ARS), a comprehensive online filing system that will combine the existing EAS Test Reporting System (ETRS) with a new, streamlined electronic system for the filing of State EAS Plans. Further, to ensure that the rules for State EAS Plans are clear and unambiguous, the Report and Order combines all State EAS Plan related rules into a single section (11.21) of part 11.

2. The EAS is a national public warning system used by EAS Participants to deliver emergency alerts to the public. The primary purpose of the EAS is to allow the President of the United States (President) to provide information to the general public during periods of national emergency. State and local authorities also use the common distribution architecture of the EAS to distribute voluntary weather-related and other emergency alerts to the public.

3. There are two distribution methods for EAS alerts. The traditional method distributes alerts through a hierarchical, broadcast-based distribution system, in which an alert originator formats an alert using the EAS Protocol and initiates its transmission at a designated entry point. This “daisy chain” process relays the alert from one designated station to another until it is fully distributed. EAS alerts also are distributed over the internet through the Integrated Public Alert and Warning System (IPAWS), a national alerting system administered by FEMA. Under the IPAWS, EAS Participants monitor a FEMA-administered website for EAS messages that are written in the Common Alerting Protocol (CAP).

4. While IPAWS relies upon the centralized distribution of alerts using an alert aggregator and an internet-based interface, the EAS's “daisy chain” leverages the broadcast-based EAS distribution architectures in each of the states. The Commission's rules require each state to file a State EAS Plan with the Commission documenting its EAS distribution architecture. State Emergency Communications Committees (SECCs), along with associated Local Emergency Communications Committees (LECCs), draft and file these plans on behalf of the states. The SECCs and LECCs are volunteer organizations composed of state broadcast associations, EAS Participants, emergency management personnel, and other stakeholders. SECCs grew out of a 1963 Executive Order that directed the Commission to cooperate with other governmental entities to develop emergency communications plans related to the Emergency Broadcast System (EBS). At that time, the Commission provided SECCs with templates for State EAS Plans that described the kinds of information that their plans should provide.

5. Nationwide EAS Tests. On September 28, 2016 and September 27, 2017, FEMA, in collaboration with the Commission, conducted the second and third nationwide tests of the EAS, respectively. The purpose of the tests was to assess the reliability and effectiveness of the EAS, with a particular emphasis on testing IPAWS. On April 21, 2017, the Public Safety and Homeland Security Bureau (PSHSB) released a public version of the second test's results, which indicated that although the test had satisfied its primary purposes, there remained “strong evidence that many test participants do not understand their roles in the EAS structure and are unfamiliar with the State EAS Plans that inform them of those roles.”

6. EAS Test Reporting System (ETRS). In connection with the test, the Commission launched the ETRS, an electronic filing system and related database that upgraded the system the Commission used for the first nationwide EAS test. The ETRS requires EAS Participants to submit detailed information regarding their receipt and propagation, if applicable, of the alert code, including an explanation of any complications in receiving and propagating the code. The ETRS enables the Commission to maintain a centralized database of all EAS monitoring assignments and alert distribution pathways.

7. Online State EAS Plan Filing in the Alert Reporting System. State EAS Plans must describe state and local EAS operations and “contain guidelines which must be followed by EAS Participants' personnel, emergency officials, and [NWS] personnel to activate the EAS.” State EAS Plans must be reviewed and approved by the Chief, PSHSB, prior to their implementation “to ensure that they are consistent with national plans, FCC regulations, and EAS operation.”

8. Following the first nationwide EAS test in 2011, PSHSB recommended converting the State EAS Plan filing process into an online system in light of inconsistencies identified in a post-test analysis of the structure of State EAS Plans. Subsequently, the Communications Security, Reliability and Interoperability Council (CSRIC) IV recommended that State EAS Plans also be filed online and recommended that the Commission revise its rules to adopt an online platform, State EAS Plan template design, and identification mechanisms for facilities and geographic areas contained within State EAS Plans. In the document, the Commission noted the CSRIC's recommendations and proposed converting the paper-based filing process for State EAS Plans into a secure online process that would interface with the ETRS.

9. Online Filing. The Commission revises its Part 11 EAS rules to require SECCs to file State EAS Plans electronically via an online filing system. This will provide a baseline level of uniformity across State EAS Plans, in terms of both format and terminology, while affording sufficient flexibility to accommodate filers' unique needs. This online State EAS filing platform, combined with the existing ETRS, will form the Alert Reporting System. The Commission believes that the ARS will ensure more efficient and effective delivery of Presidential as well as state, local and weather-related alerts as it will provide the Commission, FEMA, and other authorized entities with the means to more easily review and identify gaps in the EAS architectures, detect problems, and take measures to address these shortcomings.

10. The Commission agrees with the many commenters that note the benefits of the online filing system. For example, broadcast engineer Sean Donelan (Donelan) states that a well-implemented electronic filing system for EAS data will reduce the burden on state and local EAS committee volunteers. Use of an online filing system will also benefit EAS Participants, SECCs, and other EAS stakeholders by facilitating the Commission's swift and efficient review of State EAS Plans. As the Washington State SECC notes, a standardized filing system “is long overdue” and will aid the Commission's effort to review State EAS Plans. The Commission believes, as does Wisconsin SECC Broadcast Chair Gary Timm, commenting in his individual capacity (Timm), that the time required for SECCs to fill out a monitoring matrix would be minimal, and that other FCC databases could help keep the information updated. The online filing system will be an efficient tool for reviewing alerting architecture, as it will provide an end-to-end picture of the EAS distribution architecture for each state. Further, cross-referencing data from electronically filed State EAS Plans with data collected from the ETRS will make it easier to identify problems such as single points of failure. Finally, moving to an online system will reduce burdens on SECCs by pre-populating data fields in State EAS Plans with information from other FCC databases, enabling SECCs to readily update and revise their plans.

11. The Commission believes that the efficient and effective administration of the EAS, i.e., its ability to deliver a Presidential Alert nationwide, requires some level of standardization of State EAS Plans. State EAS Plans currently lack consistent structure and content. An online filing system using uniform and consistent terminology will facilitate the input, analysis, and related uses of the Plan information. During the first nationwide EAS test, a lack of uniformity among State EAS Plans “made it very difficult for the Commission and FEMA to create a national propagation map.” Similarly, the Commission agrees with CSRIC IV that the lack of uniform format in State EAS Plans “makes it difficult for the FCC to determine if a proper distribution network exists for . . . distribution [of the Presidential Alert] in each state.” Further, an online State EAS Plan filing system with consistent terminology and format will allow SECCs to “report changes to state plans and EAS EAN Event Code distribution in the least demanding and most efficient manner possible that still provides the Commission with current and accurate information.”

12. Template. The Commission requires State EAS Plan data to be entered into a pre-configured online template. As the Commission discusses below, it is designed to be minimally burdensome, secure, and to offer clear guidance to SECCs. The template will standardize monitoring and other common elements of EAS State Plans, while offering sufficient flexibility to avoid SECCs' concerns that a “one size fits all” template for State EAS Plans would be unworkable. It will address all elements of State EAS Plans, including a monitoring assignment matrix similar to the one used by the Washington State SECC and supported by commenters, so that SECCs may input monitoring data into the ARS in a structured and consistent manner. Where feasible, the Commission will ensure that this matrix and other parts of the template will pre-populate elements of State EAS Plans by cross-referencing data already collected by the Commission, as recommended by CSRIC IV. The Commission directs PSHSB to develop and implement the template in Appendix D of the Report and Order to include these functionalities and to minimize unnecessary and redundant filing burdens on SECCs.

13. The Commission traditionally has provided SECCs with templates describing the kinds of information to be included in State EAS Plans, and the template the Commission adopts today is consistent with that practice. To be both effective and minimally burdensome, the State EAS Plan template must address all state plan elements. The Commission thus disagrees with suggestions that the online database and template apply only to the monitoring assignment matrix, or to what some commenters characterize as the “federal” aspects of State EAS Plans. State EAS Plans are not limited to monitoring assignment data, but rather include other elements which, taken together, form the EAS activation guidelines that EAS stakeholders follow. Similarly, the use and testing of the EAS at the state and local level provide insight into its functionality and effectiveness at the federal level.

14. Finally, the Commission disagrees with commenters who suggest that a State EAS Plan template is unworkable because there is no “one size fits all” framework for State EAS Plans. The template will afford SECCs flexibility to provide information they deem relevant to design and maintain their states' EAS distribution architectures and relay networks. It will be configured in a manner that accommodates variations in state alerting architectures, including areas where alerts are transmitted across state borders.

15. Access. The Commission agrees with commenters that State EAS Plan information concerning the placement of broadcast towers and other vital alert distribution architecture infrastructure is sensitive, particularly when aggregated with similar information from other states. Accordingly, the Commission adopts safeguards to ensure only authorized entities access this data. The Commission requires SECCs to provide an SECC ID, an individual user ID, and a password to input State EAS Plan data into the ARS. Commenters generally support limiting access to State EAS Plans filed in this manner. NSBA observes that the security risks of aggregating State EAS Plans online justify the use of password or log-in protection. Further, the Alaska Broadcasters Association, Alaska State Emergency Communications Committee, and the State of Alaska Department of Military and Veterans Affairs, the Division of Homeland Security and Emergency Management (Alaska Commenters) assert that online data that includes specific station and equipment information (e.g., make, model, manufacturer, and firmware versions of the encoder, decoder, and translator equipment) should be considered sensitive and protected from disclosure as necessary. To address these concerns, the Commission adopts CSRIC IV's recommendation to follow the Disaster Information Reporting System (DIRS) two-layer access model. This model will require a user to input both an SECC ID and an individual user ID before accessing the database. The Commission agrees with the Alaska Commenters that, similar to DIRS and ETRS, the Commission should handle user and account management for this system, and the Commission directs PSHSB to determine the details of designing and setting up ARS account management.

16. Several commenters provide useful suggestions about access to State EAS Plan data that the Commission adopts as elements of ARS access. The Commission agrees with Nevada SECC Chairwoman Adrienne Abbott, commenting in her individual capacity (Abbott), that only individuals with significant roles in SECCs should have access to this data, and, further, that such access should be limited to data about an SECC's individual state. The Commission disagrees with Monroe Electronics, however, that EAS equipment manufacturers and planning consultants should have access to State EAS Plan data to confirm proper configuration of system hardware and software. As noted above, the ARS will contain sensitive data and, for this reason, the Commission believes it serves the public interest to limit access to the ARS. EAS equipment manufacturers and other third-party vendors may request a particular client's data from that client.

17. Confidentiality. Finally, the Commission affords confidentiality protection to State EAS Plan data. Most commenters agree that some of the information in State EAS Plans, such as the call signs and locations of key EAS sources, is sensitive or could become sensitive if aggregated in a single location. The Commission notes that details regarding equipment configurations, EAS equipment vendor market share, and relationships between EAS Participants themselves could be commercially sensitive. Aggregated information in State EAS Plans, such as configurations and vulnerabilities as demonstrated by tests, could also implicate national security. Further, nothing in the record indicates a need for public access to State EAS Plan information. Accordingly, the Commission concludes that State EAS Plan data and any aggregation of such data will have the same level of confidentiality as data filed in the ETRS, i.e., the Commission will share individual and aggregated data on a confidential basis with other federal agencies and state governmental emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act (FOIA). The Commission notes that some SECCs may be subject to state-based requirements that require disclosure of some or all of the same data that it will file in the ARS. Although the rules the Commission adopts today will prevent unauthorized State EAS Plan data disclosure filed by an SECC via ARS, the rules will not prevent or preclude SECCs from independently filing with its state the same data that it files with the ARS.

18. EAS Designations. The Commission's part 11 rules provide designations for “key EAS sources.” In the document, the Commission observed that SECCs have inconsistently used these designations. This inconsistency inhibits the Commission's ability to determine the quality of the state and national level broadcast-based EAS, and may inhibit delivery of a Presidential Alert. Accordingly, the Commission proposed refining its EAS designations in a way that would accommodate variations in but also promote uniformity among State EAS Plans. The Commission also sought comment on whether additional designations may be necessary.

19. The Commission amends section 11.18 to define all its current EAS designations. Although SECCs' use of EAS designations may vary, commenters support retaining the current designations to support the SECCs' abilities to assign roles and responsibilities. Accordingly, the Commission keeps these designations as tools to help SECCs describe their states' EAS alert distribution hierarchies in their State EAS Plans “using common language.” These universal designations also will allow the Commission to create an EAS Mapbook as contemplated by the EAS rules. The Mapbook will provide an accurate and dynamic nationwide propagation map for the Presidential Alert, as well as state, county, and local propagation maps. The Commission agrees with Abbott that it would be difficult to implement standardized terminology if its definitions did not provide sufficient flexibility to accommodate states' varying approaches to establishing EAS monitoring assignments. However, the EAS designation definitions the Commission adopts today are designed to provide a level of uniformity that will allow SECCs to establish EAS monitoring assignments that accommodate their unique situations. Accordingly, the Commission will define the EAS designations as follows.

20. Primary Entry Point (PEP): A private or commercial radio broadcast station that cooperatively participates with FEMA to provide EAS alerts to the public. PEPs are the primary source of initial broadcast for a Presidential Alert. A PEP is equipped with back-up communications equipment and power generators designed to enable it to continue broadcasting information to the public during and after disasters of national significance. The PEP System is a nationwide network of such broadcast stations used to distribute EAS alerts formatted in the EAS Protocol. FEMA is responsible for designating broadcast stations as PEPs.

21. National Primary (NP): An entity tasked with the primary responsibility of receiving the Presidential Alert from a PEP and delivering it to an individual state or portion of a state. In states without a PEP, the NP is responsible for receiving the Presidential Alert from an out-of-state PEP and transmitting it to the public and other EAS Participants in the state. Multiple entities may be charged with primary responsibility for delivering the Presidential Alert.

22. PEP and NP are the only designations that are solely relevant to the transmission of the Presidential Alert.

23. State Primary (SP): An entity tasked with initiating the delivery of EAS alerts other than the Presidential Alert.

24. SPs may, for example, be designated by SECCs to initially transmit AMBER alerts or alerts related to incidents of severe weather to the public and to other EAS Participants that voluntarily monitor for and retransmit such alerts.

25. Local Primary (LP): An entity that serves as a monitoring assignment for other EAS Participants within the state. LP sources may be assigned numbers (e.g., LP-1, LP-2) and are relied on as monitoring sources by other EAS Participants in the local area. An LP may monitor any other station, including another LP, so long as doing so avoids creating a single point of failure in the alert distribution hierarchy.

26. Participating National (PN): An EAS Participant that transmits national, state, or local area EAS messages, and is not otherwise designated within the State EAS Plan.

27. State Relay (SR): An entity not otherwise designated that is charged with retransmitting EAS alerts for the purpose of being monitored by an LP or PN.

28. Commenters assert that SR properly describes the relay function and is used extensively in some State EAS Plans. While the Commission anticipates that the EAS alert distribution hierarchy described above will be sufficient to define the roles and responsibilities for all EAS Participants in many states, in some states, SRs may be necessary to ensure that EAS alerts are available to everyone in the state. In these instances, especially when SRs are used as alternative monitoring assignments, the Commission recognizes that it may be appropriate to use special designations for entities responsible for relaying alerts from a PEP, NP, or SP to an LP or PN.

29. State Relay Network (SRN): A network composed of State Relay (SR) sources, leased common carrier communications facilities or any other available communication facilities. The network distributes State EAS messages originated by the Governor or designated official. In addition to EAS monitoring, satellites, microwave, FM subcarrier or any other communications technology may be used to distribute State emergency messages.

30. The Commission understands that in some states, such as Washington, the SRN serves as an alternative, redundant system for ensuring the successful delivery of EAS alerts. The Commission also understands that some State EAS Plans, such as Nevada's, do not rely on SRNs because “[s]mall and rural broadcasters cannot afford the monthly cost of these services.” To the extent that SRNs enhance system reliability and resiliency, the Commission finds them to be desirable, and encourage SECCs to specify in their state plans the extent to which they rely on SRNs as a secondary alert distribution mechanism. The Commission does not require any state to utilize a SRN, because it recognizes the maintenance burdens that SRNs may pose for small entities.

31. The Commission agrees with commenters that additional EAS designations are unnecessary and therefore declinesto adopt the additional designations or sub-designations proposed in the document based on the entities responsible for particular types of alerts (e.g., State AMBER Alert Primary) or based on the type of transmission facility used (e.g., State Satellite Primary). The Commission will continue to monitor whether establishing additional roles and responsibilities within State EAS Plans may be necessary in the future to improve emergency preparedness.

32. State EAS Plan Contents. EAS Participants must conduct EAS operations as specified in State EAS Plans to ensure effective delivery of the Presidential Alert, yet EAS Participants lack consistent knowledge of their roles under State EAS Plans, and State EAS Plans lack the uniformity essential for dependable dissemination of a Presidential Alert. The EAS Deployment Report and Order communicated expectations for the structure and administration of State EAS Plans and SECCs, but current State EAS Plan rules do not consistently address SECCs' administration and governance practices. Some states' SECCs and State EAS Plans have not met the Commission's expectations for several reasons, including the failure of some states to file or update State EAS Plans. Moreover, since the adoption of State EAS Plan rules in 1994, the alerting landscape has changed dramatically. Local alerts now originate from a wider array of sources and continue to increase in frequency. Many EAS Participants use alternative distribution systems such as satellite-based systems to supplement or replace the traditional “daisy chain” alert distribution architecture.

33. In the EAS Nationwide Test Report, PSHSB observed a lack of clarity in State EAS Plans that precluded end-to-end analysis and review of the EAS system. First, it noted that the Commission's rules do not require EAS Participants to provide monitoring assignment data below the LP level. Second, it observed that many State EAS Plans did not identify the alternative monitoring sources that EAS Participants relied upon to receive the EAN during the first nationwide EAS test. Additionally, PSHSB observed that many EAS Participants used the satellite-based National Public Radio (NPR) News Advisory Channel (Squawk Channel) to receive the EAN, as opposed to their “daisy chain” monitoring assignments. Based on these findings, PSHSB recommended review of the State EAS Plan rules. CSRIC IV recommended that “SECCs must be free to design and maintain their respective state's own robust and redundant EAS relay networks in the best and most practical ways possible.”

34. To address these concerns, in the document, the Commission proposed that each State EAS Plan include: (1) A list of header codes and messages to be transmitted by key EAS sources; (2) a description of all of the state's procedures for transmitting emergency information to the public, including by EAS, WEA, social media, highway signs, and other alerting procedures; (3) the extent to which the state's dissemination strategy for state and local alerts differs from its strategy for disseminating the Presidential Alert; (4) a list of all entities authorized to activate EAS for state and local emergencies; (5) monitoring assignments for key alerting sources; (6) EAS testing procedures; (7) the extent to which alert originators coordinate alerts with “many-to-one” feedback mechanisms, such as 911; (8) procedures for authenticating state EAS messages formatted in CAP and signed with digital signatures; and (9) a description of the SECC governance structure used by the state, including the duties, membership selection process, and administrative structure of the SECC.

35. The Commission amends the Commission's rules to specify and standardize the organizational and operational aspects of State EAS Plans to provide State EAS Plans with the level of order and consistency necessary for efficient and reliable distribution of emergency information to the public.

36. Uniform Designations. The Commission requires that SECCs input State EAS Plan monitoring assignment data into the ARS using the uniform designations for key EAS sources. As explained in the Nationwide EAS Test Report, and as supported by the record, the use of consistent terminology in State EAS Plans will assist the Commission in reviewing plans; understanding EAS architecture on a nationwide, statewide, and local basis; and determining how the states' distribution systems can be aggregated into a single, comprehensive distribution mechanism for the Presidential Alert.

37. List of Entities Authorized to Activate EAS. The Commission allows, but does not require, that State EAS Plans include a list of all entities authorized to activate the EAS for state and local emergency messages (e.g., PSAPs) whose transmissions might be interrupted by a Presidential Alert. Commission rules already require State EAS Plans to have a list of authorized entities participating in the state or local EAS. Thus, State EAS Plans already may include, as a component of that list, all entities authorized to activate the EAS for state and local emergency messages. The Commission will prepopulate the online State EAS Plan template with FEMA-approved alert originators, but SECCs may add any state-based alert originators not listed by FEMA as authorized to initiate an IPAWS alert.

38. A Description of SECC Governance Structure. To ensure the efficient and effective delivery of a Presidential Alert, the Commission requires SECCs to specify in the State EAS Plans their governance structure, including the duties, membership selection process, and administrative structure of the SECC. Most commenters support the Commission providing additional guidance to SECCs, but few commenters provide suggestions on SECC governance, and very few address whether basic data regarding SECC governance should be included in State EAS Plans. Because State EAS Plans detail the distribution architecture for delivery of a Presidential Alert, SECCs should have a governance and oversight structure to support this function. The Commission requires this baseline information about SECCs to verify that State EAS Plans provide the framework for effective transmission of the Presidential Alert. The Commission agrees with commenters that the Commission should continue to provide the guidance it historically has supplied to SECCs. Obtaining initial information on an SECC's structure and functions is an essential part of that process. Accordingly, SECCs must, at a minimum, specify their contact points, and whether they represent all alert originators, and their decision-making structures. This baseline information will help us contact relevant staff, identify SECCs that are less active or have fewer resources, and formulate strategies for addressing all SECCs' needs. The Commission does not require, however, that SECCs adopt a particular governance structure. For these reasons, the Commission disagrees with commenters that oppose these requirements as unnecessary or beyond the scope of many SECCs.

39. LECCs and Local Area EAS Plans. The Commission maintains the existing language of section 11.21(b), which provides for the development of a Local Area Plan containing procedures for local emergencies. CSRIC IV observed that the EAS depends on local distribution and recommended developing policies to “encourage local communications distribution systems to participate in the emergency warning process.” Timm comments that LECCs have “local expertise to best manage EAS alerting in a given area, and Local Area EAS Plans are still viable for addressing EAS procedures at a local level of detail beyond that possible to devote room to in the full State EAS Plan.” Abbott asserts that LECCs and local plans are a necessary component of EAS Plans in large states where no one single broadcast station covers an entire state and no end-to-end “daisy chains” connect operational areas in the state. The Commission concludes that Local Area Plans are still useful in some states and that SECCs should have the option of including them in their State EAS Plans.

40. The EAS's primary purpose is transmitting a message from the President to the public during a national emergency. To do so, EAS information must be properly coordinated and understood by relevant stakeholders. Accordingly, the Commission requires State EAS Plans to include transmission procedures for an EAS alert and accurate, up-to-date monitoring assignments for each key EAS source to reflect how they receive alerts.

41. Emergency Alerting Procedures. The Commission concludes that State EAS Plans should contain an accurate and comprehensive listing of procedures used for transmitting information to the public via the EAS. This listing should include the monitoring obligations already required under the rules to transmit the Presidential alert. Non-Presidential use of the “daisy chain” distribution structure facilitates equipment readiness and maintains user proficiency in the system. Accordingly, the Commission requires that SECCs disclose in their State EAS Plan the extent to which the state's dissemination strategy for state and local alerts differs (if at all) from its strategy for disseminating the Presidential Alert. Consistent with CSRIC IV's recommendations, this information will help the Commission and SECCs obtain a baseline of information upon which to create a plan for more effective use and development of the EAS in each state. The Commission provides flexibility to SECCs regarding how this information is provided in State EAS Plans, as well as the frequency with which it is updated.

42. Satellite-based Sources of EAS Messages. The Commission requires that State EAS Plans specify satellite-based communications resources that are used as alternate monitoring assignments and present a reliable source of EANs and other EAS messages. Many EAS Participants currently use satellite-based communications technologies as monitoring sources because of incomplete PEP coverage, broadcast monitoring source difficulties, or other reasons. Most commenters support requiring the inclusion of this information in State EAS Plans and note that satellite-based resources may be fast, secure, and reliable.

43. Some commenters recommend that the Commission remain technologically neutral in light of the availability of alternative dissemination technologies for EAS alerts. The Commission's satellite-based sources requirement does not mandate any particular technology, but rather requires that State EAS Plans reflect the monitoring sources used. Thus, its rules maintain technological neutrality while ensuring that State EAS Plans accurately identify each state's entire EAS distribution system. As Abbott suggests, states will determine independently whether they will use satellite-based resources. The Commission notes that many state plans include satellite monitoring information. Requiring its inclusion in all State EAS Plans benefits the industry by bringing consistency to the process. To the extent that some State EAS Plans will supply it for the first time, the Commission expects the incremental cost to be minimal.

44. Monitoring Assignments. The Commission requires State EAS Plans to include “[m]onitoring assignments to receive the Presidential Alert, and the primary and back-up paths for the dissemination of the Presidential Alert to all key EAS sources organized by operational areas within the state.” The Commission finds that State EAS Plans should continue to divide their respective states into geographically based operational areas, specifying primary and backup monitoring assignments in each operational area. CSRIC IV noted a lack of uniformity among State EAS Plan definitions of “operational areas” and recommended that, where possible, such service areas should be uniformly identified. Most commenters, however, oppose a standardized definition of “operational areas.” These commenters note that the definition of “operational areas” must be flexible to accommodate the different reasons for their existence, and that such areas are best defined by the local or state entities most familiar with them. To facilitate this flexibility, the Commission will include a drop-down menu in ARS that contains the most common ways SECCs have described their operational areas in previously-approved State EAS Plans as well as an opportunity for SECCs to describe operational areas that do not comport with the drop-down menu choices.

45. The Commission also removes the current restriction that State EAS Plans include monitoring assignments for Presidential Alerts formatted only in the EAS Protocol. Several commenters support removing this restriction. The Commission finds that doing so will permit states to provide additional information in their plans. Technologies are evolving, and a Presidential Alert may not necessarily be issued using the EAS Protocol; for example, a new generation of Presidential Alert may be introduced using the CAP standard only. The Commission believes that removing this restriction will ensure that state plans remain flexible and responsive to both changes in technology and changes FEMA may make in the future to the format of Presidential Alerts. The Commission disagrees with Timm, who asserts that the Commission should not remove the restriction yet because doing so could “lead to imperiling” the EAS Protocol distribution system and diminish the redundancy of having EAS Participants monitor multiple sources of the Presidential Alert. The Commission continues to require State EAS Plans to contain the EAS Header Code and other EAS Protocol distribution information required under the part 11 rules. The Commission also concludes that it also should allow State EAS Plans to include additional non-EAS Protocol (e.g., CAP) distribution information.

46. Organization of section 11.21. To address all State EAS Plan monitoring requirements in the same section of part 11, the Commission merges sections 11.52 (“EAS code and Attention Signal Monitoring requirements”) and 11.55 (“EAS operation during a State or Local Area emergency”) into section 11.21 by: (1) Amending section 11.21 to state that EAS Participant monitoring assignments and EAS operations must be implemented in a manner consistent with guidelines established in the applicable State EAS Plan submitted to the Commission, and (2) removing that language from sections 11.52 and 11.55. All three of these sections address State EAS Plan content. The Commission agrees with Abbott that these changes will help SECCs apply the State EAS Plan rules. The Commission also agrees, however, with commenters who assert that removing all state plan terminology from sections 11.52 and 11.55 could make the rules unclear; therefore, the Commission does not adopt that proposal.

47. The Commission finds that this change is supported by CSRIC IV's recommendation that the Commission amend section 11.21 to provide that “[s]tates that want to use the EAS shall submit a State EAS Plan.” The Commission also agrees with several commenters who suggest that it would be helpful to specify in section 11.21 that SECCs develop and maintain state plans, and the Commission adds this language to the rule. Finally, the Commission agrees with Timm that the language in section 11.21(c) should refer to the state monitoring assignment matrix rather than the state “data table” and revise section 11.21(c) accordingly.

48. Testing/Outreach Elements. The Commission allows State EAS Plans to include procedures for live code tests and Required Weekly Tests (RWTs). Commenters generally agree that State EAS Plans should include information on EAS testing. Some commenters assert that requiring this information would be impractical or overly burdensome, but other commenters note that this information would help organize test scheduling and prevent confusion. The Commission believes that including information on state testing programs can help ensure that the EAS functions effectively and efficiently. The Commission also notes that State EAS Plans already must include information on Required Monthly Tests (RMTs) and special tests. To the extent it is useful to include and memorialize all test procedures, including procedures for live code tests or RWTs, in a consolidated manner, SECCs may use State EAS Plans and ARS as a vehicle for doing so. The Commission notes that SECCs and EAS Participants will benefit from SECCs voluntarily providing this information in the ARS, as EAS Participants will be able to readily review plan information relevant to them.

49. Other Proposed Contents. The Commission declines to adopt the proposals in the document that State EAS Plans include a description of the procedures for transmitting emergency information to the public via WEA, social media, highway signs, and other alerting procedures, as well as a description of the extent to which alert originators coordinate alerts with “many-to-one” community feedback mechanisms, such as 911. Although several commenters support the inclusion of some of these capabilities in alerts, commenters generally oppose the incorporation of these elements into State EAS Plans. The Commission agrees with the majority of commenters that this information is unnecessary at this time to ensure the effective delivery of the EAN, and that its inclusion would be unduly burdensome. The Commission also shares commenters' concern that these requirements may cause confusion or conflict with community warning plans, and that they may require the provision of information outside of the SECCs' purview.

50. The National Advisory Committee and Additional Guidance for SECCs. CSRIC IV recommended that the Commission reestablish the National Advisory Committee (NAC). The NAC was the federal advisory committee responsible for assisting the Commission with administrating the EAS, promoting stakeholder and Commission interaction with SECCs, and providing information for the development and maintenance of State and Local EAS Plans. The document sought comment on CSRIC IV's recommendation to reinstate the NAC as well as whether there is a need for a consistent, uniform governance structure for SECCs nationwide to ensure effective functioning of the EAS. Noting that CSRIC IV discouraged a “one size fits all” approach to SECC governance, the Commission asked whether it could issue guidance or work with SECCs to clarify the roles and responsibilities of SECCs in a manner that would be useful in each state. The Commission also sought comment on whether information on SECC governance in State EAS Plans could help develop best practices or other guidance for SECCs.

51. Based on the record, the Commission believes it would serve the public interest to provide SECCs with further guidance on their roles and responsibilities. The record demonstrates support for reinstating the NAC, and commenters generally support the Commission adopting rules or providing guidance or best practices on SECC governance. The Commission notes, however, that under the IPAWS Modernization Act of 2015, FEMA recently established the IPAWS Subcommittee to its National Advisory Council, which will consider changes to improve the IPAWS and develop technologies that may be beneficial to the public alert and warning system. NSBA observes that “it would not be unreasonable” for the IPAWS Subcommittee to address issues raised in the document. Thus, rather than establishing a separate advisory committee, the Commission concludes that the IPAWS Subcommittee is best positioned to efficiently and effectively address issues related to SECC governance and best practices. Accordingly, the Commission will coordinate with FEMA to ensure that SECC administration and governance are addressed within the scope of the IPAWS Subcommittee, which transmits its recommendations to FEMA's National Advisory Council for review. The Commission believes that working through these existing mechanisms will be the most efficient way to generate recommendations that the Commission may evaluate in formulating its own guidance to improve communication among the Commission, SECCs, FEMA, NWS, and other EAS stakeholders.

52. Although a few commenters suggest amending part 11 to regulate SECCs, the Commission declines to adopt any rules regulating SECCs. Rather, by way of guidance, the Commission provides the SECCs with an online filing template for State EAS Plans and specify the required contents of those plans.

53. Compliance Timeframes. To conform to section 18.17 of the rules of the Administrative Committee of the Federal Register, 1 CFR 18.17, the above Dates field and this summary, at paragraphs 54-55 and 72-73 below, describe the compliance timeframes for the new and revised rules. In the Notice of Proposed Rulemaking, the Commission proposed requiring compliance with the amended rules on information collection requirements (i.e., the State EAS Plan rules) within six months from the release of a Public Notice announcing Office of Management and Budget (OMB) approval of related information collection requirements or within 60 days of a Public Notice announcing the availability of the Commission's relevant database to receive such information, whichever is later. The Commission also noted that its proposed EAS designation rules did not constitute a collection and required no action by EAS Participants and accordingly proposed that those rules would become effective 30 days from the date of their publication in the Federal Register.

54. State EAS Plans. The Commission requires compliance with its rules regarding State EAS Plan content and electronic submission within one year of publication in the Federal Register of a Public Notice announcing: (i) OMB approval of ARS information collection requirements or (ii) the availability of the ARS to receive such information, whichever is later. The Commission acknowledges commenters' concerns that the proposed 6-month deadline imposed a significant burden on SECCs' and LECCs' limited resources. Accordingly, the Commission extends its proposed 6-month compliance timeframe to a one-year compliance timeframe. The Commission believes the one-year compliance timeframe that is supported by the majority of commenters will afford SECCs sufficient time to implement its State EAS Plan requirements effectively and conduct any necessary outreach, training, and planning. The Commission further requires that State EAS Plans will continue to be updated on a yearly basis, but note that SECCs may satisfy this requirement by simply indicating on the form each year that the plan is up-to-date.

55. EAS Designations. The Commission agrees with Timm that the new designations should become effective at the same time as the State EAS Plan rule changes because designation changes likely would need to be reflected in most state plans. SECCs may need to engage with key EAS sources in their states to apply its designations. The Commission concludes that aligning the implementation timeframes of the state plan and designation changes will promote efficiency and avoid burdening SECCs with the need to draft multiple versions of their State EAS Plans to comply with the new requirements.

56. Legal Authority. The Communications Act gives the President authority to broadcast alerts during times of national emergency and prohibits broadcasters from issuing false alerts. Congress has also directed that cable systems afford their viewers the same opportunities to receive emergency alerts “as is afforded by” broadcasters “pursuant to Commission regulations.” The Act further requires the Commission to “investigate and study” how to “obtain[] maximum effectiveness from the use of radio and wire communications in connection with safety of life and property.” The Act empowers us to “make such rules and regulations” as necessary to carry out all of these statutory requirements. Together, these provisions have allowed the Commission to oversee the EAS. Although the Commission only requires use of EAS for Presidential Alerts, state and local authorities may use EAS to disseminate information to the public regarding more localized emergencies.

57. In the document, the Commission sought comment on its sources of legal authority over the EAS, including those provisions that the Commission highlights above, and noted that its proposals are “primarily intended to prepare the nation's alerting infrastructure for successful transmission of a Presidential Alert.” To enable the President to reliably execute this authority in the public interest, the Commission has long considered it necessary to ensure that the national alerting architecture is ready to transmit a Presidential Alert in an appropriate situation. The rules the Commission adopts here provide more consistent and reliable access to state plans so that the Commission and EAS participants will be better prepared to ensure the successful transmission of a Presidential Alert. No commenters opposed the Commission's authority to adopt any of the proposals contained in the document.

58. The Commission notes that the overall goal of the EAS system is to serve as an effective integral part of a “comprehensive system to alert and warn the American people.” Today's actions contribute to that goal by “adopt[ing] 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.”

59. Cost-Benefit Analysis. In this section, the Commission finds that its rules generally reduce recurring burdens on SECCs. The Commission estimates that they impose a one-time collective transitional cost on all SECCs totaling approximately $236,000. The Commission shows that its rules present sufficient benefits to justify these costs.

60. Costs. The cost estimates the Commission discusses below are associated with the decisions adopted in this Report and Order, as opposed to the more expansive proposals in the document. The Commission estimates the reasonable one-time cost burden these rules could present to EAS Participants is approximately $236,000. Specifically, SECCs collectively will incur one-time approximate costs of a $235,000 recordkeeping cost for producing State EAS Plans consistent with its updated State EAS Plan requirements and EAS designations and a $1,000 reporting cost for electronically filing those plans. The Commission notes that this is a significantly smaller estimated total burden than that described in the document, which estimated a one-time $5.3 million and an annual cost of $596,560. The Commission also notes that the Commission sought comment on the specific costs of compliance with the proposed rules, but received no dollar figure estimates in response. Accordingly, the following estimate leverages publicly available data on the financial burdens associated with its requirements.

61. The Commission concludes that producing State EAS Plans consistent with its rules will result in approximately $235,000 as a one-time recordkeeping cost. In the document, the Commission estimated that implementing these changes would result in a one-time cost of approximately $25,000 and that it would take each SECC approximately 20 hours to comply with the new State EAS Plan requirements. Commenters observe that this cost assessment, as well as the Commission's assessment of the total hourly burden required to update State EAS Plans, was too low. In response to these concerns, the Commission is not requiring SECCs to include certain proposed elements in State EAS Plans, which the Commission concludes will reduce the amount of time required to revise their plans. Notwithstanding this revision, the Commission uses a quantification of commenters' assessment of the time that it would take SECCs to write their plans from scratch (100 hours) as a reasonable ceiling for the time needed to update those plans consistent with its rules. Based on submissions of State EAS Plans to date, the Commission expects that 54 entities will file such plans. The record shows that the individuals most likely to update those plans are broadcast engineers. Crowdsourced employee compensation data indicates that the median hourly compensation for a broadcast engineer is approximately $29. According to the Bureau of Labor Statistics, employee overhead benefits (including paid leave, supplementary pay, insurance, retirement and savings, and legally required benefits) add 50 percent to an employer's cost of labor. Thus, the Commission quantifies the value of an hour spent updating a State EAS Plan as approximately $43.50. The Commission concludes that the reasonable estimated cost of updating a single State EAS Plan consistent with this Report and Order would be approximately $4,350 and the estimated total cost of compliance with its State EAS Plan rules would be approximately $235,000.

62. Additionally, the Commission anticipates that SECC representatives also will incur a one-time estimated $1,000 reporting cost to file their revised State EAS Plans in the ARS. The Commission concludes that the time burden of filing State EAS Plans in the ARS will be one hour, the same burden that OMB approved for filing data in ETRS. Both filing systems present filers with the same user interface, and while State EAS Plans may include more data points than ETRS filings, entering state plan data in the ARS will be simpler because SECCs already have the relevant information on-hand from the process of creating a State EAS Plan. The Commission values the cost of an SECC representative's time spent on this task as approximately $19, the median hourly salary of a clerical employee plus benefits. Thus, filing state plan data in the ARS will cost approximately $1,000.

63. Therefore, based on the foregoing analysis, the Commission finds it reasonable to conclude that the benefits of the rules the Commission adopts today will exceed the costs of their implementation. The Commission's rule changes will improve alerting organization, support greater testing and awareness of the EAS, and promote the security of the EAS. The Commission believes these benefits easily outweigh the one-time $236,000 total compliance cost. The Commission also find that these rules likely will continue to accrue value to the public while reducing recurring costs.

64. Benefits. The rules the Commission adopts today will improve the nation's alert and warning capability by modernizing alerting recordkeeping and reducing recurring filing burdens on SECCs. For over two decades, the EAS has proven to be an effective method of alerting the public and saving lives and property. It continues to stand ready to serve its primary purpose of allowing the President to contact the public across the nation quickly and reliably, while at the same time providing the vital service of alerting the public about weather and other emergencies. A majority of the public continues to rely on the EAS to receive emergency information.

65. However, there remain weaknesses in conveying this critical information to the public via the EAS. Recent nationwide testing of the EAS has shown “shortfalls in some state EAS plans,” including confusion and difficulties in understanding and implementing monitoring assignments. The current paper-based State EAS Plan filing system, EAS designations, and State EAS Plan contents collectively make it difficult for the Commission and other EAS stakeholders to detect problems or map the propagation of EAS alerts. This inability to detect and resolve problems, in turn, makes it more likely that some members of the public may not receive emergency alerts. The Commission's new requirements address this difficulty by creating a uniform online filing system that will utilize specific State EAS Plan contents and uniform EAS designations. These improvements will allow the Commission, FEMA, and localities to more easily review and identify gaps in the EAS architectures, detect problems, and take measures to address these shortcomings. In doing so, and by helping to facilitate measures to improve the reach of EAS messages, the Commission improves the likelihood that a greater segment of the public will receive emergency alerts on a timely basis and take emergency preparedness measures, thereby providing benefits that include potentially reducing the incidence of injuries and preserving property.

66. The improvements to the EAS that the Commission adopts today will contribute to its ability to prevent injuries. The Commission notes that in 2016, there were 1,276 injuries resulting from weather events in the United States. If the improvements to the EAS the Commission adopts today prevent just 15 injuries, they will produce a public value of at least $400,000. This analysis illustrates that injury prevention alone, which will continue in years to come, is likely to produce benefits that outweigh those one-time costs.

67. Additionally, the Commission anticipates that, after the initial one-time cost of compliance with its rules, EAS Participants, SECCs, and state emergency alerting authorities will realize long-term cost savings. In the Second Report and Order, the Commission required “state and local entities to annually confirm their plans.” Prior to the current Report and Order, when an SECC updated its plan, it would refile its entire plan. The ARS will reduce this filing burden by allowing filers to instantaneously update elements of their plans, by saving previously entered data, and by obviating the need to re-file an entire plan every time a change is made. Converting the State EAS Plan filing system to an online filing system will streamline the state plan approval process and reduce the recurring costs of revising, updating, and resubmitting state plans (e.g., printing and mailing costs).

68. Regulatory Flexibility Analysis. As required by the Regulatory Flexibility Act of 1980, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the significant economic impact on small entities of the policies and rules adopted in this document. The FRFA is set forth in Appendix B of the Report and Order.

69. Paperwork Reduction Analysis. The Report and Order contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the OMB for review under section 3507(d) of the PRA. OMB, the general public, and other federal agencies will be invited to comment on the new information collection requirements contained in this proceeding. The Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, the Commission previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In addition, the Commission has described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the FRFA in Appendix B of the Report and Order.

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

71. 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 713of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 613, as well as the Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. 111-260 and Pub. L. 111-265, that the Report and Order in PS Docket No. 15-94 is hereby adopted.

72. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix A of the Report and Order.

73. It is further ordered that the rules adopted herein will become effective on the dates set forth in paragraphs 54-55 above.

74. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This part contains rules and regulations providing for an Emergency Alert System (EAS). The EAS provides the President with the capability to provide immediate communications and information to the general public at the National, State and Local Area levels during periods of national emergency. The rules in this part describe the required technical standards and operational procedures of the EAS for analog AM, FM, and TV broadcast stations, digital broadcast stations, analog cable systems, digital cable systems, wireline video systems, wireless cable systems, Direct Broadcast Satellite (DBS) services, Satellite Digital Audio Radio Service (SDARS), and other participating entities. The EAS may be used to provide the heads of State and local government, or their designated representatives, with a means of emergency communication with the public in their State or Local Area. [72 FR 62132, Nov. 2, 2007]

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

This is a summary of the Commission's Third Report and Order in the Cellular Reform proceeding (Cellular Third R&O), WT Docket No. 12-40, RM Nos. 11510 and 11660, FCC 18-92 adopted July 12, 2018 and released July 13, 2018. The full text of the Cellular Third R&O, including all Appendices, is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW, Room CY-A157, Washington, DC 20554, or by downloading the text from the Commission's website at https://docs.fcc.gov/public/attachments/FCC-18-92A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Consumer and Government Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In a Second Report and Order released March 24, 2017, in the Cellular Reform proceeding (Second R&O), the Commission modernized numerous Cellular technical rules, including outdated radiated power and related rules, to permit power measurement using power spectral density. These changes facilitate the use of Cellular spectrum to provide advanced mobile broadband services, such as 4G long term evolution (LTE), while protecting public safety communications from increased potential for unacceptable interference. The Second R&O also revised rules to further eliminate unnecessary filings and other regulatory burdens for Cellular licensees. The Commission's reforms resulted in Cellular Service rules more akin to the flexible licensing schemes found in other similar mobile services, such as the Broadband Personal Communications Service (PCS), the commercial service in the 700 MHz band, the 600 MHz Service, and the Advanced Wireless Services (AWS), to help ensure that carriers are treated similarly regardless of technology choice.

2. To build on the adopted reforms and to respond to certain submissions by commenters in the Commission's 2016 Biennial Review of Telecommunications Regulations proceeding (WT Biennial Review proceeding), the Commission also released a companion Second Further Notice of Proposed Rulemaking (Second Further Notice) in the Cellular Reform proceeding on March 24, 2017. In the Second Further Notice, the Commission proposed and sought comment on additional reforms of its Part 22 rules governing the Cellular Service and other Part 22 Public Mobile Services (PMS). The Commission also invited comment on whether other measures could be taken to allow Part 22 licensees to benefit from the same level of flexibility available to other commercial wireless licensees. In that context, the Commission raised the possibility of relocating—to Part 27 of the Commission's rules—certain Part 22 rules, as well as the Part 24 PCS rules and other rules governing geographically licensed wireless services.

3. In response to the Second Further Notice, interested parties submitted comments, reply comments, and ex parte letters. The specific reforms adopted by the Commission in the Third R&O are described below.

4. Commission Rules 22.301 and 22.303 collectively require that hard copies of license authorizations and other records be maintained by all Part 22 licensees for each station and that such records and the station itself be made available for inspection upon request. The Commission finds that both rules have outlived the usefulness they may have had in the past and now impose administrative burdens without any corresponding public benefit.1 Because the Commission no longer routinely mails printed authorizations, licensees cannot comply with the hard-copy requirement unless they themselves print, or request that the Commission's Wireless Telecommunications Bureau print and mail, an authorization every time an application is granted. Such a requirement does not serve the public interest. The Commission's Universal Licensing System (ULS) is available electronically at all times: licensees have access in ULS to their official authorizations, while members of the public have access in ULS to reference copies reflecting the most up-to-date information concerning all authorizations. The movement away from site-specific filings renders on-site comparison of paper records and operating parameters unnecessary and largely infeasible. Moreover, the Commission has not imposed the recordkeeping and station inspection requirements of Rules 22.301 and 22.303 on licensees in competing wireless services governed by Parts 24 and 27 of its rules. For these reasons, the Commission deletes 47 CFR 22.301 and 22.303.

5. Commission Rule 22.325 requires that “[e]ach station in the Public Mobile Services [ ] have at least one control point and a person on duty who is responsible for station operation.” The Commission finds that this rule no longer serves the public interest; it is technologically obsolete, as licensees today routinely monitor their network operations by automatic and remote mechanisms. As with Rules 22.301 and 22.303, discussed above, there is no similar provision governing competing CMRS in the Commission's Part 24 or Part 27 rules. Part 22 licensees should have the same flexibility as Part 24 and Part 27 commercial wireless licensees to determine how to manage their networks to ensure compliance with the Commission's rules, including how best to avoid interference. Accordingly, the Commission deletes 47 CFR 22.325.

6. Commission Rule 22.321 sets forth licensee obligations for equal employment opportunity (EEO) programs and policies to assure nondiscriminatory practices in recruitment, placement, promotion, and other areas of employment practices. Paragraph (c) of the rule requires all Part 22 licensees (i.e., PMS licensees), regardless of their size, to submit an annual report to the Commission indicating whether any EEO complaints have been filed at the federal, state, or local level against the licensee. Commission Rule 90.168, titled Equal Employment Opportunities, contains the same provisions as Rule 22.321. This includes paragraph 90.168(c) which, like 22.321(c), requires that a complaints report be filed annually regardless of the licensee's size. Rule 90.168 states that it applies to all CMRS (which includes the Part 22 PMS), and thus it entirely subsumes Rule 22.321. Given that all CMRS licensees are subject to 47 CFR 90.168, including 90.168(c), 47 CFR 22.321 is duplicative and, accordingly, the Commission deletes 47 CFR 22.321 in its entirety. As to the Part 90 reporting requirement, the Commission did not propose to remove that requirement, nor did any commenters suggest doing so. Part 90 rules are therefore beyond the scope of this proceeding and the Commission declines at this time to eliminate the complaints reporting requirement in 47 CFR 90.168.

7. Under 47 CFR 22.927, Cellular licensees are “responsible for exercising effective operational control over mobile stations receiving service through their Cellular systems,” including mobile stations operated by subscribers to a different Cellular licensee. Pursuant to 47 CFR 1.903(c), the “[a]uthority for subscribers to operate mobile or fixed stations in the Wireless Radio Services [WRS],” which includes the Cellular Service, “is included in the authorization held by the licensee providing service to them.” Thus, when a WRS licensee, as the host carrier, provides service to a subscriber of another carrier (i.e., a subscriber that is outside its own provider's service area), the subscriber's use of his or her mobile phone to access the spectrum falls under that host carrier's authorization. Rule 1.903(c) thus captures the purpose underlying Rule 22.927, albeit with less detail. While the detailed provision in Rule 22.927 regarding the host carrier's responsibility under its authorization may have been warranted when the Cellular Service was in its nascency, the Commission finds that this additional rule is unnecessary these many decades later. Moreover, the rule creates asymmetry, as the rules for commercial wireless services established much later than the Cellular Service—such as PCS and AWS—do not have a counterpart to 47 CFR 22.927. Consistent with a key goal in this proceeding to eliminate unnecessary asymmetric regulations, the Commission deletes 47 CFR 22.927.

8. The Commission concludes that a related legacy rule that applies to all Part 22 licensees, 47 CFR 22.3, is also no longer necessary. This rule specifies that PMS stations must be used and operated only in accordance with applicable Commission rules and only with a valid authorization granted by the Commission. It further specifies that authority for subscribers to operate mobile or fixed PMS stations is included in the authorization of the licensee providing service to them. The same provisions are included in the later-adopted 47 CFR 1.903, which applies more broadly to numerous wireless services in addition to the PMS. Accordingly, the Commission deletes 47 CFR 22.3 as duplicative.

9. The Commission sought comment in the Second Further Notice on whether to migrate the Part 22 Cellular and Part 24 PCS rules to Part 27, and on possible reorganization of the Part 27 rules, either in this proceeding or by initiating a separate rulemaking. In addition, the Commission noted that there are other geographically-licensed, auctioned services that are not included in Part 27, including Public Coast (Part 80), Specialized Mobile Radio (SMR), Location and Monitoring, and 220 MHz (Part 90), and 218-219 MHz (Part 95), and that of these, only SMR is used today by wireless carriers to provide services directly to consumers nationwide. The Commission sought comment on whether it should move the Part 22 Cellular and Part 24 PCS rules to Part 27 in conjunction with moving those other service rule parts to Part 27 as well.

10. Only two commenters addressed the issue, and one of them opposes the idea, highlighting the fact that disparate types of operations found in certain rule parts would make it challenging to consolidate Part 22 Cellular, Part 24 PCS, and other wireless mobile service rules into a single set of regulations. Such an exercise would entail painstaking review of numerous rules to determine those that can be consolidated and those that must be retained for individual services. In the absence of strong support on the record for this endeavor, which would require a significant investment of staff resources to complete, the Commission declines to pursue the issue at this time.

11. In response to the Commission's query in the Second Further Notice as to whether any other Part 22 rules are ripe for removal in light of changed technology, electronic licensing/recordkeeping, or other modernizations that have occurred over the past two decades, a few commenters requested deletion of three Part 22 rules. These rules and the Commission's decisions not to delete them at this time are explained below.

12. 47 CFR 22.921—911 Call Processing Procedures. One commenter argued that Rule 22.921, pursuant to which certain Cellular Service mobile telephones that are capable of operating in the analog mode must incorporate a special procedure for processing 911 calls, is now obsolete because, among other reasons, it is unaware of any carrier that still offers analog devices or operates an analog Cellular system. Commission data show that, on the contrary, some carriers are still using analog technology in the Cellular Service band—and Rule 22.921 ensures that 911 calls get through in those circumstances. Accordingly, the Commission concludes that deletion of 47 CFR 22.921 would not serve the public interest and declines to take such action in this proceeding

13. 47 CFR 22.925—Prohibition on Airborne Operation of Cellular Telephones. Two commenters raised issues regarding the use of Cellular Service spectrum for communications to, from, and onboard aircraft and argued that Rule 22.925, which prohibits the operation of Cellular Service telephones aboard “airplanes, balloons or any other type of aircraft . . . while such aircraft are airborne . . .,” should be eliminated, or at least modified. The issues raised by the two commenters are being dealt with in a separate Commission proceeding that remains open (WT Docket No. 13-301), and the Commission therefore declines to consider the issues in this Cellular Reform proceeding.

14. 47 CFR 22.143(a)—Commencement of Construction Prior to Grant of Application. Rule 22.143 permits applicants to begin construction of PMS facilities prior to grant of their applications; paragraph (a) of the Rule specifies that such construction may begin “35 days after the date of the Public Notice listing the application for that facility as acceptable for filing.” One commenter argues that paragraph (a) of the Rule should be deleted, asserting that comparable provisions do not exist for other wireless services, and that other portions of the Rule put applicants on notice that they assume the risk of constructing prior to grant. The Commission disagrees that the provision should be deleted, noting that the same Public-Notice-plus-35-day period is specified in 47 CFR 90.169 of Commission rules for several other commercial wireless radio services.2 In addition, pre-grant construction under Rule 22.143 is subject to several conditions, including, among others, that no petitions to deny or mutually exclusive (competing) applications have been filed. When the Commission reduced the waiting period from the original 60-day and 90-day post-Public Notice periods to the existing Public-Notice-plus-35-days provision, it agreed that applicants should know within that timeframe whether any petition to deny or competing application had been filed, and retained these conditions to disallow construction when it cannot be reasonably certain of being able to grant the application. The Commission has also recognized that construction of PMS facilities entails not only the financial risk to the applicant, but also environmental and other consequences affecting the public, and it would not be in the public interest to allow construction until the Commission is reasonably certain that the facilities can be authorized. In a similar vein, it is in the public interest to minimize the Commission's risk of having to expend taxpayer resources to issue notification to the applicant, pursuant to 47 CFR 22.143(b), to stop construction. For all these reasons, the Commission declines to delete 47 CFR 22.143(a) at this time.

15. Paperwork Reduction Act Analysis. One rule amendment adopted in the Third R&O—specifically, 47 CFR 22.303, contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. That rule amendment will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the modified information collection requirements. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission has assessed the effects on small business concerns of the rule changes it is adopting by this Third R&O and finds that businesses with fewer than 25 people will benefit from being subject to fewer recordkeeping, reporting, and compliance burdens.

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

17. Final Regulatory Flexibility Analysis. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA), set forth in Appendix B of the Third R&O, concerning the possible impact of the rule changes.

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

19. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(j), 7, 301, 303, 307, 308, 309, and 332 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 157, 301, 303, 307, 308, 309, and 332, that this third report and order in WT Docket No. 12-40 is adopted.

20. It is further ordered that the third report and order shall be effective September 4, 2018.

21. It is further ordered that Part 22 of the Commission's rules, 47 CFR part 22, is amended as specified in Appendix A of the third report and order, effective September 4, 2018 except as otherwise provided herein.

22. It is further ordered that the amendment adopted in the third report and order, and specified in Appendix A of the third report and order, to 47 CFR 22.303, which contains new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act, will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

23. It is further ordered that this Cellular Reform proceeding in WT Docket No. 12-40, including RM Nos. 11510 and 11660, is hereby terminated.

24. It is further ordered, pursuant to Section 801(a)(1)(A) of the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), that the Commission shall send a copy of the third report and order to Congress and to the Government Accountability Office.

25. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the third report and order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 22 as follows: