[Federal Register Volume 83, Number 150 (Friday, August 3, 2018)]
[Rules and Regulations]
[Pages 38051-38069]
[FR Doc No: 2018-16567]

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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

47 CFR Part 400

[Docket No. 170420407-8048-02]
RIN 0660-AA33; RIN 2127-AL86

911 Grant Program

AGENCY: National Telecommunications and Information Administration
(NTIA), Commerce (DOC); and National Highway Traffic Safety
Administration (NHTSA), Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This action revises the implementing regulations for the 911
Grant Program, as a result of the enactment of the Next Generation 911
(NG911) Advancement Act of 2012. The 911 Grant Program provides grants
to improve 911 services, E-911 services, and NG911 services and
applications.

DATES: This final rule becomes effective on August 3, 2018.

FOR FURTHER INFORMATION CONTACT:
    For program issues: Daniel Phythyon, Telecommunications Policy
Specialist, Office of Public Safety Communications, National
Telecommunications and Information Administration, U.S. Department of
Commerce, 1401 Constitution Avenue NW, Room 4076, Washington, DC 20230;
telephone:<PHONE_NUMBER>; email: [email protected]; or
    Laurie Flaherty, Coordinator, National 911 Program, Office of
Emergency Medical Services, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, NPD-400, Washington, DC
20590; telephone:<PHONE_NUMBER>; email: [email protected].
    For legal issues: Michael Vasquez, Attorney-Advisor, Office of the
Chief Counsel, National Telecommunications and Information
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Room 4713, Washington, DC 20230; telephone:<PHONE_NUMBER>; email:
[email protected]; or
    Megan Brown, Attorney-Advisor, Office of the Chief Counsel,
National Highway Traffic Safety Administration, 1200 New Jersey Avenue
SE, NCC-300, Washington, DC 20590; telephone:<PHONE_NUMBER>; email:
[email protected].
    For media inquiries: Stephen F. Yusko, Public Affairs Specialist,
Office of Public Affairs, National Telecommunications and Information
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Room 4897, Washington, DC 20230; telephone:<PHONE_NUMBER>; email:
[email protected]; or
    Karen Aldana, Public Affairs Specialist, Office of Communications
and Consumer Information, National Highway Traffic Safety
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Room W52-306, Washington, DC 20590; telephone: (202) 366-
3280; email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Statutory Requirements
III. Comments
    A. General Comments

    B. Definitions (400.2)
    C. Who May Apply (400.3)
    1. Tribal Organizations
    2. Local Applicants
    D. Application Requirements (400.4)
    1. One Versus Two Step Application Process
    2. Other Application Issues
    E. Approval and Award (400.5)
    F. Distribution of Grant Funds (400.6)
    1. Formula
    2. Tribal Organizations
    G. Eligible Uses for Grant Funds (400.7)
    1. NG911 Services
    2. Training
    3. Planning and Administration
    4. Operation of 911 System
    H. Continuing Compliance (400.8)
    I. Waiver Authority (400.11)
IV. Regulatory Analyses and Notices

I. Background

    In 2009, NTIA and NHTSA issued regulations implementing the E-911
Grant Program enacted in 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) (74 FR 26965, June 5, 2009). Accordingly, in 2009, NTIA
and NHTSA made more than $40 million in grants available to 30 States
and Territories to help 911 call centers nationwide upgrade equipment
and operations through the E-911 Grant Program.
    In 2012, the NG911 Advancement Act of 2012 (Middle Class Tax Relief
and Job Creation Act of 2012, Public Law 112-96, Title VI, Subtitle E
(codified at 47 U.S.C. 942)) enacted changes to the program. The NG911
Advancement Act provides new funding for grants to be used for the
implementation and operation of 911 services, E-911 services, migration
to an IP-enabled emergency network, and adoption and operation of NG911
services and applications; the implementation of IP-enabled emergency
services and applications enabled by Next Generation 911 services,
including the establishment of IP backbone networks and the application
layer software infrastructure needed to interconnect the multitude of
emergency response organizations; and training public safety personnel,
including call-takers, first responders, and other individuals and
organizations who are part of the emergency response chain in 911
services. In 2016, about $115 million from spectrum auction proceeds
were deposited into the Public Safety Trust Fund and made available to
NTIA and NHTSA for the 911 Grant Program.\1\ On September 21, 2017, the
Agencies published a Notice of Proposed Rulemaking (NPRM) seeking
public comment on proposed regulations for the 911 Grant Program.\2\
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    \1\ The Public Safety Trust Fund (TAS 13-12/22-8233) is an
account established in the Treasury and managed by NTIA. From this
account, NTIA makes available funds for a number of public safety
related programs, including the 911 Grant Program. See 47 U.S.C.
1457(b)(6).
    \2\ See NTIA and NHTSA, 911 Grant Program, Notice of Proposed
Rulemaking, 82 FR 44131 (Sept. 21, 2017), available at https://www.gpo.gov/fdsys/pkg/FR-2017-09-21/pdf/2017-19944.pdf (NPRM).
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    For more than 40 years, local and state 911 call centers, also
known as Public Safety Answering Points (PSAPs), have served the public
in emergencies. PSAPs receive incoming 911 calls from the public and
dispatch the appropriate emergency responders, such as police, fire,
and emergency medical services, to the scene of emergencies. The
purpose of the 911 Grant Program is to provide federal funding to
support the transition of PSAPs and their interconnecting 911 network
and core services, to facilitate migration to an IP-enabled emergency
network, and adoption and operation of NG911 services and applications.
    There are approximately 6,000 PSAPs nationwide that are responsible
for answering and processing 911 calls requiring a response from
police, fire, and emergency medical services agencies.\3\ PSAPs
collectively handle more than an estimated 240 million 911 calls each
year.\4\ About 70 percent of all 911 calls annually are placed from
wireless phones.\5\ Besides the public, PSAPs communicate with third-
party call centers, other PSAPs, emergency service providers (e.g.,
dispatch agencies, first responders, and other public safety entities),
and State emergency operations centers.\6\ Most PSAPs rely on decades-
old, narrowband, circuit-switched networks capable of carrying only
voice calls and very limited amounts of data.\7\ Advances in consumer
technology offering capabilities such as text messaging and video
communications have quickly outpaced those of PSAPs, which often cannot
support callers who wish to send text messages, images, video, and
other communications that utilize large amounts of data (e.g.,
telematics, sensor information).\8\
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    \3\ Federal Communications Commission (FCC), Final Report of the
Task Force on Optimal PSAP Architecture (TFOPA) at 15 (Jan. 29,
2016), available at https://transition.fcc.gov/pshs/911/TFOPA/TFOPA_FINALReport_012916.pdf (TFOPA Final Report). The National
Emergency Number Association (NENA) estimates that there are 5,874
primary and secondary PSAPs as of January 2017. NENA 9-1-1
Statistics, available at http://www.nena.org/?page=911Statistics.
    \4\ TFOPA Final Report at 15. See also, NENA 9-1-1 Statistics.
    \5\ Id.
    \6\ TFOPA Final Report at 15.
    \7\ Id.
    \8\ Id.
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    While there are still an estimated 50 counties that are using
``Basic'' 911 infrastructure, the majority of State and local
jurisdictions have completed the process of updating their 911
network's infrastructure since the ENHANCE 911 Act was passed in
2004.\9\ As of January 2017, data collected by the National Emergency
Number Association (NENA) show that 98.6 percent of PSAPs are capable
of receiving Phase II E-911 \10\ calls, providing E-911 service to 98.6
percent of the U.S. population and 96.5 percent of our country's
counties.\11\ With the transition to E-911 essentially completed, State
and local jurisdictions are now focused on migrating to NG911
infrastructure.
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    \9\ NENA 9-1-1 Statistics.
    \10\ See 47 CFR 20.18(e), (h) (defining Phase II enhanced 911
service).
    \11\ NENA 9-1-1 Statistics.
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    NG911 is an initiative to modernize today's 911 services so that
citizens, first responders, and 911 call-takers can use IP-based,
broadband-enabled technologies to coordinate emergency responses.\12\
Using multiple formats, such as voice, text messages, photos, and
video, NG911 enables 911 calls to contain real-time caller location and
emergency information, improve coordination among the nation's PSAPs,
dynamically re-route calls based on location and PSAP congestion, and
connect first responders to key health and government services in the
event of an emergency.\13\
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    \12\ National 911 Program, Next Generation 911 for Leaders in
Law Enforcement Educational Supplement at 3 (2013), available at
https://www.911.gov/pdf/National_911_Program_NG911_Publication_Leaders_Law_Enforcement_2013.pdf.
    \13\ Id. at 4-5.
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    Data collected by the National 911 Profile Database in 2016 show
that 20 of the 46 States submitting data have adopted a statewide NG911
plan, 17 of 46 States are installing and testing basic components of
the NG911 infrastructure, 10 of 45 States have 100 percent of their
PSAPs connected to an Emergency Services IP Network, and 9 of 45 States
are using NG911 infrastructure to receive and process 911 voice
calls.\14\ These data suggest that most State and local jurisdictions
have already invested in and completed implementation of both basic 911
services and E-911 services and are focused on migration to NG911. The
911 Grant Program now seeks to provide financial support for investment
in the forward-looking technology of NG911 as

contemplated by the NG911 Advancement Act.
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    \14\ National 911 Program, 2016 National 911 Progress Report at
3, 85, 89 (Dec. 2016), available at https://www.911.gov/pdf/National_911_Program_Profile_Database_Progress_Report_2016.pdf.
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II. Statutory Requirements

    The Agencies' action implements modifications to the E-911 Grant
Program as required by the NG911 Advancement Act of 2012 (Pub. L. 112-
96, Title VI, Subtitle E, codified at 47 U.S.C. 942). The NG911
Advancement Act modifies the 911 Grant Program to incorporate NG911
services while preserving the basic structure of the program, which
provided matching grants to eligible State and local governments and
Tribal Organizations for the implementation and operation of Phase II
services, E-911 services, or migration to an IP-enabled emergency
network.
    The NG911 Advancement Act, however, broadens the eligible uses of
funds from the 911 Grant Program to include: Adoption and operation of
NG911 services and applications; the implementation of IP-enabled
emergency services and applications enabled by NG911 services,
including the establishment of IP backbone networks and the application
layer software infrastructure needed to interconnect the multitude of
emergency response organizations; and training public safety personnel,
including call-takers, first responders, and other individuals and
organizations who are part of the emergency response chain in 911
services. The NG911 Advancement Act also increases the maximum Federal
share of the cost of a project eligible for a grant from 50 percent to
60 percent.
    States or other taxing jurisdictions that have diverted fees
collected for 911 services remain ineligible for grants under the
program and a State or jurisdiction that diverts fees during the term
of the grant must repay all grant funds awarded. The NG911 Advancement
Act further clarifies that prohibited diversion of 911 fees includes
elimination of fees as well as redesignation of fees for purposes other
than implementation or operation of 911 services, E-911 services, or
NG911 services during the term of the grant.

III. Comments

    The Agencies received submissions from 21 commenters in response to
the NPRM. Commenters included the following five State and local
agencies: The City of Chicago Office of Emergency Management and
Communications (Chicago OEMC); the Colorado Public Utilities Commission
(CO PUC); the District of Columbia Office of Unified Communications (DC
OUC); the Missouri Department of Public Safety (MO DPS); and the Texas
Commission on State Emergency Communications (TX CSEC). Four
associations and consortiums provided comments: the Association of
Public-Safety Communications Officials-- International, Inc. (APCO);
the National Association of State 911 Administrators (NASNA); the
National Emergency Number Association, Inc. (NENA); and the National
States Geographic Information Council (NSGIC). There were two corporate
commenters: Carbyne Public Safety Systems (Carbyne) and Motorola
Solutions, Inc. (Motorola). Ten individual commenters also provided
comments: Annabel Cortez; Daniel Ramirez; John Sage; Jonathan Brock;
Lara Wood; Lisa Ondatje; S. Bennett; and three anonymous commenters. Of
these comments, three were out of the scope of this rulemaking.\15\
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    \15\ An anonymous commenter commented broadly on EPA grants.
Jonathan Brock and the Missouri Department of Public Safety both
commented to encourage inter-agency sharing of dark fiber resources
at the State level. However, the 911 Grant Program is an
implementation grant and does not opine on the technologies used by
grantees to implement NG911.
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A. General Comments

    NASNA expressed general agreement with the Agencies' proposal to
retain the E911 Grant Program regulations as the basic framework for
the 911 Grant Program.\16\ We address NASNA's specific recommendations
in the sections below.
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    \16\ NASNA at 1, https://www.regulations.gov/document?D=NTIA-2017-0002-0016.
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    APCO recommended consistent use of ``the National 911 program
office'' for purposes of administering the grant program in order to
provide simplicity and avoid confusion.\17\ The regulatory text
contains references to the ICO, the Administrator and Assistant
Secretary (jointly), the Agencies, and to NHTSA. After reviewing these
references, the Agencies have determined that, with the exception of
one reference, these designations are appropriate to the roles
fulfilled in each case. As a result, the Agencies have changed the
reference to ``Agencies'' in 47 CFR 400.6(a)(2) to ``ICO.''
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    \17\ APCO at 5, https://www.regulations.gov/document?D=NTIA-2017-0002-0010.
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    Three commenters, Lisa Ondatje, Annabel Cortez, and S. Bennett,
expressed general support for the importance of implementing NG911
technologies.\18\ Annabel Cortez further stressed that ``[s]tatistics
of 911 services are key to accurately measuring current status and
implementation across the United States.'' \19\
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    \18\ See generally, Lisa Ondatje, https://www.regulations.gov/document?D=NTIA-2017-0002-0007; Annabel Cortez, https://www.regulations.gov/document?D=NHTSA-2017-0088-0004; S. Bennett,
https://www.regulations.gov/document?D=NTIA-2017-0002-0003.
    \19\ Cortez.
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    Four commenters discussed interoperability as a primary goal of the
911 Grant Program.\20\ APCO commented that the standards listed in the
SAFECOM Guidance are ``very broad, in some cases incomplete, and
unlikely to ensure interoperability, at least without costly after-the-
fact integrations.'' \21\ APCO recommended that the Agencies add a
definition for ``interoperable'' and explicitly require that
applicants' State 911 plans commit to ensuring that solutions meet
clear interoperability requirements.\22\ Specifically, APCO suggested
that the Agencies replace the word ``interconnect'' in 47 CFR
400.4(a)(1)(i)(B) with the term ``interoperable.'' \23\ The proposed
regulatory language in Section 400.4(a)(1)(i)(B) is a direct quote from
the statute.\24\ While the Agencies agree that interoperability is an
important goal in the implementation of an NG911 system, the Agencies
believe that the statutory term ``interconnect'' sufficiently covers
the goal of interoperability, and make no change to the regulation in
response to this comment.
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    \20\ See APCO at 1-3; Carbyne, https://www.regulations.gov/document?D=NHTSA-2017-0088-0008; NENA at 2 (late-filed), https://www.regulations.gov/document?D=NTIA-2017-0002-0017; NSGIC at 1,
https://www.regulations.gov/document?D=NTIA-2017-0002-0009.
    \21\ APCO at 2.
    \22\ Id. at 3.
    \23\ Id.
    \24\ See 47 U.S.C. 942(b)(1)(B).
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B. Definitions (400.2)

    The DC OUC suggested that the agencies add a definition for
``District'' or ``territories.'' \25\ The statutory definition for
``State,'' which the agencies have incorporated into the regulation in
its entirety, includes the District of Columbia and all U.S.
territories,\26\ therefore the agencies decline to make this change.
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    \25\ DC OUC, https://www.regulations.gov/document?D=NTIA-2017-0002-0005.
    \26\ See 47 U.S.C. 942(e)(8).
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    Two commenters requested changes to the definition for ``Next
Generation 911 services.'' NASNA noted that some of the capabilities
listed in the definition for Next Generation 911 services do not
currently exist, and suggested that the definition be modified to
clarify this.\27\ APCO requested clarification that NG911 services
encompass the ``operational

goal whereby information sent to PSAPs can be received, processed, and
acted upon.'' \28\ The agencies decline to make the requested changes
because the regulatory definition incorporates the statutory
definition.\29\ However, in the eligible uses section of the NPRM, the
agencies specifically stated that grant recipients may choose to
purchase or contract for services that provide the ``hardware and
software that perform the necessary functions enabling NG911 calls to
be received, processed and dispatched.'' \30\ We reaffirm that here.
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    \27\ NASNA at 1.
    \28\ APCO at 2.
    \29\ See 47 U.S.C. 942(e)(5).
    \30\ NPRM, 82 FR 44131, 44135.
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C. Who May Apply (400.3)

1. Tribal Organizations
    Daniel Ramirez, NASNA, NENA, and an anonymous commenter all
expressed general support for the Agencies' proposal to allow Tribal
Organizations to apply directly for 911 Grant Program funding, noting
that the prior regulations only allowed Tribal Organizations to receive
grant funding through States and thus did not adequately support
tribes.\31\ The anonymous commenter further noted that Tribal
Organizations may have difficulty meeting program requirements, but did
not specify which requirements.
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    \31\ Daniel Ramirez, https://www.regulations.gov/document?D=NHTSA-2017-0088-0006; NASNA at 1-2; NENA at 1; Anonymous
Comment One, https://www.regulations.gov/document?D=NHTSA-2017-0088-0002.
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    The CO PUC cautioned the Agencies not to create a ``one-size fits
all'' approach for Tribal Organization applications and participation
because Tribal Organizations vary widely in ``size, resources, and the
current sophistication of their 9-1-1 systems.'' \32\ The CO PUC
further noted that the ability of Tribal Organizations to meet the non-
diversion, 911 Coordinator, or match requirements would likely vary by
Tribal Organization.\33\ The Agencies agree that the needs and
capacities of Tribal Organizations may vary widely. The Agencies
believe that providing Tribal Organizations the option to apply for
grant funding either directly or through States accommodates this
diversity.
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    \32\ CO PUC at 2, https://www.regulations.gov/document?D=NTIA-2017-0002-0012.
    \33\ Id. at 1-2.
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    The CO PUC cautioned that if Tribal Organizations are allowed to
obtain grant funding both directly and through States, it could lead to
waste or duplication of efforts.\34\ The CO PUC recommended that the
Agencies require Tribal Organizations to determine whether to apply
individually or to be included in a State's application.\35\ Similarly,
NASNA recommended that the Agencies require any applicant Tribal
Organizations to inform the relevant State 911 Coordinator of their
application in order to avoid duplication of efforts.\36\ As in the
prior iteration of the program, each State applicant must coordinate
its application with local governments, Tribal Organizations, and PSAPs
within the State.\37\ In the course of this coordination--and prior to
including a Tribal Organization in its application project budget--the
State should determine whether a Tribal Organization within its
jurisdiction intends to apply directly for grant funding. An applicant
Tribal Organization must certify non-diversion by the State(s) in which
it is located; to do so, a Tribal Organization should contact the
State(s) in which it is located.\38\ The Agencies believe that the
existing coordination inherent in the application process ensures that
a State will not unknowingly account for a Tribal Organization in its
grant application if that Tribal Organization has applied
independently, and therefore, we do not believe any changes to the
regulation are required.
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    \34\ Id. at 1.
    \35\ Id.
    \36\ NASNA at 1-2.
    \37\ 47 CFR 400.4(a)(1)(iii)(A).
    \38\ Id. at Sec.  400.4(b)(5).
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    The Agencies specifically asked commenters whether tribal PSAPs
collect 911 surcharge fees and/or receive State-provided 911 surcharge
funds. The CO PUC responded that 911 surcharges are collected by local
911 governing bodies in Colorado and that one tribe, the Southern Ute
Tribe, receives funding from the Emergency Telephone Service Authority
of La Plata County. However, the CO PUC stated that it does not have
reason to believe that the Southern Ute Tribe will have trouble
certifying that it does not divert 911 surcharge fees.\39\
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    \39\ CO PUC at 2.
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2. Local Applicants
    The Chicago OEMC suggested that cities with large 911 systems be
allowed to apply directly for grants due to ``the expansive scope of
their operations as well as their specialized requirements.'' \40\
While the Agencies understand this concern, the Agencies continue to
believe that limiting the applicant pool to States and Tribal
Organizations is necessary in order to minimize administrative costs
and to streamline the grant process. However, as in the prior iteration
of the program, each applicant State is required to coordinate its
application with local governments and PSAPs within the State and to
ensure that 90 percent of the grant funds be used for the direct
benefit of PSAPs.
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    \40\ Chicago OEMC, https://www.regulations.gov/document?D=NTIA-2017-0002-0013.
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D. Application Requirements (400.4)

1. One- Versus Two-Step Application Process
    The Agencies sought comment on whether to retain the one-step
application process from the prior E911 Grant Program, or whether to
use a proposed two-step application process. Two commenters, Motorola
and the MO DPS, requested that the Agencies retain the one-step
application process from the prior E911 Grant Program.\41\ Motorola
explained that the one-step application would expedite the grant
process and avoid confusion amongst applicants, and argued that the
proposed two-step application process is burdensome by requiring 911
authorities to meet two deadlines.\42\ Four commenters--the CO PUC,
NASNA, the TX CSEC, and an anonymous commenter--supported a two-step
application process as proposed by the Agencies.\43\ Based on the
comments received, including the more detailed comments described
below, the Agencies have determined that a two-step application will
provide applicants with the most stable initial funding levels upon
which they can prepare project budgets and will ensure the most
efficient application process.
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    \41\ See Motorola at 4-5, https://www.regulations.gov/document?D=NTIA-2017-0002-0015; MO DPS, https://www.regulations.gov/document?D=NTIA-2017-0002-0014.
    \42\ See Motorola at 4-5.
    \43\ See CO PUC at 3; NASNA at 2; TX CSEC at 2, https://www.regulations.gov/document?D=NTIA-2017-0002-0011; Anonymous
Comment One.
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    NASNA expressed support for a two-step process, while noting
several issues that may still arise under that process.\44\ NASNA noted
that, for example, applicants may make the initial certifications, but
later find they are unable to meet the match requirement or certify
non-diversion of funds.\45\ Nonetheless, NASNA stated that ``there is
practical value to states in knowing exactly how much funding they can
apply for.'' \46\
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    \44\ NASNA at 2.
    \45\ Id.
    \46\ Id.
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    The CO PUC noted that the two-step application process would be
more efficient because it would not require applicants to submit a
supplemental project budget after submitting their

original applications.\47\ The Agencies do note, however, that although
a supplemental budget is no longer required, applicants are still
advised to submit a supplemental budget in the second step of the
application process for use if additional funds become available at any
point in the grant program.
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    \47\ CO PUC at 3.
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    The TX CSEC requested confirmation on some aspects of the two-step
application process.\48\ The TX CSEC asked whether an applicant that
does not submit the certifications by the initial application deadline
would be precluded from further participation in the grant program.\49\
It further asked whether, in the event a State did not submit the
initial certifications, ``the portion of 911 grant funds that would
otherwise be allocated to it by formula would be included in the
preliminary funding allocations for certifying Applicants?'' \50\ In
order to participate in the grant program, an applicant must submit the
initial certifications by the initial application deadline. Failure to
do so will remove that State from the funding pool; the preliminary
funding levels will be calculated only for those applicants that
submitted initial certifications. Finally, TX CSEC sought confirmation
that the option to submit a supplemental project budget is meant to
``to account for the possibility that, notwithstanding having submitted
an acceptable initial certification, an Applicant may (a) ultimately
not submit an application, (b) may submit an application with a budget
less than its preliminary funding amount; (c) not be able to use all of
its preliminary funding during the grant period, or (d) have to return
a portion of grant funds as a result of being unable to provide a
complete annual certification regarding or a previous certification was
deemed inaccurate.'' \51\ The Agencies confirm this statement.
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    \48\ TX CSEC at 2-3.
    \49\ Id.
    \50\ Id. at 2.
    \51\ Id. at 2-3.
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    The anonymous commenter recommended that the two-step process
``should be implemented and run for a trial period,'' and that the
Agencies make modifications or return to the one-step process if the
trial does not work.\52\ The funds made available from the Public
Safety Trust Fund for the 911 Grant Program are available for
obligation only until September 30, 2022. The Agencies do not believe
that there is sufficient time before that date to undertake a second
rulemaking to change the application process.
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    \52\ See Anonymous Comment One.
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2. Other Application Issues
    The DC OUC requested that the required State 911 Plan be ``defined
well,'' noting that although DC has an NG911 Plan, it does not have a
State 911 Plan because DC only has a single PSAP.\53\ Without specific
concerns from commenters, the Agencies do not believe it is necessary
to clarify those requirements further because the application
requirements laid out in Section 400.4 provide a detailed description
of the required components of a State 911 Plan. The Agencies note that
in instances like that of DC where there is a single PSAP in an
applicant's jurisdiction, it is not necessary to include multiple PSAPs
in the State 911 Plan as described in the regulation.
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    \53\ See DC OUC.
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    The MO DPS stated that ``the requirement to give priority to
communities without 911 from the current E-911 Grant Program should not
be eliminated.'' \54\ The ENHANCE 911 Act, as amended by Public Law
110-53,\55\ directed the Agencies to allow a portion of the E-911 grant
funds to be used to give this priority to PSAPs that could not receive
911 calls. The NG911 Advancement Act, however, eliminated that
requirement and the Agencies do the same in this regulation.
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    \54\ MO DPS.
    \55\ Title XXIII, section 2303, Aug. 3, 2007.
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    The TX CSEC commented that the certification requirement
``obligates each designated State 911 Coordinator (the Coordinator) to
certify as to the non-diversion of designated 911 charges for all grant
recipients,'' including ``taxing jurisdictions and grant recipients
over whom the Coordinator may have no direct authority.'' \56\ TX CSEC
proposed modifications to Section 400.4(a)(5) and Appendices A and C in
order ``to allow the State 9-1-1 Coordinator to receive and submit
certifications directly from each taxing jurisdiction that will be a
grant recipient,'' so that the 911 Coordinator could ``pass-through the
certifications of [these] taxing jurisdictions.'' \57\ Applicants,
through their 911 Coordinator, must certify that neither the State (or
Tribal Organization) nor any taxing jurisdiction that directly receives
grant funds has diverted or will divert designated 911 charges. The
Agencies understand that applicants may not have authority over every
taxing jurisdiction which receives grant funds. However, the statutory
language and certification requirements are clear that each applicant
must sign the certification. Applicants may, if they wish, solicit
certifications from grant subrecipients as an internal matter, but the
certification submitted to the Agencies must be signed by the 911
Coordinator. The Agencies, therefore, make no modifications to the
regulatory language.
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    \56\ TX CSEC at 3.
    \57\ Id. at 3-4.
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    APCO recommended that the Agencies allow applicants ``that have
already expended non-federal funds toward NG911 deployments to count
such expenses as in-kind contributions'' to satisfy the grant program's
40 percent non-Federal match requirement.\58\ To allow applicants to
match grant funds based on previous investments in 911 would be
contrary to the statutory intent. The NG911 Advancement Act mandates a
60 percent Federal share at the project level.\59\ The Agencies refer
all applicants to 2 CFR 200.306 for more details on what is allowable
to meet the match requirement.
---------------------------------------------------------------------------

    \58\ APCO at 4.
    \59\ 47 U.S.C. 942(b)(2).
---------------------------------------------------------------------------

E. Approval and Award (400.5)

    Lara Wood commented that 47 CFR 400.5(c) states that the agencies
will announce awards by September 30, 2009, and suggested that the date
should read September 30, 2019.\60\ September 30, 2009, is the date
that appeared in the previously published E-911 Grant Program
regulations. The new regulatory language does not include a specific
award announcement date. Instead, the Agencies intend to provide the
expected award date in the Notice of Funding Opportunity.
---------------------------------------------------------------------------

    \60\ See Lara Wood, https://www.regulations.gov/document?D=NTIA-2017-0002-0004.
---------------------------------------------------------------------------

F. Distribution of Grant Funds (400.6)

1. Formula
    The Agencies requested comment on whether the existing grant
distribution formula factors--population and public road mileage--
remain appropriate, and if not, what factors they should consider. The
Agencies sought specific comment on how to account for remote and rural
areas.
    APCO commented that the Agencies' proposal to apportion ``available
grant funds across all of the states and tribal organizations, to serve
911, Enhanced 911 (E911), and NG911 purposes'' would lead to only
marginal enhancements in any given area.\61\ Instead, APCO suggested
that the Agencies give grants for ``model NG911

deployments for a few areas.'' \62\ While the Agencies understand
APCO's concerns, the Agencies continue to believe that a formula-based
distribution of grant funds to all eligible States is necessary to
assist in the implementation of NG911 nationwide, not just in specific
locations. The Agencies have set a minimum grant amount in order to
ensure that each eligible State and Territory receives a more than de
minimis amount of grant funds.
---------------------------------------------------------------------------

    \61\ APCO at 1.
    \62\ Id.
---------------------------------------------------------------------------

    Several commenters--identified in more detail below--recommended
additional or substitute factors to use in the funding allocation,
including call volume, land area, tourism rates, terrain, cost of
needed technological advancements, usage data of call centers, wealth
of state/region, access to hospitals/emergency centers, and type of
threat experienced by location.
    The MO DPS expressed support for retaining the current formula
factors: Population and public road mileage.\63\ An anonymous commenter
expressed support for using population and public road mileage as
factors for distribution of funds, and suggested the following
additional potential factors: ``Data regarding the usage of call
centers in those areas, wealth of the state or region and their access
to hospitals and emergency centers.'' \64\ However, the anonymous
commenter did not provide any explanation for those factors. NASNA
stated that the currently proposed formula may not adequately fund
rural areas, but cautioned against choosing a factor that advantages
rural states with a large land mass over smaller rural states.\65\
---------------------------------------------------------------------------

    \63\ See MO DPS.
    \64\ Anonymous Comment One.
    \65\ NASNA at 2.
---------------------------------------------------------------------------

    The DC OUC and the Chicago OEMC both suggested using call volume as
a factor in the funding allocation in order to account for locations
that have high tourist and commuter populations.\66\ Funds for the 911
Grant Program are distributed at the State level, rather than at the
PSAP level. The Agencies are concerned that call volume, which might
provide useful localized data, would be less useful once aggregated
across a State with a mix of urban and rural areas.
---------------------------------------------------------------------------

    \66\ See DC OUC, Chicago OEMC.
---------------------------------------------------------------------------

    Similarly, the CO PUC commented that it does not support the
currently proposed formula because it is unfair to rural, mountainous
states such as Colorado that have large tourist populations.\67\ The CO
PUC agreed that cell towers retain an important role in the
transmission of 911 calls to PSAPs, but disagreed with the Agencies'
use of road miles as a proxy for cell towers because cell towers in
Colorado are often built on mountain peaks far from roads.\68\ The CO
PUC recommended the following formula: 40 percent population, 40
percent land area, and 20 percent tourism rates.\69\ The CO PUC further
recommended that the Agencies consider including terrain as a factor in
distributing grant funding.\70\ The Agencies acknowledge the difficulty
of accounting for tourism and terrain differences between states.
However, the commenter has not identified a reliable source for State-
level tourism rates, nor provided any recommendation for translating
terrain into a formula variable.
---------------------------------------------------------------------------

    \67\ CO PUC at 4.
    \68\ Id.
    \69\ CO PUC at 5-6.
    \70\ Id.
---------------------------------------------------------------------------

    An anonymous commenter supported better accounting for rural areas
and advocated a weighted tiered system with individualized factors--
including weighted scales to account for the types of threats to safety
as well as the cost and type of the technological advancements needed--
for determining grant funding amounts in order to provide for more
flexibility.\71\ The commenter further recommended breaking States into
geographic regions ``so grants can be distributed to areas justifiably
with public input.'' \72\ While the Agencies appreciate the importance
of directing grant funds where they are needed most, the Agencies
recognize that it is necessary to streamline the grant process in order
to provide timely awards. In addition, the Agencies do not have the
expertise to make this type of localized determination. The Agencies
believe that States are best situated to determine the needs of
localities within their borders. The Agencies have, therefore, limited
applications to States and Tribal Organizations. The Agencies make no
change to the rule in response to this comment.
---------------------------------------------------------------------------

    \71\ See Anonymous Comment Two, https://www.regulations.gov/document?D=NHTSA-2017-0088-0005.
    \72\ Id.
---------------------------------------------------------------------------

    After considering the comments submitted, and consistent with the
Agencies' specific responses above, the Agencies have determined that
the existing formula, which equally accounts for population and road
miles, is the most reliable method for calculating the distribution of
911 Grant Program funds.
2. Tribal Organizations
    The Agencies specifically sought comment on how to distribute grant
funds to Tribal Organizations. Two commenters, the CO PUC and an
anonymous commenter, expressed support for applying the same formula to
States and Tribal Organizations as proposed by the Agencies.\73\ The CO
PUC further recommended setting a floor level of funding for Tribal
Organizations, similar to the minimum grant amounts provided for States
and Territories.\74\ The Agencies decline to set a minimum grant amount
for Tribal Organizations because the size of Tribal Organizations
varies so widely that a minimum funding level could create inequities
and inefficiencies. Therefore, the Agencies will retain the proposed
maximum funding level applicable to Tribal Organizations.
---------------------------------------------------------------------------

    \73\ See CO PUC at 5, Anonymous Comment One.
    \74\ See CO PUC at 5.
---------------------------------------------------------------------------

G. Eligible Uses for Grant Funds (400.7)

    The regulatory language of 47 CFR 400.7 lays out the broad
parameters of eligible use of 911 Grant Program funds. The Agencies
provided additional clarification on certain specific uses of funds in
the preamble to the NPRM. The Agencies received several comments
relating to these uses. In order to keep the regulatory language broad,
and to provide flexibility to grant recipients, the Agencies make no
change to the regulatory language in response to these comments, but
will address those comments here to provide further clarification.
1. NG911 Services
    APCO and the CO PUC expressed support for the Agencies' proposal to
provide grant recipients the flexibility to determine whether to
provide NG911 services directly or through a contract.\75\ APCO further
suggested that the Agencies encourage applicants to ``propose forward-
thinking solutions for NG911, even if the proposals deviate from
traditional approaches to NG911 network architectures.'' \76\ Provided
that the hardware, software, and/or services comply with current NG911
standards, the Agencies do not proscribe specific architecture for a
grantee's NG911 system.
---------------------------------------------------------------------------

    \75\ See APCO at 3, CO PUC at 6-7.
    \76\ APCO at 3.
---------------------------------------------------------------------------

    The DC OUC and the MO DPS requested that the Agencies add
consulting services to assist with the NG911 transition and deployment
as an eligible cost.\77\ In 47 CFR 400.9(a), the Agencies identified
the requirements of

2 CFR part 200, including the cost principles in Subpart E, 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 principle, 2 CFR 200.459--Professional service costs, for detail.
---------------------------------------------------------------------------

    \77\ See DC OUC, MO DPS.
---------------------------------------------------------------------------

    NENA supports the Agencies' incorporation of the NG911 standards,
as listed in the DHS SAFECOM Guidance, Appendix B, which NENA notes
incorporates by reference many NENA standards.\78\ NENA specifically
urged the Agencies to encourage grant recipients to implement
i3-based deployments, relying on the NENA i3
standard laid out in ``Detailed Functional and Interface Specifications
for the NENA i3 Solution.'' \79\ Similarly, NSGIC commented
that the Agencies should more explicitly require applicants to follow
NENA's i3 standard, instead of the existing incorporation of
the DHS SAFECOM Guidance.\80\ The Agencies would like to clarify that
the SAFECOM Guidance contains a list of acceptable standards which is a
vital resource for developing an NG911 system that meets the goal of
interoperability. The Agencies reaffirm the requirement for grant
recipients to specify that hardware, software, and services comply with
current NG911 standards; however, individual products only need to meet
the relevant standard(s) within the list of standards in the SAFECOM
Guidance. As NENA notes in its comment, the DHS SAFECOM Guidance
incorporates by reference the 911 Program's ``NG911 Standards
Identification and Review,'' which in turn lists NENA's i3
standard.
---------------------------------------------------------------------------

    \78\ See NENA at 2.
    \79\ Id.
    \80\ NSGIC at 1-2.
---------------------------------------------------------------------------

    Conversely, the CO PUC recommended that States be able to apply for
waivers of the requirement that hardware, software, and services comply
with the current NG911 standards listed in DHS's SAFECOM Guidance in
certain instances--for example, when unable to find a product that
meets all of the listed standards.\81\ The Agencies do not believe that
waivers are the most effective means of addressing the problem of
vendors that do not meet existing standards. Rather, any vendor that
believes it is impossible to meet existing standards is encouraged to
work with the relevant Standards Development Organization (SDO) to
revise existing standards.
---------------------------------------------------------------------------

    \81\ CO PUC at 7.
---------------------------------------------------------------------------

    Carbyne expressed support for innovative solutions in NG911 and
recommended that ``any allocation of grant funds must come with the
requirement that software and hardware be able to communicate with
different PSAPs based on clearly defined standards that the FCC
demands.'' \82\ The FCC has jurisdiction to regulate the
telecommunications service providers that deliver 911 calls from the
public to PSAPs, whereas the 911 Grant Program provides funds for the
direct benefit of PSAPs to improve the 911 system. FCC standards,
therefore, are not applicable to hardware and software purchased using
911 Grant Program funds.
---------------------------------------------------------------------------

    \82\ Carbyne.
---------------------------------------------------------------------------

    NSGIC commented that development and maintenance of geospatial
datasets are necessary in order to support the desired NG911 services
of call routing and coordinated incident response and management.\83\
NSGIC provided suggested regulatory language modifications to the
definition of Next Generation 911 services (Section 400.2), to the
Application requirements section (Section 400.4(a)(1)(i)(B)), and to
the Eligible uses section (Section 400.7(b)) to incorporate geographic
information system (GIS) data.\84\ The Agencies agree that GIS data is
an integral component of the NG911 system. However, GIS data is already
included in the broader terms ``software'' and ``data,'' which are used
in the specified regulatory provisions. Furthermore, the regulatory
provisions to which NSGIC provides recommended modifications are taken
directly from the statutory language. Therefore, the Agencies decline
to make the suggested modifications.
---------------------------------------------------------------------------

    \83\ NSGIC at 1.
    \84\ Id. at 2.
---------------------------------------------------------------------------

    The CO PUC requested clarification as to what qualifies as an
``NG911 application eligible for funding,'' and specifically asked
whether a Computer Aided Dispatch (CAD) system configured similar to an
Emergency Services IP-network, or a CAD or radio system that is
interoperable with the NG911 network, would be considered an eligible
``NG911 application.'' \85\ The regulation allows use of funds for
``IP-enabled emergency services and applications enabled by NG911
services.'' \86\ Whether a CAD or a radio system is an eligible
application enabled by NG911 services, therefore, depends on whether
the CAD or radio system is IP-enabled.
---------------------------------------------------------------------------

    \85\ CO PUC at 6.
    \86\ 47 CFR 400.7(b).
---------------------------------------------------------------------------

    NENA urged the Agencies to ``encourage applicants to include
relevant [independent verification and validation testing (IV&V)] for
all proposed product, service, and system purchases funded with grant
monies, or to fund collaborative, multi-jurisdictional IV&V testing''
to ensure interoperability.\87\ The NG911 Advancement Act was
established to facilitate implementation of NG911 services. While IV&V
testing may be a useful tool for grantees, the Agencies do not believe
that IV&V testing by individual States is an effective or efficient use
of the limited grant funds available at this time.
---------------------------------------------------------------------------

    \87\ NENA at 1-2.
---------------------------------------------------------------------------

2. Training
    The Agencies requested comment on whether they should set a limit
on the amount of 911 Grant Program funds that may be used for training
and whether training funds should be limited to training designed to
meet the ``Recommended Minimum Training Guidelines for
Telecommunicators,'' \88\ developed as part of a three-year effort by
the National 911 program office. Two commenters, APCO and Motorola,
stated that use of 911 Grant Program funds for training should not be
limited to training designed to meet the ``Recommended Minimum Training
Guidelines for Telecommunicators.'' \89\ APCO recommended that eligible
training ``should be related to operationalizing NG911 capabilities,''
whereas Motorola recommended that ``NG9-1-1 grant program funds should
therefore be made available to support all levels of 9-1-1 services
training.'' \90\ The CO PUC expressed support for the Minimum Training
Guidelines developed by the National 911 Program Office and commented
that those guidelines were not unduly burdensome. The CO PUC then
stated that it recommends that training expenses ``be strictly limited
to training pertaining to NG9-1-1 transition and implementation,'' but
does not believe that there should be a limit on the amount of funds
expended on training.\91\
---------------------------------------------------------------------------

    \88\ See National 911 Program, ``Recommended Minimum Training
Guidelines for Telecommunicators'' (May 19, 2016), available at
http://www.911.gov/pdf/Recommended_Minimum_Training_Guidelines_for_the_911_Telecommunicator_FINAL_May_19_2016.pdf (Minimum Training Guidelines).
    \89\ See APCO at 4, Motorola at 4.
    \90\ APCO at 4, Motorola at 4.
    \91\ CO PUC at 7.
---------------------------------------------------------------------------

    After considering the comments received, the Agencies believe that
it is important to retain flexibility for grant recipients while
ensuring efficient use of funds to meet the statutory intent to assist
implementation of NG911.

Therefore, the Agencies will not set a limit on the amount of funds
that may be used for training. However, 911 Grant Program funds may
only be used for training that is related to NG911 implementation and
operations. In order to ensure similar levels of training across the
different components of NG911, the ``Recommended Minimum Training
Guidelines for Telecommunicators'' must serve as a base level for
training provided.
    In response to the Agencies' request for comment on possible
methods of documentation of PSAP compliance with the Minimum Training
Guidelines, the CO PUC recommended certification by the 911
coordinator.\92\ The Agencies' goal is to ensure that training provided
using 911 Grant Program funding at least meet the Minimum Training
Guidelines with the least burden on grantees. As such, the Agencies
will require grantees to submit documentation that describes the
training being provided and that identifies the included elements from
the Minimum Training Guidelines.
---------------------------------------------------------------------------

    \92\ See id. at 8.
---------------------------------------------------------------------------

    The CO PUC recommended that the Agencies allow recipients to use
grant funds to ``establish an ongoing training program for public
safety telecommunicators.'' \93\ The Agencies believe that establishing
an ongoing training program is already an allowable expense under the
program, though some costs of establishing such a program may qualify
as administrative expenses subject to the 10 percent maximum.
---------------------------------------------------------------------------

    \93\ Id. at 7.
---------------------------------------------------------------------------

3. Planning and Administration
    The Agencies proposed allowing the use of funds for an assessment,
using the FCC's ``NG911 Readiness Scorecard,'' \94\ in order to assist
States in determining the status of their current 911 systems as part
of the NG911 implementation process. APCO and the CO PUC both agreed
with the Agencies' proposal to allow grant recipients to use a portion
of the 10 percent maximum for administrative costs to perform an
assessment of the current 911 system.\95\ However, APCO stated that
``the Office should avoid limiting applicants' self-assessments to any
particular tool,'' such as the NG911 Readiness Scorecard.\96\ The NG911
Readiness Scorecard was developed by the Task Force on Optimal Public
Safety Answering Point Architecture, with extensive participation from
the 911 stakeholder community, both private and public. One of the most
important capacities of 911 systems is interoperability. The Agencies
believe that a common assessment will help in this goal. For this
reason, the Agencies strongly recommend that grantees complete an
assessment using the NG911 Readiness Scorecard, but grantees may choose
another basis for their assessments.
---------------------------------------------------------------------------

    \94\ See FCC, TFOPA Working Group 2 Phase II Supplemental
Report: NG9-1-1 Readiness Scorecard (Dec. 2, 2016), available at
https://transition.fcc.gov/pshs/911/TFOPA/TFOPA_WG2_Supplemental_Report-120216.pdf.
    \95\ See APCO at 4, CO PUC at 8.
    \96\ APCO at 4.
---------------------------------------------------------------------------

4. Operation of 911 System
    The MO DPS stated that ``[f]or 911-PSAPs that only have basic 911
infrastructure and the legacy enhancements from the 2009 E-911 grant,
sustainment and maintenance of those systems should be considered as an
eligible cost.'' \97\ Relatedly, the DC OUC requested that the agencies
allow recipients to use grant funds for ``continuation or maintenance
of NG911'' for ``early adopters.'' \98\ However, in order to maximize
use of funds to meet the statutory goal of implementation of an NG911
system, the Agencies have determined that grant recipients may only use
911 Grant Program funds to cover the costs of operating the NG911
system during the period when the recipient is also operating the
current legacy system. Once the NG911 system is fully operational, the
costs of operating the system should be paid for using surcharge fees
collected by State and local governments, as anticipated by the NG911
Advancement Act. Grant recipients should already be using designated
911 charges to fund the operation and maintenance of the 911 or E-911
systems.
---------------------------------------------------------------------------

    \97\ MO DPS.
    \98\ DC OUC.
---------------------------------------------------------------------------

    While expressing agreement with the Agencies' clarification that
operation of the NG911 system is an eligible cost while the grantee is
still operating its legacy 911 system, the CO PUC stated that it does
``not believe the Agencies intend to restrict the use of funds to only
operational costs.'' \99\ The Agencies' clarification regarding
operation of the NG911 system was intended to clarify the circumstances
in which the costs of operation, as opposed to costs of implementation,
of the NG911 system would be allowable. As laid out in the regulation,
implementation of the NG911 system--which includes non-recurring and
capital expenses related to the NG911 transition--is an eligible cost.
---------------------------------------------------------------------------

    \99\ CO PUC at 8.
---------------------------------------------------------------------------

H. Continuing Compliance (400.8)

    APCO requested that the Agencies create a clear definition of fee
diversion, citing disagreement between the FCC and four States in the
most recent FCC report ``On State Collection and Distribution of 911
and Enhanced 911 Fees and Charges.'' \100\ The FCC's annual report is
authorized under the New and Emerging Technologies 911 Improvement Act
of 2008 (NET 911 Act), which is separate from the NG911 Advancement
Act. As such, the Agencies are not bound by the FCC's interpretation of
non-diversion under the NET 911 Act. The NG911 Advancement Act requires
applicants to certify that ``no portion of any designated 911 charges
imposed by a 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.'' \101\ As such, fee diversion is largely dependent upon how
the fees in question are designated, which varies by State. Providing a
single definition of fee diversion, beyond the description provided by
the statute and incorporated in the certifications, would ignore the
ability of States to designate 911 charges. The Agencies make no change
to the rule in response to this comment.
---------------------------------------------------------------------------

    \100\ APCO at 3. FCC, Eighth Annual Report to Congress On State
Collection and Distribution of 911 and Enhanced 911 Fees and Charges
(Dec. 30, 2016), available at https://apps.fcc.gov/edocs_public/attachmatch/DA-17-61A2.pdf.
    \101\ 47 U.S.C. 942(c)(2).
---------------------------------------------------------------------------

    Daniel Ramirez submitted a comment that was somewhat unclear, but
that the Agencies interpret to state agreement with the non-diversion
requirement in the grant.\102\
---------------------------------------------------------------------------

    \102\ See Daniel Ramirez.
---------------------------------------------------------------------------

I. Waiver Authority (400.11)

    The CO PUC stated general support for allowing waiver requests for
discretionary provisions of the grant program regulations.\103\ APCO
stated that certain circumstances could justify a waiver.\104\ APCO
also requested that the Agencies provide an opportunity for notice and
comment by the 911 community when considering whether to grant a
waiver.\105\ The Agencies intend to only use this waiver ability in
extraordinary circumstances. Therefore,

we decline to make a change to the regulation in response to this
comment.
---------------------------------------------------------------------------

    \103\ See CO PUC at 9.
    \104\ See APCO at 4.
    \105\ See id.
---------------------------------------------------------------------------

IV. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Policies and Procedures)

    This rulemaking has been determined to be significant under section
3(f)(4) of Executive Order 12866, and therefore has been reviewed by
the Office of Management and Budget (OMB).

Executive Order 13771

    This rulemaking is exempt from the requirements of Executive Order
13771 because it is a ``transfer rule.''

Administrative Procedure Act

    The effective date of this final rule is the date of publication.
The Administrative Procedure Act's required 30-day delay in effective
date for substantive rules does not apply here as this rule concerns
grants. See 5 U.S.C. 553(a)(2).

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce and
the Assistant Chief Counsel for the National Highway Traffic Safety
Administration certified to the Small Business Administration Office of
Advocacy at the proposed rule stage that this final rule is not
expected to have a significant economic impact on a substantial number
of small entities. Congress enacted the Regulatory Flexibility Act of
1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that Government
regulations do not unnecessarily or disproportionately burden small
entities. The RFA requires a regulatory flexibility analysis if a rule
would have a significant economic impact on a substantial number of
small entities. The majority of potential applicants (56) for 911
grants are U.S. States and Territories, which are not ``small
entities'' for the purposes of the RFA. See 5 U.S.C. 601(5). The
remaining potential grant applicants are a small number of Tribal
Organizations (approximately 13) with a substantial emergency
management/public safety presence within their jurisdictions. Like
States, Tribal Organizations are not ``small entities'' for the
purposes of the RFA. See Small Business Regulatory Flexibility
Improvements Act of 2015, S. 1536, 114th Cong. Sec.  2(d) (2015)
(proposing to add Tribal Organizations to the RFA's ``small
governmental jurisdiction'' definition, one of three categories of
``small entities'' in the RFA). Therefore, we have determined under the
RFA that this final rule would not have a significant economic impact
on a substantial number of small entities. Accordingly, no Regulatory
Flexibility Analysis is required, and none has been prepared.

Congressional Review Act

    This rulemaking has not been determined to be major under the
Congressional Review Act, 5 U.S.C. 801 et seq.

Executive Order 13132 (Federalism)

    This final rule does not contain policies having federalism
implications requiring preparations of a Federalism Summary Impact
Statement.

Executive Order 12988 (Civil Justice Reform)

    This rulemaking has been reviewed under Executive Order 12988,
Civil Justice Reform, as amended by Executive Order 13175. The Agencies
have determined that the final rule meets the applicable standards
provided in section 3 of the Executive Order to minimize litigation,
eliminate ambiguity, and reduce burden.

Executive Order 12372 (Intergovernmental Consultation)

    Applications under this program are subject to Executive Order
12372, ``Intergovernmental Review of Federal Programs,'' which requires
intergovernmental consultation with State and local officials. All
applicants are required to submit a copy of their applications to their
designated State Single Point of Contact (SPOC) offices. See 7 CFR part
3015, subpart V.

Executive Order 12630

    This final rule does not contain policies that have takings
implications.

Executive Order 13175 (Consultation and Coordination With Indian
Tribes)

    The Agencies have analyzed this final rule under Executive Order
13175, and have determined that the action would not have a substantial
direct effect on one or more Indian tribes, would not impose
substantial direct compliance costs on Indian tribal governments, and
would not preempt tribal law. The program is voluntary and any Tribal
Organization that chooses to apply and subsequently qualifies would
receive grant funds. Therefore, a tribal summary impact statement is
not required.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
requires each Federal agency to seek and obtain OMB approval before
collecting information from the public. Federal agencies may not
collect information unless it displays a currently valid OMB control
number. OMB has approved the Agencies' requests to use previously-
approved Standard Forms 424 (Application for Federal Assistance), 424A
(Budget Information for Non-Construction Programs), 424B (Assurances
for Non-Construction Programs), 424C (Budget Information for
Construction Programs), 425 (Federal Financial Report), and SF-LLL
(Disclosure for Lobbying Activities) under the respective control
numbers 4040-0004, 4040-0005, 4040-0006, 4040-0007, 4040-0014, and
4040-0013. OMB pre-approved the Agencies' information collection
request for the State 911 Plans and the Annual Performance Reports and
assigned it control number 0660-0041.
    The Agencies received no comments in response to their requests to
utilize common forms or their information collection request for the
State 911 Plans and Annual Performance Reports. The approved requests
to use common forms and approved information collection request may be
viewed at reginfo.gov.

Unfunded Mandates Reform Act

    This final rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandates Reform Act of 1995) for
State, local, and tribal governments or the private sector. The program
is voluntary and States and Tribal Organizations that choose to apply
and qualify would receive grant funds. Thus, this rulemaking is not
subject to the requirements of sections 202 and 205 of the Unfunded
Mandates Reform Act of 1995.

National Environmental Policy Act

    The Agencies have reviewed this rulemaking action for the purposes
of the National Environmental Policy Act. The Agencies have determined
that this final rule would not have a significant impact on the quality
of the human environment.

    Dated: July 30, 2018.
David J. Redl,
Assistant Secretary for Communications and Information, National
Telecommunications and Information Administration.
Heidi King,
Deputy Administrator, National Highway Traffic Safety Administration.

List of Subjects in 47 CFR Part 400

    Grant programs, Telecommunications, Emergency response capabilities
(911).

0
In consideration of the foregoing, the National Telecommunications and
Information Administration, Department of Commerce, and the

National Highway Traffic Safety Administration, Department of
Transportation, revises 47 CFR part 400 to read as follows:

PART 400--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 Continuing compliance.
400.9 Financial and administrative requirements.
400.10 Closeout.
400.11 Waiver authority.
Appendix A to Part 400--Initial Certification for 911 Grant
Applicants--States
Appendix B to Part 400--Initial Certification for 911 Grant
Applicants--Tribal Organizations
Appendix C to Part 400--Annual Certification for 911 Grant
Recipients--States
Appendix D to Part 400--Annual Certification for 911 Grant
Recipients--Tribal Organizations

    Authority:  47 U.S.C. 942.

Sec.  [thinsp]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 by the ``Next
Generation 911 Advancement Act of 2012'' (NG911 Advancement Act).

Sec.  [thinsp]400.2   Definitions.

    As used in this part--
    911 Coordinator means a single officer or governmental body of the
State in which the applicant is located that is responsible for
coordinating implementation of 911 services in that State.
    911 services means both E-911 services and Next Generation 911
services.
    Administrator means the Administrator of the National Highway
Traffic Safety Administration (NHTSA), U.S. Department of
Transportation.
    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 911 charges means 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 911, E-911 or NG911
services.
    E-911 services means both phase I and phase II enhanced 911
services, as described in Sec.  20.18 of this title, as subsequently
revised.
    Emergency call refers to any real-time communication with a public
safety answering point or other emergency management or response
agency, including--
    (1) Through voice, text, or video and related data; and
    (2) Nonhuman-initiated automatic event alerts, such as alarms,
telematics, or sensor data, which may also include real-time voice,
text, or video communications.
    ICO means the 911 Implementation Coordination Office established
under 47 U.S.C. 942 for the administration of the 911 grant program,
located at the National Highway Traffic Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, NTI-140,
Washington, DC 20590.
    Integrated telecommunications services means one or more elements
of the provision of multiple 911 systems' or PSAPs' infrastructure,
equipment, or utilities, such as voice, data, image, graphics, and
video network, customer premises equipment (such as consoles, hardware,
or software), or other utilities, which make common use of all or part
of the same transmission facilities, switches, signaling, or control
devices (e.g., database, cybersecurity).
    IP-enabled emergency network or IP-enabled 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.
    Next Generation 911 services means an IP-based system comprised of
hardware, software, data, and operational policies and procedures
that--
    (1) Provides standardized interfaces from emergency call and
message services to support emergency communications;
    (2) Processes all types of emergency calls, including voice, data,
and multimedia information;
    (3) Acquires and integrates additional emergency call data useful
to call routing and handling;
    (4) Delivers the emergency calls, messages, and data to the
appropriate public safety answering point and other appropriate
emergency entities;
    (5) Supports data or video communications needs for coordinated
incident response and management; and
    (6) Provides broadband service to public safety answering points or
other first responder entities.
    PSAP means a public safety answering point, a facility that has
been designated to receive emergency calls and route them to emergency
service personnel.
    State means any State of the United States, the District of
Columbia, Puerto Rico, American Samoa, Guam, the United States Virgin
Islands, the Northern Mariana Islands, and any other territory or
possession of the United States.
    Tribal Organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: Provided,
that in any case where a contract is let or grant made to an
organization to perform services benefiting more than one Indian tribe,
the approval of each such Indian tribe shall be a prerequisite to the
letting or making of such contract or grant.

Sec.  [thinsp]400.3   Who may apply.

    In order to apply for a grant under this part, an applicant must be
a State or Tribal Organization as defined in Sec.  400.2.

Sec.  [thinsp]400.4   Application requirements.

    (a) Contents for a State application. An application for funds for
the 911 Grant Program from a State must consist of the following
components:
    (1) State 911 plan. A plan that--
    (i) Details the projects and activities proposed to be funded for:
    (A) The implementation and operation of 911 services, E-911
services, migration to an IP-enabled emergency network, and adoption
and operation of Next Generation 911 services and applications;
    (B) The implementation of IP-enabled emergency services and
applications enabled by Next Generation 911 services, including the
establishment of IP backbone networks and the application layer
software infrastructure needed to interconnect the multitude of
emergency response organizations; and
    (C) Training public safety personnel, including call-takers, first
responders, and other individuals and organizations who are part of the
emergency response chain in 911 services.
    (ii) Establishes metrics and a time table for grant implementation;
and
    (iii) Describes the steps the applicant has taken to--

    (A) Coordinate its application with local governments, Tribal
Organizations, and PSAPs within the State;
    (B) 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 applicant's administrative expenses
related to the 911 Grant Program; and
    (C) Involve integrated telecommunications services in the
implementation and delivery of 911 services, E-911 services, and Next
Generation 911 services.
    (2) Project budget. A project budget for all proposed projects and
activities to be funded by the grant funds. Specifically, for each
project or activity, the applicant must:
    (i) Demonstrate that the project or activity meets the eligible use
requirement in Sec.  400.7; and
    (ii) Identify the non-Federal sources, which meet the requirements
of 2 CFR 200.306, that will fund at least 40 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 qualify for a grant
under the program 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 Sec.  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 2 CFR 200.306, 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 911 Coordinator. The identification of a single
officer or government body to serve as the 911 Coordinator of
implementation of 911 services and to sign the certifications required
under this part. Such designation need not vest such coordinator with
legal authority to implement 911 services, E-911 services, or Next
Generation 911 services or to manage emergency communications
operations. If a State applicant has established by law or regulation
an office or coordinator with the authority to manage 911 services,
that office or coordinator must be identified as the designated 911
Coordinator and apply for the grant on behalf of the State. If a State
applicant 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 911 Coordinator in order to qualify for a 911
grant. If the designated 911 Coordinator is a governmental body, an
official representative of the governmental body shall be identified to
sign the certifications for the 911 Coordinator. The State must notify
NHTSA in writing within 30 days of any change in appointment of the 911
Coordinator.
    (5) Certifications. The certification in Appendix A of this part,
signed by the 911 Coordinator, certifying that the applicant has
complied with the required statutory and programmatic conditions in
submitting its application. The applicant must certify that during the
time period 180 days immediately preceding the date of the initial
application, the State has not diverted any portion of designated 911
charges imposed by the State for any purpose other than the purposes
for which such charges are designated or presented, that no taxing
jurisdiction in the State that will be a recipient of 911 grant funds
has diverted any portion of designated 911 charges imposed by the
taxing jurisdiction for any purpose other than the purposes for which
such charges are designated or presented, and that, continuing through
the time period during which grant funds are available, neither the
State nor any taxing jurisdiction in the State that is a recipient of
911 grant funds will divert designated 911 charges for any purpose
other than the purposes for which such charges are designated or
presented.
    (b) Contents for a Tribal Organization application. An application
for funds for the 911 Grant Program from a Tribal Organization must
consist of the following components:
    (1) Tribal Organization 911 Plan. A plan that--
    (i) Details the projects and activities proposed to be funded for:
    (A) The implementation and operation of 911 services, E-911
services, migration to an IP-enabled emergency network, and adoption
and operation of Next Generation 911 services and applications;
    (B) The implementation of IP-enabled emergency services and
applications enabled by Next Generation 911 services, including the
establishment of IP backbone networks and the application layer
software infrastructure needed to interconnect the multitude of
emergency response organizations; and
    (C) Training public safety personnel, including call-takers, first
responders, and other individuals and organizations who are part of the
emergency response chain in 911 services.
    (ii) Establishes metrics and a time table for grant implementation;
and
    (iii) Describes the steps the applicant has taken to--
    (A) Coordinate its application with PSAPs within the Tribal
Organization's jurisdiction;
    (B) 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 applicant's administrative expenses
related to the 911 Grant Program; and
    (C) Involve integrated telecommunications services in the
implementation and delivery of 911 services, E-911 services, and Next
Generation 911 services.
    (2) Project budget. A project budget for all proposed projects and
activities to be funded by the grant funds. Specifically, for each
project or activity, the applicant must:
    (i) Demonstrate that the project or activity meets the eligible use
requirement in Sec.  400.7; and
    (ii) Identify the allowable sources, which meet the requirements of
2 CFR 200.306, that will fund at least 40 percent of the cost.
    (3) Supplemental project budget. Tribal Organizations that qualify
for a grant under the program 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 Sec.  400.6, a
Tribal Organization must submit, with its application, a supplemental
project budget that identifies the maximum dollar amount the Tribal
Organization is able to match from allowable sources meeting the
requirements of 2 CFR 200.306, and includes projects or activities for
those grant and matching amounts, up to the total amount in the project
budget submitted under paragraph (b)(2) of this section. This
information must be provided to the same level of detail as required
under paragraph (b)(2) of this section and be consistent with the
Tribal Organization 911 Plan required under paragraph (b)(1) of this
section.
    (4) Designated 911 Coordinator. Written identification of the
single State officer or government body serving as the 911 Coordinator
of implementation of 911 services in the State (or States) in which the
Tribal Organization is

located. If a State has not designated an officer or government body to
coordinate such services, the Governor of the State must appoint a
single officer or governmental body to serve as the 911 Coordinator in
order for the Tribal Organization to qualify for a 911 grant. The
Tribal Organization must notify NHTSA in writing within 30 days of any
change in appointment of the 911 Coordinator.
    (b) Responsible Tribal Organization Official. Written
identification of the official responsible for executing the grant
agreement and signing the required certifications on behalf of the
Tribal Organization.
    (5) Certifications. The certification in Appendix B of this part,
signed by the responsible official of the Tribal Organization,
certifying that the applicant has complied with the required statutory
and programmatic conditions in submitting its application. The
applicant must certify that during the time period 180 days immediately
preceding the date of the initial application, the taxing jurisdiction
(or jurisdictions) within which the applicant is located has not
diverted any portion of designated 911 charges imposed by the taxing
jurisdiction (or jurisdictions) within which the applicant is located
for any purpose other than the purposes for which such charges are
designated or presented and that, continuing through the time period
during which grant funds are available, the taxing jurisdiction (or
jurisdictions) within which the applicant is located will not divert
designated 911 charges for any purpose other than the purposes for
which such charges are designated or presented.
    (c) Due dates--(1) Initial application deadline. The applicant must
submit the certification set forth in Appendix A of this part if a
State, or Appendix B of this part if a Tribal Organization, no later
than the initial application deadline published in the Notice of
Funding Opportunity. Failure to meet this deadline will preclude the
applicant from receiving consideration for a 911 grant award.
    (2) Final application deadline. After publication of the funding
allocation for the 911 Grant Program in a revision to the Funding
Opportunity, applicants that have complied with paragraph (c)(1) of
this section will be given additional time in which to submit remaining
application documents in compliance with this section, including a
supplemental project budget. The revision to the Notice of Funding
Opportunity will provide such deadline information. Failure to meet
this deadline will preclude the applicant from receiving consideration
for a 911 grant award.

Sec.  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 applicant,
with respect to any of the application submission requirements of Sec.
400.4, prior to making a recommendation for an award. Failure to submit
such additional information may preclude the applicant from further
consideration for award.
    (c) The Administrator and Assistant Secretary will jointly approve
and announce, in writing, grant awards to qualifying applicants.

Sec.  [thinsp]400.6   Distribution of grant funds.

    (a) Funding allocation. Except as provided in paragraph (b) of this
section--
    (1) Grant funds for each State that meets the certification
requirements set forth in Sec.  400.4 will be allocated--
    (i) 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
    (ii) 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.
    (2) Grant funds for each Tribal Organization that meets the
certification requirements set forth in Sec.  400.4 will be allocated--
    (i) 50 percent in the ratio to which the population of the Tribal
Organization bears to the total population of all Tribal Organizations,
as determined by the most recent population data on American Indian/
Alaska Native Reservation of Statistical Area; and
    (ii) 50 percent in the ratio which the public road mileage in each
Tribal Organization bears to the total public road mileage in tribal
areas, using the most recent national tribal transportation facility
inventory data.
    (2) Supplemental project budgets. As set forth in Sec.  400.4(a)(3)
and (b)(3), the ICO reserves the right to allocate additional funds
based on supplemental project budgets.
    (b)(1) Minimum distribution. The distribution to each qualifying
State under paragraph (b) 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.
    (2) Tribal Organization set-aside. Up to 2 percent of grant funds
available under this part will be set aside for distribution to
qualifying Tribal Organizations for a 911 grant. The distribution to
each qualifying Tribal Organization shall not be more than $250,000.
Any remaining funds after distribution to qualifying Tribal
Organizations under this subparagraph will be released for distribution
to the States consistent with paragraph (a) of this section.
    (c) Additional notices of funding opportunity. Grant funds that are
not distributed under paragraph (a) of this section may be made
available to States and Tribal Organizations through subsequent Notices
of Funding Opportunity.

Sec.  400.7   Eligible uses for grant funds.

    Grant funds awarded under this part may be used only for:
    (a) The implementation and operation of 911 services, E-911
services, migration to an IP-enabled emergency network, and adoption
and operation of Next Generation 911 services and applications;
    (b) The implementation of IP-enabled emergency services and
applications enabled by Next Generation 911 services, including the
establishment of IP backbone networks and the application layer
software infrastructure needed to interconnect the multitude of
emergency response organizations; and
    (c) 911-related training of public safety personnel, including
call-takers, first responders, and other individuals and organizations
who are part of the emergency response chain in 911 services.

Sec.  400.8   Continuing compliance.

    (a) A grant recipient must submit on an annual basis 30 days after
the end of each fiscal year during which grant funds are available, the
certification set forth in Appendix C of this part if a State, or
Appendix D of this part if a Tribal Organization, making the same
certification concerning the diversion of designated 911 charges.
    (b) In accordance with 47 U.S.C. 942(c), where a recipient
knowingly provides false or inaccurate information in its certification
related to the diversion of designated 911 charges, the recipient
shall--
    (1) Not be eligible to receive the grant under this part;
    (2) Return any grant awarded under this part during the time that
the certification was not valid; and
    (3) Not be eligible to receive any subsequent grants under this
part.

Sec.  400.9   Financial and administrative requirements.

    (a) General. The requirements of 2 CFR part 200, the Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards, including applicable cost principles referenced at
subpart E, 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 2 CFR 200.328, within 90 days after each fiscal year
that grant funds are available, except when a final report is required
under Sec.  400.10(b)(2).
    (2) Financial reports. Each recipient shall submit quarterly
financial reports to NHTSA, following the procedures of 2 CFR 200.327,
within 30 days after each fiscal quarter that grant funds are
available, except when a final voucher is required under Sec.
400.10(b)(1).

Sec.  400.10   Closeout.

    (a) Expiration of the right to incur costs. The right to incur
costs under this part will expire as of the end of the period of
performance. The grant recipient and its subrecipients 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 the final financial reconciliation for the grant award.
    (2) A final report to NHTSA, following the procedures of 2 CFR
200.343(a).
    (c) Disposition of unexpended balances. Any funds that remain
unexpended after closeout shall cease to be available to the recipient
and shall be returned to the government.

Sec.  400.11   Waiver authority.

    It is the general intent of the ICO not to waive any of the
provisions set forth in this part. However, under extraordinary
circumstances and when it is in the best interest of the federal
government, the ICO, upon its own initiative or when requested, may
waive the provisions in this part. Waivers may only be granted for
requirements that are discretionary and not mandated by statute or
other applicable law. Any request for a waiver must set forth the
extraordinary circumstances for the request.

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[FR Doc. 2018-16567 Filed 8-2-18; 8:45 am]
 BILLING CODE 3510-60-P