E-911 Grant Program, 26965-26981 [E9-13206]
Download as PDF
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
human health were evaluated with the
assistance of the EPA Office of Research
and Development and the Superfund
Health Risk Technical Support Center.
Uncertainties related to non-cancer
effects pertaining to the risks posed by
the semivolatile organic contaminants
identified in surface and subsurface soil
were reduced, though not entirely
eliminated. The evaluation concluded
that an overwhelming majority of the
compounds analyzed were not detected.
Those SVOCs that were present in
surface and subsurface soil were found
below preliminary remediation goals
and a hazard index of 1.0. In addition,
two rounds of groundwater sampling
conducted during 2007 showed that the
tentatively and unidentified
semivolatile organic compounds are not
present in the Site’s groundwater.
Selected Remedy
EPA, in consultation with FDEP,
selected a No Action Record of Decision
(ROD) at the CSDS Site on September
12, 2007. As discussed above, this
decision was based principally on the
outcome of both human health and
ecological risk assessments. The
estimates of human risks under the
various exposure scenarios found that
cancer and non-cancer risks posed by
the Site’s media were well within the
ranges found acceptable by EPA.
erowe on PROD1PC63 with RULES
Five-Year Review
Although hazardous substances are
not known to be present onsite above
levels allowing for unlimited use and
unrestricted exposure, a discretionary
five year review will be conducted by
EPA within five years of the signing of
the 2007 ROD. The purpose of this
review is to revisit the issue related to
the presence of tentatively identified
and unidentified semivolatile organic
compounds believed to be present in the
Site’s soil.
Community Involvement
Community relations involvement
efforts for the CSDS Site began in
August 2000 when the Florida
Department of Health, Agency for Toxic
Substances and Disease Registry and
EPA publicized and held a public
availability session, for the purpose of
communicating the results of the health
consultation and to inform the
community of the Site’s status. In mid2002, EPA finalized the Site’s
Community Involvement Plan. Area
residents were contacted as part of the
community involvement work. An
information repository was established
at the Lake Alfred Public Library.
Documents supporting both the removal
action and the 2007 ROD were made
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
available to the public at the Site’s
information repository, prior to the
issuance of this ROD. On July 6, 2007,
EPA published a Notice of Proposed
Plan Public Comment Period and
offered a public meeting. Only one
comment was received during the
comment period. No requests for a
Public Meeting or extension of the
comment period were received.
Information which EPA has relied on or
considered in recommending this
deletion are available for the public to
review at the information repositories
identified above.
Determination That the Site Meets the
Criteria for Deletion in the NCP
All of the completion requirements
for this Site have been met, as described
in the December 2007 Final Close-Out
Report. The State of Florida has
concurred with the proposed deletion of
this Site from the NPL.
The NCP specifies that EPA may
delete a site from the NPL if, ‘‘all
appropriate Fund-financed response
under CERCLA has been implemented,
and no further response action by
responsible parties is appropriate.’’ 40
CFR 300.425(e)(1)(ii). EPA with the
concurrence of the State of Florida,
through the FDEP, believes that this
criterion for deletion has been met.
Consequently, EPA is deleting this Site
from the NPL. Documents supporting
this action are available in the Site files.
V. Deletion Action
EPA, with concurrence of the State of
Florida through the FDEP, has
determined that all appropriate
response actions under CERCLA, other
than five-year reviews have been
completed. Therefore, EPA is deleting
the Site from the NPL.
Because EPA considers this action to
be noncontroversial and routine, EPA is
taking it without prior publication. This
action will be effective August 4, 2009
unless EPA receives adverse comments
by July 6, 2009. If adverse comments are
received within the 30-day public
comment period, EPA will publish a
timely withdrawal of this direct final
notice of deletion before the effective
date of the deletion, and it will not take
effect. EPA will prepare a response to
comments and continue with the
deletion process on the basis of the
notice of intent to delete and the
comments already received. There will
be no additional opportunity to
comment.
List of Subjects in 40 CFR Part 300
Environmental protection, Air
pollution control, Chemicals, Hazardous
waste, Hazardous substances,
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
26965
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Dated: May 19, 2009.
J. Scott Gordon,
Acting Regional Administrator, EPA Region
4.
For the reasons set out in this
document, 40 CFR part 300 is amended
as follows:
■
PART 300—[AMENDED]
1. The authority citation for part 300
continues to read as follows:
■
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9657; E.O. 12777, 56 FR 54757, 3 CFR,
1991 Comp., p. 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
2. Table 1 of Appendix B to part 300
is amended by removing ‘‘Callaway &
Son Drum Service’’, ‘‘Lake Alfred,
Florida.’’
■
[FR Doc. E9–13165 Filed 6–4–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
DEPARTMENT OF COMMERCE
National Telecommunications and
Information Administration
47 CFR Part 400
[Docket No. NHTSA–2008–0142]
RIN 2127–AK37
E–911 Grant Program
AGENCIES: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT);
National Telecommunications and
Information Administration (NTIA),
Department of Commerce (DOC).
ACTION: Final rule.
SUMMARY: This joint Final Rule
implements the E–911 grant program
authorized under the Ensuring Needed
Help Arrives Near Callers Employing
911 (ENHANCE 911) Act of 2004 (Pub.
L. 108–494, codified at 47 U.S.C. 942).
The Act authorizes grants for the
implementation and operation of Phase
II enhanced 911 services and for
migration to an IP-enabled emergency
network. To qualify for a grant, an
applicant must submit a State 911 plan
and project budget, designate an E–911
coordinator, and certify, among other
things, that the State and other taxing
E:\FR\FM\05JNR1.SGM
05JNR1
26966
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
jurisdictions within the State have not
diverted E–911 charges for any other
purpose within 180 days preceding the
application date. This Final Rule
establishes the requirements an
applicant must meet and the procedures
it must follow to receive an E–911 grant.
DATES: This Final Rule becomes
effective on June 5, 2009.
FOR FURTHER INFORMATION CONTACT: For
program issues: Mr. Drew Dawson,
Director, Office of Emergency Medical
Services, National Highway Traffic
Safety Administration, 1200 New Jersey
Avenue, SE., NTI–140, Washington, DC
20590. Telephone: (202) 366–9966. Email: Drew.Dawson@dot.gov.
For legal issues: Ms. Jin Kim,
Attorney-Advisor, Office of the Chief
Counsel, National Highway Traffic
Safety Administration, 1200 New Jersey
Avenue, SE., NCC–113, Washington, DC
20590. Telephone: (202) 366–1834.
E-mail: Jin.Kim@dot.gov.
SUPPLEMENTARY INFORMATION:
erowe on PROD1PC63 with RULES
Table of Contents
I. Background
II. Statutory Requirements
III. Notice of Proposed Rulemaking
IV. Comments
A. In General
B. Definition of IP-Enabled Emergency
Network
C. States Applying on Behalf of All Eligible
Entities
D. Application: State 911 Plan
1. Coordination
2. Direct Benefit of PSAPs
3. Involvement of Integrated
Telecommunications Services
E. Application: Project Budget and
Supplemental Project Budget
F. Application: Match Requirement
G. Application: Designation of E–911
Coordinator
H. Application: Certification Concerning
Diversion of Funds
I. Distribution of Grant Funds: Formula
J. Eligible Use of Grant Funds
V. Statutory Basis for This Action
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and Regulatory
Policies and Procedures
B. Regulatory Flexibility Act
C. Executive Order 13132 (Federalism)
D. Executive Order 12988 (Civil Justice
Reform)
E. Paperwork Reduction Act
F. Unfunded Mandates Reform Act
G. National Environmental Policy Act
H. Executive Order 13175 (Consultation
and Coordination With Indian Tribes)
I. Regulatory Identifier Number (RIN)
J. Privacy Act
K. Congressional Review of Agency
Rulemaking
I. Background
Trends in telecommunications
mobility and convergence have put the
nation’s 911 system at a crossroads. The
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
growing market penetration of both
wireless telephones (commonly known
as mobile or cell phones) and Voice over
Internet Protocol (VoIP) telephony have
underscored the limitations of the
current 911 infrastructure. The 911
system, based on decades-old
technology, cannot handle the text, data,
image and video that are increasingly
common in personal communications
and critical to emergency response.
Many of the limitations of the current
911 system stem from its foundation on
1970s circuit-switched network
technology. Each introduction of a new
access technology (e.g., wireless) or
expansion of system functions (e.g.,
location determination) requires
significant engineering and system
modifications. There appears to be
consensus within the 911 community
on the shortcomings of the present 911
system and the need for a new, more
capable system, based upon a digital,
Internet-Protocol (IP) based
infrastructure.
Today, there are approximately 255
million wireless telephones in use in
the United States. About 80 percent of
Americans now subscribe to wireless
telephone service and 14 percent of
American adults live in households
with only wireless telephones, i.e., no
landline telephones. Of the estimated
240 million 911 calls made each year,
approximately one-third originate from
wireless telephones. In many
communities, at least half of the 911
calls come from wireless telephones.
Unlike landline 911 calls, not all
wireless 911 calls are delivered to
dispatchers with Automatic Number
Information (ANI) and Automatic
Location Information (ALI), two pieces
of information that aid in identifying the
telephone number and geographic
location of the caller. The increasing use
of VoIP communications has
compounded this problem because the
location of the caller cannot
automatically be determined when a
911 call is made on some
interconnected VoIP services. Without
this information, emergency response
times may be delayed. Prompt and
accurate location information is critical
to delivering emergency assistance.
Ensuring enhanced 911 (E–911) service
for each caller, i.e., telephone number
and location information of the caller, is
increasingly important to public safety,
given the vast number of 911 calls
originating from wireless and VoIP
telephones.
Successful E–911 service
implementation requires the
cooperation of multiple distinct entities:
Wireless carriers, wireline telephone
companies (also known as local
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
exchange carriers), VoIP providers, and
Public Safety Answering Points
(PSAPs). A PSAP is a facility that has
been designated to receive emergency
calls and route them to emergency
personnel. For example, when a 911 call
is made from a wireless telephone, the
wireless carrier must be able to
determine the location of the caller, the
local exchange carrier must transmit
that location information from the
wireless carrier to the PSAP, and the
PSAP must be capable of receiving such
information.
Currently, many PSAPs are not
technologically capable of receiving ANI
and ALI from wireless 911 calls. In
order to receive this information, PSAPs
must upgrade their operations centers
and make appropriate trunking
arrangements (i.e., establish a wired
connection between the PSAP and the
networks of the local wireline telephone
companies) to enable wireless E–911
data to pass from the wireless carrier to
the PSAP. Once a PSAP is
technologically capable of receiving this
information, the PSAP can submit
requests to wireless carriers for E–911
service. Under Federal Communications
Commission (FCC) regulations, this
request triggers a wireless carrier’s
obligation to deploy E–911 service to a
PSAP.
Upgrading the 911 system to an IPenabled emergency network will enable
E–911 calls from more networked
communication devices, enable the
transmission of text messages,
photographs, data sets and video, enable
geographically independent call access,
transfer, and backup among and
between PSAPs and other authorized
emergency organizations, and support
an ‘‘interoperable internetwork’’ of all
emergency organizations.
Many PSAPs do not have the
resources to make the upgrades
necessary to request E–911 service.
Some PSAPs are able to fund upgrades
from their existing budgets, but other
PSAPs must rely on funds collected by
the State to maintain operation and
make capital improvements to 911
services. While most States collect some
type of wireless fee or surcharge on
consumers’ wireless telephone bills to
help fund PSAP operations and
upgrades, not all State laws ensure that
such surcharges are dedicated to their
intended use. In fact, some States have
used E–911 surcharges to satisfy other
State obligations that may be marginally
related to public safety, even though
PSAPs remain unable to receive E–911
service. See, e.g., Government
Accountability Office (GAO), States’
Collection and Use of Funds for
Wireless Enhanced 911 Services, GAO–
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
erowe on PROD1PC63 with RULES
06–338 (March 2006); see also GAO,
Survey on State Wireless E911 Funds,
GAO–06–400sp (2006).
Recognizing the need for dedicated
funding of E–911 services, the Ensuring
Needed Help Arrives Near Callers
Employing 911 (ENHANCE 911) Act of
2004 (Pub. L. 108–494, codified at 47
U.S.C. 942) was enacted ‘‘to improve,
enhance, and promote the Nation’s
homeland security, public safety, and
citizen activated emergency response
capabilities through the use of enhanced
911 services, to further upgrade Public
Safety Answering Point capabilities and
related functions in receiving E–911
calls, and to support the construction
and operation of a ubiquitous and
reliable citizen activated system[.]’’ This
grant program was established to
provide $43.5 million (less
administrative costs) for the
implementation and operation of Phase
II E–911 services and for migration to an
IP-enabled emergency network. 47
U.S.C. 942(b)(1).
II. Statutory Requirements
The ENHANCE 911 Act directs
NHTSA and NTIA to issue joint
implementing regulations prescribing
the criteria for selection for grants. 47
U.S.C. 942(b)(4). The Act establishes
certain minimum requirements for grant
applications. An applicant must provide
at least 50 percent of the cost of a
project from non-Federal sources. 47
U.S.C. 942(b)(2). In addition, an
applicant must certify that it has
coordinated its application with the
public safety answering points located
within the jurisdiction; that the State
has designated a single officer or
governmental body to serve as the
coordinator of implementation of E–911
services; that it has established a plan
for the coordination and
implementation of E–911 services; and
that it has integrated
telecommunications services involved
in the implementation and delivery of
Phase II E–911 services. 47 U.S.C.
942(b)(3).
The Act also requires applicants to
certify that no portion of any designated
E–911 charges imposed by the State or
other taxing jurisdiction within the
State is being or will be obligated or
expended for any purpose other than E–
911 purposes during the period at least
180 days immediately preceding the
date of the application and continuing
throughout the time grant funds are
available to the applicant. 47 U.S.C.
942(c)(2). Applicants must agree to
return any grant awarded if the State or
other taxing jurisdiction diverts
designated E–911 charges during the
time period that grant funds are
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
available. 47 U.S.C. 942(c)(3). Finally,
applicants that knowingly provide false
information on the certification are not
eligible to receive grant funds and must
return any grant funds awarded. 47
U.S.C. 942(c)(4).
III. Notice of Proposed Rulemaking
The agencies published a notice of
proposed rulemaking (NPRM) to
prescribe the criteria for grants under
the E–911 grant program. See E–911
Grant Program, 73 FR 57567 (Oct. 3,
2008). The NPRM outlined the
application and administrative
requirements that States must meet to
receive grant awards. In addition, the
NPRM identified the minimum grant
amount for each State qualifying for a
grant award.
The NPRM proposed to permit only
the 50 United States, the District of
Columbia, Puerto Rico, American
Samoa, Guam, the Northern Mariana
Islands, and the U.S. Virgin Islands to
apply for grant funds on behalf of all
eligible entities located within their
borders. The NPRM also outlined the
application requirements for States to
apply for a grant under this program.
Specifically, the NPRM identified the
following components as the
application requirements: A State 911
plan, a project budget, a supplemental
project budget (if applicable),
designation of an E–911 Coordinator,
and certification of compliance with
statutory and programmatic
requirements.
The NPRM provided that the State
911 Plan must describe the projects and
activities proposed to be funded with E–
911 grant funds as well as establish
performance metrics and timelines for
grant project implementation, subject to
E–911 Implementation Coordination
Office (ICO) review and the agencies’
approval. The NPRM also provided that
the State 911 Plan must certify (1)
coordination with local governments,
tribal organizations, and PSAPs within
the State’s jurisdiction; (2) priority given
to communities without 911 capability
or an explanation of why priority would
not be practicable; (3) involvement of
integrated telecommunications service
providers in the implementation and
delivery of Phase II E–911 services or for
migration to an IP-enabled emergency
network; and (4) use of technologies to
achieve compliance with Phase II E–911
services or for migration to an IPenabled emergency network. In
addition, the NPRM provided that States
must demonstrate in the State 911 Plan
that at least 90 percent of the grant
funds would be used for the direct
benefit of PSAPs. Finally, the NPRM
specified that, in the State 911 Plan, the
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
26967
State must detail how it intended to
employ technology to achieve
compliance with the FCC description of
Phase II E–911 services and/or how it
intended to migrate to an IP-enabled
emergency network.
The agencies proposed that States
submit a project budget for the projects
or activities proposed to be funded by
the grant funds, including the
identification of non-Federal sources
that would fund 50 percent of the cost,
if applicable. See 48 U.S.C. 1469a(d)
(waiver for non-Federal matching funds
under $200,000, including in-kind
contributions, for the Territorial
governments in American Samoa,
Guam, the Northern Mariana Islands,
and the U.S. Virgin Islands). The
agencies specified that the project
budget must account for the initial
distribution of grant funds, as identified
for each State in an appendix to the
NPRM. The initial distribution of grant
funds to each State, if all States applied
and qualified for a grant, was based on
the agencies’ proposed formula, as
follows: 50 percent in the ratio which
the population of each State bears to the
total population of all the States, as
shown by the latest available Federal
census, and 50 percent in the ratio
which the public road mileage in each
State bears to the total public road
mileage in all States, as shown by the
latest available Federal Highway
Administration data. However, each
State would receive a minimum award
of $500,000, except that the four
territories—American Samoa, Guam, the
Northern Mariana Islands, and the
Virgin Islands—would each receive a
minimum of $250,000.
In anticipation of some States not
applying or qualifying for grant funds,
the agencies proposed distributing
unallocated funds to the pool of
qualifying States in accordance with the
same formula used for the initial
distribution. In order to obligate any
initially unallocated balances before the
end of fiscal year 2009, the NPRM
proposed that States interested in
additional grant funds include a
supplemental project budget identifying
proposed projects or activities with their
application. The supplemental project
budget would identify the maximum
amount that the State was able to match
from non-Federal sources and include
details of the proposed projects or
activities to be funded.
The NPRM identified the eligible uses
for the E–911 grant funds—
implementation and operation of Phase
II E–911 services or migration to an IPenabled emergency network.
Specifically, the agencies proposed that
grant funds and matching funds be used
E:\FR\FM\05JNR1.SGM
05JNR1
26968
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
erowe on PROD1PC63 with RULES
either for the acquisition and
deployment of hardware and software
that enables compliance with Phase II
E–911 services or that enables migration
to an IP-enabled emergency network, or
for training in the use of such hardware
and software.
The NPRM also proposed that, as part
of the application, the State identify a
single officer or governmental body
designated by the Governor to serve as
the coordinator of implementation of E–
911 services and the certifying official
on the certifications. The agencies
proposed that the E–911 Coordinator
would be responsible for certifying that
the State coordinated its application
with local governments, tribal
organizations and PSAPs; established a
plan for the coordination and
implementation of E–911 services;
would ensure that at least 90 percent of
the grant funds were used for the direct
benefit of PSAPs; had integrated
telecommunications services involved
in the implementation and delivery of
Phase II E–911 services; and would
provide at least 50 percent of the cost of
each project funded under this grant
from non-Federal sources (if applicable).
The proposal also provided that the
E–911 Coordinator must certify that no
designated E–911 charges imposed by
the State or taxing jurisdiction within
the State would be diverted for other
purposes from the time period 180 days
preceding the date of the application
and continuing throughout the time
period during which grant funds were
available. The proposal further required
States to agree to return all grant funds
if any designated E–911 charges
imposed by the State or any taxing
jurisdiction within the State were
diverted to other uses.
Finally, the NPRM identified the
financial and administrative
requirements for the grant program.
IV. Comments
The agencies received submissions
from 13 commenters in response to the
NPRM. Commenters included the
following seven State agencies: the
California 9–1–1 Emergency
Communications Office (CA 911 Office);
the State of Missouri 9–1–1 Coordinator
(MO 911 Coordinator); the Nebraska
Public Service Commission (NE PSC);
the Pennsylvania Emergency
Management Agency, Bureau of 911
Programs (PA EMA); the Georgia
Emergency Management Agency (GA
EMA); the Texas Commission on State
Emergency Communications (TX CSEC);
and the Washington State Enhanced 911
Program (WA E911 Office). Additional
commenters included four associations
and consortiums: CSI–911 (CSI–911);
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
the National Emergency Number
Association/National Association of
State 911 Administrators (NENA/
NASNA); the Alaska Chapter of the
National Emergency Number
Association (AK NENA); and the
Colorado Public Utilities Commission
9–1–1 Task Force (CO 911). Two
interested members of the public also
provided comments.
A. In General
Some commenters sought clarification
of specific aspects of the NPRM, while
others requested amendments to the
application requirements. The agencies
received comments from NENA/NASNA
and the CA 911 Office in support of the
formula-based approach for distributing
grant funds. The AK NENA requested
additional grant distributions for States
still deploying basic 911 services or
lacking Statewide E–911. Several
commenters requested clarification of
the eligible uses of grant funds. The
agencies address these comments below
under the appropriate heading.
The agencies received a few
comments concerning the sections on
non-compliance (§ 400.8), financial and
administrative requirements (§ 400.9),
and close-out (§ 400.10), which were
generally supportive. See, e.g., WA E911
at 4; CA 911 Office at 5–6.
Consequently, the Final Rule leaves
these provisions unchanged. The
agencies received one supportive
comment concerning the proposed
approval and award procedures
(§ 400.5). CA 911 Office at 5. The
agencies have added clarifying language
in § 400.5 to highlight the importance of
the State’s response to the ICO’s request
for additional information. In the
NPRM, the agencies stated that the ICO,
upon review of a State’s application,
may request additional information
from the State prior to making a
recommendation of award in order to
clarify compliance with the statutory
and programmatic requirements. In the
Final Rule, the agencies have added the
following language: ‘‘Failure to submit
such additional information may
preclude the State from further
consideration for award.’’ The agencies
believe that this was implicit in the
proposal, but add language to clarify
this point.
B. Definition of IP-Enabled Emergency
Network
The NENA/NASNA thought that the
definition of ‘‘IP-enabled emergency
network’’ was ‘‘overly narrow,’’ and
requested that it be expanded to cover
the ‘‘larger NG9–1–1 system.’’ See
NENA/NASNA at 3–4. The NENA/
NASNA described the system as
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
including ‘‘the software, applications,
interfaces and databases that traverse,
connect and enable effective routing
over a network.’’ According to the
NENA/NASNA, only a ‘‘system,’’ of
which a ‘‘network’’ is a key component,
would enable ‘‘the receipt and response
to all citizen-activated emergency
communications and improve
information sharing among all
emergency response entities’’ as
intended by the Act. The agencies did
not intend to define IP-enabled
emergency network narrowly, and thus,
adopted most of the language suggested
by NENA/NASNA. Accordingly, the
definition of ‘‘IP-enabled emergency
network’’ or ‘‘IP-enabled emergency
system’’ in § 400.2 of the Final Rule now
reads as follows: ‘‘an emergency
communications network or system
based on a secured infrastructure that
allows secured transmission of
information, using Internet Protocol,
among users of the network or system.’’
C. States Applying on Behalf of All
Eligible Entities
NENA/NASNA and the CA 911 Office
generally supported the proposal to
limit E–911 grant applications to States,
on behalf of all eligible entities within
the jurisdiction. The CA 911 Office,
however, asked whether States must
account for distribution of grant funds
to each eligible entity in the State,
warning that such a requirement would
result in an ‘‘administrative nightmare.’’
See CA 911 Office at 1. The CA 911
Office suggested that States be allowed
‘‘to apply for grant funds in a manner
that demonstrates benefit to all eligible
entities located within their borders.’’
As explained in more detail in Section
IV.D.2, the rule does not require grant
funds to be distributed to every eligible
entity within the State, so long as the
‘‘direct benefit of PSAPs’’ requirement is
met. A State may distribute grant funds
directly to one or more PSAPs or
expend the funds in a manner that
satisfies the requirement to benefit
eligible entities within the State (as the
CA 911 Office proposes), or it may
follow a combination of these two
approaches. Whatever approach is
adopted, the State, as grant recipient, is
responsible for accounting for the
distribution and expenditure of all grant
funds received under this program, in
accordance with standard grant
administration procedures.
One anonymous individual
recommended that NHTSA collect all
applications and review and award the
funds to ensure that ‘‘all of the money
will be awarded directly to the
individual agencies that need it as
opposed to bleeding off the dollars to
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
erowe on PROD1PC63 with RULES
admin/handling fees at the state level.’’
The commenter states that this would
ensure that ‘‘national needs are met as
opposed to what a State believes [are]
important.’’ While the agencies
understand the commenter’s concerns,
the agencies continue to believe that
limiting the applicant pool to States is
necessary to streamline the grant
process so that timely award is assured
before the end of the program in fiscal
year 2009. As discussed later, the
agencies believe that the requirement for
States to certify that 90 percent of the
grant funds will be used for the direct
benefit of PSAPs strikes the proper
balance between State concerns and the
overarching goals of the ENHANCE 911
Act to address the interests of PSAPs.
The agencies have made no change to
the rule in response to this comment.
D. Application: State 911 Plan
The CA 911 Office recommended that
the following two additional planning
elements be added to ensure project
documentation that reflects quality
control and basic project management
principles: ‘‘provide success parameters
for the plan and identify any risks’’ and
‘‘include a deliverable to provide final
documentation that shall include, as a
minimum, the design, testing,
monitoring and lessons learned for use
by other public safety authorities in the
country by means of public record
requests.’’ CA 911 Office at 3. The
NPRM proposed that States provide a
plan that details the projects and
activities proposed to be funded for the
implementation and operation of Phase
II E–911 services or migration to an IPenabled emergency network, establishes
metrics and a time table for grant
implementation, and describes the steps
the State has taken to meet statutory and
programmatic elements of the grant
program. See § 400.4(a)(1). In addition,
the NPRM proposed that States submit
annual performance reports and
quarterly financial reports. See
§ 400.9(b). The agencies believe that
these requirements sufficiently address
the need for project documentation that
reflects quality control and basic project
management principles. Consequently,
the agencies have not adopted the
suggestion for additional planning
elements.
The PA EMA stated that the State 911
Plan should be more consistent with the
requirements of the Model State 911
Plan (‘‘Model Plan’’). PA EMA at 2. The
Model Plan, which was developed by
NASNA as part of a cooperative
agreement with NHTSA, is intended to
be a comprehensive, long-term plan to
coordinate the planning and
implementation of E–911 services. In
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
light of the relatively limited funding
available under this grant program, the
agencies do not expect States to develop
this kind of comprehensive, long-term
plan in order to apply for a grant.
Therefore, the agencies decline to adopt
the PA EMA’s recommendation.
The agencies received no comments
on two components of the State 911
Plan—priority to communities without
911 capability and employing the use of
technologies. Consequently, the rule
remains unchanged with regard to these
components of the State 911 Plan.
1. Coordination
The MO 911 Coordinator commented
that Missouri does not have any
statutory provisions that allow
coordination with PSAPs, and suggested
removing the word ‘‘statutory’’ from the
requirements. MO 911 Coordinator at 3.
The preamble to the NPRM merely
explained that the basis for the
coordination requirement in the State
911 Plan was a statutory provision in
the ENHANCE 911 Act. The proposal
did not impose a requirement for a State
to have statutory provisions concerning
coordination. Moreover, the agencies do
not agree with what Missouri appears to
be implying—that such coordination
cannot take place in the absence of a
State statutory provision authorizing it.
In any event, the ENHANCE 911 Act
specifically requires such coordination.
Consequently, States must coordinate
their application with PSAPs in order to
qualify for a grant award. The agencies
make no change to the rule in response
to this comment.
The GA EMA asked whether a 911
advisory committee appointed by the
Governor, with PSAP directors’
representation, would satisfy the
coordination requirement, and the WA
E911 Office suggested that States be able
to meet the requirement to coordinate
with PSAPs if the State coordinates with
all governmental agencies representing
or managing PSAPs within the State. GA
EMA at 1; WA E911 Office at 5. Because
States are applying on behalf of all
eligible entities within their borders, the
coordination requirement is intended to
ensure that the needs of PSAPs are
addressed in State 911 Plans. A 911
advisory committee would satisfy the
coordination requirement, provided it
included representation of PSAPs
among its membership. Similarly, State
coordination with all governmental
agencies that represent or manage the
PSAPs in the State would satisfy this
coordination requirement. No change to
the rule is necessary.
The PA EMA and WA E911 Office
questioned the proposed requirement to
coordinate the application with tribal
PO 00000
Frm 00037
Fmt 4700
Sfmt 4700
26969
organizations located within the State.
See PA EMA at 2; WA E911 Office at 5.
Both commenters asserted that the
agencies were extending the
coordination requirements beyond the
proper reach of the ENHANCE 911 Act.
NENA/NASNA suggested that ‘‘the
agencies may wish to consider how
[tribal organizations], many of whom
greatly need funding assistance, can be
eligible for grant funds despite their
separate governing structure that is fully
severable from the state government.’’
NENA/NASNA at 2, n. 6. The agencies
disagree with these commenters. The
ENHANCE 911 Act, as amended, directs
the agencies to make grants to ‘‘eligible
entities,’’ which specifically include
tribal organizations. Short of expanding
the applicant pool to include the many
existing tribal organizations, which is
administratively impracticable for
reasons explained in the preamble to the
NPRM, the coordination requirement is
necessary.
The WA E911 Office expressed
concern that the State might not have
authority to coordinate with tribal
organizations. WA E911 Office at 5.
States need not have specific statutory
authority to coordinate E–911 related
services with tribal organizations. Most
States have existing relationships with
tribal organizations that would readily
facilitate the coordination necessary to
meet the objectives of the E–911 grant
program. Consequently, the agencies
have made no changes to the rule.
2. Direct Benefit of PSAPs
The agencies received comments from
NENA/NASNA, CA 911 Office, GA
EMA, WA E911 Office, and PA EMA
requesting clarification of the meaning
of ‘‘direct benefit of PSAPs.’’ The CA
911 Office, WA E911 Office and PA
EMA asked whether Statewide activities
or projects that benefited PSAPs would
satisfy the ‘‘direct benefit of PSAPs’’
requirement or whether the term’s
meaning was limited to direct
distribution to PSAPs. See CA 911
Office at 1–2; WA E911 Office at 5–6;
PA EMA at 2. This proposed
requirement is not intended to
encourage the continuation of the
traditional model of investment at the
individual PSAP level, as the WA E911
Office suggested. Rather, the agencies
intend the phrase ‘‘direct benefit of
PSAPs’’ to cover both direct distribution
to PSAPs at the individual PSAP level
and Statewide projects in which
multiple PSAPs would benefit from the
investment of E–911 grant funds, as
articulated by NENA/NASNA. NENA/
NASNA at 4. In either case, the State
must ensure that 90 percent of the grant
funds are being used for the actual
E:\FR\FM\05JNR1.SGM
05JNR1
erowe on PROD1PC63 with RULES
26970
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
implementation and operation of E–911
services or for migration to an IPenabled emergency network. Because E–
911 capabilities vary from State to State,
the agencies believe that States, in
coordination with the eligible entities
within their borders, are best positioned
to select between direct distribution to
PSAPs and Statewide projects benefiting
multiple PSAPs (or a combination of
both approaches) to upgrade their E–911
capabilities. As noted by NENA/
NASNA, some States with many PSAPs
not capable of receiving Phase II E–911
information may choose to prioritize
their grant funds to upgrade these
PSAPs while other States may use their
grant funds for Statewide projects that
would benefit all PSAPs, such as
establishing or enabling access to an
emergency services IP network. NENA/
NASNA at 5. The agencies believe that
the existing language accommodates
both approaches, and that no change to
the Final Rule is necessary.
The MO 911 Coordinator requested
clarification as to the use of the
remaining 10 percent of the grant funds,
after the 90 percent used for the direct
benefit of PSAPs. MO 911 Coordinator
at 2. The agencies intend that up to 10
percent of the grant funds be available
to the State to manage the projects and
activities approved under the E–911
grant program. To clarify this point, the
agencies have added language in
§ 400.4(a)(1)(ii) stating that not more
than 10 percent of the grant funds may
be used for the State’s administrative
expenses.
The TX CSEC requested that the
following language be added to the
State’s certification that 90 percent of
the grant funds will be used for the
direct benefit of PSAPs: ‘‘[t]his
requirement is presumed to have been
met provided that all PSAPs in the
State, through their respective 9–1–1
Governing Authorities as defined in
NENA Master Glossary of 9–1–1
Terminology, have been involved in the
development of the State 911 Plan. For
purposes of this requirement, the term
‘‘direct-benefit’’ shall be liberally
construed.’’ TX CSEC at 2. As discussed
above, the agencies intended the
language ‘‘direct benefit of PSAPs’’ to
require States to target the grant funds
to meet the specific needs of PSAPs.
The agencies did so to give proper
weight to the broad eligibility criteria in
the ENHANCE 911 Act. The agencies do
not agree with the TX CSEC that the
goal of directly benefiting PSAPs would
be achieved merely by virtue of PSAP
participation in the development of the
State 911 plan, and the agencies decline
to adopt the comment.
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
3. Involvement of Integrated
Telecommunications Services
language in § 400.4(a)(3) to clarify this
point.
The agencies received two comments
regarding the involvement of integrated
telecommunications services. The PA
EMA requested that a definition of this
term be added to the rule, and the GA
EMA asked how a State must involve
integrated telecommunications services
in the implementation and delivery of
Phase II E–911 services. PA EMA at 1;
GA EMA at 1. The Act requires
applicants to certify that they have
integrated telecommunications services
involved in the implementation and
delivery of E–911 services, but did not
provide a definition for the term
‘‘integrated telecommunications
services.’’ In response to these
comments, the agencies have added a
definition in § 400.2. The term
‘‘integrated telecommunications
services,’’ also referred to as ‘‘integrated
telecommunications,’’ as now defined in
the Final Rule refers to ‘‘those entities
engaged in the provision of multiple
services, such as voice, data, image,
graphics, and video services, which
make common use of all or part of the
same transmission facilities, switches,
signaling, or control devices.’’ Integrated
telecommunications services play a vital
role in enabling PSAPs to upgrade their
capability to receive E–911 services. To
effectuate the statutory requirement,
States should consult with integrated
telecommunications services in the
planning phase of implementing E–911
services.
F. Application: Match Requirement
The agencies received a number of
comments regarding the 50 percent
match requirement. The MO 911
Coordinator and the PA EMA asked
whether the match requirement could
be met with local as well as State funds.
MO 911 Coordinator at 3; PA EMA at 3.
The proposal specified only that
matching funds must come from nonFederal sources meeting the
requirements of 49 CFR 18.24 (the
Department of Transportation’s
codification of the Common Grant
Rule)—it did not restrict the match only
to State funds. States may use both State
and local funds to provide the match as
long as these funds meet the
requirements of 49 CFR 18.24. The
agencies determined that no change to
the rule is necessary.
The MO 911 Coordinator asked for
guidance on what is considered a nonFederal source, and the GA EMA asked
if funds from a State grant program
funded with 911 fees could be used to
meet the match requirement. See MO
911 Coordinator at 3; GA EMA at 1. The
MO 911 Coordinator also asked whether
the match requires a separate budget
line item of funds specifically set aside
for the grant match or whether existing
operating budgets could be used to
match. MO 911 Coordinator at 3–4. The
agencies do not require a specific line
item set aside for the grant match. The
agencies refer both commenters to 49
CFR 18.24 for guidance on what is
allowable to meet the match
requirement. The TX CSEC requested
that ‘‘consistent with 49 CFR 18.24,’’ be
added to the certification regarding the
matching funds. TX CSEC at 4. The
agencies agree with this comment, and
have added that similar language to the
certification.
The NE PSC asked that States be
allowed flexibility to match funds based
on the overall cost of implementation
rather than for specific projects. See NE
PSC at 4. The NE PSC explained that
NE’s wireless fund could not be used for
expenses that were not directly related
to wireless service, such as rural
addressing. As explained in Section
IV.J., rural addressing, purchase of street
signs and development of MSAG are not
eligible uses for E–911 grant funds. For
this reason, costs associated with rural
addressing would not meet the match
requirement for the E–911 grant funds.
Although the agencies are aware that
local counties need funds for rural
addressing, it is not clear from NE PSC’s
comments how matching based on the
overall cost of full implementation of E–
E. Application: Project Budget and
Supplemental Project Budget
The CA 911 Office described its
understanding of the supplemental
project budget as follows: ‘‘[t]his is a
proposed contingency plan in the event
a state did not qualify for an E–911
Grant because they could not meet the
certification, but they may be able to
qualify for use of any remaining Grant
funds.’’ CA 911 Office at 3. That is a
misunderstanding of the purpose of the
supplemental project budget. A State
that does not qualify for the initial
distribution because it cannot make the
required certifications will not be
eligible for any E–911 grant funds. In
the event funds remain because some
States do not apply or fail to qualify,
only a State that qualifies for an initial
distribution will be eligible for a
supplemental distribution. However, the
State must submit a supplemental
project budget as well as a project
budget as part of its application in order
to be eligible for the supplemental
distribution. The agencies have added
PO 00000
Frm 00038
Fmt 4700
Sfmt 4700
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
erowe on PROD1PC63 with RULES
911 service rather than on a project
basis would help local counties receive
the financial assistance needed for those
expenses that could not be funded by
wireless surcharges.
The PA EMA asked whether the State
could meet the matching requirement
‘‘by leveraging funds already
encumbered for wireless Phase II E9–1–
1 or NG9–1–1 studies and/or planning.’’
PA EMA at 3. According to the PA
EMA, it would be difficult to find new
funds to meet the match requirement
because the timeline of the application
does not line up with State or local
budget cycles. While the agencies
recognize the potential difficulties
described by these commenters, the Act
requires applicants to meet the match
on ‘‘a project’’ basis. See 47 U.S.C.
942(b)(2). To allow States to match
based on overall cost of implementation
would be contrary to the statutory
intent. The Act also requires applicants
to have an already established plan for
the coordination and implementation of
E–911 services in order to apply for the
grant program. See 47 U.S.C.
942(b)(4)(A)(iii). As explained in
Section IV.J., grant funds may not be
used to develop a plan for the
implementation of E–911 services. The
agencies believe that allowing the use of
leveraged funds intended for developing
a plan for matching purposes also
would be contrary to the statutory
intent. The agencies decline to amend
the rule in response to these comments.
G. Application: Designation of E–911
Coordinator
The agencies received numerous
comments regarding the proposed
requirement that the Governor of the
State designate an E–911 Coordinator to
implement E–911 services and to sign
the certifications. The CO 911 expressed
concern that requiring a Governorappointed E–911 Coordinator would
disqualify States without a Statewide
coordinator. CO 911 at 2. Three
commenters asserted that some States
by law or rule already have designated
an E–911 Coordinator or an equivalent
entity with the authority to manage or
coordinate emergency communications,
and that requiring the Governor to make
another designation in such cases was
not necessary and might have a negative
impact on established State 911
programs. NENA/NASNA at 5; TX CSEC
at 1–2; WA E911 Office at 6. In contrast,
the AK NENA requested that the
Governor be allowed to designate an
entity other than the statutory 911
coordinator to apply on behalf of the
State. AK NENA at 3.
In enacting the ENHANCE 911 Act,
Congress stated that one of the purposes
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
of the grant program was ‘‘to coordinate
911 services and E–911 services, at the
Federal, State, and local levels.’’ Section
103, Public Law 108–494. Coordination
of 911 services is traditionally managed
by the executive branch of the State
government. The agencies believe that
the Governor of the State is best
positioned to identify which agency or
office is able to serve as the designated
E–911 Coordinator. In light of the
express statutory requirement that
applicants must certify that the State
has a designated E–911 Coordinator (47
U.S.C. 942(b)(4)(A)(ii) and (b)(4)(B)), the
rule continues to require States to
designate E–911 Coordinators. The
agencies recognize that the ENHANCE
911 Act does not require the coordinator
to have direct legal authority to
implement E–911 services or manage
emergency communications operations
in order to meet the requirements of the
proposal. See 47 U.S.C. 942(b)(4)(A)(ii).
Because the rule does not require the E–
911 Coordinator to have such direct
legal authority, the agencies do not
believe that adding language to that
effect is necessary, as suggested by the
TX CSEC. TX CSEC at 2.
The agencies did not intend to
circumvent existing State authorities for
911 services in proposing that the
Governor designate an E–911
Coordinator. In many States, the State
911 offices are the point of contact for
E–911 services. The agencies believe
that State 911 offices are well equipped
to coordinate the implementation and
operation of Phase II E–911 services and
the migration to an IP-enabled
emergency network. Accordingly, the
agencies have made changes in the Final
Rule to accommodate the commenters’
concerns. If the State has established by
law or regulation an office or
coordinator with the authority to
manage E–911 services, that office or
coordinator must be identified as the
designated E–911 Coordinator.
However, if the State does not have such
an office or coordinator established by
law or regulation, the Governor must
designate a single officer or
governmental body to serve as the E–
911 Coordinator. The agencies believe
that giving States these two options for
designating an E–911 Coordinator is the
most reasonable and efficient approach
to address these concerns. The agencies
have made changes to the rule and
corresponding changes to the
certifications in Appendix B and
Appendix C in response to these
comments.
The AK NENA claims that Alaska’s
911 Coordinator would be ‘‘unable to
develop a capable ENHANCE 911 Grant
application within the currently stated
PO 00000
Frm 00039
Fmt 4700
Sfmt 4700
26971
timelines,’’ and asks that the Governor
be allowed to designate another
coordinator. AK NENA at 3. The
agencies decline to adopt this
recommendation since allowing the
Governor to appoint another officer or
entity for purposes of the E–911 grant
program where one already exists could
lead to confusion and blurring of
responsibilities, resulting in a negative
impact on established 911 programs
within the State.
Two commenters questioned the need
for the Governor to make any
designation when States already have
designated a single point of contact for
911 under FCC procedures. PA EMA at
3–4; MO 911 Coordinator at 4–5. These
commenters suggested that the agencies
use this single point of contact instead.
The agencies decline to adopt these
suggestions, since there is an
independent obligation to ensure the
designation of an E–911 Coordinator for
the specific purposes of this program.
However, nothing precludes a State
from using the same single officer or
governmental body identified to the
FCC to satisfy the designation
requirement for the E–911 grant
program.
One anonymous commenter and the
WA E911 Office requested that the
agencies publish a list of the E–911
Coordinators. WA E911 Office at 6.
These comments are outside the scope
of the rulemaking. This information will
not be available until after all
applications have been reviewed. At
that time, the agencies will consider
publishing a list of the E–911
Coordinators for the States that are
awarded E–911 grants.
H. Application: Certification Concerning
Diversion of Funds
The agencies received many
comments regarding the requirement for
certification that neither the State nor
any taxing jurisdiction in the State has
diverted designated E–911 charges. The
ENHANCE 911 Act mandates that
‘‘[e]ach applicant * * * shall certify
* * * that no portion of any designated
E–911 charges imposed by the State or
other taxing jurisdiction within which
the applicant is located are being
obligated or expended for any purpose
other than the purposes for which such
charges are designated or presented
from 180 days preceding the date of the
application and continuing through the
period in which grant funds are
available * * *.’’ 47 U.S.C. 942(c). In
the NPRM, the agencies proposed
certification language that is nearly
identical to this statutory language.
The WA E911 Office claims that this
certification process discourages
E:\FR\FM\05JNR1.SGM
05JNR1
erowe on PROD1PC63 with RULES
26972
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
applications, especially if States must
return all grant funds if false or
inaccurate information is provided in
the certification. See WA E911 Office at
3–4. The WA E911 Office also
commented that if the State does not
apply because it cannot make the
certifications regarding the diversion of
funds, then local taxing jurisdictions
and tribal organizations will not be able
to apply and receive E–911 grant funds.
Similarly, CSI–911 commented that if
the Governor of the State has diverted
designated E–911 charges, then local
911 systems that are using such
designated charges for appropriate
purposes will be unfairly disqualified
from receiving E–911 grant funds. CSI–
911 at 1. Several commenters thought
that the State should only certify to the
State’s use of designated E–911 charges
and should not be required to certify to
local taxing jurisdictions’ use of
designated E–911 charges. See, e.g., WA
E911 Office at 3–4; TX CSEC at 2;
NENA/NASNA at 7; AK NENA at 3.
Some of these commenters suggested
having each local taxing jurisdiction
certify individually to its own use of
designated E–911 charges. The WA
E911 Office suggested modifying the
language to add ‘‘to the best of my
knowledge’’ and allowing the State to
provide a description of the measures
the State has taken to ensure that local
taxing jurisdictions are not diverting
funds. WA E911 Office at 2.
Although the agencies understand
these commenters’ concerns, the
statutory language and certification
requirement are clear and provide no
discretion. If the State, as applicant, is
unable to certify that it is not diverting
designated E–911 charges, then neither
the State nor any eligible entity located
in the State may receive E–911 grant
funds. The Act requires ‘‘each
applicant’’ to certify that the State is not
diverting any designated E–911 charges
imposed by the State for any purpose
other than the purposes for which such
charges are designated or presented. 47
U.S.C. 942(c)(2) (emphasis added). This
statutory certification is an affirmative
requirement, and the agencies decline to
make any of the changes recommended
by the commenters regarding a State’s
diversion of E–911 funds.
The agencies, however, recognize the
difficulty States may have in certifying
that no taxing jurisdictions in the State
are diverting E–911 charges and believe
the Act provides discretion in one
aspect. The MO 911 Coordinator and
CSI–911 were concerned that a single
taxing jurisdiction that independently
diverts designated E–911 charges could
preclude the entire State from receiving
grant funds. See MO 911 Coordinator at
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
1; CSI–911 at 1. After careful
consideration, the agencies have
decided to amend the rule to allow
States to qualify for E–911 grant funds
even if a taxing jurisdiction is diverting
designated E–911 charges, provided the
State meets the following conditions:
the State, itself, is not diverting and will
not divert designated E–911 charges
during the relevant time period and the
State does not distribute E–911 grant
funds to entities that are located in
taxing jurisdictions where designated E–
911 charges are being diverted during
the relevant time period. For example,
if a PSAP is located in a taxing
jurisdiction where designated E–911
charges are being diverted for other
purposes, the State may not distribute
E–911 grant funds to that PSAP.
However, the State may distribute grant
funds to PSAPs in other taxing
jurisdictions where designated E–911
charges are not being diverted, but must
ensure that these taxing jurisdictions
that receive E–911 grant funds do not
divert designated E–911 charges while
grant funds remain available. In
addition, the State may use E–911 grant
funds for a Statewide project or activity
even though it may incidentally benefit
PSAPs in a diverting jurisdiction as well
as PSAPs in compliant jurisdictions. In
any case, the State must certify that if
a taxing jurisdiction that directly
receives grant funds does divert E–911
charges, the State will ensure that those
grant funds are returned to the
government. The agencies have
amended the rule and certification
requirements to provide this flexibility.
The amendments make no change to the
requirement that the State certify that
during the relevant time period, it has
not diverted and will not divert
designated E–911 charges imposed by
the State for any other purpose, and that
it will return all E–911 grant funds if the
State diverts designated E–911 charges
for any other purpose.
The NENA/NASNA commented that
States that divert 911 fees after July 23,
2008 would not be in compliance with
the NET 911 Act and asks that these
States be ineligible for E–911 grant
funds. NENA/NASNA at 7–8. The
requirements of the NET 911 Act are
separate from and unrelated to the
requirements of the ENHANCE 911 Act.
There is no statutory language in the
NET 911 Act that would amend the
explicit statutory requirement in the
ENHANCE 911 Act that applicants must
certify that during the 180 days before
the date of the application and
continuing through the time period that
grant funds are available, the State and
taxing jurisdictions did not divert
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
designated E–911 charges for any other
purpose. Consequently, the agencies
decline to change the Final Rule in
response to this comment.
I. Distribution of Grant Funds: Formula
The approach used in this formula is
similar to formulae utilized by the
Department of Transportation programs,
including the Federal Transit
Administration non-urbanized area
grant formula and the Federal-Aid
Highway Act of 1944 grant formula.
Both programs utilize road
infrastructure miles as a component of
the formula for grant distribution. In
this case, the road mileage serves as a
proxy for the ‘‘electronic information
highway’’ since many
telecommunication and wireless carriers
develop their systems along these
routes. In the arena of wireless E–911,
Phase II compliance would significantly
improve emergency response along the
highway system. The mileage aspect of
this formula also serves as weight for
coverage of geographic areas, including
rural jurisdictions. The population
aspects of the formula provide a balance
to ensure that the funds would go to
those areas in which the E–911 system
would be improved to help as many
Americans as possible. The agencies
believe the result was an equitable
distribution of the limited funds. The
minimum was set based on the agencies’
understanding that the cost of bringing
at least one PSAP into Phase II
compliance would be approximately
$200,000–$250,000.
The comments about the proposed
formula for distribution of E–911 grant
funds were largely positive. However,
one commenter, the AK NENA,
requested that additional grant
allocations be available for Alaska and
other States that are still deploying basic
911 services as well as those lacking
Statewide E–911 and wireless 911
capabilities. See AK NENA at 3. The AK
NENA notes that States that have
already achieved Statewide deployment
of E–911 and wireless 911 capabilities
have access to funding to support the
deployment of Statewide emergency
communications. Although the agencies
recognize that States have varying levels
of deployment, providing additional
grant funds to those States that have not
established funding to support the
deployment of E–911 services unduly
penalizes States that have taken steps to
keep pace with advancing technologies.
While the agencies also recognize the
commenter’s concerns about the greater
needs of some communities, these needs
are appropriately addressed through
State planning, and that the formula
distribution remains an equitable
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
erowe on PROD1PC63 with RULES
approach. As a result, the agencies made
no change to the formula.
J. Eligible Use of Funds
The agencies received numerous
comments requesting clarification of the
eligible uses of grant funds. In the
NPRM, the agencies specified that grant
funds could be used for the acquisition
and deployment of hardware and
software that enables compliance with
Phase II E–911 services or that enables
migration to an IP-enabled emergency
network, or for training in the use of
such hardware and software. The CA
911 Office asked whether grant funds
could be used for all three activities. CA
911 Office at 5. The agencies intend that
grant funds may be used for any or all
of the three activities and have amended
the rule to clarify this point.
Several commenters asked whether
grant funds could be used to pay
consultants. See, e.g., NENA/NASNA at
8–9; MO 911 Coordinator at 5. In 47
CFR 400.9(a), the agencies identified the
requirements of 49 CFR Part 18,
including the cost principles referenced
in 49 CFR 18.22, as applicable to the
grants awarded under this program. In
accordance with those cost principles,
consultant costs are allowable provided
that certain conditions are met.
Commenters are directed to the
applicable cost principles for detail. No
change to the Final Rule is necessary in
response to these comments.
Several commenters asked whether
Statewide projects are eligible for
funding under the E–911 grant program.
See, e.g., CA 911 Office at 2; WA E911
Office at 5–6; PA EMA at 2. Statewide
E–911 projects are eligible, provided the
State complies with the requirement
that 90 percent of the funds be
expended for the direct benefit of
PSAPs, as discussed in Section IV.D.2.
Although the agencies believe that
States are in the best position to make
specific deployment decisions, States
are encouraged to consider those that
would benefit the largest number of
PSAPs when selecting Statewide
projects. Some commenters specifically
asked whether a Statewide project, such
as establishing an emergency services IP
network or ESInet, would be an eligible
use. NENA/NASNA at 5; MO 911
Coordinator at 2. According to the
NENA, ESInets ‘‘are engineered,
managed networks, and are intended to
be multi-purpose, supporting extended
Public Safety communications services,
in addition to 9–1–1. ESInets use
broadband, packet switched technology
capable of carrying voice plus large
amounts of varying types of data using
Internet Protocols and standards.’’ See
NENA, ‘‘A Policy Maker Blueprint for
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
Transitioning to the Next Generation 9–
1–1 System’’ (September 2008). Based
on this description, the agencies believe
that establishing an ESInet would help
enable PSAPs to migrate to an IPenabled emergency network, and
therefore, would be an eligible use.
The PA EMA requested a
modification to allow grant applications
to include a ‘‘plan to plan’’ and to allow
grant funds to be used for the
development of a more thorough State
911 plan. PA EMA at 4. The PA EMA
noted that 60 days were insufficient to
develop such a Statewide 911 plan in
the manner envisioned by the NASNA
Model State 9–1–1 Plan, the Act or the
NPRM. As explained in Section IV.D.
above, the State 911 Plan required under
this grant program is not the
comprehensive plan patterned after the
Model Plan. The agencies believe that
60 days is adequate to establish the
significantly less detailed coordination
plan anticipated by the ENHANCE 911
Act. Moreover, the Act requires an
applicant to certify that it has already
established a plan for the
implementation and coordination of E–
911 services as a condition to apply for
an E–911 grant. 47 U.S.C.
942(b)(3)(A)(iii). Allowing the E–911
grant funds to be used for plan
development would be inconsistent
with this statutory prerequisite.
Consequently, the agencies decline to
amend the rule to allow applicants to
include a ‘‘plan to plan’’ and to use
grant funds to develop a plan.
The NE PSC requested that eligible
uses be expanded to include the costs
incurred for rural addressing, purchase
of street signs and the development of
a master street address guide. NE PSC at
2. The agencies believe that such uses
are only marginally related to the
implementation and operation of E–911
services, and do not meet the purposes
of the grant program. Consequently, the
agencies decline to adopt this
recommendation.
V. Statutory Basis for This Action
The Final Rule implements the grant
program created by section 104 of the
ENHANCE 911 Act of 2004, as amended
(Pub. L. 108–494, codified at 47 U.S.C.
942), which requires the Administrator
and the Assistant Secretary to issue joint
implementing regulations prescribing
the criteria for grant awards. Section
3011 of the Deficit Reduction Act of
2005 (Pub. L. 109–171, as amended by
section 2301 of Pub. L. 110–53 and
section 539 of Pub. L. 110–161)
authorized funding for the ENHANCE
911 Act.
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
26973
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and
Regulatory Policies and Procedures
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ provides for
making determinations whether a
regulatory action is ‘‘significant’’ and
therefore subject to OMB review and to
the requirements of the Executive Order.
58 FR 51735, Oct. 4, 1993. The Order
defines a ‘‘significant regulatory action’’
as one that is likely to result in a rule
that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
This rule was not reviewed by the Office
of Management and Budget under
Executive Order 12866. The rule is not
considered to be significant within the
meaning of Executive Order 12866 or
the agencies’ regulatory policies and
procedures.
The rule does not affect amounts over
the significance threshold of $100
million each year. The rule sets forth
application procedures and showings to
be made to be eligible for a grant. The
funds to be distributed under the rule
total $43.5 million, well below the
annual threshold of $100 million. The
rule does not adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or Tribal
governments or communities. The rule
does not create an inconsistency or
interfere with any actions taken or
planned by other agencies. The rule
does not materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof. Finally,
the rule does not raise novel legal or
policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
In consideration of the foregoing, the
agencies have determined that this rule
is not significant. The impacts of the
E:\FR\FM\05JNR1.SGM
05JNR1
26974
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
rule are minimal and a full regulatory
evaluation is not required.
erowe on PROD1PC63 with RULES
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act, whenever an agency publishes a
notice of rulemaking for any proposed
or Final Rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the effect of the rule on small
entities (i.e., small businesses, small
organizations, and small governmental
jurisdictions). 5 U.S.C. 601 et seq. The
Small Business Administration’s
regulations at 13 CFR part 121 define a
small business, in part, as a business
entity ‘‘which operates primarily within
the United States.’’ 13 CFR 121.105(a).
No regulatory flexibility analysis is
required if the head of an agency
certifies the rulemaking action would
not have a significant economic impact
on a substantial number of small
entities. The Small Business Regulatory
Enforcement Fairness Act of 1996
amended the Regulatory Flexibility Act
to require Federal agencies to provide a
statement of the factual basis for
certifying that an action would not have
a significant economic impact on a
substantial number of small entities.
NHTSA and NTIA have considered
the effects of this rule under the
Regulatory Flexibility Act. States are the
recipients of funds awarded under the
E–911 grant program and they are not
considered to be small entities under
the Regulatory Flexibility Act.
Therefore, the agencies certify that this
rule would not have a significant
economic impact on a substantial
number of small entities.
C. Executive Order 13132 (Federalism)
Executive Order 13132, ‘‘Federalism,’’
requires the agencies to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ 64 FR 43255, August 10,
1999. ‘‘Policies that have federalism
implications’’ are defined in the
Executive Order to include regulations
that have ‘‘substantial direct effects on
the States, on the relationship between
the national government and the States,
or on the distribution of power and
responsibilities among the various
levels of government.’’ Under Executive
Order 13132, an agency may not issue
a regulation with Federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
governments or the agency consults
with State and local governments in the
process of developing the proposed
regulation. An agency also may not
issue a regulation with Federalism
implications that preempts a State law
without consulting with State and local
officials.
The agencies have analyzed this rule
in accordance with the principles and
criteria set forth in Executive Order
13132, and have determined that this
rule does not have sufficient federalism
implications to warrant consultation
with State and local officials or the
preparation of a federalism summary
impact statement. Moreover, the Final
Rule will not preempt any State law or
regulation or affect the ability of States
to discharge traditional State
government functions.
D. Executive Order 12988 (Civil Justice
Reform)
Pursuant to Executive Order 12988,
‘‘Civil Justice Reform,’’ the agencies
have considered whether this
rulemaking would have any retroactive
effect. 61 FR 4729, Feb. 7, 1996. This
rule does not have any retroactive effect.
This rule meets applicable standards in
sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501, et seq.), a
person is not required to respond to a
collection of information by a Federal
agency unless the collection displays a
valid Office of Management and Budget
(OMB) control number. There are
reporting requirements contained in the
Final Rule that are considered to be
information collection requirements
under the Paperwork Reduction Act, as
that term is defined by OMB in 5 CFR
Part 1320. The use of Standard Forms
424, 424A, 424B, and SF–LLL have been
approved by OMB under the respective
control numbers 0348–0043, 0348–0044,
0348–0040, and 0348–0046. The
submission of a State 911 Plan
constitutes a new information collection
under the Paperwork Reduction Act.
The estimated total annual burden is
10,976 hours. The total estimated
number of respondents is 56 (50 States,
the District of Columbia, Puerto Rico,
American Samoa, Guam, the Northern
Mariana Islands, and the U.S. Virgin
Islands).
Pursuant to the Act, the agencies
solicited public comments on the
proposed collection of information, with
a 60-day comment period, in the notice
of proposed rulemaking published on
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
October 3, 2008 (73 FR 57567). In a
Federal Register Notice published on
May 19, 2009, the agencies announced
that they submitted the information
collection request to OMB for approval.
(73 FR 23465). OMB approval for this
information collection is pending.
F. Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a
written assessment of the costs, benefits,
and other effects of proposed or final
rules that include a Federal mandate
likely to result in the expenditure by
State, local, or tribal governments, in the
aggregate, or by the private sector, of
more than $100 million annually. This
rule does not meet the definition of a
Federal mandate because the resulting
annual State expenditures would not
exceed the $100 million threshold. The
program is voluntary and States that
choose to apply and qualify would
receive grant funds.
G. National Environmental Policy Act
The agencies have reviewed this rule
for the purposes of the National
Environmental Policy Act. The agencies
have determined that this rule will not
have a significant impact on the quality
of the human environment.
H. Executive Order 13175 (Consultation
and Coordination With Indian Tribes)
The agencies have analyzed this rule
under Executive Order 13175, and have
determined that the rule will not have
a substantial direct effect on one or
more Indian tribes, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
preempt tribal law. Therefore, a tribal
summary impact statement is not
required.
I. Regulatory Identifier Number (RIN)
The Department of Transportation
assigns a regulation identifier number
(RIN) to each regulatory action listed in
the Unified Agenda of Federal
Regulations. The Regulatory Information
Service Center publishes the Unified
Agenda in April and October of each
year. You may use the RIN contained in
the heading at the beginning of this
document to find this action in the
Unified Agenda.
J. Privacy Act
Please note that anyone is able to
search the electronic form of all
comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
You may review DOT’s complete
Privacy Act Statement in the Federal
Register, 65 FR 19477, Apr. 11, 2000.
K. Congressional Review of Agency
Rulemaking
The agencies have not submitted the
Final Rule to the Congress and the
Government Accountability Office
under the Congressional Review of
Agency Rulemaking Act, 5 U.S.C. 801 et
seq. This rule is not a ‘‘major rule’’
within the meaning of the Act.
List of Subjects in 47 CFR Part 400
Grant programs, Telecommunications,
Emergency response capabilities (911).
■ In consideration of the foregoing, the
National Highway Traffic Safety
Administration, Department of
Transportation, and the National
Telecommunications and Information
Administration, Department of
Commerce establish a new Chapter IV
consisting of Part 400 in Title 47 of the
Code of Federal Regulations to read as
follows:
CHAPTER IV—NATIONAL
TELECOMMUNICATIONS AND
INFORMATION ADMINISTRATION,
DEPARTMENT OF COMMERCE, AND
NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
PART 400—E–911 GRANT PROGRAM
Sec.
400.1 Purpose.
400.2 Definitions.
400.3 Who may apply.
400.4 Application requirements.
400.5 Approval and award.
400.6 Distribution of grant funds.
400.7 Eligible uses for grant funds.
400.8 Non-compliance.
400.9 Financial and administrative
requirements.
400.10 Closeout.
Appendix A to Part 400—Minimum Grant
Awards Available to Qualifying States
Appendix B to Part 400—Initial Certification
for E–911 Grant Applicants
Appendix C to Part 400—Annual
Certification for E–911 Grant Recipients
Authority: 47 U.S.C. 942.
§ 400.1
Purpose.
This part establishes uniform
application, approval, award, financial
and administrative requirements for the
grant program authorized under the
‘‘Ensuring Needed Help Arrives Near
Callers Employing 911 Act of 2004’’
(ENHANCE 911 Act), as amended.
erowe on PROD1PC63 with RULES
§ 400.2
Definitions.
As used in this part—
Administrator means the
Administrator of the National Highway
Traffic Safety Administration (NHTSA),
U.S. Department of Transportation.
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
Assistant Secretary means the
Assistant Secretary for Communications
and Information, U.S. Department of
Commerce, and Administrator of the
National Telecommunications and
Information Administration (NTIA).
Designated E–911 charges mean any
taxes, fees, or other charges imposed by
a State or other taxing jurisdiction that
are designated or presented as dedicated
to deliver or improve E–911 services.
E–911 Coordinator means a single
officer or governmental body of the
State that is responsible for
implementing E–911 services in the
State.
E–911 services mean both phase I and
phase II enhanced 911 services, as
described in 47 CFR 20.18.
Eligible entity means a State or local
government or tribal organization,
including public authorities, boards,
commissions, and similar bodies created
by such governmental entities to
provide E–911 services.
ICO means the National E–911
Implementation Coordination Office
established under 47 U.S.C. 942 for the
administration of the E–911 grant
program, located at the National
Highway Traffic Safety Administration,
US Department of Transportation, 1200
New Jersey Avenue, SE., NTI–140,
Washington, DC 20590.
Integrated telecommunications
services mean those entities engaged in
the provision of multiple services, such
as voice, data, image, graphics, and
video services, which make common
use of all or part of the same
transmission facilities, switches,
signaling, or control devices.
IP-enabled emergency network or IPenabled emergency system means an
emergency communications network or
system based on a secured infrastructure
that allows secured transmission of
information, using Internet Protocol,
among users of the network or system.
Phase II E–911 services mean phase II
enhanced 911 services, as described in
47 CFR 20.18.
PSAP means a public safety
answering point, a facility that has been
designated to receive emergency calls
and route them to emergency personnel.
State includes any State of the United
States, the District of Columbia, Puerto
Rico, American Samoa, Guam, the
Northern Mariana Islands, and the U.S.
Virgin Islands.
§ 400.3
Who may apply.
In order to apply for a grant under this
part, an applicant must be a State
applying on behalf of all eligible entities
within its jurisdiction.
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
§ 400.4
26975
Application requirements.
(a) Contents. A State’s application for
funds for the E–911 grant program must
consist of the following components:
(1) State 911 Plan. A plan that details
the projects and activities proposed to
be funded for the implementation and
operation of Phase II E–911 services or
migration to an IP-enabled emergency
network, establishes metrics and a time
table for grant implementation, and
describes the steps the State has taken
to—
(i) Coordinate its application with
local governments, tribal organizations,
and PSAPs within the State;
(ii) Ensure that at least 90 percent of
the grant funds will be used for the
direct benefit of PSAPs and not more
than 10 percent of the grant funds will
be used for the State’s administrative
expenses related to the E–911 grant
program;
(iii) Give priority to communities
without 911 capability as of August 3,
2007 to establish Phase II coverage by
identifying the percentage of grant funds
designated for those communities or
provide an explanation why such
designation would not be practicable in
successfully accomplishing the
purposes of the grant;
(iv) Involve integrated
telecommunications services in the
implementation and delivery of Phase II
E–911 services or for migration to an IPenabled emergency network; and
(v) Employ the use of technologies to
achieve compliance with Phase II E–911
services or for migration to an IPenabled emergency network.
(2) Project budget. A project budget
for all proposed projects and activities
to be funded by the grant funds
identified for the State in Appendix A
and matching funds. Specifically, for
each project or activity, the State must:
(i) Demonstrate that the project or
activity meets the eligible use
requirement in § 400.7; and
(ii) Identify the non-Federal sources,
which meet the requirements of 49 CFR
18.24, that will fund at least 50 percent
of the cost; except that as provided in
48 U.S.C. 1469a, the requirement for
non-Federal matching funds (including
in-kind contributions) is waived for
American Samoa, Guam, the Northern
Mariana Islands, and the U.S. Virgin
Islands for grant amounts up to
$200,000.
(3) Supplemental project budget.
States that meet the qualification
requirements for the initial distribution
of E–911 grant funds may also qualify
for additional grant funds that may
become available. To be eligible for any
such additional grant funds that may
become available in accordance with
E:\FR\FM\05JNR1.SGM
05JNR1
erowe on PROD1PC63 with RULES
26976
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
§ 400.6, a State must submit, with its
application, a supplemental project
budget that identifies the maximum
dollar amount the State is able to match
from non-Federal sources meeting the
requirements of 49 CFR 18.24, and
includes projects or activities for those
grant and matching amounts, up to the
total amount in the project budget
submitted under paragraph (a)(2) of this
section. This information must be
provided to the same level of detail as
required under paragraph (a)(2) of this
section and be consistent with the State
911 Plan required under paragraph
(a)(1) of this section.
(4) Designated E–911 Coordinator.
The identification of a single officer or
government body to serve as the E–911
Coordinator of implementation of E–911
services and to sign the certifications
required under this part. If the State has
established by law or regulation an
office or coordinator with the authority
to manage E–911 services, that office or
coordinator must be identified as the
designated E–911 Coordinator and
apply for the grant on behalf of the
State. If the State does not have such an
office or coordinator established, the
Governor of the State must appoint a
single officer or governmental body to
serve as the E–911 Coordinator in order
to qualify for an E–911 grant. If the
designated E–911 Coordinator is a
governmental body, an official
representative of the governmental body
shall be identified to sign the
certifications for the E–911 Coordinator.
The State must notify NHTSA in writing
within 30 days of any change in
appointment of the E–911 Coordinator.
(5) Certifications. (i) The certification
in Appendix B to this part, signed by
the E–911 Coordinator, certifying that
the State has complied with the
required statutory and programmatic
conditions in submitting its application.
The State must certify that during the
time period 180 days preceding the
application date, the State has not
diverted any portion of designated E–
911 charges imposed by the State for
any purpose other than the purposes for
which such charges are designated, that
no taxing jurisdiction in the State that
will be a recipient of E–911 grant funds
has diverted any portion of designated
E–911 charges imposed by the taxing
jurisdiction for any purpose other than
the purposes for which such charges are
designated, and that neither the State
nor any taxing jurisdiction in the State
that is a recipient of E–911 grant funds
will divert designated E–911 charges for
any purpose other than the purposes for
which such charges are designated
throughout the time period during
which grant funds are available.
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
(ii) Submitted on an annual basis 30
days after the end of each fiscal year
during which grant funds are available,
the certification in Appendix C to this
part, signed by the E–911 Coordinator,
making the same certification as
required under paragraph (a)(5)(i) of this
section concerning the diversion of
designated E–911 charges.
(b) Due date. The State must submit
the application documents identified in
this section so that they are received by
the ICO no later than August 4, 2009.
Failure to meet this deadline will
preclude the State from receiving
consideration for an E–911 grant award.
§ 400.5
Approval and award.
(a) The ICO will review each
application for compliance with the
requirements of this part.
(b) The ICO may request additional
information from the State, with respect
to any of the application submission
requirements of § 400.4, prior to making
a recommendation for an award. Failure
to submit such additional information
may preclude the State from further
consideration for award.
(c) The Administrator and Assistant
Secretary will jointly approve and
announce, in writing, grant awards to
qualifying States no later than
September 30, 2009.
§ 400.6
Distribution of grant funds.
(a) Initial distribution. Subject to
paragraph (b) of this section, grant funds
for each State that meets the
requirements in § 400.4 will be
distributed—
(1) 50 percent in the ratio which the
population of the State bears to the total
population of all the States, as shown by
the latest available Federal census; and
(2) 50 percent in the ratio which the
public road mileage in each State bears
to the total public road mileage in all
States, as shown by the latest available
Federal Highway Administration data.
(b) Minimum distribution. The
distribution to each qualifying State
under paragraph (a) of this section shall
not be less than $500,000, except that
the distribution to American Samoa,
Guam, the Northern Mariana Islands,
and the U.S. Virgin Islands shall not be
less than $250,000.
(c) Supplemental distribution. Grant
funds that are not distributed under
paragraph (a) of this section will be
redistributed among qualifying States
that have met the requirements of
§ 400.4, including the submission of a
supplemental project budget as
provided in § 400.4(a)(3), in accordance
with the formula in paragraph (a) of this
section.
PO 00000
Frm 00044
Fmt 4700
Sfmt 4700
§ 400.7
Eligible uses for grant funds.
Grant funds awarded under this part
may be used only for the acquisition
and deployment of hardware and
software that enables the
implementation and operation of Phase
II E–911 services, for the acquisition and
deployment of hardware and software to
enable the migration to an IP-enabled
emergency network, for the training in
the use of such hardware and software,
or for any combination of these uses,
provided such uses have been identified
in the State 911 Plan.
§ 400.8
Non-compliance.
In accordance with 49 U.S.C. 942(c),
where a State provides false or
inaccurate information in its
certification related to the diversion of
E–911 charges, the State shall be
required to return all grant funds
awarded under this part.
§ 400.9 Financial and administrative
requirements.
(a) General. The requirements of 49
CFR part 18, the Uniform
Administrative Requirements for Grants
and Cooperative Agreements to State
and Local Governments, including
applicable cost principles referenced at
49 CFR 18.22, govern the
implementation and management of
grants awarded under this part.
(b) Reporting requirements.
(1) Performance reports. Each grant
recipient shall submit an annual
performance report to NHTSA,
following the procedures of 49 CFR
18.40, within 90 days after each fiscal
year that grant funds are available,
except when a final report is required
under § 400.10(b)(2).
(2) Financial reports. Each grant
recipient shall submit quarterly
financial reports to NHTSA, following
the procedures of 49 CFR 18.41, within
30 days after each fiscal quarter that
grant funds are available, except when
a final voucher is required under
§ 400.10(b)(1).
§ 400.10
Closeout.
(a) Expiration of the right to incur
costs. The right to incur costs under this
part expires on September 30, 2012. The
State and its subgrantees and
contractors may not incur costs for
Federal reimbursement past the
expiration date.
(b) Final submissions. Within 90 days
after the completion of projects and
activities funded under this part, but in
no event later than the expiration date
identified in paragraph (a) of this
section, each grant recipient must
submit—
(1) A final voucher for the costs
incurred. The final voucher constitutes
E:\FR\FM\05JNR1.SGM
05JNR1
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
the final financial reconciliation for the
grant award.
(2) A final report to NHTSA,
following the procedures of 49 CFR
18.50(b).
(c) Disposition of unexpended
balances. Any funds that remain
unexpended by the end of fiscal year
2012 shall cease to be available to the
State and shall be returned to the
government.
APPENDIX A TO PART 400—MINIMUM
GRANT AWARDS AVAILABLE TO
QUALIFYING STATES
State name
Minimum E–911
grant award
erowe on PROD1PC63 with RULES
Alabama ..............................
Alaska .................................
American Samoa ................
Arizona ................................
Arkansas .............................
California .............................
Colorado .............................
Connecticut .........................
Delaware .............................
District of Columbia ............
Florida .................................
Georgia ...............................
VerDate Nov<24>2008
14:04 Jun 04, 2009
$686,230.25
500,000.00
250,000.00
627,067.26
594,060.05
2,841,352.77
662,637.98
500,000.00
500,000.00
500,000.00
1,579,728.30
1,063,089.13
Jkt 217001
APPENDIX A TO PART 400—MINIMUM
GRANT AWARDS AVAILABLE TO
QUALIFYING STATES—Continued
Guam ..................................
Hawaii .................................
Idaho ...................................
Illinois ..................................
Indiana ................................
Iowa ....................................
Kansas ................................
Kentucky .............................
Louisiana ............................
Maine ..................................
Maryland .............................
Massachusetts ....................
Michigan .............................
Minnesota ...........................
Mississippi ..........................
Missouri ..............................
Montana ..............................
Northern Mariana Islands ...
Nebraska ............................
Nevada ...............................
New Hampshire ..................
New Jersey .........................
New Mexico ........................
New York ............................
North Carolina ....................
PO 00000
Frm 00045
Fmt 4700
APPENDIX A TO PART 400—MINIMUM
GRANT AWARDS AVAILABLE TO
QUALIFYING STATES—Continued
Minimum E–911
grant award
State name
Sfmt 4700
250,000.00
500,000.00
500,000.00
1,343,670.10
783,700.36
668,545.47
770,896.23
584,385.38
511,974.11
500,000.00
500,000.00
527,000.57
1,108,704.89
874,841.32
500,000.00
891,711.03
500,000.00
250,000.00
508,655.45
500,000.00
500,000.00
666,876.13
500,000.00
1,603,343.25
971,280.91
26977
State name
Minimum E–911
grant award
North Dakota ......................
Ohio ....................................
Oklahoma ...........................
Oregon ................................
Pennsylvania ......................
Puerto Rico .........................
Rhode Island ......................
South Carolina ....................
South Dakota ......................
Tennessee ..........................
Texas ..................................
Utah ....................................
Vermont ..............................
Virgin Islands ......................
Virginia ................................
Washington .........................
West Virginia ......................
Wisconsin ...........................
Wyoming .............................
500,000.00
1,203,583.60
700,339.78
500,000.00
1,242,455.97
500,000.00
500,000.00
541,705.79
500,000.00
751,822.46
2,702,727.44
500,000.00
500,000.00
250,000.00
758,028.12
734,176.40
500,000.00
820,409.48
500,000.00
Total Available E–911
Grant Funds .............
41,325,000.00
BILLING CODE 4910–59–P
E:\FR\FM\05JNR1.SGM
05JNR1
VerDate Nov<24>2008
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
14:04 Jun 04, 2009
Jkt 217001
PO 00000
Frm 00046
Fmt 4700
Sfmt 4725
E:\FR\FM\05JNR1.SGM
05JNR1
ER05JN09.000
erowe on PROD1PC63 with RULES
26978
VerDate Nov<24>2008
14:04 Jun 04, 2009
Jkt 217001
PO 00000
Frm 00047
Fmt 4700
Sfmt 4725
E:\FR\FM\05JNR1.SGM
05JNR1
26979
ER05JN09.001
erowe on PROD1PC63 with RULES
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
VerDate Nov<24>2008
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
14:04 Jun 04, 2009
Jkt 217001
PO 00000
Frm 00048
Fmt 4700
Sfmt 4725
E:\FR\FM\05JNR1.SGM
05JNR1
ER05JN09.002
erowe on PROD1PC63 with RULES
26980
Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations
BILLING CODE 4910–59–C
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 22, and 52
[FAC 2005–29, Amendment–4; FAR Case
2007–013; Docket 2008–0001; Sequence 19]
Federal Acquisition Regulation; FAR
Case 2007–013, Employment Eligibility
Verification
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Amendment to final rule; delay
of applicability date.
AGENCIES:
The Department of Defense,
General Services Administration, and
National Aeronautics and Space
Administration have agreed to delay the
applicability date of FAR Case 2007–
013, Employment Eligibility
Verification, to September 8, 2009.
DATES: Applicability Date: The
applicability date of FAC 2005–29,
Amendment–3, published April 17,
2009, 74 FR 17793, is delayed until
September 8, 2009.
erowe on PROD1PC63 with RULES
SUMMARY:
14:04 Jun 04, 2009
The
FAR Secretariat at (202) 501–4755 for
further information pertaining to status
or publication schedule. Please cite FAC
2005–29 (delay of applicability date).
FOR FURTHER INFORMATION CONTACT:
RIN 9000–AK91
VerDate Nov<24>2008
Contracting officers shall not include
the new clause at 52.222–54,
Employment Eligibility Verification, in
any solicitation or contract prior to the
applicability date of September 8, 2009.
On or after September 8, 2009,
contracting officers—
• Shall include the clause in
solicitations, in accordance with the
clause prescription at 22.1803 and FAR
1.108(d)(1); and
• Should modify, on a bilateral basis,
existing indefinite-delivery/indefinitequantity contracts in accordance with
FAR 1.108(d)(3) to include the clause
for future orders if the remaining period
of performance extends beyond March
8, 2010, and the amount of work or
number of orders expected under the
remaining performance period is
substantial.
Jkt 217001
This
document extends to September 8, 2009,
the applicability date of the E-Verify
rule, in order to permit the new
Administration an adequate opportunity
to review the rule.
SUPPLEMENTARY INFORMATION:
Federal Acquisition Circular
Federal Acquisition Circular (FAC)
2005–29, Amendment–4, is issued
under the authority of the Secretary of
Defense, the Administrator of General
Services, and the Administrator for the
National Aeronautics and Space
Administration.
The Federal Acquisition Regulation
(FAR) contained in FAC 2005–29 was
effective January 19, 2009, and is
applicable September 8, 2009.
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
Dated: May 29, 2009.
Amy G. Williams,
Acting Deputy Director, Defense Procurement
and Acquisition Policy (Defense Acquisition
Regulations System).
Dated: June 1, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive &
Acting Deputy Chief Acquisition Officer,
Office of the Chief Acquisition Officer, U.S.
General Services Administration.
Dated: May 29, 2009.
William P. McNally,
Assistant Administrator for Procurement,
National Aeronautics and Space
Administration.
[FR Doc. E9–13124 Filed 6–4–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF TRANSPORTATION
Office of the Secretary of
Transportation
49 CFR Part 1
[Docket No. DOT–OST–1999–6189]
RIN 9991–AA55
Organization and Delegation of Powers
and Duties: Federal Railroad
Administrator and Federal Transit
Administrator
AGENCY: Office of the Secretary of
Transportation (OST), Department of
Transportation (DOT).
ACTION: Final rule.
SUMMARY: This final rule delegates all of
the authorities vested in the Secretary of
Transportation (Secretary) by the Rail
Safety Improvement Act of 2008 to the
Administrator of the Federal Railroad
Administration (FRA). This final rule
also delegates the authorities vested in
E:\FR\FM\05JNR1.SGM
05JNR1
ER05JN09.003
Issued on: June 2, 2009.
Ronald Medford,
Acting Deputy Administrator, National
Highway Traffic Safety Administration.
Anna M. Gomez,
Acting Assistant Secretary for
Communications and Information.
[FR Doc. E9–13206 Filed 6–4–09; 8:45 am]
26981
Agencies
[Federal Register Volume 74, Number 107 (Friday, June 5, 2009)]
[Rules and Regulations]
[Pages 26965-26981]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13206]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
DEPARTMENT OF COMMERCE
National Telecommunications and Information Administration
47 CFR Part 400
[Docket No. NHTSA-2008-0142]
RIN 2127-AK37
E-911 Grant Program
AGENCIES: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT); National Telecommunications and
Information Administration (NTIA), Department of Commerce (DOC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This joint Final Rule implements the E-911 grant program
authorized under the Ensuring Needed Help Arrives Near Callers
Employing 911 (ENHANCE 911) Act of 2004 (Pub. L. 108-494, codified at
47 U.S.C. 942). The Act authorizes grants for the implementation and
operation of Phase II enhanced 911 services and for migration to an IP-
enabled emergency network. To qualify for a grant, an applicant must
submit a State 911 plan and project budget, designate an E-911
coordinator, and certify, among other things, that the State and other
taxing
[[Page 26966]]
jurisdictions within the State have not diverted E-911 charges for any
other purpose within 180 days preceding the application date. This
Final Rule establishes the requirements an applicant must meet and the
procedures it must follow to receive an E-911 grant.
DATES: This Final Rule becomes effective on June 5, 2009.
FOR FURTHER INFORMATION CONTACT: For program issues: Mr. Drew Dawson,
Director, Office of Emergency Medical Services, National Highway
Traffic Safety Administration, 1200 New Jersey Avenue, SE., NTI-140,
Washington, DC 20590. Telephone: (202) 366-9966. E-mail:
Drew.Dawson@dot.gov.
For legal issues: Ms. Jin Kim, Attorney-Advisor, Office of the
Chief Counsel, National Highway Traffic Safety Administration, 1200 New
Jersey Avenue, SE., NCC-113, Washington, DC 20590. Telephone: (202)
366-1834. E-mail: Jin.Kim@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Statutory Requirements
III. Notice of Proposed Rulemaking
IV. Comments
A. In General
B. Definition of IP-Enabled Emergency Network
C. States Applying on Behalf of All Eligible Entities
D. Application: State 911 Plan
1. Coordination
2. Direct Benefit of PSAPs
3. Involvement of Integrated Telecommunications Services
E. Application: Project Budget and Supplemental Project Budget
F. Application: Match Requirement
G. Application: Designation of E-911 Coordinator
H. Application: Certification Concerning Diversion of Funds
I. Distribution of Grant Funds: Formula
J. Eligible Use of Grant Funds
V. Statutory Basis for This Action
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and Regulatory Policies and Procedures
B. Regulatory Flexibility Act
C. Executive Order 13132 (Federalism)
D. Executive Order 12988 (Civil Justice Reform)
E. Paperwork Reduction Act
F. Unfunded Mandates Reform Act
G. National Environmental Policy Act
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribes)
I. Regulatory Identifier Number (RIN)
J. Privacy Act
K. Congressional Review of Agency Rulemaking
I. Background
Trends in telecommunications mobility and convergence have put the
nation's 911 system at a crossroads. The growing market penetration of
both wireless telephones (commonly known as mobile or cell phones) and
Voice over Internet Protocol (VoIP) telephony have underscored the
limitations of the current 911 infrastructure. The 911 system, based on
decades-old technology, cannot handle the text, data, image and video
that are increasingly common in personal communications and critical to
emergency response.
Many of the limitations of the current 911 system stem from its
foundation on 1970s circuit-switched network technology. Each
introduction of a new access technology (e.g., wireless) or expansion
of system functions (e.g., location determination) requires significant
engineering and system modifications. There appears to be consensus
within the 911 community on the shortcomings of the present 911 system
and the need for a new, more capable system, based upon a digital,
Internet-Protocol (IP) based infrastructure.
Today, there are approximately 255 million wireless telephones in
use in the United States. About 80 percent of Americans now subscribe
to wireless telephone service and 14 percent of American adults live in
households with only wireless telephones, i.e., no landline telephones.
Of the estimated 240 million 911 calls made each year, approximately
one-third originate from wireless telephones. In many communities, at
least half of the 911 calls come from wireless telephones. Unlike
landline 911 calls, not all wireless 911 calls are delivered to
dispatchers with Automatic Number Information (ANI) and Automatic
Location Information (ALI), two pieces of information that aid in
identifying the telephone number and geographic location of the caller.
The increasing use of VoIP communications has compounded this problem
because the location of the caller cannot automatically be determined
when a 911 call is made on some interconnected VoIP services. Without
this information, emergency response times may be delayed. Prompt and
accurate location information is critical to delivering emergency
assistance. Ensuring enhanced 911 (E-911) service for each caller,
i.e., telephone number and location information of the caller, is
increasingly important to public safety, given the vast number of 911
calls originating from wireless and VoIP telephones.
Successful E-911 service implementation requires the cooperation of
multiple distinct entities: Wireless carriers, wireline telephone
companies (also known as local exchange carriers), VoIP providers, and
Public Safety Answering Points (PSAPs). A PSAP is a facility that has
been designated to receive emergency calls and route them to emergency
personnel. For example, when a 911 call is made from a wireless
telephone, the wireless carrier must be able to determine the location
of the caller, the local exchange carrier must transmit that location
information from the wireless carrier to the PSAP, and the PSAP must be
capable of receiving such information.
Currently, many PSAPs are not technologically capable of receiving
ANI and ALI from wireless 911 calls. In order to receive this
information, PSAPs must upgrade their operations centers and make
appropriate trunking arrangements (i.e., establish a wired connection
between the PSAP and the networks of the local wireline telephone
companies) to enable wireless E-911 data to pass from the wireless
carrier to the PSAP. Once a PSAP is technologically capable of
receiving this information, the PSAP can submit requests to wireless
carriers for E-911 service. Under Federal Communications Commission
(FCC) regulations, this request triggers a wireless carrier's
obligation to deploy E-911 service to a PSAP.
Upgrading the 911 system to an IP-enabled emergency network will
enable E-911 calls from more networked communication devices, enable
the transmission of text messages, photographs, data sets and video,
enable geographically independent call access, transfer, and backup
among and between PSAPs and other authorized emergency organizations,
and support an ``interoperable internetwork'' of all emergency
organizations.
Many PSAPs do not have the resources to make the upgrades necessary
to request E-911 service. Some PSAPs are able to fund upgrades from
their existing budgets, but other PSAPs must rely on funds collected by
the State to maintain operation and make capital improvements to 911
services. While most States collect some type of wireless fee or
surcharge on consumers' wireless telephone bills to help fund PSAP
operations and upgrades, not all State laws ensure that such surcharges
are dedicated to their intended use. In fact, some States have used E-
911 surcharges to satisfy other State obligations that may be
marginally related to public safety, even though PSAPs remain unable to
receive E-911 service. See, e.g., Government Accountability Office
(GAO), States' Collection and Use of Funds for Wireless Enhanced 911
Services, GAO-
[[Page 26967]]
06-338 (March 2006); see also GAO, Survey on State Wireless E911 Funds,
GAO-06-400sp (2006).
Recognizing the need for dedicated funding of E-911 services, the
Ensuring Needed Help Arrives Near Callers Employing 911 (ENHANCE 911)
Act of 2004 (Pub. L. 108-494, codified at 47 U.S.C. 942) was enacted
``to improve, enhance, and promote the Nation's homeland security,
public safety, and citizen activated emergency response capabilities
through the use of enhanced 911 services, to further upgrade Public
Safety Answering Point capabilities and related functions in receiving
E-911 calls, and to support the construction and operation of a
ubiquitous and reliable citizen activated system[.]'' This grant
program was established to provide $43.5 million (less administrative
costs) for the implementation and operation of Phase II E-911 services
and for migration to an IP-enabled emergency network. 47 U.S.C.
942(b)(1).
II. Statutory Requirements
The ENHANCE 911 Act directs NHTSA and NTIA to issue joint
implementing regulations prescribing the criteria for selection for
grants. 47 U.S.C. 942(b)(4). The Act establishes certain minimum
requirements for grant applications. An applicant must provide at least
50 percent of the cost of a project from non-Federal sources. 47 U.S.C.
942(b)(2). In addition, an applicant must certify that it has
coordinated its application with the public safety answering points
located within the jurisdiction; that the State has designated a single
officer or governmental body to serve as the coordinator of
implementation of E-911 services; that it has established a plan for
the coordination and implementation of E-911 services; and that it has
integrated telecommunications services involved in the implementation
and delivery of Phase II E-911 services. 47 U.S.C. 942(b)(3).
The Act also requires applicants to certify that no portion of any
designated E-911 charges imposed by the State or other taxing
jurisdiction within the State is being or will be obligated or expended
for any purpose other than E-911 purposes during the period at least
180 days immediately preceding the date of the application and
continuing throughout the time grant funds are available to the
applicant. 47 U.S.C. 942(c)(2). Applicants must agree to return any
grant awarded if the State or other taxing jurisdiction diverts
designated E-911 charges during the time period that grant funds are
available. 47 U.S.C. 942(c)(3). Finally, applicants that knowingly
provide false information on the certification are not eligible to
receive grant funds and must return any grant funds awarded. 47 U.S.C.
942(c)(4).
III. Notice of Proposed Rulemaking
The agencies published a notice of proposed rulemaking (NPRM) to
prescribe the criteria for grants under the E-911 grant program. See E-
911 Grant Program, 73 FR 57567 (Oct. 3, 2008). The NPRM outlined the
application and administrative requirements that States must meet to
receive grant awards. In addition, the NPRM identified the minimum
grant amount for each State qualifying for a grant award.
The NPRM proposed to permit only the 50 United States, the District
of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana
Islands, and the U.S. Virgin Islands to apply for grant funds on behalf
of all eligible entities located within their borders. The NPRM also
outlined the application requirements for States to apply for a grant
under this program. Specifically, the NPRM identified the following
components as the application requirements: A State 911 plan, a project
budget, a supplemental project budget (if applicable), designation of
an E-911 Coordinator, and certification of compliance with statutory
and programmatic requirements.
The NPRM provided that the State 911 Plan must describe the
projects and activities proposed to be funded with E-911 grant funds as
well as establish performance metrics and timelines for grant project
implementation, subject to E-911 Implementation Coordination Office
(ICO) review and the agencies' approval. The NPRM also provided that
the State 911 Plan must certify (1) coordination with local
governments, tribal organizations, and PSAPs within the State's
jurisdiction; (2) priority given to communities without 911 capability
or an explanation of why priority would not be practicable; (3)
involvement of integrated telecommunications service providers in the
implementation and delivery of Phase II E-911 services or for migration
to an IP-enabled emergency network; and (4) use of technologies to
achieve compliance with Phase II E-911 services or for migration to an
IP-enabled emergency network. In addition, the NPRM provided that
States must demonstrate in the State 911 Plan that at least 90 percent
of the grant funds would be used for the direct benefit of PSAPs.
Finally, the NPRM specified that, in the State 911 Plan, the State must
detail how it intended to employ technology to achieve compliance with
the FCC description of Phase II E-911 services and/or how it intended
to migrate to an IP-enabled emergency network.
The agencies proposed that States submit a project budget for the
projects or activities proposed to be funded by the grant funds,
including the identification of non-Federal sources that would fund 50
percent of the cost, if applicable. See 48 U.S.C. 1469a(d) (waiver for
non-Federal matching funds under $200,000, including in-kind
contributions, for the Territorial governments in American Samoa, Guam,
the Northern Mariana Islands, and the U.S. Virgin Islands). The
agencies specified that the project budget must account for the initial
distribution of grant funds, as identified for each State in an
appendix to the NPRM. The initial distribution of grant funds to each
State, if all States applied and qualified for a grant, was based on
the agencies' proposed formula, as follows: 50 percent in the ratio
which the population of each State bears to the total population of all
the States, as shown by the latest available Federal census, and 50
percent in the ratio which the public road mileage in each State bears
to the total public road mileage in all States, as shown by the latest
available Federal Highway Administration data. However, each State
would receive a minimum award of $500,000, except that the four
territories--American Samoa, Guam, the Northern Mariana Islands, and
the Virgin Islands--would each receive a minimum of $250,000.
In anticipation of some States not applying or qualifying for grant
funds, the agencies proposed distributing unallocated funds to the pool
of qualifying States in accordance with the same formula used for the
initial distribution. In order to obligate any initially unallocated
balances before the end of fiscal year 2009, the NPRM proposed that
States interested in additional grant funds include a supplemental
project budget identifying proposed projects or activities with their
application. The supplemental project budget would identify the maximum
amount that the State was able to match from non-Federal sources and
include details of the proposed projects or activities to be funded.
The NPRM identified the eligible uses for the E-911 grant funds--
implementation and operation of Phase II E-911 services or migration to
an IP-enabled emergency network. Specifically, the agencies proposed
that grant funds and matching funds be used
[[Page 26968]]
either for the acquisition and deployment of hardware and software that
enables compliance with Phase II E-911 services or that enables
migration to an IP-enabled emergency network, or for training in the
use of such hardware and software.
The NPRM also proposed that, as part of the application, the State
identify a single officer or governmental body designated by the
Governor to serve as the coordinator of implementation of E-911
services and the certifying official on the certifications. The
agencies proposed that the E-911 Coordinator would be responsible for
certifying that the State coordinated its application with local
governments, tribal organizations and PSAPs; established a plan for the
coordination and implementation of E-911 services; would ensure that at
least 90 percent of the grant funds were used for the direct benefit of
PSAPs; had integrated telecommunications services involved in the
implementation and delivery of Phase II E-911 services; and would
provide at least 50 percent of the cost of each project funded under
this grant from non-Federal sources (if applicable).
The proposal also provided that the E-911 Coordinator must certify
that no designated E-911 charges imposed by the State or taxing
jurisdiction within the State would be diverted for other purposes from
the time period 180 days preceding the date of the application and
continuing throughout the time period during which grant funds were
available. The proposal further required States to agree to return all
grant funds if any designated E-911 charges imposed by the State or any
taxing jurisdiction within the State were diverted to other uses.
Finally, the NPRM identified the financial and administrative
requirements for the grant program.
IV. Comments
The agencies received submissions from 13 commenters in response to
the NPRM. Commenters included the following seven State agencies: the
California 9-1-1 Emergency Communications Office (CA 911 Office); the
State of Missouri 9-1-1 Coordinator (MO 911 Coordinator); the Nebraska
Public Service Commission (NE PSC); the Pennsylvania Emergency
Management Agency, Bureau of 911 Programs (PA EMA); the Georgia
Emergency Management Agency (GA EMA); the Texas Commission on State
Emergency Communications (TX CSEC); and the Washington State Enhanced
911 Program (WA E911 Office). Additional commenters included four
associations and consortiums: CSI-911 (CSI-911); the National Emergency
Number Association/National Association of State 911 Administrators
(NENA/NASNA); the Alaska Chapter of the National Emergency Number
Association (AK NENA); and the Colorado Public Utilities Commission 9-
1-1 Task Force (CO 911). Two interested members of the public also
provided comments.
A. In General
Some commenters sought clarification of specific aspects of the
NPRM, while others requested amendments to the application
requirements. The agencies received comments from NENA/NASNA and the CA
911 Office in support of the formula-based approach for distributing
grant funds. The AK NENA requested additional grant distributions for
States still deploying basic 911 services or lacking Statewide E-911.
Several commenters requested clarification of the eligible uses of
grant funds. The agencies address these comments below under the
appropriate heading.
The agencies received a few comments concerning the sections on
non-compliance (Sec. 400.8), financial and administrative requirements
(Sec. 400.9), and close-out (Sec. 400.10), which were generally
supportive. See, e.g., WA E911 at 4; CA 911 Office at 5-6.
Consequently, the Final Rule leaves these provisions unchanged. The
agencies received one supportive comment concerning the proposed
approval and award procedures (Sec. 400.5). CA 911 Office at 5. The
agencies have added clarifying language in Sec. 400.5 to highlight the
importance of the State's response to the ICO's request for additional
information. In the NPRM, the agencies stated that the ICO, upon review
of a State's application, may request additional information from the
State prior to making a recommendation of award in order to clarify
compliance with the statutory and programmatic requirements. In the
Final Rule, the agencies have added the following language: ``Failure
to submit such additional information may preclude the State from
further consideration for award.'' The agencies believe that this was
implicit in the proposal, but add language to clarify this point.
B. Definition of IP-Enabled Emergency Network
The NENA/NASNA thought that the definition of ``IP-enabled
emergency network'' was ``overly narrow,'' and requested that it be
expanded to cover the ``larger NG9-1-1 system.'' See NENA/NASNA at 3-4.
The NENA/NASNA described the system as including ``the software,
applications, interfaces and databases that traverse, connect and
enable effective routing over a network.'' According to the NENA/NASNA,
only a ``system,'' of which a ``network'' is a key component, would
enable ``the receipt and response to all citizen-activated emergency
communications and improve information sharing among all emergency
response entities'' as intended by the Act. The agencies did not intend
to define IP-enabled emergency network narrowly, and thus, adopted most
of the language suggested by NENA/NASNA. Accordingly, the definition of
``IP-enabled emergency network'' or ``IP-enabled emergency system'' in
Sec. 400.2 of the Final Rule now reads as follows: ``an emergency
communications network or system based on a secured infrastructure that
allows secured transmission of information, using Internet Protocol,
among users of the network or system.''
C. States Applying on Behalf of All Eligible Entities
NENA/NASNA and the CA 911 Office generally supported the proposal
to limit E-911 grant applications to States, on behalf of all eligible
entities within the jurisdiction. The CA 911 Office, however, asked
whether States must account for distribution of grant funds to each
eligible entity in the State, warning that such a requirement would
result in an ``administrative nightmare.'' See CA 911 Office at 1. The
CA 911 Office suggested that States be allowed ``to apply for grant
funds in a manner that demonstrates benefit to all eligible entities
located within their borders.'' As explained in more detail in Section
IV.D.2, the rule does not require grant funds to be distributed to
every eligible entity within the State, so long as the ``direct benefit
of PSAPs'' requirement is met. A State may distribute grant funds
directly to one or more PSAPs or expend the funds in a manner that
satisfies the requirement to benefit eligible entities within the State
(as the CA 911 Office proposes), or it may follow a combination of
these two approaches. Whatever approach is adopted, the State, as grant
recipient, is responsible for accounting for the distribution and
expenditure of all grant funds received under this program, in
accordance with standard grant administration procedures.
One anonymous individual recommended that NHTSA collect all
applications and review and award the funds to ensure that ``all of the
money will be awarded directly to the individual agencies that need it
as opposed to bleeding off the dollars to
[[Page 26969]]
admin/handling fees at the state level.'' The commenter states that
this would ensure that ``national needs are met as opposed to what a
State believes [are] important.'' While the agencies understand the
commenter's concerns, the agencies continue to believe that limiting
the applicant pool to States is necessary to streamline the grant
process so that timely award is assured before the end of the program
in fiscal year 2009. As discussed later, the agencies believe that the
requirement for States to certify that 90 percent of the grant funds
will be used for the direct benefit of PSAPs strikes the proper balance
between State concerns and the overarching goals of the ENHANCE 911 Act
to address the interests of PSAPs. The agencies have made no change to
the rule in response to this comment.
D. Application: State 911 Plan
The CA 911 Office recommended that the following two additional
planning elements be added to ensure project documentation that
reflects quality control and basic project management principles:
``provide success parameters for the plan and identify any risks'' and
``include a deliverable to provide final documentation that shall
include, as a minimum, the design, testing, monitoring and lessons
learned for use by other public safety authorities in the country by
means of public record requests.'' CA 911 Office at 3. The NPRM
proposed that States provide a plan that details the projects and
activities proposed to be funded for the implementation and operation
of Phase II E-911 services or migration to an IP-enabled emergency
network, establishes metrics and a time table for grant implementation,
and describes the steps the State has taken to meet statutory and
programmatic elements of the grant program. See Sec. 400.4(a)(1). In
addition, the NPRM proposed that States submit annual performance
reports and quarterly financial reports. See Sec. 400.9(b). The
agencies believe that these requirements sufficiently address the need
for project documentation that reflects quality control and basic
project management principles. Consequently, the agencies have not
adopted the suggestion for additional planning elements.
The PA EMA stated that the State 911 Plan should be more consistent
with the requirements of the Model State 911 Plan (``Model Plan''). PA
EMA at 2. The Model Plan, which was developed by NASNA as part of a
cooperative agreement with NHTSA, is intended to be a comprehensive,
long-term plan to coordinate the planning and implementation of E-911
services. In light of the relatively limited funding available under
this grant program, the agencies do not expect States to develop this
kind of comprehensive, long-term plan in order to apply for a grant.
Therefore, the agencies decline to adopt the PA EMA's recommendation.
The agencies received no comments on two components of the State
911 Plan--priority to communities without 911 capability and employing
the use of technologies. Consequently, the rule remains unchanged with
regard to these components of the State 911 Plan.
1. Coordination
The MO 911 Coordinator commented that Missouri does not have any
statutory provisions that allow coordination with PSAPs, and suggested
removing the word ``statutory'' from the requirements. MO 911
Coordinator at 3. The preamble to the NPRM merely explained that the
basis for the coordination requirement in the State 911 Plan was a
statutory provision in the ENHANCE 911 Act. The proposal did not impose
a requirement for a State to have statutory provisions concerning
coordination. Moreover, the agencies do not agree with what Missouri
appears to be implying--that such coordination cannot take place in the
absence of a State statutory provision authorizing it. In any event,
the ENHANCE 911 Act specifically requires such coordination.
Consequently, States must coordinate their application with PSAPs in
order to qualify for a grant award. The agencies make no change to the
rule in response to this comment.
The GA EMA asked whether a 911 advisory committee appointed by the
Governor, with PSAP directors' representation, would satisfy the
coordination requirement, and the WA E911 Office suggested that States
be able to meet the requirement to coordinate with PSAPs if the State
coordinates with all governmental agencies representing or managing
PSAPs within the State. GA EMA at 1; WA E911 Office at 5. Because
States are applying on behalf of all eligible entities within their
borders, the coordination requirement is intended to ensure that the
needs of PSAPs are addressed in State 911 Plans. A 911 advisory
committee would satisfy the coordination requirement, provided it
included representation of PSAPs among its membership. Similarly, State
coordination with all governmental agencies that represent or manage
the PSAPs in the State would satisfy this coordination requirement. No
change to the rule is necessary.
The PA EMA and WA E911 Office questioned the proposed requirement
to coordinate the application with tribal organizations located within
the State. See PA EMA at 2; WA E911 Office at 5. Both commenters
asserted that the agencies were extending the coordination requirements
beyond the proper reach of the ENHANCE 911 Act. NENA/NASNA suggested
that ``the agencies may wish to consider how [tribal organizations],
many of whom greatly need funding assistance, can be eligible for grant
funds despite their separate governing structure that is fully
severable from the state government.'' NENA/NASNA at 2, n. 6. The
agencies disagree with these commenters. The ENHANCE 911 Act, as
amended, directs the agencies to make grants to ``eligible entities,''
which specifically include tribal organizations. Short of expanding the
applicant pool to include the many existing tribal organizations, which
is administratively impracticable for reasons explained in the preamble
to the NPRM, the coordination requirement is necessary.
The WA E911 Office expressed concern that the State might not have
authority to coordinate with tribal organizations. WA E911 Office at 5.
States need not have specific statutory authority to coordinate E-911
related services with tribal organizations. Most States have existing
relationships with tribal organizations that would readily facilitate
the coordination necessary to meet the objectives of the E-911 grant
program. Consequently, the agencies have made no changes to the rule.
2. Direct Benefit of PSAPs
The agencies received comments from NENA/NASNA, CA 911 Office, GA
EMA, WA E911 Office, and PA EMA requesting clarification of the meaning
of ``direct benefit of PSAPs.'' The CA 911 Office, WA E911 Office and
PA EMA asked whether Statewide activities or projects that benefited
PSAPs would satisfy the ``direct benefit of PSAPs'' requirement or
whether the term's meaning was limited to direct distribution to PSAPs.
See CA 911 Office at 1-2; WA E911 Office at 5-6; PA EMA at 2. This
proposed requirement is not intended to encourage the continuation of
the traditional model of investment at the individual PSAP level, as
the WA E911 Office suggested. Rather, the agencies intend the phrase
``direct benefit of PSAPs'' to cover both direct distribution to PSAPs
at the individual PSAP level and Statewide projects in which multiple
PSAPs would benefit from the investment of E-911 grant funds, as
articulated by NENA/NASNA. NENA/NASNA at 4. In either case, the State
must ensure that 90 percent of the grant funds are being used for the
actual
[[Page 26970]]
implementation and operation of E-911 services or for migration to an
IP-enabled emergency network. Because E-911 capabilities vary from
State to State, the agencies believe that States, in coordination with
the eligible entities within their borders, are best positioned to
select between direct distribution to PSAPs and Statewide projects
benefiting multiple PSAPs (or a combination of both approaches) to
upgrade their E-911 capabilities. As noted by NENA/NASNA, some States
with many PSAPs not capable of receiving Phase II E-911 information may
choose to prioritize their grant funds to upgrade these PSAPs while
other States may use their grant funds for Statewide projects that
would benefit all PSAPs, such as establishing or enabling access to an
emergency services IP network. NENA/NASNA at 5. The agencies believe
that the existing language accommodates both approaches, and that no
change to the Final Rule is necessary.
The MO 911 Coordinator requested clarification as to the use of the
remaining 10 percent of the grant funds, after the 90 percent used for
the direct benefit of PSAPs. MO 911 Coordinator at 2. The agencies
intend that up to 10 percent of the grant funds be available to the
State to manage the projects and activities approved under the E-911
grant program. To clarify this point, the agencies have added language
in Sec. 400.4(a)(1)(ii) stating that not more than 10 percent of the
grant funds may be used for the State's administrative expenses.
The TX CSEC requested that the following language be added to the
State's certification that 90 percent of the grant funds will be used
for the direct benefit of PSAPs: ``[t]his requirement is presumed to
have been met provided that all PSAPs in the State, through their
respective 9-1-1 Governing Authorities as defined in NENA Master
Glossary of 9-1-1 Terminology, have been involved in the development of
the State 911 Plan. For purposes of this requirement, the term
``direct-benefit'' shall be liberally construed.'' TX CSEC at 2. As
discussed above, the agencies intended the language ``direct benefit of
PSAPs'' to require States to target the grant funds to meet the
specific needs of PSAPs. The agencies did so to give proper weight to
the broad eligibility criteria in the ENHANCE 911 Act. The agencies do
not agree with the TX CSEC that the goal of directly benefiting PSAPs
would be achieved merely by virtue of PSAP participation in the
development of the State 911 plan, and the agencies decline to adopt
the comment.
3. Involvement of Integrated Telecommunications Services
The agencies received two comments regarding the involvement of
integrated telecommunications services. The PA EMA requested that a
definition of this term be added to the rule, and the GA EMA asked how
a State must involve integrated telecommunications services in the
implementation and delivery of Phase II E-911 services. PA EMA at 1; GA
EMA at 1. The Act requires applicants to certify that they have
integrated telecommunications services involved in the implementation
and delivery of E-911 services, but did not provide a definition for
the term ``integrated telecommunications services.'' In response to
these comments, the agencies have added a definition in Sec. 400.2.
The term ``integrated telecommunications services,'' also referred to
as ``integrated telecommunications,'' as now defined in the Final Rule
refers to ``those entities engaged in the provision of multiple
services, such as voice, data, image, graphics, and video services,
which make common use of all or part of the same transmission
facilities, switches, signaling, or control devices.'' Integrated
telecommunications services play a vital role in enabling PSAPs to
upgrade their capability to receive E-911 services. To effectuate the
statutory requirement, States should consult with integrated
telecommunications services in the planning phase of implementing E-911
services.
E. Application: Project Budget and Supplemental Project Budget
The CA 911 Office described its understanding of the supplemental
project budget as follows: ``[t]his is a proposed contingency plan in
the event a state did not qualify for an E-911 Grant because they could
not meet the certification, but they may be able to qualify for use of
any remaining Grant funds.'' CA 911 Office at 3. That is a
misunderstanding of the purpose of the supplemental project budget. A
State that does not qualify for the initial distribution because it
cannot make the required certifications will not be eligible for any E-
911 grant funds. In the event funds remain because some States do not
apply or fail to qualify, only a State that qualifies for an initial
distribution will be eligible for a supplemental distribution. However,
the State must submit a supplemental project budget as well as a
project budget as part of its application in order to be eligible for
the supplemental distribution. The agencies have added language in
Sec. 400.4(a)(3) to clarify this point.
F. Application: Match Requirement
The agencies received a number of comments regarding the 50 percent
match requirement. The MO 911 Coordinator and the PA EMA asked whether
the match requirement could be met with local as well as State funds.
MO 911 Coordinator at 3; PA EMA at 3. The proposal specified only that
matching funds must come from non-Federal sources meeting the
requirements of 49 CFR 18.24 (the Department of Transportation's
codification of the Common Grant Rule)--it did not restrict the match
only to State funds. States may use both State and local funds to
provide the match as long as these funds meet the requirements of 49
CFR 18.24. The agencies determined that no change to the rule is
necessary.
The MO 911 Coordinator asked for guidance on what is considered a
non-Federal source, and the GA EMA asked if funds from a State grant
program funded with 911 fees could be used to meet the match
requirement. See MO 911 Coordinator at 3; GA EMA at 1. The MO 911
Coordinator also asked whether the match requires a separate budget
line item of funds specifically set aside for the grant match or
whether existing operating budgets could be used to match. MO 911
Coordinator at 3-4. The agencies do not require a specific line item
set aside for the grant match. The agencies refer both commenters to 49
CFR 18.24 for guidance on what is allowable to meet the match
requirement. The TX CSEC requested that ``consistent with 49 CFR
18.24,'' be added to the certification regarding the matching funds. TX
CSEC at 4. The agencies agree with this comment, and have added that
similar language to the certification.
The NE PSC asked that States be allowed flexibility to match funds
based on the overall cost of implementation rather than for specific
projects. See NE PSC at 4. The NE PSC explained that NE's wireless fund
could not be used for expenses that were not directly related to
wireless service, such as rural addressing. As explained in Section
IV.J., rural addressing, purchase of street signs and development of
MSAG are not eligible uses for E-911 grant funds. For this reason,
costs associated with rural addressing would not meet the match
requirement for the E-911 grant funds. Although the agencies are aware
that local counties need funds for rural addressing, it is not clear
from NE PSC's comments how matching based on the overall cost of full
implementation of E-
[[Page 26971]]
911 service rather than on a project basis would help local counties
receive the financial assistance needed for those expenses that could
not be funded by wireless surcharges.
The PA EMA asked whether the State could meet the matching
requirement ``by leveraging funds already encumbered for wireless Phase
II E9-1-1 or NG9-1-1 studies and/or planning.'' PA EMA at 3. According
to the PA EMA, it would be difficult to find new funds to meet the
match requirement because the timeline of the application does not line
up with State or local budget cycles. While the agencies recognize the
potential difficulties described by these commenters, the Act requires
applicants to meet the match on ``a project'' basis. See 47 U.S.C.
942(b)(2). To allow States to match based on overall cost of
implementation would be contrary to the statutory intent. The Act also
requires applicants to have an already established plan for the
coordination and implementation of E-911 services in order to apply for
the grant program. See 47 U.S.C. 942(b)(4)(A)(iii). As explained in
Section IV.J., grant funds may not be used to develop a plan for the
implementation of E-911 services. The agencies believe that allowing
the use of leveraged funds intended for developing a plan for matching
purposes also would be contrary to the statutory intent. The agencies
decline to amend the rule in response to these comments.
G. Application: Designation of E-911 Coordinator
The agencies received numerous comments regarding the proposed
requirement that the Governor of the State designate an E-911
Coordinator to implement E-911 services and to sign the certifications.
The CO 911 expressed concern that requiring a Governor-appointed E-911
Coordinator would disqualify States without a Statewide coordinator. CO
911 at 2. Three commenters asserted that some States by law or rule
already have designated an E-911 Coordinator or an equivalent entity
with the authority to manage or coordinate emergency communications,
and that requiring the Governor to make another designation in such
cases was not necessary and might have a negative impact on established
State 911 programs. NENA/NASNA at 5; TX CSEC at 1-2; WA E911 Office at
6. In contrast, the AK NENA requested that the Governor be allowed to
designate an entity other than the statutory 911 coordinator to apply
on behalf of the State. AK NENA at 3.
In enacting the ENHANCE 911 Act, Congress stated that one of the
purposes of the grant program was ``to coordinate 911 services and E-
911 services, at the Federal, State, and local levels.'' Section 103,
Public Law 108-494. Coordination of 911 services is traditionally
managed by the executive branch of the State government. The agencies
believe that the Governor of the State is best positioned to identify
which agency or office is able to serve as the designated E-911
Coordinator. In light of the express statutory requirement that
applicants must certify that the State has a designated E-911
Coordinator (47 U.S.C. 942(b)(4)(A)(ii) and (b)(4)(B)), the rule
continues to require States to designate E-911 Coordinators. The
agencies recognize that the ENHANCE 911 Act does not require the
coordinator to have direct legal authority to implement E-911 services
or manage emergency communications operations in order to meet the
requirements of the proposal. See 47 U.S.C. 942(b)(4)(A)(ii). Because
the rule does not require the E-911 Coordinator to have such direct
legal authority, the agencies do not believe that adding language to
that effect is necessary, as suggested by the TX CSEC. TX CSEC at 2.
The agencies did not intend to circumvent existing State
authorities for 911 services in proposing that the Governor designate
an E-911 Coordinator. In many States, the State 911 offices are the
point of contact for E-911 services. The agencies believe that State
911 offices are well equipped to coordinate the implementation and
operation of Phase II E-911 services and the migration to an IP-enabled
emergency network. Accordingly, the agencies have made changes in the
Final Rule to accommodate the commenters' concerns. If the State has
established by law or regulation an office or coordinator with the
authority to manage E-911 services, that office or coordinator must be
identified as the designated E-911 Coordinator. However, if the State
does not have such an office or coordinator established by law or
regulation, the Governor must designate a single officer or
governmental body to serve as the E-911 Coordinator. The agencies
believe that giving States these two options for designating an E-911
Coordinator is the most reasonable and efficient approach to address
these concerns. The agencies have made changes to the rule and
corresponding changes to the certifications in Appendix B and Appendix
C in response to these comments.
The AK NENA claims that Alaska's 911 Coordinator would be ``unable
to develop a capable ENHANCE 911 Grant application within the currently
stated timelines,'' and asks that the Governor be allowed to designate
another coordinator. AK NENA at 3. The agencies decline to adopt this
recommendation since allowing the Governor to appoint another officer
or entity for purposes of the E-911 grant program where one already
exists could lead to confusion and blurring of responsibilities,
resulting in a negative impact on established 911 programs within the
State.
Two commenters questioned the need for the Governor to make any
designation when States already have designated a single point of
contact for 911 under FCC procedures. PA EMA at 3-4; MO 911 Coordinator
at 4-5. These commenters suggested that the agencies use this single
point of contact instead. The agencies decline to adopt these
suggestions, since there is an independent obligation to ensure the
designation of an E-911 Coordinator for the specific purposes of this
program. However, nothing precludes a State from using the same single
officer or governmental body identified to the FCC to satisfy the
designation requirement for the E-911 grant program.
One anonymous commenter and the WA E911 Office requested that the
agencies publish a list of the E-911 Coordinators. WA E911 Office at 6.
These comments are outside the scope of the rulemaking. This
information will not be available until after all applications have
been reviewed. At that time, the agencies will consider publishing a
list of the E-911 Coordinators for the States that are awarded E-911
grants.
H. Application: Certification Concerning Diversion of Funds
The agencies received many comments regarding the requirement for
certification that neither the State nor any taxing jurisdiction in the
State has diverted designated E-911 charges. The ENHANCE 911 Act
mandates that ``[e]ach applicant * * * shall certify * * * that no
portion of any designated E-911 charges imposed by the State or other
taxing jurisdiction within which the applicant is located are being
obligated or expended for any purpose other than the purposes for which
such charges are designated or presented from 180 days preceding the
date of the application and continuing through the period in which
grant funds are available * * *.'' 47 U.S.C. 942(c). In the NPRM, the
agencies proposed certification language that is nearly identical to
this statutory language.
The WA E911 Office claims that this certification process
discourages
[[Page 26972]]
applications, especially if States must return all grant funds if false
or inaccurate information is provided in the certification. See WA E911
Office at 3-4. The WA E911 Office also commented that if the State does
not apply because it cannot make the certifications regarding the
diversion of funds, then local taxing jurisdictions and tribal
organizations will not be able to apply and receive E-911 grant funds.
Similarly, CSI-911 commented that if the Governor of the State has
diverted designated E-911 charges, then local 911 systems that are
using such designated charges for appropriate purposes will be unfairly
disqualified from receiving E-911 grant funds. CSI-911 at 1. Several
commenters thought that the State should only certify to the State's
use of designated E-911 charges and should not be required to certify
to local taxing jurisdictions' use of designated E-911 charges. See,
e.g., WA E911 Office at 3-4; TX CSEC at 2; NENA/NASNA at 7; AK NENA at
3. Some of these commenters suggested having each local taxing
jurisdiction certify individually to its own use of designated E-911
charges. The WA E911 Office suggested modifying the language to add
``to the best of my knowledge'' and allowing the State to provide a
description of the measures the State has taken to ensure that local
taxing jurisdictions are not diverting funds. WA E911 Office at 2.
Although the agencies understand these commenters' concerns, the
statutory language and certification requirement are clear and provide
no discretion. If the State, as applicant, is unable to certify that it
is not diverting designated E-911 charges, then neither the State nor
any eligible entity located in the State may receive E-911 grant funds.
The Act requires ``each applicant'' to certify that the State is not
diverting any designated E-911 charges imposed by the State for any
purpose other than the purposes for which such charges are designated
or presented. 47 U.S.C. 942(c)(2) (emphasis added). This statutory
certification is an affirmative requirement, and the agencies decline
to make any of the changes recommended by the commenters regarding a
State's diversion of E-911 funds.
The agencies, however, recognize the difficulty States may have in
certifying that no taxing jurisdictions in the State are diverting E-
911 charges and believe the Act provides discretion in one aspect. The
MO 911 Coordinator and CSI-911 were concerned that a single taxing
jurisdiction that independently diverts designated E-911 charges could
preclude the entire State from receiving grant funds. See MO 911
Coordinator at 1; CSI-911 at 1. After careful consideration, the
agencies have decided to amend the rule to allow States to qualify for
E-911 grant funds even if a taxing jurisdiction is diverting designated
E-911 charges, provided the State meets the following conditions: the
State, itself, is not diverting and will not divert designated E-911
charges during the relevant time period and the State does not
distribute E-911 grant funds to entities that are located in taxing
jurisdictions where designated E-911 charges are being diverted during
the relevant time period. For example, if a PSAP is located in a taxing
jurisdiction where designated E-911 charges are being diverted for
other purposes, the State may not distribute E-911 grant funds to that
PSAP. However, the State may distribute grant funds to PSAPs in other
taxing jurisdictions where designated E-911 charges are not being
diverted, but must ensure that these taxing jurisdictions that receive
E-911 grant funds do not divert designated E-911 charges while grant
funds remain available. In addition, the State may use E-911 grant
funds for a Statewide project or activity even though it may
incidentally benefit PSAPs in a diverting jurisdiction as well as PSAPs
in compliant jurisdictions. In any case, the State must certify that if
a taxing jurisdiction that directly receives grant funds does divert E-
911 charges, the State will ensure that those grant funds are returned
to the government. The agencies have amended the rule and certification
requirements to provide this flexibility. The amendments make no change
to the requirement that the State certify that during the relevant time
period, it has not diverted and will not divert designated E-911
charges imposed by the State for any other purpose, and that it will
return all E-911 grant funds if the State diverts designated E-911
charges for any other purpose.
The NENA/NASNA commented that States that divert 911 fees after
July 23, 2008 would not be in compliance with the NET 911 Act and asks
that these States be ineligible for E-911 grant funds. NENA/NASNA at 7-
8. The requirements of the NET 911 Act are separate from and unrelated
to the requirements of the ENHANCE 911 Act. There is no statutory
language in the NET 911 Act that would amend the explicit statutory
requirement in the ENHANCE 911 Act that applicants must certify that
during the 180 days before the date of the application and continuing
through the time period that grant funds are available, the State and
taxing jurisdictions did not divert designated E-911 charges for any
other purpose. Consequently, the agencies decline to change the Final
Rule in response to this comment.
I. Distribution of Grant Funds: Formula
The approach used in this formula is similar to formulae utilized
by the Department of Transportation programs, including the Federal
Transit Administration non-urbanized area grant formula and the
Federal-Aid Highway Act of 1944 grant formula. Both programs utilize
road infrastructure miles as a component of the formula for grant
distribution. In this case, the road mileage serves as a proxy for the
``electronic information highway'' since many telecommunication and
wireless carriers develop their systems along these routes. In the
arena of wireless E-911, Phase II compliance would significantly
improve emergency response along the highway system. The mileage aspect
of this formula also serves as weight for coverage of geographic areas,
including rural jurisdictions. The population aspects of the formula
provide a balance to ensure that the funds would go to those areas in
which the E-911 system would be improved to help as many Americans as
possible. The agencies believe the result was an equitable distribution
of the limited funds. The minimum was set based on the agencies'
understanding that the cost of bringing at least one PSAP into Phase II
compliance would be approximately $200,000-$250,000.
The comments about the proposed formula for distribution of E-911
grant funds were largely positive. However, one commenter, the AK NENA,
requested that additional grant allocations be available for Alaska and
other States that are still deploying basic 911 services as well as
those lacking Statewide E-911 and wireless 911 capabilities. See AK
NENA at 3. The AK NENA notes that States that have already achieved
Statewide deployment of E-911 and wireless 911 capabilities have access
to funding to support the deployment of Statewide emergency
communications. Although the agencies recognize that States have
varying levels of deployment, providing additional grant funds to those
States that have not established funding to support the deployment of
E-911 services unduly penalizes States that have taken steps to keep
pace with advancing technologies. While the agencies also recognize the
commenter's concerns about the greater needs of some communities, these
needs are appropriately addressed through State planning, and that the
formula distribution remains an equitable
[[Page 26973]]
approach. As a result, the agencies made no change to the formula.
J. Eligible Use of Funds
The agencies received numerous comments requesting clarification of
the eligible uses of grant funds. In the NPRM, the agencies specified
that grant funds could be used for the acquisition and deployment of
hardware and software that enables compliance with Phase II E-911
services or that enables migration to an IP-enabled emergency network,
or for training in the use of such hardware and software. The CA 911
Office asked whether grant funds could be used for all three
activities. CA 911 Office at 5. The agencies intend that grant funds
may be used for any or all of the three activities and have amended the
rule to clarify this point.
Several commenters asked whether grant funds could be used to pay
consultants. See, e.g., NENA/NASNA at 8-9; MO 911 Coordinator at 5. In
47 CFR 400.9(a), the agencies identified the requirements of 49 CFR
Part 18, including the cost principles referenced in 49 CFR 18.22, as
applicable to the grants awarded under this program. In accordance with
those cost principles, consultant costs are allowable provided that
certain conditions are met. Commenters are directed to the applicable
cost principles for detail. No change to the Final Rule is necessary in
response to these comments.
Several commenters asked whether Statewide projects are eligible
for funding under the E-911 grant program. See, e.g., CA 911 Office at
2; WA E911 Office at 5-6; PA EMA at 2. Statewide E-911 projects are
eligible, provided the State complies with the requirement that 90
percent of the funds be expended for the direct benefit of PSAPs, as
discussed in Section IV.D.2. Although the agencies believe that States
are in the best position to make specific deployment decisions, States
are encouraged to consider those that would benefit the largest number
of PSAPs when selecting Statewide projects. Some commenters
specifically asked whether a Statewide project, such as establishing an
emergency services IP network or ESInet, would be an eligible use.
NENA/NASNA at 5; MO 911 Coordinator at 2. According to the NENA,
ESInets ``are engineered, managed networks, and are intended to be
multi-purpose, supporting extended Public Safety communications
services, in addition to 9-1-1. ESInets use broadband, packet switched
technology capable of carrying voice plus large amounts of varying
types of data using Internet Protocols and standards.'' See NENA, ``A
Policy Maker Blueprint for Transitioning to the Next Generation 9-1-1
System'' (September 2008). Based on this description, the agencies
believe that establishing an ESInet would help enable PSAPs to migrate
to an IP-enabled emergency network, and therefore, would be an eligible
use.
The PA EMA requested a modification to allow grant applications to
include a ``plan to plan'' and to allow grant funds to be used for the
development of a more thorough State 911 plan. PA EMA at 4. The PA EMA
noted that 60 days were insufficient to develop such a Statewide 911
plan in the manner envisioned by the NASNA Model State 9-1-1 Plan, the
Act or the NPRM. As explained in Section IV.D. above, the State 911
Plan required under this grant program is not the comprehensive plan
patterned after the Model Plan. The agencies believe that 60 days is
adequate to establish the significantly less detailed coordination plan
anticipated by the ENHANCE 911 Act. Moreover, the Act requires an
applicant to certify that it has already established a plan for the
implementation and coordination of E-911 services as a condition to
apply for an E-911 grant. 47 U.S.C. 942(b)(3)(A)(iii). Allowing the E-
911 grant funds to be used for plan development would be inconsistent
with this statutory prerequisite. Consequently, the agencies decline to
amend the rule to allow applicants to include a ``plan to plan'' and to
use grant funds to develop a plan.
The NE PSC requested that eligible uses be expanded to include the
costs incurred for rural addressing, purchase of street signs and the
development of a master street address guide. NE PSC at 2. The agencies
believe that such uses are only marginally related to the
implementation and operation of E-911 services, and do not meet the
purposes of the grant program. Consequently, the agencies decline to
adopt this recommendation.
V. Statutory Basis for This Action
The Final Rule implements the grant program created by section 104
of the ENHANCE 911 Act of 2004, as amended (Pub. L. 108-494, codified
at 47 U.S.C. 942), which requires the Administrator and the Assistant
Secretary to issue joint implementing regulations prescribing the
criteria for grant awards. Section 3011 of the Deficit Reduction Act of
2005 (Pub. L. 109-171, as amended by section 2301 of Pub. L. 110-53 and
section 539 of Pub. L. 110-161) authorized funding for the ENHANCE 911
Act.
VI. Regulatory Analyses and Notices
A. Executive Order 12866 and Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review,'' provides
for making determinations whether a regulatory action is
``significant'' and therefore subject to OMB review and to the
requirements of the Executive Order. 58 FR 51735, Oct. 4, 1993. The
Order defines a ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This rule was not reviewed by the Office of Management and Budget under
Executive Order 12866. The rule is not considered to be significant
within the meaning of Executive Order 12866 or the agencies' regulatory
policies and procedures.
The rule does not affect amounts over the significance threshold of
$100 million each year. The rule sets forth application procedures and
showings to be made to be eligible for a grant. The funds to be
distributed under the rule total $43.5 million, well below the annual
threshold of $100 million. The rule does not adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or Tribal governments or communities. The rule does not create
an inconsistency or interfere with any actions taken or planned by
other agencies. The rule does not materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof. Finally, the rule does not raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
In consideration of the foregoing, the agencies have determined
that this rule is not significant. The impacts of the
[[Page 26974]]
rule are minimal and a full regulatory evaluation is not required.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, whenever an agency
publishes a notice of rulemaking for any proposed or Final Rule, it
must prepare and make available for public comment a regulatory
flexibility analysis that describes the effect of the rule on small
entities (i.e., small businesses, small organizations, and small
governmental jurisdictions). 5 U.S.C. 601 et seq. The Small Business
Administration's regulations at 13 CFR part 121 define a small
business, in part, as a business entity ``which operates primarily
within the United States.'' 13 CFR 121.105(a). No regulatory
flexibility analysis is required if the head of an agency certifies the
rulemaking action would not have a significant economic impact on a
substantial number of small entities. The Small Business Regulatory
Enforcement Fairness Act of 1996 amended the Regulatory Flexibility Act
to require Federal agencies to provide a statement of the factual basis
for certifying that an action would not have a significant economic
impact on a substantial number of small entities.
NHTSA and NTIA have considered the effects of this rule under the
Regulatory Flexibility Act. States are the recipients of funds awarded
under the E-911 grant program and they are not considered to be small
entities under the Regulatory Flexibility Act. Therefore, the agencies
certify that this rule would not have a significant economic impact on
a substantial number of small entities.
C. Executive Order 13132 (Federalism)
Executive Order 13132, ``Federalism,'' requires the agencies to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' 64 FR 43255, August 10, 1999.
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, an agency may not issue a regulation with
Federalism implications that imposes substantial direct compliance
costs and that is not required by statute unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by State and local governments or the agency consults with
State and local governments in the process of developing the proposed
regulation. An agency also may not issue a regulation with Federalism
implications that preempts a State law without consulting with State
and local officials.
The agencies have analyzed this rule in accordance with the
principles and criteria set forth in Executive Order 13132, and have
determined that this rule does not have sufficient federalism
implications to warrant consultation with State and local officials or
the preparation of a federalism summary impact statement. Moreover, the
Final Rule will not preempt any State law or regulation or affect the
ability of States to discharge traditional State government functions.
D. Executive Order 12988 (Civil Justice Reform)
Pursuant to Executive Order 12988, ``Civil Justice Reform,'' the
agencies have considered whether this rulemaking would have any
retroactive effect. 61 FR 4729, Feb. 7, 1996. This rule does not have
any retroactive effect. This rule meets applicable standards in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil